In Re: 1994 Exxon

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT FILED
August 18, 2006
_____________________
Charles R. Fulbruge III
No. 05-30781 Clerk
____________________

STEERING COMMITTEE,

Plaintiff-Appellant,

v.

EXXON MOBIL CORPORATION,

Defendant-Appellee.

__________________

On Appeal from the United States District Court
For the Middle District of Louisiana
3:94-MD-3
__________________

Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiff-Appellants, members of a purported class alleging

claims against Defendant-Appellee Exxon Mobil Corporation arising

out of a fire in an Exxon Mobil facility, appeal the district

court’s order denying certification of a Rule 23(b)(3) plaintiff

class in this mass tort action. A panel of this court granted

Appellants' petition for permission to appeal and we have

jurisdiction to hear this interlocutory appeal under 28 U.S.C. §

1292(e) and Rule 23(f). Finding no abuse of discretion by the

district court, we affirm the denial of class certification.

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 I.

On August 8, 1994, a recently installed control valve in

Exxon Mobil’s Baton Rouge Chemical Plant failed, resulting in

sponge oil leaks. The oil ignited, and although the fire was

controlled quickly, it burned until its fuel source was

exhausted, sometime on the morning of August 11, 1994. During

the time the fire was burning, the wind carried the smoke plume

to the southwest and across the Mississippi River. Exxon Mobil

conducted air monitoring both inside and outside the facility,

and in the surrounding community during the time of the fire.

Hundreds of suits were soon filed against Exxon Mobil,

alleging various causes of action including personal injury,

personal discomfort and annoyance, emotional distress resulting

from knowledge of exposure to hazardous substances, fear of

future unauthorized exposures, and economic harm including damage

to business and property, among others.

After the suits were consolidated, Appellants proposed class

certification under Rule 23(b)(3) for all issues and with the

following class definition:

All persons or entities residing or located, or owning
property or operating businesses in East Baton Rouge
Parish or West Baton Rouge Parish at the time of the
incident at the Exxon Chemical Plan, Exxon Refinery, in
Baton Rouge, Louisiana, on August 8, 1994, and who
sustained legally cognizable damages, including but not
limited to all claims for exemplary or punitive damages

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 as provided for in LSA-C.C. art. 2314.3, property
damage, business loss, and all personal injury claims,
and who have not settled their claims in full, and who
have complied with and comply with all further orders
of the court in this class action.1
Appellants also proposed two class representatives.

Following a hearing but before the court ruled on class

certification, the court granted summary judgment to Exxon Mobil

on certain categories of claims. First, the court granted summary

judgment to Exxon Mobil on all claims for physical injuries and

non-intentional emotional distress brought by individual

plaintiffs who were located outside the geographic area that the

air modeling experts agreed was affected by the plume. Second,

the court granted summary judgment to Exxon Mobil on all claims

for intentional infliction of emotional distress.

Following the entry of its summary judgment, the court

denied Appellants’ motion for class certification, concluding

that Appellants failed to satisfy the typicality and adequacy

requirements of Rule 23(a), as well as the predominance and

superiority requirements of Rule 23(b)(3). The Appellants were

granted permission to appeal the denial of class certification

pursuant to Rule 23(f), and this appeal followed.

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Plaintiff-Appellants modified their proposed class definition at
least twice during the lower court proceedings—once in amending
their motion for class certification and again in a post-hearing
brief.

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 II.

A.

We review the denial of class certification for abuse of

discretion. See O’Sullivan v. Countrywide Home Loans, Inc., 319

F.3d 732, 738 (5th Cir. 2003). Because, however, a court by

definition abuses its discretion when it applies an incorrect

legal standard, we review such errors de novo. Id. Moreover,

although the district court has substantial discretion, the

“district court must conduct a rigorous analysis of the rule 23

prerequisites before certifying a class.” Castano v. American

Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996). Additionally, a

“party seeking certification bears the burden of proof.” Id.

Rule 23(a) provides four prerequisites to a class action:

(1) a class “so numerous that joinder of all members is

impracticable”; (2) “questions of law or fact common to the

class”; (3) named parties’ claims or defenses “typical ... of the

class”; and (4) representatives that “will fairly and adequately

protect the interests of the class.” FED. R. CIV. P. 23(a); Amchem

Products, Inc. v. Windsor, 521 U.S. 591, 606-07 & n. 8, 9, 11, 13

(1997). In addition to these prerequisites, a party seeking class

certification under Rule 23(b)(3) must also demonstrate “both (1)

that questions common to the class members predominate over

questions affecting only individual members, and (2) that class

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resolution is superior to alternative methods for adjudication of

the controversy.” Bell Atlantic Corp. v. AT&T Corp., 339 F.3d

294, 301 (5th Cir. 2003). Whether common issues predominate and

whether the class action is a superior method to resolve the

controversy requires an understanding of the relevant claims,

defenses, facts, and substantive law presented in the case.

Castano, 84 F.3d at 744.

The district court in this case assumed for purposes of its

order that the plaintiffs could satisfy the numerosity and

commonality questions, but concluded that plaintiffs failed to

satisfy the typicality, adequacy, predominance, or superiority

requirements. We agree that plaintiffs failed to demonstrate

either predominance or superiority, and because failure on those

two requirements dooms class certification under Rule 23(b)(3),

we decline to address the remaining requirements.

B.

The predominance inquiry requires that questions of law or

fact common to the members of the class “predominate over any

questions affecting only individual members.” Unger v. Amedisys

Inc. 401 F.3d 316, 320 (5th Cir. 2005) (quoting Berger v. Compaq

Computer Corp., 257 F.3d 475, 479-80 (5th Cir. 2001)). The cause

of action as a whole must satisfy Rule 23(b)(3)’s predominance

requirement. Castano, 84 F.3d at 745 n. 21. This requirement,

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although similar to the commonality requirement of Rule 23(a), is

“far more demanding” because it “tests whether proposed classes

are sufficiently cohesive to warrant adjudication by

representation.” Unger, 401 F.3d at 320 (quoting Amchem, 521 U.S.

at 623-24).

Appellants argue that the district court erred in concluding

that the proposed class definition failed to satisfy the

predominance requirement. Appellants argue that because the

alleged injuries all arise from the single incident at the Exxon

Mobil plant, the issues relating to Exxon Mobil’s liability

predominate over individual issues of causation and damages.

Appellee argues that the district court correctly concluded that

the individualized medical causation, injury, and damages issues

were the predominant issues in the case, and therefore that a

class action was an inappropriate vehicle for resolution.

The district court heard from experts who opined that the

primary issues left to be resolved would turn on location,

exposure, dose, susceptibility to illness, nature of symptoms,

type and cost of medical treatment, and subsequent impact of

illnesses on individuals. Moreover, in addition to the personal

injury claims, separate types of proof would be necessary for the

property damage, devaluation, and business loss claims. The

district court observed that each plaintiff’s claims will be

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highly individualized with respect to proximate causation,

including individual issues of exposure, susceptibility to

illness, and types of physical injuries. As a result, the

district court found that “individual issues surrounding

exposure, dose, health effects, and damages will dominate at the

trial.” The district court concluded that “one set of operative

facts would not establish liability and that the end result would

be a series of individual mini-trials which the predominance

requirement is intended to prevent.”

As Appellants argue, the necessity of calculating damages on

an individual basis will not necessarily preclude class

certification. See Bell, 339 F.3d at 306. However, where

individual damages cannot be determined by reference to a

mathematical or formulaic calculation, the damages issue may

predominate over any common issues shared by the class. Id. at

308 (holding that “class certification is not appropriate”

because plaintiffs “failed to demonstrate that the calculation of

individualized actual economic damages, if any, suffered by the

class members can be performed in accordance with the

predominance requirement”); O’Sullivan, 319 F.3d at 745 (holding

that district court abused its discretion in certifying class

“[i]n light of the individual calculation of damages that is

required”); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 419

(5th Cir. 1998) (holding that certification under Rule 23(b)(3)

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was not appropriate because “plaintiffs’ claims for compensatory

and punitive damages must therefore focus almost entirely on

facts and issues specific to individuals rather than the class as

a whole”).

It is clear from the record that the damages claims in this

case are not subject to any sort of formulaic calculation.

Instead, each individual plaintiff suffered different alleged

periods and magnitudes of exposure and suffered different alleged

symptoms as a result. Some plaintiffs allege both personal and

property injuries, while others allege only one or the other.

Moreover, many plaintiffs allege as part of their claim for

compensatory damages emotional and other intangible injuries.

“The very nature of these damages, compensating plaintiffs for

emotional and other intangible injuries, necessarily implicates

the subjective differences of each plaintiff’s circumstances;

they are an individual, not class-wide, remedy. The amount of

compensatory damages to which any individual class member might

be entitled cannot be calculated by objective standards.”

Allison, 151 F.3d at 417 (footnote omitted).

Appellants rely principally on two cases in which mass tort

classes were certified, Sala v. National Railroad Passenger

Corp., 120 F.R.D. 494 (E.D. Pa. 1998) (train derailment), and

Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir.

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1988) (water contamination). However, Appellants do no more than

recite the disposition in each of those cases; little effort is

made to relate the results in those cases to the facts of the

case now before this court. Indeed, Appellants’ citation of Sala

and Sterling does little more than prove that it is theoretically

possible to satisfy the predominance and superiority requirements

of Rule 23(b)(3) in a mass tort or mass accident class action, a

proposition this court has already accepted. See, e.g., Watson v.

Shell Oil Co., 979 F.2d 1014, 1022-23 (5th Cir. 1992) (affirming

class certification of claims arising from refinery explosion).

Importantly, the court in Sala determined that the claims in

that case involved injuries sustained from a single cause: the

collision and derailment of the train on which they were riding.

Thus, causation could be adjudicated on a class-wide basis. In

this case, although the alleged cause of the injuries is also a

single accident—a refinery fire—the causal mechanism for

plaintiff’s injuries—alleged exposure or fear of exposure to

toxic substances—is not so straightforward. While it is certainly

true that the cause of the fire itself is an issue common to the

class, each individual plaintiff must meet his or her own burden

of medical causation, which in turn will depend on any number of

the factors enumerated by the experts who testified at the class

certification hearing.

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 Appellants argue, and Appellee appears to agree, that the

issue of liability, i.e., Appellee’s negligence or strict

liability for improperly installing the valve and causing the

fire, can be determined on a class-wide basis. Appellants’

argument, however, does no more than prove that some common

issues exist across the class. The predominance inquiry, however,

is more rigorous than the commonality requirement. Unger, 401

F.3d at 320. Appellee argues that the cause of the fire and

related liability issues are relatively straightforward, and

Appellants do little to dispute that claim. Based on the evidence

presented to the district court regarding the complexity of the

medical causation and damages issues, and with little evidence

that the liability issues are similarly complex, it was not an

abuse of its discretion for the district court to conclude that

Appellants had failed to demonstrate that the class issue of

Appellee’s negligence or strict liability predominates over the

vastly more complex individual issues of medical causation and

damages.

Notably, moreover, the class certified in Sterling was

bifurcated, with class treatment limited to certain class-wide

liability issues. See Sterling, 855 F.2d at 1197 (“However,

individual members of the class still will be required to submit

evidence concerning their particularized damage claims in

subsequent proceedings.”). Similarly, the court in Sala

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acknowledged that individualized damages issues “will have to be

determined on an individual basis.” Sala, 120 F.R.D. at 499. This

court has likewise approved mass tort or mass accident class

actions when the district court was able to rely on a manageable

trial plan—including bifurcation and/or subclasses—proposed by

counsel. See, e.g., Watson, 979 F.2d at 1017-18 & n. 9, 1024.

Although Appellants’ counsel during oral argument to this

court briefly suggested subclasses or bifurcation as a remedy for

the obstacles preventing a finding of predominance in this case,

the record does not reflect that counsel made such a proposal to

the district court. Certainly, when the parties moving for class

certification have full opportunity to present to the district

court proposals for their preferred form of class treatment, the

district court is under no obligation to sua sponte consider

other variations not proposed by any party. See United States

Parole Commission v. Geraghty, 445 U.S. 388, 408 (1980)(“[I]t is

not the District Court that is to bear the burden of constructing

subclasses. That burden is upon the [party proposing

certification] and it is he who is required to submit proposals

to the court. The court has no sua sponte obligation so to

act.”). We need not now consider whether bifurcation or

subclasses would remedy Appellants’ difficulties in this case,

because Appellants’ counsel never proposed either. We agree with

the district court that Appellants have not met their burden of

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demonstrating that common issues predominate over the significant

individual issues in the case, including medical causation,

injury, and damages.

C.

Appellants also argue that the district court erred in

concluding that the proposed class action did not provide a

superior vehicle for resolving the suits. The district court

concluded that because of the predominance of individual

causation and damage issues, it would not be efficient to certify

a class. The district court also noted that the case has already

been streamlined using other case management tools, including

narrowing the claims and potential plaintiffs through summary

judgment, and facilitating the disposition of the remaining

plaintiffs’ claims through issuance of a Lone Pine order.2

Because all Rule 23 class-action requirements must be

satisfied, and we hold the predominance factor is not, we need

not address the superiority factor. However, we address this
2
Lone Pine orders, which derive their name from Lore v. Lone Pine
Corp., No. L-33606-85, 1986 WL 637507, (N.J. Sup. Ct. Nov. 18,
1986), are pre-discovery orders designed to handle the complex
issues and potential burdens on defendants and the court in mass
tort litigation by requiring plaintiffs to produce some evidence to
support a credible claim. See Acuna v. Brown & Root Inc., 200 F.3d
335, 340 (5th Cir. 2000) (discussing use of Lone Pine orders in
mass tort litigation). The Lone Pine order issued in this case
requires that individual plaintiffs each produce, depending on the
type of injury alleged, either an affidavit from a qualified
treating or other physician, or an affidavit from a qualified real
estate appraiser or other real estate expert.

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requirement to demonstrate the interrelationship between

predominance and superiority. The Advisory Committee’s notes to

Rule 23(b)(3) comment on the impact of the predominance inquiry

on superiority in mass tort cases:

A “mass accident” resulting in injuries to numerous
persons is ordinarily not appropriate for a class
action because of the likelihood that significant
questions, not only of damages but of liability and
defenses to liability, would be present, affecting the
individuals in different ways. In these circumstances
an action conducted nominally as a class action would
degenerate in practice into multiple lawsuits
separately tried.
FED. R. CIV. P. 23(b)(3) advisory committee’s note (citation

omitted); see also Castano, 84 F.3d at 745 n.19 (discussing

advisory committee note and citing Georgine v. Amchem Products,

Inc., 83 F.3d 610, 627-28 (3d Cir. 1996); In re American Medical

Sys., 75 F.3d 1069, 1084-85 (6th Cir. 1996)). Appellants have not

demonstrated that this mass tort has any exceptional features

that warrant departing from the general rule and treating it as a

class action.

As this court has noted, the predominance of individual

issues relating to the plaintiffs’ claims for compensatory and

punitive damages detracts from the superiority of the class

action device in resolving these claims. See Allison, 151 F.3d at

419; Castano, 84 F.3d at 745. Particularly in this case, where

the district court has been careful to manage the litigation

efficiently through the judicious use of consolidated summary

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judgments and other tools such as Lone Pine orders, we will not

second-guess the district court’s discretionary judgment that a

class action would not provide a superior method of adjudication.

V.

Because we agree that Appellants failed to demonstrate that

their proposed class satisfied either the predominance or

superiority requirements of Rule 23(b)(3), we affirm the district

court’s denial of class certification.

AFFIRMED.

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