Gintis v. Bouchard Transportation Co.

United States Court of Appeals
For the First Circuit
No. 09-1717
MURRAY GINTIS, ET. AL,
Plaintiffs, Appellants,
v.
BOUCHARD TRANSPORTATION COMPANY, INC., ET. AL,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,* and Selya, Circuit Judge.
Jason B. Adkins, with whom John Peter Zavez, Noah Rosmarin,
and Adkins, Kelston & Zavez, P.C. were on brief, for appellants.
Ronald W. Zdrojeski, with whom Linda L. Morkan, Peter R.
Knight, Robinson & Cole, LLP, Austin P. Olney, Robert G. Goulet,
Christopher DeMayo, and Dewey & LeBoeuf, LLP were on brief, for
appellees.
February 23, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. A fuel barge owned and
operated by defendants discharged a substantial amount of oil into
the waters of Buzzards Bay in southeastern Massachusetts.
Plaintiffs are owners of residential waterfront property on the bay
who brought suit as individuals and as members of a proposed class.
The district court denied class certification, but because the
court did not subject the parties’ contentions to the plenary
analysis that precedent requires, we vacate the judgment and
remand.
I
Defendants (collectively, Bouchard) owned and operated
both the tugboat Evening Tide and the fuel barge Bouchard No. 120
in tow across Buzzards Bay on April 27, 2003. The vessels strayed
off course, and the barge struck a reef west of the clearly marked
shipping channel, spilling as much as 98,000 barrels of fuel oil,
and contaminating about 90 miles of the shore.
The cleanup efforts were directed initially by a “Unified
Command,” drawn from the United States Coast Guard, the
Massachusetts Department of Environmental Protection and Bouchard,
and later by a “Licensed Site Professional” (LSP) acting on behalf
of Bouchard but under the supervision of the Commonwealth. The
Command divided the shoreline into 149 segments, which Shoreline
Cleanup Assessment Teams inspected and categorized according to the
degree of oiling observed (clean, very light, light, moderate,
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heavy), the final tally being that 120 of the 149 segments were
contaminated. The observations were collected along with
information from other sources and used to produce maps identifying
both the location of oil and the degree of oiling along the water’s
edge. The LSP then used the same segment and degree-of-oiling
references to evaluate the effectiveness of the cleanup efforts,
which the LSP declared complete as to any segment that posed no
significant risk to human health, safety, public welfare, or the
environment. Those segments subject to very light or light oiling,
and those including stretches of sandy beach subject to moderate
oiling, were certified to pose no such risk in May 2004. The
segments remaining (subject to moderate and heavy oiling) were,
with two apparent exceptions, certified in August 2006,1 and the
Commonwealth approved the LSP’s comprehensive assessment in October
2006.
Plaintiffs sued in April 2006, raising three claims, one
under Massachusetts General Law ch. 21E, § 5 (imposing strict
liability for damage to real property on the owner of a vessel from
which oil has spilled), a second for violation of Massachusetts
General Law ch. 91, § 59A (providing double damages for the
negligent discharge of petroleum), and a third for common law
nuisance. Plaintiffs moved the district court to certify a class
1
Despite the late date of certification, it appears that
there were no documented closures of recreational areas following
the spill.
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consisting of all persons having an interest in property damaged by
the spill, save for shorefront residents of the town of
Mattapoisett, who had been certified as their own class in a state
court action against the defendants.
The district court denied the motion for class
certification upon making a finding under Federal Rule of Civil
Procedure 23(b)(3) that common issues of law and fact do not
predominate throughout the many potential claims of those who own,
or own interests in, the bay shoreline. The judge noted that
Bouchard has not conceded liability to any individual plaintiffs,
that on the public nuisance claim plaintiffs must show both
unreasonable interference and special injury to each claimant, and
that plaintiffs must establish compensatory damages specific to
each piece of property. The court relied heavily on the denial of
class certification in Church v. General Electric Co., 138 F. Supp.
2d 169 (D. Mass. 2001), which had stressed that recovery for
contamination of land downstream from a point of toxic discharge
into a river would require parcel-by-parcel determinations as to
injury and damages.
II
Decisions on class certification must rest on rigorous
analysis, Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982); Smilow
v. Sw Bell Mobile Sys., 323 F.3d 32, 38 (1st Cir. 2003), a standard
that we think is not met by the district court’s opinion, which
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listed the elements to be proven by evidence that ultimately must
speak to individual claims, and cited one precedent example among
cases going different ways. Although the district court’s fact
finding was too sparse to provide a prudent basis for us to say
that a class should have been certified, we can say that plaintiffs
presented substantial evidence of predominating common issues that
called for a searching evaluation.
To begin with, Church does not support a general rule
that pollution torts charged against a single defendant escape
class treatment on the ground that the requirements to show injury,
cause and compensatory amount must be sustainable as to specific
plaintiffs. If that were the law, the point of the Rule 23(b)(3)
provision for class treatment would be blunted beyond utility, as
every plaintiff must show specific entitlement to recovery, and
still Rule 23 has to be read to authorize class actions in some set
of cases where seriatim litigation would promise such modest
recoveries as to be economically impracticable. Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 617 (1997); Smilow, 323 F.3d at 41.
Thus the Supreme Court has said, “[e]ven mass tort cases arising
from a common cause or disaster may, depending on the
circumstances, satisfy the predominance requirement.” Amchem, 521
U.S. at 625. Although Church is one example of a single
tortfeasor-multiple victim case in which certification was denied,
others in the same genre go the other way. See, e.g., In re Methyl
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Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 241 F.R.D. 435,
447 & nn. 98-104 (S.D.N.Y. 2007) (collecting cases involving a
single incident or cause of harm where certification was granted);
see also Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 910-11 (7th
Cir. 2003) (noting that case law on “the appropriateness of class
action treatment in pollution cases” is divided and collecting
cases). Whether Church’s reasoning survives Smilow is a question
we need not address; here, it is enough to note such counter
examples on the books, and the need for a trial court to come to
grips with the actual alternatives of common versus individual
litigation in the specific circumstances.
When that is done on remand, the focus will be on the
plaintiffs’ claim that common evidence will suffice to prove
injury, causation and compensatory damages for at least a very
substantial proportion of the claims that can be brought by
putative class members. The proffer of common evidence goes beyond
Bouchard’s admission of negligence in causing the spill, and
includes the contamination and clean-up records that will be
offered to show harm to individual ownership parcels. Bouchard, to
be sure, says not so fast, for it denies that records of the spill
and its aftermath are exact enough to serve as proof keyed to very
many specific parcels, and the briefs before us contend strenuously
over the evidentiary adequacy of the documentation in question.
But Bouchard’s very opposition to the use of the arguably helpful
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records seems to promise that most or all cases, if individually
litigated, would require repetitious resolution of an objection by
Bouchard that is common to each one of them. Bouchard’s position,
in other words, apparently guarantees a crucial common issue of
great importance in the event of individual litigation.
Bouchard has also made it abundantly clear that appraisal
methodology will be another highly significant common issue.
Plaintiffs have offered affidavits of their expert economist in
support of a class-wide methodology for appraising damages
depending on severity and duration of contamination. Bouchard’s
effort to discredit this approach apparently portends a fight over
admissibility and weight that would be identical in at least a high
proportion of cases if tried individually.
It is enough to say here that Bouchard’s arguments in
this appeal appear to show that substantial and serious common
issues would arise over and over in potential individual cases.
Indeed, the only apparent mitigation of this prospect of
duplicative litigation lies in the possibility that not many
individual actions would be brought if separate actions were the
only course, and this implicates the second condition for
certification under paragraph (3), that class litigation be
superior to a string of individual plaintiffs going alone. While
superiority is a separate base to be touched, it is addressed by
many of the considerations that inform a trial court’s judgment
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call about how clearly predominant the common issues must be. See
Smilow, 323 F.3d at 41-42. Here there is evidence that may well go
to the very reason for Rule 23(b)(3), mentioned before (i.e., to
make room for claims that plaintiffs could never afford to press
one by one), since the record contains one estimate that potential
individual recoveries are probably in the $12 to $39 thousand
range. Given the elements of injury, causation and compensation on
which Bouchard intends to join issue, there is a real question
whether the putative class members could sensibly litigate on their
own for these amounts of damages, especially with the prospect of
expert testimony required. Like predominance, the issue of
superiority is thus a serious one in these circumstances and should
be addressed thoroughly.
We repeat that the district court’s spare treatment of
the contending factual claims makes it inadvisable for us to decide
here whether denying class certification (on damages alone or on
all issues, see Fed. Rule Civ. Proc. 23(c)(4); Smilow, 323 F.3d at
40-41) would be an abuse of discretion. But ruling on
certification without grappling in detail with the parties’
contending proffers and arguments stopped short of exercising
informed discretion, and for that reason we vacate and remand for
plenary consideration.2 Each party shall bear its own costs.
2
Bouchard argues for affirmance on grounds of issue
preclusion, invoking the judgment of the Massachusetts state court
certifying a class limited to owners of property in Mattapoisett,
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So ordered.
instead of the baywide class originally requested by the named
plaintiffs. But that judgment has no preclusive effect against
these plaintiffs, who were neither parties to the state action nor
in privity with those who were. See Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (preclusive effect in
federal court of state-court judgment is determined by state law);
Sena v. Commonwealth, 629 N.E. 2d 986, 992 (Mass. 1994); Mass.
Prop. Ins. Underwriting Ass’n v. Norrington, 481 N.E.2d 1364, 1366-
67 (Mass. 1985) (“A nonparty to a prior adjudication can be bound
by it only where the nonparty’s interest was represented by a party
to the prior litigation.” (internal quotation marks omitted)).
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