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Home Depot Class Action Defense Case-Kitzes v. Home Depot: Illinois Court Holds Denial Of Class Action Was Not Improper Because Individual Issues Would Predominate Over Common Questions Of Fact

Class Action Complaint Alleging Damages from Sale of CCA-Treated Wood did not Warrant Class Action Treatment as Defense Showed Individual Defenses and Individual Damage Analyses would Predominate over Fact Questions Common to Class Illinois Court Holds

Plaintiffs filed a putative class action in Illinois state court against Home Depot alleging violations of the state’s unfair and deceptive business practices statutes arising out of its sale of outdoor products made with wood treated with chromate copper arsenate (CCA) on the theory that “all CCA-treated wood is defective because it leaches toxic chemicals, such as arsenic and chromium VI to the surface of the wood and to nearby soil.” Kitzes v. Home Depot, U.S.A., Inc., 872 N.E.2d 53, Slip Opn., at 1 (Ill.App. June 28, 2007). Plaintiffs’ moved the trial court to certify the litigation as a class action; defense attorneys opposed class action treatment. The appellate court affirmed.

The class action complaint alleged that Home Depot misrepresented that CCA-treated wood was safe for outdoor use. Kitzes, at 1-2. Plaintiffs’ class action certification motion was supported by an expert declaration claiming “a reasonably high degree of scientific certainty that CCA-treated wood used in outdoor settings leaches arsenic to the surface of the wood and the surrounding soil, regardless of factors such as use, location, age and sealant history (except for very recently sealed surfaces),” and an expert declaration that “proposed methodology for calculating the removal and replacement costs associated with pressure-treated lumber in residential settings in multiple states.” Id., at 2. Among the pieces of evidence submitted against class action treatment, defense attorneys introduced plaintiffs’ deposition testimony (1) that they still used the CCA-treated wood deck, and had wood replaced and treated several times, (2) that no one told them that the CCA-treated wood deck diminished the value of their property, and (3) that they had a fence built with wood that had been treated with arsenic. Id., at 2-3. Defense attorneys also submitted press releases from the Environmental Protection Agency concerning the industry’s decision to stop using CCA-treated wood, and stating:

EPA has not concluded that CCA-treated wood poses unreasonable risks to the public for existing CCA-treated wood being used around or near their homes or from wood that remains available in stores. EPA does not believe there is any reason to remove or replace CCA-treated structures, including decks and playground equipment. EPA is not recommending that existing structures or surrounding soils be removed or replaced. While available data are very limited, some studies suggest that applying certain penetrating coatings (e.g., oil-based semi-transparent stains) on a regular basis (one re-application per year or every other year depending on wear and weathering) may reduce the migration of wood preservative chemicals from CCA-treated wood.

The defense also submitted expert declarations that CCA-treated wood has not been proven to cause injury, and that “consuming drinking water containing arsenic at either the federally imposed limit applicable during part of the proposed class period or at the limit imposed effective as of February 2002 resulted in a significantly greater dose of arsenic than would be experienced in a reasonable maximum exposure scenario for CCA-treated wood.” Kitzes, at 4. Defense experts also argued that individual exposure to CCA-treated wood “may differ as much as five hundredfold between individuals.” Id., at 4-5. Additionally, defense attorneys argued that Home Depot sold almost 1000 different treated-wood products supplied by about 30 different vendors, and that the company cannot track purchasers of the wood and cannot identify whether wood had been treated at Home Depot once its stock-keeping unit tag had been removed. Id., at 5. Moreover, “no two pieces of CCA-treated wood are identical and no two structures are the same,” id., at 5-6, and individual exposure to CCA “may vary by several hundredfold, depending upon a number of variables,” id., at 6. In addition, an expert declared that the amount of leaching of CCA from wood would depend on

the treatment method; the type of wood being treated; the part of the tree from which the lumber was cut; the species of source wood; the season when the lumber was harvested; the size, shape, and condition of the lumber when treated; the type of CCA formulation and concentration of solution used for treatment; the fixation method used; the climate where the wood is used; the amount and nature of precipitation; the acidity of precipitation; the type of surface water to which wood is exposed; the type of structure built out of wood, as well as the size and location of lumber on the structure; the use of the structure; the existence and amount of sawdust; the length of time in service; and the presence of surface treatments. Id., at 6.

Ultimately, the trial court refused to certify the litigation as a class action “because of individual questions necessary to identify whether proposed class members in fact purchased CCA-treated wood from Home Depot” and because “plaintiffs had not shown a common question of fact with respect to actual damage” or that “they could adequately represent the class.” Kitzes, at 7.

In affirming, the appellate court noted that a trial court order on class certification is reversible only for abuse of discretion, and that “[a]n abuse of discretion occurs when the ruling is arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view.” Kitzes, at 7 (citation omitted). Here, the trial court “ruled that the issues with regard to commonality made a class action an inappropriate method for the fair and efficient adjudication of the controversy.” Id., at 8. The purpose of Illinois law on this issue, which “is drawn from Rule 23(b)(3)” is “to ensure that the proposed class is sufficiently cohesive to warrant adjudication by representation, and it is a far more demanding requirement than the commonality requirement of Rule 23(a)(2).” Id., at 9 (citation omitted).

The appellate court concluded that individual defenses existed as to each plaintiff, including questions concerning representations concerning the CCA-treated wood made to “end users” in that 40% of Home Depot’s sales that were made to professional customers, such as contractors. Kitzes, at 13. Moreover, questions of fact existed as to whether each putative class member was “actually deceived,” particularly in light of the expert declaration “that some consumers knew that CCA-treated wood contained chemicals that could contaminate soil and water, but purchased the product anyway.” Id., at 13-14. In addition, individual issues would predominate with respect to the actual damage, if any, suffered by putative class members, and the appellate court found that “the inquiries into any actual damage suffered by each member of the class are likely to be highly individualized and site-specific.” Id., at 15. In sum, the trial court did not abuse its discretion in determining that individual issues predominate over common questions of fact; accordingly, the order denying class action treatment was affirmed. Id., at 16.

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