Georgia-Pacific Consumer Products, Lp v. Ratner

295 Ga. 524FINAL COPY
S13G1723. GEORGIA-PACIFIC CONSUMER PRODUCTS, LP
v. RATNER et al.
BLACKWELL, Justice.
The named plaintiffs in this class action own real property in Mallard
Pointe, a residential neighborhood in Effingham County. Nearby, since 1986,
Georgia-Pacific Consumer Products, LP has operated the Savannah River Mill,
a facility that includes more than a hundred acres of sludge fields, into which
Georgia-Pacific puts the solid waste generated at the Mill. As this solid waste
decomposes, the plaintiffs say, hydrogen sulfide gas is released from the sludge
fields. Alleging that their real property has been contaminated by this gas — and
that, as a result, they have been exposed to noxious odors, their use and
enjoyment of their property has been impaired, and the value of their property
has diminished — the plaintiffs sued Georgia-Pacific for nuisance, trespass, and
negligence. The plaintiffs sought not only to recover monetary damages for
themselves, but they proposed to seek relief for a class of other nearby property
owners.
The trial court permitted them to do so, certifying a class that consists of
the owners of 67 parcels of real property in and around Mallard Pointe.1
Georgia-Pacific appealed the certification of the class,2 and the Court of Appeals
1
Generally speaking, these 67 properties are in a contiguous area to the west of Fort
Howard Road. The Mill is situated just to the east of Fort Howard Road. Of the properties
in the class area, the lots in Mallard Pointe — a neighborhood that is located just off Fort
Howard Road — and a few other properties on Fort Howard Road appear to be the closest
in proximity to the sludge fields at the Mill. To be exact, the trial court defined the class as
follows:
All citizens of the State of Georgia who, as of November 18, 2010, owned
property lying, in whole or in part, within an area of land lying in Effingham
County, Georgia, and bounded as follows:
On the east by a line running along the west side of the right of
way of Fort Howard Road between the intersection of Fort
Howard Road and Seckinger Ford Road and the south side of
the right of way of the railroad line that serves the Georgia-
Pacific plant;
On the north by a line running along the south side of said
railroad right of way between For[t] Howard Road and Rincon-
Stillwell Road;
On the west by a line running along the east side of the right of
way of Rincon-Stillwell Road; [and]
On the south by a line running along the north side of the right
of way of Bunyan Kessler Road beginning at Rincon-Stillwell
Road and going in an easterly directly to a point at Latitude
32.30582649 and Longitude minus 81.21047668 and thence
easterly along a straight line to the intersection of Fort Howard
Road and Seckinger Ford Road.
Expressly excluded from membership in the class are [Georgia-Pacific], its
related corporations and all directors, officers and employees of [Georgia-
Pacific].
This class definition identifies the members of the class with enough precision.
2
See OCGA § 9-11-23 (g) (“A court’s order certifying a class or refusing to certify
a class shall be appealable in the same manner as a final order to the appellate court which
would otherwise have jurisdiction over the appeal from a final order in the action.”).
2
affirmed, Georgia-Pacific Consumer Products, LP v. Ratner, 323 Ga. App. 203,
203-212 (746 SE2d 829) (2013), although three of its judges dissented. See id.
at 213-221 (Branch, J., dissenting). Upon the petition of Georgia-Pacific, we
issued a writ of certiorari to review the decision of the Court of Appeals. We
conclude that the trial court abused its discretion when it certified the class, and
we reverse the judgment of the Court of Appeals.
1. “The class action is an exception to the usual rule that litigation is
conducted by and on behalf of the individual named parties only,” Comcast
Corp. v. Behrend, ___ U. S. ___, ___ (II) (133 SCt 1426, 185 LE2d 515)
((2013) (citation and punctuation omitted), and consistent with its exceptional
nature, a class action is permitted only in the limited circumstances described in
OCGA § 9-11-23.3 The party seeking to represent a class “bear[s] the burden of
proving that class certification is appropriate.” Carnett’s, Inc. v. Hammond, 279
3
Many provisions of OCGA § 9-11-23 were borrowed from Federal Rule of Civil
Procedure 23, and for this reason, when Georgia courts interpret and apply OCGA § 9-11-23,
they commonly look to decisions of the federal courts interpreting and applying Rule 23. See,
e.g., State Farm M ut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 499 (1) (556 SE2d 114) (2001);
Rite Aid of Ga. v. Peacock, 315 Ga. App. 573, 574 (1) (726 SE2d 577) (2012); Brenntag Mid
South, Inc. v. Smart, 308 Ga. App. 899, 903 (2) (710 SE2d 569) (2011); Fuller v. Heartwood
11, LLC, 301 Ga. App. 309, 312 (687 SE2d 287) (2009); Gay v. B. H. Transfer Co., 287 Ga.
App. 610, 611, n. 2 (652 SE2d 200) (2007).
3
Ga. 125, 127 (3) (610 SE2d 529) (2005) (citation omitted). See also McGarry
v. Cingular Wireless, LLC, 267 Ga. App. 23, 25 (1) (599 SE2d 34) (2004). In
this case, to permit the certification of a class of plaintiffs, the named plaintiffs
had to satisfy each of the four requirements described in OCGA § 9-11-23 (a)
— numerosity,4 commonality,5 typicality,6 and adequacy of representation7 —
as well as the predominance requirement of OCGA § 9-11-23 (b) (3).8 See
American Debt Foundation v. Hodzic, 312 Ga. App. 806, 808 (720 SE2d 283)
(2011). To satisfy these requirements, it was not enough for the plaintiffs simply
to have alleged that they were satisfied. Wal-Mart Stores, Inc. v. Dukes, ___
4
OCGA § 9-11-23 (a) (1) (“The class is so numerous that joinder of all members is
impracticable[.]”).
5
OCGA § 9-11-23 (a) (2) (“There are questions of law or fact common to the
class[.]”).
6
OCGA § 9-11-23 (a) (3) (“The claims . . . of the representative parties are typical of
the claims . . . of the class[.]”).
7
OCGA § 9-11-23 (a) (4) (“The representative parties will fairly and adequately
protect the interests of the class.”).
8
OCGA § 9-11-23 (b) (3) (“[T]he questions of law or fact common to the members
of the class predominate over any questions affecting only individual members, and . . . a
class action is superior to other available methods for the fair and efficient adjudication of
the controversy.”). For a class action to proceed, all the requirements of OCGA § 9-11-23
(a) must be satisfied, as well as one of the three requirements described in OCGA § 9-11-23
(b). Here, the plaintiffs have relied exclusively upon OCGA § 9-11-23 (b) (3), and that is the
only paragraph of subsection (b), therefore, with which we are concerned.
4
U. S. ___, ___ (II) (A) (131 SCt 2541, 180 LE2d 374) (2011). See also Fortis
Ins. Co. v. Kahn, 299 Ga. App. 319, 321-322 (1) (683 SE2d 4) (2009). Rather,
the plaintiffs had to come forward with evidence to prove their satisfaction of
the statutory requirements. See Dukes, ___ U. S. at ___ (II) (A). See also Jones
v. Douglas County, 262 Ga. 317, 324 (2) (418 SE2d 19) (1992); Rite Aid of Ga.
v. Peacock, 315 Ga. App. 573, 574-575 (1) (726 SE2d 577) (2012).
Whether to certify a class is a matter committed to the discretion of the
trial court, State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 499-500 (1)
(556 SE2d 114) (2001), but any exercise of that discretion must comport with
the statutory requirements. Moreover, the certification of a class is appropriate
only to the extent that “the trial court is satisfied, after a rigorous analysis, that
[the statutory requirements] have been satisfied.” Gen. Tel. Co. of the Southwest
v. Falcon, 457 U. S. 147, 161 (III) (102 SCt 2364, 72 LE2d 740) (1982). See
also Rite Aid, 315 Ga. App. at 574-575 (1); Kahn, 299 Ga. App. at 321 (1). As
a part of this rigorous analysis, “sometimes it may be necessary for the court to
probe behind the pleadings before coming to rest on the certification question.”
Falcon, 457 U. S. at 160 (II). Indeed, as the United States Supreme Court has
explained:
5
Frequently that rigorous analysis will entail some overlap with the
merits of the plaintiff’s underlying claim. That cannot be helped.
The class determination generally involves considerations that are
enmeshed in the factual and legal issues comprising the plaintiff’s
cause of action.
Dukes, ___ U. S. at ___ (II) (A) (citation and punctuation omitted). See also
Rite Aid, 315 Ga. App. at 575 (1); McGarry, 267 Ga. App. at 25 (1).
Upon our review of the record, we conclude that the plaintiffs failed to
come forward with evidence sufficient to show the commonality of the
particular class that was certified. Georgia-Pacific raises some fair questions
about typicality and predominance as well,9 but we do not have to reach those
questions today. Because commonality is lacking, the trial court abused its
discretion when it certified the class, and the Court of Appeals should have
reversed the certification.
2. To show commonality, the plaintiffs had to demonstrate that “[t]here
are questions of law or fact common to the class,” OCGA § 9-11-23 (a) (2), but
9
Georgia-Pacific does not dispute that the certified class is sufficiently numerous, see
OCGA § 9-11-23 (a) (1), and aside from the question of typicality, they appear not to dispute
that the named plaintiffs are adequate representatives of the class. See OCGA § 9-11-23 (a)
(4). See also Horton v. Goose Creek Independent School Dist., 690 F2d 470, 485 (IV), n. 27
(5 th Cir. 1982) (“The requirements [of typicality and adequacy] are closely related, for
demanding typicality on the part of the representative helps ensure his adequacy as a
representative.”).
6
as the United States Supreme Court recently explained in Dukes, “[t]hat
language is easy to misread, since any competently crafted class complaint
literally raises common questions.” ___ U. S. at ___ (II) (A) (citation and
punctuation omitted). Every putative class action presents questions that are, in
a sense, “common” to the class. But for commonality under OCGA § 9-11-23
(a) (2), not just any “common” questions will do. Commonality depends on the
presence of a particular sort of “common” question, and simply reciting a list of
questions that are “common” in another sense contributes nothing to the
commonality inquiry.10 Dukes, ___ U. S. at ___ (II) (A).
10
The trial court — and the majority of the Court of Appeals — appear to have fallen
into the very analytical trap against which the United States Supreme Court warned in Dukes.
In its order certifying the class, the trial court recited a list of “common” questions that,
although “common” in a sense, do not show the sort of commonality required for OCGA §
9-11-23 (a) (2). For instance, the trial court noted that the case involves “common” questions
concerning:
• The materials used by Georgia-Pacific at the Mill, including the ways
in which those materials are stored and used;
• The manner in which Georgia-Pacific operates the Mill, including its
sludge fields;
• The reasons for releases of hydrogen sulfide gas from the sludge fields;
• The potential effects of a release of hydrogen sulfide gas, including the
toxic and corrosive properties of the gas;
• The nature and adequacy of precautions taken by Georgia-Pacific to
prevent the release of hydrogen sulfide gas;
• The “liability of Georgia-Pacific”;
• The “common affirmative defenses raised by Georgia-Pacific”; and
• The remedies available to members of the class, including the
appropriate measure of damages, exemplary damages, and expenses of
7
To establish the sort of commonality that OCGA § 9-11-23 (a) (2)
requires, the plaintiffs were required to show “that the class members have
suffered the same injury.”11 Dukes, ___ U. S. at ___ (II) (A) (citation and
punctuation omitted). See also Rite Aid, 315 Ga. App. at 575 (1) (a). To do so,
the plaintiffs had to point to a “common contention” that each member of the
class had suffered the same instance or course of wrongful conduct, see Dukes,
___ U. S. at ___ (II) (A), and the plaintiffs also had to show that this “common
contention” “is capable of classwide resolution — which means that
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.”12 Id. “What matters to class
litigation.
The majority in the Court of Appeals recited a similar list of “common” questions. See
Ratner, 323 Ga. App. at 208 (1) (b). No doubt, these questions may be “common” in a sense,
but they do not show the commonality that the statute requires, and “[r]eciting these
questions is not sufficient to [warrant] class certification.” Dukes, ___ U. S. at ___ (II) (A).
11
To be clear, when it referred in Dukes to the need to demonstrate “that the class
members have suffered the same injury,” we do not understand the Supreme Court to have
meant that all the class members must have sustained precisely the same damages. See In re
Deepwater Horizon, 739 F3d 790, 810-811 (IV) (A) (5 th Cir. 2014) (“[T]he legal requirement
that class members have all ‘suffered the same injury’ can be satisfied by an instance of the
defendant’s injurious conduct, even when the resulting injurious effects — the damages —
are diverse.”).
12
At class certification, plaintiffs need not prove the merit of their “common
contention” — that is, they need not definitively prove that each and every member of the
class did, in fact, suffer the “same injury.” But they have to show that their “common
8
certification is not the raising of common questions — even in droves — but,
rather the capacity of a classwide proceeding to generate common answers apt
to drive the resolution of the litigation.” Id. (citation and punctuation omitted;
emphasis in original). Although Dukes makes these points more clearly than our
own precedents, it is entirely consistent with those precedents. See Carnett’s,
279 Ga. at 129 (4) (“A common question is not enough when the answer may
vary with each class member and is determinative of whether the member is
properly part of the class.” (Citation omitted; emphasis in original.)).
The plaintiffs in this case pointed to a “common contention” that might
properly form the basis for a finding of commonality, namely, that their
properties were contaminated with hydrogen sulfide gas released from the
sludge fields at the Mill. But pointing to a “common contention” is only the first
step. The plaintiffs also had to show that this “common contention” is “capable
of classwide resolution” with respect to the particular class that the trial court
certified. And that is where they came up short.
contention” is capable of being proved at once for the whole class. To do that, they have to
point to some evidence by which they could prove the merit of their “common contention.”
9
We do not find in the record evidence by which the plaintiffs might be
able to prove on a classwide basis that the entire area by which the class was
defined, in fact, was contaminated with hydrogen sulfide gas from the sludge
fields. There is, for instance, no scientific evidence of the amounts of gas
released from the sludge fields, no evidence of the rate of release, no evidence
of the extent to which the amounts released and rates of release varied over time,
and no evidence of exactly how the gas would be expected to move through the
air upon its release. As for the direction in which gas would be expected to
move, the only evidence of local wind patterns is that the prevailing winds over
the sludge fields blow away from the class area, and the winds blow from the
sludge fields toward any specific location within the class area only about four
percent of the time. There is no evidence of the rate at which the gas would be
expected to dissipate following its release, and there is no evidence of air quality
sampling across the class area at any time.13
13
The dissent relies on Smith v. ConocoPhillips Pipe Line Co., 2014 U.S. Dist. LEXIS
43172 (E.D. Mo. Mar. 31, 2014), and Jackson v. Unocal Corp., 262 P3d 874 (Colo. 2011).
In each of these cases, the courts were presented with scientific evidence that tended to show
the contamination of the proposed class area. Smith, 2014 U.S. Dist. LEXIS 43172, at *11-14
(IV) (A); Jackson, 262 P3d at 887-888 (IV) (A). As Jackson notes, “[u]sually, scientific or
objective evidence closely ties the spread of the alleged pollution or contamination to the
proposed class boundaries, as many mass environmental tort cases demonstrate.” 262 P3d
10
The record does contain some anecdotal evidence of hydrogen sulfide gas
in some areas around the Mill, but this anecdotal evidence is not enough to
satisfy a rigorous analysis with respect to the commonality of the particular class
that the trial court certified. First, there is evidence of multiple complaints to
Georgia-Pacific about the corrosion of air-conditioning units in the vicinity of
the Mill. But as best we can tell from the record, a number of these complaints
did not even originate within the area by which the class was defined, and those
that did appear to have originated in a geographically compact and relatively
small portion of the class area, all in Mallard Pointe itself or otherwise along the
far eastern edge of the class area, just across Fort Howard Road from the Mill.14
The class area stretches substantially to the west of the small and compact area
from which these complaints came, and the complaints do not, therefore, tend
at 887 (IV) (A) (citation and punctuation omitted). But “where plaintiffs fail to produce
evidence linking the proposed boundary to the environmental hazard, courts have denied
certification.” Smith, 2014 U.S. Dist. LEXIS 43172, at *10 (IV) (A) (citations omitted).
14
There is evidence of complaints that do not involve the corrosion of air-conditioning
units, but it appears that most of those complaints did not originate within the class area and
that those that did — like the complaints about air-conditioning units — originated in or near
Mallard Pointe.
11
to show that the class area as a whole was contaminated by hydrogen sulfide
gas.
There also is the testimony of two air-conditioning technicians, both of
whom testified that they have observed corrosion in a number of air-
conditioning units in the vicinity of the Mill, which was, they surmised, a result
of excessive hydrogen sulfide exposure. But according to the record, to
determine whether any particular corrosion actually was a result of hydrogen
sulfide exposure, it would be necessary to test the corroded components, and
neither of the technicians has submitted any parts for such testing.
Consequently, their opinion that the corrosion is due to hydrogen sulfide
exposure seems to amount to nothing more than conjecture. And in any event,
one of the technicians testified that the corrosion he observed was near the Mill,
but not within the class area. The other technician said that he saw corrosion in
a few air-conditioning units within the class area and outside Mallard Pointe, but
the locations at which he saw corrosion still were close in proximity — relative
to the class area as a whole — to Mallard Pointe. Without more, evidence of
corrosion at these locations does not tend to show any likelihood that the class
area as a whole was contaminated.
12
There also was evidence from the named plaintiffs themselves, who noted
that they had been exposed to noxious odors at their homes, which they
attributed to hydrogen sulfide gas. But again, the named plaintiffs live in
Mallard Pointe, which sits just across the road from the Mill itself. The idea that
their testimony tends to show that the class area as a whole — which stretches
for some distance to the west of Mallard Pointe — has been exposed to harmful
hydrogen sulfide gas is a dubious one.
From the evidence of record, one fairly could conclude that a number of
people in the vicinity of the Mill — especially those living in Mallard Pointe —
have experienced problems that might be attributable to the alleged release of
hydrogen sulfide gas from the sludge fields at the Mill. But the locations at
which these people have experienced such problems (as evidenced by the
record) do not seem to coincide with the full extent of the class area. Whether
the “common contention” of harmful exposure can be proved on a classwide
basis is in doubt, at least as to the class as the trial court defined it. As Judge
Branch aptly said in her dissent:
[T]he class appears to have been defined not by any logical
determination of the actual effects of the Mill’s numerous and
intermittent releases of hydrogen sulfide on persons and property
13
over a period of years, but rather by means of arbitrarily drawn lines
on a map.
Ratner, 323 Ga. App. at 218 (Branch, J., dissenting) (citation and punctuation
omitted).15
No one should misunderstand us to say that commonality never can be
shown in the context of environmental mass torts, that it cannot be shown in this
case, or even that it cannot be shown in this case as to the class as the trial court
defined it. It certainly is conceivable that the plaintiffs might show the requisite
commonality of that class or another. Cf. Brenntag Mid South, Inc. v. Smart,
308 Ga. App. 899, 902 (2), n. 2, 903-904 (2) (a) (ii) (710 SE2d 569) (2011)
(plaintiffs in class action asserting claims of environmental torts satisfied
commonality requirement with proof that each class member actually was
15
The record bears out the idea that the class was defined “by means of arbitrarily
drawn lines on a map.” According to the testimony of record, the area by which the class was
defined was identified in significant part by a real estate appraiser, who simply drove around
in the vicinity of the Mill, looking for “major roads” and other “specific geographical
boundaries” that “seemed reasonable” to bound the class area. When “it seemed like we were
getting too far away from [the M ill],” the appraiser apparently would turn back and look for
a closer boundary. The appraiser testified that he went in search of the boundaries of the class
area without any scientific analysis of air quality or expected gas movements, without
knowledge of local wind patterns, and without knowledge of other potential nearby sources
of gases that might cause noxious odors. The appraiser also did not rely upon any appraisal
methodology in helping to select boundaries for the class area, admitting explicitly that “it’s
a seat of the pants kind of thing.”
14
evacuated as a result of accidental release of acidic gas, and class was defined
in terms of the locations covered by “evacuation orders as well as expert
consultation as to ‘the actual geographical extent of the chemical plume as it
spread’”). But if the plaintiffs are to satisfy the commonality requirement, they
have some more work to do. The certification of the class was an abuse of
discretion, and the Court of Appeals should have reversed it. Accordingly, we
reverse the judgment of the Court of Appeals.
Judgment reversed. All the Justices concur, except Benham and Hunstein,
JJ., who dissent.
15
MELTON, Justice, concurring.
Although I concur fully in the majority opinion, I write separately to point
out that, for many of the same reasons discussed with regard to commonality,
certification of the class in this case would be inappropriate due to a lack of
typicality. OCGA § 9-11-23 provides that “(a) One or more members of a class
may sue or be sued as representative parties on behalf of all only if: . . . (3) The
claims or defenses of the representative parties are typical of the claims or
defenses of the class.” The named plaintiffs in this case have not been shown to
be typical of the claims or defenses of the proposed class, as its members own
different tracts of land subjected to varying uses (some residential, some
agricultural, some commercial and/or industrial, some vacant and unused) and
located at different distances and directions from the sludge fields in question.
Therefore, the purported class in this instance fails for both lack of commonality
and typicality.
HUNSTEIN, Justice, dissenting.
I must respectfully dissent.
1. The majority’s analysis affords insufficient deference to the trial
court’s determination on class certification in this case. As this Court has noted,
“trial judges have broad discretion in deciding whether to certify a class.”
Carnett’s, Inc. v. Hammond, 279 Ga. 125, 127 (3) (610 SE2d 529) (2005); see
also Jones v. Douglas County, 262 Ga. 317, 323 (2) (418 SE2d 19) (1992)
(“[o]n appellate review . . . ‘the discretion of the trial judge in certifying or
refusing to certify a class action is to be respected in all cases where not
abused’”). “‘Implicit in this deferential standard of review is a recognition of
the fact-intensive basis of the certification inquiry and of the trial court’s
inherent power to manage and control pending litigation.’” Brenntag Mid
South, Inc. v. Smart, 308 Ga. App. 899, 902 (2) (710 SE2d 569) (2011). The
trial court here did conduct the “rigorous analysis” contemplated in Wal-Mart
Stores, Inc. v. Dukes, __ U. S. __ (II) (A) (131 SCt 2541, 180 LE2d 374)
(2011), and concluded that common issues, typical of those faced across the
class, would predominate over issues of an individualized nature. See Griffin
Indus., Inc. v. Green, 297 Ga. App. 354, 35-356 (2) (677 SE2d 310) (2009)
(affirming trial court’s decision to certify class under abuse of discretion
standard of review, while noting that under a de novo standard the outcome of
the appeal may have been different). This determination did not constitute an
abuse of discretion, and it should be affirmed.
First, the trial court was well within its discretion in finding the
commonality requirement to have been satisfied. Georgia-Pacific is the sole
defendant whose single course of conduct has allegedly affected all class
members in a common manner. The plaintiffs have raised a number of common
issues with regard to establishing Georgia-Pacific’s liability, including Georgia-
Pacific’s operations at the Savannah River Mill, its waste disposal practices, and
its safety program; the type and concentration of chemicals emitted from the
Mill and sludge fields; and the properties and toxicity of hydrogen sulfide and
its capacity to cause property damage and ill health effects. The resolution of
all of these issues will depend on the same evidence, no matter the class
member. The answers to all these questions can be generated efficiently, on a
classwide basis, “in one stroke.” Dukes, __ U. S. at __ (II) (A).
2
For similar reasons, the trial court appropriately found that the typicality
requirement has been satisfied. See Liberty Lending Svcs., Inc. v. Canada, 293
Ga. App. 731, 738 (1) (b) (668 SE2d 3) (2008) (typicality satisfied by showing
“that the defendant ‘committed the same unlawful acts in the same method
against [the] entire class’”). Contrary to the view expressed in the concurring
opinion, the fact that the class includes properties with different uses does not
defeat typicality. Though the particular use to which a parcel is put may affect
the measure of damages incurred, the presence of individualized damages issues
does not alter the fact that a single course of conduct on the part of Georgia-
Pacific is alleged to have caused injury to the entire class. See id.; see also
Brenntag, 308 Ga. App. at 906-907 (presence of individualized damages issues
did not defeat typicality or any of the other requirements for class certification).
Moreover, the plaintiffs did not rely on mere allegations in support of their
request for class certification. The plaintiffs presented the deposition testimony
of Georgia-Pacific’s environmental manager, who acknowledged that hydrogen
sulfide was being emitted from the sludge fields and admitted, for example, the
company’s knowledge regarding the noxious odors from these emissions and the
damage caused to air conditioning units on various nearby properties. The
3
plaintiffs also presented testimony from a property appraiser regarding the
methodology employed in ascertaining the class boundaries and the process by
which one would determine the diminution of a property’s value resulting from
environmental contaminants. The plaintiffs presented further testimony
providing specific evidence of damage to the air conditioning units on certain
properties in proximity to the Mill. Accordingly, the plaintiffs satisfied their
duty to establish commonality and typicality with evidence, as opposed to mere
allegations.
Likewise, I would find no abuse of discretion in the trial court’s
conclusion that, on balance, the common issues regarding liability predominate
over the individualized issues involving damages. See Brenntag, 308 Ga. App.
at 906-907 (affirming class certification in suit involving the accidental release
of toxic acid from a chemical storage tank located at the defendant’s facility,
concluding that “‘(c)ommon issues may predominate when liability can be
determined on a class-wide basis, even when there are some individualized
damages issues’”); Flournoy v. Honeywell Intl., Inc., 239 FRD 696 (S.D. Ga.
4
2006) (certifying a Rule 23 (b) (3) class of property owners suing for damages
allegedly caused by pollutants emanating from defendant’s nearby plant).16
2. Though the majority purports to find insufficient commonality among
class members (and hints that it might find typicality and predominance lacking
for the same reasons), the issue the majority actually pinpoints as problematic
is the class definition. Specifically, the majority finds fault with the manner in
which the class boundaries were determined and the potential over- or
underinclusiveness of the class. However, the issue of whether a proposed class
is sufficiently precise and ascertainable is not coextensive with the issue of
commonality. See, e.g., Smith v. ConocoPhillips, 298 FRD 575 (IV) (analyzing
class definition independently of commonality requirement); Jackson v. Unocal,
262 P3d at 887-888 (same). Courts have typically assessed the sufficiency of
a proposed class definition “[i]n keeping with the liberal construction to be
given [to Rule 23].” Charles Alan Wright et al., 7A Fed. Prac. & Proc. Civ. §
1760 (3d ed. 2014). “All that is required is a ‘reasonable’ relationship between
16
See also Smith v. ConocoPhillips Pipe Line Co., 298 FRD 575 (E.D. Mo.
Mar. 31, 2014) (certifying property damage class despite need for individual damages
assessments); Powell v. Tosh, 280 FRD 296 (W.D. Ky. 2012) (same); Jackson v.
Unocal Corp., 262 P3d 874 (Colo. 2011) (affirming certification of property damage
class despite need for individual damages assessments).
5
the evidence and the class boundaries as proposed by the plaintiff.” Jackson v.
Unocal, 262 P3d at 887. See also Smith v. ConocoPhillips, 298 FRD 575 (IV)
(at class certification stage, “[p]laintiffs are not required to adduce definitive
evidence about the extent and scope of the contamination . . . . Plaintiffs need
some evidence that contamination was present in the class area.”).
Assessed under this standard, the evidence here was sufficient to sustain
the class as defined at this stage of the proceedings. According to the plaintiffs,
the farthest point from the class to the sludge fields is approximately .9 miles.
Georgia-Pacific’s environmental manager acknowledged in deposition
testimony that the company has received complaints about the odor from the
Mill from four to five miles away and that the odor from the hydrogen sulfide
gas would reach every member of the proposed class. Testimony from two air
conditioning technicians supports the conclusion that the gases would likely
affect all air conditioning units within the class area. Georgia-Pacific has in fact
received complaints regarding corrosion of air conditioning units up to 2.4 miles
away from the Mill, well beyond the class boundaries, and has assumed
responsibility for replacing an air conditioning unit due to corrosion on at least
one property lying outside the class boundaries. This fact, highlighted by the
6
majority to support its finding of an absence of commonality, actually
establishes just the opposite: in an abundance of caution, the plaintiffs drew
their class boundaries conservatively, deliberately excluding some potential
plaintiffs to avoid creating an over-inclusive class that would truly lack
commonality. See Wright, 7A Fed. Prac. & Proc. Civ. § 1760 (noting that
potential underinclusiveness of a proposed class is not fatal to a class
definition). In short, the evidence supported the plaintiffs’ proposed class
definition, and the majority is wrong to conclude otherwise.
3. Though I disagree with the conclusion that the class as currently
defined is not supported by the current record, I note that the majority’s opinion
expressly contemplates the possibility that the plaintiffs here could still, with
additional evidence, establish the existence of a sustainable class. See OCGA
§ 9-11-23 (c) (1), (d) (both subsections giving trial courts the authority, prior to
a decision on the merits, to alter or amend orders regarding class certification or
case management); see also Fuller v. Heartwood 11, 301 Ga. App. 309 (687
SE2d 287) (2009) (noting absence of fixed deadline in statute or court rules by
which class must be certified). It thus remains to be seen whether this case will
move forward as a class action.
7
I am authorized to state that Justice Benham concurs in this dissent.
Decided July 11, 2014.
Certiorari to the Court of Appeals of Georgia – 323 Ga. App. 203.
Hull Barrett, David E. Hudson, William J. Keogh III, Ellis, Painter,
Ratterree & Adams, Ryburn C. Ratterree, Tracy A. O’Connell, for appellant.
Bell & Brigham, John C. Bell, Jr., Oliver Maner, Benjamin M. Perkins,
Timothy D. Roberts, Melissa L. Bailey, for appellees.
Brinson Askew Berry Seigler Richardson & Davis, Robert M. Brinson,
Norman S. Fletcher, Troutman Sanders, William M. Droze, Douglas A.
Henderson, McNatt, Greene & Peterson, Hugh B. McNatt, Randall D. Quintrell,
Robbins, Russell, Englert, Orseck, Untereiner & Sauber, Alan E. Untereiner,
Matthew M. Madden, Skadden, Arps, Slate, Meagher & Flom, John H. Beisner,
Geoffrey M. Wyatt, Jessica D. Miller, GreenLaw, Steven D. Caley, amici curiae.
8