[StBernard] MADISON v. CHALMETTE REFINING, L.L.C.

[Westley Annis]

MADISON v. CHALMETTE REFINING, L.L.C.

MARIAN B. MADISON; JODI HEBERT, Wife of/and; PHILIP HEBERT, Individually and
on Behalf of Their Minor Children, Joshua Hebert, Ashley Hebert, Kristina
Hebert; DANETTE DOMINICK, Wife; ANDRE DOMINICK, Individually, and on Behalf
of His Minor Child, Kayla Dominick, Plaintiffs-Appellees,

v.

CHALMETTE REFINING, L.L.C., Defendant-Appellant.



No. 10-30368.



United States Court of Appeals, Fifth Circuit.





Filed: April 4, 2011.

Before: JONES, Chief Judge, and DENNIS and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge.

This is an interlocutory appeal under Rule 23(f) of the Federal Rules of
Civil Procedure. Defendant-Appellant Chalmette Refining, L.L.C., appeals the
district court's order certifying a class alleging claims arising out of a
petroleum coke dust release from its refinery. For the following reasons, we
REVERSE the district court's order granting class certification and REMAND
this case for further proceedings.

FACTS AND PROCEEDINGS

On January 12, 2007, a number of schoolchildren, chaperoned by parents and
teachers, participated in a historical reenactment at the Chalmette National
Battlefield, "the site along the Mississippi River where Andrew Jackson gave
the British their comeuppance." DOUGLAS BRINKLEY, THE WILDERNESS WARRIOR:
THEODORE ROOSEVELT AND THE CRUSADE FOR AMERICA 414 (2009). Adjacent to the
battlefield is the Chalmette Refinery. In the early afternoon, the Chalmette
Refinery released an amount of petroleum coke dust that Plaintiffs-Appellees
(hereinafter, "Plaintiffs"), attendees and parents of attendees of the
reenactment, allege migrated over the battlefield. Plaintiffs filed suit,
seeking to sue on behalf of themselves and all other individuals who were
exposed to the coke dust on the battlefield.1 They sought a variety of
damages, including personal injury, fear, anguish, discomfort,
inconvenience, pain and suffering, emotional distress, psychiatric and
psychological damages, evacuation, economic damages, and property damages.2

The district court allow ed the parties to conduct discovery on the issue of
class certification, "[a]s it is encouraged to do." Gene & Gene, L.L.C. v.
Biopay, L.L.C., 624 F.3d 698, 703 n.3 (5th Cir. 2010). Chalmette Refining
deposed each of the five named class representatives; Plaintiffs apparently
conducted no discovery. Plaintiffs then moved for class certification under
Rule 23(b)(3), asserting that this lawsuit is a type of action where
"questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating
the controversy." FED. R. CIV. P. 23(b)(3). The proposed class consisted of

all persons entities (sic) located at the Chalmette National Battlefield in
St. Bernard Parish, Louisiana, in the early afternoon of Friday, January 12,
2007 and who sustained property damage, personal injuries, emotional,
mental, or economic damages and/or inconvenience or evacuation as a result
of the incident.

Madison v. Chalmette Ref., LLC, No. 07-307, 2010 U.S. Dist. LEXIS 65708, at
*3 (E.D. La. June 7, 2010). Chalmette Refining opposed the motion.

Over two years later, the district court held a hearing on the motion to
certify the class. At the conclusion of that hearing, and without any
evidence being introduced, the district court orally granted Plaintiffs'
motion. Fourteen days later, and although the district court had not yet
issued a written order, Chalmette Refining petitioned this court for
permission to take an interlocutory appeal pursuant to Rule 23(f). We
granted the petition. Two months later, and although it had already granted
Plaintiffs' motion, the district court issued a written order again granting
Plaintiffs' motion. The written order relied on the reasons stated during
the class certification hearing and offered supplemental analysis. The
district court later stayed proceedings pending the resolution of this
appeal. See FED. R. CIV. P. 23(f).

DISCUSSION

I. Rule 23

Rule 23(a) requires four prerequisites in order to certify a class action:
"(1) numerosity (a `class [so large] that joinder of all members is
impracticable'); (2) commonality (`questions of law or fact common to the
class'); (3) typicality (named parties' claims or defenses `are typical ...
of the class'); and (4) adequacy of representation (representatives `will
fairly and adequately protect the interests of the class')." Amchem Prods.
v. Windsor, 521 U.S. 591, 613 (1997) (alterations in original). "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 resolution is superior to alternative methods for
adjudication of the controversy." Feder v. Elec. Data Sys. Corp., 429 F.3d
125, 129 (5th Cir. 2005) (quotations omitted). The district court found that
Plaintiffs satisfied all of these requirements.

II. Standard of Review

We review the district court's decision to certify a class for an abuse of
discretion. See, e.g., McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 548
(5th Cir. 2003). "The decision to certify is within the broad discretion of
the [district] court, but that discretion must be exercised within the
framework of [R]ule 23." Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th
Cir. 1996) (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981)).

III. Analysis

"Recognizing the important due process concerns of both plaintiffs and
defendants inherent in the certification decision, the Supreme Court
requires district courts to conduct a rigorous analysis of Rule 23
prerequisites." Unger v. Amedisys Inc., 401 F.3d 316, 320-21 (5th Cir. 2005)
(citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)). Where the
plaintiff seeks to certify a class under Rule 23(b)(3), the Rules demand "a
close look at the case before it is accepted as a class action." Amchem, 521
U.S. at 613. "[W]e stress that it is the party seeking certification who
bears the burden of establishing that the requirements of Rule 23 have been
met." Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 301 (5th Cir. 2003)
(citing O'Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 737-38
(5th Cir. 2003)).

Although class certification hearings "should not be mini-trials on the
merits of the class or individual claims ... going beyond the pleadings is
necessary, as a court must understand the claims, defenses, relevant facts,
and applicable substantive law in order to make a meaningful determination
of the certification issues." Unger, 401 F.3d at 321 (citing Castano, 84
F.3d at 740). The "close look" demanded by Amchem requires examination of
both "the parties' claims and evidence." Id. "The plain text of Rule 23
requires the court to `find,' not merely assume, the facts favoring class
certification." Id.

At oral argument, Chalmette Refining argued for the first time that the
district court erred in concluding that Plaintiffs satisfied Rule 23(a)'s
typicality requirement. We decline to address this argument, however,
because Chalmette Refining did not adequately raise this issue in its
initial brief. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) ("An
appellant abandons all issues not raised and argued in its initial brief on
appeal.").

The crux of this appeal lies in the legal basis for and sufficiency of
evidence supporting the district court's findings of superiority and
predominance under Rule 23(b)(3). Before certifying a class under Rule
23(b)(3), a court must determine that "questions of law or fact common to
the members of the class predominate over any questions affecting only
individual members and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy."
Determining whether the plaintiffs can clear the predominance hurdle set by
Rule 23(b)(3) requires district courts to consider "how a trial on the
merits would be conducted if a class were certified." Sandwich Chef of
Texas, Inc. v. Reliance Nat'l Ins. Indem. Co., 319 F.3d 205, 218 (5th Cir.
2003). This, in turn, "entails identifying the substantive issues that will
control the outcome, assessing which issues will predominate, and then
determining whether the issues are common to the class," a process that
ultimately "prevents the class from degenerating into a series of individual
trials." O'Sullivan, 319 F.3d at 738. Determining whether the superiority
requirement is met requires a fact-specific analysis and will vary depending
on the circumstances of any given case. See 7AA WRIGHT, MILLER, & KANE,
FEDERAL PRACTICE & PROCEDURE § 1783 (3d ed. 2005).

In Steering Committee v. Exxon Mobil Corp., this court found no abuse of
discretion and affirmed a district court's denial of class certification in
a case arising out of a fire at Exxon's Baton Rouge chemical plant. 461 F.3d
598, 600 (5th Cir. 2006).We noted that "the district court found that
`individual issues surrounding exposure, dose, health effects, and damages
will dominate at the trial' [and] [t]he 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.'" Id. at 602. Chalmette Refining argues
that this case is nearly identical to Steering Committee and, as such, the
class certification decision should be reversed. Chalmette Refining also
relies heavily on an advisory committee note to Rule 23(b)(3), which has
been cited numerous times by this court as highlighting the "relationship
between predominance and superiority in mass torts." See Castano v. American
Tobacco Co., 84 F.3d 734, 745 n.19 (5th Cir. 1996). According to the note:

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.

The district court determined that Rule 23(b)(3)'s predominance requirement
was satisfied 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. This case only deals with actual exposure
and not fear of exposure. This class deals with a narrow window of exposure,
in a narrow area, and to a narrow group of individuals." Madison, 2010 U.S.
Dist. LEXIS 65708, at *16. We hold that the district court abused its
discretion by failing to afford its predominance determination the "rigorous
analysis" that Rule 23 requires.

The district court did not meaningfully consider how Plaintiffs' claims
would be tried, as Unger requires. The two cases relied upon by the district
court in conducting its conclusory inquiry are instructive. In Watson v.
Shell Oil, this court affirmed a district court's decision to certify a
class of over 18,000 plaintiffs seeking damages stemming from an explosion
at a Shell plant. 979 F.2d 1014, 1016 (5th Cir. 1992). Whether Watson has
survived later developments in class action law-embodied in Amchem and its
progeny-is an open question, but even in Watson, the district court had
"issued orders detailing a four-phase plan for trial." Id. at 1017-18. That
plan allowed the district court to adjudicate common class issues in the
first phase and then later adjudicate individualized issues in other phases.
Id. In Turner v. Murphy Oil USA, Inc., the district court granted class
certification to a class of plaintiffs who suffered damages resulting from a
post-Hurricane Katrina oil storage tank spill. 234 F.R.D. 597, 601 (E.D. La.
2006). Critical to the court's predominance inquiry was the fact that
"Plaintiffs submitted a proposed trial plan to the Court. The plan provides
for a three-phase trial." Id. at 606. "[T]he Court believes that the
existence of a trial plan, and the potential for bifurcation of the issues
of liability and dam ages, will address the Defendant's concern that
individualized inquiries will be needed to determine damage amounts in these
cases." Id.

In stark contrast to the detailed trial plans in Watson and Turner, the
district court simply concluded that "[t]he common liability issues can be
tried in a single class action trial with any individual issues of dam ages
reserved for individual treatment." Madison, 2010 U.S. Dist. LEXIS 65708, at
*18. The district court failed to consider whether this case could be
"streamlined using other case management tools, including narrowing the
claims and potential plaintiffs through summary judgment, [or] facilitating
the disposition of the remaining plaintiffs' claims through issuance of a
Lone Pine3 order." Steering Comm. 461 F.3d at 604. Indeed there was no
"analysis or discussion regarding how it would administer the trial."
Robinson v. Tex. Auto. Dealers Ass'n, 387 F.3d 416, 425-26 (5th Cir. 2004).

The court failed to identify "the substantive issues that will control the
outcome, assess[] which issues will predominate, and then determin[e]
whether the issues are common to the class." Bell Atlantic, 339 F.3d at 301.
Absent this analysis, "it was impossible for the court to know whether the
common issues would be a `significant' portion of the individual trials,"
Castano, 84 F.3d at 745, much less whether the common issues predominate.
The opinion is also silent as to the relevant state law that applies to
Plaintiffs' claims and what Plaintiffs must prove to make their case. The
district court characterized the issue of liability as "Plaintiffs were
either on the battlefield and exposed to the coke dust or they were not,"
Madison, 2010 U.S. Dist LEXIS 65708, at *16, but this oversimplifies the
issue. Chalmette Refining correctly notes that, even among the named class
representatives, significant disparities exist, in terms of exposure,
location, and whether mitigative steps were taken. As in Steering Committee,
"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." 461 F.3d at
602.

We must reverse because, "[i]n its certification order, the [district] court
did not indicate that it [had] seriously considered the administration of
the trial. Instead, it appears to have adopted a
figure-it-out-as-we-go-along approach that Castano criticized and that other
cases have not endorsed." Robinson, 387 F.3d at 425-26. By failing to
adequately analyze and balance the common issues against the individualized
issues, the district court abused its discretion in determining that common
issues predominated and in certifying the class. We do not suggest that
class treatment is necessarily inappropriate. As Chalmette Refining
acknowledged at oral argument, class treatment on the common issue of
liability may indeed be appropriate. But our precedent demands a far more
rigorous analysis than the district court conducted.

CONCLUSION

The district court's class certification order is REVERSED and this case is
REMANDED to the district court for further proceedings.

DENNIS, Circuit Judge, concurring:

I concur in the majority's opinion except as to its dicta questioning the
vitality of Watson v. Shell Oil Co., 979 F.2d 1014 (5th Cir. 1992), in light
of Amchem Products v. Windsor, 521 U.S. 591 (1997), and its "progeny."
Majority Op. 7.

This circuit has affirmed and relied upon Watson's holding following Amchem.
Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006)
("[I]t 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." (citing Watson, 979 F.2d at
1022-23)); id. ("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." (citing
Watson, 979 F.2d at 1017-18 & n.9, 1024)); Mullen v. Treasure Chest Casino,
LLC, 186 F.3d 620, 623, 628 (5th Cir. 1999) (affirming class certification
in a case alleging that the casino "improperly maintained [its]
air-conditioning and ventilating system" resulting in the plaintiffs'
injuries and citing Watson as supporting the court's conclusion that Rule
23(b)(3)'s superiority requirement was satisfied).

Likewise, other circuits continue to positively cite Watson. See, e.g.,
Chiang v. Veneman, 385 F.3d 256, 273 (3d Cir. 2004) (citing Watson, 979 F.2d
at 1022, for its description of Rule 23(b)(3)'s predominance requirement);
Amati v. City of Woodstock, 176 F.3d 952, 957 (7th Cir. 1999) (citing Watson
as an example of how a district court may modify its "trial procedures" in
order to facilitate a class action).

Moreover, numerous district courts continue to rely on Watson, particularly
to determine whether class certification is proper in a mass tort action.
See, e.g., Collins v. Olin Corp., 248 F.R.D. 95, 104 (D. Conn. 2008) (citing
Watson to support the court's conclusion that common questions predominated
in a mass tort suit); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig.,
241 F.R.D. 435, 447 (S.D.N.Y. 2007) (citing Watson as an example of where
class certification of a mass tort action would be proper even after
Amchem); Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D.
456, 477 (S.D.N.Y. 2005) (stating substantially the same); In re Tri-State
Crematory Litig., 215 F.R.D. 660, 696 (N.D. Ga. 2003) (citing Watson, 979
F.3d at 1023, as part of the court's collection of "ample support in federal
decisions for granting certification of negligence claims"); Slaven v. BP
Am., Inc., 190 F.R.D. 649, 650-51, 657 (C.D. Cal. 2000) (denying, in part, a
motion to decertify a class action seeking "economic damage[s] as a result
of [an oil] spill and/or the ensuing cleanup effort" and citing Watson, 979
F.2d at 1022, for its discussion of Rule 23(b)(3)'s superiority
requirement).

Commentators also continue to cite Watson as representative of the case law
on class actions. See, e.g., 1 Joseph M. McLaughlin, McLaughlin On Class
Actions § 4:10 (6th ed. 2010) (citing Watson, 979 F.2d at 1021-22, as an
example of where "issues about the defendant's liability may present the
required common question" justifying a class action in a "`mass accident'
case[]"); 3 William Rubenstein et al., Newberg on Class Actions § 9:58, at
446 (4th ed. 2002) (citing Watson for the proposition that "the presence of
individual issues will not bar a class action"); Edward F. Sherman,
`Abandoned Claim s' in Class Actions, 79 Geo. Wash. L. Rev. 483, 498-99
(2011) (citing Watson, 979 F.2d at 1018, as an example of how "[p]hased or
issues trials have been adopted" to facilitate class actions).

I believe, consistent with this plethora of precedent, including controlling
authority, that Watson as a source of precedential value remains strong in
our circuit.

Footnotes



1. Plaintiffs originally filed two separate suits making nearly identical
allegations. The district court consolidated the two actions.

Back to Reference

2. Plaintiffs also alleged that some individuals would require continued
medical monitoring and attempted to form a class to recover for these costs.
The district court denied Plaintiffs' request for certification of a medical
monitoring class. That aspect of the district court's order is not on
appeal.

Back to Reference

3. "Lone Pine orders, which derive their name from Lore v. Lone Pine Corp.,
1986 N.J. Super. LEXIS 1626, 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." Steering Comm., 461 F.3d at 604 n.2.