Hamilton, Andrea v. 3D Idapro Solutions, LLC

Filing 75

ORDER denying without prejudice 32 Motion to Certify Class under Rule 23. Plaintiff has until 8/8/2019 to notify the court whether she plans to file a renewed motion for class certification; denying 48 Motion in Limine to Exclude Opinions of Plai ntiff's Proferred Expert Dr. Mark P. Cal; denying 67 Motion in Limine to Exclude Opinions of Defendant's Proffered Expert, Dr. John Kind; and denying as moot 63 Motion for Extension of Time. Signed by District Judge James D. Peterson on 8/1/2019. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ANDREA HAMILTON, individually and
on behalf of all others similarly situated,
Plaintiff,
v.
3D IDAPRO SOLUTIONS, LLC,

OPINION and ORDER
18-cv-54-jdp

Defendant.

In this proposed class action, plaintiff Andrea Hamilton is suing defendant 3D Idapro
Solutions, LLC for nuisance and negligence, alleging that foul-smelling odors are emanating
from a food-dehydrating plant that 3D Idapro owns. The following motions are before the
court: (1) Hamilton’s motion for class certification, Dkt. 32; (2) 3D Idapro’s motion to exclude
the opinions of Hamilton’s expert, Dkt. 48; (3) Hamilton’s motion to exclude the opinions of
3D Idapro’s expert, Dkt. 67; and (4) the parties’ joint motion to stay a ruling on other pending
motions during settlement negotiations, Dkt. 63.
The court will deny the parties’ motion to stay as moot. The parties asked the court to
stay a ruling for four weeks, but that was in April 2019, and the parties have not asked to renew
the stay.
The court will deny Hamilton’s motion for class certification and deny the motions to
exclude the experts. Even if I credit Hamilton’s expert, Hamilton has failed to meet the
requirements in Federal Rule of Civil Procedure 23 that there are common questions of law or
fact, and that the common questions predominate over any questions affecting individual class
members. The court need not and has not considered the opinions of 3D Idapro’s expert.

Because Hamilton may be able to cure these deficiencies, the court will deny the motion
without prejudice and give Hamilton a short time to indicate whether she plans to renew her
motion with additional information.

ANALYSIS
Hamilton seeks to certify a class of “[a]ll owner/occupants and renters of residential
property residing within 1.5 miles of [3D Idapro’s] facility’s property boundary.” Dkt. 25-1,
¶ 19. The facility is a food-processing plant in Wisconsin Rapids that dehydrates potatoes for
use in dog food and other products. It has a history of emitting strong odors in the area,
particularly in 2016 and 2017, when residents filed multiple complaints with the City of
Wisconsin Rapids and the Wisconsin Department of Natural Resources about the odors.
Dkt. 33-5.
There are three requirements for class certification under Rule 23: (1) the class must be
“defined clearly” using “objective criteria,” Mullins v. Direct Digital, LLC, 795 F.3d 654, 657
(7th Cir. 2015); (2) the class must satisfy the threshold requirements of numerosity,
commonality, adequacy, and typicality under Rule 23(a); and (3) the class must meet the
requirements of at least one of the types of class actions listed in Rule 23(b). In this case,
Hamilton seeks certification under Rule 23(b)(3), which applies when “the questions of law or
fact common to class members predominate over any questions affecting only individual
members,” and “a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.”
Hamilton satisfies the first requirement because she has clearly defined a class that can
be identified using objective criteria—a class member is one who owns or rents residential

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property within the class area. But Hamilton fails to satisfy the requirements of Rule 23(a) and
(b) because she has not shown a connection between the proposed class area and the odors
released from 3D Idapro’s facility.
Under Rule 23(a)(2), a class action must involve “questions of law or fact common to
the class.” Closely related is Rule 23(b)’s requirement that common questions predominate
over questions affecting individual class members. But it is not enough to simply raise a
common question. An issue of fact or law is common only if it is capable of class-wide
resolution. Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 374 (7th Cir. 2015). In other words,
class certification is appropriate only if the common questions have common answers, and if
the plaintiff can demonstrate that the class members “have suffered the same injury.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (citation omitted).
Hamilton seeks to bring Wisconsin-law claims for negligence and private nuisance on
behalf of the class. Her negligence claim has four elements: (1) a duty of care on the part of the
defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the
injury; and (4) an actual loss or damage as a result of the injury. Martindale v. Ripp, 2001 WI
113, ¶ 33, 246 Wis. 2d 67, 89, 629 N.W.2d 698, 707. Hamilton’s nuisance claim requires her
to establish “a nontrespassory invasion of another’s interest in the private use and enjoyment
of land” that is either (1) intentional and unreasonable; or (2) unintentional and “otherwise
actionable under the rules controlling liability for negligent or reckless conduct, or for
abnormally dangerous conditions or activities.” Bostco LLC v. Milwaukee Metro. Sewerage Dist.,
2013 WI 78, ¶ 30–31, 350 Wis. 2d 554, 835 N.W.2d 160. (Hamilton does not specify which
type of nuisance claim she is bringing, but her complaint alleges that 3D Idapro both

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“intentionally and negligently caused an unreasonable invasion Plaintiffs’ interest in the use
and enjoyment of their property.” Dkt. 29, ¶ 33.)
Some elements of these claims cannot be resolved on a class-wide basis. Even if all class
members were exposed to 3D Idapro’s odors, individual inquiries would be required to
determine whether the odor was strong enough to interfere with the enjoyment of individual
class members’ property, or whether individual class members experienced an actual loss or
damage. And Hamilton concedes that the extent of damages, such as any diminution in real
estate value, will vary from person to person. But even when a claim as a whole cannot be
resolved on a class-wide basis, Rule 23 allows an action to be “brought or maintained as a class
action with respect to particular issues.” Fed. R. Civ. P. 23(c)(4); see also Bell, 800 F.3d at 379
(“The fact that the plaintiffs might require individualized relief or not share all questions in
common does not preclude certification of a class.”). Hamilton contends that whether 3D
Idapro was negligent in its operation of the facility, and whether it released noxious odors into
the class area, are issues that can be resolved on a class-wide basis.
Hamilton does not need to prove that she will prevail on the merits to establish that
these issues are common to the class. See Messner v. Northshore Univ. HealthSystem, 669 F.3d
802, 811 (7th Cir. 2012). But she must show that the requirements of Rule 23 are met, and
the court must make whatever factual and legal inquiries are necessary to determine if the
requirements of Rule 23 are met, even if those inquiries overlap with the merits. Am. Honda
Motor Co. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010). This requires the court to “walk a balance
between evaluating evidence to determine whether a common question exists and
predominates, without weighing that evidence to determine whether the plaintiff class will
ultimately prevail on the merits.” Bell, 800 F.3d at 377. The Seventh Circuit explained this

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balance by comparing two ground-water pollution cases. Id. In Mejdrech v. Met–Coil Sys. Corp.,
319 F.3d 910, 911 (7th Cir. 2003), the court certified a class of plaintiffs who alleged that a
leaking container contaminated the class area’s groundwater. They did not prove that the
container had leaked or that the water was even contaminated, but they submitted evidence
showing that any contamination in the class area’s water could be traced to a single source. In
contrast, in Parko v. Shell Oil Co., 739 F.3d 1083, 1084 (7th Cir. 2014), the court reversed
certification in part because plaintiffs had not shown that pollution in the groundwater could
be traced to a single defendant or that residents in the class area relied on the groundwater as
a source of water in their homes.
This case is more like Parko because Hamilton has not shown that odors suffered by the
class area can be traced to a common defendant. She offers two main pieces of evidence in
support of the commonality requirement: (1) the results of a survey of the of the proposed class
area, and (2) the expert report of Dr. Mark Cal, an atmospheric-dispersion expert. Neither of
them establishes that the residents of the proposed class area have suffered a common injury.
A. Survey results
The 1.5-mile radius of the class area is based on the results of a survey conducted by
Hamilton’s lawyers. (Both Hamilton and 3D Idapro refer to the survey results in their
arguments, but neither side provided the full results to the court.) In the survey, Hamilton’s
counsel asked Wisconsin Rapids residents to indicate where they lived, how long they have
lived there, and whether they had ever “noticed any offensive odors from the 3D Idapro
Solutions facility.” Dkt. 33-1. Respondents who noticed odors were asked to describe them.
Hamilton says that residents of about 160 houses responded to the survey, and her liability

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expert created a map that shows where the complaints fell within the proposed class area.
Dkt. 60, at 5. The survey results roughly correlate with the proposed class area.
But it’s not clear that every person who responded to the survey was complaining about
the same smell. There are several other possible sources of noxious odors within or near the
proposed class area including a landfill, a paper mill, and retaining ponds used by the paper
mill to treat wastewater. 3D Idapro says (and Hamilton does not dispute) that survey recipients
have described a variety of different smells, including “chemical” smells, “garbage” and
“landfill” smells, and sulfur-based smells like “rotting eggs” or “cheese vomit.” See Dkt. 46, at
8–9 (compiling a list of adjectives used by survey respondents). In contrast, when residents
complained to the city in 2016 and 2017 about the smell coming from 3D Idapro’s facility,
they described the smell as “dog food.” Dkt. 33-5, at 2–3.
Hamilton contends that 3D Idapro is the sole source of all these odors because multiple
residents filed complaints with the City of Wisconsin Rapids and the Wisconsin Department
of Natural Resources about 3D Idapro, Dkt. 33-5, and because the City of Wisconsin Rapids
cited 3D Idapro several times for odor violations. See Dkts. 33-2, 33-3, 33-4. But this shows
only that 3D Idapro’s facility released odors, it does not provide any information about where
those odors travelled or the proper scope of the class area. 3D Idapro was not the only business
to receive complaints; residents also filed odor complaints about other businesses in the area,
including several complaints about the paper mill located 1.5 miles east of 3D Idapro’s plant.
Dkt. 52 and Dkt. 62. And on at least one occasion, the city investigated a complaint against
3D Idapro and determined that the odor actually came from either the paper mill or a nearby
landfill. Dkt. 52-5. The survey results do not differentiate between these sources.

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B. AERMOD analysis
Hamilton says that her expert, Mark Cal, will use AERMOD to determine, on a
class-wide basis, whether 3D Idapro’s odors reached class members’ properties. AERMOD is
an atmospheric dispersion modeling system used by the Environmental Protection Agency to
chart the spread of particulate matter through the air.1 Hamilton says that Cal can use
AERMOD to identify the source of odors and rule out alternative sources. But Cal has not
actually run any AERMOD simulations. His report says only that AERMOD would be capable
of modeling odors within and around the class area. Dkt. 60. He makes no opinion about what
those simulations will show or whether 3D Idapro’s emissions will correlate, even roughly, with
the proposed class area.
In this regard, Hamilton’s motion for class certification presents issues that are nearly
identical those in to Brooks v. Darling Int’l, Inc., No. 114CV01128DADEPG, 2017 WL
1198542, at *14 (E.D. Cal. Mar. 31, 2017), an odor-nuisance class action that was brought by
Hamilton’s lawyers in California. In Brooks, the plaintiffs alleged that an animal rendering
facility (a plant that breaks down animal waste into usable products) released noxious odors
into their neighborhood. As in this case, plaintiffs sought to certify a class of all residents living
within 1.5 miles of the facility and said that the class area reflected counsel’s survey of residents
in the area. Id. at *2. Also as in this case, they submitted a preliminary report from an expert
who said that he could use AERMOD to model the spread of odors from the facility, but who
had not actually run any simulations. The court denied certification, concluding that without

1

See Air Quality Dispersion Modeling - Preferred and Recommended Models, United States
Environmental Protection Agency, https://www.epa.gov/scram/air-quality-dispersion-modelingpreferred-and-recommended-models.

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any actual modeling or testing of the odors, there was no evidence that residents within the
proposed class area had suffered from a common injury. Id. at *8–9.
Hamilton makes no effort to differentiate Brooks. On the contrary, nearly all of
Hamilton’s briefs include misleading citations to Brooks to suggest that the Brooks court relied
on the preliminary AERMOD report to certify the class. See e.g. Dkt. 33, at 11–12. But the
Brooks court denied certification and told plaintiffs to renew their motion after they had
conducted actual testing. The analysis of the Brooks court is persuasive. Given the similarity
between the two cases, the court sees no reason why plaintiff’s motion should come to a
different result.
None of the other cases cited by Hamilton support certification. Most of them are
orders approving settlement agreements, where class certification was not disputed. And in one
of those cases, Ng. v. International Disposal Corp. of California, Case No. 112CV228591 (Santa
Clara CA Superior Court Aug. 1, 2016) the court had previously denied certification even
though the plaintiffs had conducted an AERMOD analysis and presented the results to the
court. Ng v. Republic Services Inc., Case No. 1-12-CV-228591 (Cal. Super. Santa Clara County,
January 28, 2015). In almost every case in which a court granted a contested class certification
motion, the plaintiffs’ expert had used AERMOD or some other method to determine the class
area before requesting certification.2

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See Freeman v. Grain Processing Corp., 895 N.W.2d 105, 111 (Iowa 2017) (relying on
AERMOD results to define class area); Goreham v. Grain Processing Corporation, No.
LACV021232 (Muscatine Cty. Iowa District Ct., Oct. 28, 2015) (same); Ponca Tribe of Indians
of Oklahoma v. Cont'l Carbon Co., No. CIV-05-445-C, 2007 WL 28243, at *3 (W.D. Okla. Jan.
3, 2007) (“the geographic scope of the class was determined by their experts based on the
degree of pollution deposited on the land.”).

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The one exception is Stanley v. U.S. Steel Co., No. 04-74654, 2006 WL 724569 (E.D.
Mich. Mar. 17, 2006). But Stanley was decided before the Supreme Court clarified the standard
for commonality in Dukes. And although the Stanley court found that the source of pollution
was a “common question,” it did not consider whether that question had a common answer or
could be resolved on a class-wide basis.
Hamilton argues that Cal does not need to conduct an AERMOD analysis until after
certification because, at this point, it is premature to determine whether the class members
actually experienced odors. Hamilton is correct that she need not prove success on the merits—
a class may be certified even if it consists largely (or entirely) of members who will ultimately
be shown to have suffered no harm. Messner, 669 F.3d at 824. But if “a class is defined so
broadly as to include a great number of members who for some reason could not have been
harmed by the defendant’s allegedly unlawful conduct”—for example, because they lived too
far outside the range of the facility’s emissions—then the class is defined too broadly to permit
certification. Id.
In general, when a class definition is overbroad, the court should attempt to narrow the
class definition instead of flatly denying certification. Id. at 825. But in this case, Hamilton has
not provided the information necessary to craft an appropriately narrow class definition. There
is simply no evidence that the court could rely on to determine which areas have potentially
been subjected to 3D Idapro’s emissions and which areas have not.

CONCLUSION
Because Hamilton has not established an issue of law or fact common to the proposed
class members, much less one that predominates over questions affecting individual class

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members, the court will deny her motion for class certification. But Hamilton could potentially
cure this deficiency by submitting AERMOD simulations, or some other preliminary testing,
and class area based on that information. See Brooks, 2017 WL 1198542, at *8. So the court
will deny the motion without prejudice and give Hamilton has until August 8, 2019, to respond
to this order and explain whether she plans to resubmit her motion for class certification with
additional evidence. If Hamilton plans to use Cal’s AERMOD simulation to define the class
area, she should explain how long it will take Cal to obtain the necessary data and run the
simulations.

ORDER
IT IS ORDERED that:
1. Plaintiff Andrea Hamilton’s motion for class certification, Dkt. 32, is DENIED
without prejudice.
2. Hamilton has until August 8, 2019, to respond to this order and indicate whether
she plans to file a renewed motion for class certification with additional evidence
supporting her class definition.
3. Defendant 3D Idapro Solutions, LLC’s motion to exclude opinions of Dr. Mark Cal,
Dkt. 48, and plaintiffs’ motion to exclude opinions of Dr. John Kind, Dkt. 67, are
DENIED.
4. The parties’ joint motion for extension of time, Dkt. 63, is DENIED as moot.
Entered August 1, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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