Both before and after the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2451 (2011), removal to federal court under the Class Action Fairness Act (“CAFA”) was a key tool in the arsenal employed by class action defendants, as federal courts have become increasingly more skeptical of certifying classes in toxic tort class actions.  But with many state court procedural rules patterned after their federal counterparts, federal trends can influence state courts, and the recent Louisiana Supreme Court decision in Price v. Roy R. Martin, 2011-C-0853 (Dec. 6, 2011), is a perfect example.

The plaintiffs in Price, five individuals living in the vicinity of a wood treatment facility, alleged that their properties had been contaminated with various toxic emissions beginning in the 1940’s and continuing to the present.  During this roughly 70-year period, the plant had at least three different owners and different chemicals were used at various times.  The proposed class, which had been certified by the trial court and affirmed by the intermediate court, consisted of past and present owners of property and people “physically present within”[1] a 1-1/2 mile radius of the plant.  To support their certification motion, plaintiffs presented expert testimony of the estimated emissions levels for a single year (1970) and evidence that attic dust in some houses in the area – although none owned by the plaintiffs — had contaminents consistent with some of those possibly emitted by the plant during certain years of operation.   You see where this is going?

The Supreme Court first focused on the lower courts’ findings that whether the facility, from 1944 to the present, emitted contaminents of a kind and quality to cause harm to plaintiffs and whether the plaintiffs were in fact harmed were common questions that could be resolved on an area-wide basis.  According to the Court, “[t]his conclusion reflects a misinterpretation of the law and of plaintiffs’ burden of proof.”  In dismantling the lower courts’ commonality finding, the Court noted that there were different emissions at different times under different ownership and, moreover, that because of changes in law, there would be different legal standards applied to determine liability.  The Court also thought it quite apparent that causation and the fact of damage would require a property-by-property analysis, particularly since there were a “myriad” of alternative sources of contamination, both area-wide and property-specific.  As a result, quoting Dukes, the Court held that there was no common question, the truth of which would resolve any issue central to each and every one of the claims. 

Although not necessary after finding a lack of commonality, the Court then went on to quickly discuss, and also reject, the lower courts’ findings regarding predominance and superiority.  Obviously, the Court stated, if there is no commonality, there can be no predominance.  Moreover, for much the same reason, the class action mechanism was not a superior method of resolution.  Conflicts between present owners and former owners would make global resolution unfair and the plaintiffs’ proposed series of mini-trials with respect to injury and causation evidenced the fact that individual actions were best suited to resolve individual cases, with efficiencies related to discovery and other procedural matters best left to “rules of joinder and cumulation of actions.” 

Perhaps the most notable aspects of the opinion concern the level of proof that the Court required of the plaintiffs even at the earliest stage of the proceedings.  While acknowledging that the plaintiffs did not need to prove their case on the merits at the certification stage, nonetheless the Court made clear that it would follow Dukes’lead in requiring “significant proof” of common issues that would be subject to “rigorous analysis.”  And given this high standard, the Court repeated prior admonitions that only mass tort cases “arising from a common cause of disaster” could ever be certified, at least in Louisiana.

[1] Given that the class sought only property damage and diminished property value, it is difficult to understand how individuals merely present within the geographic area could be class members, but the other defects in the class were so overwhelming that the Supreme Court evidentially didn’t feel the need to address this issue.

Share | Email| Print| Comments|  Topics: Certification, Class Actions, Contamination, Decisions of Note, Dukes, Louisiana, Real Estate, Toxic Torts