Amended July 13, 2017 Laurie Freeman, Sharon Mockmore, Beccy Boysel, Gary D. Boysel, Linda L. Goreham, Gary R. Goreham, Kelcey Brackett, and Bobbie Lynn Weatherman v. Grain Processing Corporation

IN THE SUPREME COURT OF IOWA
No. 15–1942
Filed May 12, 2017
Amended July 13, 2017
LAURIE FREEMAN, SHARON MOCKMORE, BECCY BOYSEL, GARY D.
BOYSEL, LINDA L. GOREHAM, GARY R. GOREHAM, KELCEY
BRACKETT, and BOBBIE LYNN WEATHERMAN,
Appellees,
vs.
GRAIN PROCESSING CORPORATION,
Appellant.
Appeal from the Iowa District Court for Muscatine County,
Thomas G. Reidel, Judge.
Defendant appeals district court ruling certifying case as a class
action. DISTRICT COURT CLASS CERTIFICATION ORDER
AFFIRMED.
Michael R. Reck, Mark McCormick, Charles F. Becker, and
Kelsey J. Knowles of Belin McCormick, P.C., Des Moines; Steven J.
Havercamp and Eric M. Knoernschild of Stanley, Lande & Hunter, P.C.,
Muscatine; and Joshua B. Frank of Baker Botts L.L.P.,
Washington, D.C., for appellant.
Sarah E. Siskind and Scott A. Entin of Miner, Barnhill & Galland,
P.C., Madison, Wisconsin; James C. Larew of Larew Law Office,
Iowa City; and Claire M. Diallo of Browne, Diallo & Roy, LLP,
Princeton Junction, New Jersey, for appellees.
2
WATERMAN, Justice.
In this appeal, we must decide whether the district court abused
its discretion by certifying this case as a class action. The plaintiffs are
residents of Muscatine, Iowa, who live near a corn wet milling plant. The
plaintiffs allege air pollution from the plant interferes with the use of
their property. They have filed this lawsuit alleging state common law
and statutory claims based on nuisance, trespass, and negligence
theories. In a prior appeal, we held their claims were not preempted by
the Federal Clean Air Act (CAA). Freeman v. Grain Processing Corp., 848
N.W.2d 58, 94 (Iowa 2014). On remand, the district court, over
defendant’s objections, granted the plaintiffs’ motion for class
certification and divided the class into two subclasses. For the reasons
explained below, we affirm the class certification order.
I. Background Facts and Proceedings.
Grain Processing Corporation (GPC) has operated its corn wet
milling facility in Muscatine since 1943, converting corn kernels into
products for commercial and industrial use. On April 23, 2012, eight
Muscatine residents living near GPC filed a putative class action on
behalf of “themselves and others who have resided within one and one-
half miles from the perimeter” of GPC’s facility within the preceding five
years, an estimated 4000 residents. Their petition provides this overview
of their claims:
The plaintiffs allege the corn wet milling operation at GPC’s
facility creates hazardous by-products and harmful
chemicals, many of which are released directly into the
atmosphere. . . . They assert the polluting chemicals and
particles are blown from the facility onto nearby properties.
They note particulate matter is visible on properties, yards,
and grounds and various chemical pollutants are also
present. Compounding these adverse effects, according to
the plaintiffs, GPC has used, continues to use, and has failed
to replace its worn and outdated technology with available
3
technology that would eliminate or drastically reduce the
pollution. The plaintiffs assert these emissions have caused
them to suffer persistent irritations, discomforts,
annoyances, inconveniences, and put them at risk for
serious health effects.
Id. at 63–64. The plaintiffs limited their damage claims to loss of use and
enjoyment of property, foregoing claims for diminution in value or
personal injury.
GPC moved for summary judgment, asserting plaintiffs’ common
law and statutory claims were preempted by the CAA and Iowa Code
chapter 455B (2011), Iowa’s counterpart to the CAA. GPC’s motion
alternatively argued the lawsuit raised nonjusticiable political questions.
The district court granted GPC’s motion for summary judgment based on
preemption and the political-question doctrine. The district court relied
on a key federal preemption decision that subsequently was reversed on
appeal. On our review, we concluded the plaintiffs’ claims were not
preempted or barred by the political-question doctrine. Id. at 83–85, 88–
89, 93–94. We reversed the summary judgment and reinstated the
lawsuit against GPC, relying in part on the new federal appellate decision
filed after the district court’s ruling. See id. at 65 n.2 & 94. We
remanded the case to the district court.
A. Plaintiffs’ Motion for Class Certification. The plaintiffs
moved for class certification after remand. GPC resisted class
certification on several grounds. The plaintiffs argued common
questions of law and fact predominated over individual claims—a
fundamental requirement for class certification. Common questions
included “whether GPC violated its duty of care, whether the haze, odor,
and smoke emitted from GPC [were] the product of negligence, and
whether such emissions constituted negligence or unlawful trespass.”
The plaintiffs proposed a plan for adjudicating their claims. The plan
4
focused on three prongs: GPC’s common course of conduct, proof of
harm, and calculation of damages.
First, the plaintiffs proposed to show GPC’s common course of
conduct in knowingly creating a nuisance. They pointed to internal
emails indicating GPC was aware of the pollution and the need to update
equipment to improve air quality. For example, in 2008, Derek Biggs,
GPC’s plant manager, emailed coworkers observing, “At times when I was
there, the parking lot and south end of Muscatine [were] covered in a
haze, and if we had that odor, haze, etc. in Washington, we would have
serious problems with the locals.” Mick Durham, GPC’s environmental
director, received an email in 2010 from Kurt Levetzow, an employee of
the Department of Natural Resources (DNR) who stated he was “amazed
at a bluish colored haze that was leaving GPC’s property and blanketing
the residential neighborhood across from the plant.” A 2012 email from
Bill Chrisman, GPC senior process engineer, to Durham disclosed that
over one weekend the facility’s dryers caused “the neighborhood [to be]
so smoky across the street that it was fairly hard to see, not to mention
breathe.” GPC engineers described the dryers as “antiquated,”
“deteriorating,” “run down,” and “older higher polluting.”
The plaintiffs proposed to prove that GPC delayed fixing the
problems by choosing to focus its resources elsewhere. Technologies to
reduce emissions were available but not implemented at GPC’s
Muscatine plant. The plaintiffs characterized this common proof as the
“most significant portion of the trial,” stating,
Whether it be a class case or an individual trial, there
is going to be a lot of evidence, a significant amount of
evidence regarding the culpability of GPC’s conduct. That
evidence will be the same, over and over again, for every
single class member. Regardless if this case is tried once or
tried hundreds or thousands of times, the same witnesses,
5
the same documents will be testified about, the same issues
[will be presented].
The plaintiffs noted, “[T]hese conditions and GPC’s knowledge of them
are facts and evidence that reside at the heart of every class member’s
claims.”
In the second phase, the plaintiffs proposed to focus on proof of
harm: that every resident within one-and-a-half miles suffered a
nuisance. The plaintiffs would offer three categories of evidence. The
first addressed causation; it “revolve[d] around GPC’s public admissions
that its operation had been causing the smoke, the odor and the haze
that had concerned the Muscatine community for years.”
The next addressed harms suffered by the residents. The plaintiffs
proposed to offer testimony from twenty to thirty “normal” persons living
within the class boundaries, describing the common character of the
harm. The plaintiffs submitted over 100 declarations from residents.
Most described the smell emitted from the GPC plant as “burned corn” or
“rotten eggs.” Many mentioned dust-like particles accumulating on their
lawns and homes. Sometimes the dust was white or gray, and
sometimes it was darker. Most declarations indicated the smell or ash
happened daily or nearly every day and mentioned symptoms of burning
eyes and irritated sinuses. Many said they could not open windows or
enjoy the outdoors due to the smell and dust. The plaintiffs alleged these
declarations, together with residents’ testimony, met the objective
standard for nuisance: that normal persons in the community found the
conditions offensive, annoying, or intolerable. The plaintiffs stated,
Plaintiffs are prepared to present testimony from
normal persons from all over the class area who regard
GPC’s pollution as definitely offensive, seriously annoying or
intolerable. Whether they are, in fact, normal persons living
in the community will be a jury question. But if so, and if
the jury credits their testimony, it will establish that GPC
6
created a nuisance at their properties, and if in every portion
of the class area normal persons testify that they
experienced a nuisance, then it is permissible for a jury to
infer that a nuisance has been suffered throughout the class
area.
GPC could then present conflicting testimony from other residents within
the class boundaries who did not experience similar harm or were not
bothered by the emissions.
The final type of evidence plaintiffs intended to offer was air
modeling data from Dr. Paul Rosenfeld. Dr. Rosenfeld plotted the
dispersion of three types of emissions: volatile organic compounds
(VOCs), particulate matter (PM10), and sulfur dioxide. These emissions
were proxies for odor, smoke, and haze, respectively. Dr. Rosenfeld used
AERMOD, an EPA-approved modeling algorithm that accounts for wind
direction, wind speed, temperature, humidity, precipitation, and certain
obstructions to estimate where the wind blew particles from GPC.
Dr. Rosenfeld’s model revealed pollutant concentrations and variations
over time across the class area. He also developed a “wind rose”
analysis, based on the sixteen cardinal wind directions, which he used to
quantify the amount of time each property received “direct hits,” or was
downwind from, the emissions. Dr. Rosenfeld’s data showed “the
presence of the same pollutants frequently and repeatedly on every
property in the class, and . . . the presence of those pollutants at
properties closely surrounding the properties of the testifying normal
persons.” At the class certification hearing, the plaintiffs’ counsel
explained,
And if you look at this, what you don’t see, Your
Honor, is during the hour of 5:00 to 6:00 a.m., a single
solitary orange little cloud only covering the red cross that is
Ms. Mockmore’s property. What you do see is that when
GPC’s soup of pollutants are blown at Ms. Mockmore’s
property, all of the other parcels and properties in close
7
proximity to Ms. Mockmore’s are similarly hit by GPC’s soup
of pollutants.
And the Mockmore’s property is not isolated in this
observation, Your Honor. And this is important because this
is why it supports the inference that we’re asking the jury to
make in this case, that when Ms. Mockmore or this normal
person or that normal person testifies about his or her
experience with GPC’s pollutants . . . it is a reasonable
inference for the jury to infer that similar properties in close
proximity experience a similar nuisance[.]
“All of this evidence in combination, these three categories of evidence,”
the plaintiffs argued, “will support a reasonable inference by the jury that
the nuisance conditions existed on every property in the class area.”
Finally, for the third phase of the plaintiff’s proposed trial strategy,
the plaintiffs suggested a formula for calculating damages. Initially, they
proposed using a simple per diem formula, in which the jury would
assess a per-hour amount ($10 to $15) for the time each resident lived in
the area. Alternatively, the plaintiffs proposed another, more exacting
formula in which the jury’s assigned baseline per-hour value would be
multiplied by each property’s “direct hit” hours and prorated based on
each property’s pollutant concentration. Pollution concentration,
plaintiffs argued, could be calculated as follows:
The formula takes the average concentrations of each of
[VOCs, PM10s, and sulfur dioxide] present on each parcel
and then sums them up to arrive at a property-specific
concentration total and to determine how that compares to
the total concentrations of the hardest hit property. And we
refer to the hardest hit property as the baseline for all
others. The formula divides the concentration total for each
property into the . . . baseline total.
Plaintiffs acknowledged that because the model measures only the
amount of time a property is hit by emissions, lower concentration totals
may measure emissions that residents would not notice. It would be left
for the court and jury to identify what total concentration level, if any,
constituted a nuisance. The plaintiffs admitted this formula does not
8
account for time class members spent asleep or away from their
property, but asserted the formula was permitted under our caselaw
allowing approximation of damages.
To the extent issues remained concerning individual damages, the
plaintiffs contended these issues could be litigated during a “claims
administration process typical to class actions.” During this process,
individual factors such as tenure of the residents and proximity to other
sources of pollution could be addressed.
B. GPC’s Resistance to Certification. GPC argued the residents’
claims were inherently individual, and as such, individual issues
predominated over those common to the class. GPC pointed to variances
in testimony submitted by the residents. For example, their descriptions
of GPC’s emissions differed, such as “yellow dust,” “syrupy, sticky
residue,” “similar to pencil shavings,” “sticky, brownish tan particulates,”
“small black pellets like peppercorns,” or “dust that looks like fur.” Some
residents had moved into the neighborhood with knowledge of the
emissions, while others were unaware before moving. The neighbors had
lived in the area for varying periods, some moving to the area after the
lawsuit was filed and others living there for over fifty years. Some stated
they may have received reduced pricing on their homes because of the
pollution. Some lived closer to other emission sources, such as a
wastewater treatment plant or railroad. GPC identified seven residents
(out of over 100 declarants) who stated they never had been prevented
from doing anything outdoors because of the smells or emissions. Even
these residents, however, acknowledged the prevalent odor in their
neighborhood from GPC’s facility. The individual issues, GPC argued,
necessitated a property-by-property, person-by-person analysis to
determine whether GPC’s conduct created a nuisance.
9
GPC also resisted the residents’ phased trial strategy. Specifically,
GPC objected to the use of lay testimony to infer classwide harm. GPC
noted a class action must “rise or fall” with the named plaintiffs.
Allowing the jury to infer, from representative testimony, conditions on
surrounding properties, GPC argued, would impermissibly alleviate each
resident’s burden to prove nuisance on his or her property. Moreover,
using inferences would mask individual issues, hindering individual
defenses and thereby depriving GPC of due process.
GPC submitted expert testimony criticizing Dr. Rosenfeld’s model
and corresponding allocation of damages. It alleged the model was
flawed because it combined disparate substances (VOS, PM10, and
sulfur dioxide) to reach an aggregate total, even though properties with
differing concentrations of these substances would experience differing
harms. The model showed concentration totals on a linear scale,
although testimony established that emissions would not be experienced
linearly. A property with a concentration total of 200 would not suffer
double the lost use of enjoyment as one with 100. The model only
accounted for wind direction and failed to account for hours during
which the residents were sleeping, on vacation, or otherwise away from
home. Because the model measured emissions hitting the property even
at levels that would not be perceptible, let alone cause compensable
harm, GPC argued the model did not establish a nuisance. GPC also
noted the residents’ model and formula could not measure any alleged
trespass or negligence by GPC.
C. The District Court’s Decision. The district court granted
class certification. Noting its authority to modify or decertify the class at
any time, the district court divided the class into two subclasses, one for
members in close proximity to GPC, and the other for those in peripheral
10
proximity. The court reasoned that plaintiffs’ air dispersion analysis
“yields results one would expect—properties in close proximity have
comparable ‘Concentration Totals’ and direct-hit hours.” Therefore,
“named plaintiffs suffer the most comparable harm to absent class
members who live in close proximity, and the closer the proximity the
more analogous the harm.” The court sorted six named plaintiffs into
the close-proximity subclass and two into peripheral proximity.
The district court further determined that common issues of law
and fact existed and that common issues predominated over individual
ones. Common issues included GPC’s course of conduct, its knowledge
of the pollution, and its level and duration of emissions. Addressing
GPC’s concerns, the district court, citing Miller v. Rohling, 720 N.W.2d
562 (Iowa 2006), stated,
Because Iowa measures the existence of nuisance-level
harm objectively, a nuisance claim brought under Iowa law
is not inherently individual. Indeed, Iowa’s objective
standard renders many of Defendant’s Due Process
arguments—idiosyncratic sensitivities, physical infirmities,
life style choices, preferences for use and enjoyment,
housekeeping habits—immaterial to proving nuisance.
Further, Iowa’s objective-nuisance standard supports
Plaintiffs’ plan for presenting the jury with lay testimony
from witnesses—whom the jury can find are “normal persons
living in the community”—to prove the class-wide impact of
the alleged nuisance throughout each subclass area.
Miller also supports Plaintiffs’ proposed use of
formulaic damages. Miller upheld the trial court’s formulaic
use of an identical per hour dollar value for all of the
plaintiffs notwithstanding differences in their proximity to
the sources of the pollution. Miller also approved the trial
court multiplying an identical per hour dollar value by
sixteen hours a day—because it assumed that “most normal
people would be out of their home a period of eight hours a
day.” . . . Miller approving formulaic damages based on
reasonable inferences and approximation renders more of
Defendant’s Due Process arguments—each class member
living in a different proximity to the source of the pollution,
the varying rate of emission over time, the varying velocity
and direction of the wind, and the number of hours each
11
plaintiff was actually or wakefully present at his or her
property—immaterial to proving nuisance.
The district court concluded, “Due to the remedial nature of our class
action rules, the manageability concerns raised by Defendant’s
arguments are presently insufficient to deny certification.”
GPC appealed as of right. See Iowa R. Civ. P. 1.264(3) (“An order
certifying or refusing to certify an action as a class action is
appealable.”). GPC argues the district court abused its discretion in
certifying the class and that certification infringed upon its due process
rights. We retained the appeal.
II. Standard of Review.
“Our review of the district court’s ruling granting or denying
certification of a class is limited because the district court enjoys broad
discretion in the certification of class action lawsuits.” Legg v. W. Bank,
873 N.W.2d 756, 758 (Iowa 2016) (quoting Vos v. Farm Bureau Life Ins.
Co., 667 N.W.2d 36, 44 (Iowa 2003)). We review a district court’s class
certification ruling for abuse of discretion. Id. The district court abuses
its discretion when its “grounds for certifying a class action are clearly
unreasonable.” Id. If the district court “ ‘weigh[ed] and consider[ed] the
factors and [came] to a reasoned conclusion as to whether a class action
should be permitted for a fair adjudication of the controversy,’ we will
affirm.” Anderson Contracting, Inc. v. DSM Copolymers, Inc., 776 N.W.2d
846, 848 (Iowa 2009) (alterations in original) (quoting Luttenegger v.
Conseco Fin. Servicing Corp., 671 N.W.2d 425, 437 (Iowa 2003)). To the
extent GPC argues certification infringes upon its due process right to
present a defense, our review is de novo. Kragnes v. City of Des Moines,
810 N.W.2d 492, 498 (Iowa 2012).
12
III. Analysis.
We must decide whether the district court abused its discretion by
certifying this class action. GPC contends that commonality, a question
of law or fact common to the class, is not present as required under Iowa
Rule of Civil Procedure 1.261(2). GPC relatedly argues common issues of
law or fact do not predominate over individual issues, a factor it
contends the district court failed to sufficiently weigh when concluding a
class action should be permitted for the fair and efficient adjudication of
the controversy. See Iowa R. Civ. P. 1.263(1)(e). We determine that
common issues of law or fact exist and predominate over individual
issues. Finally, GPC argues the certification order violates due process
by interfering with its right to litigate individual defenses. We disagree
and conclude GPC will be able to litigate individual issues. We hold the
district court did not abuse its broad discretion in certifying this class
action.
A. Whether the District Court Abused Its Discretion by
Certifying the Class Action. Iowa Rules of Civil Procedure 1.261
through 1.263 govern class actions. Under rule 1.262, the district court
may certify a class action if it finds all of the following:
a. The requirements of rule 1.261 have been satisfied.
b. A class action should be permitted for the fair and
efficient adjudication of the controversy.
c. The representative parties fairly and adequately will
protect the interests of the class.
Id. r. 1.262(2). Rule 1.261 provides parties may sue as a class when
“[t]he class is so numerous . . . that joinder of all members . . . is
impracticable” and “[t]here is a question of law or fact common to the
class.” Id. r. 1.261(1)–(2). “A failure of proof on any one of the
prerequisites is fatal to class certification.” City of Dubuque v. Iowa
13
Trust, 519 N.W.2d 786, 791 (Iowa 1994). But at the class certification
stage, “the proponent’s burden is light.” Id. The class action rules
should be “liberally construed and the policy should favor maintenance
of class actions.” Lucas v. Pioneer, Inc., 256 N.W.2d 167, 175 (Iowa
1977). The goal of the rules is the
efficient resolution of the claims or liabilities of many
individuals in a single action, the elimination of repetitious
litigation and possibly inconsistent adjudications involving
common questions, related events, or requests for similar
relief, and the establishment of an effective procedure for
those whose economic position is such that it is unrealistic
to expect them to seek to vindicate their rights in separate
lawsuits.
Comes v. Microsoft Corp., 696 N.W.2d 318, 320 (Iowa 2005) (quoting 7A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1754, at 49 (2d ed. 1986) [hereinafter Wright]).
Rule 1.263(1) lists thirteen factors the district court may consider
in determining whether “the class action should be permitted for the fair
and efficient adjudication of the controversy.” 1 Iowa R. Civ. P. 1.263(1).
1Rule 1.263(1) provides,
In determining whether the class action should be permitted for the fair
and efficient adjudication of the controversy, as appropriately limited
under rule 1.262(3), the court shall consider and give appropriate weight
to the following and other relevant factors:
a. Whether a joint or common interest exists among members of
the class.
b. Whether the prosecution of separate actions by or against
individual members of the class would create a risk of inconsistent or
varying adjudications with respect to individual members of the class
that would establish incompatible standards of conduct for a party
opposing the class.
c. Whether adjudications with respect to individual members of
the class as a practical matter would be dispositive of the interests of
other members not parties to the adjudication or substantially impair or
impede their ability to protect their interests.
d. Whether a party opposing the class has acted or refused to act
on grounds generally applicable to the class, thereby making final
14
These factors “center on two broad considerations: ‘achieving judicial
economy by encouraging class litigation while preserving, as much as
possible, the rights of litigants—both those presently in court and those
who are only potential litigants.’ ” Vos, 667 N.W.2d at 45 (quoting
Vignaroli v. Blue Cross of Iowa, 360 N.W.2d 741, 744 (Iowa 1985)).
A key factor is whether “common questions of law or fact
predominate over any questions affecting only individual members.”
Iowa R. Civ. P. 1.263(1)(e). “[T]he language of rule 1.263 indicates the
district court has ‘considerable discretion’ in weighing the factors.”
Anderson Contracting, 776 N.W.2d at 848 (quoting Vignaroli, 360 N.W.2d
at 744). The district court decides what weight, if any, to give each of the
factors and may weigh one factor more heavily than another. Id.
_______________________
injunctive relief or corresponding declaratory relief appropriate with
respect to the class as a whole.
e. Whether common questions of law or fact predominate over
any questions affecting only individual members.
f. Whether other means of adjudicating the claims and defenses
are impracticable or inefficient.
g. Whether a class action offers the most appropriate means of
adjudicating the claims and defenses.
h. Whether members who are not representative parties have a
substantial interest in individually controlling the prosecution or defense
of separate actions.
i. Whether the class action involves a claim that is or has been
the subject of a class action, a government action, or other proceeding.
j. Whether it is desirable to bring the class action in another
forum.
k. Whether management of the class action poses unusual
difficulties.
l. Whether any conflict of laws issues involved pose unusual
difficulties.
m. Whether the claims of individual class members are
insufficient in the amounts or interests involved, in view of the
complexities of the issues and the expenses of the litigation, to afford
significant relief to the members of the class.
15
“Whether or not we agree with the decision arrived at by the trial court is
not the issue. The issue is one of abuse of discretion.” Id. (quoting
Martin v. Amana Refrigeration, Inc., 435 N.W.2d 364, 369 (Iowa 1989)).
The district court has considerable leeway when deciding whether to
certify the class. See, e.g., Legg, 873 N.W.2d at 761–62 (affirming class
certification and noting broad discretion); Kragnes, 810 N.W.2d at 500
(“We find no abuse of the district court’s broad discretion in certifying
and refusing to decertify the class.”); Varner v. Schwan’s Sales Enters.,
Inc., 433 N.W.2d 304, 306 (Iowa 1988) (concluding the district court did
not “abuse[] its discretion in denying certification).
GPC does not contest numerosity. See Legg, 873 N.W.2d at 759
(noting numbers alone are dispositive to show numerosity and
impracticality is presumed if the class has over forty members). Nor does
GPC contest the adequacy of the named plaintiffs to represent the class.
Rather, GPC argues that the district court erred in certifying the class
because the requirement of commonality was not met. GPC also
contends individual issues predominate over common questions of law or
fact. We address each argument in turn.
1. Commonality. GPC relies on federal authority in arguing the
commonality requirement is lacking here. Iowa’s “rules regarding class
actions[] closely resemble Federal Rule of Civil Procedure 23.” Vos, 667
N.W.2d at 44. We have relied on “federal authorities construing similar
provisions” of the federal rule to interpret our state counterpart. Id. The
federal rule requires “questions of law or fact common to the class.” Fed.
R. Civ. P. 23(a)(2). 2
2Federal Rule 23 provides in relevant part,
(a) Prerequisites. One or more members of a class may sue or be
sued as representative parties on behalf of all members only if:
16
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(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
(b) Types of Class Actions. A class action may be maintained if
Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual
class members would create a risk of:
(A) inconsistent or varying adjudications with
respect to individual class members that would establish
incompatible standards of conduct for the party opposing
the class; or
(B) adjudications with respect to individual class
members that, as a practical matter, would be dispositive
of the interests of the other members not parties to the
individual adjudications or would substantially impair or
impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole; or
(3) the court finds that the questions of law or fact
common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy. The matters pertinent to these
findings include:
(A) the class members’ interests in individually
controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by or against
class members;
(C) the desirability or undesirability of
concentrating the litigation of the claims in the particular
forum; and
(D) the likely difficulties in managing a class
action.
Fed. R. Civ. P. 23(a)–(b).
17
GPC argues Wal-Mart Stores, Inc. v. Dukes, supports its challenge
to the district court’s determination on commonality. 564 U.S. 338, 349,
131 S. Ct. 2541, 2551 (2011). In Dukes, the plaintiffs sought to certify a
class action of all women employed at Wal-Mart stores nationwide since
1998, alleging Wal-Mart’s promotion policies discriminated on the basis
of sex in violation of Title VII. Id. at 346, 131 S. Ct. at 2549. The Dukes
Court noted commonality “is easy to misread, since ‘[a]ny competently
crafted class complaint literally raises common “questions” ’ ” Id. at 349,
131 S. Ct. at 2551 (quoting Richard A. Nagareda, Class Certification in
the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131–32 (2009)). But
“[c]ommonality requires the plaintiff to demonstrate that the class
members ‘have suffered the same injury.’ ” Id. at 349–50, 131 S. Ct. at
2551 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, 102
S. Ct. 2364, 2370 (1982)). It was not sufficient that class members “have
all suffered a violation of the same provision of law.” Id. at 350, 131
S. Ct. at 2551. Rather, “claims must depend on a common contention”
of “such a nature that it is capable of classwide resolution—which means
that 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.” Id. To
satisfy the commonality requirement, “ ‘[e]ven a single [common]
question’ will do.” Id. at 359, 131 S. Ct. at 2556 (alteration in original)
(quoting Richard A. Nagareda, The Preexistence Principle and the
Structure of the Class Action, 103 Colum. L. Rev. 149, 176 n.10 (2003)).
The Dukes Court concluded that no common question of law or
fact was present. Id. at 359, 131 S. Ct. at 2556–57. Unlike an “assertion
of discriminatory bias on the part of the same supervisor,” the class
members
18
held a multitude of different jobs, at different levels of
Wal-Mart hierarchy, for variable lengths of time, in 3,400
stores, sprinkled across 50 states, with a kaleidoscope of
supervisors (male and female), subject to a variety of regional
policies that all differed . . . .
Id. at 350, 359–60, 131 S. Ct. at 2551, 2557 (alteration in original)
(quoting Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 652 (9th Cir.
2010) (Kozinski, C.J., dissenting)). The employees failed to identify a
specific employment practice tying together their nationwide claims. Id.
at 357, 131 S. Ct. at 2555.
By contrast, the district court here found several common
questions of both law and fact. The class includes only “members who
live in the vicinity of Defendant’s Muscatine facility and allegedly suffered
damages from Defendant’s course of conduct.” GPC engaged in a
common course of conduct regarding all class members.
Specifically, Defendant operated outdated, high-
polluting dryers and coal-boilers, with virtually no controls
to reduce emissions, [which] purportedly released noxious
smoke and odor and haze into the surrounding
neighborhoods for years, which caused a class-wide
nuisance. Almost identical evidence will be required to
establish the level and duration of Defendant’s emissions,
the reasonableness of Defendant’s operations, and the
causal connection, if any, between the injuries allegedly
suffered and Defendant’s liability.
Although the “nature and amount of damages” may differ for each class
member, the district court concluded, “The central factual basis for all of
Plaintiff’s claims . . . is GPC’s course of conduct and knowledge of its
potential hazards. Thus, Plaintiffs’ theory presents a common nucleus of
operative fact.” We agree. All class members allegedly suffered a
common injury—air pollution emanating from GPC that interfered with
the use and enjoyment of their property.
GPC argues the named plaintiffs did not suffer the same injury as
other class members. “[A] class representative must be part of the class
19
and ‘possess the same interest and suffer the same injury’ as class
members.” Hammer v. Branstad, 463 N.W.2d 86, 90 (Iowa 1990)
(alteration in original) (quoting E. Tex. Motor Freight Sys., Inc. v.
Rodriguez, 431 U.S. 395, 403, 97 S. Ct. 1891, 1896 (1977)). Initially, the
district court was “not persuaded class representatives ha[d] suffered the
same injury shared by all members of the class.” The court observed
that Sharon Mockmore, the class member located closest to GPC,
experienced a “concentration total” of 317.21, while Bobbie Lynn
Weatherman, the class member located furthest from GPC, experienced a
“concentration total” of only 71.50. Thus, “the effects of Defendant’s
emissions at the edge of the class boundary [could not] be inferred from
the testimony of class members living in close proximity to Defendant.”
But the district court resolved that disparity by creating two subclasses,
entitled “close proximity” and “peripheral proximity,” and grouping the
named plaintiffs accordingly. Within these subclasses, the district court
found the named plaintiffs were “ideal representatives for absent class
members who live nearby.” Our rules allow the district court to define
subclasses. Iowa R. Civ. P. 1.262(3)(c) (“If appropriate, the court may do
any of the following: . . . Divide a class into subclasses and treat each
subclass as a class.”).
Other courts applying equivalent class action rules have
determined the commonality requirement was met when neighboring
property owners sued a polluter under nuisance or negligence theories.
See Ebert v. Gen. Mills, Inc., 823 F.3d 472, 478 (8th Cir. 2016) (“Here, the
district court recognized that the issues of General Mills’ standardized
conduct of alleged contamination and the remedies sought by the class
are common to all plaintiffs . . . .”); Rowe v. E.I. Dupont De Nemours &
Co., 262 F.R.D. 451, 457 (D.N.J. 2009) (commonality present for
20
nuisance claim alleging groundwater contamination); Collins v. Olin
Corp., 248 F.R.D. 95, 101 (D. Conn. 2008) (finding common questions
existed as to polluter’s course of conduct for contaminated soil and
water); Mejdreck v. Lockformer Co., No. 01 C 6107, 2002 WL 1838141, at
*3 (N.D. Ill. Aug. 12, 2002) (“Plaintiffs allege this contamination
constitutes standardized conduct towards all proposed class members
and there are therefore common questions of law and fact.”); Boggs v.
Divested Atomic Corp., 141 F.R.D. 58, 64 (S.D. Ohio 1991) (stating
plaintiffs had identified common questions of extensiveness of emissions,
what caused them, what precautions were taken, and economic impact
of emissions); Berdysz v. Boyas Excavating, Inc., ___ N.E.3d ___, ___,
2017 WL 632445, at *6 (Ohio Ct. App. Feb. 16, 2017) (finding common
issues and affirming certification in air pollution case).
We reach the same conclusion under this record and hold the
district court did not abuse its discretion in finding the commonality
requirement was satisfied within the two subclasses.
2. Predominance. The question of whether common or individual
issues predominate has been characterized as “fairly complex.”
Vignaroli, 360 N.W.2d at 744. “Inherent in our inquiry into the
predomination issue is the recognition [that] the class action device is
appropriate only where class members have common complaints that
can be presented by designated representatives in the unified
proceeding.” Id. Predominance “necessitates a ‘close look’ at ‘the
difficulties likely to be encountered in the management of a class
action.’ ” Vos, 667 N.W.2d at 46 (quoting Rothwell v. Chubb Life Ins. Co.
of Am., 191 F.R.D. 25, 28–29 (D.N.H. 1998)). The predominance inquiry
is “qualitative rather than quantitative”; merely “a common question does
not end the inquiry.” Ebert, 823 F.3d at 478; see also William B.
21
Rubenstein, Newberg on Class Actions § 4:50 (5th ed.), Westlaw
(database updated Dec. 2016) [hereinafter Newberg].
Individual claims need not “be carbon copies of each other” to
determine common issues predominate. Vignaroli, 360 N.W.2d at 745.
The test for predominance “is a pragmatic one.” Luttenegger, 671 N.W.2d
at 437.
When common questions represent a significant aspect of the
case and they can be resolved for all members of the class in
a single adjudication, there is a clear justification for handling
the dispute on a representative rather than an individual
basis. . . . [C]ourts have held that a [class action] can be
brought . . . even though there is not a complete identity of
facts relating to all class members, as long as a “common
nucleus of operative facts” is present. . . .
The common questions need not be dispositive of the
entire action. In other words, “predominate” should not be
automatically equated with “determinative” or “significant.”
Therefore, when one or more of the central issues in the action
are common to the class and can be said to predominate, the
[class] action will be considered proper.
Id. (alterations in original) (quoting Wright § 1778, at 528–33). “A claim
will meet the predominance requirement when there exists generalized
evidence which proves or disproves an element on a simultaneous, class-
wide basis, since such proof obviates the need to examine each class
member’s individual position.” Vos, 667 N.W.2d at 45 (quoting Cope v.
Metro. Life Ins. Co., 696 N.E.2d 1001, 1004 (Ohio 1998)).
The district court issued a forty-seven-page ruling, with eleven
pages addressing predominance. See Anderson Contracting, 776 N.W.2d
at 849 (noting the thoroughness of the district court’s ruling).
Ultimately, the district court determined,
While variations in the individual damage claims are likely to
occur and other sources of emissions may pose unusual
difficulties, common questions of law or fact regarding
Defendant’s liability predominate over questions affecting
only individual class members such that the subclasses
22
should be permitted for the fair and efficient adjudication of
this controversy.
The district court also addressed the other factors considered under rule
1.263(1).
One of the purposes of class action procedures “is to
provide small claimants an economically viable vehicle for
redress in court.” [Martin], 435 N.W.2d at 366. . . . Given
the complexities of the liability issue and the expenses of this
litigation, the claims of individual class members are
insufficient in the amounts or interests involved to afford
significant relief to the proposed subclass members without
certification of the subclasses. Finally, class action will
establish Defendant’s liability in a single proceeding for
thousands of Muscatine residents. This will avoid
unacceptable costs and repetition for both parties.
In Comes, we emphasized the district court’s broad discretion to weigh
the thirteen factors in deciding class certification.
In most cases some of the thirteen factors [regarding the fair-
and-efficient-administration-of-justice test] will weigh
against certification and some will weigh in favor. It is for
the trial court, employing its broad discretion, to weigh the
competing factors and determine whether a class action will
provide a fair and efficient adjudication of the controversy.
Thus, even if [defendant] is correct in its assertion four of the
factors weigh against certification, that does not preclude the
court from certifying the class action if, in its opinion, those
factors are outweighed by other factors supporting
certification.
Comes, 696 N.W.2d at 322 (quoting Howe v. Microsoft Corp., 656 N.W.2d
285, 289 (N.D. 2003)).
“Further, a safety net is provided for cases in which certification is
improvidently granted: the court may decertify the class at a later time.”
Id. at 324; see also Vos, 667 N.W.2d at 54–55 (affirming district court’s
decision to decertify class because individual issues predominated). Or
the district court may bifurcate the trial into separate phases for liability
and damages. See Hammer, 463 N.W.2d at 88; see also Newberg § 10:6
23
(“[A] common use of bifurcation . . . is to try liability issues to a jury
before damages . . . .”). When
defendant’s activities present a “common course of conduct”
so that the issue of statutory liability is common to the class,
the fact that damages . . . may vary for each party does not
require that the class action be terminated.
Legg, 873 N.W.2d at 759–60 (alterations in original) (quoting Luttenegger,
671 N.W.2d at 437).
“Certification of a class action does not depend on a determination
of whether the plaintiffs will ultimately prevail on the merits.” Vos, 667
N.W.2d at 45. However, determining whether the requirements for class
certification are met “will entail some overlap with the merits of the
plaintiff’s underlying claim. That cannot be helped.” Dukes, 564 U.S. at
351, 131 S. Ct. at 2551. Nonetheless, we decline to “engage in free-
ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn.
Ret. Plans & Trust Funds, 568 U.S. 455, 466, 133 S. Ct. 1184, 1194–95
(2013). The merits should be analyzed only to the extent relevant in
determining whether the rules have been satisfied. Id. at 466, 133 S. Ct.
at 1195.
We begin, as the district court did, with the plaintiffs’ first cause of
action, nuisance. See Newton v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 259 F.3d 154, 172 (3d Cir. 2001) (“To determine whether the claims
alleged by the putative class meet the requirements for class certification,
we must first examine the underlying cause of action . . . .”). The
legislature has defined nuisance as “[w]hatever is injurious to health,
indecent, or unreasonably offensive to the senses, or an obstruction to
the free use of property, so as essentially to interfere unreasonably with
the comfortable enjoyment of life or property.” Iowa Code § 657.1(1)
(2015). Under section 657.2(1), “occasioning noxious exhalations,
24
unreasonably offensive smells, or other annoyances, [which] becomes
injurious and dangerous to the health, comfort, or property of individuals
or the public” constitute a nuisance. Id. § 657.2(1).
The nuisance statute does not supersede common law nuisance.
See Freeman, 848 N.W.2d at 67. Rather, statutory nuisance claims are
“supplemented by common law principles governing private nuisances.”
Perkins v. Madison Cty. Livestock & Fair Ass’n, 613 N.W.2d 264, 271
(Iowa 2000). We have defined a common law nuisance as “an actionable
interference with a person’s interest in the private use and enjoyment of
the person’s land.” Id. (quoting Weinhold v. Wolff, 555 N.W.2d 454, 459
(Iowa 1996)).
Whether a lawful business is a nuisance depends on
the reasonableness of conducting the business in the
manner, at the place, and under the circumstances in
question. Thus the existence of a nuisance does not depend
on the intention of the party who created it. Rather, it
depends on the following three factors: priority of location,
the nature of the neighborhood, and the wrong complained
of.
Id. (quoting Weinhold, 555 N.W.2d at 459). Alleged nuisances are
assessed under an “objective, normal-person” standard. Id. “Thus, if
‘normal persons living in the community would regard the invasion in
question as definitely offensive, seriously annoying or intolerable’ then
the invasion is significant enough to constitute a nuisance.” Id. (quoting
Weinhold, 555 N.W.2d at 459).
Whether a nuisance exists is a factual inquiry. Patz v. Farmegg
Prods., Inc., 196 N.W.2d 557, 561 (Iowa 1972). To recover against GPC,
the plaintiffs must establish common facts as to “priority of location, the
nature of the neighborhood [involving common proof assessing the
locale], and the wrong complained of.” Perkins, 613 N.W.2d at 271.
25
At oral argument and in their appellate brief, the plaintiffs
conceded priority of location favored GPC as to all class members. GPC’s
operations commenced in 1943, and in the words of plaintiffs’ counsel, a
resident would have had to be “living under a rock” not to know of GPC’s
activities in the neighborhood. The plaintiffs have also eliminated many
individual issues by confining their claims to property damages without
claiming diminution in value or alleging personal injury claims. Any
class member may opt out. 3 See Iowa R. Civ. P. 1.267(1) (allowing
putative class member to “elect to be excluded” unless he or she is a
class representative, there has been an affirmative finding under rule
1.263(a), (b), or (c), or a counterclaim has been asserted against the
member).
Because the “normal person” standard is an objective one, any
idiosyncratic sensitivity, physical infirmities, lifestyle choices, preferences
for use and enjoyment, or housekeeping habits are immaterial to proving
whether defendant’s conduct created a nuisance. See, e.g., Miller, 720
N.W.2d at 569 (awarding damages despite witness testimony emissions
were “not that bothersome”). Objective standards more readily present
common questions than subjective standards. See Amgen, 568 U.S. at
459, 133 S. Ct. at 1191. In Amgen, the United States Supreme Court
evaluated whether the objective element of “materiality” was a common
3Indeed, at least seventeen individual class-member plaintiffs have filed
expedited civil actions. See Pl.’s Appl. for Interlocutory Appeal, Wittenberg v. Grain
Processing Corp., No. 17–0058 (filed Jan. 12, 2017) (six individuals); Pl.’s Appl. for
Interlocutory Appeal, Tate v. Grain Processing Corp., No. 17–0062 (filed Jan. 12, 2017)
(eleven individuals). These expedited civil actions allege property and medical damages,
while the Freeman class members have limited damages to lost use and enjoyment. The
individual plaintiffs stated they chose the expedited civil action forum because of the
opportunity to have cases resolved more expeditiously than a class claim. See Iowa R.
Civ. P. 1.281(4)(b) (“Unless that court otherwise orders for good cause shown, expedited
civil actions must be tried within one year of filing.”).
26
or individual question when deciding whether to certify a class action
alleging securities fraud.
Because materiality is judged according to an objective
standard, the materiality of Amgen’s alleged
misrepresentations and omissions is a question common to
all members of the class. . . . The alleged misrepresentations
and omissions, whether material or immaterial, would be so
equally for all investors composing the class. As vital, the
plaintiff class’s inability to prove materiality would not result
in individual questions predominating. Instead, a failure of
proof on the issue of materiality would end the case, given
that materiality is an essential element of the class members’
securities-fraud claims. As to materiality, therefore, the
class is entirely cohesive: It will prevail or fail in unison.
Id. Similarly, if the residents fail to demonstrate that a normal person in
the locality would find the conditions existing throughout the subclass
area “definitely offensive, seriously annoying or intolerable,” then the
residents will fail to meet their burden, and the claim will fail. Weinhold,
555 N.W.2d at 459 (quoting Restatement (Second) of Torts § 821F cmt. d,
at 106 (1979)).
Given the plaintiffs’ showing that the three factors—priority of
location, the nature of the neighborhood, and the wrong complained of—
are objective, common factors, it appears the factual determination of
whether a nuisance exists is capable of being made on a classwide basis.
GPC argues Perkins is fatal to class certification because it applied
a property-by-property determination to resolve nuisance claims,
showing that individual issues will predominate over common questions.
613 N.W.2d at 273 (“We examine each plaintiff’s claim independently of
the other plaintiffs’ claims so that a plaintiff’s claim will succeed or fail
on the basis of that plaintiff’s particular circumstances.”). We disagree
that Perkins requires reversal. In Perkins, neighboring property owners
brought a nuisance action in equity against operators of a figure-eight
27
auto racetrack built on the county fairgrounds. Id. at 268. The plaintiffs
all lived in their homes nearby before the racetrack was built and thus
had priority of location. Id. at 271–72. Races occurred seven nights a
year. Id. at 272. The district court denied recovery, finding “ ‘the seven
time invasion’ did not rise to the level of a nuisance.” Id. at 272–73. We
applied de novo review and affirmed as to three of the property owners
located between 975 and 1150 feet from the track. Id. at 273–74. But
we reversed as to one plaintiff who lived adjacent to the fairgrounds and
whose yard was seventy-seven feet from the racetrack. Id. at 274. She
testified the pit area, located on her property line, was “extremely noisy”
and that “[l]ights, noise, dust, smoke and exhaust fumes emanate from
the track and pit area directly onto [her] property, including the house.”
Id. We found she proved her nuisance claim while the other property
owners (who lived the length of three to four football fields away) did not.
Id.
Perkins is distinguishable. It was not a class action. We reviewed
the evidence de novo to decide the merits of the nuisance claims. Id. at
267. By contrast, we are reviewing here the district court’s procedural
ruling on class certification for abuse of discretion. The merits of the
nuisance claims will be decided at trial. The district court appropriately
divided the case into two subclasses, based on the distance from the
source of the alleged nuisance. Moreover, Perkins did not involve
negligence claims in which the reasonableness of the defendant’s
conduct is an issue common to all the neighboring property-owner
plaintiffs.
Negligence and nuisance are distinct theories. Dalarna Farms v.
Access Energy Coop., 792 N.W.2d 656, 659 (Iowa 2010). We explained
28
the distinction between the two in Bormann v. Board of Supervisors,
stating,
Negligence is a type of liability-forming conduct, for example,
a failure to act reasonably to prevent harm. In contrast,
nuisance is a liability-producing condition. Negligence may
or may not accompany a nuisance; negligence, however, is
not an essential element of nuisance. If the condition
constituting the nuisance exists, the person responsible for
it is liable for resulting damages to others even though the
person acted reasonably to prevent or minimize the
deleterious effect of the nuisance.
584 N.W.2d 309, 315 (Iowa 1998) (citations omitted). In other words,
nuisance is a condition, not an act or failure to act by the party
responsible. See id.
[T]he true distinction between negligence and nuisance is
that “to constitute a nuisance ‘there must a degree of danger
(likely to result in damage) inherent in the thing itself,
beyond that arising from a mere failure to exercise ordinary
care.’ ”
Dalarna Farms, 792 N.W.2d at 659 (quoting Martins v. Interstate Power
Co., 652 N.W.2d 657, 661 (Iowa 2002)).
Under both nuisance and negligence theories, the harm caused by
the defendant’s conduct is relevant. In Martins, the plaintiffs claimed
electrical transmission lines emitted stray voltage, harming dairy cows on
an adjoining farm and reducing milk production. 652 N.W.2d at 659.
Stray voltage was an “inherent part of supplying electricity,” but problems
in electrical systems could increase its frequency. Id. at 662 (quoting
Peter G. Yelkovac, Homogenizing the Law of Stray Voltage: An Electrifying
Attempt to Corral the Controversy, 28 Val. U. L. Rev. 1111, 1112–13
(1994)). To constitute a nuisance, we pointed out the “degree of danger
likely to result in damages must be inherent in the thing itself.” Id. at
664. We concluded “[e]xcessive stray voltage from an electric utility
resulting in damage to a dairy herd [met] that test.” Id. Assessing
29
whether GPC’s conduct created an inherent risk of danger will be a
common legal question affecting both the plaintiffs’ nuisance (the
resulting condition) and negligence (the reasonableness of the conduct)
claims.
In addition, the plaintiffs’ negligence claims will require evidence of
GPC’s course of conduct, its duty of care and corresponding breach, and
its knowledge of the harms caused. Raas v. State, 729 N.W.2d 444, 447
(Iowa 2007) (noting to establish claim of negligence plaintiffs must show
“a duty of care,” a breach of duty, that the breach “was a proximate
cause of their injuries,” and damages). The plaintiffs plan to offer
evidence GPC could have upgraded its coal-burning equipment with
cleaner burning, natural gas-fired equipment earlier, and had it done so,
much of the air pollution would have been avoided. Whether GPC acted
unreasonably by delaying that equipment upgrade appears to be a
common issue.
Proving trespass will involve similar common evidence, such as
whether harms can be attributed to GPC and whether emissions
interfered with the residents’ exclusive land possession. See Freeman,
848 N.W.2d at 67 (addressing cases deciding whether air pollution
constituted a trespass). GPC’s arguments against certifying these claims
go to the merits. 4
Class action treatment appears to be the most efficient way to
resolve these issues. See Iowa R. Civ. P. 1.263(1)(g) (instructing court to
consider whether class action “offers the most appropriate means of
adjudicating the claims and defenses”). Moreover, the complexity of
4For example, GPC asserts that no physical invasion is shown by Dr. Rosenfeld’s
model, that GPC did not cause the physical invasion because testing of residue revealed
it was from another source, and that even nonnegligently run mills produce emissions.
30
these questions may hinder the ability of some class members to get
relief due to the expense of expert testimony. Id. r. 1.263(1)(m) (directing
consideration of “[w]hether the claims of the individual class members
are insufficient in the amounts or interests involved, in view of the
complexities of the issues and the expenses of litigation, to afford
significant relief to the members of the class”). The district court acted
within its discretion in concluding that individual differences among
class members were not fatal to class certification.
GPC contends individual issues of causation and injury
predominate over common questions. We disagree. Contesting
causation, GPC notes some class members live closer to other industrial
sources of pollution, specifically the active railroad tracks or the sewage
treatment plant. But the industrial character of the surrounding
neighborhood does not preclude a finding of nuisance. See Gacke v. Pork
Xtra, L.L.C., 684 N.W.2d 168, 180 (Iowa 2004) (affirming finding of
nuisance from hog confinement facility, even though it was a “customary
enterprise in the neighborhood”); Bates v. Quality Ready-Mix Co., 261
Iowa 696, 704, 154 N.W.2d 852, 858 (1967) (affirming nuisance finding
even though in commercial area). We also observe there was testimony
indicating residents could distinguish between odors attributed to GPC
and the sewage plant. See Olden v. LaFarge Corp., 383 F.3d 495, 508
(6th Cir. 2004) (affirming certification when plaintiffs could show injury
from contaminants directly attributable to defendant, despite other
industrial sources in area).
We also do not see an issue in the plaintiffs’ use of representative
testimony to show classwide harm. In Tyson Foods, Inc. v. Bouaphakeo,
the Supreme Court addressed whether representative evidence could be
used in proving harm to employees. 577 U.S. ___, ___, 136 S. Ct. 1036,
31
1046 (2016). Employees alleged a violation of the Fair Labor Standards
Act (FLSA) when an employer refused to compensate them for time
donning and doffing protective clothing. Id. at ___, 136 S. Ct. at 1042.
Because there were no records of time actually spent donning and doffing
and time varied among employees, plaintiffs relied on a representative
sample to allow an expert to compute the average time spent. Id. at ___,
136 S. Ct. at 1043. The employer moved to set aside the jury verdict,
arguing that the variation in donning and doffing time required
individual inquiries preventing certification. Id. at ___, 136 S. Ct. at
1044. Under the FLSA, an employee bringing an individual claim was
permitted to establish hours worked by producing sufficient evidence to
permit a “just and reasonable inference.” Id. at ___, 136 S. Ct. at 1047
(quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66
S. Ct. 1187, 1192 (1946), superseded by statute as recognized in Integrity
Staffing Sols., Inc. v. Busk, 574 U.S. ___, 135 S. Ct. 513 (2014)). As such,
the Court concluded class action plaintiffs could use a representative
sample to provide a reasonable inference of classwide harm. Id.
Similarly, the typical method of proving the objective “normal
person in the community” standard for nuisance is to present
representative, lay testimony from members of the community that they
were disturbed by the condition. See Gacke, 684 N.W.2d at 180 (“The
testimony of the plaintiffs and of the witnesses they presented convinced
the court that normal persons would be and were substantially annoyed
. . . .”); Weinhold, 555 N.W.2d at 460 (stating that lay witnesses
presented from surrounding farms established offensiveness to persons
of “ordinary sensibilities”); Bates, 261 Iowa at 702, 154 N.W.2d at 857
(“Other witnesses living in the vicinity testified to the noises and being
32
disturbed by operation of the plant.”). This is the method of proof
proposed by the plaintiffs.
Moreover, we have previously approved the use of a formula
employing reasonable inferences to calculate nuisance damages. Miller,
720 N.W.2d at 569. In Miller, neighbors claimed the defendants’ grain-
harvesting activities constituted a nuisance. Id. at 566. Testimony
confirmed that the defendants’ “emissions during harvest season were so
pervasive that they blanketed not only the plaintiffs’ vehicles and
personal property located outside their residences, but also filtered into
the interior of the plaintiffs’ homes.” Id. at 569. Awarding damages for
loss of enjoyment during harvest season, the district court used a
per diem formula, compensating the plaintiffs at the rate of “$6 per hour
for 16 hours a day for 90 days a year.” Id. at 570. The defendants
argued this calculation was in error, as “each plaintiff lived in different
proximity to the defendants’ property and was impacted differently by the
defendants’ grain storage activities.” Id. at 571. In addition, the
per diem formula did not account for hours each individual plaintiff may
not have been present at the property. Id. We upheld the per diem
calculation. Id. We noted,
If the record is uncertain and speculative whether a party
has sustained damages, the fact finder must deny recovery.
But if the uncertainty is only in the amount of damages, a
fact finder may allow recovery provided there is a reasonable
basis in the evidence from which the fact finder can infer or
approximate the damages.
Id. at 572 (emphasis added) (quoting Sun Valley Iowa Lake Ass’n v.
Anderson, 551 N.W.2d 621, 641 (Iowa 1996)). On this basis, we affirmed
the district court’s calculation, but reduced the damages of two plaintiffs:
one because she did not primarily reside on the property and the other
because she had negotiated for a lesser rent price because of the
33
nuisance. Id. at 571–72. So long as the residents establish the
emissions constituted a nuisance on each property (fact of harm),
reasonable inferences may be used to approximate damages. See id.
GPC argues that class certification will deny it the fair opportunity
to contest whether individual homeowners have suffered injury or
damage. We disagree. The plaintiffs have proposed a formula for
damages. GPC can contest the appropriateness of that formula before
the jury. If a special jury verdict is entered approving this formula and
that verdict is supported by substantial evidence, then potentially this
formula can be used in subsequent claims administration by the court
while preserving GPC’s due process and jury trial rights. If no damage
formula is approved, then there would have to be subsequent individual
trials on damages. Either way, GPC’s rights would be protected.
A possibility that the class includes some uninjured residents will
not bar certification at this time. Requiring plaintiffs to show every
member of the class was exposed to contaminants at a high enough level
to be considered a nuisance would “ask[] the court to make a class-
certification ruling based on the merits of the case, something we have
uniformly rejected.” Comes, 696 N.W.2d at 325 (declining to require
plaintiffs prove “each class member actually paid some portion of a
passed-on overcharge” in an antitrust claim). Evidence plaintiffs suffered
contamination at sufficient levels to recover for nuisance “goes to proof of
damages, rather than to common liability issues.” Luttenegger, 671
N.W.2d at 440 (holding that court did not have to make case-by-case
determination of whether fee charged was improper at certification
stage). “[T]he fact that a potential class action involves individual
damage claims does not preclude certification when liability issues are
common to the class.” Id. (quoting Iowa Trust, 519 N.W.2d at 792).
34
GPC’s objections at this stage to Dr. Rosenfeld’s model are likewise
unavailing. Assertions that “methods are flawed and incapable of
calculating injury and damages to the class as a whole constitute[] a
challenge going directly to the merits of the case and should not be
resolved at this preliminary stage.” Anderson Contracting, 776 N.W.2d at
855. At the certification stage, “[c]alculations need not be exact”; they
must simply “be consistent” with liability, making just and reasonable
inferences that are not speculative. Comcast Corp. v. Behrend, 569 U.S.
___, ___, 133 S. Ct. 1426, 1433 (2013). Moreover, GPC’s defense that
Dr. Rosenfeld’s study is “unrepresentative or inaccurate” is “itself
common to the claims made by all class members.” Bouaphakeo, 577
U.S. at ___, 136 S. Ct. at 1047.
Class certification is supported by many cases applying equivalent
rules. In Sterling v. Velsicol Chemical Corporation, the United States
Court of Appeals for the Sixth Circuit addressed the propriety of a class
action in a mass tort case alleging strict liability, common law negligence,
trespass, and nuisance theories. 855 F.2d 1188, 1194 (6th Cir. 1988).
The defendant allegedly deposited ultrahazardous material into a landfill,
polluting groundwater used by neighboring residents. Id. at 1193. In
affirming class certification, the Sixth Circuit stated,
In complex, mass, toxic tort accidents, where no one set of
operative facts establishes liability, no single proximate
cause equally applies to each potential class member and
each defendant, and individual issues outnumber common
issues, the district court should properly question the
appropriateness of a class action for resolving the
controversy. However, where the defendant’s liability can be
determined on a class-wide basis because the cause of the
disaster is a single course of conduct which is identical for
each of the plaintiffs, a class action may be the best suited
vehicle to resolve such a controversy.
In the instant case, each class member lived in the
vicinity of the landfill and allegedly suffered damages as a
35
result of ingesting or otherwise using the contaminated
water. Almost identical evidence would be required to
establish the level and duration of chemical contamination,
the causal connection, if any, between the plaintiffs’
consumption of the contaminated water and type of injuries
allegedly suffered, and the defendant’s liability.
Id. at 1197.
Other federal courts have affirmed class certification in tort actions
brought by neighboring property owners over pollution to avoid the
“duplicative litigation” of individual lawsuits. Gintis v. Bouchard Transp.
Co., 596 F.3d 64, 67 (1st Cir. 2010); see Olden, 383 F.3d at 508
(affirming certification based in part on “common argument that the
class’s properties are regularly covered in cement dust, causing minor
property damage”); Mejdreck v. Met-Coil Sys. Corp., 319 F.3d 910, 911
(7th Cir. 2003) (affirming certification because “[t]he questions whether
Met-Coil leaked TCE in violation of law and whether the TCE reached the
soil and groundwater beneath the homes of the class members are
common to all the class members”); Navelski v. Int’l Paper Co., ___
F. Supp. 3d ___, ___, 2017 WL 1132569, at *18 (N.D. Fla. Mar. 25, 2017)
(affirming certification of nuisance and negligence claims from dam
collapsing “[b]ecause in this case, every aspect of liability can be resolved
on a classwide basis, it would be neither efficient nor fair to anyone,
including Defendant, to hold over 300 trials to hear the same evidence
and decide the same liability issues”); Mejdreck, 2002 WL 1838141, at *7
(stating “it would be wholly inefficient to try thousands of separate cases
that would allege the same misconduct and provide the same proof of
such” in negligence and nuisance pollution claims); LeClercq v.
Lockformer Co., No. 00 C 7164, 2001 WL 199840, at *7 (N.D. Ill. Feb. 28,
2001) (noting proof “would be identical” as to “history of operations, the
spillage, the impact on the land, soil, and water, [and] possible remedies”
36
and “[r]epetitive discovery for individual cases on the same core issues
would be wasteful”); Cook v. Rockwell Int’l Corp., 181 F.R.D. 473, 480 (D.
Colo. 1998) (“Significant elements of Plaintiffs’ case in chief . . . will be
presented through the testimony of five experts. This testimony will
apply to the classes as a whole.”); Boggs, 141 F.R.D. at 67 (“If these
claims were tried separately, the amount of repetition would be
manifestly unjustified. To the extent that each claim of each plaintiff
depends upon proof concerning the history of operations at the plant, the
nature, timing, extent and cause of emissions, . . . that proof would be
virtually identical in each case.”); Bates v. Tenco Servs., Inc., 132 F.R.D.
160, 164 (D.S.C. 1990) (“The common questions in this suit will be the
cause of the ground water contamination, the defendants’ liability, and
the alleged effects of jet fuel contamination on the neighborhood and the
people who have lived there.”); Wehner v. Syntex Corp., 117 F.R.D. 641,
645 (N.D. Cal. 1987) (“Significant judicial economies are served by trying
the common issues [of contamination].”); cf. Jackson v. Unocal Corp., 262
P.3d 874, 890 (Colo. 2011) (en banc) (concluding, in a state court case,
common issues of asbestos contamination predominated despite
individual damages issues); 7-Eleven Inc. v. Bowens, 857 N.E.2d 382,
395 (Ind. Ct. App. 2006) (“Although these concerns [of individual issues]
may be legitimate, we cannot conclude that they outweigh the economies
of time, effort, and expense that will be achieved by allowing the class
action to proceed on the issues defined by the trial court.”); Claborne v.
Hous. Auth. of New Orleans, 165 So. 3d 268, 284 (La. Ct. App. 2015) (“We
also recognize that the risk in trying some 2900 individual cases could
result in non-uniformity and inconsistent adjudications on the common
issues.”); Doyle v. Fluor Corp., 199 S.W.3d 784, 789–90 (Mo. Ct. App.
2006) (“Although individual questions of damages or individual defenses
37
may remain after the common issues here are resolved, the need for
individualized proof . . . does not defeat the predominance of the common
issues.”); Freeman v. Blue Ridge Paper Prods., Inc., 229 S.W.3d 694, 706
(Tenn. Ct. App. 2007) (concluding class action is superior because of
single course of conduct).
Still other courts have declined to certify a class action for
nuisance claims because of the individualized nature of determining
contamination on each property. See Gates v. Rohm & Haas Co., 655
F.3d 255, 272 (3d Cir. 2011) (“[G]iven the potential difference in
contamination on the properties, common issues do not predominate.”);
Powell v. Tosh, No. 5:09-CV-00121, 2013 WL 4418531, at *8 (W.D. Ky.
Aug. 2, 2013) (“[E]ach Plaintiff’s experience as to the intensity and
duration (or lack thereof) of the hog odor is susceptible to marked
variation. Further, each named Plaintiff’s . . . property is situated
uniquely with respect to the barns in question.”); Fisher v. Ciba Specialty
Chems. Corp., 238 F.R.D. 273, 307 (S.D. Ala. 2006) (“[B]oth the existence
of contamination and the risk of future contamination will have to be
proven on a property-by-property basis.”); see also Ga.-Pac. Corp. v.
Carter, 265 S.W.3d 107, 114 (Ark. 2007) (“[I]t is evident, from the
property owners’ claims and from the sheer nature of a claim for private
nuisance, that individual issues exist in the instant case as to whether
and to what extent Georgia-Pacific’s operation of its waste water
treatment system caused consequences to, and constituted an
unreasonable interference with, the property owners’ use and enjoyment
of their property.”). 5
5Courts have also declined to certify nuisance pollution cases when the plaintiffs
failed to show a method of proving classwide harm. See, e.g., Burkhead v. Louisville Gas
& Elec. Co., 250 F.R.D. 287, 299 (W.D. Ky. 2008) (“Plaintiffs have alleged that
Defendant’s operations result in extensive emissions, but what remains missing is any
38
GPC relies on a decision by the Eighth Circuit filed after the class
certification order here. See Ebert, 823 F.3d at 475, 481. In Ebert, the
district court certified a class action against General Mills brought by
neighboring property owners arising from groundwater contamination.
Id. at 476. The defendant had disposed of hazardous chemicals by
burying perforated drums of trichloroethylene (TCE) on its land. Id. at
475. “[T]he plaintiffs claim[ed] . . . TCE vapors migrated into the
surrounding residential area, threatening the health of the residents and
diminishing the value of their property.” Id. The Eighth Circuit panel
agreed the “standardized conduct of alleged contamination and the
remedies sought by the class are common to all plaintiffs.” Id. at 478.
Yet the appellate court reversed the certification order after concluding
that individual issues predominated:
To resolve liability there must be a determination as to
whether vapor contamination, if any, threatens or exists on
each individual property as a result of General Mills’ actions,
and, if so, whether that contamination is wholly, or actually,
attributable to General Mills in each instance. Accordingly,
accompanying a determination regarding General Mills’
actions, there likely will be a property-by-property
assessment of additional upgradient (or other) sources of
contamination, whether unique conditions and features of
the property create the potential for vapor intrusion, whether
(and to what extent) the groundwater beneath a property is
contaminated, whether mitigation has occurred at the
property, or whether each individual plaintiff acquired the
property prior to or after the alleged diminution in value.
Id. at 479.
_______________________
evidence that the cause of the entire class’s damages could be determined in a single
proceeding.”); St. Joe Co. v. Leslie, 912 So. 2d 21, 24 (Fla. Dist. Ct. App. 2005)
(“Appellees failed to prove how the class representatives could prove their own . . .
nuisance claims, thereby proving the claims of the unnamed members.”); Ga.-Pac.
Consumer Prods., LP v. Ratner, 762 S.E.2d 419, 423 (Ga. 2014) (reversing order to
certify air pollution class because members had not presented “evidence by which the
plaintiffs might be able to prove [harm] on a classwide basis” such as scientific evidence
about how much pollution moved through the air). By contrast, the plaintiffs here have
offered expert testimony and a common method for proving their claims against GPC.
39
Ebert is distinguishable. Tracking the migration of contaminated
groundwater in that case involved more complex variables than GPC’s
smokestack pollution blanketing its Muscatine neighborhood with
airborne particulates. And the Ebert plaintiffs sought recovery for
diminution in property values, raising valuation issues unique to each
property. Id. at 479; see also Mel Foster Co. Props., Inc. v. Am. Oil Co.,
427 N.W.2d 171, 176 (Iowa 1988) (noting measure of damages in
nuisance case for diminution of value is “the market value of [the]
property immediately before contamination and the market value of that
property after the contamination”). By contrast, the class members here
are not seeking recovery for any reduction in their property values, but
rather for their shared experiences with GPC’s smoke, odor, and dust.
We hold that the district court did not abuse its discretion in
rejecting GPC’s predominance objection to class certification. Our class
action rules do not require that the residents present “common proof on
each element of the claim. Rather, we have repeatedly noted that the
existence of individual issues is not necessarily fatal to class
certification.” Comes, 696 N.W.2d at 322 (quoting Howe, 656 N.W.2d at
289). Individual issues concerning contamination from other sources or
the amount of chemicals present on a particular property may affect
damage calculations, but such concerns do not overwhelm common
issues of liability. GPC’s priority of location is conceded, and common
proof will be required on GPC’s course of conduct, its emissions during
the relevant time period, its knowledge of emissions, and at what level
emissions interfere with a normal person in the community’s enjoyment
of his or her property. These common questions of liability are at the
heart of the residents’ claims.
40
B. Whether Certifying the Class Offends Due Process. We next
address GPC’s contention that the class certification violates its due
process rights. “Civil litigation deprives the litigants of property—the
plaintiff of her chose in action, the defendant of money damages if it
loses—and thus must accord the litigants due process of law.” Newberg
§ 11:21 (footnote omitted). “A defendant in a class action has a due
process right to raise individual challenges and defenses to claims, and a
class action cannot be certified in a way that eviscerates this right or
masks individual issues.” Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d
Cir. 2013).
Extrapolation raises due process concerns because it
provides a full trial, and opportunity to be heard, for some
plaintiffs but not for others and, correlatively, because it
enables the defendant to contest damages through
individualized affirmative defenses against some plaintiffs
but not all.
Newberg § 11:21.
GPC asserts the residents’ plan to extrapolate harm to surrounding
properties from testimony of twenty to thirty representative class
members violates due process by masking individual issues. GPC argues
it must be allowed to pursue individual factors that might reduce certain
class members’ damages, such as the members’ knowledge of the air
pollution upon moving to the community. GPC relies on In re Fibreboard
Corp., 893 F.2d 706 (5th Cir. 1990). In Fibreboard, the district court
certified a class of over 3000 asbestos claims. Id. at 707. To assess
damages, it proposed to try a small, limited segment of claims in full,
then extrapolate from those individualized awards to an omnibus award
for the class. Id. at 708–09. From those witnesses, the jury would
extrapolate damages to the class as a whole. Id. at 709. The Fifth
Circuit, in granting mandamus to prevent trial, recognized that such
41
extrapolation violated the defendant’s rights by masking differences in
causation, types of injury, fact of injury, and exposure. Id. at 711.
Fibreboard is inapposite. In Fibreboard, the claims presented were
more diverse than here. Plaintiffs suffered different personal injuries,
from different causes, over different periods of time. Here, the residents
are not claiming personal injuries. Rather, they seek recovery for the
loss of use and enjoyment of their property caused by GPC’s emissions.
The district court has not limited the number of witnesses GPC can
present, nor its exploration of individual defenses.
Moreover, the Supreme Court has indicated inferences from
representative proof are permissible in certain circumstances. In Dukes,
the Court rejected the use of testimony from a sample of 120 Wal-Mart
employees because it found all members of the class were not similarly
situated and the plaintiffs lacked evidence the sample was
representative. 564 U.S. at 367, 131 S. Ct. at 2561. But five years later,
in Bouaphakeo, the Court allowed representative evidence compiled by
an expert to establish employee’s average donning and doffing time. 577
U.S. at ___, 136 S. Ct. at 1044–45. Explaining this difference, the Court
stated,
The underlying question in Wal-Mart, as here, was whether
the sample at issue could have been used to establish
liability in an individual action. Since the Court held that
the employees were not similarly situated, none of them
could have prevailed in an individual suit by relying of
depositions detailing the ways in which other employees
were discriminated against by their particular store
managers. . . .
In contrast, the study here could have been sufficient
to sustain a jury finding as to hours worked if it were
introduced in each employee’s individual action. While the
experiences of the employees in Wal-Mart bore little
relationship to one another, in this case each employee
worked in the same facility, did similar work, and was paid
under the same policy. . . . [U]nder these circumstances the
42
experiences of a subset of employees can be probative as to
the experiences of all of them.
Id. at ___, 136 S. Ct. at 1048. We have allowed testimony from
community residents in nuisance actions to prove the “normal person”
standard. The plaintiffs plan to call witnesses from throughout the
neighborhood. GPC is free to call additional witnesses. As we have
already discussed, this class action can proceed in a manner that
preserves GPC’s due process rights to contest harm and damages
suffered by individual class members.
If proof of individual defenses becomes unmanageable, the district
court has discretion to bifurcate the trial, create additional subclasses,
or decertify the class.
[B]ifurcation enables the common issue of liability to be
resolved in an aggregate proceeding but reserves the
assessment of individual damages for some subsequent,
more individualized processing. Courts have therefore held
that bifurcation assists certification by responding to due
process concerns.
Newberg § 11:10 (footnote omitted). At this stage of the case, GPC has
not shown the class certification order violates its due process rights.
IV. Disposition.
For these reasons, we affirm the district court’s order certifying
this class action.
DISTRICT COURT CLASS CERTIFICATION ORDER AFFIRMED.
All justices concur except Appel, J., who concurs specially.
43
#15–1942, Freeman v. Grain Processing Corp.
APPEL, Justice (concurring specially).
I concur in the generally thorough majority opinion in this case. I
write separately, however, to emphasize the difference between Iowa law
and federal law on the question of class certification.
Iowa is one of two states that have adopted a version of the
Uniform Class Actions Act. Thomas D. Rowe, Jr., State and Foreign
Class-Actions Rules and Statutes: Differences from—and Lessons for?—
Federal Rule 23, 35 W. St. U. L. Rev. 147, 150 (2007). One of the
purposes of the Uniform Class Actions Act was to create a more generous
standard for class certification because “federal courts have severely
restricted the availability of class actions in their forum.” Irving Scher,
Opening State Courts to Class Actions: The Uniform Class Actions Act, 32
Business Lawyer 75, 86 (1976). Consistent with the Uniform Class
Actions Act upon which they are based, Iowa courts have consistently
stated “[o]ur class-action rules are remedial in nature and should be
liberally construed to favor the maintenance of class actions.” Comes v.
Microsoft Corp., 696 N.W.2d 318, 320 (Iowa 2005); accord Anderson
Contracting, Inc. v. DSM Copolymers, Inc., 776 N.W.2d 846, 848 (Iowa
2009); Lucas v. Pioneer, Inc., 256 N.W.2d 167, 175 (Iowa 1977). In light
of this legislative history and our caselaw, federal class action precedent
is of limited value in determining class certification under Iowa law.