NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MOSAIC FERTILIZER, LLC, )
)
Appellant, )
)
v. ) Case No. 2D17-2302
)
HOWARD CURD, FLOYD DEFOREST, )
SCOTT MOBLEY, GARY BRUCE, )
DAVID LAGGNER, BRYAN )
IBASFALEAN, PHILIP JOHNSON, and )
ANGELO LOGRANDE, on behalf of )
themselves and all others similarly )
situated, )
)
Appellees. )
________________________________ )
Opinion filed November 9, 2018.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Hillsborough
County; Steven Scott Stephens, Judge.
David B. Weinstein and Kimberly Mello of
Greenberg Traurig, P.A., Tampa, and
Andrew J. Patch of Greenberg Traurig,
P.A., Tampa (withdrew after briefing), for
Appellant.
Andra T. Dreyfus and Casey C. Harrison
of Dreyfus Harrison, P.A., Clearwater,
and F. Wallace Pope, Jr., of Johnson,
Pope, Bokor, Ruppel & Burns, LLP,
Clearwater, for Appellees.
NORTHCUTT, Judge.
Mosaic Fertilizer, LLC, appeals a nonfinal order granting plaintiffs' motion
for class certification. We reverse because the putative class of plaintiffs failed to
demonstrate a reasonable methodology for proving classwide claims.
Howard Curd and other commercial fishermen sued Mosaic following a
pollutant spill into Tampa Bay. The fishermen alleged that Mosaic owned or operated a
phosphogypsum storage area near Archie Creek in Hillsborough County. Within the
storage area was a pond containing the pollutant-rich wastewater from a phosphate
plant. Although dikes enclosed the wastewater pond, the fishermen alleged that in the
summer of 2004 the Hillsborough County Environmental Protection Commission and
the Florida Department of Environmental Protection warned Mosaic that the pond was
dangerously close to exceeding safe storage levels. In September 2004 Hurricane
Frances swept across Florida, and on September 5, 2004, the dike gave way, spilling
wastewater into Tampa Bay. In their lawsuit, the fishermen claimed that "the spilled
pollutants resulted in a loss of underwater plant life, fish, bait fish, crabs, and other
marine life. [Though the fishermen did not claim ownership of the damaged marine life,
they claimed that the spill] resulted in damage to the reputation of the fishery products
the fishermen are able to catch and attempt to sell." Curd v. Mosaic Fertilizer, LLC, 993
So. 2d 1078, 1079 (Fla. 2d DCA 2008), decision quashed, 39 So. 3d 1216 (Fla. 2010).
The circuit court allowed the fishermen to proceed on their claim, but
ultimately it dismissed the claim as unauthorized by the economic loss rule. See
generally Tiara Condo. Ass'n. v. Marsh & McLennan Cos., 110 So. 3d 399, 401-07 (Fla.
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2013) (discussing the origin and development of the economic loss rule). This court
affirmed and certified questions of great public importance; the Florida Supreme Court
quashed this court's opinion and held that the economic loss rule did not bar the
fishermen from pursuing both a common law negligence claim as well as a statutory
cause of action under section 376.313(3), Florida Statutes (2004). Curd v. Mosaic
Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010) (quashing Curd v. Mosaic Fertilizer, LLC,
993 So. 2d 1078 (Fla. 2d DCA 2008)). The supreme court concluded that section
376.313(3) provides "private causes of action to any person who can demonstrate
damages as defined under the statute," id. at 1222, and that "the discharge of the
pollutants constituted a tortious invasion that interfered with the special interest of the
commercial fishermen to use those public waters to earn their livelihood." Id. at 1228.
On remand, the fishermen filed their fifth amended complaint and made an
initial attempt to certify a class of commercial fishermen. However, the fishermen later
opted to forgo class certification and instead moved to intervene or join the putative
class members and proceed on a nonclass basis. The circuit court denied the motion to
intervene. The fishermen appealed, and this court affirmed without opinion. Anderson
v. Mosaic Fertilizer, LLC, 160 So. 3d 419 (Fla. 2d DCA 2015) (table decision).
Again before the trial court, the fishermen moved for class certification.
They defined the putative class members as:
Those persons engaged in the commercial catch and sale of
fish, bait fish, shrimp, crabs, and other living sea creatures in
the Tampa Bay and who have lost income and continue to
suffer damages because of the pollution, contamination, and
discharge of hazardous substances by the defendant,
Mosaic.
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The fishermen argued that the putative class met all of the threshold requirements of
Florida Rule of Civil Procedure 1.220(a). They also asserted that the putative class met
rule 1.220(b)(3)'s predominance requirement because all members are entitled to
recover under the exact same legal theories and because the members sustained
damages resulting from the same spill. The fishermen concluded that the
"overwhelming common legal and factual aspects between the claims of the named
Plaintiffs and putative class members dwarf any variation in the claims and predominate
over any individualized issues."
Mosaic responded in opposition to class certification. It contended that
the fishermen ultimately would be unable to prove any of their claims, and it attached a
bevy of environmental impact reports authored by various government agencies as well
as private environmental services firms. Mosaic asserted that all of the reports indicate
that the pollutant release from the Mosaic facility was "localized, ephemeral, and
resulted in no statistically significant difference in the composition of the fish and
invertebrate communities" in Tampa Bay. Mosaic attacked the putative class on all
grounds of rule 1.220(a) and argued that the fishermen could not demonstrate a
classwide impact or a methodology for generalized proof sufficient to support
certification.
The circuit court held a hearing on the motion for certification. On the first
day of hearings, the fishermen presented the testimony of two plaintiffs, Eugene Nipper
and Howard Curd. Nipper testified that he is a commercial fisherman who has dived in
the waters of Tampa Bay since the 1970s. He recounted that since he began his
career, he regularly walked on the bottom of Tampa Bay using weights and scuba
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equipment. Nipper related that he used to see a flourishing seabed where he walked
the bottom. But after the spill, he said, he began seeing more dead sea life and noticed
that the color of the water changed. Nipper stated that over time, more sponges started
to come back after an initial decline following the spill. After a series of objections from
Mosaic, the court ruled that Nipper was not qualified to offer opinions about the spill's
impact on the condition of the water or on the marine and vegetation life. Nipper's
testimony was restricted to his personal observations and recollections of after-spill
changes to Tampa Bay.
Curd, a commercial fisherman in Tampa Bay for thirty years who fished
primarily for blue crab, testified that in the days following the spill, his traps were filled
with dead blue crab. He also stated that the year after the spill, the blue crab did not
come as far into the bay as they once had. He said that every year after the spill the
crab would stay farther and farther out to sea. Curd testified that several years after the
spill, he was unable to catch any blue crab for two years in a row. Mosaic objected to
Curd's testimony, and the court prohibited him from offering an opinion or belief about
whether the spill caused a decrease in his fishing yields or whether the spill had an
effect on other Tampa Bay fishermen's yields.
After the first day of hearings, the circuit court entered an order requiring
further proceedings for class certification determinations. In the order, the court noted
that time expired at the hearing before Mosaic presented its evidence and ordered the
resumption of the hearing. It noted that after the first day of hearings, the "plaintiffs
have placed in the record sufficient showing that could support the court in its discretion
certifying class." The court further observed that the "common claims predominate
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because if the named plaintiffs can prove their damages . . . they would be proving
impact quite remote from the spill site and thus necessarily prove the case of the other
class members." The court sua sponte amended the proposed class definition to
include "holders of commercial fishing licenses who claim to have been damaged by the
spill."
On the second day of hearings, Mosaic tendered the testimony of seven
expert witnesses without objection. The experts gave unrebutted opinions that
supported Mosaic's argument that the spill only caused localized, ephemeral, and
statistically insignificant changes in sea-life communities. More specifically, the experts
opined that the contents of the spill were so quickly diluted and dispersed that there was
no scientifically valid means of predicting or even inferring the spread or presence of
any pollutant outside of the immediate impact area. After Hurricane Frances, the
experts opined, Tampa Bay became so inundated with pollutants and debris from storm
water runoff that there was no reliable method of distinguishing Mosaic's pollutants from
the river and creek sediments, petroleum products, household chemicals, and untreated
sewages that were flushed into the bay. Mosaic's experts concluded that there were no
long-term or population-level effects on any species of marine organism and that the
only effects on marine life were isolated to the immediate area of the spill. Mosaic also
presented an expert on commercial fishing economics who opined that the various
fishing areas covered by the putative class are so diverse in targeted species, contain
such diverse biology and life history of those species, as well as changes in those
species' characteristics over time, that it would be impossible to correlate or make
predictions about those fishing areas.
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After the two days of hearings, the circuit court entered an order
bifurcating the case into liability and damages phases and cited to Engle v. Liggett
Group, Inc., 945 So. 2d 1246 (Fla. 2006). The court defined the liability phase as
extending "up to and including determination of the geographic scope of potentially
harmful effects of the spill." The order suggested that after all liability issues were
resolved the court would consider decertification for the determination of individual
damages. The court also granted the fishermen's motion for class certification only as
to the liability phase. It found that the fishermen had met their burden under rule
1.220(a) and that the liability issues—as the court defined them—are common
questions which predominate the individual damages issues. Mosaic appealed the
order bifurcating the case and certifying the class; we have jurisdiction. See Fla. R.
App. P. 9.030(b)(1)(B); 9.130(a)(3)(C)(vi).
We review orders granting class certification for an abuse of discretion.
Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 103 (Fla. 2011). " '[T]he
determination that a case meets the requirements of a class action is a factual finding,'
which falls within a circuit court's discretion." Id. (quoting Bouchard Transp. Co. v.
Updegraff, 807 So. 2d 768, 771 (Fla. 2d DCA 2002)). The circuit court abuses its
discretion where its order is not supported by competent, substantial evidence or if it
makes an erroneous conclusion of law. Id. at 103.
To obtain class certification, the proponent carries the burden of proving
the elements required under rule 1.220. See id. at 106; Ernie Haire Ford, Inc. v. Gilley,
903 So. 2d 956, 958 (Fla. 2d DCA 2005); Marco Island Civic Ass'n v. Mazzini, 805 So.
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2d 928, 930 (Fla. 2d DCA 2001). Rule 1.220(a) contains four threshold elements that
must be satisfied to obtain class certification:
(1) the members of the class are so numerous that separate
joinder of each member is impracticable ["numerosity"], (2)
the claim or defense of the representative party raises
questions of law or fact common to the questions of law or
fact raised by the claim or defense of each member of the
class ["commonality"], (3) the claim or defense of the
representative party is typical of the claim or defense of each
member of the class ["typicality"], and (4) the representative
party can fairly and adequately protect and represent the
interests of each member of the class ["adequacy"].
Additionally, the proponent of class certification must satisfy one of the three
subdivisions of rule 1.220(b). The fishermen alleged and the circuit court found that the
putative class satisfied subdivision 1.220(b)(3), which requires that
the questions of law or fact common to the claim or defense
of the representative party and the claim or defense of each
member of the class predominate over any question of law
or fact affecting only individual members of the class,
["predominance"] and class representation is superior to
other available methods for the fair and efficient adjudication
of the controversy ["superiority"].
Rule 1.220(b)(3)'s superiority requirement requires the court to weigh the benefits of
class certification versus proceeding on an individual, nonclass basis. See Sosa, 73
So. 3d at 116 (instructing that courts should consider three factors: whether a class
action would provide the only economically viable remedy to class members, the
likelihood of individual claims large enough to justify the expense of individual litigation,
and whether a class action cause of action is manageable). Rule 1.220(b)(3)'s
predominance requirement, however, calls upon the court to make a "proof-based
inquiry." Id. at 112. A proponent of certification must demonstrate a "reasonable
methodology for generalized proof of class-wide impact" whereby "proving his or her
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own individual case, [the putative class representative] necessarily proves the cases of
the other class members." Id.
In this case, the fishermen failed to carry their burden of positing any
reasonable methodology for proving classwide claims. The circuit court sua sponte
amended the putative class to include any holders of commercial fishing licenses who
claim to have been damaged by the Mosaic spill. The fishermen therefore had the
burden of proving—beyond mere "supposition"—some methodology for generalized
proof by which the class representative would necessarily prove the cases of all other
commercial fishing license holders who claim to have been damaged by the spill. Ernie
Haire Ford, 903 So. 2d at 958.
The fishermen's support for class certification amounted only to the
testimony of Curd and Nipper. Both men testified that they were commercial fishermen
who worked in the Tampa Bay waters for over thirty years. Both men testified that they
witnessed changes in certain marine life concomitant with the Mosaic spill. The circuit
court restricted both men's opinion testimony and ruled that they were not qualified to
offer any opinions about the spill's impact on the condition of the water, the spill's impact
on the marine and vegetation life, or whether the spill caused any decrease in the
Tampa Bay fishing yields. Taken as a whole, it is not possible to view Curd's and
Nippers' testimony as plausibly putting forth a reasonable methodology for proving
classwide claims. The circuit court therefore abused its discretion because there was
no competent, substantial evidence supporting its "proof-based inquiry" into and
ultimate determination of rule 1.220(b)(3)'s predominance requirement. Sosa, 73 So. 3d
at 112.
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Although the circuit court bifurcated the case into a liability and damages
phases in the vein of Engle, this bifurcation does not change our decision. First, it is not
necessarily clear that Engle prospectively authorized bifurcation as a means of meeting
rule 1.220(b)(3)'s requirements. See Engle, 945 So. 2d at 1267-71; see also Fla. R.
Civ. P. 1.220(d)(4)(A) ("When appropriate . . . a claim or defense may be brought or
maintained on behalf of a class concerning particular issues."). The Engle court cited
numerous federal cases which certified liability questions and which left damages
questions for individual resolution. Engle, 945 So. 2d at 1268-69. Engle also noted a
split of that federal authority on the issue. Id. at 1269 n.11. Ultimately, the Engle court
approved the certification of certain liability issues holding that rule 1.220(b)(3)'s
predominance test was satisfied on the facts presented. However, the Engle court also
underscored the idiosyncratic nature of that case noting that the procedural posture was
"unique and unlikely to be repeated," id. at 1270 n.12, and describing its holding as the
"pragmatic solution" to those unique circumstances. Id. at 1270.
Even assuming that Engle authorized the circuit court to use rule
1.220(d)(4)(A) to certify classwide liability issues, the fishermen did not present a
reasonable methodology for proving those issues classwide. Again, the court's order
certifying class defined the liability phase as containing all issues up to and including
determination of the geographic scope of potentially harmful effects of the spill. Yet the
court's order acknowledges that the "plaintiffs' yet-to-be-revealed evidence of the effect
of the spill" is a question to be resolved at the liability stage. Without making some
antecedent showing of the methodology by which the fishermen intended to prove
classwide claims, the fishermen failed to meet the burden imposed by rule 1.220(b)(3).
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Accordingly, we reverse the order on appeal and remand for further
proceedings consistent with this opinion.
Reversed and remanded.
KELLY and SALARIO, JJ., Concur.
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