STATE OF MICHIGAN IN THE COURT OF APPEALS EDWARD WALDRON II, TRACI BREWER, SHEILA PAGE, BARBARA RIDDLE, and all others similarly situated, Plaintiffs-Appellees, v REPUBLIC SERVICES OF MICHIGAN I, LLC, a Michigan limited liability company, Defendant-Appellant. Court of Appeals No. _________ Wayne Circuit Case No. 06-615173-NZ Hon. Wendy M. Baxter _______________________________________________________________________/ BUTZEL LONG, P.C. By: David H. Oermann (P36696) Miles T. Macik (P63262) Michael F. Smith (P49472) 1747 Pennsylvania Ave. N.W., Suite 300 Washington, D.C. 20006 (202) 454-2860 Attorneys for Defendant-Appellant, Republic Services of Michigan I, LLC MACUGA & LIDDLE, P.C. By: Steven D. Liddle (P45110) David R. Dubin (P52521) Laura L. Sheets (P63270) 975 E. Jefferson Avenue Detroit MI 48207-3101 (313) 392-0015 Attorneys for Plaintiffs-Appellees, Edward Waldron, II, Traci Brewer, Sheila Page and Barbara Riddle _______________________________________________________________________/ APPLICATION FOR LEAVE TO APPEAL OF DEFENDANT-APPELLANT REPUBLIC SERVICES OF MICHIGAN I, LLC
Transcript
STATE OF MICHIGAN IN THE COURT OF APPEALS
EDWARD WALDRON II, TRACI BREWER, SHEILA PAGE, BARBARA RIDDLE, and all others similarly situated, Plaintiffs-Appellees, v REPUBLIC SERVICES OF MICHIGAN I, LLC, a Michigan limited liability company, Defendant-Appellant.
Court of Appeals No. _________ Wayne Circuit Case No. 06-615173-NZ Hon. Wendy M. Baxter
_______________________________________________________________________/ BUTZEL LONG, P.C. By: David H. Oermann (P36696) Miles T. Macik (P63262) Michael F. Smith (P49472) 1747 Pennsylvania Ave. N.W., Suite 300 Washington, D.C. 20006 (202) 454-2860 Attorneys for Defendant-Appellant, Republic Services of Michigan I, LLC
MACUGA & LIDDLE, P.C. By: Steven D. Liddle (P45110) David R. Dubin (P52521) Laura L. Sheets (P63270) 975 E. Jefferson Avenue Detroit MI 48207-3101 (313) 392-0015 Attorneys for Plaintiffs-Appellees, Edward Waldron, II, Traci Brewer, Sheila Page and Barbara Riddle
APPLICATION FOR LEAVE TO APPEAL OF DEFENDANT-APPELLANT REPUBLIC SERVICES OF MICHIGAN I, LLC
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TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES .......................................................................................... iii JURISDICTIONAL STATEMENT ............................................................................. viii ORDER APPEALED FROM, ALLEGATIONS OF ERROR AND RELIEF SOUGHT . ix STATEMENT OF QUESTION INVOLVED ................................................................. xi NECESSITY FOR INTERLOCUTORY REVIEW ....................................................... xii INTRODUCTION .......................................................................................................... 1 STATEMENT OF FACTS .............................................................................................. 1 I. Plaintiffs’ Allegations of Nuisance and Negligence .............................................. 1 II. Plaintiffs Seek to Certify a Class, Offering a Variety of Class Definitions ............ 3 III. Plaintiffs Offer a Third Class Definition That Does Not Address the Court’s “Objective Finding of Injury” Requirement – Yet the Court Certifies the Class Anyway................................................................................................. 8 STANDARD OF REVIEW ............................................................................................. 9 SUMMARY OF ARGUMENT ..................................................................................... 11 ARGUMENT ................................................................................................................ 12 I. Three of the Five Class-Certification Factors of MCR 3.501(A)(1) Cannot Be Met .................................................................................................................... 12
A. No Common Questions of Law or Fact Predominate Over Individual Ones ....................................................................................................... 12
1. Odor Cases Are Inherently Subjective and Defy Certification ......... 13
2. Plaintiffs’ Authority Does Not Support a Finding That Common Issues Predominate .......................................................... 23
B. For Many of the Same Reasons, Typicality Also Is Lacking ................... 30
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C. Classwide Adjudication Is Not a Superior Method for Resolving Such a Large Number of Necessarily Individualized Claims ................... 34
D. The Court’s Certification of a Class That By Definition Includes Speculative Claims of Harm Underscores the Lack of Commonality, Typicality and Superiority ........................................... 37
Cases A&M Supply Co v Microsoft Corp, 252 Mich App 580; 654 NW2d 572 (2002) .............................................................................. 10, 12, 34-35 Adkins v Thomas Solvent Co, 440 Mich 293; 487 NW2d 715 (1992) ............................. 13 In re American Med Sys, 75 F 3d at 1082 ...................................................................... 30 Anderson v Indian Village Manor Assocs, LLC, unpublished per curiam opinion of the Court of Appeals, issued April 30, 2002 (Docket No. 228358) ........... xiv Aprea v Hazeltine Corp, 247 AD2d 564; 669 NYS2d 61 (NY App Div, 1998) .............. 14 Ball v Union Carbide Corp, 212 FRD 380 (ED Tenn, 2002), aff’d, 376 F3d 554 (CA 6, 2004) .......................................................................... 18, 21 Bentley v Honeywell Int’l, Inc, 223 FRD 471 (SD Ohio, 2004) ...................................... 18 Bledsoe v Combs, 2000 US Dist LEXIS 7434 (SD Ind, 2000) ....................................... 38 Boughton v Cotter Corp, 65 F 3d 823 (CA 10, 1995) .................................................... 21 In the Matter of Bridgestone/Firestone, Inc, 288 F 3d 1012 (CA 7, 2002) .......... 35-37, 39 Burns v First Am Bank, 2006 US Dist LEXIS 92159 (ND Ill, 2006) ............................. 39 Camden v Kaufman, 240 Mich App 389; 613 NW2d 335 (2000) ................................... 10 Castano v American Tobacco Co, 84 F3d 734 (CA 5, 1996) ......................................... xiii Chamberlain v American Tobacco Co, Inc, 1999 US Dist LEXIS 5843 (ND Ohio 1999) ........................................................................................................ 31 City of San Jose v Superior Court of Santa Clara Co, 12 Cal 3d 447; 525 P2d 701 (Sup Ct Cal, 1974) ................................................................................ 21 Coponen v Wolverine Pipe Line Co, Inc (On Rem), unpublished per curiam opinion of the Court of Appeals, issued September 30, 2004 (Docket No. 235692) ..................................................................................... xiv, 28-29
1 All cases have been shepardized via Lexis and are valid in pertinent part through March 14, 2008.
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CWA Local 4100 v Ameritech Svc, Inc, unpublished per curiam opinion of the Court of Appeals, issued June 24, 2003 (Docket No. 232886) ............................ xiv, 23 Edgcumbe v Cessna Aircraft Co, 171 Mich App 573; 430 NW2d 788 (1988) ................ 37 Ford v Murphy Oil USA, Inc, 703 So 2d 542 (Sup Ct La 1997) ..................................... 14 Foulks v Usher Oil Co of Michigan, Docket No. 258997 (November 8, 2004 Order) .... xiv Garg v Macomb Co Comm Mental Health Svcs, 472 Mich 263; 696 NW2d 646 (2005) .......................................................................................... 33-34 Gen Tel Co of the Southwest v Falcon, 457 US 147; 102 S Ct 2364; 72 L Ed 2d 740 (1982) ........................................................................................ 10, 31 Georgia-Pacific Corp v Carter, 371 Ark 295; 2007 Ark. LEXIS 530 (Sup Ct Ark, 2007) ......................................................................................... 13-17, 28 Hamilton v AAA Michigan, 248 Mich App 535; 639 NW2d 837 (2001)................ 9, 22-23 Henry v Dow Chemical Co, unpublished per curiam opinion of the Court of Appeals, issued January 24, 2008 (Docket No. 266433) ............................................ 10 Hill v City of Warren (Aft Rem), 276 Mich App 299; 740 NW2d 706 (2007) ............ 29-30 Hurd v Monsanto Co, 164 FRD 234 (SD Ind, 1995) ................................................ 32, 34 Jackson v Wal-Mart Stores, Inc, unpublished per curiam opinion of the Court of Appeals, issued November 29, 2005 (Docket No. 258498) ................ 10 Johnson v Bobbie’s Party Store, 189 Mich App 652; 473 NW2d 796 (1991) ................. 13 Johnson v Martin, 2002 US Dist LEXIS 12550 (WD Mich, 2002) ........................... 37-38 Jones v Allercare, Inc, 203 FRD 290 (ND Ohio, 2001) ........................................... 32, 34 Kerr v West Palm Beach, 875 F 2d 1546 (CA 11, 1989) ................................................ 12 Maier v Community Resource Mgt Co, unpublished per curiam opinion of the Court of Appeals, issued March 16, 2006 (Docket No. 257958) .......................... 23, 37 McQuilken v A & R Dvpmt Corp, 576 F Supp 1023 (ED Pa, 1983) ........................... 24-25 Mejdrech v Met-Coil Sys Corp, 319 F3d 910 (CA 7, 2003) ...................................... 17-18
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In re Methyl Tertiary Butyl Ether Products Liability Litigation, 209 FRD 323, 338 (SDNY, 2002) ............................................................................. 33 Neal v James, 252 Mich App 12; 651 NW2d 181 (2002) ........................................ passim Newton v Southernwood Piedmont Co, 163 FRD 626 (SD Ga 1995), aff’d 95 F3d 59 (CA11, 1996) ................................................................................... 38 Oakwood Homeowners Ass’n, Inc v Ford Motor Co, 77 Mich App 197; 258 NW2d 475 (1977) .......................................................................................... 23-24 Olden v LaFarge Corp, 383 F 3d 495 (CA 6, 2004) ............................................ 8, 17, 28 Peet v The Sweet Onion, Inc, unpublished per curiam opinion of the Court of Appeals, issued March 17, 2005 (Docket No. 251736) .......................... 22, 37 People v Higuera, 244 Mich App 429; 625 NW2d 444 (2001) ...................................... 24 Puerto Rico v M/V Emily S, 158 FRD 9 (D PR, 1994) ............................................. 32, 37 Ramik v Darling Int’l, Inc, Case No. 98-40276 (ED Mich, May 24, 1999)..........15, 17, 28 Reader v Magma-Superior Copper Co, 110 Ariz 115; 515 P2d 860 (Ariz Sup Ct, 1973) ............................................................................... 22 Rockey v Courtesy Motors, Inc, 199 FRD 578 (WD Mich 2001) ................................... 21 RSR Corp v Hayes, 673 SW2d 928; 1984 Tex App Lexis 5478 (Texas Ct App, 5th Dist, 1984) ................................................................................... 21 Rugambwa v Betten Motor Sales, Inc, 200 FRD 358 (WD Mich, 2001) .................. 31, 34 Rutstein v Avis Rent-a-Car Sys, Inc, 211 F3d 1228 (CA 11, 2000) ................................ xiii Sprague v General Motors Corp, 133 F3d 388 (CA 6, 1998) .............................. 12, 30-31 Sterling v Velsicol Chemical Corp, 855 F2d 1188 (CA 6, 1988) .................... 17-18, 24-25 Szabo v Bridgeport Machines, Inc, 249 F3d 672 (CA 7, 2001) ............................... xiii, 11 Tinman v Blue Cross & Blue Shield of Mich, 264 Mich App 546; 692 NW2d 58 (2004) .................................................................................. 9-10, 12, 19 Unger v Amedisys, Inc, 401 F3d 316 (CA 5, 2005) ........................................................ 11
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Williams v Terra Energy, Ltd, unpublished per curiam opinion of the Court of Appeals, issued July 25, 2006 (Docket No. 260725) ............................................ 22, 37 Wojciechowski v Republic Steel Corp, 67 AD2d 830; 413 NYS2d 70 (Sup Ct NY, 1979) ............................................................................................... 21-22 Zine v Chrysler Corp, 236 Mich App 261; 600 NW2d 384 (1999) .......................... passim Other Authorities Advisory Committee Notes to FRCP 23(f) ..................................................................... ix 58 Am Jur 2d Nuisances, § 64 (2007) ............................................................................ 14 ALI's Complex Litigation Project (1993) ....................................................................... 36 Bone & Evans, Class Certification and the Substantive Merits, 51 Duke L J 1251 (2002) .......................................................................................... xiii Bordens & Horowitz, Mass Tort Civil Litigation: The Impact of Procedural Changes on Jury Decisions, 73 Judicature 22 (1989) ................................................ xiii Committee Comments to 1983 revision to GCR 1963, 208) .......................................... 23 Dean & Longhofer, Michigan Court Rules Practice (4th ed 2003), § 3501.1, p 9 & fn 2 .................................................................................................. 23 Dean & Longhofer, Michigan Court Rules Practice (4th ed 2003), § 3501.3, p 17 & fn 1................................................................................................. 23 David Friedman, More Justice for Less Money,39 J L & Econ 211 (1996) .................... 36 Manual for Complex Litigation at § 30.11 ..................................................................... 39 Manual for Complex Litigation, § 33.26, n 1056 .......................................................... xiii Manual for Complex Litigation, § 21.222 (4th ed 2004) ................................................. 37 1 Newberg on Class Actions, § 3-13, at 3-76 (3rd ed 1992) ........................................... 30 3 Newberg & Conte, Newberg on Class Actions (4th ed), § 7.26, p 81 .......................... 10 3 Newberg on Class Actions, § 17.11 ............................................................................ 32 3 Newberg on Class Actions, § 17.24 ............................................................................ 31
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Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 Cornell L Rev 941 (1995) .................................................................................... xiii Thomas Sowell, Knowledge and Decisions (1980) ........................................................ 36
Republic seeks leave to appeal from the February 22, 2008 Order Granting Class
Certification and Defining Class, Tab 1. Jurisdiction is appropriate under MCR
7.203(B)(1), which permits this Court to grant leave to appeal from “a judgment or order
of the circuit court…which is not a final judgment appealable of right.” This application
is timely because it is being filed within 21 days of entry of the order. MCR 7.205(A).
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ORDER APPEALED FROM, ALLEGATIONS OF ERROR AND RELIEF SOUGHT
Republic seeks leave to appeal from the February 22, 2008 Order Granting Class
Certification and Defining Class, Tab 1. In this case, involving claims of nuisance and
negligence relating to landfill odors, the trial court certified a class despite the fact that
individualized questions of proximate causation among the thousands of class members
necessarily will predominate over any common issues. Certification on these facts
constitutes an abuse of the class-action process, since it effectively lifts from each
plaintiff the burden of proving that Republic proximately caused harm to him or her by
unreasonably interfering with his or her use and enjoyment of property. Instead, it simply
imposes blanket liability on Republic if and when any of the handful of class
representatives establish a claim.
This is not a case involving an improper and excessive credit-card fee imposed on
the entire body of a company’s cardholders. It is not a case about an unlawful
employment practice, applied uniformly across a company’s entire workforce. It is not
even among the type of “mass tort” actions for which a class may properly be certified,
i.e. where an entire geographic area was ordered to evacuate following a one-time
catastrophic event. Rather, this is a case about odors from a landfill, in which one person
complains that he has been deprived of virtually all use and enjoyment of his property,
while the neighbors on either side might never have noticed any odor, or felt sufficiently
put-upon to pick up the phone and complain. Yet due to the trial court’s certification of a
class, those neighbors – by the hundreds, if not thousands – will be able to piggyback
upon the claims of the first person and recover money damages, despite Republic never
having been the proximate cause of any harm to them.
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The class-action process is meant to allow for the efficient processing of a large
number of valid claims. It is not a substitute for having a valid claim, nor is it a winning
raffle ticket by which those who happen to live near people with provable, actionable
claims get to collect as well, in the complete absence of any evidence that they suffered
any harm proximately caused by Republic. The trial court reversibly erred in certifying
the class, and Republic asks that this Court grant leave and ultimately order that the class
certification be vacated.
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STATEMENT OF QUESTION INVOLVED
I. Did the trial court reversibly err in certifying a class where plaintiffs’ negligence and nuisance claims arising from allegedly offensive landfill odors cannot meet at least three of the five factors required for class certification: commonality/predominance under MCR 3.501(A)(1)(b), typicality under MCR 3.501(A)(1)(c) and superiority under MCR 3.501(A)(1)(e) and MCR 3.501(A)(2)?
The Trial Court Answered: No Plaintiffs-Appellees Answer: No Defendant-Appellant Answers: Yes
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NECESSITY FOR INTERLOCUTORY REVIEW
In some instances, class actions no doubt are “superior to other available methods
of adjudication in promoting the convenient administration of justice.” MCR
3.501(A)(2). But where individualized, highly fact-specific issues from the outset
overwhelm any common ones, and will embroil the litigation in a hopeless tangle of
individualized “mini-trials,” aggregation of claims makes no sense – unless the goal is to
subject the defendant to improper settlement pressure. That is the posture in which this
case now stands, and it is why interlocutory review of this class certification is necessary.
Class-certification rulings by their very nature place extraordinary pressure on
defendants to “buy peace,” regardless of the merits of plaintiffs’ case. Plaintiffs’ own
evidence in this case proves it – the mass of materials they submitted from other class-
actions that their counsel have handled shows plainly that many of their cases settle at the
same time a class is certified, or shortly afterward. Tab 4, Motion, Ex. 11. The federal
judiciary recognized this in 1998 when it amended the federal class-action rule, FRCP 23,
specifically to give appellate courts the discretion to permit interlocutory appeal of
certification. FRCP 23(f). As the Advisory Committee Notes to that provision explain,
An order granting certification…may force a defendant to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability. These concerns can be met at low cost by establishing in the court of appeals a discretionary power to grant interlocutory review in cases that show appeal-worthy certification issues.
Class certification here serves only one purpose: to exert enormous pressure on
Republic to settle, rather than to spend significant resources in hundreds of “mini-trials”
vindicating its meritorious position with regard to proximate causation and the existence
and amount of damages. As a number of federal appellate courts have observed, such
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gambits by class plaintiffs and their counsel – who after all, risk little if anything in
making them – are precisely why class-certification rulings should be given close, and
early, scrutiny. See Szabo v Bridgeport Machines, Inc, 249 F3d 672, 675 (CA 7, 2001)
(class-certification ruling reviewed on interlocutory basis and vacated, in part because
certification turned plaintiff’s $200,000 claim into a $200-million “bet your company”
dispute that “may induce a substantial settlement even if the [plaintiffs’] position is
weak”); Rutstein v Avis Rent-a-Car Sys, Inc, 211 F3d 1228, 1240-41 & n 21 (CA 11,
2000) (where issues are predominantly fact-specific, class certification served no purpose
“except the blackmail value of a class certification that can aid the plaintiffs in coercing
the defendant into a settlement”); Castano v American Tobacco Co, 84 F3d 734, 746 (CA
5, 1996) class certification in “mass tort” actions can skew trial outcomes by making it
more likely both for the defendant to be held liable and for the resulting damage awards
to be significantly higher), citing Manual for Complex Litigation, § 33.26, n 1056 and
Bordens & Horowitz, Mass Tort Civil Litigation: The Impact of Procedural Changes on
Jury Decisions, 73 Judicature 22 (1989). As Castano noted, certification can create
“insurmountable pressure” to settle that in essence amounts to “judicial blackmail.” Id,
citing Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 Cornell L Rev
941, 958 (1995). More recently, scholars have suggested that courts should rigorously
analyze the case at the certification stage so as to screen out frivolous class actions, since
erroneous class certifications impose a higher cost than erroneous denials, in the form of
substantial settlement pressures and litigation-management expenses. Bone & Evans,
Class Certification and the Substantive Merits, 51 Duke L J 1251, 1286-1320 (2002).
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This Court repeatedly has recognized that interlocutory review of class-
certification rulings is warranted in the appropriate circumstances, and in several cases
has granted interlocutory review and stayed proceedings below pending its completion.
Neal v James, 252 Mich App 12; 651 NW2d 181 (2002); CWA Local 4100 v Ameritech
Svc, Inc, unpublished opinion per curiam of the Court of Appeals, issued June 24, 2003
(Docket No. 232886); Coponen v Wolverine Pipe Line Co, Inc (On Rem), unpublished
opinion per curiam of the Court of Appeals, issued September 30, 2004 (Docket No.
235692); Anderson v Indian Village Manor Assocs, LLC, unpublished opinion per curiam
of the Court of Appeals, issued April 30, 2002 (Docket No. 228358),2 Foulks v Usher Oil
Co of Michigan, Docket No. 258997 (November 8, 2004 Order granting leave and
staying case in part).3
This case, too, warrants interlocutory review. The desire of plaintiffs and their
counsel to fashion a plaintiff class into a club with which to intimidate Republic into
settlement, regardless of the merits of their individual cases, should not be allowed to
overpower the fundamental notion that all the requirements of MCR 3.501(A) must be
met before a class is certified. The only way to prevent that abuse is for this Court
immediately to review the order granting class certification.
2 The opinion in Anderson does not reflect a stay of proceedings below pending appellate review. Instead, given the trial court’s failure to discuss or explain its rationale for class certification, this Court in Anderson vacated certification and remanded in lieu of appellate review of the merits. 3 Consistent with MCR 7.215(C)(1), a copy of CWA Local 4100, Coponen (On Rem), Anderson and the other unpublished decisions of this Court that were not attached to a previous filing, are collected at Tab 12 of the appendix of attachments that Republic is filing with this application.
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INTRODUCTION
This case involves claims of negligence and nuisance brought by residents near a Wayne
County landfill operated by defendant Republic Services of Michigan, LLC (“Republic”). For
years a source of contention due to its acceptance of waste from metropolitan Toronto, the
landfill in 2006 stopped accepting such material after entering into an agreement with State and
County regulators. Plaintiffs, however, aware that that agreement was coming, rushed into court
and filed this class-action days ahead of it.
Class-related discovery was taken, and plaintiffs moved to certify the class. They offered
a shifting variety of proposed class definitions and packed the courtroom for the hearing with a
crowd of supporters who commented audibly, gestured at the judge and otherwise tried to hinder
Republic’s presentation and intimidate the court into certifying the class. The court found the
class-certification factors of MCR 3.501(A)(1) met, but required plaintiffs to further define the
class so as to include only those who have actually suffered harm. Five months later, when
plaintiffs returned with yet another class delineation that set membership in a truly arbitrary
fashion, and did nothing to address the court’s earlier directive regarding exclusion of unharmed
individuals, the court nonetheless entered its order certifying the class.
Republic now seeks leave to appeal, because the claims asserted in this lawsuit are so
subjective that they necessarily require person-by-person adjudication of issues of proximate
causation and damages, and are inappropriate for class-wide adjudication.
STATEMENT OF FACTS
I. Plaintiffs’ Allegations of Nuisance and Negligence
Republic operates the Carleton Farms Landfill, a state-licensed Type II sanitary landfill
in Sumpter Township. Opened in 1993, the landfill was owned and operated by another
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company until February 1999, when Republic acquired and began operating it. Plaintiffs are
four individuals who live in the landfill’s vicinity, though significantly, two of them – Mr.
Waldron and Ms. Riddell – purchased their land and/or home only after Republic began
operating the landfill. A third, Ms. Page, no longer lives in the class area.
Republic’s landfill is regulated by the Michigan Department of Environmental Quality
(“MDEQ”) and monitored by Wayne County’s Land & Resource Management Division
(“Wayne County”). See, e.g., 1st Quarter 2005 Waste Stream Report to Wayne County, Ex 1 to
Plaintiffs’ Motion to Certify Class, Tab 4. As part of the regulatory process, Republic, MDEQ,
Wayne County and township officials meet from time to time to discuss and approve various
changes and upgrades to the landfill’s emission controls and operational systems. Some of these
discussions have resulted in Administrative Consent Orders voluntarily agreed to by Republic,
which expressly state that no liability attaches to them. See, e.g. Tab 4, class-certification
motion and its Ex 5, June 2006 Order, p 3, ¶ 1.10. Although plaintiffs in moving for class
certification placed heavy emphasis on the landfill’s acceptance of municipal solid waste, the
fact is that as part of the June 2006 Order, Republic agreed to no longer accept such materials for
disposal as of August 1, 2006. Id, ¶ 2.5. Aware that Republic and MDEQ were working out the
agreement ultimately embodied in the June 2006 Order, plaintiffs rushed to the courthouse and
filed this action on May 26, 2006, a few days before the order was signed. Tab 5, Republic’s
Response to class-certification motion & its Ex D, Traci Brewer Dep. Tr., p 76.4
Plaintiffs assert causes of action for nuisance and negligence based on “noxious odors
and air contaminants which invaded [their] person and property.” Tab 2, Complaint, ¶ 14. They
4 Ms. Brewer acknowledged that she did not entertain the notion of suing Republic until she attended a meeting at which plaintiffs’ counsel spoke to residents. Id.
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allege that the landfill emits a “very strong, foul odor” that they can smell both in and outside
their homes, and which has “prompted ‘thousands’ of residents to complain to the [MDEQ]
and/or other governmental entities.” Id, ¶ 14. According to the complaint, “[m]any residents
reported smelling horrible odors frequently throughout their neighborhood.” Id. They allege
that noxious landfill odors have “physically invaded their person and property [sic],” have
caused or will cause diminution in the market value of plaintiffs’ property and have interfered
with their use and enjoyment of their properties. Id, ¶¶ 20-42. Though plaintiffs later disavowed
such claims, their Complaint specifically seeks recovery for, among other things, “mental
anguish, suffering, anxiety, embarrassment, humiliation, distress, agony and other related
nervous conditions.” Id, ¶ 39.
Republic answered the Complaint, denying liability. Answer, Tab 3. The parties
stipulated to waive the 91-day deadline for moving for class certification and embarked on
discovery relating to the certification issues.
II. Plaintiffs Seek to Certify a Class, Offering a Variety of Class Definitions.
In August 2007 plaintiffs moved to certify a class for injunctive and monetary relief.
Tab 4.5 During discovery, they had first proposed defining the class to include all people and
entities within a circle 10 miles in diameter, nearly 8,000 homes (“First Class Definition”). Tab
5, Republic’s Response & its Ex E, p 6; also Ex F, plaintiffs’ supplemental discovery responses.
(Tellingly, the circle did not have the landfill at its center, but rather was skewed to the north and
east, which maximized the number of residences included). By the time of the class-certification
hearing in September 2007, however, plaintiffs had abandoned the circle in favor of an arbitrarily
5 Because plaintiffs’ filing and its accompanying exhibits comprise a six-inch stack of documents filling three bound volumes, they are not bound into the Appendix of Exhibits that Republic is filing with this application, but rather are being provided to the Court separately.
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drawn rectangular area bounded by I-275 on the west, Sumpter Road on the east, Pennsylvania
and Bemis roads on the north, and Fay, Carleton West and Carleton Rockwood roads on the
south. Id, p 4 (“Second Class Definition”); see also Tab 4, Motion, Ex 10 (map). The
rectangular area contained 4,116 homes. Tab 9 Response & Ex 2; Tab 5 Response & Ex E.
This overlay shows the dramatic shift between the first two class definitions:
Not only did plaintiffs arbitrarily shift the class boundaries between the first and second
versions, but in doing so, they excluded from the proposed class 19 residents who made
regulatory complaints, and 9 clients who retained plaintiffs’ counsel for this lawsuit. Tab 5,
Response, p 11. Further, Republic’s landfill remained far from the geographic center of the
class, under either definition. Tab 5 Response & Ex E, 8/31/07 Affidavit and Spatial
Demographic Analysis of Jeffery J. Smith; Ex G, 7/19/07 Affidavit and Spatial Demographic
Analysis of Jeffery J. Smith.
5
Plaintiffs’ motion proposed that the class consist of any person who resided or owned
property in that area since May 26, 2003. They did not provide an estimated number of persons
included within the Second Class Definition, but noted (erroneously) that “almost 2000
households” had complained to Wayne County or the DEQ regarding the landfill, and that 384
households interested in joining the case had contacted their counsel. Tab 4, Brief at 8; see also
its Ex 9, responses to “Surveys” conducted by Macuga & Liddle, P.C. In addition to their
lawyers’ survey, plaintiffs also attached a variety of other materials, including complaints from a
local legislator, Id & Ex 2, a spreadsheet of complaints to Wayne County, Ex 6, and an inch-
thick stack of various orders, opinions and settlements from other class-actions handled by
plaintiffs’ counsel – most containing little or no discussion shedding light on the propriety of
class certification in this case. Tab 4 & Ex 11.
Republic opposed the motion, Tab 5. It noted that while Wayne County as part of its
regulatory monitoring process provides an 800 “hotline” number for residents to call with odor
complaints – of which each of the four named plaintiffs have been aware since at least 2003 –
complaints from the named plaintiffs have been infrequent and sporadic, at best. For instance, in
the 55-month period from January 2003 though July 2007, plaintiffs complained between once
every 60 days (Brewer) to once every 278 days, or nine months (Page). As Republic observed,
someone complaining about a nuisance such as a barking dog next door once every nine months
hardly would have grounds to file a lawsuit, much less serve as a class representative.
Republic also submitted expert testimony noting that of the 4,116 homes within the
rectangular Second Class Definition, only 11 percent (438) had complained at all about the
landfill in the preceding four-and-a-half years – not the “2,000” plaintiffs had claimed. Tab 5,
Response, p 5, also Ex B, preliminary affidavit of Alan M. Greenberg. Only 5 percent (206
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homes) had complained more than once. Id. Republic noted that the paucity of complaints
among the whole class was significant, given that in a case that necessarily resolved around a
subjective factor – odors – the formal complaints were the only objective evidence of harm. Id.
Republic’s environmental expert opined that the temporal and spatial variation of citizen
complaints showed that residents’ responses to odors were “personal and subjective” and showed
“extreme variation” even among closely situated neighbors – and thus were not a common
attribute throughout the proposed class. Tab 5 & Ex B, pp 3-4.
Two of the class representatives, Waldron and Riddell, were keenly aware of the landfill
when they moved to the area. Indeed, each took it into consideration as a factor in the decision
to move into the area, and even utilized it as a point of negotiation for his or her purchase price.
Tab 5, Response & Ex A, Waldron Dep Tr, p 18; Ex C, Riddell Dep Tr, p 52. Republic noted
that such issues inevitably raise serious questions about each individual suing in a representative
capacity on behalf of others, since each person’s fully informed, deliberate decision to live near
the landfill could impact the legal elements of causation, foreseeability and the scope of
Republic’s duty of care.
Plaintiffs filed a reply, Tab 6, and the trial court held its first hearing on class
certification on September 25, 2007. Tab 7, Transcript. Plaintiffs ensured that the hearing was
held in a circus-like atmosphere, in a courtroom packed with residents who gestured, voiced
audible displeasure with Republic’s presentation and otherwise tried to influence Judge Baxter.
Id, p 17 (“THE COURT: Okay. Let me just tell the audience members, you have lawyers. So
stop gesturing at me responding to [Republic’s] argument”). Republic pointed out that plaintiffs’
Second Class Definition, like their first, was deficient because it made no effort to limit class
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membership only to those for whom there was some objective manifestation of harm, i.e. a
complaint to regulators:
I can imagine that a class could be everybody within a particular geographical boundary who has filed a complaint with Wayne County. That will allow the Court to ascertain whose been injured or harmed and who’s got a complaint. But plaintiffs aren’t proposing that class definition at all. They’re proposing just geographical limits that tell nobody whose been harmed. Who has allegations of harm. Nothing like that at all. [Tab 7, Tr 9/25/07, p 15].
For its part, class counsel tried to salvage certification and show that common issues do
predominate over individualized ones, by abandoning all claims for personal injury – contrary to
the clear wording of the complaint:
The question is the personal injury, and I want to put this on the record, and I want Your Honor to hear it: This case is not seeking personal injury. And I will enter an order with Your Honor’s signature on it to make it sure that defendant understands that. This is not a personal injury case, it is a property damage case. [Tab 7, Tr 9/25/07, pp 23-24 (emphasis added)].
Class counsel asserted that common issues would predominate even with respect to damages
because everyone could use their annual property-tax assessment to measure the diminished
value of their home. Id at 24.
The court made a preliminary determination that the class-certification factors had been
met, though it expressed skepticism about the suitability and manageability of resolving
proximate-cause and damage issues on a classwide basis:
THE COURT: Thousands of mini trials on proximate cause and dimunition [sic] of value in a sinking real estate market. I was just thinking – yes, that would be bad…. [Tab 7, Tr 9/25/07, p 37]. Ultimately, though, the court overlooked those problems – but found that plaintiffs’
Second Class Definition was arbitrarily drawn, and directed them to re-define the class so that
membership would correspond with actually injury:
8
THE COURT: …[W]hat [Republic] wants to avoid is and what ought to be avoided is just alerting people everywhere within the square that there is a class action out there and you can jump on board, because that’s not what you want. You want everybody who bears some objective finding already of some injury to one of their neighbors. [Id at 45].
The court thus found that the class-certification factors were met, for a class that plaintiffs had
yet to define acceptably. Id at 48.
III. Plaintiffs Offer a Third Class Definition That Does Not Address the Court’s “Objective Finding of Injury” Requirement – Yet the Court Certifies the Class Anyway.
Plaintiffs in late November filed a Motion to Define Class, purporting to comply with the
court’s directives from the September hearing. Tab 8 & Ex A. In response, Republic pointed
out that the Third Class Definition consisted simply of color photos containing street names and
nearly illegible “push pins” apparently denoting specific addresses from where complaints had
been made. Tab 9, Response at 4, citing Ex 1 to Tab 8. Indeed, the Third Class Definition
reached new heights of arbitrariness, by excluding one couple who had complained to Wayne
County 72 times since 2003 – the second-most of anyone among the original 8,000 members –
and included people who had never complained, but simply lived on the same street as someone
who once did. Id at 5 & fns 5, 6. Republic noted that plaintiffs had either misunderstood or
deliberately misconstrued the court’s isolated comment at the September hearing, as requiring
the class to consist of anyone who lived on a street from which a complaint had been filed. Tab
9, Response, pp 3-4. Because plaintiffs’ Third Class Definition did not alleviate the problem that
“substantial individualized proofs” would be needed to establish claims, Republic noted, the
class still had not been properly defined for purposes of certification. Id at 5, citing Olden v
LaFarge Corp, 383 F3d 495, 509 (CA 6, 2004).
9
Republic again noted that no attempt had been made to correlate the class definition with
anyone who has actually suffered injury. Instead, plaintiffs had simply taken the people who had
objectively manifested harm (by complaining), mapped out where they live, and then added to
that group, everyone who happened to live on the same street. Id at 7-9. For their part, plaintiffs
again relied heavily on their counsel’s insistence that “we have always done this in the past. I
have never had a problem with this.” Tab 10, Tr 2/13/08, p 6.
Ultimately, despite the fact that the Third Class Definition did exactly what the trial court
in September 2007 had stated should not be done, the court found the class acceptably defined.
It rejected Republic’s argument that plaintiffs were bringing individualized claims that were not
appropriate for classwide adjudication – ignoring its earlier-stated view that it would be “bad” to
hold “thousands of mini-trials” to determine if property values had been negatively impacted by
the landfill, the abysmal Detroit-area real-estate market or something else.” Tab 7, Tr 9/25/07, p
37. The trial court instead made the issue sound simple:
I don’t recollect any individual assertions of injury unique [sic] that had to be personalized as in [Tinman v Blue Cross & Blue Shield of Mich, 264 Mich App 546; 692 NW2d 58 (2004)]. These were all injuries to the real estate value not to the – not that the noxious odors made them sick. They were all talking about what it would do to their property value. [Tab 10, Tr 2/13/08, p 16]. In late February 2008, the court entered its order certifying the class, Tab 1. Republic
now seeks leave to appeal.
STANDARD OF REVIEW
A class-certification ruling is reviewed for clear error. Hamilton v AAA Mich, 248 Mich
App 535; 639 NW2d 837 (2001). A finding is clearly erroneous when, although there is
evidence to support it, this Court is left with a definite and firm conviction that a mistake has
been made. Tinman, 264 Mich App at 555, citing Neal, 252 Mich App at 15. Plaintiffs bear the
10
burden of showing certification to be appropriate, and it is reversible error to certify a class that
does not meet all the requirements of MCR 3.501(A)(1). Tinman, 264 Mich App at 555; Zine v
Chrysler Corp, 236 Mich App 261, 286-87 & n 12; 600 NW2d 384 (1999).
Plaintiffs will argue that class certification should be analyzed primarily on the factual
allegations as pleaded in their complaint. Tab 4, brief, pp 4-5. That is incorrect. While this
Court in Neal stated that the court must accept plaintiffs’ allegations as true and cannot examine
the merits of the case in deciding certification, subsequent cases have made clear that that does
not equate to merely accepting as true the complaint’s allegations. As this Court noted in
Jackson v Wal-Mart Stores, Inc, unpublished per curiam opinion of the Court of Appeals, issued
November 29, 2005 (Docket No. 258498), Tab 12, the standard enunciated in Neal
does not, however, require that the trial court “blindly rely on conclusory allegations” that merely “parrot” the requirements for class certification. See 3 Newberg & Conte, Newberg on Class Actions (4th ed), § 7.26, p 81. To the contrary, class certification should be granted only “if the trial court is satisfied, after a rigorous analysis, that the prerequisites of [class certification] have been satisfied.” Gen Tel Co of the Southwest v Falcon, 457 US 147, 161; 102 S Ct 2364; 72 L Ed 2d 740 (1982). Because “the class determination generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff's cause of action,’ “such analysis may, and often does, require that the court “probe behind the pleadings” and analyze the claims, defenses, relevant facts, and applicable substantive law “before coming to rest on the certification question.” [Slip op at 5-6, citing 457 US at 155, 160 (citation and internal quotation marks omitted); see also Henry v Dow Chemical Co, unpublished per curiam opinion of the Court of Appeals, issued January 24, 2008 (Docket No. 266433), Tab 12 (Kelly, J., dissenting)].
Jackson simply confirms this Court’s practice both pre- and post-Neal, of looking beyond
mere pleading allegations in resolving class certification. See, e.g., Camden v Kaufman, 240
Co v Microsoft Corp, 252 Mich App 580, 603-642; 654 NW2d 572 (2002). It also is consistent
11
with federal practice.6 Szabo v Bridgeport Machines, Inc, 249 F3d 672, 675-676 (CA 7, 2001)
(requirement that plaintiffs’ allegations be taken as true “cannot be found in [FRCP] 23 and has
nothing to recommend it”); Unger v Amedisys, Inc, 401 F3d 316, 320-321 (CA 5, 2005) (while
certification hearings are not to become “mini-trials” on the merits, court must go beyond the
pleadings and must “find,” not merely assume, facts favoring certification). Any attempt by
plaintiffs to repeat to this Court their assertion below that “the only issue before a court on a
motion for class certification is whether plaintiff is asserting a claim which, assuming its merit,
will satisfy the requirements of [the class-action rule],” Tab 4, brief, pp 4-5 (internal quotation
marks and citation omitted), is without merit and should be rejected.
SUMMARY OF ARGUMENT
The trial court has certified a class of thousands of residents to bring claims based on
allegedly offensive odors, claims that by their very essence are subjective, difficult if not
impossible to quantify objectively, and dependent upon individualized proofs as to proximate
causation and damages. Relying on little more than class counsel’s assertions that “we’ve
always done it this way [and] have never had a problem,” and inapposite case law from non-odor
class actions, the trial court has forced this square peg of a case into the round hole of class
certification. Plaintiffs’ claims raise myriad individual issues as to proximate causation,
use/interference with enjoyment of property and the existence and extent of damages that render
this case wholly inappropriate for classwide adjudication. They cannot meet the
commonality/predominance, typicality or superiority requirements of MCR 3.501(A)(1), and
class certification should be vacated.
6 The relative dearth of case law under MCR 3.501 means that federal rulings interpreting FRCP 23 can be helpful. Zine, 236 Mich App at 287 & n 12.
12
ARGUMENT
I. Three of the Five Class-Certification Factors of MCR 3.501(A)(1) Cannot Be Met.
A. No Common Questions of Law or Fact Predominate Over Individual Ones.
Plaintiffs fail the commonality test of MCR 3.501(A)(1)(b), which requires that
“common questions of law or fact...predominate over individual questions.” Zine, 236 Mich App
at 289. Commonality requires that “the issues in the class action that are subject to generalized
proof, and thus applicable to the class as a whole, must predominate over those issues that are
subject only to individualized proof.” Id, quoting Kerr v West Palm Beach, 875 F2d 1546, 1557-
58 (CA 11, 1989).7 A class may not be certified based merely on the existence of any common
question, however, because
at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. A plaintiff seeking class-action certification must be able to demonstrate that all members of the class had a common injury that could be demonstrated with generalized proof, rather than evidence unique to each class member. [Tinman, 264 Mich App at 563-564, quoting Sprague v General Motors Corp, 133 F3d 388, 397 (CA 6, 1998) and A&M Supply Co, 252 Mich App at 600 (emphasis added) (internal quote marks, ellipses and brackets omitted)].
“[T]he question is not whether each member of the class has sustained an identical amount of
damage…but, rather, whether ‘the common issues [that] determine liability predominate.’”
A&M Supply Co, 252 Mich App at 600 (citation omitted). The predominance requirement in fact
is even more stringent than commonality. Tinman, 264 Mich App at 564 (citation omitted). (As
discussed below, “predominance” also makes commonality related to the “unmanageability”
inquiry of MCR 3.501(A)(1)(e) and (2)(c). Zine, 236 Mich App at 289 & n 14).
7 In assessing whether commonality/predominance exists under MCR 3.501(A)(1)(b) it is appropriate to look to cases interpreting FRCP 23(b)(3), which requires that issues subject to generalized proof predominate over those subject to individualized proof. Zine, 236 Mich App at 289, citing Kerr, 875 F2d at 1557-58.
13
Plaintiffs assert two liability theories: common-law nuisance (nuisance in fact) and
negligence. Tab 2, Complaint. To establish that Republic was negligent, they must prove that
1) Republic owed them each a duty; 2) it breached that duty; 3) the breach caused an injury
(proximate cause); and 4) each plaintiff suffered damages. Johnson v Bobbie’s Party Store, 189
Mich App 652, 659; 473 NW2d 796 (1991). As to their claim for nuisance:
A private nuisance consists, in general terms, of an interference with the use and enjoyment of land. A claim for nuisance requires proof that: (1) the plaintiff has property rights that were interfered with; (2) an invasion that results in significant harm; (3) the actor’s conduct was the legal cause of the invasion; and (4) the invasion is either (i) intentional and unreasonable, or (ii) unintentional, but resulted from negligence, recklessness, or ultrahazardous conduct. [Adkins v Thomas Solvent Co, 440 Mich 293, 304; 487 NW2d 715 (1992)].
Plaintiffs in proving their case thus must establish that Republic’s activities have been the
proximate cause of “significant harm,” in that they unreasonably interfered with each person’s
use and enjoyment of his or her property.
1. Odor Cases Are Inherently Subjective and Defy Certification.
The relevant case law – in contrast to the reams of irrelevant and factually inapposite
materials plaintiffs cited below – makes clear that for claims arising from odors, common
questions simply cannot predominate over individualized ones. Not only are odors virtually
impossible to measure objectively, but, as plaintiff Waldron’s own testimony confirms, they are
highly subjective: some people smell something and others might not smell anything at all. Tab
5, Response & Ex A, Waldron Dep Tr, pp 63-64. Further, nuisance claims center on interference
with the use and enjoyment of property – an inherently individualized question. This is why
courts routinely refuse to certify a class in odor cases.
In Georgia-Pacific Corp v Carter, 371 Ark 295; 2007 Ark. LEXIS 530 (Sup Ct Ark,
2007), the Arkansas Supreme Court recently vacated class certification in a case involving
14
neighbors’ nuisance and negligence claims arising from odors, gases, vapors and other noxious
emissions from a wastewater treatment plant. Determining that common issues could not
predominate over individualized ones on such claims, the court held that the lower court had
wrongly focused on the actions of the alleged tortfeasor – when it should have focused on the
fact that each individual in a nuisance suit claims interference with his or her use and enjoyment
of property. 371 Ark at 304, citing 58 Am Jur 2d Nuisances, § 64 (2007). As the court noted:
Here, with respect to their nuisance claim, the property owners alleged that “[t]he chemicals, gasses, vapors and contaminants that are emitted from the defendants' System and migrate to the plaintiffs' persons and properties…and the adverse consequences that they cause to the plaintiffs' persons and property, constitute an unreasonable interference with plaintiffs' use and enjoyment of their property, creates a hazard to the health and welfare of the plaintiffs, and diminishes the utility, value and function of plaintiffs' property for many purposes and has caused plaintiffs injuries and damages.” (Emphasis added.) We hold that it is evident, from the property owners’ claims and from the sheer nature of a claim for private nuisance, that individual issues exist in the instant case as to whether and to what extent Georgia-Pacific’s operation of its waste water treatment system caused consequences to, and constituted an unreasonable interference with, the property owners' use and enjoyment of their property. For this reason, we cannot say that a common question of law or fact predominates over individual issues, and we reverse and remand the circuit court's order granting limited class certification. [371 Ark at 304-305].
The court directly relied on similar cases from two other states, Aprea v Hazeltine Corp,
247 AD2d 564; 669 NYS2d 61 (NY App Div, 1998) (on claims of nuisance, negligence and
trespass brought by residents and property owners injured by alleged discharge of toxic
chemicals, class not certified due to lack of predominance) and Ford v Murphy Oil USA, Inc, 703
So 2d 542 (Sup Ct La 1997) (no predominance in class action brought by thousands of residents
claiming physical and property damages resulting from plant emissions, due to numerous
individualized questions as to causation and damages). These cases show why the trial court
erred in certifying this class: where the claims that plaintiffs brought require them to show
15
unreasonable interference with each person’s use and enjoyment of his or her own property,
common issues simply cannot predominate over individual ones.
Individualized defenses, as well as individualized proximate cause issues, also preclude a
finding of predominance. In Ramik v Darling Int’l, Inc, Case No. 98-40276 (ED Mich, 5/24/99),
Ex T to Tab 5, Response, plaintiffs (represented by class counsel in this case) alleged that
defendant’s rendering plant emitted noxious odors, pollutants and contaminants into their
neighborhood. They sought to certify a class to seek injunctive relief and money damages for
trespass, nuisance and negligence claims. Though the district court found certification proper
under FRCP 23(b)(2) for the limited purpose of injunctive relief, it refused to certify a class for
money damage claims because the “predominance” requirement of FRCP 23(b)(3) could not be
met. Rejecting arguments identical to those of plaintiffs in this case, the court held that on the
issue of proximate causation, common questions would not predominate over individual ones:
It is true that plaintiffs are alleging that the odors that are the source of their complaint emanate from the same source, and it is also true that there are common questions of law and fact related to defendant’s alleged duty of care and alleged breach of that duty of care with respect to the emissions complained of in this case. There are substantial individual issues, however, which bear on the question of whether defendant’s conduct was the proximate cause of the injuries allegedly sustained by each plaintiff. The defenses to liability that will be offered by the defendant will require substantial individual proofs related to the character of the odors at each individual residence. Such proofs will include the location of each individual plaintiff, the source of the alleged emission from defendant (whether from the factory’s smokestacks, from exposed material on the back of trucks driving through the city of Melvindale, or from exposed material on the plant premises), the location of other possible odor-producing facilities in the area, and the specific character of the odor perceived by each individual plaintiff. These questions bear not only on the nature and extent of damages allegedly suffered by each plaintiff, but also on the threshold question of whether defendant is liable to each complaining plaintiff as the proximate cause of his or her injuries. Such individualized proof will render the class action method of adjudication substantially less helpful. [Ramik, Tab 4, slip op at 14-15 (emphasis added)]. 8
8 Though Ramik also held that a class could be certified under FRCP 23(b)(2) for the limited purpose of seeking injunctive relief, MCR 3.501 is not structured so as to permit only such
16
Indisputable data confirm the self-evident notion that odor depends upon a wide range of
variables that differ for everyone. Of the 4,116 homes in plaintiffs’ Second Class Definition,
only 438 complained at all in the past 4½ years – and of that number, 232 complained only once.
Tab 5, Response, p 5, also Ex B, preliminary affidavit of Alan M. Greenberg. Equally revealing,
only 38 homes of the 4,116 homes within Second Class Definition – less than 1 percent – made
odor complaints more than four times in any given year, within that same time frame.9 Even
allowing that the slimmed-down zone as certified consists of 2,000 houses, it still is only one in
five who has complained of the landfill even once – certainly not “all class members.” The
difference is crucial, because in this odor case, had “all” complained, then “all” would have some
objective manifestation of at least possible harm from the landfill. Instead, only a fraction of
people have such evidence – but “all” now have been included in the class as certified.
Plaintiffs try to sidestep the commonality/predominance requirement by simply declaring
that it is met because the “only foreseeable difference between the members of [the] class would
be the amount of damages.” Tab 4, Brief at 14. But that is simply not the case: individualized
issues as to at least one of element going to liability, i.e. proximate causation, also exist. Distinct
variables such as the character of the odor; its source, frequency, duration and intensity; the
distance the odor travels; the time of day and time of year the odor is worst; wind direction, etc,
limited class certifications (cf FRCP 23(b)(1)-(3), permitting certification of various types of claims where the requirements of FRCP 23(a)(1)-(4) are met). In any event there is no need for such injunctive relief here, since, in contrast to Ramik, the MDEQ and Wayne County already maintain oversight authority of the landfill via the Administrative Consent Orders. Tab 4, Motion & Ex. 5. 9 Plaintiffs patently overstated the number of people who actually have made odor complaints to state or county regulators, telling the trial court that “All class members complained of the odors…[a]ll class members have been damaged by the odors,” Tab 7, Tr 9/25/07, pp 32-33. Plainly, that is untrue.
17
all will impact proximate causation. Georgia-Pacific, Ramik and the other cases discussed above
show that no common issue possibly can predominate over them.
Plaintiffs below relied heavily on the Sixth Circuit’s ruling in Olden, which they
described as “certif[ying] odor and fall out” claims. Tab 7, Tr 9/25/07, p 25. But they failed to
mention that in certifying claims relating to both odor and particulate (cement dust), Olden
specifically distinguished Ramik precisely because it involved only odors, a far less tangible –
and measurable – harm than cement dust. Indeed, Olden cited Ramik as precluding class-
certification of odor-only claims:
…in Ramik, it appears the class's primary complaint was noxious odors, which is quite subjective. Ramik, No, 98-40276 at 13 (“With respect to damages, defendant points out that the majority of money damages claimed by plaintiffs relates to subjective complaints . . .”). The court in Ramik noted that whether the plaintiff will be able to establish liability “will require substantial individual proofs related to the character of the odors at each individual residence.” Id. at 15. Unlike Ramik, in the present case, the plaintiffs' complaints are more objective and experts will likely be able to estimate how much cement dust has fallen over each residence and the potential health effects associated with such quantity of dust. [383 F3d at 509 (emphasis added)].
Thus, plaintiffs err in relying on Olden – because the Olden court doubtless would agree with
Republic that in this “quite subjective,” odors-only case, a class for damages cannot be certified.
Plaintiffs also erroneously rely on Sterling v Velsicol Chemical Corp, 855 F2d 1188 (CA
6, 1988) in support of commonality/predominance. Tab 7, Tr 9/25/07, p 25. As a preliminary
matter, Sterling applied the “clear abuse of discretion” standard used by the federal courts in
reviewing class certification, 855 F2d at 1197, a far more deferential standard than the “clear
error” test this Court uses. Of greater import, Sterling involved groundwater contamination,
which is far more objective, and easily quantified and measured, than odors. While Sterling has
been applied to justify class certification in other groundwater cases, see Mejdrech v Met-Coil
18
Sys Corp, 319 F3d 910 (CA 7, 2003); Bentley v Honeywell Int’l, Inc, 223 FRD 471 (SD Ohio,
2004), Republic is unaware of any “odor” case that has similarly relied on Sterling.
Rather than Sterling, this case instead is akin to Ball v Union Carbide Corp, 212 FRD
390 (ED Tenn, 2002), aff’d, 376 F3d 554 (CA 6, 2004), in which the 6th Circuit upheld the
refusal to certify a class of plaintiffs suing over long-term exposure to allegedly toxic emissions
from the Oak Ridge nuclear facility. The Ball court distinguished that case from Sterling
because there was no “single course of conduct” among defendants. 376 F3d at 568-569. It also
noted that where plaintiffs’ claims depended upon each person’s period of residency and levels
of exposure, plaintiffs raised individualized issues. 376 F3d at 568. These plaintiffs have done
precisely the same thing, by asserting that their “residences and yards were physically invaded
by noxious odors and air contaminants.” Tab 2, Complaint, ¶¶ 13-22. Plaintiffs obviously felt
that by simply mouthing the words of the court rule, and tossing down a stack of orders and
opinions in other class-actions their counsel has handled, they may establish that common issues
predominate. Tab 4, Brief, p 7 & fn 2, Ex. 11. In agreeing, however, the trial court reversibly
erred.
At the first hearing, class counsel tried to salvage certification by disavowing the
extensive personal-injury allegations pleaded in the Complaint, Tab 2, ¶ 39. See Tab 7, Tr
9/25/07, pp 23-24. But even crediting that battlefield conversion, plaintiffs’ negligence and
nuisance claims still cannot meet the requirement that common issues predominate over the
multitude of individualized ones regarding proximate causation and damages. Plaintiffs’ own
representative candidly admits, as he must, the subjectivity of the odors at issue in this lawsuit –
the undeniable fact that one person might smell an odor that the person next door, does not. Tab
5, Response & Ex A, Waldron Dep, pp 63-64. Further, despite plaintiffs’ conclusory allegation
19
that Republic’s “facility emits air contaminants that literally blanket the surrounding community
with noxious odors,” Tab 4, Brief, p 2, the data produced by Wayne County in this lawsuit
establishes that the odors are not persistent – and that, for most of the putative class members,
the odors do not even exist. Instead, the best that can be said about the alleged odors is that they
vary with the direction and intensity of the wind, they are highly subjective in nature, and only
occasionally have caused a non-actionable, minor inconvenience. Tab 5 & Ex B, Preliminary
Affidavit of Alan Greenberg. These individual issues differ greatly among the four named
plaintiffs, much less among the thousands of homes in the class.
The trial court’s commonality (and thus predominance) analysis was woefully
perfunctory:
I don’t recollect any individual assertions of injury unique [sic] that had to be personalized as in [Tinman]. These were all injuries to the real estate value not to the – not that the noxious odors made them sick. They were all talking about what it would do to their property value. [Tab 10, Tr 2/13/08, p 16]. That virtually writes commonality/predominance out of MCR 3.501(A). The need for an
individualized analysis of whose use and enjoyment of property was interfered with, is
demonstrated by plaintiffs’ own inconsistent treatment of homes from which odor complaints
have been made. For example, Julie and Hugh Acosta, who live at 34029 Jesica Lane, Tab 5 &
Ex L, Witness List, ¶ 2, have complained to Wayne County 72 times since 2003, the second
highest number of complaints in the County’s database. While the Acostas were included in
early class definitions, they now are no longer members, since plaintiffs ultimately decided that
Jesica Lane should be outside the Third Class Definition. Tab 4, Brief, p 5 & Ex 10; also Tab 5
Response & Ex M, Mapquest directions. Conversely, David and Carol Crosby are members of
the class – which might surprise them, given that they have never called Wayne County to
complain about the landfill. Tab 5 & Exs L & N, Witness List and Mapquest directions. Also,
20
on Mahogany, Whispering Willows, and Waltz, the three streets that tallied more Complaints
than any others, individuals who live literally next to each other have wildly fluctuating
experiences regarding odors. One resident complains regularly, while those surrounding the
regular complainant have experienced nothing whatsoever. Tab 5 & Ex C, Preliminary
Affidavit of Alan Greenberg. The arbitrariness of it all is underscored by plaintiffs’ own aerial
maps/photos submitted with their motion to define the class: the random smattering of yellow
push-pins, indicating houses that have complained about odors, might as well have been
distributed by a blowgun. Tab 8, Motion to Define Class & Ex A.
The extent to which Republic “substantially and unreasonably interfered with Plaintiffs’
use and enjoyment of their property,” Tab 2, Complaint, ¶ 32, undoubtedly will depend on
numerous individual issues, including but not limited to:
• The location of each class member’s home in relation to the landfill (north, south, east, west);
• The distance of each class member’s home from the landfill;
• The impact of the prevailing winds in relation to the location of each class member’s home;
• The period of time each individual class member has lived in proximity to
the landfill; • The purchase price of each individual class member’s home and the
present value of the home; • The extent to which each individual class member’s use and enjoyment of
his/her property has been interfered with, if at all, by Republic; • The extent to which each individual class member’s use and enjoyment of
his/her property has been interfered, in any way, by factors other than those alleged by Plaintiffs in their complaint against Republic.
The list, plainly, could go on and on. Suffice to say that any individual’s ability to meet his/her
respective burden of proof on specific causation, depends on the resolution of the above-
21
referenced case-specific issues: not on any alleged general course of misconduct by Republic.
The result will be hundreds of mini-trials within the class action that will render any potential
benefit of a class action meaningless. This factor alone is enough to defeat class certification:
Where numerous mini-trials are necessary to resolve individual questions of … causation, the benefits of a class action disappear. If individual proof on these issues is necessary, common questions will not predominate. It is entirely appropriate to refuse to certify a…class action where individual proof of [causation] would be necessary, thus creating an unmanageable lawsuit in which numerous "mini-trials" on the issue of [causation] and damages would overwhelm the common issues. [Rockey v Courtesy Motors, Inc, 199 FRD 578, 593 (WD Mich, 2001)].
A wide range of cases recognizes that class actions should not “be used to litigate…mass
torts when each individual claimant might have different damages and each defendant has
different defenses affecting each plaintiff in different ways.” Ball, 212 FRD at 390; see also,
(class decertified in case brought by property owners in two-mile radius of defendant’s lead
smelter; where common issues did not predominate over individualized ones as to liability,
defenses and mitigation); Boughton v Cotter Corp, 65 F3d 823 (CA 10, 1995) (certification
properly denied in CERCLA, negligence, nuisance and trespass claims brought by 500
individuals alleging exposure to persons and property from defendant’s uranium plant, where
common issues did not predominate over individualized ones such as purchasers’ knowledge that
contamination existed, the extent and nature of injuries, degree and length of exposure,
prevalence of contamination and proof of ownership of water rights); City of San Jose v Superior
Court of Santa Clara Co, 12 Cal 3d 447; 525 P2d 701 (Sup Ct Cal, 1974) (class certification
vacated in nuisance case arising from vapor, dust, noise and vibration near airport for lack of
commonality; each claim is dependent on individual factors peculiar to each class member, and
parcel of property); Wojciechowski v Republic Steel Corp, 67 AD2d 830; 413 NYS2d 70 (NY
22
App Div, 1979) (class allegations dismissed in action seeking recovery for discoloration and
depreciation in value of plaintiffs’ homes allegedly caused by one-time dust emission from
defendant’s facility, where each claim would require individual investigation and proof); Reader
v Magma-Superior Copper Co, 110 Ariz 115; 515 P2d 860 (Sup Ct Ariz, 1973) (in class-action
over alleged air pollution, class of up to 700,000 members decertified due lack of commonality
and manageability).
This Court also has recognized that where a case will necessarily be overwhelmed by
individual issues, common issues do not predominate. Williams v Terra Energy, Ltd,
unpublished per curiam opinion of the Court of Appeals, issued July 25, 2006 (Docket No.
260725), Tab 12 (individual lease provisions that vary among class members will affect whether
defendant breached contract, thus barring certification based on lack of commonality); Jackson,
supra, Tab 12 (while allegedly unlawful policy regarding meal and rest breaks was common to
all class members, employer’s liability could only be determined by individualized inquiry into
each employee’s circumstances that could not be circumvented by statistical sampling or general
review of employee records); Peet v The Sweet Onion, Inc, unpublished per curiam opinion of
the Court of Appeals, issued March 17, 2005 (Docket No. 251736), Tab 12 (claims brought by
550 people who became ill after eating catered food failed the commonality/predominance test;
individualized issues regarding illness; cause of illness; existence, severity and duration of
symptoms; and damages predominated over the sole common fact, defendants’ service of
contaminated food at each event).
This is true even in those types of cases where predominance might be established more
readily than in subjective cases such as those involving odors. See, e.g., Hamilton, 248 Mich
App at 551 (reversing certification due to lack of commonality where claims against insurer for
23
failing to pay hospital phone and TV charges hinged on the question of whether the fees were
“reasonably necessary” as defined in the no-fault statute); CWA Local 4100 (certification
reversed in employment-discrimination case; claims all arose from same employee performance-
review program, but given the number of fact-specific inquiries on which each claim would turn,
that link was insufficient to show that common issues predominated over individual ones); Maier
v Community Resource Mgt Co, unpublished per curiam opinion of the Court of Appeals, issued
March 16, 2006 (Docket No. 257958), Tab 12 (in tenant class-action, issue of whether landlord
charges were impermissible arguably were subject to generalized proof, but issue of whether
charges were so excessive as to violate landlord-tenant and consumer-protection acts would
necessarily depend on individualized inquiry into amount of charges assessed, damage done to
each property, etc, precluding commonality/predominance).
2. Plaintiffs’ Authority Does Not Support a Finding That Common Issues Predominate.
Plaintiffs’ outdated, inapplicable case law simply cannot support certification. They rely
heavily on Oakwood Homeowners Ass’n, Inc v Ford Motor Co, 77 Mich App 197; 258 NW2d
475 (1977) as supporting certification “where a plaintiff neighborhood class sought damages
from environmental contamination.” Tab 4, Brief, p 6. But Oakwood was decided at a time
when Michigan’s class-action rule did not contain a requirement that common issues
“predominate” over individualized ones. GCR 1963, 208, was amended in 1983 – six years after
Oakwood – to, among other things, add “a requirement that the common questions predominate
over questions affecting only individual members….” See Dean & Longhofer, Michigan Court
Rules Practice (4th ed 2003), § 3501.1, p 9 & fn 2 (citing Committee Comments to 1983 revision
to GCR 1963, 208); see also, Id at § 3501.3, p 17 & fn 1. Oakwood therefore is outdated
24
jurisprudence and cannot support a commonality/predominance finding, and Republic is aware
of no appellate case since 1983 that has tried to do so.10
Likewise, plaintiffs’ heavy reliance on Sterling and on McQuilken v A & R Dvpmt Corp,
576 F Supp 1023 (ED Pa, 1983), also is misplaced. As discussed above, Sterling is a water
contamination case arising from hazardous chemicals that leaked from a landfill and
contaminated the local water supply. Id at 1192. McQuilken is a construction case, where
plaintiffs alleged that defendant’s activities (“pile-driving, earth moving, concrete pouring and
machinery moving”) caused physical damage to their homes, “including, cracked walls, ceilings
and pipes.” McQuilken, 576 F Supp at 1025-26. But unlike the odors at issue in this case, both
water contamination and structural damage are objectively identifiable and quantifiable, for each
class member – and thus it may be easily determined whether each class member has or has not
been impacted. The Sixth Circuit affirmed class certification in Sterling because “almost
identical evidence would be required to establish the level and duration of chemical
contamination, the causal connection, if any between the plaintiffs’ consumption of the
contaminated water and the type of injuries alleged suffered, and the defendant’s liability.”
10 Though plaintiffs try to salvage Oakwood by noting that it at one point in its discussion it assumed a predominance requirement as part of GCR 208, Tab 6, Reply, p 2 & n 3, they fail to mention this Court’s express refusal to import a predominance requirement into GCR 1963, 208. 77 Mich App at 208-209 (“Since this Court is endowed with neither rulemaking nor legislative authority, we decline to enact ‘by implication’ amended Federal Rule 23”). Thus, Oakwood’s fleeting reference to “predominance” was the very definition of obiter dicta, a comment “made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive).” People v Higuera, 244 Mich App 429, 437; 625 NW2d 444 (2001). Indeed, there is no reason to view Oakwood as even persuasive, given its stated view that “the precise nature of class-action practice in any particular jurisdiction depends, at bottom, on decisions of policy.” 77 Mich App at 209. Michigan courts in the 31 years since Oakwood properly have discarded such fuzzy, outcome-determinative thinking in favor of adherence to the actual text of a statute or court rule. Contrary to being “binding Michigan precedent,” Oakwood has been consigned to the class-action dustbin on the commonality/predominance issue.
25
Sterling, 855 F2d at 1197. In contrast, the McQuilken court recognized that certification should
be denied where “the harm to the various class members took place at different times and under
different circumstances, or because of individual defenses….” 576 F Supp at 1031. McQuilken
stated that the kinds of differences which warrant the denial of class certification involve such
factors as “differing time, location and exposure.” Id.
That is precisely the case here. The evidence necessary to establish the level and duration
of exposure to the alleged odors in this case, and the alleged harm from them, will vary greatly
depending on a host of individualized factors. Republic below pointed out the dozens of
individualized inquiries that will affect each class member’s claim as to liability, and damages:
Phase 1: Liability Trials Under Negligence/Nuisance Claims
1) Does the person have a property right within the proposed geographic boundaries (an element of common law nuisance)?
2) Where is the person’s property located in relation to the landfill (i.e.,
considerations of the impact of distance, wind direction, and wind speed on the odors)?
3) Did the person know about the landfill before he or she purchased or
occupied his or her property (which goes to issues of forseeability and the scope of any duty owed by Republic)?
4) Did the person experience an odor from Republic’s landfill or from
another source, i.e., trucks, other landfills in the area, farms, etc? 5) When did the person first experience or notice the odor (statute of
limitations)? 6) How many times did the person experience an odor from Republic’s
facility (i.e., frequency)? 7) How long did each odor last (issues of causation, the reasonableness of the
interference and significance of the harm)? 8) How persistent was each odor (constant, intermittent, etc) (issues of
causation, the reasonableness of the interference and significance of the harm)?
26
9) How intense was each odor (issues of causation, the reasonableness of the
interference and significance of the harm)? 10) For each odor incident, did the person make a regulatory complaint, and if
so, was it investigated and what were the results 11) Conversely, if the person did not complain, why not? 12) How does each person’s complaints, if any, compare with those of his or
her immediate neighbors (issues of causation, the reasonableness of the interference and significance of the harm)?
13) For each odor, did the odor interfere with the use and enjoyment of the
person’s property? 14) For each odor, did the odor cause the person to suffer significant harm? 15) For each odor, did the odor cause the person to suffer emotional distress? 16) Does the person believe that the frequency, intensity, or duration of the
odors have gotten better, worse, or stayed the same? 17) Does the person’s experience with the odor(s) bear any relationship to one
or more of the following:
• Town hall meetings with Plaintiffs’ Counsel? • MDEQ public hearings? • Media coverage? • Political campaign coverage? • The filing of this lawsuit?
18) Are the person’s complaints limited to odors, or do they include truck traffic, noise and other environmental factors?
19) Did economic factors of Michigan/Metropolitan Detroit cause the
diminution in property value?
Phase 2: Damage Trials
1) Has the person tried to sell the property? 2) Has there been a diminution in the property’s value? 3) When did the diminution in property value begin?
27
4) What monetary amount does the person place on the diminution in property value?
5) What evidence exists regarding the diminution in property value (e.g.
appraisals, attempts to sell, tax assessment changes, etc)? 6) Does the person own or rent? 7) How long has he or she lived on the property? 8) Have there been comparable sales of homes in the neighborhood
demonstrating an increase or decrease in value in the area? 9) How has the person been unable to use and enjoy the property? 10) How many times since May 26, 2003 has the person been unable to use or
enjoy the property? 11) Has the person experienced any emotional/mental anguish or harm prior to
May 26, 2003? 12) Has the person experienced any emotional/mental anguish or harm since
May 26, 2003? 13) What stressful events have occurred in the person’s life prior to May 26,
2003? 14) What stressful events have occurred in the person’s life since May 26,
2003? 15) What medical psychological treatment(s) has the person sought for any
emotional anguish or harm experienced prior to May 26, 2003? 16) What medical psychological treatment(s) has the person sought for any
emotional/mental anguish or harm experienced since May 26, 2003? 17) How does any emotional/mental anguish or harm the person is claiming
manifest itself in his or her daily life (e.g. crying, unable to work, embarrassment, unable to work, unable to socialize, sexual or emotional intimacy)?
18) Has the person suffered economic damages? 19) Did the person ever make Republic aware that he or she was affected by
odors? [Tab 5, Response & Ex O].
28
Plainly there is a vast disparity among individual claimants, which only stands to reason:
depending upon which person one talks to, a given odor might be non-existent, slight, modest,
intermittent, or constant – as shown by plaintiff’s own evidence. Tab 8, Motion to define class
& Ex A, map showing location of homes that have complained. It is precisely these types of
“individual proofs related to the character of the odor at each individual residence,” Olden, 383
F3d at 509, that will overwhelm the only two common issues identified: Republic’s ownership
and operation of the landfill, and the fact that each class member lives on a street where one or
more people have complained.
Plaintiffs’ “mass environmental accident” cases also are inapposite. This is an odor case,
and the difference between odor cases and pollution or mass accident cases is significant when
analyzing class certification. Georgia-Pacific, 371 Ark at 302-304. Odor cases, unlike
environmental accident or pollution cases, involve claims that are highly subjective, and thus
“require substantial individual proofs related to the character of the odor at each individual
residence.” Olden, 383 F3d at 509; see also Ramik.
Coponen v Wolverine Pipe Line Co, Inc, unpublished per curiam opinion of the Court of
Appeals, issued September 20, 2004 (Docket No. 235692), which plaintiffs cite as certifying a
class arising from the release of petroleum products despite a disparity in damages suffered by
class members, Tab 4, Brief at 10, illustrates the difference between an odor case and a “mass
accident” case.11 In Coponen, unlike here, defendant’s liability was not subject to individualized
inquiry: the class consisted of everyone who lived within four-square-mile area from which all
residents were evacuated, by order of the Governor, after defendant’s pipeline ruptured and
spilled gasoline. In other words, everyone in the class area was harmed by the same conduct, at
11 Counsel for Republic also represented the defendant in Coponen.
29
the same time. This Court held that individualized damage claims do not necessarily defeat
certification, and of course, nobody contests that point. Here, though, there not only are
individualized issues as to damages, but also as to proximate causation – unlike Coponen, not
everyone in the geographic area certified by this trial court can show objective proof that they
have been impacted by the landfill – only those complainants denoted by yellow push-pins can.
That is the key distinction that separates this case from Coponen and other single-
catastrophic-incident case – train derailments, spills, etc. In those cases, class members’ claims
arise from the same course of conduct. Here, the absence of complaints for thousands of homes
shows that there were many weeks, months, and even years when Republic’s alleged course of
conduct (emitting odors) never occurred as to those homes. Whatever common questions of law
or fact might exist, such questions do not predominate over the vast number of individual issues
that must be tried in determining proximate causation. Plaintiffs’ idea of bifurcating liability and
damages will only multiply the burden on the court to address the hundreds, if not thousands of
trials which will be required to establish both liability and damages.
This case also stands in marked contrast to Hill v City of Warren (Aft Rem), 276 Mich
App 299; 740 NW2d 706 (2007), where this Court found both commonality and superiority/
manageability met. In Hill, Warren’s citywide tree-planting program from the 1950s eventually
caused damage to homes throughout the city decades later, as the trees grew. The parties
specifically agreed that a common question of defendant’s liability existed, and that the only
individualized issue was how much damage each class member suffered. 276 Mich App at 312-
313. Further, the city’s own correspondence supported a finding that liability predominated. Id.
Given all that, this Court held that the trial court did not clearly err in finding that the common
issue predominated. Id. Here, of course, Republic not only disagrees that a common question of
30
liability exists, but in fact there can be no common resolution of that question: some class
members have complained of odors, some have not, and some might never have even noticed
them. Hill (Aft Rem) does not support the trial court’s ruling.
Finally, the mass of trial-court opinions, orders, etc from other class actions, with which
plaintiffs bombarded the trial court, Tab 4, Motion, p 7 & n 2, also Ex. 11, does nothing to
support certification. Some are trial-court opinions containing little if any discussion of the
relevant facts or case law; others are merely cursory orders. Others are stipulated orders granting
certification, suggesting less-than-vigorous opposition by defendants who likely were more
interested in buying a quick settlement – indeed, in some of them, settlement was
contemporaneous with class certification. None shed any light whatsoever on whether the
plaintiffs in this odor case have met their considerable burden of proving all the requirements of
MCR 3.501(A)(1) – they show merely that counsel is prolific in wielding MCR 3.501 against
corporate defendants. 12
B. For Many of the Same Reasons, Typicality Also Is Lacking MCR 3.501(A)(1)(c)’s “typicality” requirement asks whether the representatives’ claims
or defenses are typical of those of class members. It requires that there be a “‘sufficient
relationship between the injury to the named plaintiff and the conduct affecting the class, so that
the court may properly attribute a collective nature to the challenged conduct.’” In re American
Med Sys, 75 F3d 1069, 1082 (CA 6, 1996), citing 1 Newberg on Class Actions, § 3-13, at 3-76
(3d ed 1992). “The premise of the typicality requirement is simply stated: So goes the claim of
12 The paucity of analysis in the vast majority of those documents evokes the trial court’s failure to conduct a “rigorous analysis” of the class-action requirements in this case. See Tab 7, Tr 9/25/07, (“I don’t have a problem with predominance, commonality, typicality”). Such cursory treatment is highly analogous to the trial-court ruling decried by Judge Kelly in her recent dissent in Henry, Tab 12.
31
the named plaintiff, so goes the claims of the class.” Sprague, 133 F3d at 399. “If proof of the
representatives’ claims would not necessarily prove all the proposed class members’ claims, the
representatives’ claims are not typical of the proposed members’ claims.” Rugambwa v Betten
Motor Sales, Inc, 200 FRD 358, 365 (WD Mich, 2001). To meet the typicality requirement, a
representative “must be part of the class and possess the same interest and suffer the same injury
as the class members.” Falcon, 457 US at 156, 102 S Ct at 2370 (emphasis added). While
individual fact differences among class members will not necessarily defeat certification,
differences that go to the heart of the claim – i.e., whether each plaintiff’s property was subjected
to noxious odors, how frequently, to what intensity and effect, and whether odors interfered with
each person’s use and enjoyment of property – prevent certification due to lack of typicality.
“[W]here the substantive claims depend on individual permutations, the claims of the
named plaintiffs who have the same general complaint against the defendant as a class are not
‘typical’.” Chamberlain v American Tobacco Co, Inc, 1999 US Dist LEXIS 5843, *33-34 (ND
Ohio 1999). In this case, there are individual fact differences as to causation that go to the heart
of liability. Causation is made up of two component parts: “A showing of threshold general
causation, i.e., the risk or harmful effects of the defendants’ conduct, and proof that the
defendants’ wrongful conduct was directly or proximately connected with the injuries
specifically suffered by the named plaintiff or class member.” 3 Newberg on Class Actions, §
17.24. Plaintiffs argue that general causation has been established, i.e., they argue that their
claims arise from the same event that gives rise to all class members’ claims: Republic’s “course
of conduct” in operating the landfill. Tab 4 brief, p 14. However, because each class member’s
claim depends on the individualized factors noted above, proximate causation does not present a
“typical” issue, nor can it.
32
In Jones v Allercare, Inc, 203 FRD 290 (ND Ohio, 2001), a group of plaintiffs claimed
adverse physical reactions and property damage from their use of defendant’s carpet cleaner.
While the representatives’ claims were typical in terms of general causation – all plaintiffs used
the same product – that was not enough to provide typicality for certification purposes:
. . . because the proposed class members’ substantive claims depend on individual permutations, the fact that the named plaintiffs have the same general complaint against the defendant does not render their claims typical. . . .Each plaintiff must individually prove that he or she experienced personal injuries and/or property damage which was proximately caused by the use of defendant’s products. The named plaintiffs’ claims are typical only if what is needed to prove them is the same as what is needed to prove the claims of the proposed class.
203 FRD at 300, citing 3 Newberg on Class Actions, § 17.11. The court noted that the disparate
issues regarding causation for each individual barred a finding of typicality:
. . . the relevant question in this case will not be whether the products have the capacity to cause harm, but whether the products caused harm and to whom. Thus, the real causation issue in this case is individual, not general, in nature. As in [Puerto Rico v M/V Emily S, 158 FRD 9, 14 (D PR, 1994)], proof of causation will depend on individual factors such as the nature of each plaintiff’s exposure and personal susceptibility. In addition, while class certification is not precluded merely because the proximate cause must be proven individually, where plaintiffs’ claims depend on individual facts, the typicality requirement is not met. 203 FRD at 301 (citations omitted). Similarly, in Hurd v Monsanto Co, 164 FRD 234 (SD Ind, 1995), plaintiffs alleged
wrongful exposure to PCBs. The court found that the typicality lacking because each plaintiff
was exposed to different levels of PCBs for different amounts of time in different parts of
employer’s plant and each plaintiff’s susceptibility to injury will vary; thus no proximate cause
inquiry applied equally to each class member. Id. at 238-39.
Here, even assuming that there is a typical general cause to plaintiffs’ claims, i.e.
Republic’s landfill – which is itself debatable, given that this case does not involve a single
instance of discharge such as in Jones and M/V Emily S, but rather allegations of emissions over
33
several years – that would still answer only half the typicality inquiry. Resolving the other half –
that the landfill proximately caused the harm that each plaintiff alleges, and to what extent – is
necessarily a fact- and person-specific inquiry, for which no one person can be “typical” of any
other. Each plaintiff in the present case has burdens of proof that are intensely individual,
including i) the diminution of value of their residence; ii) the loss of use of their property; iii) the
duration and extent of their exposure to the alleged odors; and iv) the existence and degree of
mental anguish/emotional distress. Some plaintiffs complained every couple of months; others,
once a year – and most, never. Tab 7, Tr 9/25/07, p 31.
Republic also will have individualized defenses that will be as many and varied as the
number of class members, and “[a] putative class representative’s claims are not typical if that
representative is subject to unique defenses.” In re Methyl Tertiary Butyl Ether Products
Liability Litigation, 209 FRD 323, 338 (SDNY, 2002). A plaintiff who resides far from the
landfill will have a lack-of-general-causation defense asserted against him or her, that those
living near the landfill may not face. Other individualized defenses will include wind direction,
length of time living near the landfill, the extent to which each plaintiff’s property value is
impacted by the condition of nearby properties, crime or other unique factors (including but not
limited to the depressed local real-estate market), why some people have complained about odors
while other have not, etc. Several class members have statute of limitations problems, given the
Supreme Court’s elimination of the “continuing violation” doctrine in Garg v Macomb Co
Comm Mental Health Svcs, 472 Mich 263, 266; 696 NW2d 646 (2005). 13 And while an obvious
13 Claims of three of the four plaintiffs (Page, Waldron and Brewer) are barred by the 3-year limitations period. Page testified that she has attributed odors to Republic’s facility on and off for the past 14 years. Tab 5, Response & Ex P, Page Dep., pp. 43, 93-94; Ex I, Responses to Interrogatories, p 6. Waldron testified that he has attributed odors to Republic’s facility since the winter of 2002. Id & Ex A, Waldron Dep, pp. 26, 65. Brewer testified that she first smelled
34
component of the class members’ claims is that landfill odors have affected their property values,
one of the representatives, Ms. Page, doesn’t even live in the class area any longer, having
moved out months before the certification hearing. Tab 5, Response & Ex P, Page Dep., p 10;
also Tab 7, Tr 9/25/07, p 31. This means that she does not even have standing to serve as
representative of a class to bring such claims, Zine, 236 Mich App at 273-75, 287, and renders
her atypical of other class members (who live in the zone). As in Jones and Hurd, plaintiffs’
claims all depend upon individual factors, and none are “typical” of any other.
Faced with the insurmountable barriers to a typicality finding, the trial court offered no
analysis whatsoever, saying simply that “I don’t have a problem with predominance,
commonality, typicality.” Tab 7, Tr 9/25/07, p 40. But the court should have had a problem
with them. Proof of one representative’s claim will not prove any other class member’s claim,
which is the test for typicality. Rugambwa, 200 FRD at 365 (citation omitted). The same
individualized issues that defeat commonality, and that necessarily will require hundreds, if not
thousands, of mini trials, also demonstrate that typicality has not been satisfied.
C. Classwide Adjudication Is Not a Superior Method for Resolving Such a Large Number of Necessarily Individualized Claims.
Plaintiffs also must show that a class action “will be the most convenient way to decide
the legal questions presented, making a class action a superior form of action.” A&M Supply Co,
252 Mich App at 583. In determining superiority, courts consider “the practical problems that
odors in the 1990s and they have been stronger in the past 4-5 years. Id & Ex D, Brewer Dep., pp 19-20, 66; Ex J, Responses to Interrogatories, pp 6-7. The only named plaintiff who does not have a limitations problem is Riddell, who testified that she first attributed the alleged odors to Republic in the summer of 2004. As a result, she is only claiming damages for roughly a 2-year period of time, not the 3-year “fixed period of time” alleged by Plaintiffs in their Brief. Id & Ex K, Responses to Interrogatories, p 6. Class counsel’s own signup sheets indicate that 173 of the 393 individuals surveyed will similarly be barred by the statute of limitations. Tab 5, Resp & Ex Q (excerpts of Tab 4, Ex 9).
35
can arise if the class action is allowed to proceed.” Id. Specifically, “the relevant concern…is
whether the issues are so disparate that a class action would be unmanageable.” Id. In this case,
they are.
First, the prosecution of separate actions by individual plaintiffs would not “create a risk
of inconsistent or varying adjudications” because plaintiffs’ claims are based on individual
personal injury and property damage, not equal group injury. See, MCR 3.501(A)(2)(a)(i).
Moreover, adjudication with respect to individual members of the class would not “as a practical
matter be dispositive of the interests of other members” of the proposed class, because plaintiffs’
individualized claims will not estop other potential plaintiffs from litigating the merits of any
claims they may have against Republic. See, MCR 3.501(A)(2)(a)(iii).
Plaintiffs of course recite the mantra that it is more efficient to process one claim than
hundreds or thousands – their counsel, after all, specialize in bringing neighborhood class
actions, and the larger the class, the larger the recovery and the larger their fee. But as Judge
Easterbrook suggested in In the Matter of Bridgestone/Firestone, Inc, 288 F3d 1012, 1020 (CA
7, 2002), the conventional wisdom that a consolidated, omnibus proceeding is preferable to a
large number of individual proceedings, is as well-suited for the ashbin of history as the Marxist
notion of the Five-Year Plan. Because it suppresses the information needed to bring about an
informed market for settlement of claims, the model of centralized case-processing to which
plaintiffs cling, in fact is extremely inefficient:
Efficiency is a vital goal in any legal system – but the vision of “efficiency” underlying this class certification is the model of the central planner. Plaintiffs share the premise of the ALI's Complex Litigation Project (1993), which devotes more than 700 pages to an analysis of means to consolidate litigation as quickly as possible, by which the authors mean, before multiple trials break out. The authors take as given the benefits of that step. Yet the benefits are elusive. The central planning model – one case, one court, one set of rules, one settlement
36
price for all involved – suppresses information that is vital to accurate resolution. [288 F3d at 1019-1020].
Litigating a few cases, in order to set the correct value of all other such claims without
having to litigate those, in fact can be a far more efficient way to handle such diverse claims:
One suit is an all-or-none affair, with high risk even if the parties supply all the information at their disposal. Getting things right the first time would be an accident. Similarly Gosplan or another central planner may hit on the price of wheat, but that would be serendipity. Markets instead use diversified decisionmaking to supply and evaluate information. Thousands of traders affect prices by their purchases and sales over the course of a crop year. This method looks "inefficient" from the planner's perspective, but it produces more information, more accurate prices, and a vibrant, growing economy. See Thomas Sowell, Knowledge and Decisions (1980). When courts think of efficiency, they should think of market models rather than central-planning models. [288 F3d at 1020 (emphasis added)]. As Judge Easterbrook made clear, the one thing that class-wide adjudication is designed
to avoid like the plague – a handful of exemplary individual trials, dismissals and/or settlements
– actually is the thing facilitates the efficient, accurate resolution of a broad body of claims:
…Once a series of decisions or settlements has produced an accurate evaluation of a subset of the claims (say, 1995 Explorers in Arizona equipped with a particular tire specification) the others in that subset can be settled or resolved at an established price. See David Friedman, More Justice for Less Money,39 J L & Econ 211 (1996). [288 F3d at 1020 (citation omitted)]. That analysis shows precisely why this class should not have been certified. The claims
that plaintiffs brought, and on which a class has been certified, involve widely divergent facts
that will necessarily vary greatly from person to person. Plaintiffs argue that the most efficient
way of handling them is through a class-action, but the truth is that the only things that that will
maximize are a) the settlement pressure on Republic, b) the ultimate amount of any settlement
payout and c) the size of class counsel’s fee. But the court rules are to be used “to secure the
just, speedy and economical determination of every action…,” MCR 1.105 – not the speedy
transfer of funds from corporate defendants to class counsel.
37
Far from being a superior method for trial, a class action in this case would be totally
unmanageable and require hundreds of individual mini-trials to establish both causation and
damages for each named member of the proposed class. Edgcumbe v Cessna Aircraft Co, 171
Mich App 573, 575-76; 430 NW2d 788 (1988) (affirming denial of class certification because
“each potential class member may present unique factual and legal issues that would make a
class action lawsuit inconvenient.”); Williams, Tab 12 (in addition to lacking commonality and
typicality, numerous individualized issues as to contract claims and defenses render case
unmanageable as class action, which “would essentially comprise the individual litigation of
each lease owner’s claim rather than the resolution of all class members’ claims as a whole”);
M/V Emily S, 158 FRD at 16 (manageability problems barred finding of superiority in class
action over exposure to fumes from fuel-oil spill); Peet, Tab 12 (in class-action involving 550
claims of food-poisoning at three events catered by defendants, superiority was lacking because
either individual proofs would “bog down the entire action, or the class would settle without any
real consideration for an individual member’s actual damages”); Maier, Tab 12. The class was
improperly certified.
D. The Court’s Certification of a Class That By Definition Includes Speculative Claims of Harm Underscores the Lack of Commonality, Typicality and Superiority.
“Class definition is of critical importance because it identifies the persons 1) entitled to
relief, 2) bound by a final judgment and 3) entitled to notice.” Manual for Complex Litigation, §
21.222 (4th ed 2004). The definition “must be precise, objective and presently ascertainable.”
Id. Johnson v Martin, 2002 US Dist LEXIS 12550 (WD Mich, 2002), described the type of
objective criteria to be used in defining a class:
In every case, class definitions must be tailored to the needs of the particular case….it is important in making class definitions to include descriptions which:
38
(1) specify a particular group that was harmed, during a particular time frame, in a particular location, in a particular way; and (2) facilitate a court’s ability to ascertain its membership in some objective manner. (citations omitted).
Courts regularly refuse to certify classes where factual inquiries and adjudicatory-type
proceedings are needed simply to determine class membership. Newton v Southernwood
fundamentally defective where it called for individualized inquires to determine membership);
Bledsoe v Combs, 2000 US Dist LEXIS 7434 (SD Ind, 2000) (where proposed definition
required court to hear evidence to determine class membership, action was by definition
unmanageable).
Rather than provide an objective test for determining class membership, the plaintiffs
offered, and the trial court adopted, class boundaries that include people who only may have
suffered harm: “any person or entity who resided or owned property between May 26, 2003 to
present located within the following geographical area…” Tab 1. This definition provides no
determination of whether persons within the zone actually have a claim for damages caused by
Republic. Indeed, Judge Baxter at the first hearing pointed out that the Second Class Definition
was improper for that very reason; it was her only basis for not certifying the class then. Tab 7,
Tr 9/25/07, p 40 (“…in defining the class, I’m going to have to associate the definition with the
injury. So you’re going to reframe that”). But rather than comply with that directive, plaintiffs
simply pieced together a series of street names without providing any addresses or any
information whatsoever as to how anyone living on those streets has an injury alleged in this
lawsuit, Tab 8 & Ex 1. Inexplicably, the court then certified that class.
Plaintiffs’ class definition is not reasonably related to the facts, since it does not indicate
who has, and has not, been injured. Instead, it treats all people living on a street where even one
39
complaint was raised, as a class member – even though the vast majority of them never have
complained of an odor. It is plainly overinclusive, and is akin to a court in a class-action against
Master Card, certifying a class consisting of anyone who has ever held any type of credit card –
Visa, Discover, etc. At worst, the defective class will lead to a massively overbroad imposition
of liability on Republic, for people who have never been wronged by the landfill. At a
minimum, it will mislead residents who receive a class certification notice, that they may have a
viable basis for asserting a claim:
Undesirable consequences may follow, when an expansive class formed on insufficient information, is later decertified or redefined. Substantial time and expense may be wasted on discovery with respect to matters affecting persons who are later excluded. Those eliminated form the litigation as a result of decertification or reduction in the size of the class may be confused at best or prejudiced at worse. [Manual for Complex Litigation at § 30.11].
The class definition must be precise and based on objective factors, because where the
class definition is not precise, and objective, the “requirements of commonality, typicality,
predominance and superiority cannot be met.” Burns v First Am Bank, 2006 US Dist LEXIS
92159 at *12 (ND Ill, 2006). The class certified by the court is not precise, objective, or readily
ascertainable.
Plainly, there are numerous residents near the landfill think they have been wronged by
Republic. Just as plainly, and based on plaintiffs own evidence, there are many more who do
not. Rather than pay money to all of them – with a cut off the top for class counsel, of course – it
would be far superior to litigate only those claims brought by people who feel aggrieved enough
to have actually picked up the phone at some point and complained of odor. And as to those
people, a few individual claims should be allowed to proceed through litigation and then – via
summary disposition, trial or settlement – be used to set a value by which remaining claims can
be measured. Bridgestone/Firestone, 288 F3d at 1020.
40
CONCLUSION/RELIEF REQUESTED
Republic asks that this Court grant leave to appeal from the trial court’s February 22,
2008 order granting class certification, and vacate that order as erroneously entered.
Respectfully submitted, BUTZEL LONG By:_____________________________ David H. Oermann (P36696) Miles T. Macik (P63262)
Michael F. Smith (P49472) 1747 Pennsylvania Ave. N.W., Suite 300 Washington, D.C. 20006 (202) 454-2860 Attorneys for Republic Services of
