Louisiana Supreme Court Follows Wal-Mart v. Dukes to Reverse Certification of Nuisance Class Action
Still need proof that the U.S. Supreme Court's decision is going to have far-reaching effects in the world of mass torts and consumer class actions? Look no further than Price v. Martin, No. 2011-C-0853, Slip op. (La. Dec. 6, 2011).
Price was a class action that had been certified by the trial court and affirmed on appeal. It alleged that the various owners of a wood treatment facility ran it in such a way as to pollute the neighborhood's air, soil and water -- including plaintiffs' properties -- with various chemicals, including dioxin. The class of over 3,000 people alleged that it had suffered property damage, diminished property values, and increased risk of disease. It asserted theories of nuisance and negligence. The class was defined as all people or entities who, from 1944 to the present, owned or were present on property in a defined area who claim property damage and diminished property value.
The Louisiana Supreme Court began its analysis by indicated that it had granted certiorari "to examine whether [the lower] courts engaged in the rigorous analysis required to determine whether this action meets the requirements imposed by law for class action certification." Slip op. at 5. The court concluded that they had not, and therefore reversed and remanded the case.
The court explained that Louisiana's class action rules were extensively revised in 1997 to essentially adopt Federal Rule of Civil Procedure 23. Citing Dukes, the court explained that a class action is an "exception to the rule that litigation be conducted by and on behalf of individual named parties only." Slip op. at 6 (citation omitted). That is why there is a rigorous analysis standard on whether the requirements for class certification are met. And that rigorous analysis, the court explained, often will overlap with the underlying merits of the claim. Id. at 7 (citing Dukes).
The court bought in to the Dukes formulation of the commonality requirement completely:
The mere existence of common questions, however, will not satisfy the commonality requirement. Commonality requires a party seeking certification to demonstrate the class members' claims depend on a common contention, and that common contention must be one capable of class-wide resolution--one where the 'determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.' Wal-Mart Stores, Inc., 131 S. Ct. at 2551. . . .
In the context of mass tort litigation, this court has further refined the commonality requirement, stating that, in such cases, 'in order to meet the common cause requirement, each member of the class must be able to prove individual causation based on the same set of operative facts and law that would be used by any other class member to prove causation.'
Id. at 10-11 (citations omitted). The court, citing Dukes, reiterated that not only must there be a common question that is suitable for classwide resolution, but the proof of commonality must be significant. Id. at 13.
This class failed the commonality requirement for a variety of reasons. The facility's owners -- and its operations -- changed significantly over the 66-year period of emissions. Depending on the date and the nature of the emission, different owners could be responsible. Moreover, even the legal standards applying to the discharge of the chemicals changed over time, such that "[c]lass members who owned property damaged by emissions in the 1950s will not be able to rely on the same environmental standards invoked by those who own property damaged by emissions in the 1980s." Id. at 14. Thus, the "issue of breach will thus turn on different conduct, by different defendants, at different times, under different legal standards."
Citing Dukes, the court also noted that plaintiffs could not prove common causation, i.e., that the facility was the source of dioxin in area attics. Id. at 15. The court explained:
Given the multitude of alternate sources of PAHs and dioxins proven to exist in the area in question and the inability of plaintiffs to link those contaminants solely to emissions from the Dura-Wood facility, it is clear that plaintiffs have failed to offer significant proof that causation for each class member will be determined by a common nucleus of operative facts.
Id. at 18. The court concluded that:
Plaintiffs do not in fact allege that damage has been caused by only one defendant; they allege damage emanated from one facility, but that facility was operated successively and independently by more than one owner over a period of 66 years, providing more than one source of emissions from multiple operations performed according to varying standards of conduct. [A prior Louisiana case] instructs that, unlike the present case, only mass torts 'arising from a common cause or disaster' are appropriate for class certification.
Id. at 21.
The court also held that plaintiffs failed to meet the predominance requirement for largely the same reason as why they had failed the commonality requirement. It also held that the district court erred in finding a class action superior to other methods of adjudication. But the reasoning seems to implicated adequacy of representation concerns as much as anything. The court reasoned that by defining the class to include such a long period covering property owners, there were conflicts of interest between present and prior property owners. The court also found that the need for individual adjudication of so many issues meant the class was not superior because it could not vindicate the public policies underlying class actions. Id. at 26.
Louisiana thus falls squarely in the camp of states aligned with the U.S. Supreme Court on the rigorous analysis required for class actions, as well as the reinvigorated commonality standard. And it applies the rule in tort cases -- not just in the employment discrimination context that was at issue in Dukes. Look for more state court decisions adopting the Dukes approach.
