Brooks v. Union Pacific R. Co.

• Decision Date: 22 May 2009
• Docket Number: No. 2008-C-2035.,2008-C-2035.
• Citation: 13 So.3d 546
• Parties: Faith BROOKS, et al. v. UNION PACIFIC RAILROAD COMPANY, et al.
• Court: Louisiana Supreme Court

13 So.3d 546

Faith BROOKS, et al. v. UNION PACIFIC RAILROAD COMPANY, et al.

No. 2008-C-2035.

Supreme Court of Louisiana.

May 22, 2009.

Hymel, Davis & Petersen, L.J. Hymel, Jr., Michael Reese Davis, Baton Rouge, Tim Paul Hartdegen, Kenneth Alan Goodwin, New Orleans, for applicant.

Fraser, Morris & Wheeler, David Andrew Fraser, Pamela L. Courtney, Keiser Law Firm, Randall Brian Keiser, David Heath Trahan, Laborde & Neuner, James L. Pate, Ben Louis Mayeaux, Phelps Dunbar, Harry Alston Johnson, III, Baton Rouge, for respondent.

VICTORY, J.

We granted a writ application in this class action lawsuit to determine the proper standards for analyzing class certification and whether the court of appeal correctly applied these standards in decertifying the class in this case. After reviewing the record and the applicable law, we affirm the judgment of the court of appeal but remand the matter for the trial court to consider certifying a class or classes based on the criteria set forth in this opinion.

FACTS AND PROCEDURAL HISTORY

On April 10-11, 1995, a heavy rainstorm in the City of Oakdale resulted in large scale flooding on the east side of the elevated Union Pacific Railroad ("UPRR") tracks which run north to south through the city. Various property owners filed suit in 1996 against UPRR and the State of Louisiana, through the Department of Transportation ("DOTD"). The plaintiffs amended their petition in 1999 to allege, inter alia, strict liability on the part of UPRR and to allege the prerequisites for a class action. The plaintiffs filed a Second Supplemental and Amended Petition in 2001 to add the City of Oakdale, the Allen Parish Police Jury and their insurers as defendants, alleging liability based on strict liability and negligence. The plaintiffs also dismissed the DOTD as a defendant. In the amended petition, plaintiffs alleged that three stormwater drainage structures underneath the railroad tracks were inadequately designed and maintained for their intended purpose.¹ In a fourth amended petition, the plaintiffs alleged that an area referred to as the "West Fork Caney Creek Basin" (the "Eastern Basin") was also flooded as a result of the defendants' negligence, and sought to add this area of residents to the class.² Plaintiffs sought recovery mainly for property damages, with some personal injuries, alleging that defendants combined fault caused flooding of their properties. This amended petition delineated three geographical areas or basins which plaintiffs allege were flooded by the combined acts of the defendants: the Northern or Stream "J" Drainage Basin; the West Fork Caney Creek Drainage Basin [the "Eastern Basin"]; and the Southern Drainage Basin. The petition also identified three sub-basins within the Southern Basin.³ In addition to alleging that UPRR failed to design and maintain two stormwater drainage structures under the tracks in the Northern and Southern Basins, the plaintiffs alleged that the City of Oakdale negligently designed and maintained various stormwater drainage facilities, including the "West Fork Caney Creek," ("WFCC") which was the primary drainage canal in the Eastern Basin, and Stream "J," and that outside the city limits, the Parish similarly negligently designed and maintained West Fork Caney Creek and Stream "A." Plaintiffs have also alleged strict liability on the part of all defendants. Based on plaintiffs' counsel's survey of potential plaintiffs, approximately 1,600 individuals were adversely affected by the flooding.

A three-day certification hearing was held before Judge Robert Brinkman, sitting ad hoc following the recusals of several local judges. During the hearing, plaintiffs presented the live testimony of several class representatives, Dr. Donald Barbe, an expert hydrologist, and other witnesses. The defendants presented the live testimony of two experts, Dr. Lee Lancon and Dr. Gary Lewis. The evidence established that UPRR's tracks acted as a levee during the flood, obstructing drainage from east to west. Plaintiffs' witnesses testified that the two drainage structures under the tracks, one in the north and one in the south, were undersized and improperly maintained, and that the drainage ditches leading to the structures were filled with trees, bushes, railroad ties and trash. The stream leading into the northern drainage structure was referred to as "Stream J" and it flowed from east to west from WFCC into UPRR's northern drain. The plaintiffs' witnesses testified that the City failed to properly maintain Stream J. In the Southern Basin, Stream A was a drainage ditch maintained by the Parish which flowed east to west into UPRR's southern drainage structure and the plaintiffs presented testimony that the Parish failed to properly maintain Stream A. WFCC was the major drainage canal located on the eastern perimeter of the Northern and Southern drainage basins and it ran from north to south. The plaintiffs' witnesses testified that the City and Parish failed to properly maintain WFCC.

Dr. Vijay Singh, plaintiffs' former expert, testified by way of deposition. Dr. Singh used two computer models to study the flooding in the Northern and Southern basins:⁴ (1) the Hydrologic Engineering Center-Hydrologic Modeling System (HEC-HMS), which is a software program package that simulated the rainfall and runoff processes in the drainage systems in each sub-basin; and (2) the Hydrologic Engineering Center-River Analysis System (HEC-RAS), which used the computed flows from the HEC-HMS to estimate the peak flood elevations at selected locations in a basin or sub-basin. His report concluded that the predominate cause of flooding in the Southern Basin was the UPRR culvert across Stream A and the predominate cause of flooding in the Northern Basin was the UPRR culvert across Stream J. Further, he reported that the flooding was also caused by the breach of the WFCC and its diversion into Stream J. He testified in his deposition that the level of flooding probably was the same in each sub-basin, but that localized differences within each sub-basin, such as elevations, ditches and obstructions around properties, could result in different levels of flooding. He testified that the diversion of WFCC into Stream J would have impacted the area in the immediate vicinity of Stream J more than other areas in the Northern Basin.

Dr. Barbe adopted Dr. Singh's report and testified to the following: the predominant cause of flooding in the Southern Basin was the insufficient size of UPRR's drainage facility under its railroad tracks at Stream A and that this also caused water from the Southern Basin to flow into the Northern Basin; the predominant cause of flooding in the Northern Basin was UPRR's drainage structure at Stream J and that this also caused water to back up and flow into the Southern and Eastern Basins; (3) the predominant cause of flooding in the Eastern Basin was the improper maintenance of WFCC.⁵ He also testified that the defendants' combined fault impacted all of the properties in the three basins. He testified that "you can't just look at the flooding here [in one basin] by only looking at this basin ... [y]ou need to include the entire area to look at the causes of flooding in the eastern basin." On cross-examination, Dr. Barbe testified as follows:

Q. Okay. Now, isn't it going to take a dynamic model in order to determine the affect of all these different households, won't it take a dynamic model for each one of them to determine for example how the ones on 81 are affected as compared to the ones at 126?

A. Well, first off, I think the ones up there are not in the basin.

Q. Okay. Well, let's just take this one up here, 218, that is in this basin [northern part of Eastern basin] and compare it with 126 down here [in the Southern basin], won't you need a dynamic model for each one of them to determine how these various factors you've talked about affects each individual household?

A. You don't need a dynamic model to say how these factors affected the households. You need a dynamic to say what percentage of these factors affected each of these households.

Q. Thank you. In other words you got differing degrees of impact on all these factors that you have enumerated on each individual household. Isn't that correct?

A. Yeah. All households, there was a different affect at different households, and a different result at different households.

Later, he testified that the predominant cause in each basin would be the same for each household in that basin. However, he testified that the secondary or tertiary causes would vary from household to household "depending also on the elevation of the house and its location." Contrary to plaintiffs' assertions in briefs, Dr. Barbe never testified that the percentage of fault attributable to each defendant would be the same within each basin.

Dr. Lancon testified for UPRR, primarily with respect to the Northern Basin. Regarding the cause of flooding in that basin he testified as follows:

Q. All right. Well, let's go back then and — I guess, first, let me ask you this. Did you make a determination as to whether or not areas within the Northern Basin were affected by the same factors throughout in this flood, or were they affected by localized factors that might have caused flooding at spots scattered even within the Northern Basin itself?

A. I feel that the — there were many different factors that caused flooding within the Northern Basin.

Q. Are those factors uniform to the entire basin?

A. No. They are — I think they are different. They are — some areas were affected — some of the factors affected certain areas differently that the others to differing degrees. And what I mean by that, the — obviously when West Fork Caney overflowed into the Northern Basin it overwhelmed the structure under the railroad tracks, and it — at that point in time it backed water up. But, when the structure that we identified earlier in...