ROBERT HARVEY, DARLEEN JACOBS LEVY AND SUSAN AND WILLIAM LAURENDINE
THE BOARD OF COMMISSIONERS FOR THE ORLEANS LEVEE DISTRICT, PARISH OF ORLEANS
APPEAL FROM THE PARISH OF ORLEANS, STATE OF LOUISIANA NO.
05-11660, DIVISION "L" HONORABLE ROBERT J. BURNS,
JUDGE AD HOC, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, SUSAN AND WILLIAM
LAURENDINE, ET AL Darleen M. Jacobs Hunter P. Harris Richard
M. Martin, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA,
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Jeffrey M.
Landry Timothy W. Hassinger Kelsey L. Bonnaffons
COUNSEL FOR DEFENDANT/APPELLEE, SEWERAGE AND WATER BOARD OF
NEW ORLEANS Charles M. Lanier, Jr. J. Warren Gardner, Jr.
Oscar M. Gwin, IV
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Hans J. Liljeberg.
G. GRAVOIS, JUDGE.
case arising out of flooding following Hurricane Katrina,
plaintiffs/appellants appeal a trial court judgment that
denied class certification under La. C.C.P. art.
For the following reasons, we affirm the judgment of the
AND PROCEDURAL BACKGROUND
September 24, 2005, plaintiffs, Robert Harvey, Darleen Jacobs
Levy, Susan Laurendine, and William Laurendine, filed a claim
for damages with a request for class action certification
against the Board of Commissioners for the Orleans Levee
District for the Parish of Orleans (the "Levee
District"), asserting that the Levee District was
negligent in its design and construction of flood walls along
the 17th Street and London Avenue Canals in
Orleans Parish, which flood walls collapsed during and in the
aftermath of Hurricane Katrina on August 29, 2005, resulting
in damages to their respective properties located in Orleans
Parish. Plaintiffs further asserted that "the number of
business and property owners affected by the negligence of
the defendant are too numerous to mention and that this
lawsuit should be certified as a class action for all
residents, business owners, and occupants of the affected
areas in the New Orleans area."
7, 2006, plaintiffs filed a First Supplemental and Amending
Petition. Al LeBeouf, Aline Hodges, Pierre Ascani, Theresa
Harvey, Dale Atkins and Anita L. Sarrat were added as
plaintiffs, and Robert Harvey and Darlene Jacobs Levy were
deleted as plaintiffs. Additional allegations of negligence
were asserted against the Levee District. The next day, on
June 8, 2006, plaintiffs filed a motion to certify the action
as a class action pursuant to La. C.C.P. art. 592.
filed a Second Supplemental and Amending Petition on July 10,
2006, adding as defendants the State of Louisiana, Department
of Transportation and Development (the "DOTD"), and
the Sewerage and Water Board for the Parish of Orleans (the
"SWB"), asserting additional acts of negligence by
Management and Scheduling Order No. 1 signed by the trial
court on December 23, 2013, the proposed class was defined by
plaintiffs as follows: "All residents, domiciliaries,
property owners and business owners of the parishes of
Orleans and Jefferson (limited to Hoey's Basin) in the
State of Louisiana whose properties or businesses were
damaged by flooding caused by the failure of the
17thStreet Canal and London Avenue Canal hurricane
protection levees and floodwalls in New Orleans, Louisiana on
or after August 29, 2005."
lengthy procedural history that is largely irrelevant to the
instant appeal, the trial court conducted a hearing on
plaintiffs' motion to certify the class on November 10
and 14, 2016. At the close of plaintiffs' evidence,
the trial court granted defendants' oral motion for
involuntary dismissal and denied class certification, finding
that plaintiffs had failed to produce evidence to support the
requirements of commonality and typicality, as required by
La. C.C.P. art. 591(A)(2) and (3), respectively, and
superiority, as required by La. C.C.P. art. 591(B)(3). The
trial court gave detailed oral reasons for its ruling. A
written judgment to this effect was signed on November 22,
2016. Plaintiffs' appeal follows.
appeal, plaintiffs argue that the trial court procedurally
erred in granting defendants' motion for involuntary
dismissal, asserting that the class certification hearing was
not a trial on the merits of the case. They also argue that
the trial court erred in excluding the testimony and report
of their expert engineer, James Phipps. Plaintiffs further
argue that the trial court erred in finding that plaintiffs
failed to prove commonality, as required by La. C.C.P. art.
591(A)(2), and superiority of the class action suit, as
required by La. C.C.P. art. 591(B)(3).
OF REVIEW AND APPLICABLE LAW
standard of review for class certification is bifurcated:
factual findings are reviewed under the manifest
error/clearly wrong standard, but the trial court's
judgment on whether to certify the class is reviewed by the
abuse of discretion standard. Pollard v. Alpha Tech.,
Chevron U.S.A., Inc., 08-1486 (La. App. 4 Cir. 1/28/10),
31 So.3d 576, 581, citing Brooks v. Union Pacific
Railroad Company, 08-2035 (La. 5/22/09), 13 So.3d 546,
determination of whether a class action meets the
requirements imposed by law involves a rigorous analysis.
Brooks v. Union Pacific Railroad Company, 13 So.3d
at 554. Such an analysis requires the district court to
"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, judicial efficiency, and individual
fairness." Price v. Martin, 11-0853 (La.
12/6/11), 79 So.3d 960, 966-67, citing McCastle v.
Rollins Environmental Services of Louisiana, Inc., 456
So.2d 612, 618 (La. 1984). McCastle imparts a duty
on the court to make active inquiry "into every aspect
of the case" and "to require showings beyond the
pleadings." Id. In practice, the analysis will
frequently entail overlap with the merits of the underlying
claim. Id, citing Wal-Mart Stores, Inc. v.
Dukes, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011).
threshold requirements for class certification are found in
La. C.C.P. art. 591(A), which provides:
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
(2) There are questions of law or 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 interests 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 the conclusiveness
of any judgment that may be rendered in the case. This
prerequisite shall not be satisfied if it is necessary for
the court to inquire into the merits of each potential class
member's cause of action to determine whether an
individual falls within the defined class.
prerequisites are generally known as numerosity, commonality,
typicality, adequacy, and identifiability (class definition).
Pollard v. Alpha Tech., Chevron U.S.A., Inc., 31
So.3d at 583. An action may be certified as a class
action only if all of the five prerequisites of Article
591(A) are present. Id.
of the prerequisites of Article 591(A) are satisfied, Article
591(B) provides that the court must also find that plaintiffs
have met at least one of the following requirements found in
Article 591(B)(1)-(3), to-wit:
(1) The prosecution of separate actions by or against
individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for ...