In light of the recent decisions in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011) and, thereafter, Gates v. Rohm & Hass Co., 655 F.3d 255 (3rd Cir. 2011), one might have wondered whether there would ever be another federal environmental tort class certified. Well, the wait is over as on October 12, 2011, just such occurred in the Western District of Kentucky.

In Powell v. Tosh, No. 5:09-CV-121-R (W.D. Ky.), current and former residents of an area surrounding two hog barns filed suit against the owners of the properties on which the barns were built (the Farmers) and the swine farming business (Tosh) that built and owns the barns. For those who, like me, are otherwise unfamiliar with such operations, the Court gave a very brief summary of the problem: “Defendant Farmers will from time to time pump accumulated swine waste into a ‘deep pit’ under the swine barns to be applied on row crop land owned by, or available to, Defendant Farmers.” Unsurprisingly, the Plaintiffs contend that these operations result in “recurring intolerable noxious odors emanating from the Defendants’ swine waste facilities” which constitute, among other things, a nuisance and a trespass.

In a rather uninspired opinion given the bountiful material available (one can only dream of what a jurist such as Alex Kozinski might have written), the Court methodically went through the elements of Rule 26(a), 26(b)(2) and 26(b)(3), winnowing down the presumptive class until arriving at a group of plaintiffs who, under the analysis, met the requirements for certification pursuant to Rule 26(b)(3).

In short order, the Court rolled through the requirements of Rule 26(a), holding that (i) a class of 450 current and former residents met the numerosity requirement, despite the fact that joinder was “not theoretically impossible;” (ii) the expert testimony was sufficient to demonstrate that those who lived within 1.25 miles of the Ron Davis Hog Barn suffered the same injury notwithstanding the fact that the “frequency and intensity of the effects suffered within the proposed class may differ,” (iii) the class representatives, residents within the 1.25 miles area, were typical of all the members of the class; and (iv) the representatives would adequately represent the class.

Moving on to subsection (b), the Court rejected a class under 26(b)(2), finding that the plaintiffs were more interested in damages than injunctive relief, particularly in light of their request for punitive damages. But more luck was had under 26(b)(3), as the Court held that claims of liability and causation predominate and would be “identical across the class.” Given the importance of these issues, that the plaintiffs might have individualized damages was not a sufficient reason to deny certification; indeed, the Court made it clear that by certifying the class and rendering class-wide decisions on liability, the parties would be encouraged to explore settlement, something that might not occur in the absence of the class.

However, the proposed class did not escape unscathed. The Court rejected on three grounds a larger class that would have included residents surrounding other hog barns built by Tosh. First, the Court found that the expert testimony was not sufficient to establish that each hog barn affected nearby residents in a similar manner; the expert, the Court noted, “has done nothing to verify that what appears to be similar weather results in similar scent conditions.” Second, as the majority of the representatives lived near the Ron Davis Hog Barn, the Court was not convinced that they would be typical of those living near other hog barns. Finally, for similar reasons, the Court found the representatives could not adequately protect the interests of those living in other areas.   

In addition, the Court rejected inclusion of any claims of injuries resulting from alleged water contamination as they lacked “common questions.” While this aspect of the ruling might be one of the most important given that so many toxic tort cases involve some form of groundwater contamination, the Court barely addressed the groundwater issues and it does not appear that they were the subject of much, if any, expert testimony.

In the final analysis, what may have been the guiding force that convinced the Court to certify the class was practicalities of advancing a settlement of the case, given that it is easier for all parties to settle one large case than many smaller ones. Whether that consideration will lead other courts to the same result remains to be seen.

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