NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3528
_____________
ADAMS POINTE I, L.P.; ADAMS POINTE II, L.P.; BAYBERRY NORTH
ASSOCIATES L.P.; BETTERS REAL ESTATE HOLDINGS, L.P.; JBCO; ADAMS
POINTE III, L.P.; ADAMS POINTE NORTH CONDOMINIUM ASSOCIATION;
ADAMS POINTE MASTER ASSOCIATION, L.P.; COULTER & GRAHAM, L.P.;
MICHAEL AND KATHLEEN BICHLER; and JOHN EVANS, individually and on
behalf of those similarly situated,
Appellants,
v.
TRU-FLEX METAL HOSE CORP.; TRU-FLEX, LLC; and PRO-FLEX LLC,
*****
TRU-FLEX METAL HOSE CORP., TRU-FLEX, LLC, and PRO-FLEX LLC,
Third-Party Plaintiffs,
v.
RIDGE DEVELOPMENT CORP.; RIDGE MANAGEMENT & DEVELOPMENT
CORP.: ADAMS POINTE CONSTRUCTION CORP.; ADAMS POINTE SOUTH
VILLAGE OWNERS ASSOCIATION, L.P.; ADAMS POINTE CONDOMINIUM
ASSOCIATION; WARD CONDOMINIUM ASSOCIATION; WARD
MANUFACTURING, LLC d/b/a WARDFLEX; UNIQUE INDUSTRIAL PRODUCT
COMPANY; PRO-FLEX HOLDINGS, LLC (OF TEXAS),
Third-Party Defendants
_______________________
On Appeal from the United States District Court for the
Western District of Pennsylvania
(District Court No. 2-16-cv-00750)
District Court Judge: Cathy Bissoon
Argued on July 8, 2021
(Filed: August 16, 2021)
Before: SHWARTZ, KRAUSE, and RENDELL, Circuit Judges.
Rebecca Bell-Stanton [Argued]
Nathan S. Carpenter
Carpenter & Schumacher
2500 Dallas Parkway
Suite 495
Plano, TX 75093
Counsel for Appellants
Daniel R. Bentz, I
Thomas Pie, Jr. [Argued]
Marks O’Neill O’Brien Doherty & Kelly
707 Grant Street
2600 Gulf Tower
Pittsburgh, PA 15219
Counsel for Appellees, Tru-Flex, LLC, and Tru-Flex Metal Hose Corp.
Adam L. Frankel [Argued]
Thomas A. Gamache
Daniel J. Offenbach
Leahy Eisenber Fraenkel
33 West Monroe Street
Suite 1100
Chicago, IL 60603
Gina M. Zumpella
Walsh Barnes & Zumpella
2100 Corporate Drive
Suite 300
Wexford, PA 15090
Counsel for Appellee, Pro-Flex, LLC
John J. Hare
Shane Haselbarth
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street
Suite 2300
Philadelphia, PA 19103
Counsel for Third-Party Defendant/Appellee Unique Industrial Product, L.P.
2
OPINION*
RENDELL, Circuit Judge.
A putative class of property owners (“Plaintiffs”) appeals the denial of class
certification for claims brought against Defendants Tru-flex Metal Hose Corp., Tru-Flex,
LLC (collectively, “Tru-Flex”) and Pro-Flex LLC (collectively, “Defendants”), for
damages sustained from allegedly defective yellow-jacketed corrugated stainless-steel
tubing (“Pro-Flex® CSST” or “CSST”). For the reasons discussed below, we will affirm.
I.
Defendants market Pro-Flex® CSST as a safer and more installer-friendly gas
delivery mechanism than traditional black iron pipe gas systems. The product consists of
a stainless-steel pipe encased in an insulative outer yellow jacket. Plaintiffs allege that
power surges from nearby lightning, or potentially a household electrical current, can
cause a structure to be electrically energized such that the energy creates a hole in the
CSST and can result in fire. Whereas traditional black iron pipes can withstand an
energy surge by distributing the charge, yellow-jacketed CSST cannot. Plaintiffs allege
that Defendants have actual knowledge that yellow-jacketed CSST is insufficiently
insulated to prevent combustion following an electrical surge, but they nonetheless
continue to manufacture and distribute it nationwide.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
3
A class action was brought in 2004 against other manufacturers of yellow-jacketed
CSST, in which the plaintiffs alleged that the manufacturers knew that yellow-jacketed
CSST was defectively designed and was susceptible to combustion. As a part of the class
settlement, the manufacturers represented that bonding and grounding “might mitigate
the imminent harm.” Pls.’ First Am. Compl. ¶ 28. Bonding refers to tying all metal
points in the gas system together so that they conduct at the same electrical potential
level, thereby preventing an arc between different areas of electrical potential.
Grounding involves providing stray electrical current with a path toward the ground.
Plaintiffs allege that, following the 2004 class settlement, bonding and grounding
guidelines were included in industry-wide design and installation manuals provided to
certified installers for new installations of yellow-jacketed CSST. Plaintiffs allege that
these guidelines were included without validating whether bonding and grounding
sufficiently mitigated the risk of combustion, and without providing a remedy for prior
legacy installations. Plaintiffs claim that Defendants rely on the bonding and grounding
instruction manual to mitigate any design defect, but that bonding and grounding do not
remedy the defective Pro-Flex® CSST in existing structures nor do they remove the
inherent danger of yellow-jacketed CSST. Although other manufacturers have modified
the design of their CSST products to incorporate arc-resistant jackets, Defendants have
not made any modifications and continue to market and distribute the yellow-jacketed
CSST.
According to Plaintiffs, Defendants concede that industry practice requires yellow-
jacketed CSST to be sold to and installed by a qualified plumbing professional, in
4
accordance with applicable plumbing codes. However, Plaintiffs allege that Defendants
continue to sell Pro-Flex® CSST to “do-it-yourself installers.” Pls.’ First Am. Compl. ¶
58.
Plaintiffs own residences in Pennsylvania that are allegedly affected by Pro-Flex®
CSST. Plaintiffs claim that they have incurred costs as a result of physical damage, loss
in property value, and mitigation efforts. Following a nearby lightning strike in 2015, a
condominium unit in the Adams Pointe Community caught fire and experienced
significant property damage. According to a third-party fire investigation, Pro-Flex®
CSST installed in the condominium unit failed, causing natural gas to release into the unit
and ignite. Plaintiffs allege that the Pro-Flex® CSST was inspected and approved by
local code officials before the fire.
Plaintiffs include the owners of properties in the Adams Pointe Community, the
condominium associations responsible for exterior repairs at Adams Pointe, and the
owners of other residential properties in which yellow-jacketed CSST was previously
installed but has since been replaced. Plaintiffs allege that the presence of yellow-
jacketed CSST has damaged the value of their properties and their ability to sell because
home inspectors list the yellow-jacketed CSST as a material defect. Plaintiffs seek a
variety of remedies including monetary damages for property damage, replacement pipes,
inspection costs, additional safety measures, the diminution in value of their property,
and increased insurance costs. They additionally seek injunctive relief to prevent
Defendants from selling, marketing, and distributing Pro-Flex® CSST unless they
remedy its defect.
5
Plaintiffs sought to certify a class defined as follows:
Any and all persons and/or entities who own real property in the United
States in which yellow-jacket Pro-Flex® CSST manufactured, designed,
marketed, or distributed by the named Defendants was installed.
Plaintiffs sought nationwide class certification under Federal Rule of Civil Procedure
23(b)(3) for their claims of (1) breach of implied warranty of merchantability and fitness;
(2) strict products liability; and (3) negligence for marketing defect and failure to warn.1
Plaintiffs also sought certification of a subclass for their claims under the Pennsylvania
Unfair Trade Practices and Consumer Protection Law. In the alternative, Plaintiffs argue
that they have met the standards for class certification under Rule 23(b)(2) for injunctive
relief and class certification under Rule 23(c)(4) for a liability-only class.
Magistrate Judge Cynthia Reed Eddy filed a Report and Recommendation, which
concluded that Plaintiffs failed to satisfy the elements of class certification. The District
Court adopted the Report and Recommendation as the Opinion of the Court and denied
Plaintiffs’ motion for class certification.
1
On appeal, Plaintiffs assert that they sought nationwide certification only for the strict
products liability and implied warranty claims. In the First Amended Complaint and the
Memorandum in Support of Motion for Class Certification, they sought nationwide
certification for the negligence claim as well, so we will consider it as a claim for both
the nationwide class and the Pennsylvania-only class.
6
II.
The District Court had jurisdiction under 28 U.S.C. § 1332(d). We have appellate
jurisdiction over this interlocutory appeal under 28 U.S.C. § 1292(e) and Federal Rule of
Civil Procedure 23(f).2
“We review a class certification order for abuse of discretion, which occurs if the
district court’s decision rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.” Hayes v. Wal-Mart Stores,
Inc., 725 F.3d 349, 354 (3d Cir. 2013) (internal quotation marks omitted). We review de
novo whether the District Court applied the correct legal standard. See id.
III.
Plaintiffs argue that the District Court abused its discretion by concluding that they
failed to satisfy any element of Rule 23. Every putative class must satisfy the four
requirements of Rule 23(a):
(1) the class must be “so numerous that joinder of all members is
impracticable” (numerosity); (2) there must be “questions of law or fact
common to the class” (commonality); (3) “the claims or defenses of the
representative parties” must be “typical of the claims or defenses of the class”
(typicality); and (4) the named plaintiffs must “fairly and adequately protect
the interests of the class” (adequacy of representation, or simply adequacy).
2
A class action meets the Article III standing requirements so long as at least one named
plaintiff has standing. Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353, 364 (3d Cir.
2015). Plaintiffs have made the requisite showing here because they allege that they
suffered damages in the form of property damages from fire, remediation efforts,
property value loss and/or increased insurance premiums.
7
In re Cmty. Bank of N. Va., 622 F.3d 275, 291 (3d Cir. 2010). The party seeking
certification bears the burden of establishing each element of Rule 23 by a preponderance
of the evidence. See Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012).
Plaintiffs seek certification of a nationwide class or multi-state subclasses under
Rule 23(b)(3) or, in the alternative, certification under Rule 23(b)(2) for injunctive relief
or Rule 23(c)(4) as a liability-only class. We will address each proposed class in turn.
A.
We note at the outset that the District Court held that Plaintiffs could not satisfy
any of the Rule 23(a) and (b) requirements, and that the class was also not ascertainable.
We will not address each of these requirements, however, because we conclude that
Plaintiffs’ class claims fail due to their lack of commonality and Plaintiffs’ inability to
satisfy the Rule 23(b)(3) requirement that “questions of law or fact common to class
members predominate over any questions affecting only individual members.” Fed. R.
Civ. P. 23(b)(3). Plaintiffs argue that the District Court abused its discretion by ignoring
the common issues that they identified and by focusing the predominance inquiry on
variations in state law. “It is often appropriate to discuss commonality and predominance
together because the commonality inquiry is subsumed into the predominance inquiry.”
Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015). We will do so here.
Federal Rule of Civil Procedure 23(a)(2) requires “questions of law or fact
common to the class.” This means “the named plaintiffs share at least one question of
fact or law with the grievances of the prospective class.” Baby Neal v. Casey, 43 F.3d
48, 56 (3d Cir. 1994). Although this bar “is not a high one,” we have found commonality
8
lacking where there was no common practice or common harm. See Rodriguez v. Nat’l
City Bank, 726 F.3d 372, 382-85 (3d Cir. 2013).
Predominance “tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation, a standard far more demanding than the commonality
requirement of Rule 23(a), requiring more than a common claim.” In re Hydrogen
Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d Cir. 2008), as amended (Jan. 16, 2009)
(cleaned up). Notably, “the presence of individual questions does not per se rule out a
finding of predominance.” In re Prudential Ins. Co. Am. Sales Practice Litig. Agent
Actions, 148 F.3d 283, 315 (3d Cir. 1998). Predominance also “does not require that
common questions will be answered, on the merits, in favor of the class,” Neale v. Volvo
Cars of N. Am., LLC, 794 F.3d 353, 371 (3d Cir. 2015) (citation omitted), but it does
require that the common issues will generate common answers, Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350 (2011). The district court “must determine whether the
essential elements of the claims brought by a putative class are ‘capable of proof at trial
through evidence that is common to the class rather than individual to its members.’”
Gonzalez v. Corning, 885 F.3d 186, 195 (3d Cir. 2018) (quoting In re Hydrogen
Peroxide, 552 F.3d at 311-12). “If proof of the essential elements of the cause of action
requires individual treatment, then class certification is unsuitable.” Id. (quoting Newton
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 172 (3d Cir. 2001)).
Accordingly, we “examine each element of a legal claim through the prism of Rule
23(b)(3).” Marcus, 687 F.3d at 600 (internal quotation marks omitted).
9
Plaintiffs urge that both commonality and predominance are met here based on the
common product and Defendants’ common course of conduct in continuing to
manufacture, market, and sell the CSST. Plaintiffs identify “susceptibility to
perforation,” “availability of alternative designs,” Defendants’ knowledge of alternative
designs, and the design’s safety for intended use as common issues. Pls.’ Reply Br. 15.
But this is not a case where the same conduct has given rise to the same harm. Some
plaintiffs have experienced physical damage, whereas others allege an economic injury
from the diminution in value of their home, repair costs, or increased insurance costs.
Some may have no injury or their injury may depend on the condition of the pipes and
manner of installation. Each claim will require individualized property assessments and
will raise different causation issues. Even plaintiffs with physical damages will need to
make different showings of damage based on the particular conditions of their property
and the circumstances surrounding the damaging event.
Plaintiffs urge that the efficacy of bonding and grounding and other installation
questions are common because if they are ineffective, they will remove possible defenses
across the class. But Plaintiffs have not shown that the effectiveness of proper
installation can be resolved with “evidence that is common to the class.” In re Hydrogen
Peroxide, 552 F.3d at 311. Instead, installation questions will rely on individualized
assessments such as the product placement at each property, the conduct of each installer,
and the effect of local codes. And even if the effectiveness of bonding and grounding is a
common question, it certainly does not predominate over these individualized
assessments. In sum, Plaintiffs have not shown how the design issues will rely on
10
common evidence that will resolve any of the essential elements of their claims. See
Gonzalez, 885 F.3d at 195. Certainly common fact issues do not predominate.
Plaintiffs additionally contend that the District Court erred in finding a lack of
predominance based on variances in state law. They argue that they submitted a “trial
plan” which “outlin[es] divisibility based on multi-state similarities” and provides a
comparison of relevant state laws and jury instructions. Pls.’ Reply Br. 23. But the
exhibits Plaintiffs reference consist only of a chart listing the type of law in each state and
patterned jury instructions for the various claims in all fifty states. They do not set forth a
“trial plan.”
The District Court concluded that “Plaintiffs have not even attempted to identify
the common elements of each of their causes of action, let alone attempt to explain how
those elements can be met by common proof.” Adams Pointe I, L.P. v. Tru-Flex Metal
Hose Corp., No. 2:16-CV-00750-CB, 2020 U.S. Dist. LEXIS 128055 at *9 (W.D. Pa.
July 17, 2020). While Plaintiffs claim that all fifty states have adopted the Uniform
Commercial Code (“UCC”) § 2-314’s implied warranty of merchantability provision, the
District Court explained that states vary widely in their application of the provision.
States also have varying statutes of limitations and privity requirements for implied
warranty claims. The District Court also noted that strict products liability and
negligence causes of action differ among states.
We agree with the District Court that Plaintiffs have failed to show how the Court
could “navigate the significant variations in state law.” Id. at *10. Plaintiffs may
overcome predominance obstacles in a nationwide class action where they have shown
11
that the applicable state laws are substantially similar such that they can be grouped
together and applied as a unit at trial. See In re Prudential, 148 F.3d at 315. We have
recognized that a grouping proposal was manageable where the plaintiffs provided a
“series of charts setting forth comprehensive analyses of the various states’ laws
potentially applicable to their common law claims.” Id. Conversely, where plaintiffs
“failed to provide a sufficient, or virtually any, analysis describing how the grouped state
laws might apply to the facts” of their case, we affirmed the district court’s ruling that
plaintiffs had failed to meet their predominance burden. Grandalski v. Quest Diagnostics
Inc., 767 F.3d 175, 184 (3d Cir. 2014). Here, Plaintiffs have not shown how various
“elements of these common law claims are substantially similar and [that] any differences
fall into a limited number of predictable patterns.” See In re Prudential, 148 F.3d at 315.
Their “comparison” sets forth the type of law of each jurisdiction, but provides no
analysis of how the elements of the various causes of action in the different jurisdictions
compare to each other or could be grouped so as to be manageable at trial. And the
patterned jury instructions they provided for the fifty states fail to show how a “jury
could be charged in some coherent manner,” by reference to these instructions. See
Grandalski, 767 F.3d at 183. As in Grandalski, this exhibit is, at best, a “generic
assessment” of state laws that is insufficient to meet their burden of showing that
grouping is workable. Id. at 184.
Accordingly, we agree with the District Court that Plaintiffs have failed to satisfy
their predominance burden. The District Court did not abuse its discretion in denying
certification for the nationwide class under Rule 23(b)(3).
12
B.
Plaintiffs urge that the Court disregarded their proposal for multi-state subclasses
or a Pennsylvania-only class under Rule 23(b)(3). They argued at the class certification
hearing that subclasses could be based on the states that have adopted the UCC without
modification and the states that have adopted the Restatement (Second) of Torts §402A
(Am. L. Inst. 1995). Plaintiffs further aver that they met their burden for a Pennsylvania-
only class because they identified the various elements of their Pennsylvania law claims.
Plaintiffs’ recitation of the applicable laws of either the multi-state subclasses or the
Pennsylvania-only class does not address their burden of showing that they will prove the
elements of their claims through common evidence. See In re Hydrogen Peroxide, 552
F.3d at 311. These proposed subclasses will also suffer from the individual causation and
damages issues discussed above. We will therefore affirm the District Court’s denial of
certification for these subclasses.
C.
Plaintiffs argue that the District Court also abused its discretion in denying
certification under Rule 23(b)(2) for injunctive relief or Rule 23(c)(4) for a liability-only
class. For similar reasons as discussed above, we conclude that the District Court did not
abuse its discretion.
Rule 23(b)(2) “does not authorize class certification when each class member
would be entitled to an individualized award of monetary damages.” Gates v. Rohm &
Haas Co., 655 F.3d 255, 264 (3d Cir. 2011) (quoting Wal-Mart Stores, Inc., 564 U.S. at
360-61). “The key to the (b)(2) class is the indivisible nature of the injunctive or
13
declaratory remedy warranted—the notion that the conduct is such that it can be enjoined
or declared unlawful only as to all of the class members or as to none of them.” See Wal-
Mart Stores, Inc., 564 U.S. at 360 (internal quotation marks omitted). Plaintiffs seek
primarily individualized monetary relief here. They have not shown how their proposed
injunctive relief of enjoining the selling and marketing of Pro-Flex® CSST will remedy
their alleged physical and economic injuries. We agree with the District Court that
certification under Rule 23(b)(2) is inappropriate.
Plaintiffs additionally contend that even if certification under Rule 23(b)(3) is
inappropriate due to a predominance issue, certification under Rule 23(c)(4) is warranted
because they have shown common liability issues that will advance the case. We have
enumerated several non-exhaustive factors relevant to assessing whether
certification under Rule 23(c)(4) is appropriate. These factors include “the type of
claim(s) and issue(s) in question,” “the efficiencies to be gained by granting partial
certification in light of realistic procedural alternatives,” “the substantive law underlying
the claim(s),” and the “the kind of evidence presented on the issue(s) certified and
potentially presented on the remaining issues.” Gates, 655 F.3d at 273. We have
recognized that “certifying a Rule 23(c)(4) class is analytically independent from the
predominance inquiry under Rule 23(b)(3), [but] a case may present concerns relevant to
both.” Gonzalez, 885 F.3d at 202. That is the case here. For the same reasons that
Plaintiffs failed to satisfy predominance under Rule 23(b)(3), Plaintiffs have failed to
allege a theory of liability for which class-wide treatment is appropriate.
14
IV.
For the foregoing reasons, we will affirm the District Court’s ruling.
15