Prantil v. Arkema

Court: Court of Appeals for the Fifth Circuit
Date filed: 2021-01-22
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Case: 19-20723     Document: 00515716552          Page: 1    Date Filed: 01/22/2021




           United States Court of Appeals
                for the Fifth Circuit
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                       January 22, 2021
                                   No. 19-20723                         Lyle W. Cayce
                                                                             Clerk

   Corey Prantil; Ronald Whatley; Betty Whatley; Bret
   Simmons; Phyllis Simmons; Greg Nason; Larry
   Anderson; Tanya Anderson; Keith Lyons; Beverly
   Flannel; Roland Flannel,

                                                            Plaintiffs—Appellees,

                                       versus

   Arkema Incorporated,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:17-CV-2960


   Before Higginbotham, Elrod, and Haynes, Circuit Judges.
   Patrick E. Higginbotham, Circuit Judge:
          As Hurricane Harvey deluged southeastern Texas with record floods,
   volatile chemicals at a facility in Crosby, Texas, combusted, releasing toxic
   ash and smoke into the surrounding communities and causing the evacuation
   of nearby residents. Seeking redress for the physical and financial effects of
   the incident, certain Crosby-area property owners brought a class action
   against the facility’s owner—Arkema, Inc.—on behalf of themselves and
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                                     No. 19-20723


   their neighbors. Arkema appeals from an order granting class certification.
   We vacate the district court’s certification order and remand the case for
   further proceedings under Rule 23.
                                          I.
          Arkema’s facility in Crosby, Texas, produces Luperox, a liquid
   organic peroxide used to make plastics and composites. Luperox is a volatile
   compound that decomposes and combusts unless refrigerated. The Crosby
   facility sits in a flood plain near the Gulf Coast, leaving it vulnerable to the
   approach of Hurricane Harvey. By August 24, 2017, it was clear that Harvey
   would make landfall and likely stall over Texas. Arkema continued
   production at Crosby until August 25, 2017, before implementing the
   facility’s hurricane preparedness plan. Several days of heavy rain and rising
   flood waters at Crosby forced the facility’s “ride-out” team to move nearly
   350,000 pounds of combustible materials to refrigerated trailers set on higher
   ground. But the floodwaters’ continued rise eventually threatened the
   trailers’ cooling systems as well, and on August 29, 2017, Arkema alerted
   local authorities that a combustion event was imminent. The authorities
   responded by establishing a 1.5-mile evacuation zone around the facility.
   Between August 31 and September 4, nine refrigerated trailers burned in
   three separate ignitions, the last of which was a controlled burn by emergency
   personnel. Further, two of the facility’s wastewater tanks overflowed,
   dispersing contaminated water and bringing the count to five total emissions
   events. Shortly afterward, local residents saw clouds of white smoke and
   accumulating ash on their properties, and persons inside and outside of the
   established 1.5-mile evacuation zone reported physical symptoms including
   bodily rashes, headaches, eye irritation, blisters, and respiratory difficulty.
          Plaintiffs are local property owners who seek to represent a class of all
   property owners within a seven-mile radius of the Crosby facility to pursue




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   injunctive relief and damages against Arkema. They claim to have suffered
   adverse health effects, property damage, or both, because of Arkema’s
   emissions. They bring claims against Arkema under the Resource
   Conservation             and   Recovery    Act     (RCRA),        the     Comprehensive
   Environmental Response, Compensation, and Liability Act (CERCLA), and
   the common-law doctrines of negligence, trespass, and public nuisance.
           After extended oral argument on Plaintiffs’ motion for class
   certification and Akrema’s motions to exclude certain experts, the district
   court granted Arkema’s motion to exclude Plaintiffs’ damages expert, but it
   credited three of Plaintiffs’ experts and granted Plaintiffs’ motion for class
   certification. 1 In granting certification, the district court held that the
   proposed class met the elements of Federal Rule of Civil Procedure 23(a) and
   that it should be certified as a damages class under Rule 23(b)(3) because
   common issues would predominate in the resolution of the class claims and
   that a class action was the superior method for adjudicating the dispute. 2 The
   district court also certified an injunctive-relief class under Rule 23(b)(2)
   because the “actions alleged apply broadly to the entire class, and the
   injunctive relief sought will commonly address this injury.” 3 We granted
   leave to appeal on October 17, 2019.
           Arkema urges four arguments on appeal: (1) that the district court did
   not conduct the rigorous analysis required by Fifth Circuit and Supreme
   Court precedent, to ensure that the individual claims can be fairly and
   effectively adjudicated in a class action; (2) that the district court erred when



           1
              Prantil v. Arkema, No. 17-2960 at 39 (S.D. Tex. June 3, 2019) (order granting class
   certification).
           2
               Id. at 19-27, 29-39.
           3
               Id. at 28.




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   it determined that the proposed class met Rule 23(b)(3)’s predominance
   requirement and Rule 23(b)(2)’s cohesiveness requirement; (3) that the
   benefits realized by classwide adjudication of common questions would be
   lost in the necessary sifting through individualized evidence on the causation
   and injury elements in addition to the intractably individualized nature of the
   damages and injunction inquiries; and (4) that the district court erred by
   relying on certain expert opinions in its certification decision without first
   ensuring those opinions would be admissible at trial under the Daubert
   standard.
                                                  II.
            We review the district court’s decision to certify a class for abuse of
   discretion. 4 Although a district court has broad discretion to certify a class, it
   must “rigorously analyze Rule 23’s prerequisites” before doing so. 5 Such
   analysis requires “the district court to go beyond the pleadings to determine
   whether the requirements of Rule 23 have been met: ‘a court must
   understand the claims, defenses, relevant facts, and applicable substantive
   law in order to make a meaningful determination of the certification
   issues.’” 6 Additionally, the district court must consider “how a trial on the
   merits would be conducted” if the class were certified. 7
            We begin with the standard applicable to expert evidence at the class-
   certification stage. We then address the predominance of common questions



            4
                Crutchfield v. Sewerage & Water Bd. of New Orleans, 829 F.3d 370, 375 (5th Cir.
   2016).
            5
                Spence v. Glock, G.m.b.H., 227 F.3d 308, 310 (5th Cir. 2000).
            6
           Cole v. Gen. Motors Corp., 484 F.3d 717, 724 (5th Cir.2007) (quoting Castano v.
   Am. Tobacco Co., 84 F.3d 734, 745 (5th Cir. 1996)).
            7
                Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).




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   in the Rule 23(b)(3) damages class and the cohesiveness of the Rule 23(b)(2)
   injunctive-relief class.
                  A. Daubert’s Applicability to Class Certification
           Since its early days, Rule 23 with its b(2) and b(3) classes has played
   an increasingly important role in addressing the challenges of aggregating
   large numbers of persons seeking recompense for a single event or for injuries
   suffered from a common set of facts—product failures, myriad disasters at
   the hand of man and nature. With all its difficulties in application, the class
   device has proven to be a powerful workhorse to the benefit of plaintiffs and
   defendants so as now to be essential.
           Yet, certification changes the risks of litigation often in dramatic
   fashion. 8 Thus, under Rule 23(f), we have the discretion to hear interlocutory
   appeals of class certification orders. 9 This rule was a response to the
   determinative character of the certification decision and a perceived need for
   developing a jurisprudence of federal class actions across substantive lines in
   conformity with the Enabling Act. 10 The Supreme Court in turn developed a
   mootness doctrine that treated certification of a class as the determinant—
   loss of the class representative did not moot a certified class. 11 In short, these
   responses to the consequential character of class certification frames the



           8
             See Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834 (7th Cir. 1999) (“[A]
   denial of class status can doom the plaintiff,” while “a grant of class status can put
   considerable pressure on the defendant to settle.”).
           9
                Fed. R. Civ. P. 23(f).
           10
                Advisory Committee’s 1998 Note on subd. (f) of Fed. Rule Civ. Proc. 23.
           11
                See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75–76 (2013) (explaining
   that under Sosna v. Iowa, 419 U.S. 393 (1975) and United States Parole Comm’n v.
   Geraghty, 445 U.S. 388 (1980), “a putative class acquires an independent legal status once
   it is certified under Rule 23”).




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   question of the quality of evidence its rests upon. And, we ask, when the
   cementing of relationships among proffered class members of liability or
   damages or both turns on scientific evidence should we insist that the metric
   of admissibility be the same for certification and trial. We answer that
   question in the affirmative; the Daubert hurdle must be cleared when
   scientific evidence is relevant to the decision to certify.
           In so holding, we join three other federal courts of appeal. 12 The Third
   Circuit’s reasoning on this issue in In re Blood Reagents Antitrust Litigation, is
   particularly instructive, drawing as it does on recent Supreme Court
   precedent. 13 The Third Circuit saw the need to apply Daubert at the
   certification stage as a natural extension of the Supreme Court’s admonition
   in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011), and Comcast Corp.
   v. Behrend, 569 U.S. 27, 35 (2013), to conduct a “rigorous analysis” of the
   proposed class’s conformity with Rule 23. 14 In Dukes, the Supreme Court
   expressed “doubt” that “Daubert did not apply to expert testimony at the
   certification stage of class-action proceedings.” 15 And in Comcast, which
   concerned use of an expert’s damages model to certify an antitrust class
   action, the Supreme Court reaffirmed that it is incumbent on plaintiffs to
   submit “evidentiary proof” of their compliance with Rule 23. 16 As the Third
   Circuit observed, “[e]xpert testimony that is insufficiently reliable to satisfy
   the Daubert standard cannot ‘prove’ that the Rule 23(a) prerequisites have


           12
              In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015); Sher v.
   Raytheon Co., 419 F. App’x 887, 890–91 (11th Cir. 2011); Am. Honda Motor Co. v. Allen, 600
   F.3d 813, 816 (7th Cir. 2010).
           13
                783 F.3d 183 (3d Cir. 2015).
           14
                Id. at 187.
           15
                564 U.S. at 354.
           16
                569 U.S. at 33–34.




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   been met ‘in fact,’ nor can it establish ‘through evidentiary proof’ that Rule
   23(b) is satisfied.” 17 This is consistent with our prior holding that the class
   “certification inquiry . . . must be made based on adequate admissible
   evidence to justify class certification.” 18 Thus, if an expert’s opinion would
   not be admissible at trial, it should not pave the way for certifying a proposed
   class.
            Plaintiffs do not take issue with this reasoning; they do not contend
   that case law or practical considerations militate against using Daubert for
   class certification. Instead, they contend that Arkema has no grounds for
   complaint here because the district court applied a full-bore Daubert analysis
   when it assessed Plaintiffs’ experts. Our able district judge here was sensitive
   to the concerns presented by expert evidence. He heard arguments on each
   of Arkema’s motions, and granted one, excluding Plaintiffs’ damages expert
   “because he has not actually built or tested any regression analyses that he
   suggests could be appropriate for determining damages on a class-wide
   basis.” 19 The district court did not disregard its gate-keeping role, but its
   analysis of the expert reports reflect hesitation to apply Daubert’s reliability
   standard with full force.
            The district court began its discussion of the expert reports by
   observing that “[w]hether a full Daubert analysis at the class certification
   stage is required is unclear.” 20 When discussing Plaintiffs’ evidence of
   chemical contamination, the district court observed that “[w]hile it certainly
   would have been better for Dr. Kaltofen additionally to include the


            17
                 In re Blood Reagents, 783 F.3d at 187.
            18
                 Unger v. Amedisys Inc., 401 F.3d 316, 319 (5th Cir. 2005).
            19
                 Prantil, No. 17-2960 at 15.
            20
                 Id. at 6.




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   background levels, it was not necessary under Daubert at the class
   certification stage,” 21 implying that Daubert is less applicable to evidence
   used for certification. In its certification order, the district court was not as
   searching in its assessment of the expert reports’ reliability as it would have
   been outside the certification setting. We do not suggest that the remaining
   reports should be excluded; some of Arkema’s objections may only affect the
   weight of the reports without undermining their fundamental reliability. In
   sum, an assessment of the reliability of Plaintiffs’ scientific evidence for
   certification cannot be deferred.
                  B. The Predominance of Questions Common to the Damages
                     Class
           The district court determined that the proposed damages class was
   suitable for certification under Rule 23(b)(3), which provides that a class
   action can be maintained if Rule 23(a) is satisfied, if “questions of law or fact
   common to class members predominate over any questions affecting only
   individual members, and [if] a class action is superior to other available
   methods for fairly and efficiently adjudicating the controversy.” 22 Arkema
   does not dispute that the proposed class meets Rule 23(a)’s threshold
   requirements or that a class action is the superior litigation vehicle. 23 This
   leaves the issue of predominance.
            The predominance requirement “tests whether proposed classes are
   sufficiently cohesive to warrant adjudication by representation.” 24 It “calls


           21
                Id. at 12.
           22
                Fed. R. Civ. P. 23(b)(3).
           23
            Prantil, No. 17-2960 at 18-27 (finding that the class satisfies the requirements of
   numerosity, commonality, typicality, adequacy, and ascertainability).
           24
             Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d 629, 636 (5th Cir. 2016) (en banc)
   (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)).




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   upon courts to give careful scrutiny to the relation between common and
   individual questions in a case.” 25 Predominance is a “far more demanding”
   hurdle than Rule 23(a)’s commonality requirement. 26
           Courts should consider predominance on a claim-by-claim basis, 27 and
   the district court did so here: for negligence, it found duty and breach to be
   common issues; 28 for trespass, the question of unlawful entry was common
   to the class;29 for public nuisance, the question of unreasonable interference
   was common. 30 Similarly, the district court concluded that all three elements
   of Plaintiffs’ RCRA claim presented common questions. 31 As for CERCLA,



           25
             Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). “An individual
   question is one where ‘members of a proposed class will need to present evidence that
   varies from member to member,’ while a common question is one where ‘the same
   evidence will suffice for each member to make a prima facie showing [or] the issue is
   susceptible to generalized, class-wide proof.’” Id. (alteration in original) (quoting
   2 William B. Rubenstein, Newberg on Class Actions § 4:50 (5th ed.
   2012)).
           26
                Amchem Prods., Inc., 521 U.S. at 623–24.
           27
                Castano, 84 F.3d at 744.
           28
                Prantil, No. 17-2960 at 31.
           29
             Id. at 31-32. For a claim of trespass to real property, the plaintiff must show
   ownership or a right to possess property; physical, intentional, and voluntary entrance by
   the defendant; and injury. Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. Ct. App.—Fort
   Worth 2006, pet. denied).
           30
             Prantil, No. 17-2960 at 32. The elements of a public nuisance claim are an
   “unreasonable interference with a right common to the general public” and a “special
   injury” that is “distinct from the injury to the public at large.” Peiqing Cong v.
   ConocoPhillips Co., 250 F. Supp. 3d 229, 233 (S.D. Tex. 2016).
           31
              Prantil, No. 17-2960 at 33. To bring an RCRA claim, the plaintiff must show “(1)
   that the defendant is a person, including, but not limited to, one who was or is a generator
   or transporter of solid or hazardous waste or one who was or is an owner or operator of a
   solid or hazardous waste treatment, storage, or disposal facility; (2) that the defendant has
   contributed to or is contributing to the handling, storage, treatment, transportation, or
   disposal of solid or hazardous waste; and (3) that the solid or hazardous waste may present




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   the district court found that three issues—Arkema’s status as a qualifying
   responsible person, the Crosby site’s status as a qualifying facility, and the
   occurrence of a hazardous release—were common. 32
            The district court then addressed whether Plaintiffs’ alleged damages,
   the diminution in their property values, would entail individual inquiries
   outweighing the common inquiries relating to liability. Plaintiffs proposed to
   calculate classwide damages through mass property appraisals, but the
   district court rejected the report of Plaintiffs’ damages expert because he
   failed to offer a reliable means of making these calculations. Neither the court
   nor Plaintiffs identified another means by which Plaintiffs could calculate
   damages on a classwide basis. Nonetheless, the district court found that
   common legal and factual questions still predominated because “‘virtually
   every issue prior to damages is a common issue,’” and Plaintiffs proposed to
   bifurcate the proceedings so that damages could be addressed separately, if
   at all. 33
            The district court identified elements of each claim that would present
   common questions, but its predominance inquiry then paused. With that
   pause, the district court’s approach resembles that taken by the district court




   an imminent and substantial endangerment to health or the environment.” Cox v. City of
   Dallas, 256 F.3d 281, 292 (5th Cir. 2001).
            32
              Prantil, No. 17-2960 at 33-34. A CERCLA plaintiff must show “(1) that the site
   in question is a ‘facility’ as defined in [42 U.S.C.] § 9601(9); (2) that the defendant is a
   responsible person under [42 U.S.C.] § 9607(a); (3) that a release or a threatened release
   of a hazardous substance has occurred; and (4) that the release or threatened release has
   caused the plaintiff to incur response costs.” Vine St. LLC v. Borg Warner Corp., 776 F.3d
   312, 315 (5th Cir. 2015).
            33
             Prantil, No. 17-2960 at 37 (quoting Bertulli v. Ind. Ass’n of Continental Pilots, 242
   F.3d 290, 298 (5th Cir. 2001)).




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   in Madison v. Chalmette. 34 In Madison, the district court certified a class of
   individuals who sought damages for exposure to a refinery’s emission of coke
   dust while attending a reenactment of the Battle of New Orleans. The district
   court concluded that class certification was appropriate because “there is one
   set of operative facts that [will] determine liability[:] Plaintiffs were either on
   the battlefield and exposed to the coke dust or they were not.” 35 We vacated
   the order because, despite the appealing simplicity of its formulation, “[t]he
   district court did not meaningfully consider how Plaintiffs’ claims would be
   tried.” 36 The inadequacy of the district court’s predominance inquiry was
   due, in part, to its failure to account for issues implicated by the asserted
   claims and defenses, issues turning on potentially nuanced determinations of
   plaintiffs’ “location, exposure, dose, susceptibility to illness, nature of
   symptoms, type and cost of medical treatment, and subsequent impact of
   illnesses on individuals.” 37 Although we did “not suggest that class
   treatment [was] necessarily inappropriate,” we vacated the certification
   order and remanded the case because the lack of “‘analysis or discussion
   regarding how [the district court] would administer the trial’” was an abuse
   of discretion. 38
           Here, as in Madison, the district court’s certification order did not
   discuss the considerations affecting the administration of trial, and it
   concluded that common questions would predominate without adequately
   addressing Arkema’s arguments that causation, injury, and damages would


           34
                637 F.3d 551 (5th Cir. 2011).
           35
                Id. at 556.
           36
                Id.
           37
                Id. at 557.
           38
              Id. at 556–57 (quoting Robinson v. Tex. Auto. Dealers Ass’n, 387 F.3d 416, 425–26
   (5th Cir. 2004)).




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   be highly individualized. The district court’s discussion of trial
   administration was limited to observing that it was amenable to Plaintiffs’
   proposal to bifurcate the trial of liability and damages. But it did not discuss
   the manner in which it would conduct the liability phase or how it would
   implement Plaintiffs’ proposed “bellwether trials” at the damages phase.
   Although the district court acknowledged that Plaintiffs’ mass appraisal
   approach to property damages was untenable after their expert was
   disqualified, it did not discuss how this difficulty might affect an eventual
   damages phase in the proceedings. The district court recognized that
   individualized damages do not make the case per se unsuitable for class
   treatment, 39 and then concluded that any issues could be addressed as they
   arose. In so doing, the court drifted to the “figure-it-out-as-we-go-along”
   approach, one to be avoided. 40
           When considering the propriety of class certification, the district
   court must “respond to the defendants’ legitimate protests of individualized
   issues that could preclude class treatment.” 41 This is part of the district
   court’s obligation to “understand the claims [and] defenses” at play. 42 A




           39
             See, e.g., In re Deepwater Horizon, 739 F.3d 790, 815–16 (5th Cir. 2014) (“[I]t is
   indeed possible to satisfy the predominance ... requirements of Rule 23(b)(3) in a mass tort
   or mass accident class action despite the particular need in such cases for individualized
   damages calculations.” (internal quotations omitted)).
           40
                Madison, 637 F.3d at 557.
           41
              Chavez v. Plan Ben. Servs., Inc., 957 F.3d 542, 546 (5th Cir. 2020) (citing M.D. ex
   rel. Stukenberg v. Perry, 675 F.3d 832, 842-43 (5th Cir. 2012) (noting that “[t]he district
   court clearly rejected” the defendant’s individualization argument but had not
   “sufficiently analyzed” it)).
           42
                Castano, 84 F.3d at 745.




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   certification order ought to reflect the district court’s consideration of a
   defendant’s weightiest arguments against certification. 43
           We find that the certification order is wanting in its answer to
   Arekma’s arguments that a trial of class claims would devolve into
   individualized inquiries on causation, injury, and damages. For instance, the
   district court rejected Arkema’s contention that causation would become too
   individualized by reasoning that because “Plaintiffs focus only on chemicals
   with a strong link to the facility explosion, there are fewer hyper-localized
   alternative sources that would turn proof of causation into a series of mini-
   trials. . . . [and] alternative causes would likely apply to large chunks or all of
   the class area.” 44 The basis for this conclusion that few alternative sources
   need be considered is unclear. Other parts of the order suggest that the
   district court may have relied on Plaintiffs’ expert, Dr. Kaltofen, to conclude
   that alternative sources for the chemicals in question would not be an issue.
   But the order also states that Dr. Kaltofen addressed only “some of these
   alternative sources and ruled them out in his rebuttal report.” 45 The
   difficulty is that we are uncertain whether alternative sources will be a factor
   at trial and whether these alternative sources can be dealt with in groups, as
   the district court suggested.
           The district court also held that injury resulting from Arkema’s
   alleged negligence, trespass, etc. could be proven on a classwide basis because
   “individuals’ exposure to contaminants results not just from contaminants


           43
               See, e.g., Chavez, 957 F.3d at 549 (reversing a class certification where the district
   court responds to “warring factual contentions” concerning putatively common issues,
   with a “thin survey” and “unsupported assurance” as explanations for why predominance
   is satisfied).
           44
                Prantil, No. 17-2960 at 31.
           45
                Id. at 14 (emphasis added).




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   on their properties, but from community-wide contaminants that individuals
   are exposed to as they go about their daily lives in the area.” 46 This reasoning
   has a welcome, commonsense appeal, but “Rule 23 requires the court to
   ‘find,’ not [] assume, the facts favoring class certification.” 47 The issue is
   whether the record contains scientific evidence supporting the conclusion
   that the movements of class members could result in exposure sufficient to
   cause cognizable harm. 48 An assumption about the movement of persons
   throughout the class area cannot relieve Plaintiffs of their burden to
   “‘affirmatively demonstrate [their] compliance with [] Rule [23].’” 49 And by
   itself, the assumption does not allay the concern that proof of causation and
   harm could vary greatly from one class member to another based on the
   location of their property and the extent and frequency of their movements
   within the class area.
           Much of the district court’s predominance analysis proceeded from
   its view that “all injuries resulted from [a] single course of conduct,” and
   thus “the focus will be on Defendant’s actions.” 50 Of course, a case may be
   relatively more suitable for class treatment where only one defendant and one
   course of conduct are at issue. 51 But what is needed here is discussion of how
   proof of Arkema’s conduct will affect trial. 52 Absent such analysis, we are



           46
                Id. at 26-27.
           47
                Unger, 401 F.3d at 321.
           48
             “[C]ourts must certify class actions based on proof, not presumptions.” Flecha
   v. Medicredit, Inc., 946 F.3d 762, 768 (5th Cir. 2020).
           49
                Id. at 766–67 (quoting Dukes, 564 U.S. at 350).
           50
                Prantil, No. 17-2960 at 32.
           51
                See, e.g., Crutchfield, 829 F.3d at 378 (listing cases).
           52
              See Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 326 (5th Cir. 2008) (“The
   district court did not explain how the common course of conduct it described would affect




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   unable to judge whether the common issues relating to Arkema’s conduct in
   the leadup to Hurricane Harvey are relatively more complex such that they
   can be expected to predominate over individualized issues. 53 Future
   certification proceedings would here benefit from detailing the evidence the
   parties may use to prove or defend against liability and its commonality to all
   class members.
           We do not exhaustively catalogue the matters deserving consideration
   under Rule 23(b)(3) on remand. And we do not suggest that Arkema is
   entitled to prevail on its counterarguments to certification. We hold only that
   the relative balance of concededly common claim elements to contested
   elements of causation and injury warrants closer attention.
                 C. The Cohesiveness of the Injunctive-Relief Class
           Plaintiffs seek two separate forms of injunctive relief from Arkema:
   medical monitoring and property remediation. Rule 23(b)(2) provides that a
   class action may be maintained if “the party opposing the class has acted or
   refused to act on grounds that apply generally to the class, so that final
   injunctive relief or corresponding declaratory relief is appropriate respecting
   the class as a whole[.]” 54 “It is well-established that ‘[i]nstead of requiring
   common issues, [Rule] 23(b)(2) requires common behavior by the defendant



   a trial on the merits. Thus, the district court’s assertion that this case would not degenerate
   into a series of individual trials is largely unsupported and is, in our opinion, mistaken.”).
           53
               Cf. Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006)
   (“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.”).
           54
                FED. R. CIV. P. 23(b)(2).




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                                                No. 19-20723


   toward the class.’” 55 Thus, 23(b)(2) certification has three requirements:
   “(1) ‘class members must have been harmed in essentially the same way’;
   (2) ‘injunctive relief must predominate over monetary damage claims’; and
   (3) ‘the injunctive relief sought must be specific.’” 56 “The specificity
   element requires plaintiffs to give content to the injunctive relief they seek so
   that final injunctive relief may be crafted to describe in reasonable detail the
   acts required.” 57
             The district court concluded that members of the proposed class had
   been harmed in essentially the same way because the injuries for which they
   seek injunctive relief arise from Arkema’s conduct in preparing for and
   mitigating the effects of Hurricane Harvey on its Crosby facility. Concerning
   Plaintiffs’ request for medical monitoring, the district court found that “[i]f
   their allegations are true, Plaintiffs need to be repeatedly tested for health
   effects so that cancer or other diseases may be caught early and treated,” and
   “the injunctive relief sought will commonly address [Plaintiffs’] injury.” 58
   The district court envisioned the medical monitoring injunction as an
   iterative process involving “early detection and treatment” through which
   “a more complete understanding of the potential consequences of exposure
   is attained and treatment plans are put into place.” 59 But the district court
   did not discuss the range or types of medical monitoring the injunction would
   implement.


             55
             Yates v. Collier, 868 F.3d 354, 366 (5th Cir. 2017) (quoting In re Rodriguez, 695
   F.3d 360, 365 (5th Cir. 2012)).
             56
                  Id. (quoting Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 524 (5th Cir.
   2007)).
             57
                  Yates, 868 F.3d at 367 (internal quotations omitted)
             58
                  Prantil, No. 17-2960 at 27.
             59
                  Id. at 27-28.




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                                                 No. 19-20723


             Concerning Plaintiffs’ request for property remediation, the district
   court explained that “a remediation program can be applied class-wide—
   perhaps one that orders testing of Plaintiffs’ properties and cleanup of
   contaminants, as described” in the report of one of Plaintiffs’ experts, Dr.
   Glass. 60 The district court observed that it was necessary to deal with
   remediation on a classwide basis because “[i]ndividual clean-up attempts
   would be ineffectual, [and] because landowners could still be exposed as they
   move throughout the class area.” 61 Although it mentioned the possibility of
   implementing the testing program in Dr. Glass’s report, the district court
   made no specific findings as to what the property remediation program would
   entail.
             These discussions of the injunctions in their broad strokes do not
   satisfy the requirement that injunctive relief be reasonably specific. Our
   decisions make clear that more is needed than a common failure by the
   defendant and the prospect that all class members could realize some benefit
   if the defendant is compelled to act or desist. 62 To be sure, “Rule 23(b)(2)
   does not require that every jot and tittle of injunctive relief be spelled out at
   the class certification stage,” but some “‘reasonable detail’ as to the ‘acts
   required’” is necessary. 63
             We do not agree with Arkema that our decision in M.D. ex rel.
   Stukenberg v. Perry necessarily precludes all possible forms of injunctive relief
   for the proposed class. In Stukenberg, a proposed class of foster care children
   sought “at least twelve broad, classwide injunctions, which would require the


             60
                  Id. at 28.
             61
                  Id.
             62
                  Stukenberg, 675 F.3d at 846.
             63
                  Yates, 868 F.3d at 368 (quoting Stukenberg, 675 F.3d at 848).




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                                               No. 19-20723


   district court to institute and oversee a complete overhaul of Texas’s foster
   care system.” 64 Although we reversed the district court’s finding that the
   class was cohesive, we clarified that Rule 23(b)(2) does not require “a
   specific policy uniformly affecting—and injuring—each [plaintiff] . . . so long
   as declaratory or injunctive relief ‘settling the legality of the [defendant’s]
   behavior with respect to the class as a whole is appropriate.’” 65 The
   proposed class in Stukenberg sought injunctive relief addressing years of
   varied neglect and requiring the district court to outsource responsibility for
   determining the form of the injunctions to expert panels that would do the
   actual work of tailoring relief. 66
           Here, by contrast, there is stronger evidence that through its response
   to a specific event, Hurricane Harvey, Arkema “acted or refused to act on
   grounds that apply generally to the class.” 67 The current record does not
   compel the conclusion that Plaintiffs’ medical and property injuries are
   incapable of being addressed by classwide injunctions. For instance, it is not
   necessarily fatal to a uniform scheme of property remediation that certain
   properties may contain higher concentrations of contaminants than others,
   provided Plaintiffs can identify a common method of remediation and some
   reasonable standard by which remediation might be assessed. 68



           64
                Stukenberg, 675 F.3d at 845.
           65
            Id. at 847–48 (quoting Fed. R. Civ. P. 23(b)(2) 1966 Amendment advisory
   committee note).
           66
                Id. at 846-47.
           67
                Fed. R. Civ. P. 23(b)(2)
           68
              Cf. Yates, 868 F.3d at 368 (requested injunction deemed reasonably specific for
   class certification where plaintiffs “identified air-conditioning as a remedy that would
   provide relief to each member of the class” and identified “maintaining a heat index of 88
   degrees or lower” as the applicable standard).




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                                         No. 19-20723


           Still, we are sensitive to the challenges inherent in crafting appropriate
   injunctions. As Arkema notes, there is some uncertainty as to what symptoms
   or conditions will be medically monitored for all class members, whether
   individual health considerations need to be addressed for relief to be
   adequate. Concerning property, the certification order leaves us uncertain as
   to how the extent of necessary property remediation can be determined, and
   whether a responsive injunction can be fashioned to account for Arkema’s
   past remediation efforts. If the district court intends to wholly adopt one or
   another proposal from Plaintiffs’ experts, it must say so and explain how that
   proposal overcomes Arkema’s concerns. 69 Despite the present uncertainty
   concerning the propriety of classwide injunctive relief, we are confident that
   by evaluating the particulars of each injunction on remand, both the parties
   and the district court will arrive at a nuanced assessment of whether
   Plaintiffs’ claims for relief can be effectively addressed in a class action. 70
                                             III.
           We do not here limit the tools necessary to the district court’s
   management of complex litigation, such as the oft-deployed bifurcation of
   liability and damages. The reality of Rule 23 is that it depends upon the




           69
             Cf. Maldonado, 493 F.3d at 524 (plaintiffs could not seek classwide injunctive
   relief under 23(b)(2) requiring defendant to provide “mutually affordable healthcare”
   when plaintiffs “failed [] to identify any way to determine what a reasonable or ‘mutually
   affordable’ rate [was] for the wide variety of medical services offered”).
           70
             See id. (“The difficulty in specifying exactly what Appellants seek from an
   injunction highlights the fact that individualized issues here overwhelm class
   cohesiveness.”).




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                                     No. 19-20723


   management skills of our able district courts. We only set the boundaries of
   the field on which their discretion is applied.
          We vacate the district court’s order certifying the proposed class and
   remand the case for further proceedings including certification of the class.




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