Freeman v. Grain Processing Corp.

• Decision Date: 12 May 2017
• Docket Number: No. 15-1942,15-1942
• Parties: Laurie FREEMAN, Sharon Mockmore, Beccy Boysel, Gary D. Boysel, Linda L. Goreham, Gary R. Goreham, Kelcey Brackett, and Bobbie Lynn Weatherman, Appellees, v. GRAIN PROCESSING CORPORATION, Appellant.
• Court: Iowa Supreme Court

895 N.W.2d 105

Laurie FREEMAN, Sharon Mockmore, Beccy Boysel, Gary D. Boysel, Linda L. Goreham, Gary R. Goreham, Kelcey Brackett, and Bobbie Lynn Weatherman, Appellees,

v.GRAIN PROCESSING CORPORATION, Appellant.

No. 15-1942

Supreme Court of Iowa.

Filed May 12, 2017

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.

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 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 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, 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 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...