TROY ROBICHAUX, SHANNON ROBICHAUX, MICHAEL J. TUMINELLO, SR. AND OLIVE D. TUMINELLO VS STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS AND THROUGH THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND DOW CHEMICAL COMPANY
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0437 TROY ROBICHAUX SHANNON ROBICHAUX MICHAEL J TUMINELLO SR AND OLIVE D TUMINELLO VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS AND THROUGH THE DEPARTMENT OF ENVIRONMENTAL QUALITY AND now CHEMICAL COMPANY Judgment Rendered December 28 2006 9r On Appeal from the 18th Judicial District Court In and For the Parish of Iberville Trial Court No 56803 Division A Honorable James 1 Best Judge Presiding Donald T Carmouche Counsel for Plaintiffs Victor L Marcello Troy Robichaux John H Carmouche Gonzales LA Michael 1 Tuminello F Counsel for F Charles Marionneaux The Dow Chemical LA David M Bienvenu Ivy Dupree J1 John Michael Parker Baton Rouge QeM Shannon Robichaux S1 and Olive D Tuminello Barry Marionneaux Plaquemine Appellees LA e I 1 Defendants st Appellants Company and 2nd Appellant DEQ William M Hudson Counsel for Defendant Pattick B McIntire Louisiana DHH Lafayette LA Robeli M Kallam Counsel for Defendant 3 Jennifer A Wells Id Industrial Haulers Inc Appellant Lafayette LA BEFORE PETTIGREW DOWNING AND HUGHES JJ 2 HUGHES J This the State of Louisiana Dupree and Hospitals Haulers appeal by Defendants The Dow Chemical Company Inc 1 raises class certification on a Orris Defendants we B and Plaintiffs 3 S1 and Dupuy appeal error The Iberville Parish lodged out a Marva 2 Fefee L appeal cross 1 through representatives Troy 3 and Louisiana For the simultaneous reasons that of well water applicable federal drinking apparently Februmy not contamination near or water in the Department standards to vicinity 2 These test results test results review its records At that point the Louisiana Depmiment of Environmental Quality took action to off use of the of the contaminated water and of vinyl chloride levels in reported to the public until elevated levels in 2001 alerted the III Department of Health and Hospitals Plaintiffs property in 1997 and 1998 that revealed from answered have seeking purported groundwater of performed routine periodic testing were s FACTS AND PROCEDURAL HISTORY This suit arises of in the trial court affirm I excess and Industrial behalf of the Plaintiffs under Louisiana Code of Civil celiification under Article 591 B follow assignments of number of Procedure Article 59l A Robichaux Ivy through the Department of Health and Department of Environmental Quality the Dow notify residents and property cut owners problem Plaintiffs filed suit III March 2002 alleging that the Louisiana Depmiment of Environmental Quality and the Department of Health and Inc has submitted briefs in this matter the essence of which adopt the of error advanced by Dow Chemical Company and the State Defendants assigmnents 2 Human Serv Public Comment Release Review of Groundwater Sampling U S Dep t of Health I Defendant Industrial Haulers Results from the Myrtle Grove Trailer Park Well System June 18 2002 3 Hospitals State Defendants report and 2 warn require and were negligent in their failures to class members of the 1997 and 1998 ensure test results until 2001 3 groundwater and remediation of the contaminated testing Plaintiffs also alleged negligence by conduct follow up 1 Dow in causing and allowing the contamination Plaintiffs sought injunctive relief under punitive damages Louisiana Code Civil AIiicle s s groundwater remediation alleged strict liability class certification sought and to Additionally Plaintiffs statute under Louisiana Civil Code Article 2317 germane to the matter at bar Plaintiffs 4 1 2015 enacted in 2003 remediation under Louisiana Revised Statutes 30 be Louisiana 2315 3 6 Most pursuant to Louisiana Code of Civil Procedure Article 591 In 3 January 2005 two a day healing held was on class certification injunctive relief in their Fourt11 Amending Petition of April 15 2002 This provision in effect at the time in question but repealed by the legislature in 1996 provided that punitive damages could be awarded if it is proved iliat plaintiffs injuries were caused by ilie defendant s wanton or reckless disregard for public safety in the storage handling or transportation of hazardous or Plaintiffs abandoned the claims for 4 toxic substances 5 The is statute A The comprehensive but reads in pertinent part legislature hereby as follows finds and declares that Article IX Section I of the Constitution of Louisiana mandates that the natural resources of tlle state including water are to be protected conserved and replenished insofar as possible and consistent wiili the health safety and welfare of the implement B this any any law to the contrary upon the in the plaintiff demand which includes a claim principal to recover demand damages filing or enact laws to which notice shall contain a of any litigation his otherwise making action a or judicial for ilie evaluation and remediation of any contamination or pollution that is alleged to impact such plaintiff filing same shall provide written notice requested legislature policy Notwiilistanding pleading by and furt11er mandates that the people or threaten usable by celiified copy of the certified petition ground mail return in such water receipt litigation to ilie through the Department of Environmental Quality To tlle extent that any such litigation or action seeks to recover for tlle evaluation and remediation of any contamination or pollution that is alleged to impact or threaten usable ground water state of Louisiana ilie Department of Environmental Quality in accordance with its respective areas of have constitutional and statutory authority and regulations adopted pursuant thereto shall or action in accordance wiili ilie Louisiana Code ilie right to intervene in such litigation ofCivil Procedure The department shall not have the right to independently assert a plea for damages to usable ground water beyond iliat stated by ilie plaintiff in the principal nothing in this Section shall diminish the authority ofilie department action No independently bringing any civil or administrative enforcement nor shall ilie or order shall be rendered granting any relief in such litigation judgment litigation be dismissed without proof of notification to the state of Louisiana as set forth demand However from in this Subsection 6 Weare responsible not only for ilie act of persons for whom we allege in their are the damage occasioned by our own act but for that which is caused by Plaintiffs or of ilie things which we have in our custody answerable in tlle release petition that Defendants pennitted or participated in a manner violative of their obligations under ilie law garde substances in their 4 of hazardous and toxic Evidence included On January 31 2005 the trial Plaintiffs granting petitioned and the new and failed to were court proposed class representatives initially denied celiification of the class granted a new trial limited trial the court stated that it had evidence certified the class for remediation claims pursuant Statutes 30 2015 1 Defendants In a defined the class area and certified the class Article 591 B on as argument In too In hastily written a These a Louisiana Revised against the State 2005 the trial court October 18 all landowners since 1990 in including the contamination court to punitive damages except judgment signed as re 2005 the trial comi reversed itself and 21 September on to initially ruled due consideration to Plaintiffs give ruling released three testimony by the geographically defined rulings also specify that the trial solely under Louisiana Code of Civil Procedure 3 All Defendants certification have appealed this ruling The Plaintiffs have that the class be certified Article 59l B 3 alleging appealed the trial court solely under Louisiana Code in the error determination s of Civil Procedure they seek certification under AIiicle 59l l and 2 B as well II LAW AND DISCUSSION 59l A Louisiana Code of Civil Procedure Article mandatory requirements A as One sets out for class certification or more members of representative paliies on 1 The class is is impracticable 2 There 3 The claims are class may behalf of all only if so numerous questions a sue or be sued that joinder of all members of law or fact common to the class are or typical of the claims defenses of the or representative parties defenses of the class 5 the 4 representative parties The will fairly and adequately protect the interests of the class 5 The class is or may be defined such that the asceliainable criteria objectively in terms of determine the comi may constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case Once proposed a class requirements of Article 59l ensure that the A demonstrated has a court proposed class fits into action enumerated in Article 591 B as considering class certification one of the four all of the prerequisites of class action only if A of this Article are as a Paragraph satisfied and in addition of separate actions by or individual members of the class would create a risk of 1 The individual members incompatible class prosecution Inconsistent a or of against varying adjudications with respect the class which would standards of conduct for the party to establish opposing the or Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not pmiies to the adjudications or substantially impair or impede their ability to protect their b interests or opposing the class has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratOlY relief with respect to the class as a whole or 2 The pmiy 3 The common court to the finds that the members of the questions of law or class predominate over fact any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient to these a adjudication of the controversy findings include The interest of the individually controlling the prosecution actions 6 The matters members or of must categories of class follows An action may be maintained B conformity with all the pertinent class in defense of separate b The extent and of any nature controversy already commenced by litigation concerning or the against members of the class The c litigation in d desirability or undesirability of concentrating the pmiicular forum The difficulties likely to be encountered III the the management of a class action The e practical ability of individual class members to pursue their claims without class certification f The extent to which the relief plausibly demanded on behalf of or against the class including the vindication of such public policies or legal rights as may be implicated justifies the costs and burdens of class litigation or 4 The settlement request celiification under for purposes of settlement even though the pmiies to a Subparagraph B 3 requirements of Subparagraph might B 3 not otherwise be met The class is 5 may be defined or ascertainable criteria such that the objectively in terms of determine the court may constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case A trial court s should be affirmed Motors 488 decision on appeal 97 1028 Corp A trial comi to a class melits great discretion and absent manifest 13 p certify La future Signal citing A In 1997 General 718 So 2d 480 La App of subsequent modification warrant 1 Cir 12 30 04 Rollins Envtl Servo Of La Inc Boyd v Allied 898 So 2d 450 456 456 So 2d 612 620 7 La 1984 7 v ease circumstances may or 2003 1840 p 9 McCastle v considering class certification should generally favor developments Inc White 1 Cir 6 29 98 App maintaining the class in light of the relative as error Mandatory Requirements the Louisiana Louisiana class action legislature procedure enacted Act 839 This for Class Certification which legislation completely substantially amended ilie law rewrote the class action pertaining to provisions to track notes tlle language of Federal Rule of Procedure 23 almost verbatim However according to the editor s Article 591 oftlle Louisiana Code of Civil Procedure iliese modifications appear to incorporate following much of the jurisprudence as set forth in McCastle v Rollins Singleton v Northfield Ins Co 2001 0447 p 8 La App 1 Cir 5 15 02 826 So 2d 55 61 7 Louisiana Code of Civil Procedure Article 591 A sets out five mandatory requirements commonality of factual claims plaintiffs celiification party seeking class Carr qualifications court of the is class or GAF Inc or as class While class plaintiffs definition the preferred for the reasons noted above has the burden of status v numerosity legal questions typicality of the lead plaintiff objectivity by the trial above quoted for class celiification adequacy of the lead plaintiff and representatives or as establishing these required 97 0838R p 6 La 1 Cir 4 8 98 App 711 So 2d 802 805 06 1 joinder is impractical but aggrieved App 1 Inc potential claimants court thousand landowners contamination have not shown while more in the of sufficiently affected area are no plaintiffs Defendants being landowners have susceptible mere definable group of 96 1958 p allegations of numerous the by at all property as ownership it is until Defendants also argue that as assert no They La the not large a 1012 over two alleged groundwater being class members proposed a that Plaintiffs reason proposed that the 14 Prod Exploration 698 So 2d 1001 App 1 Cir 7 30 97 found numerous specific number is A Texaco v evidence that any of the aggrieved beneath their than so Dow and the other Defendants argue that far from class there numerous here a Container 768 Lewis the class is time it is 760 2d So La same Gaylord v 691 96 1458 p 15 The trial actually the at but the class must entail number of Co Cotton persons Cir 3 27 97 required that numerosity qualification requires The that Numerosity are class members ownership interest in the groundwater an uncaptured and unless or it is reduced Plaintiffs seek remediation 8 mineral fugitive to not possession costs but not individual stigma lost value or damages they have alleged sufficient not compensable damage to have standing propriety of class certification as an argument goes less toward the this Although thought provoking The towards the substance and merit of Plaintiffs claims considered by the trial review is whether the class action is court is or Andry v case appropriate at In luling bar is be raised Murphy 424 Oil U S A 1129 citing an rather than La a of the v through this inquiry which is for procedural certification of a class 156 Int l Inc Mackey arguments might of 1 4 98 U S Jacquelin 417 Miller cause 4 Cir App a the merits on more motion for summary judgment the comi may consider the briefs exhibits and 96 1958 at p testimony presented 13 691 So 2d seems the Plaintiffs potential a on procedural device plaintiffs have stated 1974 and be court by this to propriety of a class action Carlisle v more properly trial or limited to on the 8 determining whether the elements for class certification have been established and also the Defendants exception numerosity requirement In in which the 97 0793 p 3 Inc Eisen 5th Cir 197l through the merits certification and only issue they ultimately will prevail 94 S Ct 2140 40 L Ed 2d 732 2d F one detennining the likelihood that 710 So 2d 1126 452 on concerned with whether the not action court in and matter essentially procedural to at pleadings affidavits depositions at a certification Here the trial court held 768 given serious reconsideration have motion for class members new It found trial sufficiently a to class of We numerous Cotton hearing a full hearing the evidence upon over see no two thousand error in this conclusion 8 We note that Defendants raised exceptions early in this yet been heard or resolved 9 litigation at this time these exceptions have not 2 The Commonality inquiry the court must find the certified the As a Legal Questions fact or the predominance A predominate consider the basic against Plaintiffs claims from Plaintiffs claims against Dow the contamination The trial chemical at common issue and occurred court in two the over any individualized Prod 1997 Inc v 12 14 La Windsor 9 9 97 against commonality whether to what and by potential class potential there is class one 1 claims made by the Plaintiffs on a Ford common v 703 So 2d 542 521 U S 591 these do not defeat the class Plaintiffs argues to how differs potential liability Court of Supreme Court and the Supreme Although Defendants here the merits method of superior bar found that the at likely subjects for class certification pp a land owned Louisiana have allowed that claims based 96 2913 being if it finds that the of law and fact in that common Both the United States are Under the class finding of commonality because as on case questions 2 a Dow because it suggests factual differences members shared 2 commonality requirement the basis of their against them and members A superiority inquiry will be discussed infra The State Defendants argue extent class 3 B claims and also that the class action format will be we to common celiify under Article 59l At this time the which determine the type of class questions from Article 59l adjudication in twice arises mandatory requirement under Article 59l questions of law court may or analysis of Article 59l B provisions common character common certification of Factual 117 S argue Murphy 549 50 Ct 2231 or disaster Oil U S A citing Inc AmChem 138 L Ed 2d 689 likely issues for consideration common threads shared groundwater under their properties has 10 cause on by all potential been contaminated by a We find damages no enol 3 This they seek remediation and if appropriate punitive chemical single in the trial Typicality court of the Class finding s typical of those of the greater proposed class claims of the class course are of conduct based on the representatives giving rise same to arise out same The claimed Boyd 2003 464 65 same of course Defendant the and groundwater same at bar case conduct commonality analysis or practice claims need elements of 1840 at p found or not damages 898 So 2d at 25 typicality based the on namely the polluti0n of the legal theories of remuneration and punitive The trial court fuliher bolstered its damages its whole The trial court in the event representatives possible injmies a is satisfied if the Typicality of the are the claims of the other class members and legal theory as claims representatives exhibit all of the various types of by the class this element Representatives the class requirement asks whether on the finding by noting as the fact of unity confened by it did in a common of typicality at issue the contaminant The State Defendants and Dow argue on against the finding grounds that regardless of the singularity of the contaminant alleged contamination entails multiple named two tortfeasors 9 distinct entities The Defendants where the supreme multiple sources comi Dow sources and as to Ford against class certification of contamination Plaintiffs have and Industrial Haulers point particularly ruled causes Ford 96 2913 at p v as Murphy on 11 potential Oil the basis of 703 So 2d at 548 9 Dow also argues the potential for vinyl chloride contamination from stations 11 non named local sources such as gas Defendants address reliance typicality but rather focused appears in Article 59l B Defendants have also court matter the sought provision statute members claims trial Id at p 3 to on the too import 4 potential questions as of the Lead Plaintiffs to t he factors aid courts in claims of the chosen class counsel for the chosen 2 26 898 So 2d to at raised to argue Represent by the rest of the Class LSA C C P cannot ensure be mi 59l A conduct the antagonistic representatives or 1 competent 4 the conflict must have and vigorous advocacy be must no conflict competent counsel thus it decided the class a We agree with the 3 experienced litigation vigorously Boyd 465 The trial court here found seems to be the chosen representatives qualified and generally able at p of class nature determining this requirement sufficient interest in the outcome to Dow inquiry of class certification representative pmiies will fairly and representatives with those of other class members 2003 1840 above potential class representatives in this adequately protect the interests of the class a it as discussion of this a causation to seen not class Adequacy following As 548 quoted above emphasizes the This element asks whether The at much of lodged claims typical of those likely prospective opinion did commonality inquiry 10 703 So 2d determination that the s have not as That misplaced merits and substance into the procedural case s The Ford is on in response that class no s difference of interest and representation was adequate representatives should be held to heightened standard of knowledge and participation and that the Plaintiffs here serve as injury to little create a more than litigation figureheads who lack even sufficient and justifiable interest in the litigation Dow refers in this context to supreme court statements in 12 a viable outcome a case on a non concerning the necessary showing class action matter the to owner Hornsby justify a Bayou Jack Logging 2004 1297 v reasons p to personal exceeds restoration that damages award of costs La 5 6 05 902 So 2d exceSSIve 11 merits and 361 368 Defendants here seek As above inquiries into substance indeed any to the class certification proposed class members lack Hornsby does not above restoration costs cause If the Plaintiffs of action this is This is to non the not Hornsby is pecunimy damages pmiicularized subject or it addresses address class ceIiification proof for recovering of plaintiff s burden a analysis Fmihermore the reference occasion for such discussion inapposite import matter over a and far afield from the bases for Plaintiffs class certification claims Finally our jurisprudence does demand of not the SOli of engagement that Defendants seek celiified class with a financial stake in the of mineral action a require class This representative who despite having disputed to pursue that claim representative comi recently relatively small a testified that he had matter royalties and he wished litigation to a a claim for loss through the class He further testified that he would follow all the court orders and would cooperate in the process by giving appearing in Northfield Ins Co 0447 pp as 15 16 La Here willingness heming court the required App 1 Cir Plaintiff to appear Singleton 15 5 02 on At this requirements for adequacy beyond have already behalf of the class all three testified to the trial court acceptable class representatives deposition or 2001 826 So 2d 55 65 representatives personally v a s s we their At the ceIiification satisfaction that point shown decline they would to be extend the the three factors described above and 13 relevant current We thus find jurisprudence no error in the trial court s finding of adequacy 5 Objectivity of Class Definition The final threshold class is or According comi requirement for may be defined to the trial adopted objectively in class certification is that the Plaintiffs not contest which reasons of ascertainable criteria terms Defendants did comi affected no comi s definition of the class since area January Services report time this in statements on water the 1O under Plaintiffs refer to well a confirmed indications of as s company ongoing an at LSU an abuse of discretion since This argument is 1997 in 1994 which not detect the conclusions of Dr Geology and Geophysics which details testing scrutiny did to to seems Jeffrey S a Human to be the first Hanor professor The record contains Dr Hanor spill of chlorinated compounds of hazardous likely vinyl chloride earlier release of chlorinated use a as Dow argues that Department of Health and federal to the effect that was prior the class all landowners in the to include 1990 amounted contamination has been shown based of 1 this issue thus the emphasized geographical entity and defined the class accordingly the trial t he report Dow in 1993 as hydrocarbons and the dump for chlorinated waste compounds that resulted in similar contamination at s Dr Hanor s report also suggests that data from testing performed between 1992 and 1994 indicated chloride contamination that had likely been migrating for RepOli 20 the record also contains Hanor 10 s We note deposition finally that a All persons and entities who following East area Section 9 through Iberville Parish Louisiana status presently 15 46 tl1fough as an time Hanor exhibit to Dr by Defendant Ivy Dupree of repOli own some or owned 57 and 83 at any time after through Excluded from this definition are 1 1990 s land in tlle Township 9 South Range 12 the defendants and tlleir officers 87 all in 1 directors and employees and any entity in which tlle defendants have governmental entity subdivision agency or department 14 January Dow a controlling interest and 2 any Environmental Services Department This repOli dated Februmy suggests in its summmy that remediation be undertaken in order the of contaminants downward to the migration Our review of the record leads designation of the class in developed temporal origins s As noted unreasonable the comi the at that the Type of Class A proposed comi a class fits into action enumerated in AIiicle 591 B Article 59l B opt 3 as classes in which and pursue individual out a and in the specificity entail a bar s decision Defendants 3 not to contest case out against opting under Article 59l B comi of of class action builds alone one AIiicle 591 A over any not facts be are are less the most commonly certified exceptional common Plaintiffs They request class member may potential of Article 59l B class actions the are 2 1 and certified were on cross B superior to as appeal that l and 2 due to class actions a class the trial be reversed 3 3 the most often utilized commonality questions affecting only must quoted earlier Generally speaking notified Here so categories of class This type requirement established and asks fuIiher that the class commonalities action format be was conformity with all of the four certify under Article 59l on s Action 1 Certification Under Article 591 B 3 1990 analysis should the celiification under Article 59l B AIiicle 59l B 1 Janumy court considering class certification litigation The other three types of class action their as proposed class has demonstrated a requirements of Article 59l ensure conclude that the trial will be within the scope of its discretion to do B Once prevent Plaquemine aquifer of this outset to 1991 litigation that require modification of this of course designation the trial to us 4 individual members in predominate and that the class other available methods for the fair and 15 of the efficient adjudication actions The courts to consider when determining statute as such controversy as joinder controlling b the individual quoted above provides six illustrative factors for an AIiicle 59l B 3 certification The interest of the members of the class in a or prosecution The extent and controversy already or individually defense of separate actions of any commenced by nature litigation concerning or against members of the the class The desirability or undesirability of concentrating the litigation particular forum c in the d The difficulties likely to be encountered in the management of a class action The e practical ability of individual class members their claims without class certification f to pursue and The extent to which the relief plausibly demanded on behalf against the class including the vindication of such public policies or legal rights as may be implicated justifies the costs and burdens of class litigation of or In the 59l B 3 The case with the at bar the trial questions two certified the class under AIiicle following explanation of law 2 impOliantly and fact are namely there is members of the class and court claims made common issues common these one all of the to common 1 chemical at issue by the Plaintiffs More predominate over any All by anyone member of the class members of the proposed class have the same claims For these individuals claim reasons this Court ceIiification is finds superior to that under these facts class a the other available methods of adjudication and it would be in the and justice to continue this matter as best interests of a efficiency class action Dow argues that the trial court failed to consider factual differences and distinctions that could Defendants argue potentially affect class commonality largely that distinctions between themselves and private Defendants mitigate against class ceIiification however asks over The State only whether its internal differences a proposed as a class procedural 16 s Article 59l B commonalities matter the 3 predominate Internal differences within the proposed class that amongst defendants on the merits and distinctions As the trial comi issue not at are anse may all out pointed proposed class members share identical claims regarding contamination by single substance plaintiff does defeat their not We thus 620 That recoveries may commonalities cause uphold the trial predominated as court to plaintiff 456 McCastle whole a 2d So at finding that the proposed class s its over vary from ultimately a potential internal s individual or differences The court of s Iuling on adjudication on and private the State Defendants here both argue superiority novel a novel and untested certification until certification of s a way that preserves 14 16 703 So 2d at 550 51 for remediation and punitive damages certifications for number of statute or for a lack of s class legal issues ruling that made the basis of 1 2015 11 precedence bootstrapping judicial a a class Ford 96 resources Dow argues that Plaintiffs claims amount to reasons Louisiana Revised Statutes 30 jurisprudence and court a garnered enough experience and information comis have a not be the trial other methods to untested combination of legal theOlY should judgment in 2913 at pp the comi This assertion relies upon the supreme presented to render against the trial Dow argues what Dow argues is of the class action format against an including untested basis for class the relative the lack of newness of significant interpretive for either class ceIiification under punitive damages claims from the underlYing remediation claims The Ford theory alleged that emissions was indeed novel residents of St Bernard Parish from four defendant personal and propeliy damage by virtue 17 of petrochemical plants a caused synergistic accumulation or Ford combination of releases Writing for the plaintiffs 591 B theory mitigated against synergy 3 and admonished that the comi must Id at pp In the dates case since its specified this provide seek set a to statute to 12 be to handful of a not is alleged far expeIiise that would likely purposes of class ceIiification Turner Murphy v As noted above the for 12 v 05 1545 L L C v Minvielle Murphy slip It is op Oil at v our U S A 2 Apache Corp IMC Global Amoco Prod Co 13 court note 2002 1050 p 2 La concurring s ability App This is launch to scientific truly a testimony to a and evaluate for that Louisiana Revised Statutes the basis of a 234 F R D 597 on plaintiffs threaten usable or plaintiffs sought a the to class celiification in BD La 130 06 13 point is misplaced this enacted Louisiana Revised Statutes 30 2015 1 in 2003 See supra note 3 text Turner No legislature as Inc argument WD No Inc La 234 F R D 12 8 05 05 322 slip Operations Inc 2002 CA I050 La App available at 597 E D La 1 30 06 available at Thibeaux 2005 WL 3359177 v Chevron Brownell Land Corp Corp op at 5 E D La 10 13 05 available at 2005 WL 3543772 380 F Supp 2d 755 761 W D La 19 10 04 Simoneaux v 1 Cir 9 26 03 understanding that Defendant Murphy Appeals Turner v Murphy Circuit Court of 2 6 06 u 11 We also Oil U S A s impact requiring outstrip already been used We conclude that Dow to Fitzsimmons J of causation theOlY legislature expressly and remediation of any Amoco Prod Co v far cry from the Ford scenario where the has tort have treated the cases litigation wherein the evaluation 860 So 2d 560 575 30 2015 1 a substantive it is understood be followed in that pollution novel and untested experience with We note however that the Simoneaux 1 Cir 9 26 03 have Article Louisiana Revised Statutes 30 2015 1 only damages for or water true that procedural of procedures contamination ground bar it is inception recover novelty of the utter finding under a 550 at 15 16 703 So 2d at 551 2003 and that only from statute at 703 So 2d before class celiification may be in the form of several individual actions appropIiate 14 at p Victory found that the Justice court 96 2913 860 So 2d 560 575 Oil has appealed ilie class certification ruling to the Fifth Inc Oil U S A No 05 4206 slip op at 4 E D La 2006 WL 286009 18 against the superiority of the class format The State Defendants argue on or the basis that the State not depmiments parties seeking remediation 114 Revised Statutes 30 2015 the Plaintiffs should be the party This argument is also designed was Louisiana misplaced to encourage private litigation against contaminators while ensuring State administrative oversight of the remediation efforts borne of the COmlrlent Private Actions Who Ensures the 2004 see terms litigation ability to One further policy concerns is at once a s be certified as a through 369 That the plaintiff in affect the not class the factors listed in the statute The supreme as well comi as efficiency and justice singularity conclusion and affirm the trial pursuant to Article 59l B has instructed trial McCastle 456 So 2d and its determination that the claims and the particularly judicial any additional recitation references the factors in its class action the best method of s Here 617 18 finding that it would continue this matter as a of the chemical contaminant rendered adjudication court to at potential uniformity of the proposed class We find no error certification of the Plaintiffs 3 2 Certification Under Article 591 14 Damages aspect in determining supeIiority is the consideration of be in the best interests of class action potential a enforcing and ensuring cleanup does relevant factors in its deliberations members defendant and consider the enumerated factors the tIial court Restoration or 2002 1050 at p 2 860 So 2d at 576 efficiency and individual fairness comis to Bourgeois J Loyd 17 Tul Envtl L 1 355 Cleanup Actually Occurs of its role in Plaintiffs Seeking Remediation also Simoneaux State in this private litigation See supra note 3 for text 19 B I and 2 in this as a class Plaintiffs have asked this 59l B 2 1 and well as 3 as The tIial 59l B 3 therefore this Comi need sections of AIiicle 59l B are exceptional a actions the defendant or a Class Actions Schexnayder 3 29 05 scant on a opt non and in Louisiana to address to litigations where prejudiced without 12 04 0636 p Louisiana Inc Certification of 1098 1100 1085 a force inconsistent Kent A Lambert L Rev prejudice as See 1998 La App the 5 Cir case 899 So 2d 107 116 Conventional not Lambert Fmiher it is also remedy example Certification of Class injunctive issue is at 1099 of certification is AIiicle not 59l B one relief inconsistent conduct at occur which at A of money at bar defendant at bar is are not not the at 1098 appropriate damages alone instead of for is not if the difference is paYment As the case this time is Actions 58 La L Rev generally understood that these actions when the another Id apply readily in knowledge suggests that these types of class actions depend real risk that separate actions may here basis varying judgments will 58 La 1 and 1 commonly refened out This type of class action does case writing so adequately satisfied AIiicle absent class members would be Entergy do consider the other enumerated not defendant found liable v to jurisprudence class actions 1 single unitary decision conduct from declined Certification Under Article 591 B certified are ceIiification under AIiicle As noted above ceIiifications under and there is AIiicle 59l B on a court This Court finds that the Plaintiffs have that 2 comi to approve one for viewed to one as subject party and to not to damages alone this type appropriate 1 potential class members class actions may also be celiified access to a limited fund for recovery 20 to protect In order to obtain such certification finite and fund that this provision 1 is class ceIiification should the facts In covers suggest here as the view this does our sort a that of limited not amount to a not completeness by as the trial court has judgment Plaintiffs currently presented as significant discretion to modify may raise this claim in the future Certification Under Article 591 B Article 591 B are under the facts appropriate develop accordingly b conduct Plaintiffs punitive damages be viewed on We note however that actions to show that there is showing of a quantifiably limited fund Thus certification under Article 59l B a Id actually limited fund constitutional limits sufficient have the burden movants 2 certified of class actions on a non commonly thought of as civil rights basis in order out opt appropriate declaratOlY or injunctive the defendant that may be either ordered Certification 01 Class Actions 58 La L Rev State Farm Mut 03 1081 p 16 Auto Ins Co 2 at or the to ensure concerning relief Lambeli blocked 1100 01 See Defraites La App v 5 Cir 127 04 864 So 2d 254 262 Plaintiffs here seek be celiified under Article 59l B to grounds that Defendants have seek a they state comi supervised is Plaintiffs pursuant stated ultimate to declaratOlY or groundwater statute a on clean up the contamination be adopted valid monetary they 27 This is clearly Practically speaking one means As such it is the and undertaken which Plaintiff Brief goal and the to plan in nature litigation seeks the acted remediation declaratory however this not 2 to effect not the sort remediation of purely injunctive relief claim best addressed by this provision and class celiification is not appropIiate under AIiicle 59l C Separation 21 of Powers B 2 Dow final s assignment of damage Louisiana s of celiification this will disturb the remediation legislature loss harm or jurisdiction of the sustained Dow argues the and the comi engagement in what should be a t actionable claim for damages exercise he class seeks exists within the original judicial branch should refrain from matter legislative and executive branches of emphatically that proposed agencies compensatory damages for not claim no expressly the environmental matters to Because scheme of intended s only remediation and punitive damages and actual remedy violates Dow argues that class certification in delegating groundwater remediation under the executive branch in the absence of actual states class wide a of powers separation matter enol limited state plaintiffs in this For that to the oversight of the Dow argues government case simply do the reason judicial have not an branch cannot original jurisdiction Dow s argument lodged exception as others above goes They allege negligence drinking water amounts to 15 regulations constitute Plaintiffs also a to per allege properly lodged a the pad of Dow this on negligence allegedly caused and perhaps allowed contamination in sufficient a however that Plaintiffs have indeed We note valid actionable claim to applicably more groundwater worsen se violation of federal that negligence on the part of the State Defendants worsened the contamination through inaction and exposed Plaintiffs several years Plaintiffs to wanl 15 to and 30 2015 1 comply with See supra note 1 and tort owners use failure for of the contamination principles and which Plaintiffs proper accompanying through the agencies notify propeliy of action arises under cause Revised Statutes capacity risk of harm to here in not a Louisiana procedural procedures for seeking remediation text 22 The statute s allows language them to do so without a specific claim for individually compensable damages Notwithstanding litigation action any law to the or contrmy upon the filing of any pleading by any plaintiff in the principal demand which judicial making a damages for the evaluation and remediation of any contamination or pollution that is alleged to emphasis added impact or threaten usable ground water demand includes or his otherwise claim to LSA R S 30 recover 1 20l5 A We thus conclude that this trial court s decision a to assignment of error does ceIiify the Plaintiffs as a not overcome class in this the matter CONCLUSION We conclude that this have demonstrated case that the is proper for class celiification proposed class satisfies requirements of Louisiana Code of Civil Procedure AIiicle class belongs properly within the The action of the district court in affiIwed Costs in the the State of Louisiana through the amount Plaintiffs the enumerated 59l A and the category represented by AIiicle 59l B certifying the Plaintiffs as a class is of 7 994 00 will be assessed in 3 hereby equal parts to through the Department of Health and Hospitals and Depmiment of Company and Industrial Haulers Environmental Inc AFFIRMED 23 Quality Dow Chemical
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