Crutchfield et al v. Sewerage & Water Board of New Orleans et al

Filing 363

ORDER & REASONS denying 333 Motion to Certify Class; 350 Motion to Strike; & 351 Motion to Strike. Signed by Judge Martin L.C. Feldman on 6/25/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RONDA CRUTCHFIELD, ET AL.

CIVIL ACTION

v.

NO. 13-4801

SEWERAGE & WATER BOARD OF

SECTION "F"

NEW ORLEANS, ET AL.

ORDER AND REASONS
Before the Court are three motions:

(1) the plaintiffs'

renewed motion to certify class; (2) the defendants' joint motion
to strike expert affidavits, reports, and testimonies and exhibits
in support of the motion to certify class; and (3) the defendants'
joint motion to strike testimony of plaintiffs in support of the
motion to certify class.
first.

The motions to strike are considered

For the reasons that follow, the motions to strike are

DENIED, and the motion to certify class is also DENIED.
Background
The putative class plaintiffs raise claims of damage stemming
from construction of an intake canal under Dwyer Road in the Ninth
Ward of New Orleans.
Southeastern

The Dwyer Road Intake Canal is part of the

Louisiana

Urban

Flood

Control

Project

(SELA),

a

federal partnership with state and local Louisiana governments
authorized by Congress in 1996 and administered by the U.S. Army

1

Corps of Engineers.
PL

104-303,

See Water Resources Development Act of 1996,

October

12,

1996,

110

Stat

3658,

§

533.

Upon

completion, the Dwyer Intake Canal will be 7,000 feet long and 14
to 16 feet deep, and run from the Dwyer Road Pumping Station,
located at the intersection of Dwyer and Jourdan Roads, to the St.
Charles Canal, near the intersection of Dwyer and Camelia Court.
The

plaintiffs

allege

that

the

Sewerage

&

Water

Board

exercised oversight and control over the project in accordance with
its statutory mandate.

La. Rev. Stat. 33:4081.

It is uncontested

that Hill Brothers Construction, Inc. acted as general contractor
for construction of the canal under a contract with the Corps.
Construction began in September or October of 2008 and continued
for several years; the project still remains unaccepted by the
government.

The project allegedly has required excavation of

110,000 cubic yards of soil to an average depth of 18 feet, which
in turn has required a comprehensive dewatering effort to keep
ground and rain water from filling excavated areas.

Thus, a

retaining structure 25 feet wide and 18 feet deep was built along
the entire project.

In addition to excavation, the project is

alleged to have involved significant pile-driving.

According to

plaintiffs, 86,000 square feet of sheet piling, 178,000 linear feet
of timber, and 17,250 linear feet of steel pipe piling were driven
into the ground at the project site.
During the project, defendants collected and monitored data on

2

vibrations and groundwater levels.

The purpose of this effort was

to allow the S&WB to investigate anticipated damages claims by
property owners.

Plaintiffs and putative class representatives

filed this action in the Orleans Parish Civil District Court on
August 13, 2012, against the S&WB among others, claiming that
excavation, dewatering, and pile-driving related to the project had
resulted and would result in damage to their immovable property,
which, in turn, had caused mental anguish and emotional distress.
The theories of recovery pleaded were: (1) damage caused by a thing
in custody under La. Civ. Code arts. 2317 and 2317.1; (2) strict
liability for ultrahazardous activity under La. Civ. Code art. 667;
(3) negligent damaging and misrepresentation under La. Civ. Code
art. 2315; (4) inverse condemnation under Article I, section 4 of
the Louisiana Constitution; (5) failure to protect from vice, ruin,
or defect under La. Civ. Code arts. 662, 667, and 668; and (6)
intentional misrepresentations and mistreatment before and during
construction.
In May 2013, the S&WB filed a third-party complaint against
Hill Brothers, claiming that Hill Brothers was responsible for the
construction

activities

that

allegedly

damaged

plaintiffs'

property, and that, in doing so, Hill Brothers had breached its
construction contract.

Although plaintiffs originally named Hill

Brothers and other private contractors in their original damages
petition, they moved to dismiss them voluntarily without prejudice

3

in early September 2012.
Hill Brothers removed this action on June 14, 2013, and
answered the S&WB's third-party complaint with several affirmative
defenses.
The plaintiffs first filed a motion to certify class in
another section of this Court almost two years ago.

The Court

subsequently granted a motion to continue the motion's submission
date and the plaintiffs' request for pre-certification discovery.
A year later, in January 2015, the plaintiffs renewed their motion
to certify class action.

But shortly thereafter, Judge Berrigan

recused herself from the case and it was transferred to this
section.

This Court, in attempt to start anew, denied without

prejudice

the

motion

to

certify

and

cancelled

unscheduled hearing that Judge Berrigan had granted.

the

as-yet-

In that same

Order, the Court granted the plaintiffs leave to submit a renewed
motion

to

certify,

"along

with

a

supported

request

for

an

evidentiary hearing or oral argument, should they deem either
proper."1

The Court also instructed the plaintiffs to submit,

along with their renewed motion, all exhibits that they wished the
Court to consider. The plaintiffs filed their motion and requested
oral argument, which was granted; a request for a hearing was never

1

See Order dated March 16, 2015.
4

made.2
The plaintiffs seek to define the class as:
All property owners and residents who owned immovable
property or resided within 1,000 feet to the north and
south of Dwyer Road from Jourdan Road to Tulip Street,
New Orleans, Louisiana 70126, during the time period of
September 9, 2008 to the present and continuing until the
Dwyer Intake Canal project is fully completed and
accepted.
The defendants oppose class certification and move to strike
several plaintiffs' exhibits.
I. Motion to Strike Expert Exhibits
A.
Rule 702 was enacted in response to the United States Supreme
Court's decisions in Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579 (1993), and Kuhmo Tire v. Carmichael, 526 U.S. 137 (1999),
which held that before an expert is allowed to testify, the trial
court must assess the reliability of the methodology of the
proposed expert and the relevance of the testimony to the facts at
issue.

Legier & Materne v. Great Plains Software, Inc., No. 03-

0278, 2005 WL 2037346 at *1 (E.D. La. Aug. 3, 2005) (Duval, J.).
Rule 702 provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence

2

In response to the defendants' motions to strike their
evidence, the plaintiffs repeatedly attribute evidentiary defects
to the lack of a hearing and the Court's "deci[sion] that class
certification would be submitted on the briefs."
The Court
welcomed a request for an evidentiary hearing and heard oral
argument upon the plaintiffs' request.
5

or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably
to the facts of the case.
Fed. R. Evid. 702.
Under Daubert, the proponent of the evidence must first prove
that the offered testimony is based on sufficient facts or data.
See Fed. R. Evid. 702.

Next, the party must "demonstrate that the

expert's findings and conclusions are based on the scientific
method, and, therefore, are reliable. . . . The expert's assurances
that he has utilized generally accepted scientific methodology is
insufficient."

Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276

(5th Cir. 1998) (en banc).
prove

the

evidence.

testimony's
Id.

In

The proponent of the evidence must

reliability

Daubert,

the

by

a

preponderance

Supreme

Court

of

the

identified

a

non-exclusive list of factors for a district court to consider in
determining reliability: (1) whether the theory has been tested;
(2)

whether

the

theory

has

been

subject

to

peer

review

and

publication; (3) the known or potential rate of error; and (4) the
general acceptance of the methodology in the scientific community.
Daubert, 509 U.S. at 593-95.
methodology, not conclusions.

A district court must focus on
In Kumho Tire, the Court cautioned

that the district court must ensure "that an expert, whether basing
testimony

upon

professional

studies
6

or

personal

experiences,

employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field."
Kumho Tire, 526 U.S. at 152.

After the proponent of the expert

testimony has carried her burden of showing reliability, the party
must also prove the expert opinions' relevance.

That is, that the

experts' opinions have "a valid . . . connection to the pertinent
inquiry."

Daubert, 509 U.S. at 592.

At the certification stage, however, the district court does
not conduct a comprehensive Daubert review. Rather, the plaintiffs
need only show that their "expert onions contain no flaws that
would render them inadmissible as a matter of law: the methodology
must show some hallmarks of reliability, whether through peer
review or use of generally accepted standards or methods; the
expert must be qualified; and the opinion must have some probative
value for the issues of class certification.

In re Katrina Canal

Breaches Consol. Litigation, No. 05-4182, 2007 WL 3245438, at *12
(E.D. La. Nov. 1, 2007) (Duval, J.).

Comprehensive expert reports

that are required on the merits are not feasible at the Rule 23
stage.
B.
The defendants, who cite several cases that are inapplicable
to the extent that they concern comprehensive Daubert hearings at
trial or at a summary judgment stage, contend that the plaintiffs'
experts' testimonies fail "both the Daubert and the Daubert-lite

7

standards

required

for

admissibility."

The

Court

begins

by

underscoring that the full requirements of Daubert need not be met
at this stage, and any argument to the contrary is misplaced.
The defendants' primary complaint, it seems, is that the
experts have not yet gathered and applied to their methodologies
all of the data necessary to analyze causation, damages, and
typicality.

At this stage, however, the methodology, rather than

the results of its implementation, are at issue.

In re Katrina

Canal Breaches, 2007 WL 3245438, at *14 ("While Kilpatrick has not
yet reached the empirical investigation stage, certainly, his
report demonstrates that the mass appraisal technique is accepted
and can demonstrate commonality for purposes of computation of
damages. The Court must reiterate that it is accepting this expert
for purposes of demonstrating Rule 23 criteria; when and if this
matter goes to trial on the merits, the report which by then should
encompass all the empirical data necessary to create a model to
demonstrate damages must be present.").
There is ample evidence that the plaintiffs' experts are
qualified and no assertion that they are not; thus, the remaining
questions are whether (1) the methodology shows some hallmarks of
reliability, whether through peer review or use of generally
accepted standards or methods; and (2) the opinion has some
probative value for the issues of class certification.

The

defendants challenge the methodologies of Dr. Peter Cali and Dr.

8

Ghose-Hajra, as well as the Gurtler Brothers, and the methodology
and probative value of Dr. Jimmie Thorns's stigma analysis.
The Court finds that at this stage, the methodologies of Drs.
Cali and Hajra and the Gurtler Brothers are not insufficient as a
matter of law. In fact, they implement many of the same techniques
as do the experts for the defendants.

Defense experts Leonard

Quick, Ralph Junius, and David Lourie testified that they would use
the same engineering principles, methodology, and equations as Dr.
Cali.

Lourie and Quick would also use the same principles and

methodology as Hajra to determine the properties that experienced
excessive vibration levels from pile driving.

Defense experts use

the same types of maps, property databases, satellite imagery, and
repair cost estimating software as that chosen by the Gurtler
Brothers.

The question is not whether the experts' reports will

resolve this case in favor of the proposed class; the question,
rather, is whether the methodologies put forth by the plaintiffs'
experts "show some hallmarks of reliability."

Because they use

generally accepted standards or methods–those used by defense
experts as well–they are sufficient at the Rule 23 stage.
As

to

Thorns's

stigma

opinion,

challenges

to

which

the

plaintiffs do not respond, the Court agrees that his opinion, as it
stands now, does little to assist the Court. Thorns testifies that
buyers are less likely to want to buy property in the affected
neighborhood because of the lengthy and damaging construction

9

project.

Perhaps true.

Perhaps raw advocacy speculation.

At the

merits stage, however, Thorns purports to offer an analysis of the
economic effects of the construction project, as he has done in
other litigation.

The Court does not exclude his opinion at this

stage, though it notes that it clearly does not further the Court's
analysis in its current form.
Finally, the defendants challenge the materials on which the
various

experts

hearsay.

rely,

submitting

that

they

are

inadmissible

But experts are allowed to rely on such evidence.

Brickley v. Scattered Corp. (In re H&M Oil & Gas, LLC), 511 B.R.
408 (Bankr. N.D. Tex. 2014); Sinclair v. State Farm Fire & Cas.
Co., No. 09-447, 2010 WL 8150678) (E.D. La. Feb. 10, 2010).
Moreover, "there is less need for the [evidentiary] gatekeeper to
keep the gate when the gatekeeper is only keeping the gate for
himself."

Payton v. Entergy Corp., No. 12-2452, 2013 WL 522712

(E.D. La. Oct. 21, 2013).

Thus, the defendants' motion to exclude

certain expert testimony and exhibits is hereby DENIED.3
II. Motion to Strike Plaintiffs' Testimony
The defendants move to strike the plaintiffs' testimony that
is attached as exhibits to the motion to certify class.

The five-

page memorandum in support asks the Court to exclude, among other

3

The Court notes that the defendants rely on the weaknesses
of the experts' contentions in their arguments against class
certification. The question raised by the defendants' motion is
whether their testimony is admissible, not whether it should be
accepted as the absolute truth.
10

evidence, the deposition testimony and affidavits of six plaintiffs
in their entirety.

Without addressing each exhibit's allegedly

inadmissible content, the defendants instead simply list exhibit
numbers and state that they include hearsay, speculation, and facts
outside of the affiant's personal knowledge.
some

of

the

inadmissible

testimony
evidence,

or
and

affidavits
to

the

testimony is not relied upon.

Select portions of

may

extent

include

that

is

possibly
true,

the

In fact, most of it is not

persuasive anyway; the Court cannot base class certification on a
plaintiff's statement that her neighbors told her their houses were
damaged.

Such a story is at best self-serving.

But, nonetheless,

the defendants' sweeping request before the Court is overly broad
and thus denied.4
III. Motion to Certify Class Action
A.
The class action is "an exception to the usual rule that
litigation is conducted by and on behalf of the individual named
parties only."
In

order

to

Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979).
justify

a

departure

from

that

rule,

"a

class

representative must be part of the class and 'possess the same
interest and suffer the same injury' as the class members."

East

Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403

4

The request is so broad, in fact, that it seeks to exclude
on the basis of hearsay a photo that does not purport to make any
assertion and thus is not hearsay.
11

(1977) (quoting Schlesinger v. Reservists Comm. to Stop the War,
418 U.S. 208, 216 (1974)).

Rule 23 of the Federal Rules of Civil

Procedure provides, in pertinent part:
(a) Prerequisites. One or more members of a class may sue
or be sued as representative parties on behalf of all
members 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) Types of Class Actions. A class action may be
maintained if Rule 23(a) is satisfied and if: . . .
(3) the court finds that the questions of law or
fact common to class members predominate over any
questions affecting only individual members, and
that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy. The matters pertinent to these
findings include:
(A) the class members' interests in individually
controlling the prosecution or defense of separate
actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by or
against class members;
(C)
the
desirability
or
undesirability
of
concentrating the litigation of the claims in the
particular forum; and
(D) the likely difficulties in managing a class
action.
12

Fed. R. Civ. P. 23(a), (b)(3).
i. Rule 23(a)
Rule 23(a) ensures that the named plaintiffs are appropriate
representatives of the class whose claims they wish to litigate.
The Rule's four requirements—numerosity, commonality, typicality,
and adequate representation—"effectively 'limit the class claims to
those fairly encompassed by the named plaintiff's claims.' "
General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156,
102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (quoting General Telephone
Co. of Northwest v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 64
L.Ed.2d 319 (1980)).
Numerosity.

Rule 23(a) contains an implied requirement that

the class be adequately defined and clearly ascertainable by
reference to objective criteria. Union Asset Mgmt. Holding A.G. v.
Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012); In re Fosamax Prods.
Liab. Litig., 248 F.R.D. 389, 395 (S.D.N.Y.2008).

In order to

satisfy Rule 23(a)(1)'s numerosity requirement, the mover typically
must show 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).
Commonality.

Commonality under Rule 23(a)(2) requires "that

all of the class member's claims depend on a common issue of law or
fact whose resolution 'will resolve an issue that is central to the
validity

of

each

one

of

the

[class
13

member's]

claims

in

one

stroke.'" M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 840 (5th
Cir. 2012) (quoting Wal–Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541,
2551 (2011)) (emphasis omitted).

The Supreme Court's recent

decision in Wal-Mart "heightened the standards for commonality."
Id.

at

839.

After

Wal–Mart,

Rule

23(a)(2)'s

commonality

requirement demands more than the presentation of questions that
are common to the class because "'any competently crafted class
complaint

literally

raises

common

questions.'"

Id.

(quoting

Richard A. Nagareda, Class Certification in the Age of Aggregate
Proof, 84 N.Y.U. L. REV. 97, 131–32 (2009)).

Further, the members

of a proposed class do not establish that "their claims can
productively be litigated at once," merely by alleging a violation
of the same legal provision by the same defendant, as plaintiffs do
here regarding article 667 of the Louisiana Civil Code and strict
liability issues.

Id. ("[T]he mere claim by employees of the same

company that they have suffered a Title VII injury, or even a
disparate-impact Title VII injury, gives no cause to believe that
all

their

claims

can

productively

be

litigated

at

once.").

Instead, the Court held that the claims of every class member must
"depend upon a common contention . . . of such a nature that it is
capable of classwide resolution—which means the determination of
its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke." Id.; see id.
("'What matters to class certification . . . is not the raising of

14

common 'questions'—even in droves—but, rather, the capacity of a
classwide proceedings to generate common answers apt to drive the
resolution of the litigation.'") (quoting Nagareda, 84 N.Y.U. L.
REV. at 132).

Thus, the commonality test is no longer met when the

proposed class merely establishes that "there is 'at least one
issue whose resolution will affect all or a significant number of
the putative class members.'"

Forbush, 994 F.2d at 1106 (emphasis

added) (citation omitted). Rather, Rule 23(a)(2) requires that all
of the class member's claims depend on a common issue of law or
fact whose resolution "will resolve an issue that is central to the
validity of each one of the [class member's] claims in one stroke."
Wal–Mart, 131 S.Ct. at 2551.
The Court further clarified that a trial court's obligation to
perform a "rigorous analysis" before concluding that a class has
satisfied the requirements of Rule 23(a) "[f]requently . . . will
entail some overlap with the merits of the plaintiff's underlying
claim."

Id.;

see

Falcon,

457

U.S.

at

160

("[T]he

class

determination generally involves considerations that are enmeshed
in the factual and legal issues comprising the plaintiff's cause of
action. . . . [S]ometimes it may be necessary for the court to
probe

behind

the

pleadings

before

coming

to

rest

on

the

certification question.") (internal citation and quotation marks
omitted).

Lastly, after the Court concluded that "proof of

commonality necessarily overlap[ped] with the [purported class

15

members'] merits contention that Wal–Mart engaged in a pattern or
practice

of

discrimination,"

the

Court

probed

beyond

the

plaintiffs' pleadings in an effort to decide if an "examination of
all the class member's claims for relief will produce a common
answer to the crucial [merits] question why was I disfavored."
Wal–Mart, 131 S.Ct. at 2552. In doing so, the Court "focus[ed]" on
dissimilarities among the proposed class members "in order to
determine whether there is even a single common question."

Id. at

2556 (internal citation and quotation marks omitted); see id. at
2551 ("Dissimilarities within the proposed class are what have the
potential to impede the generation of common answers.") (quoting
Nagareda, 84 N.Y.U. L. REV. at 132).
Typicality. The typicality requirement under Rule 23(a)(3) is
not demanding; "[i]t focuses on the similarity between the named
plaintiffs' legal and remedial theories and the theories of those
whom they purport to represent."

Mullen v. Treasure Chest Casino,

LLC, 186 F.3d 620, 625 (5th Cir. 1999), abrogated in part by,
Wal–Mart, supra, as recognized in M.D. ex rel. Stukenberg, 675 F.3d
at 839–40.
claims.

"Typicality does not require a complete identity of

Rather,

the

critical

inquiry

is

whether

the

class

representative's claims have the same essential characteristics of
those of the putative class.
course

of

conduct

and

share

If the claims arise from a similar
the

same

differences will not defeat typicality."

16

legal

theory,

factual

James v. City of Dallas,

254 F.3d 551, 571 (5th Cir.2001), abrogated in part by, Wal–Mart,
supra, as recognized in M.D. ex rel. Stukenberg, 675 F.3d at
839–40; see also Mullen, 186 F.3d at 625 ("Any variety in the
illnesses the Named Plaintiffs and the class members suffered will
not affect their legal or remedial theories, and thus does not
defeat typicality.").

Courts have held that "[t]he major concern

under Rule 23(a)(3) is if unique defenses against a named plaintiff
threaten to become the focus of the litigation," and that the key
to the typicality inquiry is "whether a class representative would
be required to devote considerable time to rebut the Defendants'
claims."

In re Enron Corp. Secs. Litig., 529 F.Supp.2d 644, 674

(S.D. Tex. 2006) (citation and quotation omitted).
Adequacy

of

Representation.

Rule

23(a)(4)'s

adequacy

requirement "encompasses class representatives, their counsel, and
the relationship between the two."

Berger v. Compaq Computer

Corp., 257 F.3d 475, 479 (5th Cir. 2001).

Thus, "the adequacy

requirement mandates an inquiry into (1) the zeal and competence of
the representatives' counsel, and (2) the willingness and ability
of the representatives to take an active role in and control the
litigation and to protect the interests of the absentees."

Id.

(citations, quotations, and alterations omitted). Finally, "'[t]he
adequacy inquiry also serves to uncover conflicts of interest
between

the

represent.'"

named
Id.

plaintiffs

and

the

class

they

seek

to

at 479–80 (quoting Amchem Prods., Inc. v.

17

Windsor, 521 U.S. 591, 625 (1997)).
ii. Rule 23(b)(3)
Rule 23(b)(3) requires a party seeking class certification to
"demonstrate 'both (1) that questions common to the class members
predominate over questions affecting only individual members' and
(2) that class resolution is superior to alternative methods for
adjudication of the controversy.'"

Steering Comm. v. Exxon Mobil

Corp., 461 F.3d 598, 600 (5th Cir. 2006) (quoting Bell Atl., 339
F.3d at 301).
demanding.

The predominance and superiority requirements are

Funeral Consumers Alliance, Inc. v. Serv. Corp. Int'l,

695 F.3d 330, 347-48 (5th Cir. 2012).
Predominance.

Under Rule 23(b)(3), "common questions must

predominate over any questions affecting only individual members;
and class resolution must be superior to other available methods
for the fair and efficient adjudication of the controversy.
adding

'predominance'

and

'superiority'

to

In
the

qualification-for-certification list, the Advisory Committee sought
to cover cases in which a class action would achieve economies of
time, effort, and expense, and promote uniformity of decision as to
persons similarly situated, without sacrificing procedural fairness
or bringing about other undesirable results."
615

(citations,

quotations,

and

Amchem, 521 U.S. at

alterations

omitted).

The

predominance inquiry ordinarily "requires the court to assess how
the matter will be tried on the merits, which 'entails identifying

18

the substantive issues that will control the outcome, assessing
which issues will predominate, and then determining whether the
issues are common to the class.'"

In re Wilborn, 609 F.3d 748, 755

(5th Cir. 2010) (quoting O'Sullivan v. Countrywide Home Loans,
Inc., 319 F.3d 732, 738 (5th Cir. 2003)).

"[C]ommon issues must

constitute a significant part of the individual cases."
186 F.3d at 626.
issues.

Mullen,

This is a matter of weighing, not counting,

Id.

Superiority.

Rule 23(b)(3) also requires that the Court make

a finding that "a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy."
Fed. R. Civ. P. 23(b)(3).

In examining the superiority of a class

action to other forms of relief, a court should consider "(A) the
interests of 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
a particular forum; [and] (D) the difficulties likely to be
encountered in the management of the class action." Id.
Circuit has

The Fifth

observed the "interrelationship between predominance

and superiority," Steering Committee, 461 F.3d at 604.
The Advisory Committee's notes to Rule 23(b)(3) comment on the
impact of the predominance inquiry on superiority in mass tort

19

cases:
A "mass accident" resulting in injuries to numerous
persons is ordinarily not appropriate for a class action
because of the likelihood that significant questions, not
only of damages but of liability and defenses to
liability, would be present, affecting the individuals in
different ways. In these circumstances an action
conducted nominally as a class action would degenerate in
practice into multiple lawsuits separately tried.
Fed. R. Civ. P. 23(b)(3) advisory committee's note (citation
omitted); see also

Castano, 84 F.3d at 745 n.19 (discussing

advisory committee note and citing Georgine v. Amchem Products,
Inc., 83 F.3d 610, 627–28 (3d Cir. 1996); In re American Medical
Sys., 75 F.3d 1069, 1084–85 (6th Cir. 1996)).
B.
This case is not suitable for class certification.

Even

assuming that the Rule 23(a) requirements of numerosity,5 adequacy
of representation,6 and typicality7 are met, the Court cannot find

5

The plaintiffs contend that the proposed geographical area
contains 1,054 houses and that the S&WB received more than 80
complaints about the construction project. The defendants respond
that the plaintiffs have been able to identify fewer than 30
complaints, and that some of those are unrelated to the litigation.
Because the numerosity question is by far the issue that least
concerns the Court, the Court will assume for purposes of this
motion only, that the plaintiffs are correct and there are hundreds
of potential class members.
6

The defendants raise serious questions as to the ability of
the potential class representatives to represent the class. Some
did not attend their scheduled depositions and do not fully
understand the nature of the lawsuit or the damages to their
houses.
7

The houses in the neighborhood vary in size, age, and the
extent of post-Katrina repairs. They also incurred various amounts
20

that the remaining 23(a) requirement–commonality–is satisfied, nor
the Rule 23(b)(3) demands of predominance and superiority.
Commonality. The plaintiffs contend that the common questions
of law and fact sufficient to support class certification include:
(1) the actions or inactions of the defendants; (2) the ultrahazardous nature of pile driving; (3) the magnitude and duration of
vibrations; (4) dewatering and soil subsidence caused by the
defendants' conduct; (5) the defendants' policies and delays in
investigating claims and repairing property damage; and (6) the
noise and disturbances that allegedly caused property damage and
emotional distress.

The problem, however, is that even if this

Court were to find that some of the defendants are liable to some
property owners for ultra-hazardous pile driving, and that perhaps
others are liable for damage-causing dewatering, that is only the
very beginning; the key issue of causation remains varied and
unresolved.

Resolving each of the plaintiffs' proposed common

issues in their favor does not resolve an issue that is "central to
the validity" of each of the class members' claims "in one stroke."
Wal-Mart, 131 S.Ct at 2551.
The plaintiffs' own experts expose that class-wide causation
determinations

are

not

practicable.

Not

all

of

the

houses

necessarily react to vibrations or dewatering in the same way, and
it would be difficult to distinguish between damages attributable

of damage as a result of the five-year construction project.
21

to vibrations or dewatering. It is in all likelihood true that the
five-year construction project damaged several houses in parts of
the project area in varying ways, to different extents, and because
of acts by different defendants. But questions of causation cannot
be resolved in one stroke, and an answer in the plaintiffs' favor
as to any of the plaintiffs' alleged common issues not does result
in a resolution of any key issue on a class-wise basis.

The

plaintiffs submit that because the defendants knew that their
activities would cause damage and did in fact cause damage,
causation has been established.
true.

In a general sense, that may be

But that an expansive construction project caused varying

degrees and types of damage to some houses does not mean that the
claims of each resident should be certified as a class action.

To

determine causation for each homeowner will require a finding of
individual causation.
Predominance.

The fatal defect in this case that renders it

inappropriate for class certification is that individual questions
will predominate over class-wide concerns.

Predominance demands

central questions "capable of class-wide determination," using
class-wide, as opposed to individualized, evidence. MP Vista, Inc.
v. Motiva, 286 F.R.D. 299, 303 (E.D. La. Sept. 20, 2012).

This

requirement is necessary to prevent the class from degenerating
into a series of mini-trials. As with the question of commonality,
specific

causation

similarly

defeats

22

the

indispensability

of

predominance.8

Each homeowner will have to show that the damage to

their house is a result of the actions of particular defendants,
and the defendants will counter with their shoddy post-Katrina
repairs.

Relevant to the inquiry will also be the age, size,

structure, and distance from the construction site and vibrationheavy area of each specific house.

As in Fulford v. Transport

Serv. Co., Nos. 03-2472, 02-2636, 2004 WL 1208513, at *3 (E.D. La.
May 27, 2004), a putative class action involving a chemical spill
from a tank truck, individual questions predominate:
Specific causation, that is, whether hydrogen sulfide
actually caused the damages Plaintiffs allege it caused,
on the other hand, will be a highly individualized issue,
as will be damages. Plaintiffs will be required to show
that it is the hydrogen sulfide that actually caused the
damages they claim to individually suffer from.
Plaintiffs will need to present evidence from at least
one medical doctor for every individual Plaintiff who is
familiar with that Plaintiff to make this showing.
Defendants will likely counter each individual's doctor's
opinion with another medical doctor also familiar with
that individual. Each individual's medical history will
also play an important role. So too will the
circumstances of each Plaintiff's exposure to hydrogen
sulfide, such as where they were and whether other
environmental agents capable of causing Plaintiffs'
maladies were present at that Plaintiff's location and,
if so, which ones.

8

The parties also dispute the effect of individualized damage
calculations. To salvage their efforts to construct a class, the
plaintiffs recommend a bifurcated trial, with a separate damages
determination in which an expert can create a formula to calculate
damages for each property owner. The defendants respond that such
a formula is merely speculative at this point. Either way, the
issue that most concerns the Court is that a separate damages
trial–whether with an adequate formula or not–does not answer the
very central and critical question of specific causation.
23

Here, as in Fulford, "[t]he issues of specific causation and
damages will require a huge amount of time and effort by the Court
to assess the merits of each individual's claim."
Defendant

Blue

predominance only.

Iron

responds

Id. at *4.

separately

to

discuss

It submits that because the defendants are not

alleged to have acted in a conspiracy, they are–if liable at
all–subject to joint and divisible liability.
2324(B).

La. Civ. Code art.

Apportionment of fault among the defendants would thus

predominate over class-wide issues.

The S&WB is the owner of the

canal; Hill Brothers was the prime contractor with the Corps and
performed all the driving of timber piling, round pipe pilings, and
concrete pilings; Blue Iron installed and extracted metal sheet
pilings; Griffin designed and installed the dewatering system;
Bhate is alleged to have provided geotechnical services and aid;
and the subcontractors, in particular, performed work that had
little, if any, overlap among them.

Blue Iron submits that

apportioning fault on a property-by-property basis would devolve
into a convoluted three-step process: first each property owner
would

need

to

establish

that

his

property

was

damaged

by

construction activities; next they would need to establish whether
the damage was caused by dewatering or construction vibrations; and
finally, if a property owner proved that damage was caused by
vibrations generally, an inquiry would have to be done to determine
the source of those vibrations (some pile-driving was done by Blue

24

Iron but some by Hill Brothers).
instruct

what

vibration

As of yet, the record fails to

locations

are

attributable

to

which

defendant.
Unlike In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014),
where the court affirmed class certification, the damage-causing
conduct at issue here is not a single, catastrophic, central event,
like the blowout of a well in the Gulf of Mexico.
Horizon

court

was

not

asked

to

consider

The Deepwater

whether

individual

plaintiffs were damaged by many separate events over a long period
of time.
Superiority.

The plaintiffs submit that class action is

superior to individual lawsuits because "[i]f plaintiffs establish
that S&WB, Hill Brothers or Blue Iron are absolutely liable for
pile driving, class members would only have to prove the amounts of
their damages."

(citations omitted).

Class certification "will

allow predominating common factual and legal issues regarding piledriving, dewatering and construction and general causation for the
resulting damages to the plaintiffs' homes to be determined in a
single lawsuit," the plaintiffs contend.

Thus, the plaintiffs'

argument boils down to this: if the other Rule 23 factors were met,
class certification would be superior for the reasons it is
typically superior in an appropriate case.

The defendants respond

that the "central" issue on which the plaintiffs hang their
hat–article 667 strict liability for pile driving–would affect very

25

few properties, if any, because of the short reach within the
project area of the resulting vibrations.

And the class-wide

effect from dewatering remains at best obscure.

Thus, there is no

common set of evidence, and no efficiencies will be gained from a
class action.
The

Court

agrees

with

the

defendants.

There

is

no

substantiated or persuasive submission that a class action is
preferable

to

several

consolidated

cases,

where

each

case

necessarily turns on its own particular evidence of specific
causation and damages.
Accordingly, for the foregoing reasons, IT IS ORDERED that the
plaintiffs' motion to certify class action and the defendants'
motions to strike are hereby DENIED.9

New Orleans, Louisiana, June 25, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

9

Plaintiffs, for the most part, and defendants, to some
extent, conflate preliminary class certification with trial merits.
That some residents in the project area might have grievances
similar to other area residents, does not equate with satisfying
Rule 23's mandate.
26