After the U.S. Supreme Court’s decision in Wal-Mart Stores Inc. v. Dukes, 131 S.Ct. 2541 (2011) — which heightened requirements for plaintiffs seeking class certification — at least two courts reviewing toxic-tort issues have reversed lower court decisions that granted class certification, with each reviewing court finding that the plaintiffs failed to show the necessary commonality to certify the putative class. Parko v. Shell Oil Co., 739 F.3d 1083, 1085-86 (7th Cir. 2014); Price v. Martin, 79 So.3d 960, 969 (La. 2011). The Georgia Supreme Court recently joined these courts when it denied class certification in Georgia-Pacific Consumer Products, LP v. Ratner et al., 2014 WL 3396519 (Ga. 2014).
Prior to Dukes, courts might have granted class certification if the plaintiffs simply asserted common questions of law without delving too deeply into the specific facts of the case. But, as shown in Ratner, the world is a bit different now post-Dukes: plaintiffs not only must raise common questions; they must also plead common facts backed by sufficient evidence to survive a court’s inquiry. Given the individualized nature of exposure, causation and damages in mass-tort matters, this is a tall order for plaintiffs, as seen in Ratner.
In Ratner, the plaintiffs owned real property in Mallard Pointe, a residential neighborhood in Effingham County, Georgia. Since 1986, Georgia-Pacific Consumer Products LP operated the nearby Savannah River Mill, a facility that included more than a hundred acres of sludge fields. After generating solid waste at the Mill, the company deposited the refuse into these sludge fields. The plaintiffs claimed that, as the waste decomposed, the sludge fields released hydrogen-sulfide gas that contaminated their property and diminished their property value. So, the plaintiffs sued Georgia-Pacific for common-law claims (e.g., nuisance, trespass and negligence) and sought damages for a putative class of nearby property owners.
The trial court granted class certification, and the Georgia Court of Appeals affirmed the decision. But the Georgia Supreme Court reversed, concluding that the trial court abused its discretion by certifying the class. The crux of the decision addressed whether the plaintiffs satisfied the “commonality” requirement for class certification under Georgia statutes (which borrow heavily from Federal Rule of Civil Procedure 23 for class actions). The court answered in the negative, holding that the plaintiffs failed to provide evidence sufficient to show commonality among class members as required by Dukes.
In Dukes, the Supreme Court held that, while Rule 23 required a plaintiff to show that “there are questions of law or fact common to the class,” the language was easy to misunderstand, as “any competently crafted class complaint literally raises common questions.” Dukes, 131 S.Ct. at 2551. For the court, commonality also required showing that putative class members suffered the same injury. To do that, plaintiffs had to (1) point to a “common contention” that each class member suffered the same instance of wrongful conduct and (2) show that this “common contention” was capable of “classwide resolution.” Id. at 2550-52. “What matters to class certification,” the court opined, “is not the raising of common questions … but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. Thus, courts must subject plaintiffs’ allegations to this kind of “rigorous analysis” to determine whether the prerequisites of Rule 23 are met. Id.
In Ratner, while the plaintiffs pointed to a “common contention” — namely, that their properties were contaminated with hydrogen-sulfide gas released from the sludge fields at the Mill — they failed to show that this “common contention” was capable of a classwide resolution. To do that, the plaintiffs had to prove on a classwide basis that the entire area by which the class was defined was, in fact, contaminated with hydrogen-sulfide gas from the Mill. And to do that, the plaintiffs needed to provide more detail, especially information regarding the gas’s fate-and-transport characteristics. So, the plaintiffs needed to provide, among other things, (1) scientific evidence of the amounts of gas released from the sludge fields; (2) evidence of the rate of release; and (3) evidence of exactly how the plaintiffs expected the gas to move through the air upon release. Here, the plaintiffs did not provide any of this information. Thus, they failed to satisfy the commonality requirement.
Toward the end of its analysis, the Ratner court acknowledged that the record contained some “anecdotal” evidence of hydrogen-sulfide gas affecting areas around the Mill. But this evidence alone was not enough to satisfy Dukes’ heightened standard. So, for example, while the plaintiffs proffered evidence of multiple complaints to Georgia-Pacific about the corrosion of air-conditioning units in the vicinity of the Mill, the court found that several of these complaints did not originate within the designated class area. Also, the court stated that, while two air-conditioning technicians testified that they observed corrosion in a number of air-conditioning units in the Mill’s vicinity, the plaintiffs failed to provide any testing of the corroded components to determine whether any particular corrosion resulted from hydrogen-sulfide exposure. Without such proof, the court held that the plaintiffs’ opinion regarding corrosion amounted to “conjecture” — evidence insufficient to certify the class.
In the wake of Dukes and cases like Ratner, mere assertions that there are common issues will not be enough to pass a rigorous court analysis. Dukes gave courts the green light to probe behind pleadings to determine whether plaintiffs have pled facts sufficient to support class certification. Interestingly, the Ratner court insisted that its decision should not be construed to suggest that parties will never be able to certify a class in environmental mass-tort cases. That said, given the individualized nature of exposure in mass-tort cases — e.g., determining whether noxious fumes from a plant affected individual, nearby parcels of land in a common manner — it simply will not be easy to certify classes in these cases going forward.