Nolan et al v. Exxon Mobil Corporation et al

Filing 159

RULING denying 124 Motion to Certify Class. Signed by Judge James J. Brady on 5/13/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TONGA NOLA, ET AL

CIVIL ACTION

VERSUS
NO. 13-439-JJB
EXXON MOBIL CORPORATION, ET AL
RULING ON MOTION TO CERTIFY CLASS
This case is before the Court on a Motion to Certify Class (Doc. 124) brought by the
plaintiffs. The defendants filed an opposition (Doc. 130), and on February 4–5, 2015, the Court
held a hearing on the matter. Afterward, the parties submitted post-hearing briefs (Docs. 154,
155). Further oral argument is unnecessary.
Background
The plaintiffs are a group of individuals who live near the Exxon refinery plant near the
Mississippi River and Scenic Highway in Baton Rouge, Louisiana. They filed suit against Exxon
Mobil Corporation (Exxon) and several associated entities; Exxon removed the case to this Court
in July of 2013. In their petition, the plaintiffs allege that the refinery repeatedly failed to meet
regulatory standards, resulting in numerous leaks—roughly 145—of chemicals such as,
hydrogen sulfide, and they also complain about three specific incidents: a naptha leak on June
14, 2012; an HCI1 release on November 20, 2012; and, finally, a sulfur dioxide leak on May 23,
2012. These incidents, according to the plaintiffs, caused many physical issues and problems
associated with nuisance. Their complaints included, among others, sinus irritation, post-nasal
drip, odors, and persistent cough. In November of 2014, the plaintiffs filed a motion to certify
class, and the Court held on a hearing on that motion on February 4–5, 2015.

1

This refers to hydrochloric acid.

1

I.

Proposed Class Representatives
The plaintiffs’ proposed class is defined as all individuals living within a certain

geographic area near the refinery from June 2012 to the present, though not all proposed class
representatives lived in this area for the entire time period. Before the hearing, the plaintiffs
moved to remove Tonga Nolan and her minor children as class representatives, and the Court
granted that motion. The remaining class representatives include residents who assert several, if
not all, of the complaint’s grievances—odors, cough, sinus irritation, and lack of enjoyment of
their property, for example. These proposed representatives have lived in the area for varying
amounts of time, from decades to a few short months; several no longer live there but did during
at least a portion of the identified time period. The proposed representatives who testified at the
hearing all indicated that they were willing and able to participate in the litigation.
A. Representatives Absent from the Hearing
The first proposed representative, Lawrence J. Alexander (Alexander), lives at 2848
Jessamine Avenue in Baton Rouge, which is within the defined geographic area proposed by the
plaintiffs. He has lived in his home for over twenty-five years, so the entirety of the class
definition period, and complains of rashes, eye irritation, asthma, headaches, respiratory
problems, fatigue, and memory issues. At the certification hearing, he did not testify.
Flora Dupree (Dupree) also did not testify at certification hearing. She lived at 2723
Arbutus Avenue in Baton Rouge, within the proposed class area, from before June 20122 until
some point in 2013. Her symptoms included nausea, diarrhea, vomiting, burning eyes, and
dizziness. Dupree also complained of the odor, indicating that it frequently overwhelmed her and
forced her inside.

2

This date is significant as it is the beginning of the timeframe used in the class definition period.

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B. Representatives at the Hearing
Mary and Preston George (The Georges), the next proposed class representatives, did
testify at the hearing. They live at 2683 Linwood Drive in Baton Rouge, within the proposed
class area, and they have lived there for the entire class definition period. Mrs. George testified
that she experienced burning in her eyes, watery eyes, a cough, bronchitis, and sinus issues. She
also indicated that she avoided spending too much time outside due to odors. Mr. George
complained of similar health issues, though he also testified that he suffered a major vascular
infection in 2013. Like his wife, Mr. George indicated that he limited his time outdoors. Further,
on cross examination, Mr. George claimed that he believed the leaks and emissions from the
Exxon refinery were at least partially responsible for the multiple roof replacements that his
home required.
The next proposed class representative, Gussie Johnson (Johnson), has lived for over
three years, so the entirety of the class definition period, at 1501 Seneca Street in Baton Rouge,
which is within the proposed class area. She testified at the hearing and complained of
headaches, rashes, sinus issues, and being far more fatigued at home than away from home. On
cross, she admitted to being a regular smoker for years until recently quitting, though she
maintained that her symptoms appeared after moving to her current home. Her children and
fiancé, she claimed, suffered similar symptoms. Johnson also complained about the odor,
identifying it as rotten and persistent, and indicated that it made her uncomfortable having guests
and hosting social events.
Keisha Smith (Smith), the last representative to testify at the hearing, lived at 2621
Lupine Avenue in Baton Rouge, within the proposed class area, from February 2013 to May
2013—not the entire class definition period. She, and her children, according to her testimony,

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suffered a decreased quality of life due to the odors—which prevented them from enjoying the
home—and physical symptoms, which included sinus issues, watery eyes, and headaches.
Ultimately, Smith broke her lease early and moved away due to her symptoms.
II.

Proposed Class
The proposed class is defined as those who lived within a defined geographic area from

June 2012 to the present. According to the plaintiffs’ experts, all individuals within this area
were exposed to sufficient levels of particulate matter and hydrogen sulfide to cause noticeable
effects, and they all were exposed to sufficient amounts of naptha, HCl, and sulfur dioxide3 to
suffer effects. At the hearing, the plaintiffs’ experts—Dr. William Sawyer (Dr. Sawyer) and Mr.
William Auberle (Mr. Auberle)—focused on hydrogen sulfide, and they asserted that they
compared models of exposure to a particular study indicating at what level exposure to hydrogen
sulfide could produce effects for most individuals, also known as its “odor threshold.” Further,
according to Mr. Auberle, the modeling data accounted for other factors, such as terrain and
atmospheric conditions—though he did acknowledge that he did not account for other possible
sources of the chemicals, he still claimed that least 80% came from Exxon—ensuring a more
precise measurement when evaluating the class area. These exposure levels, according to the
plaintiffs, are also sufficient to invoke nuisance issues, such as offensive odors, within the area
outlined. Although the measurements were for a twenty-four hour period of “theoretical”
exposure that would not be uniform within the area, the plaintiffs’ experts maintained the effects,
across the board, would exist; they might be more intense in certain areas, but that would be
addressed by the plaintiff’s proposed bifurcated trial.4

3

It should be noted that not all representatives—so presumably not all proposed class members—were residents at
the time of all three major leaks.
4
This is addressed more thoroughly in section III.

4

At the hearing, the defense experts challenged the findings and opinions of the plaintiffs’
experts. Mr. Gale Hoffnagle (Mr. Hoffnagle), the first defense expert, testified that the odor
threshold5 of hydrogen sulfide varies widely among individuals, and he also noted that the
Louisiana Department of Environmental Quality (DEQ) air monitors showed lower
concentrations in the area generally than those suggested by the plaintiffs. Their other expert, Dr.
John Kind (Dr. Kind), testified that the isopleths chosen by the plaintiffs’ experts were
inappropriate, as there were too many variables involved, and he claimed that their methodology
did not allow for measuring individual or even group exposure.
III.

Bifurcated Trial Proposal
Although the plaintiffs maintain that class action is appropriate, they acknowledge that

questions of damages would vary among class members.

To solve this, they propose a

bifurcated trial where fault and causation would be addressed first, with a more individually
tailored process for determining damages. Essentially, the questions of causation and fault are fit
for the class action format, according to the plaintiffs, while the damages due to the harm that the
class members suffered require more individual attention. The latter, damages phase would only
occur if Exxon were found liable in the first stage. Exxon opposes this approach, claiming that
the plaintiffs are trying to manufacture the elements necessary for a class action where they do
not exist.
Analysis
Class certification requires satisfying all elements of Federal Rule of Civil Procedure
23(a) and at least one of the scenarios in Rule 23(b). When a party seeks certification of a class,
it must “must affirmatively demonstrative [its] compliance with the Rule . . . .” Wal-Mart Stores,

5

The odor threshold is the level of Hydrogen Sulfide in the area before a person can smell it.

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Inc. v. Dukes, 131 S.Ct 2541, 2551 (2011). The plaintiffs argue that they meet the standards for
Rule 23(a) and 23(b)(3): predominance and superiority.
I.

Rule 23(a)

Rule 23(a) has four elements:
(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.
When considering whether a case satisfies each element, “questions may be considered to
the extent . . . that they are relevant to determining whether the Rule 23 perquisites . . . are
satisfied.” Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S.Ct 1184, 1195
(2013).
A. Numerosity
The first element requires that the proposed class be “so numerous that joinder of all
members is impractical.” Fed. R. Civ. P. 23(a)(1) (West 2014). To establish this element,
plaintiffs “must ordinarily demonstrate some evidence or reasonable estimate of the number of
purported class members.” James v. City of Dallas, Tex., 254 F.3d 551, 570 (5th Cir. 2001)
(Overturned on other grounds). The plaintiffs indicate that their chosen geographic area included
over 7,000 residents as of the 2010 census, but the defense counters that the plaintiffs have not
made an effort to clarify which of these individuals have experienced any of the physical
symptoms or nuisance issues claimed in the suit.
Although the plaintiffs have not ascertained exactly who these individuals are, their
models and data, along with public records, have pinpointed a time and area. This means their

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number almost certainly meets the numerosity requirement, even if all 7,000 people do not
complain of symptoms or allege nuisance-related issues. The exact threshold for numerosity is
not easily defined, but if even one-third of the people have complaints, their number certainly
satisfies the numerosity requirement. Their complaints may differ in severity and potential cause,
affecting their membership in the proposed class, but that is a predominance and/or superiority
issue.
B. Commonality
To establish the second element, the party seeking certification must establish that “there
are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). For commonality,
that the parties suffered a common injury is important, though this “can be satisfied by an
instance of the defendant’s injurious conduct, even when the resulting injurious effects—the
damages—are diverse.” In re Deepwater Horizon, 739 F.3d 790, 810 (5th Cir. 2014).
Significantly, these common questions of law or fact must be “central to the validity of each of
the class member’s claims.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 840 (5th Cir 2012).
The plaintiffs argue that there are numerous questions of law and fact common to the parties,
primarily those concerning causation and fault. For example, they argue that whether refinery
leaks caused the purported high levels of hydrogen sulfide6 and whether Exxon was at fault in
those leaks are questions common to all the claims, even if the level of damage and harm caused
by the leaks may vary. Exxon claims that because there are three main events, and that these
events occurred under different weather conditions, lasted for different amounts of time, and
occurred at different times, commonality should fail; Exxon also applies to this logical generally,
noting that beyond the three referenced leaks, there are claims for general exposure and regular,

6

These questions are also common for the other chemicals, such as naptha, HCL, and sulfur dioxide.

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minor leaks that are also subject to different conditions depending on timing, weather, and,
significantly, who among the class members was actually present at the time of exposure.
Exxon has correctly indicated that there are differences among the claims of the proposed
class members, but these differences are insufficient to defeat commonality. Among the
questions of law and fact common to the parties are factual questions concerning the size, timing,
and location of the leaks, as well as questions concerning the ability of the leaks to cause
symptoms and/or invoke nuisance concerns. Unlike Price, which Exxon cites to support its
challenge on this element, the common question asserted to satisfy commonality for this class is
not whether Exxon was at fault for the leaks7 but instead whether these leaks were sufficient to
cause symptoms and nuisance issues. That question is the reason the experts plotted exposure
data and testified about the threshold regarding hydrogen sulfide, and it is central to each claim,
even if damages and other issues may differ among class members. Consequently, the plaintiffs
have met their burden regarding Rule 23(a)(2).
C. Typicality
The next element that the party seeking certification must prove is that “the claims . . . of
the representative[s] . . . are typical of the claims . . . of the class. Fed. R. Civ. P. 23(a)(3).
Typicality requires that “the class representative’s claims have the same essential characteristics
of those of the putative class,” meaning the claims need to be rooted in similar actions and rely
on similar legal theories. James, 254 F.3d at 571. According to the plaintiffs, the representatives
live and/or own property in the area—at least during the time frame—and, also like the members
of the class, have a variety of health complaints and nuisance complaints due to the refinery’s

7

This is a common question in this litigation as well, but in Price, it was the only common question, and that was
insufficient.

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leaks and releases. Exxon, however, focuses on the variance in the types of harm, both healthrelated and property-related, that the proposed class members may have suffered.
According to the plaintiffs, the representatives allege a variety of similar complaints
related to physical symptoms—including sinus issues, headaches, and eye irritation—and
nuisance issues—including loss of enjoyment of property and malodorous scents. There are
some differences among the representatives, but they are thorough and cover both nuisance and
physical symptoms. Although the class members, like the representatives, might vary somewhat
in their complaints, the essential characteristics of the claims are the same as those of the
representatives. Primarily, all must prove what caused their symptoms and nuisance-related
complaints, and they all must prove that Exxon is at fault for these symptoms and complaints.
D. Adequacy
Finally, regarding Rule 23(a), the parties seeking certification must show that “the
representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P.
23(a)(4). The adequacy requirement considers whether the attorneys are appropriately zealous
and competent, whether the representatives are capable of taking an active role in pursuit of the
claims, and whether there are any conflicts of interest among class members. Berger v. Compaq
Computer Corp., 257 F.3d 475, 479 (5th Cir. 2001). Although Exxon does not challenge the
competency of the plaintiffs’ lawyers, they reiterate their belief that the claims and damages are
different, and they argue that this presents potential conflicts of interests.8 The plaintiffs note that
their lawyers are experienced in class action litigation, that the representatives testified that they
would actively participate in the litigation, and that the claims are sufficiently similar to avoid
any conflicts of interest.

8

Exxon also raised concerns about the adequacy of Tonga Nolan as a class representative, but that issue is moot
after the Court granted the plaintiffs’ motion to eliminate her as a representative.

9

As Exxon does not dispute the competency of the plaintiffs’ lawyers, and because all
representatives testified that they were willing and able to participate in the litigation, the main
concern is a potential conflict of interest. Exxon argues that the differences in the claims present
a potential conflict of interest, but these differences do not create a zero sum game among class
members. Further, given the wide breadth of complaints that the proposed representatives have,
from rashes and headaches to inability to hold outdoor gatherings or do yardwork, it is unlikely
that a potential complaint of the class is uncovered. The experts did not agree on the reliability of
the exposure data or that it showed enough exposure to cause symptoms, but they did not appear
to disagree on the possible symptoms from exposure. This indicates that whether class members
suffer sinus issues or headaches, rashes or gastrointestinal symptoms, their interests will be
covered by the class representatives. Consequently, the proposed class representatives would
adequately represent the interests of the class.
II.

Rule 23(b)(3)

Rule 23(b)(3) requires that “questions of law or fact common to class members
predominate over any questions affecting only individual methods, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” This
presents a two-step inquiry: first, whether the questions of law or fact common to class members
predominate; and second, whether the class action superior to other methods for addressing the
controversy.
A. Predominance
Predominance requires that the Court identify “the substantive issues that will control the
outcome, assess which issues will predominate, and then determine whether the issues are
common to the class.” Madison v. Chalmette Ref., LLC, 637 F.3d 551, 555 (5th Cir. 2011).

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Generally, class actions in mass tort cases are not favored, and certification should only be
granted if there are “exceptional features” that justify deviating from the “general rule.” Steering
Comm. V. Exxon Mobil Corp., 461 F.3d 598, 604 (5th Cir. 2006). In these instances, there are
typically differences regarding damages, liability, and defenses with respect to those individuals
affected, and this presents a high likelihood of a class action devolving into numerous individual
lawsuits. Id. Other cases also indicate similar issues with “air emission mass tort” suits due to
“significant disparities . . . in terms of exposure, location, and whether mitigative steps were
taken.” Madison, 637 F.3d at 557. In Steering and Madison, neither court addressed the effect
that bifurcation may have on the predominance factor in a mass tort case; the parties seeking
class certification did not propose it. Id. at 556–57; Steering Comm., 461 F.3d at 604. In a similar
vein, the Louisiana Supreme Court has noted that nuisance claims tend to require individualized
evaluation—particularly due to the “mere inconvenience” defense—making class actions
disfavored for these claims as well. Price v. Martin, 79 So.3d 960, 974 (La. 2011). Bifurcation is
also not addressed in Price. Id.
Several cases, however, have discussed bifurcation in the context of class actions and the
predominance issue. These cases agree that bifurcation cannot be used to separate common and
divergent issues and create predominance; the case must satisfy predominance as a whole before
any severance and trial management tinkering may occur. See, e.g. Castano v. American
Tobacco Co., 84 F.3d 734, 745 (5th Cir. 1996). However, as the plaintiffs point out, courts have
used bifurcation in class actions. See, e.g., In Re Deepwater Horizon, 739 F.3d 790 (5th Cir.
2014). The plaintiffs argue that they have demonstrated sufficient similarities such that the
common issues of law and fact predominate as a whole; these common issues are, according to
the plaintiffs, the factual and legal questions concerning Exxon’s fault and the effects these leaks

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can cause on people and property. They also point to the Deepwater Horizon litigation to support
their assertion that a court can use bifurcation to ameliorate concerns about divergent issues of
law and fact regarding damages. Exxon argues, however, that this case is similar to mass tort
cases where courts rejected certification, and in fact, to the extent that it is different, it differs in a
way that more strongly supports denying certification: in the mass tort cases that they cited, there
was one event; here, there are at least three major leaks at issue, along with numerous smaller
leaks. According to Exxon, bifurcation here is inappropriate, and they distinguish In Re
Deepwater Horizon on the basis that it was a settlement class action, neutralizing potential issues
with differences in questions concerning fault and causation.
The Court finds that there are some common issues of fact among the class members, but
the plaintiffs have failed to establish that these questions predominate. As Exxon points out,
certification is not favored in mass tort cases, and there are numerous cases rejecting certification
with one event; the plaintiffs here seek certification relating to three separate leaks over an
extended time period, as well as 145 smaller leaks. Here, there are simply too many variant
questions as to each class member for the common issues that do exist to predominate. For
example, at least one of the representatives, Gussie Johnson, smokes, so whether the purported
leaks cause her symptoms, and to what extent, would be evaluated differently than those in the
class who do not smoke and/or do not live with smokers. Questions like this, as well as questions
of “location, exposure, dose, [and] susceptibility to illness” undercut the plaintiffs’ case for
predominance, and given the jurisprudence on mass tort cases rejecting certification with one
event, this case, with three events, presents an even wider array of variant questions and issues,
and certification is inappropriate. Steering Comm., 461 F.3d at 602.

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The plaintiffs suggest that bifurcation can remedy these problems by separating damages
from causation and fault, but the variant questions and issues extend well into the issues of fault
and causation; this is unlike the Deepwater Horizon case, which involved a single event and was
a settlement, leaving only damages to be decided. In that case, there were common questions
such as “BP’s involvement in the well design, explosion, discharge of oil, and cleanup efforts,”
and, the Fifth Circuit noted, “‘virtually every issue prior to damages [was] a common issue.’”
Deepwater Horizon, 739 F.3d at 816 (quoting Bertulli v. Independent Ass’n of Continental
Pilots, 242 F.3d 290, 298 (5th Cir. 2001)). Here, that is not the case; primarily, the influence of
other factors on the alleged injuries varies among the class members. The symptoms of which the
representatives complain can be caused by numerous factors, including allergies, other irritants
(such as smoking), and illness. Although Exxon’s fault in the three major leaks and other actions
alleged may be a common question, it does not predominate over the questions of causation and
damages together.
B. Superiority
As the plaintiffs have failed to establish that the common questions of law or fact
predominate, it is unnecessary to evaluate whether a class action is superior to other methods for
addressing this controversy.
Conclusion
Although the plaintiffs have satisfied the requirements of Rule 23(a), they have failed to
establish those of Rule 23(b). Their proposed class is sufficiently numerous, there are common
questions of law or fact among them, the claims of the representatives are typical of those of the
class, and the class representatives and their lawyers would adequately represent the interests of
the class. However, the common issues of law and fact do not predominate over other questions.

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There are at least three major events, along with numerous other, smaller events, and the
questions of which class members were present, where within the proposed class area they were
present, and for how long they were present would differ among the members of the class, and
these questions would affect degree and nature of exposure. Other divergent questions exist as
well, such as the role that certain habits, including smoking, have on some of the symptoms that
the class members experienced.
For the foregoing reasons, the plaintiffs’ Motion to Certify Class (Doc. 124) is DENIED.
Signed in Baton Rouge, Louisiana, on May 13, 2015.





JUDGE JAMES J. BRADY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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