United States District Court, E.D. Louisiana
SHIRLEY SLOCUM, ET AL.
INTERNATIONAL PAPER COMPANY, ET AL. DERRICK SANDERS, ET AL.
INTERNATIONAL PAPER COMPANY, ET AL. BRENT JARRELL, ET AL.
INTERNATIONAL PAPER COMPANY, ET AL.
ORDER & REASONS
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.
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,  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.
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.
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.
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.
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. 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.
LAW AND ANALYSIS
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
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.
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
R. Doc. 1-2 at 9.
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.
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
(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
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.
Numerosity - Rule 23(a)(1)
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.
Commonality - Rule 23(a)(2)
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
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
Predominance - Rule 23(b)(3)
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).
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.
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. R. Doc. 1-1.
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.
Negligence - Louisiana Civil Code article 2315
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) ...