Preview:

LEO POLLARD, JR., RONALD P. WILLIAMS, ALAN WILLIAM, SR., JOHN GROS, III, ELIOT SPENCER WILLIAMS, JACK ROY, CLARENCE DAVID ROSS, RICHARD MEERMAN, SR., EARL WILLIAMS, JR., MERLIN WILLIAMS, SR. AND JOHN HENDRIX VERSUS ALPHA TECHNICAL, CHEVRON U.S.A., INC. CONOCO, INC., EXXON MOBIL CORPORATION, HOMECO, INC., MOBIL EXPLORATION & PRODUCING U.S., INC., PHILLIPS OIL CO., SEXTON OIL & MINERAL CORPORATION, SHELLOFFSHORE, INC., SHELL OIL COMPANY, SYSTEM FUELS, INC., ET AL. CONSOLIDATED WITH: GLENDA BAILEY VERSUS

* *

NO. 2008-CA-1486

COURT OF APPEAL * FOURTH CIRCUIT * STATE OF LOUISIANA *******

CONSOLIDATED WITH: NO. 2009-CA-0266

EXXON MOBIL CORPORATION; MOBIL EXPLORATION & PRODUCING U.S., INC.; ALPHA TECHNICAL; CHEVRON U.S.A., INC.; CONOCO, INC., HOMECO, INC.;PHILLIPS OIL CO.; SEXTON OIL & MINERAL CORPORATION, SHELL OFFSHORE, INC.,; SHELL OIL COMPANY; SYSTEM FUELS, INC.; SHELL WESTERN E & P, INC.; TEXACO, INC., AND TUBULAR CORPORATION

CONSOLIDATED WITH: JAMES A. WILLIAMS, MAXINE WILLIAMS, ISOM SANDIFER, VINA SANDIFER, JACQUELYN NETTLES, MARY SHAW, MARIAN WOODS, ET AL. VERSUS EXXON MOBILE CORPORATION, ALPHA TECHNICAL SERVICES, INC., CHEVRON U.S.A., INC., CONOCO, INC., HOMECO, INC., INTRACOASTAL TUBULAR SERVICES, INC., MOBIL EXPLORATION & PRODUCING U.S., INC., SEXTON OIL & MINERAL CORPORATION, SHELL OFFSHORE, INC., SHELL OIL COMPANY, TEXACO, INC., TUBULAR CORPORATION, SWEPI, L.P., JOSEPH GREFER, CAMILE GREFER, ROSE MARIE GREFER HASSI, AND HENRY GREFER

CONSOLIDATED WITH: NO. 2009-CA-0267

CONSOLIDATED WITH: JO ANN B. GRIGSBY, VIOLA HENDRICKS, SHIRLEY FERRIER, GEORGE FERRIER, OSCAR WILLIAMS, JR., BETTY COLLINS, EDWARD COLLINS, JR., KIRK COLLINS, TRENT COLLINS, INGRID BLOODWORTH, ALLEN P. NEWTON, SR., CAROL NEWTON, BERNICE GRIFFITH, LESLIE FRANK GRIFFITH, ET AL. VERSUS JOSEPH GREFER, CAMILE GREFER, ROSE MARIE GREFER, EXXON-MOBIL CORPORATION,

CONSOLIDATED WITH: NO. 2009-CA-0268

INTERCOASTAL TUBULAR SERVICES, INCORPORATED, ALPHA TECHNICAL SERVICES INCORPORATED, CHEVRON U.S.A., INCORPORATED, HOMECO, INCORPORATED, MOBIL EXPLORATION & PRODUCING SOUTHEAST, ET AL.

CONSOLIDATED WITH: WILLIE WILLIAMS, ET AL. VERSUS EXXON MOBIL CORPORATION, ET AL.

CONSOLIDATED WITH: NO. 2009-CA-0269

CONSOLIDATED WITH: IDA ROSE WILSON; GEORGE L. MATTHEWS, JR.; DEBRA G. CELESTINE; AND PRENTISS S. WASHINGTON, III VERSUS EXXON MOBIL CORPORATION; INTRACOASTAL TUBULAR SERVICES, INC, ETC., ET AL.; MOBIL EXPLORATION & PRODUCING U.S. INC.,; ALPHA TECHNICAL; CHEVRON U.S.A., INC.;' CONOCO, INC.; HOMECO, INC.; PHILLIPS PETROLEUM COMPANY (ALSO KNOWN AS PHILLIPS OIL CO.); ET AL.

CONSOLIDATED WITH: NO. 2009-CA-0270

CONSOLIDATED WITH: JOHN H. COTTON, TEON ALLEN/ AREVIA COTTON ANTOINIE, INDIVIDUALLY, AND ON BEHALF OF HER MINOR CHILD,

CONSOLIDATED WITH: NO. 2009-CA-0271

ANDIA CHRISTOPHER; ET AL. VERSUS EXXON MOBIL CORPORATION, ALPHA TECHNICAL SERVICES, INC., CHEVRON U.S.A., INC., CONOCO, INC., HOMECO, INC., INTRACOASTAL TUBULAR SERVICES, INC., MOBIL EXPLORATION & PRODUCING U.S., INC., SEXTON OIL & MINERAL CORPORATION, SHELL OFFSHORE, INC., SHELL OIL COMPANY, TEXACO, INC., TUBULAR CORPORATION, SWEPI, L.P., JOSEPH GREFER, CAMILE GREFER, ROSE MARIE GREFER HASSI AND HENRY GREFER CONSOLIDATED WITH: PHIL BURRAS, ROBIN BURRAS, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, ROCHELL, BROWN AND BRANDON BROWN, ET AL. VERSUS EXXON MOBILE CORPORATION, ALPHA TECHNICAL SERVICES, INC., ET AL. CONSOLIDATED WITH: SHAWN WALTON VERSUS JOSEPH GREFER, CAMILE GREFER, ROSEMARIE GREFER HASSE, HENRY GREFFER, EXXON-MOBIL CORPORATION, ET AL. CONSOLIDATED WITH: NO. 2009-CA-0273 CONSOLIDATED WITH: NO. 2009-CA-0272

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NOS. 2001-8708 C/W 2001-8926 C/W 2001-8959 C/W 2001-16364 C/W 200118230 C/W 2001-19533 C/W 2001-19938 C/W 2002-644 C/W 2003-3427, DIVISION "D-16" HONORABLE LLOYD J. MEDLEY, JUDGE ****** JUDGE PAUL A. BONIN ****** (COURT COMPOSED OF JUDGE CHARLES R. JONES, JUDGE DENNIS R. BAGNERIS, SR., JUDGE PAUL A. BONIN)

HENRY T. DART GRADY J. FLATTMANN HENRY DART, ATTORNEY AT LAW 510 NORTH JEFFERSON AVENUE COVINGTON, LA 70433--2640 LIAISON COUNSEL FOR PLAINTIFFS/APPELLANTS, LEO POLLARD, JR., RONALD P. WILLIAMS, ALAN WILLIAMS, SR., JOHN GROS, III, ELIOT SPENCER WILLIAMS, JACK ROY, ET AL. JOHN W. HITE III SUSAN G. GUILLOT SALLEY HITE & MERCER, LLC 365 CANAL STREET SUITE 1710 NEW ORLEANS, LA 70130 AND JACQUES F. BEZOU CANDICE L. JENKINS THE BEZOU LAW FIRM 534 EAST BOSTON STREET COVINGTON, LA 70433 COUNSEL FOR RATHBORNE PROPERTIES, LLC, RATHBORNE LAND COMPANY LLC, AND RATHBORNE COMPANIES, LLC

GLEN M. PILIE' RONALD J. SHOLES CHARLES F. GAY, JR. MARTIN A. STERN VALERIA M. SERCOVICH ADAMS AND REESE LLP 701 POYDRAS STREET 4500 ONE SHELL SQUARE

NEW ORLEANS, LA 70139-6534 COUNSEL FOR EXXON MOBIL CORPORATION

GLADSTONE N. JONES, III PAUL H. VILLALOBOS KEVIN E. HUDDELL EBERHARD D. GARRISON JONES SWANSON HUDDELL & GARRISON, L.L.C. 601 POYDRAS STREET 2655 PAN AMERICAN LIFE CENTER NEW ORLEANS, LA 70130 COUNSEL FOR JOSEPH GREFER, CAMILE GREFER, ROSE MARIE GREFER HAASE, HENRY GREFER

CALEB H. DIDRIKSEN, III DIANE R. COSENZA RICHARD J. GARVEY, JR. LOYD J. BOURGEOIS, JR. DIDRIKSEN LAW FIRM, P.L.C. 3114 CANAL STREET NEW ORLEANS, LA 70119 COUNSEL FOR ALPHA TECHNICAL SERVICES, INC. DARLEEN JACOBS JACOBS SARRAT & LOVELACE 823 ST. LOUIS STREET NEW ORLEANS, LA 70112 AND ROBERT G. HARVEY, SR. LAW OFFICE OF ROBERT G. HARVEY, SR., APLC 600 NORTH CARROLLTON AVENUE NEW ORLEANS, LA 70119 AMICI CURIAE

THOMAS E. BALHOFF JUDITH R. ATKINSON CARLTON JONES III ROEDEL PARSONS KOCH BLACHE BALHOFF & MCCOLLISTER 8440 JEFFERSON HIGHWAY, SUITE 301 BATON ROUGE, LA 70809-7652 COUNSEL FOR INTRACOASTAL TUBULAR SERVICES, INC

AFFIRMED

2

The trial court denied class certification and the named plaintiffs in these consolidated actions have appealed. Finding no abuse of discretion by the trial court, as set forth in the reasons which follow, we affirm. I Over the course of more than forty years, industrial property located in Harvey, Louisiana, near residential neighborhoods was used for oilfield pipe and equipment-cleaning operations. The owners of the property leased various parcels to various businesses at various times and for various periods of time. The pipe was owned by several oil companies, which used several transportation companies to deliver the pipe to the various operations. The named defendants1 are the pipe cleaning businesses, the property owners and lessees, and the oil companies. The

1

The entire list of defendants, from the original and amending and supplemental pleadings includes Alpha Technical, Chevron USA, Inc., Conoco Inc., Exxon Mobil Corporation, Homeco, Inc., Mobil Exploration & Producing U.S., Inc., Phillips Oil Co., Sexton Oil & Mineral Corporation, ShellOffshore, Inc., Shell Oil Company, System Fuels, Inc., Shell Western E & P, Inc., Texaco, Inc., Tubular Corporation, Alpha Technical Services, Inc., Intracoastal Tubular Services, Inc. [ITCO], Swepi, L.P., Mobil Exploration & Producing Southeast, Phillips Petroleum Co (also known as Phillips Oil Co.); landowners Joseph Grefer, Camile Grefer, Rose Marie Grefer Hassi, and Henry Grefer; also, Rathborne Properties, LLC, Rathborne Land Company LLC, and Rathborne Companies, LLC, were named in an amending petition as defendants with an interest in the property at issue.

1

pipe cleaning operations conducted on the property are fully described in Grefer v. Alpha Technical, 02-1237 (La. App. 4 Cir. 3/31/05), 901 So. 2d 1117.2 The operations can be described generally as the mechanical cleaning and reaming of the inside of oilfield pipe to remove scale or crust that builds up on the interior of the tubing, thus returning the cleaned pipe to its original diameter. The scale, formed from natural elements, gradually clogs the pipes that are inserted deep into the ground during the course of petroleum production. Since the early 1900s the oil industry has known that the underground water produced in conjunction with oilfield hydrocarbons leached certain mineral salts from the earths crust and then carried those mineral salts in solution up the tubing toward the surface. Change in pressure and temperature caused the mineral salts to precipitate out of solution and form a scale or crust on the interior of the tubing. The built-up scale eventually constricted and slowed the flow path of the oil and gas; at that point, the oil company extracted tubing and transported it to the pipe yard for the cleaning contractor to ream the pipe. The chemical composition of the scale was barium sulfate, later identified as radium sulfate, and other material determined to be radioactive, with varying half-lives (time for half of the atoms of a radioactive substance to decay), called NORM or TERM.3 The acronym NORM, used by the defendants, stands for "naturally occurring radioactive material." The oil industry tried to establish protocols for

2 3

The decision was vacated and remanded sub nom. Exxon Mobil Corp. v. Grefer, 549 U.S. 1249 (2007). Plaintiffs use the acronym TERM to refer to the deposits, the "TE" meaning "technologically enhanced"; and the substance is sometimes referred to as Technologically Enhanced Naturally Occurring Radioactive Material, TENORM, defined as "natural sources of radiation which would not normally appear without some technological activity not expressly designed to produce radiation." Grefer, 02-1237 at p. 9, fn 11; 901 So. 2d at 1128, fn 11.

2

monitoring and set criteria for dangerous NORM levels. One defendant, ITCO, built a Controlled Environmental Cleaning unit to clean NORM-contaminated pipe. See, generally, James R. Cox, Naturally Occurring Radioactive Materials in the Oil Field: Changing the NORM, 67 Tul. L. R. 1197 (1993).4 The plaintiffs define the proposed class as follows: All persons, firms or other entities whose person or property was located within one mile of the outer boundary of "The Property." And was exposed to any radioactive, hazardous, and/or toxic materials generated, stored or released as a result of operations conducted by one or more defendants on "The Property," from 1946 through the present date. They allege that over those years, and hidden from them, "toxic dust"5 (NORM/TERM) was deposited in their neighborhood. The affected neighborhood was defined to be a tract of land adjoining the eastern boundary of the industrial property to a distance of about one mile. The plaintiffs attribute their various diseases and illnesses, including prenatal complications, various types of cancer, neurological disorders, impairment of kidney function, impairment of liver function, to the wrongful release of toxic dust by the defendants. The class action seeks damages and mandatory injunctive relief, including reparation of the industrial property. The trial judge delegated a special master, appointed pursuant to the provisions of La. R.S. 13:4165 A, to conduct an evidentiary hearing on the class certification issue. The special master recommended against certifying the class.
4

Grefer, supra, 02-1237 at pp. 1-9, 901 So. 2d at 1124-49, sets forth a fuller history of the oilfield discovery and response to the identification of NORM/TERM, and the Grefer landowners course of dealing with the condition of the property which is the subject of their lawsuit and the instant one. 5 "Toxic dust" refers to radioactive elements including uranium and thorium and their decay products, as well as arsenic, barium, cadmium, lead, mercury, selenium, silver, and nickel.

3

After a contradictory hearing, the trial court denied class certification. From this judgment the plaintiffs appeal. A judgment denying class certification is an

appealable judgment. La. C. C. P. art. 592 A(3)(b).6

II The standard of review for class certification is bifurcated: factual findings are reviewed under the manifest error/clearly wrong standard, but the trial courts judgment on whether to certify the class is reviewed by the abuse of discretion standard. Brooks v. Union Pacific Railroad Company, 08-2035, p. 10 (La. 5/22/09), 13 So. 3d 546, 554; Chalona v. Louisiana Citizens Property Ins. Corp., 08-0257, pp. 4-5 (La. App. 4 Cir. 6/11/08), 3 So. 3d 494, 500. These two standards of review correspond with the two-step process for determining whether to certify a class action. First, a trial court must find a factual basis exists to certify an action as a class action. Second, the court must exercise its discretion in deciding if certification is appropriate. [emphasis added] Galjour v. Bank One Equity Investors-Bidco, Inc., 05-1360, p. 7 (La. App. 4 Cir. 6/21/06), 935 So. 2d 716, 722, citing Singleton v. Northfield Ins. Co., 01-0447, p. 7 (La. App. 1 Cir. 5/15/02), 826 So. 2d 55, 61. The Louisiana Supreme Court recently stated, in Brooks, 08-2035 at p. 10, 13 So. 3d at 554: The determination of whether a class action meets the requirements imposed by law involves a rigorous analysis. The trial court "must evaluate, quantify and weigh [the relevant factors] to determine to what extent the class action would in each instance promote or detract from the goals of effectuating substantive law,
6

La. C.C.P. art. 592 A(3)(b) states: If the court finds that the action should not be maintained as a class action, the action may continue between the named parties. In either event, the court shall give in writing its findings of fact and reasons for judgment. . . . A suspensive or devolutive appeal . . . may be taken as a matter of right from an order or judgment provided for herein.

4

judicial efficiency, and individual fairness [citation omitted]. In so doing, "the trial court must actively inquire into every aspect of the case and should not hesitate to require showings beyond the pleadings." [citations omitted] While any error to be made in deciding class action issues should be in favor of, not against, maintenance of the class action, McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So. 2d 612, 620 (La. 1984), nevertheless, Louisiana trial courts are afforded broad discretion in determining the class certification issues, and have wide latitude in considerations involving policy matters, and those requiring a preliminary analysis of the facts. [citation omitted] Davis, 02-0942 at p. 6, 844 So. 2d at 249. The defendants argue that the trial courts findings were correct, and that we must defer to the trial courts findings absent manifest error, and defer to the trial courts decision regarding certification absent abuse of discretion. See Banks v. New York Life Ins. Co., 98-0551 (La. 7/2/99), 737 So. 2d 1275; Stobart v. State Dept. of Transportation and Development, 617 So.2d 880 (La. 1993); Rosell v. ESCO, 549 So.2d 840 (La. 1989). We are especially mindful that a class action is a procedural tool, wherein substantive facts are not considered when deciding the issue of certification. Andry v. Murphy Oil, U.S.A., Inc., 97-0793, pp. 2-3 (La. App. 4 Cir. 1998), 710 So. 2d 1126, 1129. See also Thomas v. Mobil Oil Corp., 08-0541, p. 18 (La. App. 4 Cir. 3/31/09), 14 So. 3d at 18-19, (Bonin, J., dissenting).

5

The central issue on appeal is whether the trial court abused its discretion when it found that the plaintiffs failed to establish the requirements for certification pursuant to La. C. C. P. art. 591,7 which provides in pertinent part: A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if: (1) The class is so numerous that joinder of all members is impracticable. (2) There are questions of law and fact common to the class. (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class. (4) The representative parties will fairly and adequately protect the interest of the class. (5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of conclusiveness of any judgment that may be rendered in the case. B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied. [emphasis added] These prerequisites are generally known as numerosity, commonality, typicality, adequacy, and identifiability (class definition). Louisiana procedural law requires that a class action be certified only if all five requirements are present. La. C.C.P. art. 591 A. See also Davis v. American Home Products Corp., 02-0942, p. 5 (La. App. 4 Cir. 3/26/03), 844 So. 2d 242, 249.

7

In addition to the five part A prerequisites, Article 591 B requires that one of the three following criteria be met to satisfy the certification requirements: (1) The prosecution of separate actions by or against individual members of the class would create a risk of (a) inconsistent or varying adjudications that would establish incompatible standards of conduct for the party opposing the class, or (b) Adjudications with respect to individual members of the class would, as a practical matter, be dispositive of the interests of other class members not parties to those adjudications or would substantially impair/impede their ability to protect those interests, or (2) 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, or (3) The 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 is superior to other methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include: (a) The interest of the 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 in the particular forum; (d) The difficulties likely to be encountered in the management of a class action, (e) The practical ability of individual class members to pursue their claims without class certification, (f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation [.]

6

Our Supreme Court in Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La. 9/9/97), 703 So. 2d 542, explained the historical development of the Louisiana class action: Early Louisiana class action jurisprudence recognized the stringent common interest requirements of the original Rule 23 "true" class action, although the tests employed by the circuits differed. We first interpreted this provision in Stevens v. Board of Trustees of Police Pension Fund, 309 So. 2d 144 (La. 1975). In Stevens, we held that the fact that different recoveries are sought, based upon the same factual transaction and same legal relationship, was not intended to defeat a class action (citation omitted). However we explained that. . . [the legislature] intended that there be a relationship between the claims greater than simply that of sharing a common question of law or fact. Id. at 150. Ford, 703 So. 2d at 546. To this effect, "the trial court must actively inquire into every aspect of the case and should not hesitate to require showings beyond the pleadings." (citing McCastle and Stevens). The Brooks Court, differentiating the two standards of review for factual findings and the ultimate decision of the trial court to grant certification, stated: Implicit in this deferen[ce] [to certification decisions] . . . is recognition of the essentially factual basis of the certification inquiry [emphasis added] and of the district courts inherent power to manage and control pending litigation. [citations omitted] Brooks, 08-2035 at p. 11, 13 So. 3d at 554. III Turning now to the instant case, we apply the manifest error/clearly wrong standard to our review of the criteria for certification. Numerosity. The trial court found that the plaintiffs failed to prove numerosity. This court has defined numerosity as follows:

7

The first prerequisite to class certification is that the class must be so numerous that joinder of all members is impracticable. La. Code Civ. Proc. Art. 591(A)(1). The determination of numerosity is based in part upon the number of putative class members, but is also based upon considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claims. Husband v. Tenet Healthsystems Memorial Medical Center, Inc., 08-1527, p. 8 (La. App. 4 Cir. 8/12/09), 16 So. 3d 1220 at 1228; Chalona, 08-0257 at p. 6, 3 So. 3d at 500-01, 503. The burden is on the plaintiff/movant to "make a prima facie showing that a definable group of aggrieved persons exist [sic] and that the class is so numerous that joinder is impractical." Johnson v. Orleans Parish School Board, 00-0825-0828, p. 7 (La. App. 4 Cir. 6/27/01), 790 So. 2d 734, 741. No number automatically makes joinder impracticable; rather, the determination is based on the facts and circumstances of each case. Chiarella v. Sprint Spectrum LP, 040133, p. 19 (La. App. 4 Cir. 11/17/05), 921 So. 2d 106, 119. In support of its refusal to certify the instant class because the plaintiffs failed to establish numerosity,8 the trial court stated, "In the case of a mass tort, this burden of plausibility requires some evidence of a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members," citing Hampton v. Illinois Cent. R.R. Co., 98-0430 (La. App. 1 Cir. 4/1/99), 730 So. 2d 1091. The judgment further denies numerosity "because so many potential class members have already opted out. Citing other lawsuits already filed by 3,748 individuals, the court stated, "it [is] impossible for Plaintiffs to establish numerosity," citing three additional lawsuits: Earl Adams, Jr. v. Chevron U.S.A. Inc., No. 02-19308, Division D of Civil District Court for Orleans Parish; Dottie v.

8

The judgment referred to the plaintiffs failure to establish the plausible numerosity, i.e., numerosity is not shown by mere allegations of a large number of potential claimants, or, in the case of a mass tort, by showing a certain

8

Adams v. Joseph Grefer, No. 524-278, Division K, 24th Judicial District Court for Jefferson Parish, and Warren Lester v. ExxonMobil Corp., 02-19657, Division N(8) of Civil District Court for Orleans Parish. In this case, the trial court observed, the fact that significant numbers of residents or potential class members had opted out of the class made the establishment of numerosity impossible. Specifically, the judgment stated, Plaintiffs cite no credible evidence to support their proposed class definition, which purports to extend to all persons residing within, visiting, or even travelling through, a one-mile radius of the outer boundary of the site identified by plaintiffs between 1946 and 1992. Instead, they argue only that thousands of people resided within the one-mile radius over the relevant time period. This bit of information would be relevant only if plaintiffs could make a prima facie showing that radioactive materials from pipe scale had actually been found in soils or homes distributed in a one-mile radius. But plaintiffs have not made this showing. They have no evidence whatsoever of actual contamination. The trial court received evidence that the testing of residences in the suspect area revealed no evidence of radioactivity. The plaintiffs expert witness from the Louisiana Department of Environmental Quality failed to persuade the trial court that numerous residents were affected by toxicity from the defendants sites. The number of potential class members as estimated by plaintiffs themselves was between 2,000 and 4,000; however, of that number 3,748 have opted out, according to the trial court. Opting out of a class before it is certified to exist is premature; the classification is itself provisional, capable of being changed by the trial court as its procedural efficacy evolves. Accordingly, the argument regarding opting out has no effect on a certification of the class. See La. C.C.P. art. 592 A(3)(c), B(2)(b),

population within a certain geographic radius or proximity of the event. Boyd v. Allied Signal, Inc., 03-1840, pp. 1112 (La. App. 1 Cir. 12/20/04), 898 So. 2d 450, 457, quoting Hampton, supra.

9

and B(2)(c).9 As plaintiffs in their brief argue, it is impossible to opt out of a class that does not yet exist. Hence, the trial court erroneously included as a reason to deny numerosity the argument that a large number of putative plaintiffs would opt out or had already filed claims, thus opting out. In our evaluation of the correctness vel non of the trial courts rejection of the numerosity criterion, we review the extensive evidence offered as expert testimony and tests regarding the plaintiffs, the property, and the effect of NORM. The trial judge has much discretion in determining whether the qualifications of a learned person will assist the court in its fact finding function. Cheairs v. State ex rel. DOTD, 03-680, p. 7 (La. 12/3/03), 861 So. 2d 536, 540-41; Rosell, 549 So. 2d at 844; Katner v. Katner, 2009 WL 4936384, p. 3 (La. App. 4 Cir. 12/23/09), ___ So. 3d ___. "The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound." Lasyone v. Kansas City Southern Railroad, 00-2628, p. 13 (La. 4/3/01), 786 So. 2d 682, 693. See also Beaucoudray v. Walsh, 07-0818, pp. 13-14 (La. App. 4 Cir. 3/12/09), 9 So. 3d 916, 924. The trial court was not clearly erroneous in finding the expert reports and testimony of Drs. Resnikoff, Williams,10 and Biggs to be insufficient to establish the geographic elements of potential harmful exposures to the class. The Louisiana Supreme Court in Adams v. Rhodia, Inc., 07-2110, pp. 10-11 (La. 5/21/08), 983 So. 2d 798, 806-07, stated:

9

La. C.C.P. art. 592 B(2) lists requirements for notice to all putative members of the class, including an election form should a putative member desire to be excluded from the action. Article 592 B(2)(c) states that the judgment, favorable or not, will include all members who do not request exclusion from the class. 10 Patricia Williams, Ph.D., who made a "community health assessment" based on self-reported Proof of Claim forms completed by 2,351 putative plaintiffs but examined only a handful of medical records, did not include in her assessment asymptomatic people who lived or worked in the designated class area, and she based conclusions on Dr. Biggs "flawed" air dispersion modeling. (See Judgment, p. 6, fn 3.)

10

Where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Indeed, whether the fact finders determination is based on its decision to credit the testimony of one of two witnesses, that finding can virtually never be manifestly erroneous. See also Cotton v. Delta Queen Steamboat Co., Inc., 2009-CA-0736, p. 7 (La. App. 4 Cir. 1/6/2010), ___ So. 3d ___. The plaintiffs contend, however, that until there is a certified class in existence, it cannot be "opted out of," and there was no testimony, live or by affidavit, showing an intention by any putative class member to opt out. We find that the trial court was manifestly erroneous in its finding that the plaintiffs failed to satisfy the numerosity requirement. Commonality. This court has defined commonality as follows: A showing of commonality of questions of law and fact among the class is the second prerequisite in certifying the class. The test for commonality requires only that there be at least one issue the resolution of which will affect all or a significant number of putative class members. Watters v. Dept. of Social Serv., 05-0324, p. 15 (La. App. 4 Cir. 4/19/06), 929 So. 2d 267, 278; Oliver v. Orleans Parish School Board, 2009 WL 3790594, * 5 (La. App. 4 Cir. 11/12/09), ___ So. 3d ___. The trial court in the instant case stated, "[t]here is no question of law or fact common to the class. . . . [T]here are no diseases that all--or even most--of the putative class members claim." Citing conclusions of other states courts and federal courts, the trial court rejected the criterion of commonality among the putative class members at bar. However, definitions must evolve from concrete events, occurrences, real people, and specific places and facts, not mere nuance and speculation. For instance, the McCastle plaintiffs alleged 129 discrete acts over an eleven-month

11

period causing their specific and limited injuries, but there was only one source of odors and fumes. Ford, 703 So. 2d at 548. In Ford, as in the instant case, the court noted that, far from offering the same facts, each class member will necessarily have to offer different facts to establish that certain defendants emissions, either individually or in combination, caused them specific damages on yet unspecified dates (which dates may run into the hundreds or even thousands.) The causation issue is even more complicated considering the widely divergent types of personal, property and business damages claimed and considering each plaintiffs[sic] unique habits, exposures, length of exposures, medications, medical conditions, employment, and location of residence or business. In addition, each plaintiff will have to prove that the specific harm he suffered surpassed the level of inconvenience that is tolerated under C.C. art. 668. By the very nature of the claims that have been made, the length of time involved, and the vast geographical area in which the class members live, the degree of inconvenience or damage suffered will vary greatly as to the individual plaintiffs. . . . There appear to be far too many individual liability issues which could not be tried separately. Id. at 549. The trial court had a factual scenario in the instant case that presented a breadth of times, durations, and various sources and intensities of exposures during nearly half a century among the plaintiffs, together with a wide variety of alleged medical complaints and conditions. The court stated: [T]here is no controlling issue subject to proof on a class-wide basis. The differences in amounts and lengths of exposure, the personal history, habits and supposed illnesses of each particular claimant and the differences in operations and locations and customers of the five pipe-cleaning defendants, taken together and taken separately, mean that Plaintiffs cannot identify any common issue that can be resolved with respect to putative class members. From this scenario the trial court did not find sufficient commonality for class certification. We find that the trial court was reasonable in finding that the

plaintiffs failed to satisfy the commonality requirement.

12

Typicality. The criterion of typicality requires that "[t]he claims or defenses of the representative parties are typical of the claims or defenses of the class." La. C.C.P. art. 591 A(3). We have previously defined "[t]he element of typicality [as] requir[ing] . . . that the claims of the class representatives be a crosssection of, or typical of, the claims of all class members." Davis v. Jazz Casino Co., L.L.C., 03-0005, p. 9 (La. App. 4 Cir. 1/14/04), 864 So. 2d 880, 889; Andry v. Murphy Oil, U.S.A., Inc., supra, 97-0793 at p. 5, 710 So. 2d at 1129. The class representatives claims must stem from the same event or course of conduct, and interest and injuries must be the same. In the instant case, the trial court noted, no single accident occurred and each plaintiff was exposed to different substances, if any, at different levels, and at different times, allegedly caused by different defendants, and each plaintiff is himself different. Relying on testimony from class representatives as well as putative class members, the trial court stated further that "many of the class representatives reported a variety of diseases or symptoms vastly different from those reported, if any, by the putative class members." Beyond the variety of medical complaints, the judgment noted that certain plaintiffs refused to undergo medical tests; other plaintiffs were inconsistent as to what conditions to monitor. The broad diversity in the ailments underscored the inadequacy of the class representatives representation, leading the court to conclude that there was no typicality. The trial court judgment observed: [T]he class representatives claims are widely divergent from those of the putative class members. . . . Some class representatives claimed no medical condition whatsoever, implicitly conceding that none could have been caused. . . . Others claim widely varying medical problems, ranging from loss of smell to skin rashes to nosebleeds to hammer-toe to miscarriages to cancer. . . . Moreover, while some Plaintiffs would welcome medical testing, they are not consistent as to what conditions they want to monitor, or even whether they would trust the results, and other Plaintiffs expressly reject any such tests.

13

After reviewing the record, we find that the trial court was reasonable in finding that the plaintiffs failed to satisfy the requirement of typicality. Adequacy of Representation. This court has defined "adequacy of representation" in Dupree v. Lafayette Ins. Co., 2009 WL 3287607, 09-0321, p. 7 (La. App. 4 Cir. 10/14/09), ___ So. 3d ___: Adequacy of representation for class certification requires that the claims of the proposed class representatives be a cross-section of, or typical of, the claims of all class members. . . . even though claims by a particular class representative with regard to the exact damages claimed may not be typical, as long as the class of damages asserted by each representative is. [citation omitted] In Oliver v. Orleans Parish School Board, 2009 WL 3790594, 09-0489, p. (La. App. 4 Cir. 11/12/09), ___ So. 3d ___, this court affirmed the trial courts examination of the potential conflicts of interest among potential class members to determine that the relief sought by School Board employees did not create conflicts arising from competition for jobs, in a suit for reinstatement of employment (i.e., injunctive and/or declaratory relief as opposed to monetary damages). In the instant case, the trial court recognized that the class representatives would be unable to adequately represent class members interests, finding that the testimony established that any given class representative and class member alleged varying injuries caused by varying substances from varying sources, caused by varying acts of numerous defendants occurring over a period of more than four decades. The class representatives and potential class members were not found to meet the adequacy criteria, based on the broad diversity and undetermined characteristics of the alleged effects of the NORM and the vast and individual relationships the potential class members have or had to the several defendants. The trial court judgment stated:

14

It follows that adequacy of representation is lacking when class members complaints range, as shown above, from cancer to no symptoms at all. . . . This makes it impossible for some to pursue remedies for others. The trial courts reasonable finding that the putative class did not meet the adequacy-of-representation requirement was not manifestly erroneous. Identifiability (Class Definition). This court has interpreted "class definition" as follows: The final prerequisite under article 591(A) is that the class be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for the purposes of the conclusiveness of any judgment that may be rendered in the case. The parties seeking certification must be able to establish a definable group of aggrieved persons based on objective criteria derived from the operative facts of the case. [citation omitted]. The purpose of the class definition requirement is to ensure that the class is not amorphous, indeterminate, or vague, so that any potential class members can readily determine if he/she is a member of the class." Oliver, 2009 WL 3790594 at p. 7, ___ So. 3d at ___ . See also Watters, 15 So. 3d at 1128. The trial court judgment, described the inconsistencies and errors made by the plaintiffs expert, Dr. Biggs, in modeling air dispersion and opining regarding air and soil deposition of the pipe scale dust, which expert testimony was to serve as a foundation for the plaintiffs establishing times, spatial boundaries, and determinations of exposure for any particular plaintiff. The judgment stated: [T]he definition could potentially include anyone who once drove through the area. The Special Master further noted that the definition could not be saved by restricting it to persons who suffered injury due to exposure because "[c]lass membership cannot be based on who prevails on the merits; to do so would require a mini-hearing on the merits of each plaintiffs claim to determine who is in the class."

15

The trial court found that the proposed definition lacked temporal, residential, and geographic specificity and was thus "fatally defective."11 The testimony of experts, including Dr. Biggs, described in detail in the reasons for judgment, supports the decision to deny class certification: tests were exaggerated, incorrect ("critical mistakes" and "flawed assumptions" and "outlandish premises"), or the experts were inconsistent and were impeached. As the trial court observed, so inadequate was the class definition that it would include even a person who simply drives within a mile of the site once within sixty years. "And there is no objective evidence supporting a one-mile radius in the first place."12 The plaintiffs contend that this court and the Louisiana Supreme Court have remanded class certifications for re-definition, citing the Supreme Courts suggestion in Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La. 9/9/97), 703 So. 2d 542, and this courts certification of a re-defined class in Andry v. Murphy Oil, U.S.A., Inc., 97-0793 (La. App. 4 Cir. 4/1/98), 710 So. 2d 1126, one of Fords progeny. The trial court observed that the instant suit is the second attempt at certification, the first attempt having been rejected. The trial court reasonably found that the plaintiffs failed to satisfy the requirement of identifiability (class definition). The plaintiffs do not offer a revised or alternative re-definition of the class that would satisfy objectively ascertainable criteria for a class. We find that the trial courts finding was reasonable and was not manifestly erroneous.

11

The Special Master reported, "Based upon the evidence presented the proposed class is not susceptible of a definition. . . . The proof offered does not support a useful basis for a class definition in this instance. It would include persons who are alleged to be affected by the activity on the ,,Property regardless of whether the resided there, worked there or simply drove by the area. Accordingly, the proposed definition and the proof offered to support it is legally insufficient because it does not define an objective group of persons who would be bound by res judicata. La. Code Civ. Proc. art. 591(A)(5)." 12 We reiterate that we do not analyze the case under La. C.C. P. art. 591 B because to do so would be irrelevant: "The second level of analysis for determining whether to certify a class action is governed by La. Code Civ. Proc. Art. 591 B. A court reaches this level of analysis only if it finds that all the requirements of article 591 A have been satisfied." Dupree v. Lafayette Insurance Company, 2009 WL 3287607, *9 (La. App. 4 Cir. 10/14/09), ___ So. 3d ___. (4th Cir. No. 09-0321).

16

IV We now consider whether, overall and based on the lengthy proceedings and record below, the trial court abused its discretion in denying class certification. We find guidance in the McCastle Courts consideration of fairness to parties tempered with judicial efficiency.13 The court noted, In determining whether it would be unfair to require separate adjudications, for instance, the courts should consider the precedential value of the first decision, as well as the extent of injustice that will be produced by inconsistent judgments in separate actions. . . . [T]he evidence as to the nucleus of liability issues must be identical for each claim. . . . Four thousand separate suits involve the danger of inconsistent determinations and of earlier separate adjudications with prejudicial effect upon subsequent separate litigation. 456 So. 2d at 621. Cognizant of the McCastle duty to make inquiry "into every aspect of the case" and to "require showings beyond the pleadings," id. at 618; Stevens, 309 So. 2d at 152, we note that we review the trial judges findings, accompanied by lengthy reasons for judgment, on each element. The finding of insufficient numerosity was clearly wrong; however, the findings as to commonality, typicality, adequacy of representation, and identifiability (class definition) are reasonable. This court in Thomas v. Mobil Oil Corp., 08-0541 (La. App. 4 Cir. 3/31/09), 14 So. 3d 7, affirmed the trial courts denial of class certification for factors reminiscent both of the case at bar and those of Ford, wherein the Louisiana Supreme Court rejected class certification. Pertinent factors are as follows:

13

We recognize the weighing of concerns for "small" claims, inconsistency in results, rights of absentees, and legislative policy considerations set forth by the McCastle Court, 456 So. 2d at 619, and the record of this case shows that the trial court amply heard and reviewed and weighed sufficient evidence to support its denial of class certification in this case. While the Supreme Court reversed the appellate court and allowed the class action, the facts of McCastle are distinguishable from the factual scenario at bar.

17

1) The proposed class members will have to offer different facts to establish that certain emissions, either individually or cumulatively, caused them specific damages on specific dates; 2) the causation issue requires consideration of the widely divergent types of personal, property and business damages claimed and requires consideration of each plaintiffs unique habits, medical history, exposures, length of exposures, concentration of chemical substances, medications, medical conditions, employment and location of businesses and residences; 3) each plaintiff will have to prove that the specific level of harm suffered surpassed the level of inconvenience tolerated under Louisiana Civil Code Art. 668; 4) the length of time involved spans from 1989 to at least 2003; . . . 6) the degree of inconvenience or damage suffered will vary greatly as to individual plaintiffs. Thomas, 08-0541 at p. 5, 13 So. 3d at 10. The trial court exceeded the narrow scope prescribed for the initial step in addressing class certification by attributing to the category "numerosity" the courts fact findings properly made subsequent to the certification phase of class action litigation. Where the trial court improperly deviates from the realm of class certification and wanders into the merits of the claim, "a serious threat to the loss of individual substantive rights" is posed. Id., citing Williams v. State, 350 So. 2d 131, 135 (La. 1977). Among numerous examples of that fact-finding which exceeds the scope of the preliminary inquiry for class certification are the following excerpts from the reasons for judgment: Plaintiffs cite no credible evidence to meet their proposed class definition, which purports to extend to all persons residing within, visiting, or even traveling through, a one-mile radius of the outer boundary of the site identified by Plaintiffs between 1946 and 1992. . . [T]hey argue only that thousands of people resided within the onemile radius over the relevant period of time. This bit of information would be relevant only if Plaintiffs could make a prima facie showing that radioactive materials from pipe scale had actually been found in soils or homes distributed in a one-mile radius. But Plaintiffs have

18

not made this showing. In sum, Plaintiffs presented no evidence whatsoever of radiation contamination on any Plaintiffs property. Moreover, the only two Plaintiffs who allowed their homes to be tested by LDEQ revealed no contamination. And nor does every claimant purport to suffer from the same non-cancerous diseases. . . . Thus, resolving whether radiation can cause a particular disease, if that is even possible, does not resolve a common issue. Plaintiffs argued that this is a "single source" case, even though they have consistently alleged exposure to numerous substances purportedly originating from different companies conducting different operations over varying time periods at different locations along a more than 1.5 mile stretch of Peters Road in Harvey Louisiana. Nevertheless, the lack of commonality evident from the facts before the court defeats the claim for class certification, which requires all five factors, not four of them, to be present. The plaintiffs failed to support their claim for certification of a class with sufficient evidence of a definable group.14 Thus the trial courts findings of absence of commonality, typicality, adequacy of representation, and identifiability (class definition) were not manifestly erroneous. Were the deficiencies of the plaintiffs case as to commonality not so enormous, we would attempt to redefine a class or remand for the trial court to craft a more narrowly defined class, because "[b]y completely denying class certification, without even attempting to apply the provisions of La. C.C.P. art. 592(A)(3)(c), these plaintiffs are, we all know, effectively put out of court." Thomas, supra 14 So. 3d at 19 (Bonin, J., dissenting). Cognizant of La. C.C.P. art. 592 D,15 we conclude after our examination of the record that redefining the class

14

The Special Master, Fred L. Herman, wrote on January 31, 1008, in his Special Master Recommendation: Based upon the evidence presented the proposed class is not susceptible of a definition. If the class is accepted as argued by the Plaintiffs, it would include persons who had only a very remote connection to the property without regard to proximity and time. The proof offered does not support a useful basis for a class definition in this instance. . . . [and] is legally insufficient because it does not define an objective group of persons who would be bound by res judicata. . . . The aggrieved parties will have an opportunity to present their claims individually. The trial court judgment stated, "Plaintiffs . . . have no evidence whatsoever of actual contamination." 15 C.C.P. art. 592 D states in pertinent part: "When appropriate an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class." [emphasis added]

19

in this unique factual scenario would not help to maintain the class. Despite its exceeding the boundaries of examination into facts for certification of a class, the trial court did not abuse its discretion in denying class certification. DECREE We therefore affirm the trial courts judgment. AFFIRMED

20



Download 247110.pdf

Louisiana Law