Faith Brooks v. Union Pacific Railroad Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1427

FAITH BROOKS, ET AL.

VERSUS

UNION PACIFIC RAILROAD COMPANY, ET AL.

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-96-235
HONORABLE ROBERT BRINKMAN, DISTRICT JUDGE

**********

OSWALD A. DECUIR
JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Marc T.
Amy, and Michael G. Sullivan, Judges.

Cooks, J., dissents for the reasons assigned by Judge Saunders.

Saunders, J., dissents and assigns written reasons.

REVERSED AND REMANDED.

Kenneth Alan Goodwin
Attorney at Law
1821 Joseph Street
New Orleans, LA 70115-5003
(504) 895-2286
Counsel for Plaintiffs/Appellees:
Mary Gordon
Faith Brooks
Paula Karam

L.J. Hymel
Michael Reese Davis
Tim P. Hartdegen
Hymel Davis & Petersen, L.L.C.
10602 Coursey Boulevard
Baton Rouge, LA 70816
(225) 298-8118
Counsel for Plaintiffs/Appellees:
Mary Gordon
Faith Brooks
Paula Karam

David A. Fraser
Fraser, Morris & Wheeler, L.L.P.
P. O. Box 4886
Lake Charles, LA 70605
(337) 478-8595
Counsel for Secondary Defendant/Appellant:
Union Pacific Railroad Company

James L. Pate
Ben Mayeaux
Laborde & Neuner
P.O. Drawer 52828
Lafayette, LA 70505-2828
(337) 237-7000
Counsel for Secondary Defendants/Appellants:
Allen Parish Police Jury
Titan Indemnity Company

Randall B. Keiser
Keiser Law Firm, P.L.C.
P.O. Box 12358
Alexandria, LA 71315-2394
(318) 443-6168
Counsel for Defendant/Appellant:
City of Oakdale

DECUIR, Judge.

In April 1995, a terrible rainstorm came upon the City of Oakdale and the

outlying areas. Reports were that anywhere from ten to seventeen inches of rain fell

in a twenty-four hour period. As a result, the area experienced massive flooding.

In April 1996, three purported class representatives filed a “Class Action

Petition for Damages” against Union Pacific Railroad Company, Missouri Pacific

Railroad Company, the State of Louisiana, the City of Oakdale, and Allen Parish.

The State was subsequently dropped as a defendant.

The plaintiffs allege in the broadest sense that inadequate box culverts installed

and maintained by the railroads, combined with inadequate drainage facilities

designed and maintained by the City and Parish, caused the plaintiffs’ property to

flood. The plaintiffs’ experts have opined that the actions of the defendants

combined to cause varying levels of flooding in three affected drainage basins in the

area.

A hearing was held on the class certification, and the trial court certified the

class. The defendants, Union Pacific, the City of Oakdale, and Allen Parish, filed this

suspensive appeal.

ASSIGNMENTS OF ERROR

The defendants assign the following errors by the trial court in certifying this

lawsuit as a class action:

1) The trial court erred in finding that the commonality requirement has been
satisfied.

2) The trial court erred in finding that the typicality requirement has been
satisfied.

3) The trial court erred in finding that the representative parties will fairly and
adequately protect the interests of the class.

4) The trial court erred in finding that the class can be objectively defined.

5) The trial court erred in finding that common questions of law and fact
predominate.

6) The trial court erred in allowing evidence outside the scope of the pleadings
despite timely objection; and

7) The trial court erred in its choice of statutory law to be applied to the
railroad.

STANDARD OF REVIEW

Our brethren on the fifth circuit succinctly stated the standard of review for

class action certifications as follows:

The standard of review for class action certifications is bifurcated.
The factual findings are reviewed under the manifest error/clearly wrong
standard, but the trial court’s judgment on whether or not to certify the
class is reviewed by the abuse of discretion standard. Etter v. Hibernia
Corporation, 06-646 (La.App. 4 Cir. 2/14/07), 952 So.2d 782;
Boudreaux v. State, Dep’t of Transp. and Dev., 96-0137 (La.App. 1 Cir.
2/14/97), 690 So.2d 114, 119. A trial court has wide discretion in
deciding whether or not to certify a class. Daniels v. Witco Corp.,
[03-1478 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, 1014, writs denied,
04-2283, 04-2287 (La. 11/19/04), 888 So.2d 204, 205]; Eastin v.
Entergy, 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835, 838. Any
errors to be made in deciding class action issues should be in favor of
and not against maintenance of the class action, because a class
certification order is subject to modification if later developments during
the course of the trial so require. Johnson v. E.I. Dupont deNemours
and Co., Inc., 98-229 (La.App. 5 Cir. 10/14/98), 721 So.2d 41;
McCastle v. Rollins Environmental Services of Louisiana, Inc., 456
So.2d 612, 620 (La.1984).

When reviewing the trial court’s ruling regarding class
certification, we do not consider whether plaintiffs’ claims state a cause
of action or have substantive merit, or whether plaintiffs will ultimately
prevail on the merits. Schexnayder v. Entergy Louisiana, Inc., 04-636
(La.App. 5 Cir. 3/29/05), 899 So.2d 107, 113, writ denied, 05-1255 (La.
12/9/05), 916 So.2d 1058. Rather, our task is to examine plaintiffs’
legal claims and to determine only whether a class action is the
appropriate procedural device in light of established Louisiana criteria.
Id.

Oubre v. La. Citizens Fair Plan, 07-66, pp. 6-7 (La.App. 5 Cir. 5/29/07), 961 So.2d

504, 508-09, writ denied, 07-1329 (La. 9/28/07), 964 So.2d 363.

2

COMMONALITY

The commonality requirement in La.Code Civ.P. art. 591(A) and the

requirements of La. Code Civ.P. art. 591 (B)(3) that common questions of law or fact

predominate are closely related. Accordingly, we will address them together.

Defendants contend that the trial court erred in finding that there are questions of law

or fact common to the class and that, if common questions are found, they do not

predominate over questions affecting individual members. Defendants argue that

Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La. 9/9/97), 703 So.2d 542, is the

controlling jurisprudence with regard to certification of mass tort actions in

Louisiana. In Ford, plaintiffs brought suit against four petrochemical plants claiming

physical and property damage as a result of the emissions from the four petrochemical

facilities. The court found that because there were four different defendants, each

class member would have to offer different facts to establish that certain defendants’

actions, either individually or in combination, caused them specific damages.

The court concluded that only mass torts “arising from a common cause or

disaster” are appropriate for class certification. Id. at 550. The court reasoned that

in situations involving multiple defendants and multiple causes of injury, the

individualized issues of causation and damages overwhelm any common issues, thus

failing the predominance requirement. Id. at 549-50.

In this case, just as in Ford, multiple defendants are alleged to have

contributed, individually or in combination, to the flooding of the City of Oakdale.

Despite plaintiffs’ arguments to the contrary, the causes of the claimed injuries to

person or property vary from class member to class member. The plaintiffs allege

that the railroads installed inadequate box culverts and that they failed to maintain

them appropriately thereby causing the plaintiffs to sustain damage when their homes

3

flooded. On the other hand, the plaintiffs contend that the City and Parish designed

and maintained an inadequate overall drainage system that caused the plaintiffs’

damages. Moreover, the plaintiffs’ homes are located in three distinct drainage basins

and received varying degrees of damage depending on their individual elevations and

surrounding circumstances. Plaintiffs argue that because the actions of all of the

defendants caused elevated water levels in all of the drainage basins, it is just a matter

of how many inches of water to attribute to each defendant in each area.

We are unconvinced by this argument. Each plaintiff would still need to

establish not only that defendant X contributed a certain amount of water to the area

but also that defendant X’s contribution would have resulted in the alleged damage

even if defendant Y had not been negligent. The answers to these questions could

vary widely depending on the drainage basin, the elevation of the home, and other

individual factors related to each property. Furthermore, despite the fact that the

allegations of negligence on the part of the defendants are in the same class of

actions, the plaintiffs actually allege specific and different acts of negligence on the

part of each defendant. The only common event is the massive rainfall which is not

attributable to the defendants.

To summarize, absent a common cause, it will be necessary for each class

member to provide individualized proof of causation as well as damages. In addition,

the plaintiffs’ theory that the combined effect of all the defendants’ negligent acts can

fulfill the common cause requirement was specifically addressed in Ford. The court

concluded that such theories were inappropriate for class actions. Id. Accordingly,

we find that the plaintiffs failed to establish that common issues predominate, and

therefore, the trial court abused its discretion in granting class certification. We

4

pretermit discussion of the remaining assignments of error as our resolution of the

above issue is dispositive.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and the

case remanded for further proceedings. All costs of these proceedings are taxed to

the plaintiffs-appellees.

REVERSED AND REMANDED.

5

NUMBER 07-1427

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

FAITH BROOKS, ET AL.

VERSUS

UNION PACIFIC RAILROAD COMPANY, ET AL.

Saunders, J., dissents and assigns written reasons.

The majority proposes to reverse the trial court’s certification ruling on

grounds that the class fails to meet the commonality requirement of La.Code Civ.P.

art. 591. I disagree, and thus I must respectfully dissent.

This court previously enunciated the proper standard of review for class

certification rulings in Gunderson v. F.A. Richard & Associates, Inc., 07-331

(La.App. 3 Cir. 2/27/08), 977 So.2d 1128. There, we explained:

In order for class certification to be proper, “the burden is on the
plaintiffs to establish that the statutory criteria for a class certification
are met.” Duhe v. Texaco, Inc., 99-2002, p. 11 (La.App. 3 Cir. 2/7/01),
779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d 637;
see also Clark v. Trus Joist MacMillian, 02-676, 02-512 (La.App. 3 Cir.
12/27/02), 836 So.2d 454, 459, writ denied, 03-275 (La.4/21/03), 841
So.2d 793 (“Plaintiffs must establish by preponderance of the evidence
that each of the elements for class certification has been met.”).
However, “[t]he district court has wide discretion in deciding whether
to certify a class and the decision will not be overturned absent a finding
of manifest error or abuse of discretion.” Roberson v. Town of Pollock,
05-332, p. 9 (La.App. 3 Cir. 11/9/05), 915 So.2d 426, 432, writ denied,
06-213 (La.4/24/06), 926 So.2d 550. Further, “[t]he court should err on
the side of maintaining the class action since the judge may always
modify or amend the class at any time prior to a decision on the merits.”
Clark, 836 So.2d at 459-60.

Id. at 1136-37. Moreover, among the various elements required for class

certification, a relaxed standard exists for commonality: “The test of commonality is

not a demanding one, and requires only that there be at least one issue, the resolution

of which will affect all or a significant number of the putative class members.” Duhe,

779 So.2d at 1078 (emphasis added); see also Sutton Steel & Supply, Inc. v. BellSouth

Mobility, Inc., 03-1536 (La.App. 3 Cir. 6/9/04), 875 So.2d. Thus, unless the appellee

can show that the trial court not only abused its wide discretion but also misapplied

our jurisprudential preference for maintaining class actions by finding that, at the

minimum, at least one issue exists the resolution of which stands to affect a

significant number of putative class members, both the law of class actions and the

facts of the case at bar compel this court to affirm the decision of the trial court.

In reversing the trial court’s class certification, the majority relies solely on

Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La. 9/9/97), 703 So.2d 542, yet the

reasoning behind that decision renders it quite distinct from the question presented

here. In Ford, the supreme court was asked to decide whether certification was

proper where four petrochemical plants allegedly caused physical and property

damage to putative class members as a result of chemical emissions over an extended

period of time. In making that decision, it is important to point out that the Ford

court took its cue from the supreme court’s previous decision in McCastle v. Rollins

Environmental Services of Louisiana, Inc., 456 So.2d 612. There, the supreme court

found certification proper where “there exists as to the totality of the issues a common

nucleus of operative facts such as would justify the allowing of a class action to

proceed.” Id. at 620. In finding that no such common nucleus of operative facts

existed in Ford, then, the court based its decision primarily on the difficulties of

linking specific instances of acts or omissions to the specific damages claimed by the

class members therein:

2

[E]ach class member will necessarily have to offer different facts to
establish that certain defendants’ emissions, either individually or in
combination, caused them specific damages on yet unspecified dates
(which dates may run into the hundreds or even thousands). The
causation issue is even more complicated considering the widely
divergent types of personal, property, and business damages claimed and
considering each plaintiffs’ unique habits, exposures, length of
exposures, medications, medical conditions, employment, and location
of residence or business . . . By the very nature of the claims that have
been made, the length of time involved, and the vast geographical area
in which the class members live, the degree of inconvenience or damage
suffered will vary greatly as to individual plaintiffs.

Id. at 548-49 (emphasis added). Here, by contrast, virtually none of the complications

that precluded Ford from finding a common nucleus of operative facts exist. Rather

than involving the conduct of indeterminate occasions spanning hundreds or

thousands of days, each of the claims sought to be cumulated in the case at bar arose

during the course of a single, two-day-long rainstorm. Rather than a case

characterized by a panoply of alleged damages, the instant case overwhelmingly

involves claims of property damage resulting from the floodwaters linked to that

rainstorm. Rather than forming a broad swath of claimants across a vast geographical

area, the class members here all reside in and around the City of Oakdale in Allen

Parish, Louisiana. Thus, rather than a situation analogous to that existing in Ford, the

case at bar easily satisfies the McCastle test of presenting a common nucleus of

operative fact. Indeed, given the incongruity between the circumstances existing in

Ford and those present here, it is somewhat curious that the majority would place so

much persuasive authority on Ford—particularly in light of the fact-specific nature

of the supreme court’s reasoning in that case. In reality, Ford is of virtually no

moment in the proper resolution of the instant matter.

Furthermore, the principles for which Ford purports to stand are no longer

valid in light of subsequent jurisprudence issuing from the supreme court. The

3

majority employs Ford for the proposition that where, as here, a situation involves

multiple defendants and multiple causes of injury, the individualized issues of

causation and damages will overwhelm any common issues, thus failing the

predominance requirement, yet the supreme court repudiated the notion that variance

in the amount of damages due to class members was sufficient—or even relevant—to

the issue of commonality: “As we have made clear before and repudiate today, the

mere fact that varying degrees of damages may result . . . or that class members must

individually prove their right to recover does not preclude class certification.”

Bartlett v. Browning-Ferris Indus. Chem. Servs., Inc., 99-494 (La. 11/12/99), 759

So.2d 755, 756.

Moreover, this court rejected the notion that alleging multiple potential causes

for an injury necessarily invalidates class certification in West v. G & H Seed Co., 01-

1453 (La.App. 3 Cir. 8/28/02), 832 So.2d 274. There, we were asked whether the

existence of three potential causes of increased mortality rates of crawfish on

crawfish farms was sufficient to defeat commonality for class certification purposes.

In holding that it was not, we reasoned: “A contrary finding would leave us

wondering how any negligence class action suit could ever be certified, since every

negligence analysis requires a determination of causation, including the potential

presence of intervening or superceding causes.”

Taking all of the foregoing into consideration, I must disagree with the

majority’s conclusion that the instant case lacks sufficient commonality to satisfy the

requirements for class certification. Judging from the record, the trial court was well

within its vast discretion in concluding that the liability of either the railroad, the City

of Oakdale, or Allen Parish is an issue which will—at the bare minimum—affect a

4

significant number of the putative class members in the instant case, which is the

applicable threshold for commonality under Duhe, 779 So.2d 1070. Not only does

Ford, 703 So.2d 542, do nothing to frame the trial court’s decision as manifestly

erroneous, but it’s status as the sole authority on which the majority relies marks the

conclusion to reverse as supported by neither the facts of the instant case nor the

applicable law of class action certification. Further, although the majority strongly

suggests that the commonality requirement would be met in this case were the action

to be split along the lines of the drainage basins involved into three separate class

actions, judicial efficiency would almost certainly dictate that those actions be

cumulated had they begun in such a way.

I further note that, although the majority saw fit to reverse after discussion

solely on the issue of commonality—thus pretermitting discussion of the remaining

assignments of error asserted by appellants—a review of the remaining arguments

offered by appellants proves equally unpersuasive in compelling a reversal of the trial

court’s class certification ruling. In all respects, I find certification of the case at bar

to be supported by the facts of the case and the law of class actions. Thus, I dissent.

5