Price v. Martin, 2011–C–0853.

• Citation: 79 So.3d 960
• Decision Date: 06 December 2011
• Docket Number: No. 2011–C–0853.,2011–C–0853.
• Parties: Roger E. PRICE, et al. v. Roy O. MARTIN, et al.
• Court: Louisiana Supreme Court

79 So.3d 960

Roger E. PRICE, et al.

v.Roy O. MARTIN, et al.

No. 2011–C–0853.

Supreme Court of Louisiana.

Dec. 6, 2011.

Adams and Reese, LLP, Charles Fenner Gay, Jr., Don S. McKinney, New Orleans, LA, Edwards Wildman Palmer LLP, Brent R. Austin (pro hac vice), Leonard S. Kurfirst (pro hac vice), Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, Richard Edward Sarver, New Orleans, LA, Gold, Weems, Bruser, Sues & Rundell, Charles Stovall Weems, III, Raymond Brown, Jr., Alexandria, LA, for Applicant.

Marion App French, Alexandria, LA, Loupe Law Firm, LLC, John Chandler Loupe, McKernan Law Firm, John H. Smith, J.J. McKernan, Steve Irving, LLC, Stephen Miller Irving, Baton Rouge, LA, The Sotile Law Firm, LLC, Vincent J. Sotile, Jr., Prairieville, LA, for Respondent.

WEIMER, Justice.

[2011-0853 (La. 1] We granted certiorari in this lawsuit to determine whether the lower courts correctly applied the standards for analyzing class action certification set forth in La. C.C.P. arts. 591, et seq. After reviewing the record and the applicable law, we find the lower courts erred in concluding that common questions of law or fact exist, that questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for a fair and efficient adjudication of this matter. Accordingly, we reverse the judgment of the district court which granted plaintiffs' motion for class certification.

FACTS AND PROCEDURAL HISTORY

In February 2003, five individuals residing and owning property in Alexandria, Louisiana, in the vicinity of the Dura–Wood Treating Company (“the Dura–Wood facility”), filed on their own behalf and as representatives of a class of persons, who allegedly suffered damages as a result of operations at the wood-treating facility, a “Class Action Petition for Damages.” The petition was filed in the Twenty-third [2011-0853 (La. 2] Judicial District Court, Parish of Ascension, but the matter was subsequently transferred to the Ninth Judicial District Court, Parish of Rapides, pursuant to a judgment sustaining exceptions of improper venue.¹ Named as defendants in the original petition were prior owners of the Dura–Wood facility, Roy O. Martin Lumber Company, L.P. (“Martin”), and Beazer East, Inc. (“Beazer”).²

The petition, which was amended several times, alleges that the Dura–Wood facility is primarily engaged in the production of creosote-treated railroad ties. According to the petition, from 1940 to mid–1950, while under the ownership and operation of Koppers Company, Inc. (now defendant Beazer), creosote and wastewater from the facility were discharged into a small creek running into Chatlin Lake Canal. Later, ponds were constructed to receive water from the wood preserving operations. Plaintiffs allege that significant quantities of creosote sludge were deposited into the canal and ponds. According to plaintiffs, in 1970, defendant Martin purchased the Dura–Wood facility and began using the contaminated ponds to receive process water. ³

Plaintiffs allege that throughout its operation, there were spills at the facility that were never remediated. There was no containment of creosote drippings from the treating units or of runoff and/or overflow at the facility. Neighboring residents were not prohibited from entering the facility. In addition, trimmings from treated [2011-0853 (La. 3] wood were allegedly collected in a pile at the facility and neighboring residents were allowed to use the treated wood for cooking and heating.

According to plaintiffs' allegations, these environmentally unsound practices caused a significant amount of hazardous and toxic chemicals to be released into the environment, including the air, soil, and water, of the communities in which plaintiffs reside, contaminating the soil, sediments, groundwater, and buildings therein and thereon. In particular, plaintiffs allege that defendants' wood-treating and preserving activities caused the release of creosote, hexachlorobenzene, and pentachlorophenol into their communities, exposing plaintiffs to physical injury in the form of increased risk of disease, property damage, and diminished property values. Plaintiffs allege that defendants' activities constitute a nuisance under La. C.C. arts. 667, et seq. , and that defendants were negligent under La. C.C. arts. 2315 and 2317.⁴

In November 2003, plaintiffs filed a “Motion for Certification of Class Action,” asserting that more than 3,000 persons, firms, and entities have been damaged by defendants' conduct and that the following issues are common to the class and predominate over individual issues: (1) liability for compensatory damages, or whether “leakage, release and discharge of toxic chemical and hazardous substances from the Dura–Wood Site ... has caused the surrounding area ... to be contaminated with toxic and/or hazardous substances” and (2) liability for exemplary damages, or whether defendants engaged in the “reckless handling, transportation and/or storage of toxic and/or hazardous [substances] which are a danger to the public health.” In [2011-0853 (La. 4] a much later filed (March 23, 2009) memorandum in support of class certification, plaintiffs sought certification of a class to be defined as follows:

All persons and entities, at any time since 1940 until the present time located or residing in, owning or leasing places of business or property in, operating businesses in, and/or who were or are physically present within the geographic area as defined in Section B, who claim property damage, and diminished property value, including stigmatization of the community and contamination of their homes, yards, vehicles and general living environment, including the groundwater underneath their property.

Plaintiffs argued the proposed class, which would establish “the offsite-migration of certain chemicals which originated from the DuraWood facility ... as a result of the negligent conduct of the defendants, for which they are responsible,” satisfied the requirements of La. C.C.P. art. 591(A) and (B)(3).

A hearing on the class certification issue was conducted on September 22 and 23, 2009. The matter was taken under advisement, and in February 2010, following the issuance of extensive and lengthy written reasons, the district court rendered a judgment granting plaintiffs' motion for class certification, certifying in its reasons for judgment a class defined as “property owners who owned property within the class area at the time the property was damaged during the years of 1944 through present.” ⁵

Defendants appealed the district court's ruling, and the court of appeal affirmed. Price v. Martin, 10–599 (La.App. 3 Cir. 2/2/11), 56 So.3d 1109. The appellate court ultimately found no reversible error in the district court's judgment certifying the class, although it candidly acknowledged “a number of potential problems with the class as it has been defined:” to wit, the unprecedented and extremely long period of time over which plaintiffs may claim harm; the fact that, [2011-0853 (La. 5] although there is only one facility, there have been multiple owners of the facility; and the fact that inclusion of past and current landowners within the class will likely result in conflicts among those whose interests should be aligned. Price, 10–599 at 14, 56 So.3d at 1118. Nevertheless, relying on the district court's ability, at any time before a decision on the merits of the common issues, to alter the class, redefine the class, or even recall the class certification altogether, and on prior language from this court indicating that errors in deciding class action issues should be in favor of and not against the maintenance of the class action, the court of appeal concluded that the district court did not abuse its discretion in certifying the class. Id.

We granted certiorari to review the judgments of the lower courts and, in particular, to examine whether those courts engaged in the rigorous analysis required to determine whether this action meets the requirements imposed by law for class action certification. Price v. Martin, 11–0853 (La.7/1/11), 64 So.3d 234.

DISCUSSION

Class Action Rules

Once more this court is being called on to evaluate the appropriateness of a mass tort claim for class certification. The requirements for certification of such claims have been the object of scrutiny and discussion by this court on several previous occasions. See Brooks v. Union Pacific Railroad Co., 08–2035 (La.5/22/09), 13 So.3d 546; Ford v. Murphy Oil U.S.A., Inc., 96–2913, 96–2917, 96–2929 (La.9/9/97), 703 So.2d 542; McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984).

Recently, in Dupree v. Lafayette Ins. Co., 09–2602 (La.11/30/10), 51 So.3d 673, this court pointed out that extensive revisions to the class action provisions, La. C.C.P. arts. 591, et seq. , were enacted by the legislature in 1997. These revisions, [2011-0853 (La. 6] which govern the present action, essentially adopted current federal law governing class actions, Fed. Rule Civ. Proc. 23, and codified this court's prior class certification jurisprudence. Dupree, 09–2602 at 5, 51 So.3d at 679.

As a result, it remains true that “a class action is a nontraditional litigation procedure that permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court.” Dupree, 09–2602 at 6, 51 So.3d at 679, citing Brooks, 08–2035 at 10–11, 13 So.3d at 554. The purpose and intent of the class action is to adjudicate and obtain res judicata effect on all common issues applicable not only to persons who bring the action, but also to all others “similarly situated.” Id.

The class action is an exception to the...