Supreme Court of Georgia Reverses Class Certification in Toxic Tort Case

Class action litigation is not an uncommon topic of conversation among those in legal circles, and although much of attention regarding class actions and other forms of aggregate litigation is focused on federal courts, state courts can and do also serve as forums for these types of actions. However, state courts, like their federal counterparts, have in recent years become increasingly antagonistic toward class adjudication. For instance, in a recent case, Georgia-Pacific Consumer Products, LP v. Ratner, the Supreme Court of Georgia reversed class certification in a toxic tort suit brought against Georgia-Pacific on behalf of a collective of property owners for damage allegedly caused by hydrogen sulfide emissions from a sludge field operated by the company.
The plaintiffs in this case are owners of property in Mallard Pointe, a residential enclave in Effingham County, Georgia. Since 1986, Georgia-Pacific has operated the Savannah River Mill on property that contains more than 100 acres of sludge fields, into which Georgia-Pacific regularly deposits solid waste from the Mill. In their complaint, the named plaintiffs allege that decomposition of the solid waste leads to emission of hydrogen sulfide gas that, they argue, has contaminated their properties. The named plaintiffs claim that the emissions result in noxious odors that impair the use and enjoyment of their properties and diminish the value of their properties. Accordingly, the named plaintiffs brought an action against Georgia-Pacific for nuisance, trespass, and negligence on behalf of themselves and other property owners in Mallard Pointe. The trial court certified the class action, and Georgia-Pacific appealed the class certification. The Georgia Court of Appeals affirmed, with dissents from three judges, the trial court’s grant of class certification. The Supreme Court of Georgia then issued a writ of certiorari to review the class certification decision.

Class actions in Georgia are governed by O.C.G.A. § 9-11-23, which, like its federal analog, F.R.C.P. 23, entails that the named plaintiffs show that four requirements – numerosity, typicality, commonality, and adequacy of representation – are satisfied in order for class certification to be granted. Principally at issue in this case was the commonality requirement. Simply put, to sufficiently prove commonality exists the named plaintiffs must demonstrate that “[t]here are questions of law or fact common to the class.” O.C.G.A. § 9-11-23 (a)(2). Commonality requires more than a recitation of factual and legal issues that may be common to the proposed class. Instead, it must be shown “that the class members have suffered the same injury.” In support of class certification, the plaintiffs in this case contend that all members of the proposed class owned properties that were contaminated with hydrogen sulfide gas. However, the Supreme Court of Georgia found that, although the plaintiffs had pointed to a common injury, they failed to show that this common injury was amenable to resolution on a class-wide basis.
Looking to the record before the trial court, the Supreme Court of Georgia held that the evidence was insufficient to demonstrate commonality, for it did not show that the entire area was contaminated with hydrogen sulfide gas. In particular, the court noted that the plaintiffs had proffered “no scientific evidence of the amounts of gas released from the sludge fields, no evidence of the rate of release, no evidence of the extent to which the amounts released and rates of release varied over time, and no evidence of exactly how the gas would be expected to move through the air upon its release.” Although the plaintiffs did offer some evidence regarding wind direction from the site to the class area, the court nonetheless further noted that there was “no evidence of the rate at which the gas would be expected to dissipate following its release, and there is no evidence of air quality sampling across the class area at any time.” Furthermore, the court stated that anecdotal evidence consisting of several complaints and the testimony of several air conditioning repairmen was also insufficient to show commonality, since that evidence also did not show commonality of injury among all parts of the proposed class, but rather only related to some individuals. Therefore, the court found certification of the class to be an abuse of discretion and reversed the judgment of the Court of Appeals.
While the Supreme Court did caution that its decision should not be read to disallow a finding of commonality in any situation involving an environmental mass tort, its ruling nonetheless further solidifies the heavy burden facing litigants who hope to redress their grievances collectively. Although collective adjudication is not always available, these litigants and others who have been injured in toxic tort situations can still bring their claims individually. Whether or not the claims may be brought individually or collectively, however, someone injured in a possible toxic tort case should enlist the guidance of experienced counsel prior to taking action. The Atlanta negligence attorneys at the Law Office of Terrence R. Bethune have experience with cases involving toxic torts and other forms of negligence and are ready to hear your story. If you would like a free case consultation to discuss your possible case, feel free to contact us.