Rule 206 ELECTRONIC CITATION: 2004 FED App. 0296P (6th Cir.) File Name: 04a0296p.06… v. Lafarge Corp.

*The Honorable Richard D. Cudahy, Senior Circuit Judge of the
United States Court of Appeals for the Seventh Circuit, sitting by
designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0296P (6th Cir.)
File Name: 04a0296p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JULIE OLDEN, RICHARD
HUNTER, WILBUR BLEAU, and
all others similarly situated,
Plaintiffs-Appellees,
v.
LAFARGE CORP.,
Defendant-Appellant.
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No. 02-1148
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 99-10176—David M. Lawson, District Judge.
Argued: March 12, 2004
Decided and Filed: September 7, 2004
Before: MARTIN, CLAY, and CUDAHY, Circuit Judges.*
2 Olden, et al. v. Lafarge Corp. No. 02-1148
_________________
COUNSEL
ARGUED: Lawrence T. Hoyle, Jr., HOYLE, FICKLER,
HERSCHEL & MATHES, Philadelphia, Pennsylvania, for
Appellant. Steven D. Liddle, MACUGA & LITTLE, Detroit,
Michigan, for Appellees. ON BRIEF: Lawrence T. Hoyle,
Jr., HOYLE, FICKLER, HERSCHEL & MATHES,
Philadelphia, Pennsylvania, Arlene Fickler, HOYLE,
MORRIS & KERR, Philadelphia, Pennsylvania, for
Appellant. David R. Dubin, MACUGA & LITTLE, Detroit,
Michigan, for Appellees.
_________________
OPINION
_________________
CUDAHY, Circuit Judge. Julie Olden, Richard Hunter and
Wilbur Bleau represent a class of 3,600 persons who owned
single family residences in Alpena, Michigan, from April 19,
1996 to the present, and who allege personal and property
damage caused by toxic pollutants originating from a cement
manufacturing plant belonging to the defendant Lafarge
Corporation. They have brought a class action against
Lafarge for current and future personal and real property
damages, diminution in property value and various
detrimental health effects caused by the emission of toxic
pollutants. The district court granted in part and denied in
part Lafarge’s motion to dismiss and granted the plaintiffs’
motion to certify the class action. In this appeal, we are
called upon to decide whether the plaintiffs’ class action
against the nation’s largest cement plant is solid. In
answering this weighty question, we must also decide for the
first time in this circuit whether Zahn v. Int’l Paper Co., 414
U.S. 291, 301 (1973), has been overruled by 28 U.S.C.
§ 1367.

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No. 02-1148 Olden, et al. v. Lafarge Corp. 3
I.
In the northeast section of Alpena, Michigan, Lafarge’s
cement manufacturing complex, consisting of a limestone
rock quarry and a cement manufacturing plant, covers a full
square mile. See App. at 368-70, 431. It is the largest cement
manufacturing plant in the nation and has been owned and
operated by Lafarge since 1987. Id. at 787 (noting that “the
Lafarge plant is the largest cement plant in North America”).
The plaintiffs allege that throughout Lafarge’s ownership and
operation of the plant, it has continuously and systematically
disregarded “proper procedure and maintenance of its
equipment that would prevent the emission of air
contaminants into the surrounding community.” Olden Br.
At 6. As a result, Alpena residents submitted numerous
complaints to the Michigan Department of Environmental
Quality (MDEQ). Id. at 6-7. In 1994, the MDEQ and
Lafarge entered into a consent decree, in part, to remedy
Lafarge’s emission of air contaminants. App. at 301-27.
However, Lafarge violated the terms of the decree resulting
in the accrual of over $5.4 million in stipulated penalties as of
May of 2003. Id. at 219-22. In 2000, the consent decree was
amended, requiring Lafarge’s further compliance with
statutory air pollution requirements. Id. at 435-62.
The plaintiffs claim that in the process of making cement,
the Lafarge plant produces hazardous toxic waste and creates
emissions with hazardous by-products. Id. at 12 (Cplt. ¶¶ 17-
18). The class has alleged that release of the air contaminants
from the Lafarge plant interferes with the use and enjoyment
of their real and personal property and has caused or will
cause diminution in the market value of this property. Id. at
13 (Cplt. ¶¶ 20A, 21). For example, the cement dust emitted
by the plant has penetrated into the siding on houses, killed
rose bushes and left a white film over houses and vehicles in
Alpena. Id. at 280, 282-83. Additionally, hydrochloric acid,
a byproduct of the cement manufacturing process, has
degraded roofs, piping, concrete and the aluminum windows
and doors of some homes. Id. at 289.
4 Olden, et al. v. Lafarge Corp. No. 02-1148
In addition to property damage caused by emissions, the
plaintiffs claim to have been exposed to numerous
carcinogenic, mutagenic, and teratogenic toxic substances.
Id. at 6 (Cplt. ¶¶ 24-25). Such toxins allegedly cause the
plaintiffs and their unborn children an increased risk of
cancer, impaired immunological function, birth defects and
developmental abnormalities, all of which are potentially life
threatening and warrant continued medical monitoring. Id. at
6-7 (Cplt. ¶¶ 26-27). Additionally, the plaintiffs claim agony,
anxiety, distress, embarrassment, humiliation, mental anguish,
suffering and other related nervous conditions, psychological
disorders and emotional consequences. Id. at 18 (Cplt. ¶ 47).
On April 19, 1999, the plaintiffs filed suit against Lafarge,
alleging that the emissions trespassed on their property
(Count II), created a nuisance (Count III) and arose from
Lafarge’s negligence or gross negligence (Count IV). Id. at
15-21 (Cplt. ¶¶ 29-51). The plaintiffs seek compensatory
damages for physical and mental illnesses caused by the
pollution and for the purchase of equipment to clean and
remove emitted substances from their property. The plaintiffs
also seek exemplary and punitive damages, as well as an
injunction requiring Lafarge to: (a) fund a medical monitoring
program (Count I); (b) repair any damage to the plaintiffs’
property; (c) improve the operation of the plant to eliminate
emissions; and (d) refrain from allowing emitted substances
to be deposited on the plaintiffs’ property. Id. at 14, 19-21.
On September 25, 2000, the plaintiffs moved to certify their
class action. Appx. at 39. On October 26, 2000, Lafarge filed
a combined motion to dismiss under Fed. R. Civ. P 12(b)(1)
(lack of subject matter jurisdiction); 12(b)(6) (failure to state
a claim), and to deny class certification, arguing that the
plaintiffs did not meet the requirements of Fed. R. Civ. P.
23(a) (numerosity, typicality and adequacy of class
representation); 23(b)(2) (individualized money damages
overwhelm the requested injunctive relief); and 23(b)(3)
(individuality of interests, manageability of the action, etc.).
Appx. 328-29. In an order dated October 24, 2001, the

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No. 02-1148 Olden, et al. v. Lafarge Corp. 5
district court granted in part and denied in part Lafarge’s
motion to dismiss and granted the plaintiffs’ motion to certify
the class action. See Olden v. Lafarge, 203 F.R.D. 254, 258
(E.D. Mich. 2001). With regard to subject matter jurisdiction,
the district court held that the supplemental jurisdiction
statute confers subject matter jurisdiction over claims by
putative class members that do not entail $75,000 in
controversy, but that form part of the same case or
controversy as the claims by other class members which
exceed the jurisdictional amount. With respect to Lafarge’s
12(b)(6) motion, the court held that the plaintiffs failed to
state a claim for trespass under Michigan law but that the
plaintiffs stated valid state law claims for nuisance and
negligence. Id. at 264-67, 271. Finally, the district court also
held that class certification was appropriate under Fed. R.
Civ. P. 23(b)(2) and (3). Id. at 271. On appeal, Lafarge
challenges only the district court’s decision with respect to
subject matter jurisdiction and class certification.
II.
DISCUSSION
We have jurisdiction over this interlocutory appeal pursuant
to Federal Rule of Civil Procedure 23(f). According to Rule
23(f), “[a] Court of appeals may in its discretion permit an
appeal from an order of a district court granting or denying
class action certification . . . .” Fed. R. Civ. P. 23(f). The
question of subject matter jurisdiction is a prerequisite to
class certification and is therefore properly raised in this Rule
23(f) appeal. See In re Lorazepam & Clorazepate Antitrust
Litig., 289 F.3d 98, 108 (D.C. Cir. 2002) (noting that, unlike
the question of antitrust standing, the question of
constitutional standing would be properly raised in a Rule
23(f) appeal). Moreover, we have an independent obligation
to ensure that subject matter jurisdiction exists. See United
States v. Hays, 515 U.S. 737, 742 (1995); FW/PBS, Inc. v.
City of Dallas, 493 U.S. 215, 230-31 (1990). Therefore, we
6 Olden, et al. v. Lafarge Corp. No. 02-1148
begin by addressing the issue of subject matter jurisdiction
and will then address class certification.
1. Subject Matter Jurisdiction
The plaintiffs argue that the court’s jurisdiction is proper
under the diversity statute, which grants district courts
“original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive
of interest and costs” and is between diverse parties.
28 U.S.C. § 1332(a). The issue raised in this case is whether
each individual class member in a diversity class action must
meet the $75,000 amount in controversy requirement, or
whether the plaintiffs may aggregate their damages. To say
that this question has been thoroughly examined is an
understatement. See Allapattah Servs., Inc. v. Exxon Corp.,
362 F.3d 739 (11th Cir. 2004) (Tjoflat, J., dissenting)
(compiling cases and articles). In fact, one of my law clerks
was asked to answer this very question on a civil procedure
exam in 1999. Unfortunately, however, he does not recall the
answer, so we must review the issue de novo. See COB
Clearinghouse Corp. v. Aetna U.S. Healthcare, Inc., 362 F.3d
877, 880 (6th Cir. 2004) (quoting Joelson v. United States, 86
F.3d 1413, 1416 (6th Cir. 1996) (“We review a district court's
decision to grant a motion to dismiss for lack of subject
matter jurisdiction de novo.”)).
If only the parties had asked us this question twenty years
ago (or any time between 1973-1990), our discussion would
be brief because the Supreme Court had made the answer
plain. See Zahn v. Int’l Paper Co., 414 U.S. 291, 301 (1973).
In Zahn, four named plaintiffs brought a class action on
behalf of approximately 200 lakefront property owners and
lessees, seeking compensation for damages to their property
rights, allegedly caused by the defendant’s pollution of the
lake. Id. at 291-92. Subject matter jurisdiction was asserted
based on diversity under 28 U.S.C. § 1332. Id. at 292.
Although the named plaintiffs had claims exceeding the then
applicable amount in controversy requirement, the district

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No. 02-1148 Olden, et al. v. Lafarge Corp. 7
court had found that not every absent member of the plaintiff
class had a claim that satisfied the requisite amount. Id. The
Supreme Court, consistent with earlier decisions, including
Snyder v. Harris, 394 U.S. 332 (1969), held that the claims of
multiple parties, when separate and distinct, cannot be
aggregated for purposes of meeting the jurisdictional amount.
The decision in Zahn was reaffirmed by the Supreme Court
in Finley v. United States, 490 U.S. 545, 556 (1989). In
Finley, the petitioner brought suit in federal court after her
husband was killed when his plane struck electric
transmission lines. Id. at 546. She asserted a claim under the
Federal Tort Claim Act (FTCA) against the Federal Aviation
Administration (FAA) and state law claims against San Diego
Gas and Electric Power Company arguing that it had
negligently placed and inadequately illuminated its power
lines. Id. The Supreme Court found no “pendent party”
jurisdiction over San Diego Gas. Id. at 556. It held that a
grant of jurisdiction over claims involving particular parties
does not confer jurisdiction over additional claims by or
against different parties, even if all of the claims derive from
a common nucleus of operative facts and consideration of the
additional claims might promote judicial economy and
efficiency. Id.
In 1990, Congress enacted the Judicial Improvements Act
(the Act), a statute clarifying the supplemental jurisdiction of
federal courts. See 28 U.S.C. § 1367. The statute provides,
in relevant part, that:
(a) Except as provided in subsections (b) and (c) or as
expressly provided otherwise by Federal statute, in any
civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that
they form part of the same case or controversy under
Article III of the United States Constitution. Such
8 Olden, et al. v. Lafarge Corp. No. 02-1148
supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional parties.
(b) In any civil action of which the district courts have
original jurisdiction founded solely on section 1332 of
this title, the district courts shall not have supplemental
jurisdiction under subsection (a) over claims by plaintiffs
against persons made parties under Rule 14, 19, 20, or 24
of the Federal Rules of Civil Procedure, or over claims
by persons proposed to be joined as plaintiffs under Rule
19 of such rules, or seeking to intervene as plaintiffs
under Rule 24 of such rules, when exercising
supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of
section 1332.
(c) The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection
(a) if--
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over which
it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367. Shortly after the passage of the Act, a
question arose as to whether Congress had overruled Zahn.
The Fifth Circuit was the first to answer this question. See In
re Abbott Labs., 51 F.3d 524 (5th Cir. 1995). In short, the
Fifth Circuit held that Congress had overruled Zahn, noting
that “Section 1367(a) grants district courts supplemental

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No. 02-1148 Olden, et al. v. Lafarge Corp. 9
jurisdiction over related claims generally, and § 1367(b)
carves exceptions. Significantly, class actions [which are
governed by Rule 23] are not among the exceptions.” Id. at
527. Because Rule 23 was not included in the list of
exceptions, Congress had seemingly granted supplemental
jurisdiction over the claims of absent class members who
independently could not meet the required amount in
controversy.
In so holding, the Fifth Circuit believed that Congress had
not subjectively intended to overrule Zahn. Id. at 528. In
fact, courts have almost universally noted that the legislative
history of § 1367 reveals that Congress did not intend to
overrule Zahn. See, e.g., Gibson v. Chrysler Corp., 261 F.3d
927, 939 (9th Cir. 2001) (“We agree with the Third, Eighth
and Tenth Circuits to this degree: the legislative history
provides a substantial basis to believe that the omission of
claims by Rule 23 plaintiffs from subsection (b) of § 1367,
and the resulting overruling of Zahn, was an oversight.”).
The House Committee on the Judiciary, for instance,
considered the bill as “noncontroversial” and “relatively
modest,” which would seem inconsistent with a statute
intended to overrule a long-established precedent like Zahn.
H. Rep. 101-734 (1990), reprinted in 1990 U.S.C.C.A.N.
6860, 6861. The legislative history suggests that Congress
only intended the statute to overrule Finley and thus
“essentially restore the pre-Finley understandings of the
authorization for and limits on other forms of supplemental
jurisdiction.” Id. at 6874. Perhaps most convincing is the
fact that the legislative history specifically states that this
“section is not intended to affect the jurisdictional
requirements of 28 U.S.C. § 1332 in diversity-only class
actions, as those requirements were interpreted prior to
Finley.” Id. at 6875. A footnote to this passage cites Zahn as
a pre-Finley case unaffected by the Act. Id. at n.17.
Nonetheless, because it found that the plain language of the
statue was unambiguous and because no absurd result would
follow from such an interpretation, the Fifth Circuit was
10 Olden, et al. v. Lafarge Corp. No. 02-1148
unmoved by the legislative history. See In re Abbott Labs, 51
F.3d at 529. It concluded that “[o]mitting the class action
from the exception may have been a clerical error . . . [b]ut
the statute is the sole repository of congressional intent where
the statute is clear and does not demand an absurd result.” Id.
at 528-29.
The Seventh Circuit agreed with the Fifth, stating that
“although, as Abbott Laboratories discussed, some legislative
history suggests that the responsible committees did not
expect § 1367 to upset Zahn, the text is not limited in this
way. When text and legislative history disagree, the text
controls.” Stromberg Metal Works, Inc. v. Press Mech., Inc.,
77 F.3d 928, 931 (7th Cir. 1996) (citation omitted).
Eventually, the Ninth, Fourth and most recently, the Eleventh
Circuit also concluded that Zahn had been overruled. See
Allapattah, 333 F.3d at 1248; Gibson, 261 F.3d at 927;
Rosmer v. Pfizer, Inc., 263 F.3d 110, 114 (4th Cir. 2001).
There has been anything but unanimity, however. The
Tenth Circuit, in Leonhardt v. Western Sugar Co., 160 F.3d
631, 641 (10th Cir. 1998), found the Act to be ambiguous and
thus consulted the legislative history, ultimately holding that
Zahn was still good law. The Court in Leonhardt observed
that:
Section 1367(a) specifically addresses “any civil action
of which the district courts have original jurisdiction.”
(Emphasis added.) It then provides for supplemental
jurisdiction over transactionally related claims. Section
1332 is what confers original jurisdiction over diversity
cases and it expressly requires that the “matter in
controversy exceed[ ] the sum or value of $75,000.”
While § 1332 does not expressly refer to class actions,
the Supreme Court has noted that periodic congressional
amendment of the diversity statute to alter only the
amount in controversy evidences congressional
agreement with the Court’s holding that “matter in
controversy” does “not encompass[ ] the aggregation of

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No. 02-1148 Olden, et al. v. Lafarge Corp. 11
separate and distinct claims.” Snyder, 394 U.S. at 339.
Thus, Congress in § 1367(a) expressly excepted claims
brought under § 1332 and its well-understood definition
of “matter in controversy.”
Leonhardt, 160 F.3d at 640. The Eighth Circuit and the Third
Circuit adopted the reasoning of Leonhardt, finding that Zahn
had not been overruled. See Trimble v. Asarco, Inc., 232 F.3d
946, 962 (8th Cir. 2000); Meritcare Inc. v. St. Paul Mercury
Ins. Co., 166 F.3d 214, 222 (3d Cir. 1999); see also Ortega v.
Star Kist Foods, Inc., No. 02-2530, 2004 WL 1205720 at *9
(1st Cir. June 2, 2004) (applying the reasoning of Leonhardt
in the context of Rule 20 joinder). The Third Circuit went a
step further. It found that it could consult the legislative
history, even if the statute was not ambiguous, arguing that
departure from the usual rule is appropriate in rare cases
where the literal application of the statute would produce
results “demonstrably at odds with the intentions of its
drafters.” Meritcare Inc., 166 F.3d at 222 (citation omitted).
The Fourth and Ninth Circuits responded critically to the
argument of Leonhardt and provided an explanation why
Leonhardt’s alternative interpretation could not stand. See
Rosmer, 263 F.3d at 115-17; Gibson, 261 F.3d at 934-40; see
also Ortega, 2004 WL 1205720 at *19 (Torruella, J.,
dissenting). The Seventh Circuit also dismissed such
alternative interpretations as “inventive.” Stromberg Metal
Works, Inc., 77 F.3d at 932 (citations omitted). The Supreme
Court attempted to resolve the issue; however, it split 4-4, and
its summary affirmance provided no insight. See Free v.
Abbott Labs, 529 U.S. 333 (2000) (per curiam).
Until now, this court has yet to speak on the question.
Today, we join with the majority of circuits which have
considered the question and hold that Zahn has been
12 Olden, et al. v. Lafarge Corp. No. 02-1148
1W e acknowledge that there m ight be a way to de cide this case
without stepping into the Zahn morass. However, we can do so only by
way of a different jurisdictional morass. The plaintiffs argue that
jurisdiction is proper b ecause we can determ ine the amount in controversy
by exam ining the expected cost to the defendant of complying with the
injunction which the plaintiffs seek. Unfo rtunately, there is a circuit split
as to whether a court may determine the amou nt in controversy from the
perspective of either party (the “either viewpoint rule”) or whether a court
may only co nsider the plaintiff’s viewpoint. See, e.g., In re: Ford Motor
Co./Citibank, 264 F.3d 952, 958 (9th Cir. 2001) (applying the “either
viewpoint rule”); In re Brand Name Prescription Drugs Antitrust Litig.,
123 F.3d 599, 60 9 (7th Cir. 1997) (same); Oklaho ma R etail Grocers Ass’n
v. Wal-Mart Sto res, Inc., 605 F.2d 1155, 1159 (10th Cir. 1979) (same);
Williams v. Kleppe, 539 F.2d 803 , 804 n.1 (1st Cir. 19 76) (same ); Tatum
v. Laird, 444 F.2d 947 , 951 (D.C . Cir. 19 71) (same ), rev’d on other
grounds, 408 U.S. 1 (19 72); but see Ga rcia v. K och Oil Co. of Tex., Inc.,
351 F.3d 636 , 640 n.4 (5th Cir. 2003 ) (app lying the “plaintiff’s
viewp oint” rule); Ericsson GE Mo bile Com mu nications, In c. v. M otoro la
Communications & Elecs., Inc., 120 F.3d 216, 219-220 (11th Cir. 1997)
(same); Massachusetts State Pharm. Ass’n v. Fed. Prescription Serv., Inc.,
431 F.2d 130, 13 2 n.1 (8th C ir. 1970) (same). This circuit has not yet
chosen an approach and we d ecline to weigh in on two majo r circuit sp lits
in the same day. N onetheless, we do note that many cases have been
suggested to indicate our adoption of, or preference for, one rule over the
other. See, e.g., Glenwood Light & Water Co. v. M utua l Ligh t, Hea t &
Power Co ., 239 U.S. 121 (1915); Sherwood v. Microsoft Corp., 91 F.
Supp. 2d 1196 (2000); Lodal, Inc. v. Ho me Ins. Co. of Ill., 156 F.3d 1230
(6th Cir. 199 8); Sellers v. O’Conne ll, 701 F.2d 57 5 (6th Cir. 1983);
Goldsm ith v. Sutherland, 426 F.2d 139 5 (6th Cir. 1970 ); Pa. R. Co. v .
City of Girard, 210 F.2d 43 7 (6th Cir. 19 54). In none of these cases,
however, did the court either co nsider this issue or express a subtle
preference one way or the other. T herefore, we leave this interesting
question for another day.
overruled.1 We note that the majority of courts have been
reaching this same conclusion for almost ten years now and
Congress has yet to alter or amend § 1367 to correct them.
For almost ten years, courts have acknowledged that the text
of § 1367 unambiguously overrules Zahn, while its legislative
history shows a clear intent to preserve Zahn. Rules of
statutory construction teach that generally a court cannot
consider the legislative history of a statute in interpreting its
meaning unless the statute is ambiguous. See In re Comshare

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No. 02-1148 Olden, et al. v. Lafarge Corp. 13
Inc. Sec. Litig., 183 F.3d 542, 549 (6th Cir. 1999) (“When
interpreting a statute, we must begin with its plain language,
and may resort to a review of congressional intent or
legislative history only when the language of the statute is not
clear.”) (citing Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980)); Parker v.
Metropolitan Life Ins. Co., 121 F.3d 1006, 1014 n.10 (6th Cir.
1997) (“We have not referred to legislative history in our
discussion of this issue because, where the statutory meaning
is clear, we do not resort to legislative history.”). This tension
has created a strong incentive to interpret what we believe to
be unambiguous as ambiguous, in order to open the door to
the legislative history. See, e.g., Crooks v. Harrelson, 282
U.S. 55, 60 (1930) (“Courts have sometimes exercised a high
degree of ingenuity in the effort to find justification for
wrenching from the words of a statute a meaning which
literally they did not bear in order to escape consequences
thought to be absurd or to entail great hardship.”).
For instance, Judge Tjoflat, in his recent dissent from the
denial of rehearing en banc in Allapattah, considered
Leonhardt’s alternative interpretation of § 1367 and noted
that it is “arguably an absurd interpretation of the statute
because it would permit courts to exercise supplemental
jurisdiction only in cases where it didn’t need to . . .”.
Allapattah, 362 F.3d at 770 n.28 (Tjoflat, J., dissenting). He
also considered another alternative interpretation of § 1367
proposed in Snider v. Stimson Lumber Co., 914 F. Supp. 388,
391 (E.D. Cal. 1996). Of the Snider interpretation, Judge
Tjoflat noted that he “[does] not agree entirely with [its]
reasoning.” Allapattah, 362 F.3d at 771. Nonetheless, based
on Leonhardt’s “arguably . . . absurd interpretation” and
Snider’s interpretation with which Judge Tjoflat admits
disagreeing, he found § 1367 “sufficiently ambiguous as to
warrant resort to the legislative history.” Id.
Courts such as the Tenth Circuit in Leonhardt have strained
to develop an alternative interpretation which they argue
proves that the statute is at least ambiguous. See, e.g.,
14 Olden, et al. v. Lafarge Corp. No. 02-1148
Ortega, 2004 WL 1205720 at *16 (Torruella, J., dissenting)
(noting that the Leonhardt interpretation “was never
articulated by any Congressperson or their staff, by any judge
or jurist, nor by any academics, or, most importantly by any
of the very drafters of the statute from the time the statute was
adopted in 1990, until such ‘intent’ was just espoused in
1998”). Interestingly, this alternative interpretation is not
consistent with the understanding of the drafters of § 1367,
who acknowledge that the failure to include Rule 23 was an
oversight. See James E. Pfander, Supplemental Jurisdiction
and Section 1367: The Case for a Sympathetic Textualism,
148 U. Pa. L. Rev. 109, 144 n.132 (1999) (“[L]ast-second
concerns prompted the drafters to worry about their failure to
include a restriction for claims joined under Rule 23. They
caught the Rule 23 implications too late, however, to address
[them] with a change to the statutory language and so relied
upon a curative reference in the legislative history instead.”);
Thomas D. Rowe, Jr., et al., Compounding Confusion or
Creating Confusion About Supplemental Jurisdiction? A
Reply to Professor Freer, 40 Emory L.J. 943, 960 n.90 (1991)
(one of the drafters of § 1367 notes that “[i]t would have been
better had the statute dealt explicitly with this [Zahn]
problem, and the legislative history was an attempt to correct
the oversight”). Thus, it seems at least ironic that these courts
rely on an alternative interpretation of § 1367 which is
contradicted by its “legislative history,” in order to ultimately
justify treating the legislative history as dispositive. While,
technically, this may be a proper application of the rules of
statutory interpretation, one has to question its internal logic
and whether there is ultimately any benefit from following
such an approach.
We believe that the Leonhardt interpretation fails, in part,
for the reasons enunciated in Gibson and Rosmer. See
Rosmer, 263 F.3d at 115-17; Gibson, 261 F.3d at 934-40; see
also Ortega, 2004 WL 1205720 at *19 (Torruella, J.,
dissenting). These authorities go through a detailed account
and rebuttal of the Leonhardt interpretation and it is
unnecessary to repeat that discussion here. Moreover,

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No. 02-1148 Olden, et al. v. Lafarge Corp. 15
2Judge Tjoflat argues that “[t]here is nothing in the text of the statute,
however, which indicates that the [exclusions] mentioned in § 1367(b)
were meant to be an exclusive list.” Allapattah, 362 F.3d at 772. He
argues that to reach such a conclusion, one must implicitly apply the
cannon of statutory construction known as expressio u nius est exclusio
alterius and that such application is inapp ropriate here, because it would
override clear C ongressional intent. Id. (citation omitted). W e disagree,
however, with Judge T joflat’s first prem ise. W e believe that the language
which begins § 13 67(a): “Except as provided in subsections (b) and (c)
. . . the district cou rts shall have supplemental jurisdiction . . .”
demonstrates that Congress intended the exclusions mentioned in those
subsections to be exclusive. Therefore, we d o not believe th at we are
applying expressio unius in this case so much as reading the plain
language of the statute.
Even if we were required to rely on expressio unius, we do not read
although it is no doubt clever, we simply do not believe the
Leonhardt interpretation to be a natural reading of this statute.
See United Food and Commercial Workers Union Local 751
v. Brown Group, Inc., 517 U.S. 544, 550 (1996) (“[T]he more
natural reading of the statute’s text, which would give effect
to all of its provisions, always prevails over a mere suggestion
to disregard or ignore duly enacted law as legislative
oversight.”); Business Guides, Inc. v. Chromatic
Communications Enters., Inc., 498 U.S. 533, 547 (1991)
(“[T]his Court will not reject the natural reading of a rule or
statute in favor of a less plausible reading, even one that
seems to us to achieve a better result.”). Were there no
relevant legislative history in this case, we do not believe that
any court would have given serious consideration to the
Leonhardt interpretation, because no one would doubt that the
statute means what it says.
It is the structure of this statute which makes its meaning
unambiguous. The first part of the statute (§ 1367(a))
contains a sweeping grant of supplemental jurisdiction giving
the courts supplemental jurisdiction over all claims not
excluded by the second part (§ 1367(b)). The second part of
the statute contains all of the exclusions.2 Given this
16 Olden, et al. v. Lafarge Corp. No. 02-1148
the cases cited by Judge Tjoflat as suggesting that expressio unius should
not be applied to contradict legislative history, but instead that it sho uld
only be applied where its application is natural and the inference drawn,
a fair one. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)
(“As we have held repeatedly, the canon expressio u nius est exclusio
alterius does not ap ply to every statutory listing or group ing; it has force
only when the items expressed are members of an ‘associated group or
series,’ . . . .”); Neuberger v. Comm’r of I.R.S., 311 U .S. 83, 88 (1940),
citing United States v. Barnes, 222 U.S. 513 (1912). We have no doubt
that Rule 23 fits in naturally with the other rules listed in § 1367(b). All
the rules listed in § 13 67(b), like R ule 23 , involve different ways of
getting additional claims before the court, such as joinder, impleader and
intervention. W e believe that R ule 23 is similar enough to 14, 19, 20 and
24 fo r purp oses o f this statute that, if Congress did no t want us to read it
as excluding Rule 23 , it needed to make that intent more explicit in the
statute.
structure, it defies logic to suggest that the inclusive section
of the statute, containing the sweeping grant of supplemental
jurisdiction, also contains a completely unspoken, yet
critically important, exclusion. This is particularly true where
there is no doubt that the unspoken exclusion would fit
naturally into the express list of exclusions in the second part.
Congress was not using 28 U.S.C. § 1367 as an opportunity
to play “Hide The Ball,” “Where’s Waldo?” or “Find The
Hidden Exclusion.” To argue that the alternative
interpretation is viable enough to make this statute ambiguous
only begs the question of the meaning of the word
“ambiguity.” Moskal v. United States, 498 U.S. 103, 108
(1990) (discussing “the crucial question—almost invariably
present—of how much ambiguousness constitutes . . .
ambiguity”) (citations omitted). If we really wanted, it is
likely that we could find just about any statute to be
ambiguous. Language, as compared to mathematics, is
inherently imprecise. See Northeast Women’s Ctr., Inc. v.
McMonagle, 939 F.2d 57, 64 (3d Cir. 1991); Vitello v. United
States, 425 F.2d 416, 425 (9th Cir. 1970) (Ely J., dissenting).
This does not mean that we should abandon our traditional
role of interpreting statutes based on the language which
Congress chose to include in the text itself.

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No. 02-1148 Olden, et al. v. Lafarge Corp. 17
Nor are we persuaded by the now fashionable argument that
because a number of brilliant minds have found this statute to
be ambiguous, it is by definition so. See, e.g., Leonhardt, 160
F.3d at 640 (“[I]t is difficult to argue persuasively that the
statute is truly unambiguous when two circuit courts of appeal
have reached the opposite conclusion from us, when a
majority of district courts are in agreement with us (although
not all for the same reasons) and when commentators are
divided.”). The Supreme Court has regularly found statutes
to be unambiguous over the dissenting views of Justices who
found the contrary. See, e.g., United States v. Labonte, 520
U.S. 751, 763 (1997) (Breyer, J. dissenting, joined by Justices
Stevens and Ginsburg) (“The majority finds . . . that the three
statutory words are unambiguous; that they are not
susceptible to the Commission’s interpretation; and that the
only possible interpretation is one that does not except
recidivist enhancement provisions. In my view, however, the
words ‘maximum term authorized’ are ambiguous.”); Dole v.
United Steelworkers of Am., 494 U.S. 26 (1990) (White, J.,
dissenting, joined by Chief Justice Rehnquist) (finding the
statute under consideration to be ambiguous); United States
v. Yermian, 468 U.S. 63 (1984) (Rehnquist, J., dissenting,
joined by Brennan, Stevens and O’Connor) (same); Hoffman
v. Blaski, 363 U.S. 335 (1960) (Frankfurter, J., dissenting,
joined by Harlan and Brennan) (noting that there have been
“severe differences” with respect to how twenty-seven district
courts have interpreted the supposedly unambiguous statute).
“[W]e cannot allow the fact that other circuits have called a
statute ambiguous to negate this circuit’s duty to interpret the
text of the enactment.” Rosmer, 263 F.3d at 118; see also
Moskal, 498 U.S. at 108 (noting that under the alternative
rule, “one court’s unduly narrow reading of a . . . statute
would become binding on all other courts, including [the
Supreme Court]”); Allapattah Servs., Inc., 333 F.3d at 1254
(“The mere existence of a split among the circuits as to the
proper interpretation of § 1367 does not relieve us of our
obligation to interpret the statute independently.”).
18 Olden, et al. v. Lafarge Corp. No. 02-1148
3Of course it is somewhat paradoxical that a court could find that the
literal application of an unambiguous statute wo uld produce a result
demo nstrably at odds with the intent of its drafters given that the best
evidence of the intent of the drafters is supposed to be the statute itself.
See West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-99 (1991)
(“The best evidence of [C ongress’] purpose is the statutory text adopted
by both Houses of Co ngress and submitted to the President. Where that
contains a phrase that is unambiguous . . . we do not perm it it to be
expanded or contracted by the statements of individual legislators or
committees during the course of the enactment process.”) (citation
omitted).
As noted supra, some courts have found a basis to consider
and ultimately adopt the legislative history of § 1367, without
the need of finding the statute ambiguous. See, e.g.,
Meritcare Inc., 166 F.3d at 222. The Third Circuit, for
instance, has found that resorting to the legislative history was
appropriate in answering the § 1367 question because this is
one of those “rare cases [in which] the literal application of a
statute will produce a result demonstrably at odds with the
intentions of its drafters.” Id. (quoting United States v.
Sherman, 150 F.3d 306, 313 (3d Cir. 1998) (internal
quotation marks removed, alterations in original); accord
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242
(1989).3 Perhaps the primary rule of statutory interpretation,
however, is that a court will not look beyond the statutory text
if the text is unambiguous. See BedRoc Ltd., LLC v. United
States, 124 S.Ct. 1587, 1593 (2004). Of course, if the
statutory text and legislative history are consistent, this
primary rule is unnecessary because the result will be the
same regardless of whether a court follows the rule or not.
Therefore, the primary rule only matters where there is a
contradiction between the statutory text and the legislative
history. The “exception” discussed in Meritcare has the
potential to turn the primary rule on its head because every
time there is an actual conflict between the statutory language
and the legislative history, the legislative history may prevail
over the text of the statute.

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No. 02-1148 Olden, et al. v. Lafarge Corp. 19
For this reason, we believe that this exception must be
construed narrowly and only applied where a literal
application of unambiguous statutory language would have
absurd results or “would thwart the obvious purpose of the
statute.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,
571 (1982) (citations omitted); Bob Jones Univ. v. United
States, 461 U.S. 574, 586 (1983) (“It is a well-established
canon of statutory construction that a court should go beyond
the literal language of a statute if reliance on that language
would defeat the plain purpose of the statute . . . .”). This is
not such a case. Here, the statute was intended to overrule
Finley, not to codify Zahn. No court disputes the fact that the
statute fulfills its purpose. This is merely a case in which
Congress may have painted with too broad a brush. We will
not ignore the plain, unambiguous language of a statute where
it achieves its intended purpose without any absurd result but
simply has additional unintended consequences. See Brogan
v. United States, 522 U.S. 398, 403 (1998) (“[I]t is not, and
cannot be, our practice to restrict the unqualified language of
a statute to the particular evil that Congress was trying to
remedy—even assuming that it is possible to identify that evil
from something other than the text of the statute itself.”);
accord United States v. Wade, 266 F.3d 574, 581 (6th Cir.
2001); see also Thompson v. Goetzmann, 337 F.3d 489, 493
(5th Cir. 2003) (“[W]e reiterate that the courts are not in the
business of amending legislation. If the plain language of the
MSP statute produces the legislatively unintended result
claimed by the government, the government’s complaint
should be addressed to Congress, not to the courts, for such
revision as Congress may deem warranted, if any.”); United
States v. Arnold, 126 F.3d 82, 86 (2d Cir. 1997)
(“Notwithstanding that such a result was unintended, the
Court declines any invitation to redraft the statute—that is a
task better left to the legislature.”); Leila G. Newhall Unitrust
v. Comm’r of I.R.S., 105 F.3d 482, 487 (9th Cir. 1997) (“In
any event, if the statute has unintended consequences, it is for
Congress, not the courts, to take appropriate measures to avert
them.”); In re: Appletree Mkts., Inc., 19 F.3d 969, 974-75 (5th
Cir. 1994).
20 Olden, et al. v. Lafarge Corp. No. 02-1148
Because we find that 18 U.S.C. § 1367 achieves its
intended purpose without any absurd result and because we
find that its statutory language is unambiguous, we hold today
that Zahn has been overruled. Therefore, the class may
aggregate damages and subject matter jurisdiction is proper.
Although we are confident about our conclusion on this
matter, we are comforted by the knowledge that if it turns out
we are wrong, we will be in good company. We turn now to
the other issues surrounding class certification.
2. Class certification
As discussed supra, the district court conditionally certified
a class action under Federal Rules of Civil Procedure 23(b)(2)
and (3) of “all owners of single family residences in the City
of Alpena whose persons or property was damaged by toxic
pollutants and contaminants which originated from the
LaFarge cement manufacturing facility located in Alpena,
Michigan.” Lafarge, 203 F.R.D. at 271. The defendant
appeals this conditional grant of class certification.
A class certification order is reviewed for an abuse of
discretion. See Stout v. J.D. Byrider, 228 F.3d 709, 716 (6th
Cir. 2000). “The district court’s decision certifying the class
is subject to a ‘very limited’ review and will be reversed ‘only
upon a strong showing that the district court’s decision was a
clear abuse of discretion.’” Armstrong v. Davis, 275 F.3d 849,
867 (9th Cir. 2001) (citations omitted) (emphasis added).
“Abuse of discretion is defined as ‘a definite and firm
conviction that the trial court committed a clear error of
judgment.’” Coleman v. Gen. Motors Acceptance Corp., 296
F.3d 443, 446 (6th Cir. 2002) (quoting Bowling v. Pfizer, Inc.,
102 F.3d 777, 780 (6th Cir. 1996)).
In order to certify any Rule 23 class action: (1) the class
must be so numerous that joinder of all members is
impracticable, (2) there must be questions of law or fact
common to the class, (3) the claims or defenses of the
representative parties must be typical of the claims or

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No. 02-1148 Olden, et al. v. Lafarge Corp. 21
defenses of the class, and (4) the representative parties must
fairly and adequately protect the interests of the class. Fed. R.
Civ. P. 23(a). The defendant seemingly does not dispute on
appeal that these prerequisites have adequately been
established.
In this case, the district court certified a class under both
Rule 23(b)(2) and Rule 23(b)(3). Each of these classes carries
its own prerequisites as well. A Rule 23(b)(2) class action is
only appropriate where
the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole.
Fed. R. Civ. P. 23(b)(2). A Rule 23(b)(3) class action is
appropriate where:
[T]he court finds that the questions of law or fact
common to the members of the class predominate over
any questions affecting only individual members, and
that a class action is superior to other available methods
for the fair and efficient adjudication of the controversy.
The matters pertinent to the findings include: (A) the
interest of members of the class in individually
controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation
concerning the controversy already commenced by or
against members of the class; (C) the desirability or
undesirability of concentrating the litigation of the claims
in the particular forum; (D) the difficulties likely to be
encountered in the management of a class action.
Fed. R. Civ. P. 23(b)(3). The defendant argues that the
certification of a Rule 23(b)(3) class was an abuse of
discretion because common questions do not predominate and
other methods for adjudication would be superior, and
similarly, that certification of a rule 23(b)(2) class action was
22 Olden, et al. v. Lafarge Corp. No. 02-1148
4It appea rs that these “other sources” are defendants in another class
action in front of the same district court judge. Therefore, if issues of
potential confusion do arise, they sho uld be immediately apparent to the
district co urt, mitigating any co ncern the defendant might have.
an abuse of discretion because individualized money damages
overwhelm the plaintiffs’ request for injunctive relief.
A. Rule 23(b)(3) certification
The thrust of the defendant’s argument seems to be that
common questions do not predominate. According to the
defendant, individual issues related to establishing causation
will overwhelm the case because toxins: (a) “originated from
disparate sources within the one-square mile Lafarge facility
and perhaps other industrial sources;” (b) were disbursed to
properties in varying concentrations; (c) allegedly caused a
variety of personal injuries; and (d) allegedly caused widely
varying property damages. Lafarge Br. at 32-33 (emphasis
added).
With regard to the first issue, the fact that toxins may have
originated from disparate sources within Lafarge’s facility is
of little relevance since Lafarge’s liability presumably would
not vary depending upon where within its facility toxins
originated. With regard to these “other industrial sources”
(presumably the Abiti Price Plant and Fletcher Paper Co.), the
defendant does not allege that the toxins from these sources
are indistinguishable from the toxins from Lafarge’s plant.4
Further, the defendant does not allege that these other sources
produce significant amount of toxins relative to Lafarge,
which admittedly is the nation’s largest cement plant. Appx.
at 787. Of course, if it is determined that the defendant does
not, on its own, emit enough pollutants to establish liability
(either because the plaintiffs cannot establish negligence,
causation or “significant harm” in the case of the plaintiffs’
nuisance claim), the defendant will prevail. Moreover,
damages can be reduced to reflect the proportion of the class’
injury not caused by the defendant.

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No. 02-1148 Olden, et al. v. Lafarge Corp. 23
5The Defendant argues that the plaintiffs’ nuisance cause of action
requires individualized proof because one must show “significant harm”
resulting in an interference with the use of and enjoyment of pro perty.
However, if the class can show that their properties were freque ntly
covered by cement dust, this would likely be enough to establish
“significant harm.” See, e.g., Adam s v. Clev eland-Cliffs Iron C o., 237
Mich. App x. 51, 70, 602 N .W .2d 2 15, 2 23 (Mich. Ct. App. 1999) (“If the
quantity and character of the dust are such as to disturb the ambiance in
ways that interfere substantially with the plaintiff’s use and enjoyment of
the land, then recovery in nuisance is possible.”). Further, if the class can
show that they are at an increased risk of significant future medical
problems, this too would likely constitute “significant harm.” See, e.g.,
Adkins v. Thomas Solvent Co., 440 Mich. 293, 303-304, 487 N.W.2d
With regard to the remaining issues, they may suggest that
individual damage determinations might be necessary, but the
plaintiffs have raised common allegations which would likely
allow the court to determine liability (including causation) for
the class as a whole. For instance, although some named
plaintiffs admittedly describe a variety of minor personal
medical issues (wheezing, “very bad breathing things,”
nausea, headaches, etc.) which might require individualized
damage determinations, the thrust of the plaintiffs’ personal
injury complaint appears to be related to the general increased
risk of the class suffering medical problems in the future. See
Appx. 13-15, 18 (Cplt. at ¶¶ 22-28, 48). Whether the
defendant’s negligence caused some increased health risk and
even whether it tended to cause the class minor medical issues
can likely be determined for the entire class. Similarly,
although some named plaintiffs present a number of minor
examples of specific property damage (roof damage, dead
rose bushes, damaged window pane, peeling stain on deck,
rusting of automobile), these examples seem to be no more
than illustrative of the common argument that the class’s
properties are regularly covered in cement dust, causing
minor property damage and a predictable reduction of
property value and enjoyment of the property. Whether the
defendant’s negligence generally caused minor property
damage and cement dust can likely be determined for the
entire class as well.5
24 Olden, et al. v. Lafarge Corp. No. 02-1148
715,720 (Mich. 19 92) (“Th ere are cou ntless ways to interfere with the use
and enjoyment of land including . . . [the] threat of future injury that is a
present mena ce and interference with enjoyment.”). O nce (and if)
nuisance liability has been established, the defendant can contest the
degree of harm in the damages phase. Of course, if the nuisance claim
becomes unmanageable to adjudicate as a class action, the district court
can decertify the class with respect to that claim. See Fed. R. Civ. P.
23(c)(1)(C) (“An order under Rule 23(c)(1) may be altered or amended
before final jud gment.”).
6The defendant is conc erned that bifurcation “m ay dep rive [it] of its
Seve nth Amendment right to a jury trial.” Lafarge Br. at 44. Indeed it
might. See, e.g., In re Rh one -Po ulenc Ro rer, Inc., 51 F.3d 1293, 1303
(7th Cir. 1995) (noting that the Seventh Amendment requires that, when
a court bifurcates a case, it must “d ivide issues between separate trials in
such a way that the same issue is [not] reexamined by different juries.”).
On the other hand, if done properly, bifurcation will not raise any
constitutional issues. W e are confident that the defendant will
app ropriately raise any concerns with the district court, if the court
eventually proposes to bifurcate the case in such a manner as to
potentially jeop ardize any of its rights. The defendant seems particularly
concerned about the Seventh Amendment implications of using a special
master to determine individual damages. Lafarge Br. at 44. We suspect
that the plaintiffs will be more than willing to have a jury make that
determination if that is truly the defendant’s preference, however, the
parties can b ridge that gap when it appe ars.
As the district court properly noted, it can bifurcate the
issue of liability from the issue of damages, and if liability is
found, the issue of damages can be decided by a special
master or by another method.6 Fed. R. Civ. P. 23(c)(4)(A);
see also Simon v. Philip Morris Inc., 200 F.R.D. 21, 30
(E.D.N.Y. 2001) (“By bifurcating issues like general liability
or general causation and damages, a court can await the
outcome of a prior liability trial before deciding how to
provide relief to the individual class members.”). Therefore,
the aforementioned minor complaints can be dealt with in the
damages phase if necessary, and it is likely premature to
address these issues at this point.
The defendant cites to a number of superficially similar
cases in which district courts have denied class certification.

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No. 02-1148 Olden, et al. v. Lafarge Corp. 25
7A number of courts have treated requests for medical monitoring as
a form of damage relief. See, e.g., Zinser v. Accufix Research Inst., Inc.,
253 F.3d 1180 (9th Cir. 200 1); Dham er v. Bristol-Myers Squibb Co., 183
F.R.D. 520 (N.D. Ill. 1998); Cook v. Ro ckwell Int’l Corp., 181 F.R.D. 473
(D.C. Colo. 1998); O’Conner v. Boeing N. Am., Inc., 180 F.R.D. 359
(C.D. Cal. 1997 ); Arch v. A m. Tobacco Co., 175 F.R.D. 469 (E.D. Pa.
1997); Ha rding v. Tamb rands, Inc., 165 F.R.D . 623 (D. K an. 1996);
Thomas v. FAG Bearings Corp., 846 F. Sup p. 14 00 (W .D. M o. 19 94).
We believe these cases are distinguishable, however. The
defendant, for instance, relies heavily on Ramik v. Darling
International Incorporated, No. 98-40276 (E.D. Mich. 1999)
(attached to Lafarge Br. at Appx. 2). However, in Ramik, it
appears the class’s primary complaint was noxious odors,
which is quite subjective. Ramik, No, 98-40276 at 13 (“With
respect to damages, defendant points out that the majority of
money damages claimed by plaintiffs relates to subjective
complaints . . .”). The court in Ramik noted that whether the
plaintiff will be able to establish liability “will require
substantial individual proofs related to the character of the
odors at each individual residence.” Id. at 15. Unlike Ramik,
in the present case, the plaintiffs’ complaints are more
objective and experts will likely be able to estimate how
much cement dust has fallen over each residence and the
potential health effects associated with such quantity of dust.
Similarly, we find Reilly v. Gould Incorporated, 965 F.
Supp. 588 (M.D. Pa. 1997) to be distinguishable. In that case,
the defendant’s plant had been closed for more than ten years
before the plaintiffs brought suit. Id. at 593-94. Therefore,
the plaintiffs were not seeking any common injunctive relief
(other than a constructive trust for medical monitoring which,
at best, is quasi-equitable in nature).7 Id. In contrast, in the
present case, the defendant’s plant is still operating and the
plaintiffs are asking the court to enter a permanent injunction
enjoining the defendant from polluting—a conflict
particularly suitable for class action adjudication.
26 Olden, et al. v. Lafarge Corp. No. 02-1148
Further, the court in Reilly declined to certify the class
because it found that individual issues predominated. In large
part, this was because the plaintiffs’ major complaint was lead
poisoning. The court noted the existence of evidence in the
record suggesting that the plaintiffs may have been exposed
to lead, not just through the defendant’s plant or other
facilities, but through lead based paint and lead-based
gasoline, both of which were in common use during the
relevant time period. See id. at 604-06. Thus, in order to
determine causation in Reilly, the fact finder would
presumably have had to consider what kind of paint was in
each class member’s home and the condition of that paint
throughout the relevant period, as well as his or her driving
and gasoline usage habits. In the present case, it is possible
that other facilities caused some of the pollution, but this does
not suggest the same level of individual determination
required in Reilly. We find the other cases cited by the
defendant to be distinguishable for similar reasons.
Therefore, we believe that the district court did not abuse its
discretion by conditionally certifying a Rule 23(b)(3) class.
B. Rule 23(b)(2) certification
The defendant argues that Rule 23(b)(2) certification is
inappropriate because individualized money damages
overwhelm the plaintiffs’ request for injunctive relief. See
Lafarge Br. at 45. As we have suggested, we believe that the
defendant is overestimating the potential difficulty in
establishing a formula for money damages for the class and
is underestimating the importance of the injunctive relief. In
any case, we do not believe that the defendant’s argument
makes much sense given that the district court has granted
certification under both 23(b)(2) and 23(b)(3).
Disputes over whether [an] action is primarily for
injunctive . . . relief rather than a monetary award neither
promote the disposition of the case on the merits nor
represent a useful expenditure of energy. Therefore, they
should be avoided. If the Rule 23(a) prerequisites have

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No. 02-1148 Olden, et al. v. Lafarge Corp. 27
been met and injunctive or declaratory relief has been
requested, the action usually should be allowed to
proceed. Those aspects of the case not falling within
Rule 23(b)(2) should be treated as incidental. Indeed,
quite commonly they will fall within Rule 23(b)(1) or
Rule 23(b)(3) and may be heard on a class basis under
one of those subdivisions. Even when this is not the
case, the action should not be dismissed.
7A Charles Alan Wright, Arthur R. Miller, et al., Federal
Practice and Procedure, 2d. § 1775 (emphasis added); see
also 5 Moore’s Federal Practice, § 23.41[6][d] (Matthew
Bender 3d. ed.). Therefore, Coleman, upon which the
defendant relies, is distinguishable because in Coleman the
district court certified the class only under 23(b)(2), not also
under 23(b)(3). See 296 F.3d at 447. Moreover, injunctive
relief was not as critical in Coleman because the plaintiffs
there, who claimed they were subject to higher finance
charges because they were black, were not currently being
irreparably harmed in the same way the plaintiffs allege here.
Id.
Finally, the defendant argues that the requested injunctive
relief would cause the court to become unnecessarily and
improperly entangled with the ongoing administrative
regulation of the plant. Lafarge Br. at 48. The defendant
relies on Walsh v. Ford Motor Co., 130 F.R.D. 260, 266-67
(D.D.C. 1990), and several other cases in which district courts
declined to certify Rule 23(b)(2) class actions where the
plaintiffs were seeking to force automobile recalls. The court
in Walsh, declined to certify the class, in part, because the
court wanted to “avoid entanglement with a regulatory
scheme [the National Traffic and Motor Vehicle Safety Act
of 1966 (NTMVSA)] designed and intended to empower
principally the Department of Transportation, rather than the
courts, to order and oversee motor vehicle recalls.” Id. at
28 Olden, et al. v. Lafarge Corp. No. 02-1148
8It appears that, at least at the time Walsh was decided, no court had
ever ordered a recall of an allegedly defective vehicle. See Chin v.
Chrysler Corp., 182 F.R.D. 448, 464 n.6 (D.N.J. 1998), citing In re Gen.
Motors Fuel Tank Litig., 55 F.3d 7 68, 8 11 n. 30 (3 d Cir. 199 5).
9Walsh is further distinguisha ble for the reasons d iscussed in
Rodriguez v. Carlson, 166 F.R.D . 465, 476 (E.D . Wash. 199 6) (noting
that in Walsh, the court was “faced with the ad ministratio n of a
nationwide class involving millions” and that the types of violations
alleged by the plaintiffs in that case could be fully rem edied solely
through the award of monetary damages).
267.8 The defendant argues that this case is similar because
emissions from its plant are regulated by the Clean Air Act,
42 U.S.C. § 7401, and Michigan’s Natural Resources and
Environmental Protection Act, Mich. Comp. Laws § 324.101.
Id. However, unlike the NTMVSA, as interpreted by Walsh,
both of the Acts here expressly contemplate private
enforcement suits and the type of injunctive relief sought by
the plaintiffs. See 42 U.S.C. § 7604(d) (providing for citizen
suits and injunctive relief); Mich. Comp. Laws. § 324.1707
(same).9
Finally, the defendant is concerned that we might become
excessively entangled with other sources of law because of a
second amended consent judgement it entered into with the
State of Michigan, on September 28, 2000. Appx. at 435.
We do not share the defendant’s concern. See, e.g., United
States v. Phillip Morris USA, No. CIV.A.99-2496(GK), 2004
WL 1045766 (D.D.C. May 6, 2004) (finding the existence of
a master settlement agreement did not preclude action). The
plaintiffs in this case were not parties to the consent
judgment, and the agreement itself states that it “does not
limit or affect the rights of Lafarge or the State of Michigan
against third parties.” Appx. at 457. Nothing in the
agreement purports to limit the rights of third parties against
Lafarge either. To the contrary, the agreement states that it
“in no way affects Lafarge’s responsibility to comply with
any other applicable state, federal or local laws or regulations

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No. 02-1148 Olden, et al. v. Lafarge Corp. 29
10The defendant did argue that the existence of the consent judgment
suggested that the district court should abstain from hearing the case
under the doctrine of Younger. App x. at 360-63 . The district co urt,
however, declined to abstain and the issue has not been raised on ap peal.
[sic], or with any order of this or any other court, including
without limitation, any amendments [sic] to Part 55 of Act
451, the federal Clean Air Act (“CAA”), 42 USC 7401, et
seq, or their rules and regulations, or to the State
Implementation Plan.” Id. at 458. Even if the agreement had
purported to limit the rights of third parties, it is unlikely that
such a limitation would be upheld, at least absent an
allegation or argument that the state was acting in its role as
parens patriae. See Lawyer v. Dep’t. of Justice, 521 U.S.
567, 579 (1997) (“[A] settlement agreement subject to court
approval in a nonclass action may not impose duties or
obligations on an unconsenting party or ‘dispose’ of his
claims.”) (citation omitted); Firefighters v. City of Cleveland,
478 U.S. 501, 529 (1986) (“[A] court may not enter a consent
decree that imposes obligations on a party that did not consent
to the decree.”) (citations omitted). Of course, if the
defendant believed that the class’s suit was estopped by the
consent judgment, it could have raised this argument in its
motion to dismiss or in its answer, as an affirmative defense.
See Blakely v. United States, 276 F.3d 853, 866-68 (6th Cir.
2002). The defendant chose not to do so, however. See
Appx. at 30-31, 332-68.10 Therefore, we need not discuss the
issue further.
III.
CONCLUSION
In sum, we find that the district court did not abuse its
discretion in certifying this class and we are confident that the
district court will take appropriate measures if, at any time, it
appears that the class threatens to become unmanageable.
Therefore, for the reasons discussed supra, we find subject
30 Olden, et al. v. Lafarge Corp. No. 02-1148
matter jurisdiction to be proper and AFFIRM the district
court’s grant of class certification.

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