Sanders et al v. International Paper Company et al
Filing
142
ORDER & REASONS that Plaintiffs' 119 Motion to Certify Class is GRANTED. IT IS FURTHER ORDERED that Shawn C. Reed and Jonathan C. Pedersen be and hereby are APPOINTED as Co-Lead Class Counsel and Co-Lead Liaison Counsel. IT IS FURTHER ORDERE D that a Plaintiffs' Steering Committee, comprised of Shawn C. Reed; Jonathan C. Pedersen; D. Douglas Howard, Jr.; William H. Arata; and Thomas M. Discon be and hereby is ESTABLISHED. IT IS FURTHER ORDERED that Plaintiffs' provide the Court with a proposed notice by no later than Monday, May 27, 2019. Defendant may file its objection thereto, if any, by no later than Monday, June 3, 2019. Signed by Judge Eldon E. Fallon on 5/21/19. (dno)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHIRLEY SLOCUM, ET AL.
CIVIL ACTION
VERSUS
NO. 16-12563
INTERNATIONAL PAPER COMPANY, ET AL.
DERRICK SANDERS, ET AL.
NO. 16-12567
VERSUS
INTERNATIONAL PAPER COMPANY, ET AL.
BRENT JARRELL, ET AL.
NO. 16-13793
VERSUS
INTERNATIONAL PAPER COMPANY, ET AL.
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
1
Initially, Plaintiffs filed claims against the mill manager, Bernard F. Chascin; however, these claims were
dismissed as they were not cognizable under Louisiana law.
1
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.
II.
PRESENT MOTION
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,
2
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.
III.
LAW AND ANALYSIS
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
2
Defendant also took issue with the proposed class scope argued in Plaintiffs’ motion. The Court held a status
conference with the parties, stating that the geographic scope of black liquor plume will be established by the finder
of fact, not the Court in its ruling on class certification.
3
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
3
Although Plaintiffs do not mention it in their motion seeking class certification, in their complaint,
Plaintiffs also seek certification of several subclasses:
1. Individuals residing or otherwise situated in close proximity to the facility that sustained
damage to movable and immovable property such as window frames, screens, siding, doors,
shutters, storage buildings, lawn; furniture grills, and equipment, bicycles, children's toys,
automobiles, motorcycles, vegetation, gardens and flower beds, shrubs, grass and trees and other
items of property as the result of the discharge or release at issue
2. Individuals who sustained personal injuries from and/or exposure to Black Liquor as the
result of physical contact or ingestion of the contaminant droplets and/or air containing the
substances as the result of the discharge or release; and/or
3. Individuals who experienced and continue to experience emotional distress as the result
of the discharge(s) or release(s) at issue and the conduct of defendants in failing to sufficiently
advise the public and potentially injured individuals regarding the chemical composition of Black
Liquor after the June 10, 2015 discharge and release which is known by the Class Members from
personal experience with past release or discharges of Black Liquor to be a caustic and corrosive
substance that causes damage to property, wildlife and burning of the skin and other exposed body
parts.
Id. at 9–10.
4
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
5
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
6
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
4
On November 4, 2016, the Court granted in part Defendant’s motion to dismiss. R. Doc. 30. Among the
dismissed claims was Plaintiffs’ claims for emotional distress. Id. at 11. Notably, however, the Court did not dismiss
claims Plaintiffs sustained emotional damages related to their property claims, as under Louisiana law, plaintiffs
may recover emotional damages related to property claims when “the property was damaged by activities [that]
amount to a continuous nuisance.” Id. (quoting Johnson v. Orleans Par. Sch. Bd., 2006-1223 (La. App. 4 Cir.
1/30/08), 975 So. 2d 698, 711, writ denied, 2008-0607 (La. 6/27/08)).
7
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) proof that the defendant's conduct was legal
cause of plaintiff's injuries (the scope of liability element); and (5) proof of actual damages (the
damages element). Id.
a. Duty
Plaintiffs allege Defendant had a “duty to maintain, mitigate, monitor, inspect, remediate,
and/otherwise prevent foreseeable hazardous conditions such as exposure of Plaintiffs and Class
Members who are in close proximity to the mill and other similarly situated individuals.” R. Doc.
1-1 at ¶ 71. Plaintiffs further allege that “[a]t all times relevant hereto both prior to and since
June 10, 2015, Defendants had an affirmative duty to protect the Plaintiffs, Class Members and
the public as well as its neighbors who reside or are otherwise situated in close proximity .to the
Bogalusa Paper Mill, and negligently failed to do so.” Id. at ¶ 72. Plaintiffs allege Defendant
owed them a duty, and Plaintiffs’ allegations make clear that the duty the allege Defendant owed
each of them is of the same nature. See Samuel v. United Health Servs., No. 06–7234, 2010 WL
2428107, at *6–7 (E.D. La. June 4, 2010) (noting that class certification was inappropriate, in
8
part, because the duty the defendant hospital “owed to a patient clearly varie[d] in each case
depending on the specific needs of that patient”). Thus, whether Defendant owed Plaintiffs a
duty of care and the level of that duty are issues that predominate over individualized inquiries.
b. Breach
In Samuel v. United Health Services, the plaintiffs sought to certify the following class:
All persons who sustained injury and/or damage, including but not limited to,
personal injury or wrongful death, as a result of unreasonably dangerous
conditions and/or defects in and/or on the premises of UHS on or about August
29, 2005, and/or as a result of the failure of UHS to attain, maintain, and/or
provide an adequate means of transportation to timely and/or safely move persons
off its premises in the wake of Hurricane Katrina.
2010 WL 2428107, at *3. The Court denied the motion, concluding that the issue of
breach did not predominate in that case. As the Court explained,
Each backup generator was positioned differently, and had a different ability to withstand
the Hurricane, as evidenced by the fact that each generator was rendered non-functional
for a different period of time. Whether the Defendants breached a duty to a plaintiff
would depend on the decisions that they made regarding the specific generator that was
designed to provide power to the wing in which he or she was located. The Court
therefore clearly could not resolve this issue on a universal basis, but would instead have
to conduct individual trials for at least all of the members of the patient subclass.
Id. at *8.
Unlike Samuel, in this case, Plaintiffs allege a single ruptured evaporator tank caused the
discharge of black liquor. R. Doc. 1-2 at 1. Thus, a determination of whether Defendant breached
the duty it owed to Plaintiffs requires the Court to evaluate Defendant’s conduct with respect to a
single evaporator tank. As a result, the Court concludes this issue predominates over
individualized inquiries.
c. Causation
The Fifth Circuit has viewed causation, and medical causation in particular, as a
significant barrier to a finding of predominance. See Exxon, 461 F.3d at 603. In Exxon, which
9
also concerned a single incident—a smoke plume caused by an oil fire at a chemical plant—the
Court recognized that different individuals would have been affected by the smoke plume in
different ways. As the Court explained:
[T]he causal mechanism for plaintiff’s injuries—alleged exposure or fear of
exposure to toxic substances—is not so straightforward. While it is certainly true
that the cause of the fire itself is an issue common to the class, each individual
plaintiff must meet his or her own burden of medical causation, which in turn will
depend on any number of the factors enumerated by the experts who testified at
the class certification hearing.
Id. Thus, where the plaintiffs in a proposed class action allege a variety of injuries as opposed to
injuries of a single type, the individualized determinations necessary to prove causation will
preclude a finding of predominance with respect to specific medical causation.
In this case, Plaintiffs allege a vast array of injuries. Some Plaintiffs have claims for
property damage. Others have claims for emotional distress in connection with their alleged
property damage. Still others have claims for personal injury. Moreover, each plaintiff comes to
the table with different pre-existing conditions and were presumably affected by the black liquor
in different ways. Finally, whether the black liquor caused a plaintiff’s property damage,
physical injury, or emotional distress requires an individualized evaluation of his or her claim.
Therefore, common issues cannot be said to predominate over the issue of medical causation,
and these issues must be dealt with during another phase of this litigation.
With respect to general causation, however, the issues of: (1) whether Defendant’s
negligence caused the incident, (2) what the chemical composition of black liquor is, and (3)
whether black liquor has the potential to cause the kinds of damages of which Plaintiffs complain
do predominate.
d. Damages
Finally, the Court need not spend a great deal of time discussing the damages in this case.
10
It is sufficient to recognize the varied nature of the damages claimed by different proposed
plaintiffs. This is not a case like Turner v. Murphy Oil USA, Inc., 234 F.R.D. 597 (E.D. La.
2006), in which all plaintiffs’ claims were limited to property damage. Clearly, the damages
analysis for a Plaintiff claiming property damage will be significantly different than it would be
for a plaintiff who asserts she suffered physical injuries or emotional distress. Thus, the damages
inquiry is riddled with questions that are unique to each Plaintiff. Thus, with respect to damages,
common questions cannot be said to predominate, and these issues must be resolved by
individual trials in another phase of this litigation, as more fully explained in section B of this
order.
ii.
Nuisance -- Louisiana Civil Code Articles 667–69
Under Louisiana Civil Code article 667, a property owner may not do any “work” that
deprives his neighbors of enjoying their own properties. La. Civ. Code art. 667. Article 668
provides that while property owners can use their land as they please, they cannot “make any
work” which would damage their neighbor’s buildings. La. Civ. Code art. 668. Further, if works
or operations cause inconvenience to neighboring houses “by diffusing smoke or nauseous smell,”
courts should look to local custom to determine if the activity is a nuisance. La. Civ. Code art. 669.
Whether or not an activity constitutes nuisance is a question of fact, to be determined based on the
particular circumstances of each case. See Schulker v. Roberson, 91-1228 (La. App. 3 Cir. 6/5/96),
676 So. 2d 684, 688.
Here, Plaintiffs allege Defendant was engaged in “work” at its paper plant, which caused
a release of a noxious substance into the air. This release allegedly deprived individuals living in
close proximity to the plant of the right to enjoy their own property. This claim does not require
the Court to evaluate any individual Plaintiff’s conduct; thus whether Defendants are liable for
alleged violations Louisiana Civil Code Articles 667–69 is a question that predominates over
11
individualized claims.
iii.
Negligence - Louisiana Civil Code Article 2317 and 2317.1
Plaintiffs allege the incident occurred because of a defect in the evaporators at the paper
mill, which were under the care and custody of the Defendant. Louisiana Article 2317 provides
that the custodian of a thing is responsible for damages caused by defects in the thing, provided
he knew or should have known about the defect. La. Civ. Code arts. 2317, 2317.1. To prevail on
such a claim, Plaintiffs bear the burden of proving: (1) the property that caused the damage was
in the “custody” of the defendant; (2) the property had a condition that created an unreasonable
risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a causein-fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the
risk. La. Civ. Code arts. 2317.1, 2322; Vinccinelli v. Musso, 2001-0557 (La. App. 1 Cir.
2/27/02); 818 So. 2d 163, 165, cited in Wiggins v. United States, 2009 WL2176043, * 3 (E.D.
La. 2009).
Here, Plaintiffs allege: (1) Defendant had custody of the Bogalusa Paper Mill, (2) the
emission of black liquor created an unreasonably dangerous risk of harm, (3) the emission of black
liquor resulted in Plaintiffs injuries, and (4) Defendant had actual knowledge of this risk. The
evaluation of this claim does not require the Court to evaluate individual Plaintiffs’ conduct or
injuries to determine Defendant’s liability. Accordingly, the Court concludes the issue of whether
Defendant violation Louisiana Civil Code Article 2317 and 2317.1 is a question that predominates
over individualized issues.
1.
Equitable Relief
Plaintiffs also make the following claims for equitable relief:
1. A judgment that International Paper intentionally misrepresented the nature of the
release to the public and governmental agencies;
2. Injunctive relief requiring International Paper to disclose additional information
12
regarding this incident and black liquor in general; and
3. Injunctive relief requiring International Paper to develop and release a response and
remediation plan regarding the incident and a preparedness plan for any future
accidents.
The declaratory relief Plaintiffs seek does not require a specific causation or damages
assessment; rather, the declarations Plaintiffs seek would require the fact finder to make findings
based on general causation that predominates over Plaintiffs’ claims. Therefore, the Court finds
issues surrounding Plaintiffs’ claims for equitable relief predominate over this claim as a whole.
1. Typicality – Rule 23(a)(3)
Rule 23(a)(3) requires that the claims of the class representatives are typical of the class’s
claims or defenses. Again, the threshold for typicality is low: class representatives must show
similarity between their legal and remedial theories and the theories of the rest of the class.
Mullen, 186 F.3d at 625. Typicality does not require that the claims of the class are identical, but
rather that they share the same essential characteristics—a similar course of conduct, or the same
legal theory. James, 254 F.3d at 571 (quoting 5 JAMES WM. MOORE ET AL., MOORE'S FEDERAL
PRACTICE ¶ 23.24[4] (3d ed. 2000)).
Plaintiffs have identified six class representatives— Brent Jarrell, Elizabeth Simmons,
Linda Nunnery, Willie Bickham, and Herbert Angel—all of whom allege either property damage
and/or personal injury and/or nuisance as a result of the release of black liquor from the Mill.
The theories of liability among the Plaintiffs and potential class members are alike: they are
suing for negligence, nuisance, and strict liability pursuant to Louisiana Civil Code articles 2315,
2317, 2317.1 and 667-669. Additionally, these Plaintiffs’ claims share essential characteristics in
this case, as they are based upon the same event. Accordingly, the Court concludes these class
members are representative of the class’ claims as a whole.
13
2. Adequacy – Rule 23(a)(4)
Rule 23(a)(4) demands that the named class representatives fairly and adequately
represent the claims of the other class members. There can be differences between the position of
class representatives and other class members so long as these differences do not “create
conflicts between the named plaintiffs’ interests and the class members’ interests.” Mullen, 186
F.3d at 626. A district court should evaluate whether the class representatives have a sufficient
stake in the outcome of the litigation, and whether the class representatives have interests
antagonistic to the unnamed class members. Id. (citing Jenkins v. Raymark Indus., Inc., 782 F.2d
468, 472 (5th Cir. 1972)). In addition, the district court should inquire into the zeal and
competence of the class representatives’ counsel and into the class representatives’ willingness to
take an active role in the litigation and to protect the interests of absentees. Berger v. Compaq
Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001).
The proposed class representatives in this case do not appear to have interests that would
be counter to those of other plaintiffs in this matter. There do not appear to be any foreseeable
conflicts that might arise between the proposed class representatives and other proposed class
members. Rather, the interests of the class members appear to be sufficiently aligned, even
though some differences exist regarding the specifics of each plaintiff’s claim. Moreover, the
proposed class representatives have each executed an affidavit stating they have no conflict of
interest in this matter and would will be willing to actively participate on behalf of other Class
Members should he be named as a class representative.
Additionally, counsel for the class representatives have all filed affidavits stating they
have the financial resources, experience, and desire to adequately represent the class. These
affidavits satisfy the Court that counsel are committed to these cases and will litigate them
zealously. The Court finds that the class representatives could fairly and adequately represent a
14
proposed class of plaintiffs in this matter under Rule 23(a)(4).
3. Superiority – Rule 23(b)(3)
Under Rule 23(b)(3), a district court must evaluate four factors to determine whether the
class action format is superior to other methods of adjudication: the class members’ interest in
individually controlling their separate actions, the extent and nature of existing litigation by class
members concerning the same claims, the desirability of concentrating the litigation in the
particular forum, and the likely difficulties in class management. 5 The Fifth Circuit has noted
that there is an important relationship between the superiority analysis and the predominance
analysis. Exxon, 461 F.3d at 604. Where common issues do not predominate, any effort to
conduct a class action “would denigrate in practice into multiple lawsuits separately tried.” Id.
(quoting Fed. R. Civ. P. 23(b)(3) advisory committee’s notes).
In this case, Plaintiffs argue that the class action is a superior format of adjudication
because it will minimize the risk of non-uniformity of results and maximize judicial efficiency.
As Plaintiffs point out, as the vast majority of claimants in this litigation are from low-income
areas surrounding the Paper Mill, it would be nearly impossible for them to obtain individual
representation to litigate their claims. Thus, the first factor—the class members’ interest in
individually controlling their separate actions—weighs in favor of finding class action as the
superior method of adjudication. Moreover, there are no other cases pending with respect to the
subject incident, the paper mill and the affected areas are situated in the Eastern District, and
5
The Fifth Circuit in Castano advised that a district court’s superiority analysis should include consideration
of the negative impact upon a defendant of certification of a mass tort. 84 F.3d at 746. The court noted that class
certification magnifies unmeritorious claims, increases plaintiffs’ damage awards, and creates “insurmountable
pressure” upon defendants to settle - all of which could be tantamount to “judicial blackmail.” Id. In this case,
Defendant might benefit from class certification, as it offers finality to their liability for the explosion—because this
case, a proposed class action, has been pending since 2016, potential class members’ claims have been tolled for
purposes of the statute of limitations. These claims will continue to be tolled until the Court rules on the class
certification issue.
15
Plaintiffs’ counsel has been managing this case, which already has a significant number of
Plaintiffs, for three years. These factors also militate in favor of finding class action the superior
method of adjudication. For these reasons, the Court finds that the superiority requirement of
Rule 23(b)(3) has been met.
B. Trial plan
Based on the foregoing the Court now determines the most efficient means by which to
try these issues. Although the analysis of International Paper’s liability gives rise to numerous
common questions, the class members’ specific causation and damage calculations give rise
primarily to individual questions that are not capable of class-wide resolution. Thus, the Court
concludes the best format would be to try the case in two phases. 6 See Butler v. Sears, Roebuck
& Co., 727 F.3d 796, 800 (7th Cir. 2013) (“[A] class action limited to determining liability on a
class-wide basis, with separate hearings to determine—if liability is established—the damages of
individual class members, or homogeneous groups of class members, is permitted by Rule
23(c)(4) and will often be the sensible way to proceed.”). Accordingly, the Court will certify an
issue class to determine Defendant’s liability. See Bell Atlantic Corp. v. AT&T Corp., 339 F.3d
294, 306 (5th Cir. 2003) (stating that, “[e]ven wide disparity among class members as to the
amount of damages” does not preclude class certification “and courts, therefore, [may] certify[y]
classes even in light of the need for individualized calculations of damages).
During Phase One, Plaintiffs shall proceed as a class defined as
All persons or entities who were physically present or owned property within
Bogalusa, Louisiana, Parish of Washington on June 10, 2015, and who sustained
injuries or damages as a result of the discharge of “black liquor” at the Bogalusa
6
Although, the Fifth Circuit warned that “historically, class certification of mass torts has been disfavored,” 84
Castano, F.3d at 746, the U.S. Supreme Court has more recently held that mass tort cases can be certified under
Rule 23. Amche m Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (“Even mass tort cases arising from a common
cause or disaster may, depending upon the circumstances, satisfy the predominance requirement . . . . [However,
courts should exercise] caution when individual stakes are high and disparities among class members great.”)
16
Paper Mill owned by the International Paper Company.
This phase shall consist of all issues related to Defendants’ liability. This includes
Plaintiffs nuisance, negligence, strict liability claims, as well as Plaintiffs’ request for equitable
relief. The specific legal issues to be decided in Phase One include, but are not necessarily
limited to:
1. Whether Defendants owed Plaintiffs a general duty.
2. Whether Defendants’ conduct failed to conform to the general standard of care.
3. Whether the scope of Defendants’ duty includes preventing the type of harm
Plaintiffs allegedly suffered.
4. Whether Defendant had garde of the evaporator when the rupture occurred on June
10, 2015.
5. Whether Defendant knew, or should have known, of the ruin, vice or defect in the
evaporator dome sight glass that broke on the evening of June 10, 2015.
6. Whether Defendant failed to exercise reasonable care in maintaining the evaporator
dome sight glass that broke on the evening of June 10, 2015.
7. Whether Defendant had discovered the unsafe condition prior to the incident.
8. Assuming Defendant had discovered the unsafe condition prior to the incident,
whether Defendant warned potential victims of its existence.
9. Whether the incident arose out of work at the Mill.
10. Whether Defendant failed to exercise reasonable care in performing its work at the
Mill.
During this phase, the finder of fact will also make a determination with respect to the
geographic scope of the plume radius as well as other factual determinations related to Plaintiffs’
request for equitable relief, such as:
1. The times the release of black liquor on June 10, 2015 began and ended.
2. The total amount of black liquor released through the broken evaporator dome sight
glass and into the atmosphere and, separately, the area outside the Mill on June 10,
2015.
3. The constituents of the black liquor released through the broken evaporator dome
sight glass on June 10, 2015 and Defendant’s knowledge related to the constituents of
black liquor on that date; including what knowledge Defendant had regarding the
potential hazards presented by the chemical substances released into the atmosphere
from its Bogalusa Paper Mill on June 10, 2015 and when it acquired such knowledge,
if ever.
4. Whether black liquor is a harmful substance that can cause physical harm and/or
property damage of the type alleged by Plaintiffs.
5. The density of the black liquor released through the broken evaporator dome sight
glass on June 10, 2015.
17
6. The wind direction and other relevant weather conditions during the incident and for
time periods otherwise relevant to the litigation.
7. Thea area where the black liquor released on June 10, 2015 was deposited.
8. The black liquor deposition levels within the area affected by the June 10, 2015
incident.
9. Whether Defendant intentionally misrepresented the nature of the release to the
public and governmental agencies.
10. Whether Defendant should be required to disclose additional information regarding
this incident and black liquor in general.
11. Whether Defendant should be required to develop and release a response and
remediation plan regarding the incident and a preparedness plan for any future
accidents.
Assuming the finder of fact finds in favor of Plaintiffs in Phase One, the Court would
then proceed to Phase Two. Phase Two shall consist of various trial flights of groups of five
Plaintiffs with like claims to determine specific causation and to award damages, if any. See
Mullen, 186 F.3d at 623; Watson v. Shell Oil Co., 979 F.2d 1014, 1018 (5th Cir. 1992). Many of
the findings made in Phase One will likely limit the number of Plaintiffs’ claims to be
adjudicated in Phase Two—for example, some Plaintiffs may fall outside of the geographic
scope established by the fact finder in Phase One.
The Court notes the “the nearly insurmountable problems of balancing procedural
fairness with judicial efficiency in the management of mass tort litigation” such as this. Watson,
979 F.2d at 1018. As the U.S. Supreme Court required in Amchem Products, Inc. v. Windsor, 521
U.S. 591, 615 (1997), however, proceeding as a class with respect to Phase One and moving on
to Phase Two for individualized adjudications “achieve[s] economies of time, effort, and
expense, and promote[s] . . . uniformity of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other undesirable results,” thereby satisfying
Rule 23(b)(3).
IV.
CONCLUSION
For the foregoing reasons,
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IT IS ORDERED that Plaintiffs’ Motion to certify a class, R. Doc. 182, is
GRANTED.
IT IS FURTHER ORDERED that Shawn C. Reed and Jonathan C. Pedersen be and
hereby are APPOINTED as Co-Lead Class Counsel and Co-Lead Liaison Counsel.
IT IS FURTHER ORDERED that a Plaintiffs’ Steering Committee, comprised of
Shawn C. Reed; Jonathan C. Pedersen; D. Douglas Howard, Jr.; William H. Arata; and Thomas
M. Discon be and hereby is ESTABLISHED.
IT IS FURTHER ORDERED that Plaintiffs’ provide the Court with a proposed
notice by no later than Monday, May 27, 2019. Defendant may file its objection thereto, if any,
by no later than Monday, June 3, 2019.
New Orleans, Louisiana, this 21st day of May, 2019.
UNITED STATES DISTRICT JUDGE
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