Georgia-Pacific Consumer Products, LP v. Ratner

BRANCH, Judge,

dissenting.

I believe that the trial court erred when it certified this class consisting of Effingham County property owners allegedly harmed by appellant Georgia-Pacific’s facility’s release of hydrogen sulfide gas over a period of years. I therefore dissent.

As the majority notes, we review a trial court’s decision in certifying or refusing to certify a class for an abuse of discretion. Jones v. Douglas County, 262 Ga. 317, 323-324 (2) (418 SE2d 19) (1992).10 The facts relevant to this appeal are not in dispute. In 2006, the Mill began receiving complaints from Mallard Pointe landowners, including the plaintiffs, about noxious odors alleged to cause physical consequences including difficulty breathing, coughing or choking, headaches, and vomiting. Some homeowners also complained that the odors had made it more difficult for them to sell their houses.11 During this same period, a number of Mallard Pointe homeowners complained that the odors were penetrating into their houses. Residents also complained that exterior household fixtures, and especially air conditioning units, were suffering from unusual levels of corrosion and mechanical failure.

In response to these complaints, Georgia-Pacific took short-term steps to remedy the odors including the installation of an odor abatement system in July 2006 and the use of flares to burn off fumes from October 2007 through at least June 2011. By September 2010, Georgia-Pacific had drawn up plans, not completed as of March 2012, to close three of the pits thought to be the source of most of the odors. Georgia-Pacific also paid to replace or repair air conditioning units on at least 20 homes in the area, most of which were located in Mallard Pointe, and some of which required more than one replacement or repair.

Plaintiffs’ amended complaint featured a proposed class of Georgia citizens owning property within an area circumscribed by area roads, railroad rights-of-way, and one specified latitude and longitude. The 67 properties included in the proposed class consist of 34 residences *214and 33 other parcels of industrial, agricultural, timber or vacant land. In an affidavit submitted by plaintiffs in support of the geographical boundaries of the proposed class, real estate appraiser Henry Garrett averred that based on his examination of the area around the Mill, “the reported toxic fumes would constitute a factor impairing the value and marketability of property within [the] area” defining the class. When asked at his 2012 deposition what the “affected area” was, Garrett responded: “We’re in the process of trying to establish [the class area] But until I do my due diligence within that area, I don’t know how many of the houses have been affected or may be affected.”

Garrett also testified that he had collected no sales or market data to ascertain whether property values had been affected by the releases of hydrogen sulfide. When asked whether more investigation of each property was needed as to which areas within the class were “actually affected,” Garrett replied:

[W]e took a boundary — we looked at a boundary area to describe an area where the potential for problems could exist. Properties within that boundary area could or could not be adversely affected by the existence of the pollution,... whatever it is that’s polluting and causing these air conditioning units to have a problem. So, it would take further investigation on my part, or somebody’s part, to determine the individual damages to each one of the properties and the amounts of those damages, whether it’s severe, or whether it’s minor .... [E]ach individual property within that class is looked at on a case-by-case basis.

(Emphasis supplied.) Garrett also confirmed that the class could become larger or smaller “depend [ing] on looking at each property and determining . . . whether it’s been affected or not.” When asked whether he had followed any specific “appraisal methodology,” Garrett replied:

I think it’s a seat of the pants kind of thing. You have to be on the property, you have to look at the topography, you have to look at the boundaries, you have to look at the different areas, to determine what might or might not be affected by whatever it is that you’re dealing with in terms of contamination.

(Emphasis supplied.) When asked whether he had consulted any appraisal or scientific literature in his work thus far on the case, Garrett replied that he had not.

*215Other experts produced by plaintiffs testified that without chemical tests of each affected air conditioning unit, it would be unreasonable to conclude that any corrosion of those units was the result of a chemical reaction, and that it was not yet known whether the hydrogen sulfide actually released onto each property was sufficient to cause corrosion there. Although plaintiffs introduced no expert testimony concerning the health effects of the hydrogen sulfide releases, Georgia-Pacific’s medical expert averred that the symptoms alleged have many common causes such that each class member would be required to undergo a “unique” or “tailored” medical evaluation in order to determine the cause of each plaintiff’s condition.

In determining whether a Georgia class action should proceed, “the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of OCGA § 9-11-23 (a) have been met.” (Citations and punctuation omitted.) Rite Aid of Ga. v. Peacock, 315 Ga. App. 573, 574 (1) (726 SE2d 577) (2012). Under OCGA § 9-11-23 (a), and as the majority notes, a plaintiff may sue on behalf of a class “only if” all four of the following requirements are met:

(1) The class is so numerous that joinder of all members is impracticable; (2) There are questions of law or fact common to the class; (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) The representative parties will fairly and adequately protect the interests of the class.

(Emphasis supplied.) Under subsection (b) of the same statute, the plaintiff must also prove at least one of the following: that (1) “[t]he prosecution of separate actions by or against individual members of the class would create a risk” of “[inconsistent or varying adjudications with respect to individual members of the class”; (2) “[t]he party opposing the class has acted or refused to act on grounds generally applicable to the class,” thereby making injunctive or declaratory relief “appropriate” as to the entire class; or (3) “questions of law or fact common to the members of the class predominate over any questions affecting only individual members,” such that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” OCGA § 9-11-23 (b) (1) (A) and (B), (b) (2), and (b) (3).

Afailure to establish each of the requirements of OCGA § 9-11-23 (a) and at least one of the requirements of OCGA § 9-11-23 (b) is fatal to class certification. See Rite Aid, supra at 578 (1) (a), (b) (plaintiffs’ *216failure to prove commonality, typicality, and adequacy required reversal of class certification). In Rite Aid, for example, we noted with approval the United States Supreme Court’s explanation of the burden of proof facing a class representative on a motion for certification under Rule 23 of the Federal Rules of Civil Procedure, on which OCGA § 9-11-23 is modeled:

[S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites [to certification] have been satisfied. Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.

(Emphasis supplied and omitted.) Rite Aid, supra at 574-575 (1), quoting Wal-Mart Stores v. Dukes, _ U. S. _, _ (II) (A) (131 SCt 2541, 180 LE2d 374) (2011).

(a) Section 9-11-23 (a): Commonality and Typicality. As we noted in Rite Aid, “ ‘any competently crafted class complaint literally raises common questions.’ ” (Citation and punctuation omitted.) Id. at 575, quoting Dukes, supra at 2551 (II) (A).

What matters to class certification ... is not the raising of common “questions” — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.

(Citation and punctuation omitted; emphasis in original.) Dukes, supra at 2551 (II) (A). As the Supreme Court of Georgia has likewise stated, therefore, “a common question is not enough when the answer may vary with each class member and is determinative of whether the member is properly part of the class.” (Footnote and emphasis omitted.) Carnett’s, Inc. v. Hammond, 279 Ga. 125, 129 (4) (610 SE2d 529) (2005). Although a class may be certified when “common questions predominate,... even if some individual questions of law or fact exist,” Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 691 (1) (649 SE2d 862) (2007), a plaintiff seeking to represent a class must show “ ‘that the class members “have suffered the same injury,” [which] *217does not mean merely that they have all suffered a violation of the same provision of law.’ ” (Citation and emphasis omitted.) Rite Aid, supra at 575 (1) (a), quoting Dukes, supra at 2551 (II) (A). As the Dukes Court also noted, “the commonality and typicality requirements of Rule 23(a) tend to merge” in that

[b]oth serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.

Dukes, supra at 2551 (II) (A), n. 5.

The threshold inquiry in any commonality analysis is that of class definition — that is, “whether a precisely and appropriately defined class exists and whether the named [p]laintiffs are members of the proposed class.” (Citations omitted.) Kemblesville HHMO Center v. Landhope Realty Co., Case No. 08-2405, 2011 U. S. Dist. LEXIS 83324 at *14 (E.D. Pa., decided July 27, 2011). Class members must be “readily identifiable such that a court can determine who is in the class and bound by its ruling without engaging in numerous fact-intensive inquiries.” Jim Ball Pontiac-Buick-GMC v. DHL Express, Case No. 08-CV-761C, 2012 U. S. Dist. LEXIS 13546 at *2 (W.D. N.Y., decided Jan. 25, 2012). Factors to consider in evaluating the viability of a proposed class include whether there is “a particular group that was harmed during a particular time frame, in a particular location, in a particular way,” and whether class membership has been defined “in some objective manner.” Kemblesville, supra at *14. “Certification should be denied when determining membership in the class would essentially require a mini-hearing on the merits of each case.” Id.

Under this rubric, plaintiffs were required to make a factual showing that even allowing for some variation between the effects of numerous releases on individual properties and property owners, each member of the proposed class has suffered “ ‘the same injury.’ ” Rite Aid, supra at 575 (1) (a), quoting Dukes, supra at 2551. This plaintiffs have failed to do. First, and although plaintiffs, as well as the majority, would have us ignore any claims for personal injury on appeal, the complaint alleges that the “ongoing releases of toxic chemicals and fumes by [Georgia-Pacific] constitute continuing nuisances doing harm to [both] the property within the class area and the persons who own those properties,” with plaintiffs suffering various symptoms (as listed in their appellate brief) including difficulty breathing, headaches, and vomiting. As a result of these necessarily *218individualized, injuries, plaintiffs cannot show that Georgia-Pacific “committed the same unlawful acts in the same method against an entire class.” (Citation and punctuation omitted.) Liberty Lending Svcs. v. Canada, 293 Ga. App. 731, 738 (1) (b) (668 SE2d 3) (2008); see also Georgine v. Amchem Products, 83 F3d 610, 627 (III) (A) (3d Cir. 1996), aff’d, Amchem Products v. Windsor, 521 U. S. 591 (117 SCt 2231, 138 LE2d 689) (1997) (even when plaintiffs’ exposure to asbestos posed a common question, the trial court erred when it certified a class; “the commonality barrier is higher in a personal injury damages class action, like this one, that seeks to resolve all issues, including noncommon issues, of liability and damages”). Second, plaintiffs’ own accounts of the impact of the releases on the values of their homes show that the properties may have failed to sell because of economic conditions as much as from any nuisance suffered. According to their own experts, moreover, plaintiffs’ amended class definition was a “seat-of-the-pants” result reached without determining whether each included property had actually been affected by any or all of the Mill’s hydrogen sulfide releases over a period of some years, let alone whether each property suffered the same kind of measurable injury as a result.

In light of their failure to establish even the fundamental proposition that the Mill’s hydrogen sulfide releases actually affected each property included in the class, and because of the necessity of conducting numerous fact-intensive inquiries as to the scope of their injuries, plaintiffs’ “mere claim” that they have suffered a common injury “gives no cause to believe that all their claims can be productively litigated at once.” Dukes, supra at 2551 (II) (A). Specifically, plaintiffs have failed (1) to provide evidence that numerous hydrogen sulfide releases over a period of years affected all of the persons and properties included in the proposed class in a substantially similar way; (2) to show that the injuries they and/or their properties have suffered are “common” to or “typical” of most or all members of the class; or (3) to show that the class definition is the result of a rational determination of the actual effects of the hydrogen sulfide releases at issue. Thus the class appears to have been defined not by any “logical” determination of the actual effects of the Mill’s numerous and intermittent releases of hydrogen sulfide on persons and property over a period of years, but rather by means of “arbitrarily drawn lines on a map.” (Citations and punctuation omitted.) Brockman v. Barton Brands, Case No. 3:06CV-332-H, 2007 U. S. Dist. LEXIS 86732 at **5, 9 (II) (A) (W.D. Ky. 2007, decided November 20, 2007) (denying class certification where plaintiffs offered “no evidence whatsoever” that contaminants “spread in a uniform fashion in all directions” from defendants’ distillery). I would therefore conclude that the trial court *219abused its discretion when it certified the class. Rite Aid, supra at 576-578 (1) (reversing certification of a class when plaintiffs failed to show that they suffered any legally cognizable injury); Kemblesville, supra at **18, 22 (denying class certification where geographic definition of a class was “arbitrary and not reasonably related to evidence of record” concerning the contamination at issue, where plaintiffs had failed to show a “reasonable relationship between the relevant [groundwater contaminant] release and the proposed class area,” and where plaintiffs also failed to offer a “dispersal model or concrete expert opinion as to the extent or eventual movement” of the alleged plume). Compare Brenntag Mid South v. Smart, 308 Ga. App. 899, 904 (2) (a) (iii) (710 SE2d 569) (2011) (trial court did not err in certifying a class consisting of persons living in evacuation zone after a single accidental release of glacial acetic acid from a chemical storage tank).

(b) Section 9-11-23 (b): Predominance of Common Questions and Superiority of Class Action as a Remedy. Although plaintiffs’ failure to prove commonality and typicality should dispose of the issue whether the trial court erred when it certified the class, see Rite Aid at 578 (1) (b), I also note that plaintiffs have not met the requirements of OCGA § 9-11-23 (b) (3), under which a class may be certified if “questions of law or fact... predominate over any questions affecting only individual members” and if “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”

The Rule 23 (b) (3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. A plaintiff may satisfy this requirement by showing that issues subject to class-wide proof predominate over issues requiring proof that is unique to the individual class members. Therefore, class certification is not appropriate if resolution of individual questions plays a significant, integral part of the determination of liability. But as long as the common questions predominate, a class may be certified even if some individual questions of law or fact exist.

(Citations and punctuation omitted; emphasis supplied.) Brenntag, supra at 906 (2) (b) (i).

The United States Supreme Court has highlighted the “disparate questions undermining class cohesion” in cases involving numerous plaintiffs’ exposure to pollutants or contaminants over years or decades, noting that “[e]ven if [Federal] Rule 23 (a)’s commonality *220requirement may be satisfied” as to a particular class, “the predominance criterion [of Rule 23 (b) (3)] is far more demanding.” Amchem Products v. Windsor, supra at 623-624 (IV) (A). This Court has thus reversed a trial court’s certification of a class as to liability when individualized questions as to the cause, extent and nature of plaintiffs’ injuries predominate over common ones. Doctors Hosp. Surgery Center v. Webb, 307 Ga. App. 44, 47-48 (2) (704 SE2d 185) (2010) (reversing certification of class arising from a hospital’s failure to properly sterilize equipment in colonoscopies administered to 1,300 patients over a period of more than a year in the absence of proof “that the defendant’s negligence was both the cause in fact and the proximate cause of the injury”; plaintiffs’ injuries, including anxiety, loss of consortium, and emotional distress, were “inherently specific to the individuals affected”). Other courts have also concluded that a class action is not a superior method for adjudicating cases involving environmental contamination not involving a single exposure where “no evidence is offered establishing class-wide contamination.” Duffin v. Exelon Corp., 2007 U. S. Dist. LEXIS 19683 at *11 (II) (B), *24 (II) (D) (N.D. Ill., March 19, 2007) (refusing to certify a class allegedly injured by the release of six million gallons of tritium-contaminated water through a pipeline into a river over a period of five years when the class area was “defined in geographic terms unrelated to evidence of actual tritium contamination,” when the class was “plainly over-broad,” and when common questions did not predominate over “questions affecting individual members”).

As I have already noted, the personal injuries suffered by some class members range from difficulty breathing to coughing or choking, headaches, and vomiting — proving the causation of which will be “inherently specific to the individuals affected.” Doctors Hosp., supra at 48 (2). As to property damage, the undisputed testimony of plaintiffs’ own experts shows that (1) plaintiffs have not established whether most of the properties within the geographical boundaries of the class have actually been affected by multiple releases of hydrogen sulfide from the Mill over a period of years; (2) no sales or market data has shown that property values have been affected by the releases; and (3) it is not yet known whether the hydrogen sulfide present on any property was the proximate cause of damage to air conditioning units or other fixtures there. At the very least, this undisputed evidence shows that “substantial factual differences” are likely to emerge between class members whose properties were most affected and others such that “[significant trial time would be devoted to determining separate issues of liability,” including proximate causation, “regarding individual properties.” Duffin, supra at *24 (II) (D).

*221Decided July 16, 2013 Ellis, Painter, Ratterree & Adams, Tracy A. O’Connell, Hull Barrett, David E. Hudson, for appellant. Bell & Brigham, John C. Bell, Jr., Oliver Maner, Timothy D. Roberts, Benjamin M. Perkins, for appellee. Troutman Sanders, William M. Droze, amicus curiae.

For these reasons, I conclude that plaintiffs have failed to demonstrate, as they are required to do by OCGA § 9-11-23 (b) (3), that a class action is superior to traditional means of adjudicating their claims. Duffin, supra; Doctors Hosp., supra at 47-48 (2) (reversing grant of class certification as to liability where common questions as to the extent and nature of plaintiffs’ injuries did not predominate over individual ones).

I respectfully dissent. I am authorized to state that Presiding Judge Andrews and Judge Ray join in this dissent.

See also Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012) (an “abuse of discretion” standard of review is not identical to the “clearly erroneous” or “any evidence” standards; “where a determination by the trial court involves an exercise of discretion, the standard of review is ‘abuse of discretion,’ which is at least slightly less deferential than the ‘any evidence’ test”) (citations omitted).

One of the documents cited by plaintiffs on this point shows that in September 2007, one homeowner listed her house for sale but delisted it after telling her real estate broker “everything” about the odors. Other parts of the record show that in November 2009, one homeowner attributed her house’s failure to sell to “the economy”; in August 2010, another attributed the same outcome to “the economy, the odor and the polluted groundwater in the area.” (Emphasis supplied.)