Mays v. Tenn. Valley Auth.

Full title: LARRY MAYS, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant. GEORGE…

Court: United States District Court, E.D. Tennessee, at Knoxville

Date published: May 10, 2011

274 F.R.D. 614 (E.D. Tenn. 2011)

Opinion

No.: 3:09-CV-06, No.: 3:09-CV-09.

May 10, 2011

Bruce D. Fox, Laura B. Myers, Fox Farley, Clinton, TN, Gordon Ball, Thomas S. Scott, Jr., Ball Scott Law Offices, Knoxville, TN, James J. Pizzirusso, Michael D. Hausfeld, Richard S. Lewis, Hausfeld, LLP, Washington, DC, Gerald F. Easter, Memphis, TN, for Larry Mays.

David B. Byrne, Jere Locke Beasley, John E. Tomlinson, Rhon E. Jones, A. Brantley Fry, Beasley, Allen, Crow, Methvin, Portis Miles, PC, Montgomery, AL, Gary A. Davis, James S. Whitlock, Gary A. Davis Associates, Hot Springs, NC, Mary A. Parker, Stephen C. Crofford, Nashville, TN, William Tom McFarland, Law Office of Tom McFarland, Kingston, TN, for George Chesney, et al.

Edwin W. Small, Elizabeth A. Ward, Brent R. Marquand, David D. Ayliffe, James S. Chase, Peter K. Shea, Tennessee Valley Authority Office of General Counsel, Knoxville, TN, Amor A. Esteban, David R. Erickson, Shook, Hardy Bacon, LLP, San Francisco, CA, John K. Sherk, Mark Anstoetter, Shook, Hardy Bacon, LLP, Kansas City, MO, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS VARLAN, District Judge

This civil action is before the Court on the Report and Recommendation (the "R R") [ Mays v. TVA, Case No. 3:09-CV-06 (" Mays"), Doc. 123; Chesney v. TVA, Case No. 3:09-CV-09 (" Chesney"), Doc. 307], issued by U.S. Magistrate Judge H. Bruce Guyton on January 19, 2011. The R R considers the Mays and Chesney motions for class certification [ Mays, Doc. 110; Chesney, Doc. 242], the responses of defendant Tennessee Valley Authority ("TVA"), the response of defendants WorleyParsons Corporation ("WorleyParsons") and Geosyntec Consultants, Inc. ("Geosyntec") [ Mays, Doc. 115; Chesney, Docs. 276, 280], ¹ plaintiffs' reply briefs, the parties' respective supplemental briefs, and remarks during oral argument before the magistrate judge on December 14, 2010. In the R R, Magistrate Judge Guyton recommended that plaintiffs' motions for class certification be denied. Plaintiffs in both cases filed timely objections to the R R [ Mays, Doc. 124; Chesney, Doc. 311]. TVA filed responses to both objections [ Mays, Doc. 125; Chesney, Doc. 313, 315]. Defendants WorleyParsons and Geosyntec filed a response to the objections of the Chesney plaintiffs [ Chesney, Doc. 314].

1 Defendants WorleyParsons and Geosyntec were dismissed from Chesney on March 22, 2011 by order of the Court [ Chesney, Doc. 318].

The matter is now before this Court on plaintiffs' objections to the R R.

I. Background

The facts underlying the cases involved in this litigation are familiar to the parties and the Court and have been detailed in the R R and in previous opinions entered in these cases. See, e.g., Mays v. TVA, 699 F. Supp. 2d 991 (E.D. Tenn. 2010) (giving a background of TVA's Kingston Fossil Plant (the "KIF plant"), the December 22, 2008 coal ash spill, and this litigation). Mays and Chesney are the only cases in this litigation seeking class certification.

Mays has a single plaintiff, an individual who owns and resides on property located downstream from the KIF plant. The Mays complaint asserts a single claim against TVA for a private nuisance — that the coal ash spill substantially interfered with his use and enjoyment of his property [ Mays, Doc. 124, p. 2]. Mays proposes a class definition based solely on property ownership on the day of the dike failure and ash spill.² Chesney is a consolidated action of what was initially three separate cases, Blanchard, et al. v. TVA, Case No. 3:09-CV-09 (" Blanchard"), Giltnane, et al. v. TVA, Case No. 3:09-CV-14 (" Giltnane"), and Long, et al. v. TVA, et al., Case No. 3:09-CV-114. Defendants WorleyParsons and Geosyntec, who have since been dismissed from Chesney by order of the Court [ See Chesney, Doc. 318], were initially sued only in Long [ Long, Doc. 191]. In the Long pre-consolidation complaint, the plaintiffs asserted claims for personal injury, medical monitoring, and property damage [ Id.]. The Long plaintiffs also proposed sixteen defined classes with subclasses based on geographic boundaries [ Id.]. On February 25, 2010, plaintiffs in Blanchard, Giltnane, and Long moved to consolidate their cases [ Chesney, Doc. 133]. Several Long plaintiffs moved to sever their claims from the proposed consolidated action, but later withdrew the motion [ Long, Docs. 197, 221, 228]. On July 8, 2010, the Court granted the motions to consolidate [ Chesney, Doc. 183]. On July 13, 2010, plaintiffs filed the consolidated class action complaint (the "class action complaint") [ Chesney, Doc. 185].

2 "All persons who own or owned real property abutting or adjoining either the Emory or Clinch Rivers or TVA's shoreline strip of property on those Rivers, downstream from the [KIF plant] on December 22, 2008." [ Mays, Doc. 120, p. 4 n. 8].

The Chesney class action complaint includes nine individual plaintiffs who assert claims against TVA for negligence, gross negligence, nuisance, trespass, strict liability, negligence per se, and injunctive relief [Doc. 185, ¶¶ 178-217].³ The class action complaint does not contain claims for personal injury. All Chesney plaintiffs seek monetary damages and several Chesney plaintiffs seek the establishment of a medical monitoring fund or a supervised medical monitoring program [ Id., ¶ 2]. The Chesney plaintiffs also seek to represent three proposed classes: two property damage classes and a resident class [ Id., ¶ 162].

3 The Chesney plaintiffs also assert claims for negligence, gross negligent, and nuisance against defendants WorleyParsons and Geosyntec [ Chesney, Doc. 318].

The Chesney plaintiffs' motion for class certification, filed on November 15, 2010, contains four new proposed class definitions based on property ownership and geographic location [ Chesney, Doc. 243, pp. 12-13].⁴ The Chesney plaintiffs also filed a proposed class action complaint (the "proposed class action complaint") conforming to their motion for class certification [ Chesney, Doc. 305-1]. The proposed class action complaint contains the four new proposed class definitions and asserts claims for property damage, diminution of the value of real estate, loss of enjoyment of real property, and loss of quality of life [ Id.; see also Docs. 242, 243]. The proposed class action complaint does not contain a claim for medical monitoring.

4 The Chesney plaintiffs propose four classes in the proposed class action complaint: the Emory Waterfront Class, the Inland Class, the Central Waterfront Class, and the Southern Waterfront Class. These classes are defined by reference to the Tennessee, Clinch, and Emory rivers, the Watts Bar Dam, and by geographically-based boundary lines proposed by plaintiffs [ See Chesney, Doc. 243, pp. 12-13; Doc. 243-1, p. 2].

A. Requirements for Class Certification

The Mays and Chesney plaintiffs assert that their respective motions for class certification are distinguishable. Both groups of plaintiffs, however, maintain that a class action is the most practical and efficient mechanism for managing claims related to the dike failure and coal ash spill. Both groups of plaintiffs also maintain that they have satisfied the prerequisites for class certification laid out in Rule 23 of the Federal Rules of Civil Procedure.

The principal purpose of class actions is to achieve efficiency and economy of litigation with respect to the parties and the courts. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159 (1982). The U.S. Supreme Court has observed that, as an exception to the usual rule that litigation is conducted by and on behalf of individual named parties, "[c]lass relief is `peculiarly appropriate' when the `issues involved are common to the class as a whole' and when they `turn on questions of law applicable in the same manner to each member of the class.'" Falcon, 457 U.S. at 155 (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)).

"In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen v. Carlisle Jacquelin, 417 U.S. 156, 178 (1974) (citation omitted). A court must, therefore, conduct a "rigorous analysis" into whether the prerequisites of Rule 23 are indeed satisfied. Falcon, 457 U.S. at 161. This means that a class is not maintainable simply because the complaint repeats the legal requirements of Rule 23. Am. Med. Sys., Inc. (" In re AMS"), 75 F.3d 1069, 1079 (6th Cir. 1996). "`[I]t may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.'" In re AMS, 75 F.3d at 1079 (quoting Falcon, 457 U.S. at 160). Moreover, the party seeking class certification bears the burden of establishing its right to class certification. See Alkire v. Irving, 330 F.3d 802, 820 (6th Cir. 2003); Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976), cert. denied, 429 U.S. 870 (1976). Under Rule 23, a court has "substantial discretion in determining whether to certify a class, as it possesses the inherent power to manage and control its own pending litigation." Reeb v. Ohio Dep't of Rehab Corr., 435 F.3d 639, 643 (6th Cir. 2006).⁵

5 In the Mays objections, plaintiff argues that the magistrate judge erred in his "strict construction" of the requirements of Rule 23(a) and that "it is generally accepted that Rule 23(a) should be liberally construed[.]" [ Mays, Doc. 124, p. 4].
The Court does not agree, finding that the magistrate judge properly engaged in the "rigorous analysis" demanded by the relevant law. See Reeb, 435 F.3d at 644-45 (vacating a class certification for lack of a rigorous analysis).

The party seeking class certification must first meet all four requirements of Rule 23(a) — numerosity, commonality, typicality, and adequacy of representation — before a class can be certified. Fed.R.Civ.P. 23(a); In re AMS, 75 F.3d at 1079. "Once those conditions are satisfied, the party seeking certification must also demonstrate that it falls within at least one of the three subcategories of Rule 23(b). In re AMS, 75 F.3d at 1079 (emphasis in original). Plaintiffs in this case have stated that they do not seek class certification based upon the need for injunctive relief, pursuant to Rule 23(b)(2) [ Chesney, Doc. 307, p. 5 n. 5].

B. The R R

The R R recommends denial of plaintiffs' motions for class certification because plaintiffs have not demonstrated numerosity, typicality, or adequacy of representation [ Chesney, Doc. 307, p. 13]. The R R found that plaintiffs have not shown that these cases meet the criteria required by Rule 23(b)(1) because plaintiffs "have not demonstrated that prosecution of separate actions would result in inconsistent standards for the defendants or be dispositive of the interests of non-parties" and plaintiffs have not met the criteria required by Rule 23(b)(3) because "[t]hey have . . . failed to demonstrate that questions of law or fact common to class members predominate over any questions affecting only individual members." [ Id., p. 6]. According to the magistrate judge:

A class action is not superior to other available methods for fairly and efficiently adjudicating these cases. The claims asserted in these cases are characterized by individual, not common, issues. For just adjudication, these claims require individualized, fact-specific inquiries regarding the existence, nature and extent of each plaintiff's alleged damages, and the causation of that damage.

[ Id.].

Plaintiffs have objected to the magistrate judge's findings regarding the requirements of Rule 23(a). Plaintiffs have also objected to the magistrate judge's finding that plaintiffs failed to meet the criteria required by Rule 23(b)(3).⁶

6 Plaintiffs have not objected to the magistrate judge's finding that plaintiffs failed to meet the criteria required by Rule 23(b)(2). The Court, therefore, does not address this portion of the R R.

To the extent plaintiffs' objections to the R R differ and to the extent the differences between the Mays and Chesney motions and arguments for class certification are pertinent to their objections and the Court's analysis, the Court will note the same. Otherwise, the Court addresses plaintiffs' objections together.⁷

7 TVA and defendants WorleyParsons and Geosyntec have requested that the Court reserve action on plaintiffs' objections until the Court rules on TVA's pending and potentially dispositive motions for summary judgment. Defendants assert that deferring consideration of the objections is appropriate given the late stage of this litigation, the comprehensive factual record, and because defendants' fully briefed motions could moot plaintiffs' requests for class certification.
After carefully considering defendants' requests, the Court respectfully declines to defer consideration of plaintiffs' objections to the R R. Defendants are correct that potentially dispositive motions are pending in these cases. However, given this Court's rulings on two global dispositive motions [ Chesney, Docs. 148, 319], the Court's order dismissing defendants WorleyParsons and Geosyntec [ Chesney, Doc. 318], the extensive briefing of the class certification issue, and the implications class certification has in this litigation — both to these cases and to the other cases pending on the Court's docket regarding the ash spill — the Court concludes that a determination of the class certification issue is appropriate at this time.

II. Standard of Review

III. Analysis

de novo See28 U.S.C. § 63672Smith v. Detroit Fed'n of Teachers, Local 231829 F.2d 13701373Mira v. Marshall 806 F.2d 63663728 U.S.C. § 636 A. Rule 23(a)(1): Numerosity

The magistrate judge found that plaintiffs have not satisfied the numerosity requirement because judicial economy, the geographical dispersion of the class members, the ease of identifying putative class members, and the practicality with which each individual putative class member could bring suit on their own weigh against class certification. The magistrate judge also found that plaintiffs have failed to demonstrate that the proposed class members are "so numerous that joinder of all members [would be] impracticable." [ Chesney, Doc. 307, p. 9 (quoting Fed.R.Civ.P. 23(a)(1))].

Plaintiffs object to these findings and argue that the proposed classes cannot realistically be handled through joinder. Plaintiffs assert that the proposed class definitions encompass class sizes, particularly in environmental mass tort cases, in which the majority of courts have found joinder to be impracticable.⁸ Plaintiffs argue that the relative geographical proximity of potential claimants and the ease of identifying putative class members, factors found by the magistrate judge to weigh against certification, do not overcome the impracticability of joinder. Without class certification, plaintiffs argue, putative class members may not be able to file suit on their own due to financial or personal reasons. Plaintiffs also argue that the number of suits that have been filed under represents the actual number of property owners interested in pursuing claims against TVA, noting that plaintiffs' counsel has identified "over 450 claimants on file, another 300 that have taken the affirmative step of retaining the undersigned counsel, and countless others that have, in all likelihood, retained other counsel or have deferred taking such steps . . . to await the class certification order[.]" [ Chesney, Doc. 311, p. 15]. In addition, plaintiffs argue that the magistrate judge erred in finding that plaintiffs had presented no proof of barriers to filing suit.

8 In the Mays objections, plaintiff asserts that there is a presumption that the numerosity requirement of Rule 23(a)(1) is met when a proposed class contains more than 35 members [ Mays, Doc. 124, p. 12 (citing In re AMS, 75 F.3d at 1076)].
The Court, however, finds no such presumption in In re AMS or within other Sixth Circuit law. See In re AMS, 75 F.3d at 1079 ("There is no strict numerical test for determining impracticability of joinder. . . . Rather, `[t]he numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.'") (citations omitted).

Plaintiffs also contend that the magistrate judge improperly relied on Turnage v. Norfolk S. Corp., 307 F. App'x 918 (6th Cir. 2009), in finding that plaintiffs had not satisfied the numerosity requirement.⁹ Plaintiffs assert that in Turnage, the geographic proximity of the proposed class was more pronounced and the class size was more speculative than in these cases due to the transient nature of the harm in Turnage and the aggressive informal compensation scheme pursued in that case. Plaintiffs assert that these cases are distinguishable from Turnage because of the number of plaintiffs who have already filed suit and the number who have indicated their intent to do so. Given the number of potential claimants, and given the size of the area and number of individuals potentially impacted by the spill, ¹⁰ plaintiffs assert that it is not speculative to find that significant numbers of property owners wish to pursue claims against TVA [ Chesney, Doc. 311, pp. 15-16].¹¹

9 Turnage involved a train derailment and subsequent chemical spill which formed a cloud of toxins over portions of Blount and Knox County and resulted in mandatory and voluntary evacuation orders lasting about two days and covering a three-mile area surrounding the derailment site. Turnage, 307 F. App'x at 919.

10 The Chesney plaintiffs assert that their experts "have determined that roughly 5,000 parcels are in the Classes." [ Chesney, Doc. 311, p. 11].

11 Plaintiffs also assert that TVA and defendants WorleyParsons and Geosyntec did not challenge the proposed class definitions and, in effect, conceded numerosity.
The Court disagrees. Both TVA and defendants WorleyParsons and Geosyntec challenged plaintiffs' class definitions by questioning plaintiffs' evidence regarding the relationship between the alleged coal ash contamination and the proposed class boundaries. Defendants also addressed, in their pleadings, whether this litigation presented an impracticability of joinder [ See Chesney, Doc. 280, pp. 10-15, 44-52; Doc. 301, pp. 1-3]. Further, and even if this requirement of Rule 23(a) had not been challenged, Judge Guyton properly analyzed the numerosity requirement in undertaking the "rigorous analysis" required to determine whether a request for class certification meets the requirements of Rule 23.

Plaintiffs' objections regarding numerosity will be overruled because the Court agrees that joinder in these cases is not impracticable. As noted by Judge Guyton, neither the potential number of claimants, nor the nature of their claims — environmental tort claims based on a single event — establish impracticability of joinder. As stated by the court in Turnage:

While large numbers may, in many cases, indicate impracticability of joinder, numbers are not a perfect predictor. Rather than naming a specific number, Rule 23 places the size of the class in the context of actual impracticability of joinder. When considering whether joinder would be practicable in a given case, courts may consider "ease of identifying members and determining addresses, ease of service on members if joined, [and] geographical dispersion" among other things.

307 F. App'x at 921 (citation omitted). The joinder inquiry, like that required for the entire class certification inquiry, requires a fact-specific analysis that turns on the unique circumstances of each case and not on a single factor, such as the number of potential claimants. Plaintiffs' citations to cases finding joinder impracticable, with little or no analysis beyond noting that the cases involve environmental torts or fewer potential claimants, does not overcome the magistrate judge's specific findings regarding the ease of identifying potential claimants, the close geographical proximity of the potential claimants, and the Court's continuing management of these cases.

Plaintiffs argue, as they did in their briefings before Judge Guyton, that there are a number of properties within the proposed class definitions where coal ash may be present and that these property owners may want to bring claims against TVA. However, beyond providing the Court with estimates of the number of potential claimants, plaintiffs have not shown what makes joinder impracticable given the large number of individual cases that have been filed and are proceeding to trial, the relatively small geographic area in which potential claimants reside or are located, the publicity surrounding the coal ash spill and this litigation, the close proximity of this Court to the location of potential claimants, the number of attorneys willing to take these cases, the Court's familiarity with this litigation, the Court's ability to resolve broad legal questions and pre-trial and discovery issues, and the procedures put in place for moving these cases forward and toward trial. See, e.g., Benefield v. Int'l Paper Co., 270 F.R.D. 640 (M.D. Ala. 2010) (finding joinder not impracticable for a proposed class of 1,500 properties when companion cases, with hundreds of joined individual claims, were proceeding to trial).¹² In addition, plaintiffs' averments that putative class members may be unwilling to come forward due to fear of TVA's power in the community or may be unable to bring suit due to financial reasons [ See Chesney, Doc. 311, p. 23; Doc. 302, pp. 7-8] is not specific evidence showing or indicating that there are indeed barriers to filing suit that would weigh towards a finding of class certification.

12 The Chesney plaintiffs also argue that these cases are distinguishable from Benefield because in that case, the parties agreed to isolate certain claims which allowed the district court to manage the cases despite the large number of plaintiffs. Plaintiffs assert that plaintiffs in these cases have been unable to pursue a similar path, as evidenced by the magistrate judge's order denying a bellwether trial proposal [ Chesney, Doc. 311, p. 11 n. 6 (citing Benefield, 270 F.R.D. 640); see Auchard, et al. v. TVA, 3:09-CV-54 (" Auchard"), Doc. 245].
The Court, however, does not agree that this is an indication that joinder is impracticable and notes that the Court and the parties, throughout this litigation, have both exhibited the ability to move these cases forward and toward trial, consolidate various pre-trial issues and discovery matters, and issue global orders.

Plaintiffs have also misstated Judge Guyton's comparison of Turnage to these cases and have erroneously focused on the finding in Turnage that the proposed class definition was speculative. Upon the Court's review of the R R, the Court finds that the R R does not conclude that the number of potential class members in these cases is speculative. Rather, the R R concludes that plaintiffs' proof is speculative in regard to their argument that potential claimants, beyond the hundreds who have already filed suit, would be precluded from doing so if class certification is denied. The Court also finds this argument regarding plaintiffs being precluded from filing suit to be somewhat incongruous with plaintiffs' argument that individuals who wish to file claims not brought in the proposed class actions may opt out or pursue individual lawsuits. The Court also finds the magistrate judge's limited comparison of Turnage to these cases to be appropriate. The geographic disbursement of the claimants in Turnage is similar to that presented in these cases, and the event that gave rise to the plaintiffs' claims in Turnage is comparable to the dike failure and ash spill in that each was a discrete event with an alleged discernible impact on a finite geographic area. In addition, in these cases, as in Turnage, each event was followed by remedial measures, including purchases of affected property and clean up efforts.

In sum, while plaintiffs argue that they have presented competent evidence that a large number of individuals throughout the proposed classes have been affected by the ash spill due to the presence of ash on their property, plaintiffs have not demonstrated to the Court that joinder of these potential claimants is impracticable, or that potential claimants could not bring suit on their own. Thus, the Court finds that the existence of these potential claimants, even in the numbers cited by plaintiffs, does not make joinder impracticable, and plaintiffs' objections to numerosity are hereby overruled.

B. Rule 23(a)(4): Adequacy of Representation

The magistrate judge also found that plaintiffs had not satisfied the adequacy requirement because the named class representatives have demonstrated a willingness to abandon claims on behalf of themselves and unnamed class members by deciding not to pursue claims for medical monitoring, emotional distress, and personal injury [ Chesney, Doc. 307, pp. 10-12]. Judge Guyton found this to raise claim splitting concerns and adequacy concerns for both the Mays and the Chesney class definitions given the diversity of claims — the claims previously alleged by other plaintiffs in these cases, the claims initially alleged by the named class representatives, and the claims that may yet be asserted by individuals wishing to file suit [ Id., pp. 11-12].¹³ The magistrate judge found that abandoning such claims may preclude unnamed and putative class members from bringing claims other than those raised in the proposed class action complaint [ Id.]. See Isabel v. Velsicol Chem. Corp., No. 04-2297 DV, 2006 WL 1745053, at *7 (W.D. Tenn. June 20, 2006) (finding that where class representatives "do not share the interests of a presumptive subset of the larger class," and do not appear capable or ready to pursue those interests, the proposed class does not fulfill the adequacy requirement).

13 In regard to the proposed claims and class definitions in Chesney, Judge Guyton expressed concern about claim splitting because there is no mention in the Chesney proposed class action complaint of claims for medical monitoring or personal injury, despite several plaintiffs, including named class representatives, having initially asserted such claims [ Chesney, Doc. 307, pp. 10-11]. In regard to Mays, Judge Guyton found plaintiff's sole claim for private nuisance and his class definition based on ownership to pose similar concerns [ Id., pp. 11-12]. Judge Guyton noted that the Mays class definition and proposed claim does not address claims individual plaintiffs and putative class members have previously asserted in the cases comprising this litigation [ Id.].

Plaintiffs argue that Judge Guyton's concern about claim splitting is unsupported by the law and ignores the "prevailing approach" in regard to whether plaintiffs are obligated to pursue all possible claims in a class action. Citing cases from Pennsylvania, Ohio, Illinois, and Oklahoma, plaintiffs argue that the magistrate judge's reliance on Isabel, cited by the magistrate judge in support for his concerns over claim splitting, failed to take into account the requirements of Rule 23(a), relevant precedent, and the factual and procedural distinctions between Isabel and these cases. Plaintiffs assert that there would be no res judicata effect on claims not certified, and plaintiffs in both Mays and Chesney argue that they have made a calculated and reasoned decision to only pursue claims that are appropriate for a class action, likely to succeed, and do not require the individualized presentation of evidence that might defeat the superiority of the class action mechanism.

As an initial matter, the Court notes the disagreement concerning the effect of res judicata on plaintiffs' decisions not to bring personal injury, emotional distress, or medical monitoring claims in the proposed class actions. The positions of TVA and of defendants WorleyParsons and Geosyntec is that the proposed class actions may jeopardize class members' rights to bring such claims in subsequent suits [ Chesney, Doc. 313, p. 12 n. 6]. See Isabel, 2006 WL 1745053, at *7; Cochran v. Oxy Vinyls LP, No. 3:06-CV-364-H, 2008 WL 4146383, at *10 (W.D. Ky. Sept. 2, 2008) (noting that Kentucky law would bar absent class members from later asserting personal injury claims after the proposed class actions representatives abandoned such claims in their request for a class action). Plaintiffs' position, on the other hand, is that there would be no such effect. See Gates v. Rohm Hass, Co., 265 F.R.D. 208, 218 n. 15 (E.D. Pa. 2010) (finding the risk of claim-splitting not fatal to class certification); see id. at n. 15.

After considering these positions, the Court finds that it cannot conclusively determine the res judicata effect of a decision yet to be handed down by this Court. Such a decision is for the forum presented the issue if and when it arises. The Court believes that it can, however, assess the risks of such a determination and weigh it in the Court's consideration of class certification. Accordingly, given the potential effect of res judicata, the application of which may preclude subsequent litigation under certain conditions, along with the application of the single-injury rule, which Tennessee courts appear to follow, see Grimsley v. Kitrrell, No. M2005-02452-COA-R3-CV, 2006 WL 2846298, at *2 (Tenn. Ct. App. Sept. 29, 2006) (discussing the application of the "single injury rule" and the effect of res judicata where a plaintiff attempted to split property and personal injury claims), the Court finds that whether putative class members could bring these claims in a subsequent suit is, at best, undeterminable. See Chambers v. Colonial Pipeline Co., 296 F. Supp. 555, 558 (E.D. Tenn. 1968) (discussing, in an eminent domain case, res judicata in the context of claim splitting and failure to assert claims which were asserted or should have been asserted in a prior action).

Isabel, which involved environmental tort claims for which the plaintiffs sought class certification, raised adequacy concerns for the district court due in part to the class representatives' abandonment of personal injury and emotional distress claims. Isabel, 2006 WL 1745053, at *7. The Court agrees with Judge Guyton that such concerns are present in these cases as well because individual plaintiffs, putative class members, and proposed class representatives have previously asserted personal injury, medical monitoring, and emotional distress claims, and the Court has no evidence that these claimants have willingly abandoned such claims. While several cases cited by plaintiffs find the practical risks of claim splitting to be minimal, the facts of those cases are distinguishable from these cases. Unlike these cases, the cases cited by plaintiffs do not indicate that a significant number of putative class members (including several named class representatives) had previously filed cases asserting claims now abandoned in the proposed class action complaints and engaged in discovery and pretrial briefing regarding those claims. In addition, in Gates, cited by plaintiffs, the district court noted that "it appears that the vast majority of absent class members do not have present physical injuries and that individuals who wished to pursue claims not certified for class action could always exercise their right to sue individually or opt out of the class." 265 F.R.D. at 218. The Court cannot make this same determination regarding the personal injury, emotional distress, or medical monitoring claims of potential claimants in these cases. In addition, while the individual suit and opt out options noted in Gates are equally applicable to these cases, the pursuit of these options detracts from plaintiffs' argument that a class action is the superior mechanism for handling claims relating to the ash spill.

In addition, the Court notes that plaintiffs have not disputed Judge Guyton's description of their proposed claims and what each encompasses, nor do plaintiffs dispute the magistrate judge's description of the evolution of the proposed class action claims in Chesney, or the magistrate judge's observations that other plaintiffs have brought claims and sought damages for claims apart from those proposed in the Mays and the Chesney plaintiffs' motions for class certification [ See, e.g., Auchard, et al. v. TVA, 3:09-CV-54 (" Auchard"), Doc. 203-6, pp. 1-4 (listing the Auchard plaintiffs' computations for pain and suffering damages, emotional distress damages, and loss of spousal consortium damages)]. Plaintiffs argue that they are not obligated to pursue all possible claims and that they have made strategic decisions to pursue only the claims likely to succeed. While this may be true, such strategic decisions do not obviate the magistrate judge's finding that claims once asserted by a number of individual plaintiffs have now been abandoned in the motions for class certification. Further, the Court has no indication that such claims have been willingly abandoned. Given the requirement of Rule 23(a)(4) that the representative parties "fairly and adequately represent the interests of the class[,]" Fed.R.Civ.P. 23(a)(4), and given individual plaintiffs' prior assertions of these claims, the Court is not satisfied that the proposed representatives in Mays or Chesney adequately represent the interests of putative class members.

Last, the Court questions whether the named class representatives will vigorously prosecute the interests of the proposed classes. In TVA's response to plaintiffs' objections, TVA points out that several proposed Chesney class representatives and the proposed class representative in Mays have not spoken with other class representatives or their neighbors regarding the class action proposals, and have not been involved in the investigation of other properties within their respective classes [ Chesney, Doc. 313, pp. 13-14 (citing depositions of proposed class representatives); Mays, Doc. 125, pp. 11-12 (citing the deposition of plaintiff in Mays)]. Such languid pursuit of the proposed class actions does little to convince the Court of the vigorous representation of the interests of the proposed classes by the named class representatives.

On balance, and after weighing all of the above considerations, the Court agrees with Judge Guyton's determination that plaintiffs have not satisfied the adequacy requirement. Plaintiffs' objections to adequacy are therefore overruled.

C. Rule 23(a)(2) (a)(3): Commonality and Typicality

Magistrate Judge Guyton addressed the commonality and typicality requirements together because "the `commonality and typicality requirements of Rule 23(a) tend to merge.'" Ball v. Union Carbide Corp., 385 F.3d 713, 728 (6th Cir. 2004) (quoting Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir. 1998)). The magistrate judge found that the claimants and claims in Mays and Chesney are not sufficiently typical because the claims pursued by individual plaintiffs and putative class members and the claims of the named class representatives are insufficiently aligned [ Chesney, Doc. 307, p. 13]. The magistrate judge also found insufficient alignment between the claims of the named class representatives and the claims these same plaintiffs initially pursued [ Id.].

Plaintiffs object, arguing that their claims are typical of the classes and that the magistrate judge disregarded Sterling v. Velsicol Chemical Corp., in which the Sixth Circuit noted that typicality is satisfied "where the defendant's liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs, [and] a class action may be the best suited vehicle to resolve such a controversy." 855 F.2d 1188, 1197 (6th Cir. 1988).¹⁴ Plaintiffs argue that this is the situation here because all class members' claims arise out of the dike failure and ash spill, the interests of the class representatives and the putative class members are aligned, and all class members share the same experience. Plaintiffs argue that it is of no moment that they have elected not to pursue certain claims as a class because their pursuit of property damage and nuisance claims "align[s] perfectly with the property damage and nuisance claims" of putative class members [ Chesney, Doc. 311, p. 22]. Plaintiffs also assert that to the extent individual class members wish to pursue other claims such as personal injury or medical monitoring claims, those individuals are free to opt out of the class action or sue individually. Plaintiffs argue that such actions would not detract from the principal harm caused by TVA and the claims for which plaintiffs have requested certification.

14 In the Mays objections, plaintiff argues that the magistrate judge disregarded the "presumption" in Sterling that a class should be certified when claims arise from the same event or practice or course of conduct that gave rise to the claims of the other class members [ Mays, Doc. 124, p. 14].
The Court, however, does not read Sterling to state such a presumption — the Sixth Circuit's statement in Sterling is that "a class action may be the best suited vehicle[,]" not that there is a presumption of class certification in such a situation. Sterling, 855 F.2d at 1197 (emphasis added). Sterling supports what the Court has previously noted, that a class action determination is to be made after a rigorous analysis and a careful inquiry into the specific facts of a particular case. Id. ("The district court retains broad discretion . . . and its decision, based upon the particular facts of the case of the case, should not be overturned absent a showing of abuse of discretion.").

In light of what has occurred in these cases since the R R was issued and the objections filed — specifically, the dismissal of defendants WorleyParsons and Geosyntec — the Court notes that the magistrate judge's finding that plaintiffs have not satisfied the typicality requirement was not premised solely on the existence of multiple defendants. Rather, the magistrate judge also relied upon the various types of claims and the distinct types of evidence and theories of causation required for proving plaintiffs' claims [ Chesney, Doc. 307, p. 13].

Thus, the Court has taken the dismissal of defendants WorleyParsons and Geosyntec into consideration and concludes, even with the dismissal of these defendants, that the magistrate judge appropriately determined that plaintiffs' claims are not sufficiently typical. Plaintiffs' interests are insufficiently aligned because the proposed class representatives assert claims different from the claims pursued by individual plaintiffs and potential claims members [ see Chesney, Doc. 280, pp. 38-40].¹⁵ More importantly, plaintiffs' claims are not typical because the analysis and ultimate determination of each plaintiff's claim will turn primarily on individualized inquiries into how the coal ash affected each plaintiff's specific property interest. Given the unique location of each plaintiff's individual property, and the unique situation of each plaintiff and his or her use and enjoyment of the property, individualized inquiries will apply to both the property damage and the nuisance claims. There is no "typical" proof for how coal ash came to be on each unique piece of property, no "typical" proof for whether the coal ash affected or damaged each property, and no "typical" proof for how each individual property owner used or enjoyed his or her property. As noted in In re AMS, when a common cause of injury cannot be taken as a given, "the factual and legal issues do differ dramatically from individual to individual." 75 F.3d at 1084 (reversing a Rule 23(b)(3) class certification in actions involving claims of liability for defective medical device products, since "no single proximate cause applies equally to each potential class member"). In these cases, while there may be common causes of the dike failure, the questions of specific, proximate causation and damages are individual inquiries, and the Court agrees with the magistrate judge that such inquiries will predominate.

15 In TVA's reply brief to the Chesney plaintiffs' motion for class certification, TVA noted the variety of claims asserted in this litigation:

For instance, some putative members of the proposed Inland Class want to pursue claims for personal injury ( e.g., Auchard plaintiff Alexic Bryson), medical monitoring ( e.g., Auchard plaintiff Richard Snow), emotional distress ( e.g., Smith plaintiff Julia Kyker, and/or inverse condemnation ( e.g., Scofield plaintiffs Craig and Holly Hurley). . . . The same desire holds true for putative class members living in the other three proposed class areas. Indeed, even named Plaintiffs Chesney, Maines, Cordell, and Simon filed their lawsuit as a proposed medical monitoring class action, and confirmed their desire for medical monitoring at their recent depositions. Plaintiff Burnum similarly testified at deposition that she wanted medical monitoring for her family.

[ Chesney Doc. 280, pp. 39-40].

While plaintiffs point to the individual suit or opt-out mechanisms to cure any issue that may arise when individuals wish to pursue claims or "marginal theories" not brought as a class, the Court finds that these mechanisms would not solve the problems identified by Judge Guyton and noted above in regard to the individualized forms of causation and proof required for plaintiffs' claims for which they are seeking class certification. Moreover, the Court does not find a situation in which individual claimants pursuing separate suits, either in addition to claims brought in the proposed class action or in suits pursued by plaintiffs with no part in the class action, weigh in favor of plaintiffs' argument that a class action is the superior mechanism for purposes of judicial economy and efficiency.

Accordingly, plaintiffs' objections to commonality and typicality are hereby overruled.

D. Rule 23(b)(3): Predominance and Superiority

Judge Guyton also found that individualized questions in these cases predominate over common issues. The magistrate judge noted that even the threshold questions of class membership for the Mays and Chesney proposed class definitions will require the Court's consideration of individualized factors and demand an individualized inquiry into specific property interests [ Chesney, Doc. 307, p. 15]. Judge Guyton noted that the viability of each plaintiff's claim — including whether there was coal ash present on a specific property, the amount of coal ash on the property, the source of the coal ash and what caused it to be on the property, the extent to which the ash may or may not have caused the property to decrease in value, and the amount of damages owed to each individual plaintiff — will require individualized inquiries which will predominate over questions of law or fact common to all class members [ Id., pp. 15-17]. The magistrate judge also found that a class action was not the superior mechanism to resolve the claims relating to the ash spill because this Court has demonstrated the ability to adjudicate significant preliminary issues, resolved complicated issues through the entry of global orders, and implemented procedures for efficient case preparation.

Plaintiffs object, arguing that liability determinations and defendants' course of conduct leading up to the dike failure and ash spill are common issues which predominate over the individualized questions noted by the magistrate judge. Plaintiffs assert that their claims involve a common causation inquiry and seek common forms of harm which will require common forms of proof. Plaintiffs argue that the magistrate judge's determination misapprehends the Rule 23(b)(3) inquiry because it requires that all plaintiffs suffer identical harm even when individualized damages could be adequately determined by a mass damage appraisal or in later individualized proceedings without affecting the common, class-wide liability determinations made through a class action mechanism. Plaintiffs urge the Court to consider the statements pertaining to class certification in Olden v. LaFarge Corp., 383 F.3d 495 (6th Cir. 2004), and in Sterling, and to find that Benefield, cited favorably by the magistrate judge, is distinguishable. Last, plaintiffs argue that the magistrate judge made impermissible merits determinations throughout the R R, such as when he stated that property ownership alone does not entail a legal claim against TVA because the presence of coal ash is not determinative of class members' right to recover.

The Court agrees with the magistrate judge that individualized questions will predominate over the common issues in this litigation. Many of the common issues identified by plaintiffs — issues dealing with proof of past conduct by TVA and others and issues regarding design, construction, and operations at the KIF plant — have been previously determined and narrowed in the Court's orders on the application of the discretionary function doctrine [ Chesney, Doc. 148] and the nondiscretionary conduct issue [ Chesney, Doc. 319]. These orders also dealt with issues of causation common to all plaintiffs. Indeed, while several common issues have yet to be determined, including those addressed in TVA's pending motion for summary judgment and whether specific nondiscretionary conduct by TVA caused the dike failure, individualized inquiries remain. Moreover, the Court agrees with Judge Guyton that these individualized inquiries, such as whether coal ash is or was present on specific property, the proximate causation inquiry as to whether nondiscretionary conduct for which TVA can be sued caused coal ash to be present on a specific property, how each plaintiff's property interest and use and enjoyment of property has been impacted by the coal ash, and the extent of each plaintiff's damages, will predominate.¹⁶

16 As TVA points out in its response to the Chesney plaintiffs' objections, these common issues of causation may be narrowed or resolved prior to any trial, may be resolved in a consolidated trial, or may be resolved in the first case set for trial [ Chesney, Doc. 313, pp. 18-19]. The Court agrees, and finds that similar procedures of the type identified by TVA will properly address plaintiffs' concern about unjust or inefficient repetition.

Plaintiffs argue that Benefield is distinguishable because plaintiffs have focused exclusively on the diminution in value of the affected properties and because their claims arise from common forms of harm, while plaintiffs in Benefield sought other categories of damages not contemplated by the plaintiffs' proposed mass appraisal analysis. Plaintiffs also argue that the proposed classes in Benefield required the district court to make improper individualized merits determinations as to whether a particular individual met the class definition.

Plaintiffs have misconstrued the magistrate judge's comparison of Benefield to these cases. Judge Guyton did not focus on Benefield's discussion of the categories of damages sought by the plaintiffs or the initial, individualized merits determinations the district court found necessary to determine whether an individual claimant would fall within a proposed class (although, as previously noted, the magistrate judge found this too was a problem with plaintiffs' proposed class definitions). Rather, in comparing these cases to Benefield, Judge Guyton noted the district court's observation that by presenting evidence that property in the contaminated area has been damaged and can be damaged, such "does not purport to establish on a class-wide basis that all residential property owners in the class area suffered injury to property." 270 F.R.D. at 651. The district court noted that the plaintiffs had provided evidence that contaminated substances released by the defendant could cause property damage and did in fact cause property damages to some class members. Id. The district court noted, however, that even in light of this evidence, "individualized determinations will have to be made of whether each class member has suffered injury and whether that injury was proximately caused by the Defendant's actions." Id. Given the Court's previous rulings and the nature of plaintiffs' claims, the Court agrees with Judge Guyton that such individualized inquiries — how the coal ash got onto a specific property, the extent to which a specific property has been damaged, and the effect of the coal ash on the value of the property and the plaintiff's use and enjoyment of said property — are the predominate issues yet to be determined.

The Court also disagrees with plaintiffs' contention that Judge Guyton ignored Sixth Circuit precedent in Olden and Sterling in regard to environmental cases seeking class action when the claims at issue arise from a single event or course of conduct [ See, e.g., Chesney, Doc. 307, pp. 35-36]. Closer scrutiny of the cases cited by plaintiffs indicates that these cases do not dictate a particular outcome and that the language of the cases is permissive rather than mandatory. Olden suggests that certification is within the discretion of the district court when the existence of common questions "would likely allow the court to determine liability (including causation) for the class as a whole." 383 F.3d at 508. As noted above, Judge Guyton determined that while common issues of causation do exist in these cases, these common issues do not predominate over the individual issues of causation. The Sixth Circuit pointed out in Sterling that when "no single proximate cause equally applies to each potential class member and each defendant, and individual issues outnumber common issues, the district court should properly question the appropriateness of a class action for resolving the controversy." 855 F.2d at 1197. Here, common issues of causation, such as what nondiscretionary conduct by TVA, if any, caused the dike failure and ash spill, do not predominate over the individualized issues of whether coal ash is or was present on each specific property, whether the presence of the coal ash on the specific property can be traced to TVA's nondiscretionary conduct, whether the coal ash has damaged each specific property, whether and how the coal ash affects the property owner's use and enjoyment of said property, and the amount of damages, if any, to each property and to each plaintiff.

The Court is aware that "if liability is found, the issue of damages can be decided by a special master or by another method." Olden, 383 F.3d at 509. The Court, however, is of the opinion that an individualized determination of damages is not the only individualized inquiry that will be required. Plaintiffs' proposed solutions of a mass damages appraisal or individualized damages proceedings would not resolve the individualized issues dealing with specific proximate causation and whether each individual plaintiff and his or her specific property and interest in property was harmed by TVA's nondiscretionary conduct.

Plaintiffs have also argued that the magistrate judge made improper evaluations and determinations on the merits of plaintiffs' existing and potential claims. The Court disagrees. The magistrate judge's analysis of class certification required a rigorous analysis of the requirements of Rule 23, and as both the Supreme Court and the Sixth Circuit have observed, such an analysis may make it necessary for a court to probe behind the pleadings. See Sher v. Raytheon Co., No. 09-15798, 2011 WL 814379, at *2 (11th Cir. Mar. 9.2011) ("Although the trial court should not determine the merits of the plaintiffs' claim at the class certification stage, the trial court can and should consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.") (citation omitted) (vacating and remanding the district court's order certifying a class in a case alleging environmental contamination); Coopers Lybrand v. Livesay, 437 U.S. 463, 469 (1978) ("[C]lass determination generally involves considerations that are `enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'"); id. at n. 12 ("`The more complex determinations required in Rule 23(b)(3) class actions entail even greater entanglement with the merits.'") (citations omitted). In light of the foregoing, the Court finds that Judge Guyton properly considered the nature of plaintiffs' existing claims and the nature of what individual plaintiffs and putative class members have claimed in this litigation, in addition to the relevant factual and legal issues and the evidence and theories necessary to establish those claims. The magistrate judge did not judge plaintiffs' claims on their merits, but properly noted the common and individual issues that may arise by virtue of the types of claims asserted, and how such claims relate to inquiries of causation, proof, and damages. The Court does not find the magistrate judge's careful consideration of these issues to be erroneous or improper.

The Court also agrees with the magistrate judge that a class action is not the superior mechanism for handling the claims arising out of the coal ash spill. There is no danger of related cases being filed in other venues because all cases involving the ash spill will be filed in this Court due to venue requirements and TVA's status as a federal agency. In addition, in the more than two years since these actions were filed, this Court has established efficient procedures for handling the complicated issues presented, including entering global orders on scheduling, discovery, and potentially dispositive legal issues, and these procedures have succeeded in efficiently moving these cases forward. See Cochran, 2008 WL 4146383, at *11 ("Rule 23(b)(3) classes . . . must satisfy a two-part test of commonality and superiority, and should only be certified if doing so would `achieve economies of time, effort, and expense.'") (quoting Sterling, 855 F.2d 1196). The Court also has no evidence of a shortage of attorneys willing to take these cases and no concrete evidence of barriers potential claimants have to filing suits. Finally, and even if the Court adopted plaintiffs' class action proposals in toto, the Court may still be faced with a number of individual lawsuits and must then devise procedures for the efficient adjudication of the claims of those individuals who chose to opt out of the class action.

In sum, plaintiffs' objections to predominance and superiority are hereby overruled.

IV. Conclusion

For the reasons stated above, plaintiffs' objections to the R R [ Mays, Doc. 124; Chesney, Doc. 311] are hereby OVERRULED, Magistrate Judge Guyton's R R [ Mays, Doc. 123; Chesney Doc. 307] is ACCEPTED IN WHOLE, and plaintiffs' motions for class certification [ Mays, Doc. 110; Chesney, Doc. 242] are DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

H. GUYTON, Magistrate Judge

These related actions are before the Court pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by the referral of the Honorable Thomas A. Varlan, United States District Judge, for disposition of matters pertaining to discovery and trial preparation. Now before the Court are the parties' motions for class certification, [Doc. 110 in Case No. 3:09-CV-06; Doc. 242 in Case No. 3:09-CV-09], and the Defendants' responses in opposition to class certification, [Doc. 115 in Case No. 3:09-CV-06; Docs. 276 and 280 Case No. 3:09-CV-09], along with the Plaintiffs' reply briefs and the parties' respective supplemental materials.

For the reasons more fully explained below, the Court finds that the Plaintiffs' motions are not well-taken, and the Court RECOMMENDS that they be DENIED.

I. BACKGROUND

The facts underlying the instant suit are familiar to the parties and the Court, having been stated in detail throughout these cases. In summary, the Tennessee Valley Authority ("TVA") operates power production facilities throughout the country, including the Kingston Fossil Plant located in Roane County, Tennessee. The coal ash waste produced at the Kingston Fossil Plant is stored in wet containment facilities at nearby Swan Pond. On December 22, 2008, one of the coal ash containment dikes at the Swan Pond facilities failed. As a result of the dike failure, approximately 5.4 million cubic yards of coal ash sludge spilled from the 84-acre containment area of the Swan Pond facilities to an adjacent area of about 300 acres, consisting of primarily the Watts Bar Reservoir, the Clinch and Emory Rivers, and government and privately owned shoreline properties. See Mays v. TVA, 699 F. Supp. 2d 991, 995-1000 (E.D. Tenn. 2010) (providing a more detailed recitation of the events leading up to and following the ash spill).

A total of 592 persons, who allege their person and/or their property have been damaged by the ash spill, filed approximately fifty-five individual suits with this Court.¹ As of November 17, 2010, a total of 135 persons had dismissed their individual claims, leaving 457 plaintiffs before the Court, spread over approximately fifty suits. The two suits now before the Court —Mays v. TVA, Case No. 3:09-CV-06 and Chesney v. TVA, Case No. 3:09-CV-09 — are the only suits that seek certification of a class of plaintiffs. The Mays case has a single plaintiff, while the Chesney case includes ten individual plaintiffs. Other suits include more numerous groups of plaintiffs: Auchard v. TVA, ² Case No. 3:09-CV-00054 (299 individual plaintiffs);Scofield v. TVA, Case No. 3:09-CV-00064 (20 individual plaintiffs); and Raymond v. TVA, Case No. 3:09-CV-00048 (26 individual plaintiffs). In addition, approximately one hundred plaintiffs have filed suits in which there is either a single plaintiff or a few individual plaintiffs from the same family, e.g., Case Nos. 3:09-CV-491, 495, and 496.

1 TVA has supplied this total calculated as of November 17, 2010.See Doc. 280-4. The Plaintiffs have presented no evidence to the contrary, and the Court finds this calculation to be an accurate approximation of the total number of plaintiffs in these actions.

2 Just before the Court was to take up the instant motions for class certification, the plaintiffs in Auchard filed their Motion to Establish Bellwethers for the September 2011 Trial [Doc. 195], which requests that the Court "enter an order establishing bellwether plaintiffs for the September 2011 trial in this and other `earlier filed' TVA Ash Spill Cases, and limiting further plaintiff-specific discovery and expert witness disclosures to a corresponding pool of potential bellwether plaintiffs. . . . "

II. POSITIONS OF THE PARTIES

The Plaintiffs move the Court to certify a class of plaintiffs to try the claims presented in these cases.³ The Plaintiffs maintain that a class action will be the most practical and efficient mechanism for managing the claims relating to the ash spill. In support of this position, the Plaintiffs note that: the harm alleged was inflicted by a single incident; these suits raise common questions of law and fact; and the classes of plaintiffs could be grouped rationally so as to dispose of common issues. The Plaintiffs argue that they satisfy all of the prerequisites for certification laid out in Rule 23 of the Federal Rules of Civil Procedure.

3 Counsel from the two cases now before the Court maintain that their prayers for class certification are distinguishable from one another, because the cases, for example, make different claims, requests different damages, are brought by persons with differing property interests, and are more or less representative of the "typical" persons damaged by this disaster. To the extent the Court finds that the alleged differences between the Mays andChesney requests for certification are pertinent to the class certification determination, the Court will note the same.

TVA, along with Defedants WorleyParsons Corporation ("WorleyParsons") and Geosyntec Consultants, Inc., ("Geosyntec"), ⁴ responds that the Plaintiffs do not satisfy the requirements of Rule 23. Specifically, TVA argues that the Plaintiffs' claims raise uniquely individual issues of causation, liability, and damages, in addition to raising unique defenses, and thus they do not fulfill the predominance requirement. TVA also argues that the Plaintiffs have not demonstrated the superiority of certification in this case. Further, TVA argues that the class proposal is unmanageable and issue certification would be impracticable and wasteful.

4 TVA is the only common defendant in the two suits. Chesney also includes Defendants WorleyParsons and Geosyntec. All of the Defendants have responded in opposition to the class certification issue. Thus, while the Court has reviewed all of the parties' filings and this decision has universal application, the Court will refer to TVA rather than WorleyParsons and Geosyntec, in its analysis, except when noting an argument specifically made by WorleyParsons and Geosyntec.

III. APPLICABLE LAW

In pertinent part, Rule 23 directs that a class may be certified for litigation of claims, where:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ.P. 23(a).

Further, a class action may be maintained only where:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) [Omitted]⁵ or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members' interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

5 The Plaintiffs have stated that they do not seek for a class to be maintained based upon the need for injunctive relief, pursuant to Fed.R.Civ.P. 23(b)(2). Thus, the Court has omitted this statutory provision.

Fed.R.Civ.P. 23(b)(1) and (b)(2).

"The party seeking the class certification bears the burden of proof." In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996); see also Senter v. Gen. Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976). Before certifying a class, a district court must conduct a "rigorous analysis" into whether the prerequisites of Rule 23 are met. In re Am. Med. Sys. Inc., 75 F.3d at 1078-79 (quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)). "The district court retains broad discretion in determining whether an action should be certified as a class action, and its decision, based upon the particular facts of the case, [will] not be overturned absent a showing of abuse of discretion." Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th 1988).

IV. ANALYSIS

In the instant cases, the Court finds that the Plaintiffs have not satisfied the prerequisites to class certification. They have not demonstrated: impracticality of joinder, Fed.R.Civ.P. 23(a)(1); typicality of claims or defenses, Fed.R.Civ.P. 23(a)(3); or that the representative parties will adequately protect the interests of the class, Fed.R.Civ.P. 23(a)(4).

Further, the Plaintiffs have not satisfied Rule 23(b) because they have not demonstrated that the prosecution of separate actions would result in inconsistent standards for the defendants or be dispositive of the interests of non-parties, Fed.R.Civ.P. 23(b)(1). They have also failed to demonstrate that questions of law or fact common to class members predominate over any questions affecting only individual members, Fed.R.Civ.P. 23(b)(2). A class action is not superior to other available methods for fairly and efficiently adjudicating these cases. The claims asserted in these cases are characterized by individual, not common, issues. For just adjudication, these claims require individualized, fact-specific inquiries regarding the existence, nature and extent of each plaintiff's alleged damages, and the causation of that damage.

A. Rule 23(a)

1. Numerosity

23

"There is no strict numerical test for determining impracticability of joinder." In re Am. Med. Sys. Inc., 75 F.3d at 1079 (citing Senter, 532 F.2d at 522). "Apart from class size, other case-specific factors that courts should consider in determining whether joinder is impracticable include: the judicial economy, the geographical dispersion of class members, the ease of identifying putative class members, and the practicality with which individual putative class members could sue on their own." Cannon v. GunnAllen Fin., Inc., 2008 WL 4279858 (M.D. Tenn. Sept. 15, 2008) (citing Alba Conte Herbert Newberg, 1 Newberg on Class Actions § 3:6 (4th ed. 2003)).

The Court finds that the persons who may have claims against TVA are easily identified. Potential claimants — and thus, putative class members — are aware of their rights. This is clearly evidenced by the number of persons who have filed individual claims. Coverage from local and national news media, the work of state and federal agencies, and a public relations campaign from TVA itself have made the ash spill's occurrence widely-known. Counsel for the Plaintiffs have represented that potential claimants are waiting to file suits, holding out for class certification. No evidence of such hold-outs has been presented to the Court. The Court finds that persons affected by the ash spill are aware of their potential claims, as shown by the number of filings, and their awareness argues against finding joinder impracticable.

In terms of geography, the Court finds that the claimants live or own property in an acute geographic area near the Kingston Plant and the Emory, Clinch, and Tennessee Rivers. While some property owners reside out of state, they own property in this area, from which their potential claim would derive. This case does not involve, for example, a defective consumer good, marketed nationally, which would produce potential claimants all over the country.

The geographic disbursement of potential claimants in this case is similar to that previously presented to this Court in Turnage v. Norfolk Southern Corporation, Case No. 3:03-CV-341. The Court's decision not to certify a class in Turnage, following a railroad accident and spill, was affirmed by the Court of Appeals, which explained:

Unlike some proposed classes that are spread throughout a city, state, or even the entire country, every potential plaintiff in this case lives within a three-mile radius. And unlike some harms that take place over long spans of time and require years to materialize, the harm in this case occurred at one brief point in time and was immediately obvious in its effects.

Turnage v. Norfolk S. Corp., 307 Fed. App'x 918, 921 (6th Cir. 2009).

In regards to the practicality of potential claimants suing on their own, as noted, hundreds of persons have filed on their own. There are no barriers to filing potential claims. No evidence has been presented to the Court establishing that potential claimants lack access to attorneys or the Court. In fact, the number of individual lawsuits filed establishes just the opposite, and it counters any argument that pursuing an individual claim would not be worthwhile. In addition, the Court is located approximately thirty-five miles from the scene of the ash spill. All potential plaintiffs would be pursuing their claims in a relatively convenient forum.

The costs attendant to trying these cases have already been reduced by the Court's prior rulings. The District Judge has ruled that the claims against TVA will not be tried by a jury. The District Judge has also ruled that punitive damages will not be awarded against TVA, and that TVA's recovery operations cannot support damage claims, which further narrows the case and reduces the costs of pursuing a claim.

"While large numbers may, in many cases, indicate impracticability of joinder, numbers are not a perfect predictor. Rather than naming a specific number, Rule 23 places the size of the class in the context of actual impracticability of joinder."Turnage, 307 Fed. App'x at 921; see also Rasmuson v. United States, 91 Fed. Cl. 204 (Fed. Cl. 2010) (finding numerosity requirement not satisfied, where 150 parcels of land were potentially affected by a taking without compensation, because majority of claimants were in close geographic proximity and could be joined in the action); Benefield v. Int'l Paper Co. , ___ F.R.D. ___, 2010 WL 4180757 (M.D. Ala. Oct. 20, 2010) (finding that 1,500 separate properties do not result in impracticality of joinder where plaintiffs, claiming personal injury and property damage, sued a paper manufacturing facility for trespass, private nuisance, public nuisance, and negligence based on alleged discharges of hazardous substances, and where companion cases, with hundreds of joined individual claims, were proceeding to trial); Hum v. Dericks, 162 F.R.D. 628 (D. Haw. 1995) (finding joinder of members of proposed class of 200 persons was not "impracticable," where most class members were residents of state and could be identified through medical records); United Steelworkers of Amer., Etc., Local 8024 Union v. Jarl Extrusions, 405 F. Supp. 302 (E.D. Tenn. 1975) (Neese, J.) (finding joinder was not impracticable where 85 employees where all residents of the jurisdiction). After considering all of the foregoing, the Court finds that the joinder of these claims would not be impracticable.

The Court finds that the Plaintiffs have failed to demonstrate that the proposed class members are "so numerous that joinder of all members [would be] impracticable." Fed.R.Civ.P. 23(a)(1).

2. Adequacy of Representation

A court may not certify a class unless it finds that the representative parties "fairly and adequately represent the interests of the class." Fed.R.Civ.P. 23(a)(4). Representative plaintiffs also must demonstrate a commitment to vigorously prosecute the interests of the class. "The adequacy of representation requirement `overlaps with the typicality requirement because a class representative has no incentive to pursue the claims of the other class members absent typical claims.'" Isabel v. Velsicol, No. 04-2297 DV, 2006 WL 1745053, at *7 (W.D. Tenn. June 20, 2006) (citing In re Am. Med. Sys., Inc., 75 F.3d at 1083). Whenever named plaintiffs have interests that are actually or potentially antagonistic to the interests and objectives of other class members, the concern is that the named plaintiffs cannot "vigorously prosecute" the interests and objectives of the class.Id.; see also 7A Charles A. Wright, Arthur R. Miller, Mary K. Kane, Fed. Practice Procedure § 1768 (3d ed. 2005).

In these cases, Defendants WorleyParsons and Geosyntec were originally sued only in Long v. TVA, Case No. 3:09-CV-114. [See Doc. 191 in Case No. 3:09-CV-114 contra Doc. 61 in Case No. 3:09-CV-09, Doc. 1 in Case No. 3:09-CV-14]. The Long plaintiffs asserted claims for personal injury, medical monitoring, and property damage. The First Amended Complaint proposed sixteen defined classes, with many subclasses, which covered geographic boundaries different from those which the Chesney and Mays Plaintiffs now seek to certify.

Only one original Long plaintiff, Mr. Simon, remains a class representative in Chesney. Counsel in Long moved to dismiss all other plaintiffs' claims without prejudice. [Doc. 196 in Case No. 3:09-CV-114]. Although Long originally filed a motion to sever those orphaned plaintiffs and claims, the motion was withdrawn. Accordingly, the status of the personal injury claims of the formerly named Long plaintiffs is uncertain. What is clear, though, is that when Long counsel moved to consolidate withChesney (f/k/a Blanchard) and Giltnane, the Consolidated Class Action Complaint no longer included claims for personal injury. [See Doc. 185 in Case No. 3:09-CV-09].

The Consolidated Class Action Complaint includes a resident class proposed specifically for purposes of medical monitoring as well as two geographic boundary classes for property damage. With the exception of Mr. Simon, all of the resident class members offered testimony regarding their intent to seek medical monitoring for the proposed class. Chesney Dep. 91:9-12, Aug. 20, 2010; Cordell Dep. 147:5-7, Aug. 19, 2010; Maines Dep. 56:14-24, Aug 27, 2010; Simon Dep. 153:6-9, Aug 18, 2010; Worley Dep. 87:23-88:9, Aug 26, 2010. Mr. Worley's counsel even clarified on the record that the omission of Mr. Worley's name from the resident class seeking medical monitoring was a drafting error, and that Mr. Worley was indeed seeking such monitoring. Worley Dep. 88:10-22. Mr. Gaddis, who did not fit the resident definition as proposed in the Consolidated Class Action Complaint, and was not personally seeking medical monitoring, sought to represent his class for purposes of medical monitoring. Gaddis Dep. 62:10-18; 171:14-19, Sept. 8, 2010.

However, when Chesney Plaintiffs ultimately filed their Motion for Class Certification, it contained new class definitions and entirely abandoned medical monitoring relief on behalf of the class. The latest proposed complaint in Chesney [Doc. 305-1, proposed January 6, 2011] makes no mention of medical monitoring. Instead, it includes claims for property damage, diminution of the value of real estate, loss of enjoyment of real property, and loss of quality of life.

The Mays class definition, ⁶ based solely on property ownership, and the Mays complaint, seeking only damages for private nuisance, present similar concerns about claim-splitting or requiring plaintiffs to abandon the medical monitoring claims and personal injury claims altogether.

6 "All individuals who own or owned real property located on the Emory or Clinch Rivers downstream from the TVA Kingston Fossil Plant in Roane County, Tennessee, during the period beginning on December 22, 2008 and ending on the date of trial who suffered available damages under Tennessee nuisance law." [Doc. 110 in 3:09-CV-06].

The Court finds that the result of the decision to abandon certification of medical monitoring claims, emotional distress claims, and personal injury claims, however, is that representative plaintiffs are no longer vigorously representing claims that exist in the putative class. There are putative class members with claims for personal injury, emotional distress, and medical monitoring who may be precluded from raising these claims in later litigation. See Isabel, 2006 WL 1745053, at *7.

As District Judge Donald of the Western District of Tennessee found in addressing a similar division of claims, where class representatives "do not share the interests or a presumptive subset of the larger class," and do not appear capable or ready to pursue the interests of the entire class, the proposed class does not fulfill the adequacy of representation prerequisite necessary for class certification. See id. at *7. Courts addressing similarly diverse claims and interests have reached the same conclusion. See Berger v. Compaq Computer Corp., 257 F.3d 475 (5th Cir. 2001) ("Class action lawsuits are intended to serve as a vehicle for capable, committed advocates to pursue the goals of the class members through counsel, not for capable, committed counsel to pursue their own goals through those class members."). See also, Benefield, 2010 WL 4180757 (denying class certification because, among other things, putative class members could jointly own property with individuals who had filed separate suits).

The Court finds the same to be true in these cases. The diversity of claims in these cases and the danger of plaintiffs being excluded from asserting their individual claims for personal injury, medical monitoring, or other claims undermine the adequacy of this representation. Thus, the Court finds that the Plaintiffs have not satisfied the adequacy of representation prerequisite necessary for class certification, Fed.R.Civ.P. 23(a)(4).

3. Typicality

The varied relief sought by the proposed class representatives and the differing entities from whom they seek damages, as discussed above, also demonstrate a lack of typicality among the proposed classes.

Rule 23(a)(3) requires that "claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). Plaintiffs' claims are not required to be identical to the claims of the putative class to meet this hurdle. Isabel, 2006 WL 1745053, at *6 (citing Gen. Tel. Co. v. Falcon, 457 U.S. at 155). "To satisfy the typicality requirement a sufficient relationship must exist between the injury to the named plaintiffs and the conduct affecting the class, such that `the court may properly attribute a collective nature to the challenged conduct.'" Isabel, 2006 WL 1745053, at *6 (quoting In re Amer. Med. Sys. Inc., 75 F.3d at 1082))

These cases present claims for damages to property and related loss of enjoyment, despite the fact that even the class representatives have stated that they wish to also pursue medical monitoring claims. Moreover, some plaintiffs seek damages from TVA, exclusively, while others also seek damages from subcontractors who performed work at and/or evaluations of the Kingston Fossil Plant. Given the distinct claims and differing parties, litigation strategies, the type of evidence required, and the underlying theory of causation will be distinct. Isabel, 2006 WL 1745053, at *7. "This misalignment of interests between representative plaintiffs and the larger class is exactly what typicality is intended to prevent." Id. Thus, the Court concludes that the claimants named in both Mays and Chesney are not sufficiently typical, and the Court finds that the Plaintiffs have failed to satisfy the necessary prerequisite to class certification contained in Rule 23(a)(3).

In sum, and based upon all of the foregoing, the Court finds that the Plaintiffs' request for class certification fails under Rule 23(a).

B. Rule 23(b)

Even assuming that the Plaintiffs' proposed classes satisfied the requirements of Rule 23(a), a class action must also satisfy the prerequisites of Rule 23(b)(1), (b)(2), and (b)(3). In this case, the Plaintiffs do not rely upon Subsection (b)(2), as there appears to be little dispute that these cases either did not seek injunctive or declaratory relief or such relief has already been dismissed. Instead, the Plaintiffs rely upon Subsections (b)(1), which requires that there be a risk of inconsistent judgments or judgments that will dispose of other claims, and (b)(3), which requires that class certification be the superior means for adjudication. For the reasons that follow, the Court finds that the Plaintiffs have failed to demonstrate either of these criteria.

1. Inconsistency of Standards or Disposition of Non-Party Interests

"Certification under subsection (1) of Rule 23(b) is proper when the prosecution of separate actions would result in inconsistent standards for the defendants or be dispositive of the interests of non-parties." Isabel, 2006 WL 1745053, at *7.

The Court finds that there is little danger of inconsistent judgments in these cases because many overarching determinations, such as TVA's discretionary function defense, have already been adjudicated. The cases will be tried to the District Judge, not a jury. The Plaintiffs did not present any arguments or evidence concerning why class certification would be appropriate under Rule 23(b)(1). It is their burden to present such proof. Therefore, there being no reason to expect that separate actions would create inconsistent standards for the Defendants or would be dispositive of non-parties' interests, the Court finds that the proposed class action may not be maintained under Rule 23(b)(1).

2. Superiority and Predominance

In order to certify a class pursuant to subsection (3) of Rule 23(b), "the court [must find] that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3).

The Court finds that a class action is not the superior means for adjudication of the claims relating to the ash spill, nor do the issues presented predominate over any questions affecting only individual members. Instead, the Court finds that the individualized questions presented in these cases predominate over all others. There is no dispute that the ash spill took place. Rather, the parties dispute how much ash came onto any given parcel of land, how the use and enjoyment of a specific parcel was affected, the ownership of that parcel, and the value of the parcel and its use and enjoyment and the effects on persons. The evidence to be used in making these determinations will be, for example, individual accounts of land's usage, deeds, leases, title histories, maps, records of improvements, parcel specific test results, other documentation of potential ash intrusion, and medical records. These questions will predominate, and they will be unique for almost every claimant.

In this vein, the Advisory Notes to Rule 23 explain, "A `mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways." Advisory Comm. Notes, 1966 Amendments.

Courts examining mass accidents and contamination suits with facts similar to those now before the Court have concluded that unique factual inquiries will predominate. See, e.g., In re Katrina Canal Breaches Consol. Litig., 2009 WL 1707923 (E.D. La. June 16, 2009) (finding class certification inappropriate because claims relating to property damages suffered in Hurricane Katrina "inherently require[d] individualized fact-specific inquiries"); John v. Nat'l Sec. Fire Cas. Co., 2006 WL 3228409 (W.D. La. Nov. 3, 2006) (granting motion to dismiss class allegations where "factual inquiry would have to be made into each putative class member's claims, such as where and when materials and supplies were being purchased, what was the market price at that time, and when did the price of materials and supplies decrease."); Martin v. Shell Oil Co., 198 F.R.D. 580 (D. Conn. 2000) (denying class certification in groundwater contamination case because varying contamination test results at individual properties indicated that individual issues predominated); Thomas v. FAG Bearings Corp., Inc., 846 F. Supp. 1400, 1404-05 (W.D. Mo. 1994) (finding class certification was "not a superior or even desirable mechanism" in a groundwater contamination case because not all properties were equally affected).

The Court finds this case is similar to Benefield v. International Paper Company , ___ F.R.D. ___, 2010 WL 4180757 (M.D. Ala. Oct. 20, 2010), a case in which the district court found that class certification was not appropriate. In Benefield, the plaintiffs brought claims of, inter alia, trespass, nuisance, and negligence against International Paper as a result of its operation of a paper manufacturing facility. Id. at *1. As with the ash spill cases in this district, the Middle District of Alabama was faced with numerous suits proceeding on similar theories but seeking different damages. See id.

The court in Benefield found the proposed class — persons owning property within two miles of the facility — was insufficient because "a residential property owner within the class area [having] corrosion on his or her property [did] not necessarily mean that . . . he or she is a member of the class."Id. at *3. The court found that mass appraisals would not satisfy the burden of demonstrating who was a member of the class. Id. at *4. Instead, the court found that additional fact-finding would be required to determine what property owners actually met the class definition. Id.

In both of the present cases, the Plaintiffs use property interests, either ownership or a leasehold, as the baseline characteristic of the putative class members. This characteristic does not automatically entail a legal claim against TVA. There may be no ash on a piece of property, a de minimis amount of ash on a property, or ash that was present before the ash spill. Further, the presence of ash does not, necessarily, impute liability. Moreover, outside factors may have caused any property value diminution, not the ash spill. A decrease in the value of certain property may be due, in whole or in part, to the general downturn of the real estate market in recent years.

If a claim is viable, its viability, and the damages owed to any given plaintiff, will be based upon individual factors. In short, each individual claimant should have a fair opportunity to present the Court with such evidence as might allow recovery of the total amount of that claimant's unique damages. The creation of classes would prevent this opportunity.

Plaintiffs argue that the Court will not be able to adjudicate the number of joined claims, asserting that the litigation will be interminable. The Court finds that these dire predictions are without basis. The District Judge has already demonstrated the ability to adjudicate significant preliminary issues and to put in place procedures to allow the efficient preparation of these cases.

Thus, for all the reasons stated above, the Court finds, first, that there is no danger of "inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class." The Court, further, finds questions affecting only individual members and specific factual inquiries predominate over any common questions of law or fact, and a class action is not the superior method for fairly and efficiently adjudicating the controversy. Thus, neither Rule 23(b)(1) or (b)(3) is satisfied.

Accordingly, the Court finds that the Plaintiffs' request for class certification also fails under Rule 23(b).

C. Joinder of New Plaintiffs: Recommended Procedure

V. CONCLUSION

RECOMMENDS Mays Chesney RECOMMENDS ⁷ [Doc. 110 in Case No. 3:09-CV-06; Doc. 242 in Case No. 3:09-CV-09] DENIED

7 Any objections to this Report and Recommendation must be served and filed within fourteen (14) days after service of a copy of this recommended disposition on the objecting party. Fed.R.Civ.P. 72(b)(2). Such objections must conform to the requirements of Rule 72(b), Federal Rules of Civil Procedure. Failure to file objections within the time specified waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985). The district court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987).