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Slocum v. International Paper Co.

United States District Court, E.D. Louisiana

May 21, 2019


         SECTION "L" (1)

          ORDER & REASONS

         Before the Court is a motion seeking class certification. R. Doc. 182. The motion is opposed in part. R. Doc. 187. Plaintiffs have filed a reply. R. Doc. 203. On May 16, 2019, the Court heard oral argument on the motion. R. Doc. 205. The Court now rules as follows.

         I. BACKGROUND

         This series of class action cases arise out of injuries allegedly sustained by Plaintiffs as a result of a discharge of “black liquor” at the Bogalusa Paper Mill on June 10, 2015. R. Doc. 1-2 at 1. Plaintiffs assert claims against Defendant, [1] International Paper Company, for failure to provide complete and accurate information about the chemical composition and known risks presented by the black liquor that was allegedly discharged from a ruptured evaporator tank at the Bogalusa Paper Mill. R. Doc. 1-2 at 1. Plaintiffs' theories of liability sound in negligence, strict liability, and nuisance. R. Doc. 1-2 at 21.

         Black liquor is a by-product of the paper making process. Black liquor is typically recycled in evaporator tanks for repeated use in the pulping process. R. Doc. 1-2 at 3. On June 10, 2015, the sight glass on an evaporator tank containing black liquor ruptured at the Bogalusa Paper Mill, resulting in a stream of black liquor erupting several feet into the air and dispersing into the atmosphere. R. Doc. 1-2 at 14. The next day, Defendants advised the media that there was a “slight leak” in a process unit that led to the dispersal of diluted black liquor, but that Defendants were “confident that there is no risk to human health or the environment.” R. Doc. 1-2 at 14.

         Plaintiffs disagree. They contend the dispersal of black liquor caused personal injury, property damage and/or emotional distress, and argue Defendants are liable for Plaintiffs' damages. R. Doc. 1-2 at 16. For example, the Welch Plaintiffs claim the dispersal caused a black mist to descend on their house, and that the mist stuck to the exposed skin of themselves and their children. R. Doc. 1-2 at 18. For a few days after, the Welches “experienced itchy, burning, watery eyes, [and] headaches with throat and upper respiratory irritation.” R. Doc. 1-2 at 18. The Welches concede that their physical symptoms cleared “in a short period of time, ” but argue they continue to suffer emotional distress and fear about a reoccurrence of the event. R. Doc. 1-2 at 18. Other Plaintiffs claim similar damages.


         On April 30, 2019, Plaintiffs moved to certify an issue class pursuant to Federal Rule of Civil Procedure 23(c)(4), contending that the determination of Defendant's liability for the June 10, 2015 explosion is most efficiently done on a class-wide basis. If Defendant is found liable, Plaintiffs propose the remaining, Plaintiff-specific issues be tried in flights. R. Doc. 182-1 at 2.

         Defendant opposes the motion in part, stating it “does not oppose class certification of those issues that are truly class-wide issues in this litigation.” R. Doc. 187. Specifically, Defendants take issue with whether “general causation” may be tried on a class-wise basis.[2] Id. at 1. Defendant also proposes the Court certify an issue class. Id. at 9. It proposes the trial be bifurcated into two phases: liability and damages. Id. at 10.


         Class actions permit representative plaintiffs to litigate their claims on behalf of members of the class not before the court. The purpose of a class action is to avoid multiple actions and to allow claimants who could not otherwise litigate their claims individually to bring them as a class. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983). A district court has great discretion in certifying and managing a class action. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing Montelongo v. Meese, 803 F.2d 1341, 1351 (5th Cir. 1986). The party seeking class certification bears the burden of proving all the requirements set out in Rule 23 of the Federal Rules of Civil Procedure. Berger v. Compaq Computer Corp., 257 F.3d 475, 479 n.4 (5th Cir. 2001).

         Class certification is soundly within the district court's discretion, and this decision is essentially a factual inquiry; however, the Court's analysis generally should not reach the merits of the plaintiffs' claims. Vizena v. Union Pac. R.R. Co., 360 F.3d 496, 502-03 (5th Cir. 2004); Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996). The district court must make specific findings regarding how the case satisfies or fails to satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure. Vizena, 360 F.3d at 503.

         In this case, Plaintiffs seek certification of the following class for purposes of determining Defendant's liability:

All natural and juridical persons who sustained any loss or damages of any kind (including but not limited to property damages, personal injuries and emotional distress) arising in any way from or out of the discharges or releases of Black Liquor from the Bogalusa Paper Mill facility evaporator tank that ruptured on or about June 10, 2015 and thereafter as the result of malfunction evaporators prone to unpermitted releases and/or discharges of Black Liquor on people and property situated in close proximity to the Bogalusa Paper Mill.

R. Doc. 1-2 at 9.[3]

         Plaintiffs seek certification under Rule 23(c)(4). R. Doc. 182-1 at 9. Rule 23(c)(4), “permits district courts to limit class treatment to ‘particular issues' and reserve other issues for individual determination.” In re Deepwater Horizon, 739 F.3d 790, 816 (5th Cir. 2014). This allows a court to “‘adjudicate common class issues in the first phase and then later adjudicate individualized issues in other phases' of the multi-phase trial.” Id. (quoting Madison, 637 F.3d at 556). The “particular issue” in this case is Defendant's liability. To certify an issue class, the Court must nevertheless conclude the class satisfies Rule 23(b)(3)'s requirements. See Madison v. Chalmette Refining, L.L.C., 637 F.3d 551, 556 (5th Cir. 2011). Using these standards as a guide, the Court will now analyze whether it is proper for this case to proceed as a class with respect to the issue of liability.

         A. Class Certification

         Plaintiffs seek certification of their claims as a class action under Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. Rule 23 provides in relevant part:

(a) Prerequisites to a Class Action.
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 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, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable.
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: ....
(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 action is superior to other available 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 of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

         Thus, read in combination, Rule 23(a) and 23(b)(3) provide six requirements which must be met for a group of claims to be certified as a class action-numerosity, commonality, typicality, adequacy, predominance, and superiority. The Court will address each requirement in turn.

         1. Numerosity - Rule 23(a)(1)

         To demonstrate numerosity, Plaintiffs must establish that joinder is impracticable through “some evidence or reasonable estimate of the number of purported class members.” Pederson v. La. State Univ., 213 F.3d 858, 868 (5th Cir. 2000). While the number of members in a proposed class is not determinative of this inquiry, the Fifth Circuit has cited with approval Professor Newberg's treatise, which “suggest[s] that any class consisting of more than forty member ‘should raise a presumption that joinder is impracticable.'” Mullen v. Treasure Chest Casino LLC, 186 F.3d 620, 624 (5th Cir. 1999). In this case, the proposed class consists of approximately 2500 individuals, far exceeding the forty-member presumptive threshold. Therefore, Plaintiffs are entitled to a presumption in their favor regarding the numerosity issue. Defendants have not offered any evidence to defeat this presumption.

         2. Commonality - Rule 23(a)(2)

         Rule 23(a)(2) requires that there be issues of law or fact common to the class. The commonality requirement is satisfied if at least one issue's resolution will affect all or a significant number of class members. James v. City of Dallas, 254 F.3d 551, 570 (5th Cir. 2001); Mullen, 186 F.3d at 625. Commonality, unlike predominance, is a very low threshold and can be met if the resolution of only one or more issues will affect a significant number of class members. James, 254 F.3d at 570.

         In this case, each Plaintiff alleges Defendant's negligence lead to the explosion, thereby causing them damage. The alleged explosion is limited to a single incident-the explosion and subsequent disbursement of Black Liquor. Whether Defendant's negligence caused the explosion is a question common to all class members. Therefore, the Court concludes commonality is satisfied here with regard to the issue of liability.

         3. Predominance - Rule 23(b)(3)

         Rule 23(b)(3) requires that the class share common issues of law or fact that predominate over the questions affecting individual class members. In general, to predominate, common issues must form a significant part of individual cases. Mullen, 186 F.3d at 626. Specifically, a district court should consider how the cases would proceed to trial, that is, whether any cases would require individual trials on particular issues. See Castano, 84 F.3d at 744-45 (finding certification was inappropriate where individual trials would be necessary to determine an element of the plaintiffs' fraud claims).

         Compared to the commonality element of Rule 23, the predominance standard is much “more rigorous.” Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006). When conducting the predominance analysis, the Court must examine each plaintiff's claims individually to determine how these claims would be tried. While class treatment of a mass tort case as a whole is inappropriate, it is “possible to satisfy the predominance . . . requirements of Rule 23(b)(3) in a mass tort or mass accident class action” despite the particular need in such cases for individualized damages calculations. Exxon, 461 F.3d at 603.

         In this case, Plaintiffs move the Court to certify an issue class with respect to Defendant's liability. Plaintiffs bring claims based on: (1) Negligence, pursuant to Louisiana Civil Code Article 2315; (2) Nuisance, pursuant to Louisiana Civil Code Articles 667-69; (3) Negligence, pursuant to Louisiana Civil Code Article 2317 and 2317.1; and (4) equitable relief. Based on these causes of action, Plaintiffs seek damages for: (1) property damage; (2) personal injuries; (3) past pain and suffering; and (4) emotional injuries stemming from the alleged damage to their properties.[4] R. Doc. 1-1.

         To ensure class treatment in the context of a mass tort is appropriate, the Fifth Circuit has instructed district courts to consider rigorously how they plan to “adjudicate common class issues in the first phase and then later adjudicate individualized issues in other phases” of the multi-phase trial before the final decision is made to certify a class. Madison, 637 F.3d at 556. To determine whether an issue class is appropriate in this case, the Court evaluates each of Plaintiffs' claims in turn.

         i. Negligence - Louisiana Civil Code article 2315

         Plaintiffs' petition alleges Defendant's negligence lead to the June 10, 2015 explosion. In Louisiana, courts employ a duty-risk analysis to determine the potential negligence of a defendant. Long v. State Dep't of Trans. & Dev., 916 So.2d 87, 101 (La. 2005). Generally, this analysis involves five separate elements: (1) proof that the defendant had a duty to conform its conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to that standard (the breach element); (3) proof that the defendant's conduct was cause-in-fact of plaintiff's injuries (the cause-in-fact element); (4) ...

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