Ellis v. Georgia-Pacific Corp.

• Decision Date: 11 October 1989
• Docket Number: No. 88,GEORGIA-PACIFIC,88
• Parties: Yvonne ELLIS, et al. v.CORPORATION. CA 1764.
• Court: Court of Appeal of Louisiana — District of US

Page 1310

550 So.2d 1310

Yvonne ELLIS, et al. v. GEORGIA-PACIFIC CORPORATION.

No. 88 CA 1764.

Court of Appeal of Louisiana First Circuit.

Oct. 11, 1989.

Concurring in Part and Dissenting in Part Oct. 18, 1989.

Rehearing Denied Nov. 17, 1989.

Harold M. Wheelan, III, William N. Hazlaris, Bruce A. Cranner, New Orleans, Robert Urann, Metairie, Thomas B. Calvert, New Orleans, Patrick W. Pendley, Plaquemine and Andre Guichard, New Orleans, for plaintiffs-appellees.

J. Berry St. John, Jr., Robert E. Holden, New Orleans, James P. Dore, Plaquemine, William Craig Wyman, New Orleans and Richard A. Horder, Georgia-Pacific Law Dept., Atlanta, Ga., for defendants-appellants.

Before EDWARDS, LANIER and FOIL, JJ.

EDWARDS, Judge.

This is an appeal from an order of the Eighteenth Judicial District Court certifying a class action and providing for class notice through electronic and print media.

We affirm.

BACKGROUND

On February 17, 1981, the plaintiffs instituted this action on their behalf and on the behalf of persons living in Jefferson and Orleans Parishes who were similarly harmed. Plaintiffs seek damages, in the amount of $100.00 for each class member, for economic loss, illness, medical expenses, and/or inconvenience which resulted from an unauthorized discharge of phenol by the defendant, Georgia-Pacific, into the Mississippi River over a period of days in February of 1981. The plaintiffs claim the phenol-contaminated water entered the water systems of Orleans and Jefferson Parishes, causing a bad odor and taste in the water and exposing the residents to the phenol. The plaintiffs allege Georgia-Pacific is liable for the damage because of its negligence. They specifically plead the Doctrine of Res Ipsa Loquitur.

After a long delayed process of discovery, a class certification hearing was held on March 14, 1988. In addition to the pleadings and interrogatories, both parties presented briefs and placed in the record depositions of various residents of the two parishes involved. Georgia-Pacific presented testimony by two expert witnesses and introduced into evidence maps and chemical log sheets from the different water treatment plants servicing the two-parish area. Plaintiffs submitted affidavits from representative plaintiffs, experts, and a media consultant, Peter A. Mayer. The Mayer affidavit was submitted to provide information for the judge to consider in choosing a method of notice to the absent plaintiffs. The affidavit attested to the coverage that would be derived from media advertisement. On June 2, 1988, the district court ordered the matter certified as a class action and provided that notice of the pendency of the action be allowed to proceed via the electronic and print media. In response, Georgia-Pacific filed a motion for a new trial or hearing on the terms of class certification. The court ordered plaintiffs to show cause on August 11, 1988, why the court should not grant a new trial.

On August 11, 1988, the court heard further argument on the issue of notice and the problems inherent in certifying such a large class. The motion for a new trial was denied on August 12, 1988. Georgia-Pacific appealed suspensively from the court order of June 2, 1988. ¹

ASSIGNMENT OF ERROR

In its appeal, the defendant, Georgia-Pacific, asserts that the trial court erred:

1. in certifying the class without supporting evidence;

2. in admitting affidavits as evidence;

3. in certifying a class that did not meet all the prerequisites for a class action; and

4. in ordering notice to the absent class members through media advertisements and by publication.

STANDARD OF REVIEW

The trial court is afforded great discretion in class action certification. Wide latitude must be given the trial court in considerations involving policy matters and requiring an analysis of the facts under guidelines helpful to a determination of the appropriateness of a class action. Terrebonne Bank & Trust Co. v. Lacombe, 510 So.2d 78 (La.App. 1st Cir.1987). Unless the trial court has committed manifest error, we must confirm the order. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

PROCEDURAL REQUIREMENTS FOR CLASS ACTION HEARINGS

Defendant assigns error to certification of the class without sufficient proper evidence and to admission of improper hearsay evidence in the form of affidavits.

A review of Articles 591-597 of the Louisiana Code of Civil Procedure governing class actions and prevailing case law reveals no required procedure for a certification hearing. Stevens v. Board of Trustees, 309 So.2d 144, 152 (La.1975) provided that "[w]hen the right to proceed by class action is contested, the trial court in the exercise of its discretion in applying the guidelines may need some showing in addition to the pleadings." As long as the opposing party is given an opportunity to attack and argue against the class certification, the demands of law are met. Livingston Parish Police Jury v. Illinois Central Gulf R.R., 432 So.2d 1027, 1030 (La.App. 1st Cir.), cert. denied, 437 So.2d 1137 (La.1983).

A review of the record shows the court had sufficient information before it, beyond the pleadings, in the form of briefs, documentary material, testimony introduced by defendants, interrogatories, and depositions, to make an initial determination of the appropriateness of the class action device in this matter.

ADMISSIBILITY OF AFFIDAVITS

Affidavits may be admissible under certain conditions concerning matters collateral to the issues on trial without specific statutory authority. Affidavits may be used in evidence during interlocutory or preliminary proceedings, such as, ex parte proceedings, a temporary restraining order, or a rule to show cause. Affidavits are used when there is a need to expedite the procedure. This is acceptable practice when the opposing party is given the opportunity to refute the affidavit. 2A C.J.S. Affidavits Sec. 57 (1972).

The use of affidavits as a basis for decision is allowed in Louisiana under Code of Civil Procedure articles 966(B) and 967 for summary judgments. ² No similar article is available in the Code of Civil Procedure for class actions. However, the use of affidavits to support motions for class actions is recognized in the federal system. United National Records, Inc. v. MCA, Inc., 99 F.R.D. 178 (N.D.Ill.1983). See also Fleming v. Travenol Laboratories, Inc., 707 F.2d 829 (5th Cir.1983); 2 Newberg, On Class Actions Sec. 7.26 (2nd ed. 1985).

Defendant specifically assigns error to the Mayer affidavit. The affidavit was submitted by plaintiff to provide information. The defendant had the opportunity at the August 11th hearing to refute the attestations or provide contradictory information.

The two cases cited by defendant precluding use of affidavits as inadmissible hearsay are inapposite. Neither concerned a class certification hearing. In Julius Cohen Jeweler, Inc. v. Succession of Jumonville, 506 So.2d 535 (La.App. 1st Cir.), cert. denied, 511 So.2d 1155 (La.1987), the affidavit was used to prove a fact at issue in the trial. In Board of Commissioners v. Louisiana Commission on Ethics, 416 So.2d 231 (La.App. 1st Cir.), cert. denied, 421 So.2d 248 (La.1982), the affidavit was submitted for use at the trial of a dilatory and a peremptory exception. The Court of Appeal affirmed the trial court's refusal to allow the affidavit. The appellant court relied on Louisiana Code of Civil Procedure Articles 930 and 931, which allow evidence to be introduced at the trial of the exceptions. The word "evidence" was interpreted to mean competent legal evidence that would be admissible at trial on the issues. Board of Commissioners, 416 So.2d at 238.

We have no similar statutory guidance before us. However, the Louisiana articles on class actions are based on Federal Rule of Civil Procedure 23. Without guidance from Louisiana sources, treatises and federal cases can be useful. The Newberg treatise and the federal cases cited above provide support for the use of affidavits in class certification hearings.

The power to provide for notice and collateral matters is exercised by the court. Williams v. State, 350 So.2d 131, 138 (La.1977). We find that it was within the discretion of the trial judge to allow the affidavits at a class certification hearing.

PREREQUISITES FOR CLASS ACTIONS

Articles 591 and 592 of the Louisiana Code of Civil Procedure set forth the criteria for a class action. The requirements are:

1. A class so numerous that joinder is impractical;

2. The joinder of parties who are members of the class and able to provide adequate representation for absent members; and

3. A "common character" between the rights of the representatives of the class and the absent class members. Williams v. State, 350 So.2d 131, 133 (La.1977); Stevens v. Board of Trustees, 309 So.2d 144, 148 (La.1975); Livingston Parish Police Jury v. Illinois Central Gulf R.R., 432 So.2d 1027, 1029 (La.App. 1st Cir.), cert. denied, 437 So.2d 1137 (La.1983).

The defendant does not contest the first requirement of impractical joinder. The attack is made on the lack of adequate representation because of atypical claims and the lack of a "common character" between the issues of the representative plaintiffs and the other members of the class.

ADEQUATE REPRESENTATION

The determination of whether the plaintiffs here are situated so that they may fairly insure adequate representation is made by the court. McClure v. A. Wilbert's Sons Lumber & Shingle Co., 232 So.2d 879, 883 (La.App. 1st Cir.1970); Verdin v. Thomas, 191 So.2d 646, 650 (La.App. 1st Cir.1966).

Depositions submitted to the court at the certification hearing show that the claims of the named plaintiffs can be generally grouped as follows: (1) medical expenses (2) economic damage, and (3) inconvenience. The medical expenses are claimed for problems related to the exposure to the phenol. The great majority of the plaintiffs claim economic loss that resulted from the need...