Jackson v. Unocal Corp..

Citation262 P.3d 874
Decision Date31 October 2011
Docket NumberNo. 09SC668.,09SC668.
PartiesRichard JACKSON; Mary Jackson; Thomas Fehringer; Deborah Hradecky; Robert Hradecky; Dean Lousberg; and Lousberg Partnership, on behalf of themselves and those similarly situated, Petitioners.v.UNOCAL CORPORATION, Union Oil Company of California, and Unocal Pipeline Company, Respondents.
CourtSupreme Court of Colorado


The Hannon Law Firm, LLC, Kevin S. Hannon, Justin D. Blum, Denver, Colorado, Inman Flynn Biesterfeld & Brentlinger, P.C., Richard P. Brentlinger, Eric Voogt, Denver, Colorado, Attorneys for Petitioners.Holland & Hart LLP, John A. Ramsey, Rachel A. Yates, Greenwood Village, Colorado, Holland & Hart LLP, Stephen G. Masciocchi, Denver, Colorado, Attorneys for Respondents.Robert F. Hill, John H. Evans, Nathan P. Flynn, Denver, Colorado, Thomas D. McFarland, Golden, Colorado, Attorneys for Amicus Curiae Colorado Trial Lawyers Association.Kerr Brosseau Bartlett, LLC, Marc R. Brosseau, Catherine E. McDaugale, Denver, Colorado, Attorneys for Amicus Curiae Product Liability Advisory Council, Inc.Justice MARTINEZ delivered the Opinion of the Court.

At issue in this land damages class action are the standards a trial court applies when deciding whether to certify a class pursuant to C.R.C.P. 23. C.R.C.P. 23 provides trial courts with a procedural tool for consolidating claims and managing them as a class action. The rule provides that the class certification decision must be made [a]s soon as practicable” and “may be conditional.” C.R.C.P. 23(c). In this appeal, we clarify three aspects of the class certification procedure. First, due to the fact-driven nature of class certification, a trial court must rigorously analyze the evidence and determine to its satisfaction that each C.R.C.P. 23 requirement is met. Second, a trial court may consider any factual or legal disputes relevant to the C.R.C.P. 23 requirements, including those disputes that incidentally overlap with the merits of the case. However, to the extent such disputes overlap with the merits, a trial court may not resolve factual or legal disputes to screen out or prejudge the merits of the case. Finally, a trial court's obligation to rigorously analyze the evidence relevant to the class certification decision extends to expert disputes. While the trial court need not determine which expert ultimately will prevail on the merits or whether an expert's testimony ultimately will be admissible at trial, it may consider expert disputes to the extent necessary to satisfy itself that the class advocate has established each C.R.C.P. 23 requirement.

We thus reverse the court of appeals' rulings that the trial court must apply a preponderance of the evidence standard to C.R.C.P. 23's requirements, that the trial court must resolve factual or legal disputes dispositive of class certification regardless of any overlap with the merits, and that the trial court must resolve expert disputes regardless of any overlap with the merits. We also conclude that the trial court rigorously analyzed the evidence in determining that Plaintiffs established an identifiable class and satisfied C.R.C.P 23(b)(3)'s predominance requirement. We therefore reverse the judgment of the court of appeals.


Plaintiffs filed a class action alleging that Unocal Corporation, Unocal Pipeline Company, and Union Oil Company of California (collectively Unocal) caused asbestos contamination from the removal of an oil pipeline. Unocal was the historic owner of a pipeline that was buried under approximately sixty-nine miles of easements in Logan and Weld Counties. The buried pipe contained a layer of asbestos wrap. From late 1996 through January 1998, Unocal hired a contractor to remove the pipeline. During the excavation and removal process, small pieces of the pipe's asbestos wrap were left on the easement properties.

In 2006, Plaintiff land owners brought this action, asserting claims for nuisance, negligence, trespass, respondeat superior, and unjust enrichment. Plaintiffs' amended complaint sought compensatory damages for diminution of land value, remediation efforts, and loss of use and enjoyment. Plaintiffs moved for class certification under C.R.C.P. 23(b)(3) on the basis that common issues of liability and damages predominated over individual issues. Plaintiffs sought to certify two classes: (1) an Easement Property Class that includes owners of properties containing the pipeline easement; and (2) a Contiguous Property Class that includes owners of properties that are contiguous to those containing the easement.

In determining whether to certify the Easement and Contiguous Property Classes, the trial court considered 146 pages of briefs with fifty-four exhibits, affidavits from seven experts, portions of deposition transcripts from twelve witnesses, wind and sampling data, and numerous other documents. The court also held a two-day hearing on class certification with additional oral and written testimony, including fifty-three more exhibits.

Among other things, the parties disputed three issues relevant to the class certification decision and to the C.R.C.P. 23 requirements. The first issue was whether asbestos fibers had migrated from the easement properties to the contiguous properties. Plaintiffs submitted as expert testimony the deposition of an industrial hygienist, Doctor Terry Spear. He relied on an air-diffusion model prepared by an environmental engineer, Doctor Kumar Ganesan, and opined that the asbestos fibers from the pipeline wrap migrated to contiguous properties to beyond five miles from the easement properties. In turn, Unocal called Doctor Brent Kreger, an expert toxicologist, who disputed Spear's opinion that asbestos fibers had blown onto the contiguous properties.

The parties also disputed the appropriate methodology for calculating the loss in property value attributable to the alleged asbestos contamination. Plaintiffs' real-estate appraiser, Wayne Hunsperger, opined that loss in property value could be calculated on a class-wide basis. In contrast, Unocal's appraiser, Michael Earley, explained that individual evidence, such as actual appraisals and paired sales, would be needed to reliably calculate loss in property value due to the alleged asbestos contamination.

Finally, Unocal presented eleven affirmative defenses, one or more of which will apply to fifty-nine of the sixty-six Easement Property Class members, as well as to an unspecified number of Contiguous Property Class members.

Based on the record, the trial court certified both classes under C.R.C.P. 23(a) and (b)(3). To begin with, the trial court cited Burkhead v. Louisville Gas & Electric Co., 250 F.R.D. 287, 291 (W.D.Ky.2008), for the proposition that C.R.C.P. 23 requires the class proponent to demonstrate an identifiable class where there is some evidence of a reasonable relationship between the class boundaries and the spread of contamination. It was undisputed that the easement properties had been contaminated with asbestos fibers and thus constituted an identifiable class. As noted, however, there was conflicting expert testimony regarding the spread of asbestos fibers to the contiguous properties. The trial court declined to resolve this expert dispute out of fear that it involved a “merits question that [is] not appropriate for determination at this stage of the proceedings.” Instead, the trial court explained that it did not find Ganesan's air-diffusion model “so flawed to be inadmissible.” The trial court thus ruled that there was “sufficient evidence” of a reasonable relationship between the spread of contamination and the Contiguous Property Class boundaries to satisfy the requirement of an identifiable class.1

The trial court also determined that common issues predominated over individual issues for the purposes of C.R.C.P. 23(b)(3). As part of its analysis, the trial court sorted through a variety of legal and factual issues, identifying whether each issue was common to the class or individual to each class member. The trial court identified eleven issues common to all the class members. It noted that “the primary question of fact is whether the removal of the pipeline by the defendants resulted in the release of asbestos onto the class members' property.” It also noted as a common question whether the asbestos contaminated the class members' properties. The court did not, however, resolve the expert dispute regarding whether Plaintiffs could rely on Ganesan's air-diffusion model as a class-wide method of proving asbestos contamination.

The trial court also declined to resolve the competing testimony from the two real estate appraisers regarding the potential need for individualized evidence of loss in property value. Instead, the trial court accepted both Unocal's position that there were individual issues regarding damages and Plaintiffs' position that whether the release of asbestos caused a diminution in value of the class members' properties was a common issue.

Finally, the trial court refused to consider Unocal's affirmative defenses that could potentially result in individual issues of proof predominating over common issues. The court explained that these individual defenses did not undermine predominance where common questions of liability otherwise predominated.

The court of appeals reversed the order granting class certification. Jackson v. Unocal Corp., 231 P.3d 12, 15–16 (Colo.App.2009). First, the court of appeals announced that a trial court must apply the preponderance of the evidence standard to the proof supporting each C.R.C.P. 23 requirement. Based on this standard, the court of appeals concluded that the trial court abused its discretion when it found that there was “some evidence” or “some reasonable evidence” of an identifiable class. The court of appeals then vacated the entire order and remanded the case for further findings, by a preponderance of the evidence, regarding the proof...

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