NAVELSKI et al v. INTERNATIONAL PAPER COMPANY
Filing
105
ORDER Defendants Motion for Reconsideration, ECF No. 97, is DENIED. Within seven days of the date of this Order, the parties are directed to notify the Court of their respective positions on the joint proposed notice that was fil ed on April 7, 2017. By separate order, the Court will schedule a case management conference to discuss the progression of the litigation going forward. Signed by CHIEF JUDGE M CASEY RODGERS on 5/21/2017. (Jacobs, Tevenia) Modified on 5/21/2017 (Jacobs, Tevenia).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
JOHN NAVELSKI, et al.,
Plaintiffs,
v.
Case No. 3:14cv445/MCR/CJK
INTERNATIONAL PAPER COMPANY,
Defendant.
/
ORDER
Defendant has filed a Motion for Reconsideration, ECF No. 97, asking the
Court to reconsider its March 25, 2017 Order granting in part and denying in part
Plaintiffs’ Motion for Class Certification, ECF No. 93.1 While the Court is not
persuaded that it should reconsider its decision to certify a liability-only class in this
case, the Court finds it appropriate to clarify certain aspects of the Order.
Reconsideration of a non-final order “is an extraordinary remedy to be
employed sparingly in the interests of finality and conservation of scarce judicial
resources.” Wendy’s Int’l, Inc. v. Nu-Cape Const., Inc., 169 F.R.D. 680, 685 (M.D.
Fla. 1996). There are three major grounds that justify reconsideration: (1) an
intervening change in the controlling law; (2) the discovery of new evidence that
1
The Court finds Defendant’s motion suitable for determination without oral argument.
See N.D. Fla. Loc. R. 7.1(K).
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was not available when the original motion was decided; or (3) the need to correct
clear error or prevent manifest injustice. See Fla. College of Osteopathic Medicine,
Inc. v. Dean Witter Reynolds, Inc., 12 F. Supp. 2d 1306, 1308 (M.D. Fla. 1998); see
also Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007).
A motion for
reconsideration may not be used to relitigate old issues, “to raise new arguments
which should have been raised in previous briefing, or to vent dissatisfaction with
the [c]ourt’s reasoning.” Local Access, LLC v. Peerless Network, Inc., --- F. Supp.
3d ---, 2016 WL 6984522, at *2 (M.D. Fla. Nov. 29, 2016); see also Arthur, 500
F.3d at 1343; Gonzalez v. Secretary or Dep’t of Corrections, 366 F.3d 1253, 1292
(11th Cir. 2004). The moving party “must demonstrate why the court should
reconsider its prior decision and set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision.” Instituto de Prevision Militar v.
Lehman Bros., Inc., 485 F. Supp. 2d 1340, 1343 (S.D. Fla. 2007).
Defendant asserts that the Court’s decision to certify a liability-only class in
this case “raises legal and practical difficulties that were not at issue, and therefore
not addressed by [Defendant], in the class certification briefing.” ECF No. 98 at 5.
Before delving into the merits of Defendant’s objections, the Court first observes
that bifurcation of liability and damages was a very real and foreseeable possibility
from the early stages of this litigation. As part of the parties’ Joint Rule 26(f) Report
dated October 31, 2014, Plaintiffs proposed a bifurcated discovery and trial schedule
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in which liability would be adjudicated first, on a classwide basis, followed by
separate trials with respect to individual losses if Plaintiffs were successful in
proving Defendant’s liability. See ECF No. 20 at 3-6. When Plaintiffs moved for
class certification, they again proposed a bifurcated trial plan and expressly
identified liability as a common issue requiring classwide adjudication before
individualized damages questions could be considered. See ECF No. 62 at 26-28,
29-31. Plaintiffs have never wavered in their pursuit of a classwide liability
determination. The fact that Defendant elected not to fully address this potential
outcome in its opposition brief or at the class certification hearing, perhaps assuming
that Plaintiffs’ expert on classwide liability would be excluded, does not entitle
Defendant to raise new arguments that could have been raised at the time of the class
certification decision. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957
(11th Cir. 2009) (stating that a litigant cannot use a motion for reconsideration to
raise “new arguments that were previously available, but not pressed”); see also
Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 614 (C.D. Cal. 2013) (stating
that “a party’s dissatisfaction with counsel’s strategic decisions after an adverse
result on a motion is not a proper ground for granting a motion for reconsideration”).
As discussed below, each of Defendant’s current arguments against the certification
of a liability-only class either could have been presented earlier or is insufficient to
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establish that the Court’s decision on class certification was clearly erroneous or
manifestly unjust.
Defendant argues that the class certification decision should be reconsidered
because the Court erred in failing to take a position on the relative merits of the
parties’ conflicting expert testimony on causation. This argument is flawed because
it misapprehends the extent to which the Court may evaluate the merits of Plaintiffs’
claims in deciding whether the requirements for class certification have been met.
While a district court’s class certification analysis “may entail some overlap with the
merits of the plaintiff[s’] underlying claim, Rule 23 grants courts no license to
engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v.
Conn. Ret. Plans & Tr. Funds, -- U.S. --, 133 S. Ct. 1184, 1194-95 (2013) (citations
omitted). Rather, “[m]erits questions may be considered to the extent—but only to
the extent—that they are relevant to determining whether the Rule 23 prerequisites
for class certification are satisfied.” Id., quoted in Brown v. Electrolux Home
Products, Inc., 817 F.3d 1225, 1234 (11th Cir. 2016); see also Valley Drug Co. v.
Geneva Pharms., Inc., 350 F.3d 1181, 1187 (11th Cir. 2003) (“Although the trial
court should not determine the merits of the plaintiffs’ claim at the class certification
stage, the trial court can and should consider the merits of the case to the degree
necessary to determine whether the requirements of Rule 23 will be satisfied.”). In
this case, neither the substantive merits of Plaintiffs’ claims nor the conflicting
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expert conclusions about whether the Dam failure caused the subject flooding are
material to the question of whether the Rule 23 prerequisite of predominance is
satisfied.
The predominance inquiry tests whether a proposed class is “sufficiently
cohesive to warrant adjudication by representation.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 376 (2011). This requires courts to give “careful scrutiny to the
relation between common and individual questions in a case.” Tyson Foods, Inc. v.
Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). An individual question is one in which
“members of a proposed class will need to present evidence that varies from member
to member,” while a common question “is one where the same evidence will suffice
for each member to make a prima facie showing or the issue is susceptible to
generalized, class-wide proof.” Id. Thus, in this case, the dispositive question for
Rule 23 purposes is whether causation is an issue that is susceptible to generalized,
classwide proof. See id.; see also Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d
1248, 1260-61 (11th Cir. 2003) (“[P]redominance is met when there exists
generalized evidence which proves or disproves an element on a simultaneous,
classwide basis.”). Importantly, on this question, the parties’ experts do not conflict.
Both Plaintiffs’ expert, Dr. Mark Ross, and Defendant’s expert, Dr. Frank
Lan, relied on complex hydrologic and hydraulic modeling programs to analyze the
question of whether the failure of the Kingsfield Road Dam caused the flooding in
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Plaintiffs’ homes, and both of them ultimately provided causation opinions with
classwide application. See ECF Nos. 87-12 at 34, 87-13 at 9-1. According to Dr.
Ross’s models, all of the flooding experienced by individual homes in the subject
neighborhoods, with the exception of five houses, was caused by the failure of the
Kingsfield Road Dam.2 On the other hand, according to Dr. Lan’s models, the Dam
failure had only a “negligible” impact on flooding in the subject neighborhoods. See
ECF No. 87, Exh. M at 9-1.3 In other words, Dr. Lan’s models indicate that
essentially none of the flooding Plaintiffs’ allegedly experienced was caused by the
failure of the Kingsfield Road Dam.
Notably, neither expert described any
individualized, plaintiff-specific evidence that was necessary to his analysis or
conclusion on classwide causation. Moreover, Dr. Lan testified that both he and Dr.
Ross used widely accepted, highly sophisticated methodologies that were
appropriate for resolving the causation question presented here—that is, whether the
Dam failure actually caused the subject flooding. See ECF No. 102 at 135-36, 150,
165. Thus, the parties’ respective experts each proved or disproved causation on a
classwide basis through common evidence, in essence, agreeing on the only issue
2
In their Complaint, Plaintiffs allege that the failure of the Kingsfield Road Dam “caused
and/or contributed to” the flooding in their neighborhoods. See ECF No. 1-1. The current record
evidence does not support that allegation in its entirety. As discussed in the body of this Order,
Plaintiffs’ expert concluded that all of the flooding in the subject neighborhoods was caused by
the Dam failure.
3
International Paper Dam on Elevenmile Creek, Hydrologic and Hydraulic Analysis
Report by Yongqiang (Frank) Lan, Ph.D., P.E.
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material to the Rule 23 predominance inquiry: that causation is susceptible to
generalized, classwide proof. See Allapattah, 333 F.3d at 1260-61. The conflict
between the experts’ conclusions in this case relates exclusively to the merits of
Plaintiffs’ claims, not to whether common questions predominate. Therefore, the
Court need not and may not resolve the dispute in order to certify a class with respect
to causation. See Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005)
(holding that at the class certification stage, factual disputes “may be resolved only
insofar as resolution is necessary to determine the nature of the evidence that would
be sufficient, if the plaintiff’s general allegations were true, to make out a prima
facie case for the class”). On this record, the Court’s inquiry was “properly limited
to whether, if [Plaintiffs’] basic allegations were true, common evidence could
suffice . . . to show classwide [causation].” See Blades, 400 F.3d at 575.
The Court’s decision on this matter is in complete accord with Sher v.
Raytheon Co., 419 F. App’x 887 (11th Cir. 2011), a case heavily relied on by
Defendant in support of its argument that the Court was required to resolve the
dispute between the experts’ conclusions on whether the Dam failure caused the
flooding in order to certify a class in this case. In Sher, the Eleventh Circuit ruled
that a district court erred by failing to resolve a dispute between the parties’ experts
on a factual issue that was critical to determining whether the plaintiffs’ diminution
in value damages claims could be resolved on a classwide basis—more specifically,
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the plaintiffs’ expert stated that damages could be proved on a classwide basis using
multiple regression modeling, whereas the defendant’s expert opined that the
properties in the proposed class area could not be evaluated together and that only
individual appraisals could measure whether and to what extent a given property was
impacted by the environmental contamination alleged in the case. Id. Because the
experts disagreed about facts that were material to the question of whether the Rule
23 prerequisite of predominance was met, the Eleventh Circuit held that the district
court could not determine whether class certification was appropriate without first
“declar[ing] a proverbial, yet tentative winner” between the experts. Id. at 891. In
contrast, the dispute between the experts in this case is on the merits alone.
The Court emphasizes that its decision to certify a liability-only class is a
direct function of the record as it currently stands.
Again, and contrary to
Defendant’s assertion during the class certification hearing, the evidence before the
Court does present an “all or nothing” proposition on the issue of causation. See
ECF No. 103 at 46. As explained, based on the testimony of the parties’ respective
experts, the failure of the Kingsfield Road Dam either caused all of the flooding or
none of it. That is the current state of the evidence and, both from a scientific
perspective and for class certification purposes, there is no middle ground. 4 It may
4
It is true that a jury “may believe or disbelieve any witness, in whole or in part.” Eleventh
Circuit Pattern Jury Instructions (Civil Cases), Basic Instructions 3.4. However, there must be an
evidentiary basis for every verdict and the plaintiff must provide it. See Blount Bros. Corp. v.
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be, as Defendant argues, that the liability jury finds Dr. Ross’s frictional value was
too low. In that scenario, Dr. Ross’s expert opinion will have been refuted because
it is predicated on the complex interplay between the frictional value and the myriad
other variables that were combined in his hydrologic and hydraulic modeling
programs to simulate the impact of the subject storm on the Elevenmile Creek
watershed. The jury cannot simply supply its own, higher frictional value. It also
may be that the evidence at trial demonstrates that some or all of the homes in the
subject neighborhoods flooded during past storm events, which might tend to
support a conclusion that those same homes would have flooded again during the
100-year storm event in this case, whether or not the Kingsfield Road Dam failed.
Again, that conclusion would refute Dr. Ross’s expert opinion, as he maintains that
all of the flooding is attributable to the failure of the Dam. At any rate, that certain
homes have a history of flooding is not established by the evidence presented to the
Court to this point. Indeed, at the class certification hearing, only one homeowner
testified that his property had flooded once before in 1998. See ECF No. 101 at 147.
Neither side followed up on that testimony and, without any other evidence of
Reliance Ins. Co., 370 F.2d 733, 739 (5th Cir. 1967) (“[I]f there is not evidentiary basis for the
jury’s verdict, then the verdict cannot be permitted to stand.”) (The Eleventh Circuit, in Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as binding precedent
all decisions of the former Fifth Circuit rendered prior to October 1, 1981). Thus, in this case, the
jury may not reject the scientific evidence in favor of its own intuitions about rainstorms and flood
patterns. The current evidentiary record limits the causation determination to two possible
conclusions—either the Dam failure caused all of the flooding or none of it.
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historic flooding to individual homes in the subject neighborhoods, this testimony
alone is insufficient to defeat predominance, particularly in light of the all or nothing
expert opinions. With predominance having been established, the Court properly
found that certification of a liability-only class was appropriate.
The Seventh Amendment does not compel a contrary result. The Seventh
Amendment provides, in relevant part, that “no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States.” U.S. Const. amend. VII.5 To avoid
conflict with this constitutional provision, issues in a single suit may only be tried
by different juries if they are “so distinct and separable . . . that a trial of [each] alone
may be had without injustice.” Gasoline Products Co. v. Champlin Refining Co.,
283 U.S. 494, 499 (1931). In the bifurcation context, this means that a court “must
not divide issues between separate trials in such a way that the same issue is
reexamined by separate juries.” In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293,
1303 (7th Cir. 1995), cert. denied, 516 U.S. 867 (1995); see also Blyden v. Mancusi,
186 F.3d 252, 268 (2d Cir. 1999) (“[I]ssues may be divided and tried separately, but
a given issue may not be tried by different, successive juries.”); In re Paoli R.R. Yard
PCB Litigation, 113 F.3d 444, 452 n.5 (3d Cir. 1997) (same). Bifurcating a case
5
The Seventh Amendment provides, in full:
In Suits at common law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved, and no fact tried by a jury, shall be
otherwise reexamined in any Court of the United States, than according to the rules
of the common law.
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into separate trials on liability and damages, however, does not run afoul of the
Seventh Amendment simply because separate juries may consider some of the same
evidence. The reexamination prohibition “is not against having two juries review
the same evidence, but rather [it is] against having two juries decide the same
essential issues.” Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 587 F. Supp. 1112, 1117 (D. Del. 1984); see also Houseman
v. U.S. Aviation Underwriters, 171 F.3d 1117, 1126 (7th Cir. 1999) (“While
[separate] juries can examine overlapping evidence, they may not decide factual
issues that are common to both trials and essential to the outcome.”). Separate trials
only violate the Seventh Amendment where they involve “interwoven” issues that
cannot be resolved without revisiting, and effectively re-deciding, the same factual
questions in each. See Gasoline Products, 283 U.S. at 500; see also Houseman, 171
F.3d at 1127.
In this case, the issues of causation and damages are not so “interwoven” that
they must be tried together, at least on the current record. In fact, the liability jury
will not be required to decide any issues concerning damages when considering
causation. Instead, on this record, the liability jury only need determine whether or
not all of the flooding experienced by Plaintiffs was caused by the failure of the
Kingsfield Road Dam. If the evidence presented at the liability trial leads the jury
to conclude that the Dam failure did not cause any of the flooding in the subject
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neighborhoods, or that it caused some but not all of the flooding, then Plaintiffs will
have failed to carry their burden and the matter will end. If the liability jury decides
in Plaintiffs’ favor, then class members will have the opportunity to proceed with
individual actions on the issue of damages (i.e., the financial impact from the amount
of water in each home). Importantly, the liability jury’s factual finding with respect
to causation will become the law of the case and thus will be removed from
consideration by subsequent juries. See Parks v. Poindexter, 723 F.2d 840, 844
(11th Cir. 1984) (observing that issues decided in first half of bifurcated trial become
law of the case, to which “issue preclusion or collateral estoppel” apply); see also In
re Innotron Diagnostics, 800 F.2d 1077, 1085 (Fed. Cir. 1986) (same). If there is a
damages phase, subsequent juries will not, as Defendants assert, “need to engage in
an in-depth examination of whether individual houses experienced . . . flooding that
was either caused or made more severe by the Dam’s failure.” ECF No. 98 at 20
(internal quotations omitted). The fact that the failure of the Dam caused all of the
flooding will have been decided already and Defendant will not be permitted to
reargue that question. See, e.g., Parks, 723 F.2d at 844; Innotron, 800 F.2d at 1085;
Rhone-Poulenc, 51 F.3d at 1303 (indicating that decision by first jury in bifurcated
case would bind subsequent juries). The subsequent juries’ sole task will be to
determine the amount of damage attributable to the flood waters in each plaintiff’s
home. This damages inquiry is legally and factually independent of causation, which
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focuses on how the flood waters came to be in Plaintiffs’ homes in the first place.
Because the different juries will be asked distinct questions, and because the
damages juries will not need to reexamine the conclusions of the liability jury, the
Seventh Amendment will not be violated by bifurcation of causation and damages
in this case.
In sum, the Court concludes that, based on the current record, Plaintiffs have
shown that the Rule 23 criteria are satisfied and that certification of a liability-only
class is appropriate in this case. A bifurcated class action is superior to other
available methods for the fair and effective adjudication of this matter—separate
trials will reduce jury confusion, avoid undue prejudice to both sides, expedite the
date of the liability trial and possibly avoid additional expenses if damages discovery
and trials become unnecessary.
Accordingly, it is ORDERED that:
1.
Defendant’s Motion for Reconsideration, ECF No. 97, is DENIED.
2.
Within seven days of the date of this Order, the parties are directed to
notify the Court of their respective positions on the joint proposed
notice that was filed on April 7, 2017.6
6
In the Joint Notice of Filing Proposed Class Notice, the parties stated that they “are in
general agreement” with the proposed notice that was provided. See ECF No. 96 at 2. At that
time, Defendant asked that no class notice be approved or issued until after the Court ruled on the
motion for reconsideration. Id. Plaintiffs were unable to state whether they agreed with
Defendant’s position on the class notice. Id. at 2-3. The Court now requires clarification of the
parties’ final positions on the proposed notice, in light of the instant ruling.
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3.
By separate order, the Court will schedule a case management
conference to discuss the progression of the litigation going forward.
DONE and ORDERED on this 21st day of May, 2017.
M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE
Case No. 3:14cv445/MCR/CJK
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