Speculative risk of future injury is not enough to support a class action claim according to a recent decision from the First Circuit. On November 4, 2014, the First Circuit affirmed the United States District Court of Massachusetts’ decision to dismiss a putative class action for lack of standing, finding that the alleged risk of future injury was too speculative to give rise to a case or controversy.

In Kerin v. Titeflex Corp., the named plaintiff alleged that corrugated stainless steel natural gas tubing manufactured by the defendant and built-in to residential homes was vulnerable to puncture in the event of a nearby lightning strike, which could instigate a natural gas-fueled fire.  The putative class action asserted design defect, manufacturing defect, and failure to warn claims against the manufacturer, seeking damages of overpayment for a defective product and the cost of replacing the tubing with a safer alternative.

Dismissal was upheld because plaintiff’s damages were entirely dependent on an unsupported conclusion coupled with speculative risk of future injury.

In its motion to dismiss, the manufacturer argued that the named plaintiff could not show he sustained an injury-in-fact because the tubing in plaintiff’s home had never malfunctioned or caused a fire.  Despite references in the complaint to hundreds of fires involving the tubing and lightning strikes, the First Circuit found that the named plaintiff failed to allege that the tubing caused the fires or facts sufficient to assess the probability of future injury, such as the frequency of lightning strikes, the proportion of homes struck by lightning, the relevant time frame, or the likelihood of lightning fires in homes without the tubing.

“Although the capriciousness of a lightning strike is the stuff of folklore, the law of probabilistic standing is evolving, and it is conceivable that product vulnerability to lightning might, in some circumstances, constitute injury. But where, as here, the alleged present harm depends solely on the risk of some future injury, we must proceed cautiously.”

Ultimately, the First Circuit refused to overturn the dismissal of the putative class action because plaintiff’s damages were entirely dependent on an unsupported conclusion that the tubing was defective, coupled with this speculative risk of future injury.

Link to Opinion: http://media.ca1.uscourts.gov/pdf.opinions/14-1130P-01A.pdf