Gwendolyn Guillory v. Union Pacific Railroad Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 04-1545

GWENDOLYN GUILLORY, ET AL

VERSUS

UNION PACIFIC RAILROAD COMPANY, ET AL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 98-5405
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Billy Howard Ezell,
Judges.

AFFIRMED.

Clayton Arthur Larsh Davis
Lundy & Davis
P. O. Box 3010
Lake Charles, LA 70602-3010
(337) 439-0707
Counsel for Plaintiffs/Respondents:
Gwendolyn Guillory, et al

David Andrew Fraser
Attorney at Law
P. O. Box 4886
Lake Charles, LA 70606
(337) 478-8595
Counsel for Defendants/Applicants:
Union Pacific Railroad Company, A Delaware Corporation
Dallas Stutes

Harry Alston Johnson, III
Steven J. Levine
Patrick O’Hara
Phelps, Dunbar, et al
445 North Boulevard, Suite 701
Baton Rouge, LA 70821-4412
(225) 346-0285
Counsel for Defendants/Applicants:
Dallas Stutes
Union Pacific Railroad Company, A Delaware Corporation

William Boyce Monk
Stockwell, Sievert, et al
P. O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
Counsel for Defendants/Applicants:
PPG Industries, Inc.
Tommy G. Brown
W. J. Peard
A.L. Greathouse
Harry C. Hank

Brenton Lance Chism
Attorney at Law
One Lakeshore Drive, Suite 152
Lake Charles, LA 70629-0104
(337) 312-4476
Counsel for Plaintiffs/Respondents:
Gwendolyn Guillory, et al

Michael J. Sweeney
James R. Miller
Dickie, McCamey and Chilcote
Two PPG Place - Suite 400
Pittsburgh, PA 15222-5402
(412) 281-7272
Counsel for Defendants/Applicants:

Harry C. Hank
A.L. Greathouse
W. J. Peard
Tommy G. Brown
PPG Industries, Inc.

EZELL, JUDGE.

Union Pacific Railroad, Dallas Stutes, PPG Industries, W.J. Peard, A.L.

Greathouse, Harry Hank, and Tommy Brown (hereinafter referred to collectively as

“the Defendants”) appeal a trial court decision setting a class boundary in a class

action lawsuit against them. The Defendants assert that the trial court erred in

defining the geographic boundary, as there was insufficient evidence in the record to

support the definition. We disagree, and for the following reasons, affirm the

decision of the trial court.

This class action lawsuit arose out of a chemical spill that occurred in 1983

near a rail-yard in Lake Charles, Louisiana. This suit, originally filed in 1998, was

instituted by residents of the geographic area near the spill, complaining of

negligence in connection with the remediation of the spill and seeking damages for

lost property value as a result of that negligence. The Plaintiffs were certified as a

class and on June 29, 2004, the trial court held a hearing to establish the geographical

boundaries of the class. At the close of the hearing, the trial court accepted the class

boundary submitted by the Plaintiffs, as delineated by a red oval on a map introduced

at the hearing. The Defendants sought writs to this court, at which time we called the

case up for briefing and argument.

The Defendants assert two assignments of error regarding the geographical

boundary defined by the trial court. They first claim that the trial court erred in

defining the class at all, as the expert had not yet conducted the necessary analysis to

define the boundary. They also claim that the trial court erred in defining the class

as he did, as they claim that the evidence establishes that the contamination would not

spread equally. As these assignments of error both essentially address the sufficiency

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of the evidence that the trial court based its determination upon, we shall deal with

them as one.

The establishment of geographic boundaries of a class must be based on

evidence in the record. Livingston Parish Police Jury v. Acadiana Shipyards, Inc.,

598 So.2d 1177, 1184 (La.App. 1 Cir.), writs denied, 605 So.2d 1122 (1992).

However, a trial court’s determination as to certification is reviewed under the abuse

of discretion standard of review. Banks v. New York Life Ins. Co., 98-551 (La.

7/2/99), 737 So.2d 1275, cert. denied, 528 U.S. 1158, 120 S.Ct. 1168; See also Duhe

v. Texaco, Inc., 99-2002 (La. App. 3 Cir. 2/7/01), 779 So.2d 1070, writ denied, 01-

637 (La. 4/27/01), 791 So.2d 637. In a mass tort case, when the evidence presented

at the class certification hearing is insufficient to support the area defined by the trial

court, the trial court abuses its discretion by establishing such boundaries. The court

in Royal Street Grocery, Inc. v. Entergy New Orleans, Inc., 99-3089, 99-3040, p.10

(La.App. 4 Cir. 1/10/01), 778 So.2d 679, 686, writ denied, 01-374 (La. 4/12/01), 789

So.2d 594, stated: “[a] precise geographic definition of the class is not absolutely

necessary. In light of the purpose of the class action procedure, it is objectively

reasonable for the geographic area to be defined broadly so as to encompass all

potential class members.”

The Defendants cite Lailhengue v. Mobile Oil Co., 94-2114, 94-2115, 94-2116,

(La.App. 4 Cir. 6/7/95), 657 So.2d 542, for the proposition that the Plaintiffs have

failed to supply the credible evidence necessary to support the boundary delineated

by the trial court. We find that case to be distinguishable.

In Lailhengue, the trial court defined the geographic area as all of St. Bernard

Parish and all of Algiers in Orleans Parish, following an explosion and fire at the

Mobile Refinery in Chalmette, Louisiana. However, in that case, there was no

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evidence presented that the fire impacted the area defined by the trial court. There

was no expert testimony presented to indicate the areas which had a probability of

being affected by the fire, and the maps introduced by plaintiffs failed to show that

the claimants resided throughout the parish of St. Bernard or Algiers. Vacating the

trial court’s definition of the class, the appellate court held that establishing

geographic boundaries not supported by the evidence resulted in a class definition

that was too broad and over-inclusive.

This case is distinguishable in that, where there was no evidence or expert

testimony in Lailhengue surrounding the affected area, that evidence exists in the case

at hand in the form of the expert testimony of Dr. John Kilpatrick. He stated that the

areas surrounding the contamination plume would be affected by the stigma of

contamination in such a way as to adversely affect property values. Dr. Kilpatrick

testified that he had gathered academic studies, had begun gathering information from

the tax assessor and the Geographic Information System (GIS), and that he had “taken

that information and applied it in this case to determine the similarities between the

academic studies and the situation which exists” in this case. He stated that he had

utilized the GIS data and computer models to determine, based on his scientific

methods, where the devaluation of the property values has occurred in the area in

question. He stated several times throughout his testimony that he actually applied

his methods to the data he had gathered to support his determination that the

boundary established by the trial court is reasonable. In fact, Dr. Kilpatrick stated

that he believed the boundary to be conservatively small, if anything.

Furthermore, La.Code Civ.P. art. 592 (A)(3)(C) allows a trial court, at any time

before a decision on the merits, to enlarge, restrict, or otherwise redefine the

constituency of the class or the issues to be maintained in the class action. If

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evidence is later produced establishing that the class boundary should indeed be made

smaller than it presently is, the trial court may reduce its size at that time. Finally,

while actual sales or property value data may have been even more convincing in

establishing the class boundary, the time has not yet come for the Plaintiffs to prove

what damages, if any, they have suffered. The record contains sufficient evidence to

establish that the boundary set by the trial court was reasonable and not an abuse of

discretion. Therefore, we find that the boundaries set by the trial court are supported

by the evidence in the record and we, therefore, affirm the geographical definition of

the class.

We hereby affirm the decision of the trial court. Costs of this appeal are

assessed against the Defendants.

AFFIRMED.

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