Opinion
No. 21-0610
06-08-2022
STATE of West Virginia, EX REL., SURNAIK HOLDINGS OF WV, LLC, Petitioner, v. Honorable Thomas A. BEDELL, sitting by assignment as Judge of the Circuit Court of Wood County; and Paul Snider, Respondents.
Ryan McCune Donovan, Esq., J. Zak Ritchie, Esq., Andrew C. Robey, Esq., Hissam Forman Donovan Ritchie PLLC, Charleston, West Virginia, Counsel for the Petitioner Alex McLaughlin, Esq., John H. Skaggs, Esq., Calwell Luce diTrapano PLLC, Charleston, West Virginia, Counsel for Respondent Snider
Ryan McCune Donovan, Esq., J. Zak Ritchie, Esq., Andrew C. Robey, Esq., Hissam Forman Donovan Ritchie PLLC, Charleston, West Virginia, Counsel for the Petitioner
Alex McLaughlin, Esq., John H. Skaggs, Esq., Calwell Luce diTrapano PLLC, Charleston, West Virginia, Counsel for Respondent Snider
HUTCHISON, Chief Justice: This is the second time this class action case, pursued under Rule 23 of the West Virginia Rules of Civil Procedure, has come to this Court on a petition for relief under our original jurisdiction. In our prior decision, we granted a writ of prohibition and dissolved the circuit court's former class certification order. See State ex rel. Surnaik Holdings of WV, LLC v. Bedell , 244 W. Va. 248, 852 S.E.2d 748 (2020) (" Surnaik I ").
The petitioner again seeks a writ of prohibition to stop the circuit court's most recent order certifying the case for class action relief. As we set forth below, we find no clear legal error in the order and deny the requested petition for a writ of prohibition.
I. Factual and Procedural Background
In October of 2017, a week-long fire consumed a warehouse in Parkersburg, West Virginia, owned by the petitioner, Surnaik Holdings WV, LLC ("Surnaik"). The warehouse tenant at the time was in the business of purchasing and recycling chemical waste and other byproducts from chemical manufacturers. The fire was massive, causing the county commission to declare it a disaster and the governor to declare a state of emergency. In just the first twelve hours, firefighters pumped six million gallons of water on the fire.
The tenant was a company called "Intercontinental Export-Import, Inc.," and did business as "IEI Plastics." Respondents allege that several of Surnaik's members, officers, and directors also serve as officers and directors of IEI Plastics.
Respondent Paul Snider is a resident of Parkersburg. He alleges that the fire generated poisonous smoke filled with particulate matter and gasses that blanketed much of Parkersburg and the surrounding area. The respondent filed the instant action and, under Rule 23, sought to form a class action composed of all residents and businesses within an 8.5-mile radius of Surnaik's warehouse. The respondent's complaint (and later amended complaint) alleged that Surnaik had allowed the warehouse's fire protection system to fall into a state of disrepair. The respondent asserted causes of action for negligence and sought various forms of compensatory damages on behalf of himself and the putative class members including for diminution in the value of property, loss of use and enjoyment of property, lost profits of businesses, and personal injuries. After the parties conducted discovery, the respondent filed a motion for class certification. The respondent proposed defining the putative class as containing individuals who lived in certain geographic areas (called "isopleths") surrounding the burned warehouse. Those isopleths met two conditions: beginning with the start of the warehouse fire, (1) there were concentrations of fine particles 2.5 micrometers or less in size ("PM2.5") that had been emitted by the fire; and (2) the fine particles averaged three micrograms per cubic meter ("3 ug/m3") or more over any twenty-four-hour period during the fire. The respondent contended those amounts of fine particles are sufficient to at least cause irritation and inflammation in the nose, throat, and respiratory tract. An expert retained by the respondent outlined those isopleths on a map using air dispersion modeling techniques, data from the fire, and local meteorological data. Another expert calculated that about 57,782 individuals resided within the isopleths. Surnaik opposed the respondent's motion for class certification.
In an order entered September 12, 2019, the circuit court granted the respondent's motion for class certification. The circuit court adopted respondent's definition of the class.
Surnaik then petitioned this Court for a writ of prohibition to halt the circuit court's September 2019 class certification order. After hearing oral argument by the parties, we granted the writ of prohibition on November 20, 2020. Overall, our opinion observed that "class certification determinations are not perfunctory" and that a "circuit court must give careful consideration" to whether a party seeking class certification has met the burdens imposed by Rule 23 of the West Virginia Rules of Civil Procedure. Surnaik I , 244 W. Va. at 256, 852 S.E.2d at 756. We stressed that a circuit court's analysis of a class certification motion must be "appropriate and thorough." Id. at 251, 852 S.E.2d at 751. We held, in Syllabus Point 8, that "[a] circuit court's failure to conduct a thorough analysis of the requirements for class certification pursuant to West Virginia Rules of Civil Procedure 23(a) and/or 23(b) amounts to clear error." Id. at 250, 852 S.E.2d at 750. Finally, we mentioned the rule applicable to all class certification questions:
Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [1998], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a) —numerosity, commonality, typicality, and adequacy of representation—and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party.
Syl. pt. 8, In re W. Va. Rezulin Litig. , 214 W. Va. 52, 585 S.E.2d 52 (2003).
Our opinion noted that Surnaik raised five assignments of error to the circuit court's order. We distilled those five assignments down to an analysis of the two requirements imposed by Rule 23(b)(3), usually referred to as the "predominance" and "superiority" requirements. Rule 23(b)(3) provides that a party seeking class certification must show "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
Regarding the predominance requirement, we adopted the following general guidelines in Syllabus Point 7:
The thorough analysis of the predominance requirement of West Virginia Rule of Civil Procedure 23(b)(3) includes (1) identifying the parties’ claims and defenses and their respective elements; (2) determining whether these issues are common questions or individual questions by analyzing how each party will prove them at trial; and (3) determining whether the common questions predominate. In addition, circuit courts should assess predominance with its overarching purpose in mind—namely, ensuring that a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other
undesirable results. This analysis must be placed in the written record of the case by including it in the circuit court's order regarding class certification.
Surnaik I , 244 W. Va. at 250, 852 S.E.2d at 750, Syl. pt. 7 (in part). We then examined the discussion of predominance in the September 2019 certification order and concluded that "[t]he circuit court's analysis does not come close to rising to the level that is required." Id. at 262, 852 S.E.2d at 762. We found that the certification order did not properly detail the elements of the respondent's claims, did not assess whether there were common questions inherent in those claims, and only summarily concluded that overarching liability issues predominated over individual questions.
Regarding the superiority requirement, we noted that
[u]nder the superiority test, a trial court must "compare [ ] the class action with other potential methods of litigation." Cleckley, Davis, & Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 23(b)(3)[2][b], at 554 (footnote omitted). See also Nolan v. Reliant Equity Investors, LLC , No. 3:08-CV-62, 2009 WL 2461008, at *4 (N.D. W. Va. Aug. 10, 2009) ("Superiority requires that a class action be superior to other methods for the fair and efficient adjudication of the controversy." (quotations and citations omitted)); In re West Virginia Rezulin Litig. , 214 W. Va. at 75, 585 S.E.2d at 75 (stating that superiority "requirement focuses upon a comparison of available alternatives").
"Factors that have proven relevant in the superiority determination include the size of the class, anticipated recovery, fairness, efficiency, complexity of the issues and social concerns involved in the case." Cleckley, Davis, & Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 23(b)(3)[2][b], at 554 (footnote omitted). In addition, this Court has observed that consideration must be given to the purposes of Rule 23, " ‘including: conserving time, effort and expense; providing a forum for small claimants; and deterring illegal activities.’ " In re West Virginia Rezulin Litig. , 214 W. Va. at 76, 585 S.E.2d at 76 (quoting 2 Conte & Newberg, Newberg on Class Actions § 4:32, at 277-78 ).
Id. at 263, 852 S.E.2d at 763 (quoting Perrine v. E.I. du Pont de Nemours & Co. , 225 W. Va. 482, 527, 694 S.E.2d 815, 860 (2010) ). We examined the circuit court's order and, while we found "more discussion" of superiority than we had found of predominance, we concluded that the circuit court's analysis was insufficient.
In Surnaik I , because of the circuit court's insufficient discussion of the predominance and superiority requirements of Rule 23(b), we granted the writ of prohibition. Accordingly, we vacated the circuit court's September 2019 order granting class certification.
When the case returned to the circuit court, the respondent renewed his bid to have the circuit court grant class certification to his case. The defendant again opposed class certification.
In an order signed June 15, 2021, the circuit court again granted class certification to the respondent's case. The circuit court gave the same definition to the members of the class, defining them by geographic isopleths exposed to certain amounts of smoke-borne particulates. The difference, however, was that the circuit court's order clearly contains the appropriate and thorough analysis of predominance and superiority required by our decision in Surnaik I . As to predominance, the order includes an element-by-element analysis of the respondent's claims (for nuisance and negligence), as well as Surnaik's affirmative defenses. The circuit court concluded that the duty and breach of duty elements for both claims centered on Surnaik's actions. The circuit court found these two elements were not merely common, they were identical to all members of the class and, therefore, capable of class-wide proof. As to superiority, the circuit court found these two elements would require the most extensive discovery, document review, fact-witness depositions, expert testimony, preparation, and trial presentation. The circuit court balanced these class-wide questions with the individual questions, such as specific property or personal injury damages, and it found the class-wide questions were predominant and that a class action was the superior tool to resolve them.
Despite these findings, on July 30, 2021, petitioner Surnaik filed a second petition for a writ of prohibition with this Court. Surnaik's petition asserts it is challenging the circuit court's June 2021 certification order because it contains "the same flaws that plagued the first certification" order. We granted a rule to show cause to review the circuit court's order, and we allowed the parties oral argument.
II. Standard of Review
Extraordinary remedies like the writ of prohibition should rarely be granted. "[W]e have clearly stated that extraordinary remedies are reserved for ‘really extraordinary causes.’ " State ex rel. Vanderra Res., LLC v. Hummel , 242 W. Va. 35, 40, 829 S.E.2d 35, 40 (2019) (quoting State ex rel. Suriano v. Gaughan , 198 W. Va. 339, 345, 480 S.E.2d 548, 554 (1996) ). As we have explained, "a writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1." Syl. pt. 3, State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977).
Surnaik argues that the circuit court exceeded its legitimate powers when it issued its class certification order. In Syllabus Point 4 of State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996), we established our standard of review when such an allegation is made:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
With this standard in mind, we examine Surnaik's arguments to assess, first and foremost, whether the certification order contains "clear error as a matter of law."
III. Discussion
In its petition to this Court, Surnaik asserts six properly raised assignments of error. Most of these assignments were previously raised in Surnaik I .
At the beginning of its petition, Surnaik identifies six "questions presented" by the circuit court's certification order. However, the argument section of Surnaik's petition contains a seventh assignment of error that is wholly unrelated to the certification order. It summarily contends that the circuit court erred, in an order dated November 7, 2018, in denying Surniak's motion to dismiss under Rule 12(b)(6). We find no merit to this seventh assignment of error and decline to consider it. See Syllabus Point 3, Chapman v. Kane Transfer Co. , 160 W. Va. 530, 236 S.E.2d 207 (1977) ("The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."). See also , W. Va. R. App. Pro. Rule 10(c)(3) (requiring a brief to open "with a list of the assignments of error that are presented for review"); Fairmont Tool, Inc. v. Davis , 868 S.E.2d 737, 745 (W. Va. 2021) ("[A] clearly defined list of errors permits this Court to focus with clarity on the legal questions the petitioner alleges affected the lower tribunal's decision.").
Surnaik's first, second, third, fifth, and sixth arguments are virtually identical to arguments made in Surnaik I . First, Surnaik "argues that the circuit court erred by certifying a class in which only 10% of the class is likely to have been injured, thereby failing to satisfy the predominance requirement of West Virginia Rule of Civil Procedure 23(b)(3)." Surnaik I , 244 W. Va. at 255-56, 852 S.E.2d at 755-56. Second and third, "Surnaik contends that mass accident and toxic tort matters, such as this one, are not appropriate for class adjudication," id. at 256, 852 S.E.2d at 756, and that federal courts refuse to certify similar personal injury claims. Surnaik insists that the certified class is fatally deficient because the number of uninjured individuals vastly exceeds the injured and weeding out uninjured class members eviscerates any efficiencies gained through the class mechanism. Surnaik's fifth and sixth assignments mirror its third in Surnaik I , which was that a class cannot be certified "because [respondent] Mr. Snider conceded he did not suffer any property damage, [and] the requirements of standing and typicality preclude him from representing a class seeking that relief." Id.
We reject these five arguments because they misapprehend the circuit court's order. As defined by the circuit court, the class simply does not center upon those who are physically injured or suffered physical damage to property. Instead, the circuit court's order centers on geographic areas that were, due to Surnaik's alleged negligence, exposed to identified levels of smoke particles, and identifies class members as anyone who resided in homes or operated businesses in those areas. We have found the mere invasion of property by dust, smoke, or other noxious elements to be actionable. See Syl. pt. 1, Harless v. Workman , 145 W. Va. 266, 114 S.E.2d 548 (1960) (permitting recovery of "damages caused to the plaintiffs’ property by dust resulting from the nearby operation by the defendant of a coal loading tipple and a coal crusher"); Rinehart v. Stanley Coal Co. , 112 W. Va. 82, 163 S.E. 766 (1932) (permitting recovery of damages for "noxious smoke, fumes, and dust from a burning refuse deposit on the leasehold of defendant"). At this early stage in the proceedings, the evidence supports the circuit court's threshold finding that all properties within the geographically designated isopleths, and any individuals within those properties, were exposed to levels of smoke particulates at levels sufficient to cause interference with the use and enjoyment of those properties. The respondent himself testified his "house was full of smoke" and that he and his wife needed to wear masks just to relax in their home. Further, the circuit court concluded that there is evidence to make a case that enough smoke-borne particulate matter was spread across the Parkersburg area to increase the chance of physical injuries for a small percentage of people, and to cause some level of discomfort for a much larger percentage of people. On this record, we find no error in the circuit court's conclusion that Surnaik's breach of any applicable duties owed to the individuals in the class-defined areas presents at least one common question that predominates over other questions and that the question merits class action resolution. We likewise find no error in the circuit court's determination that the respondent, who was deprived of the enjoyment of his home by transient smoke without his property being physically damaged, is a typical and proper representative of the class. See Syl. pt. 12, In re W. Va. Rezulin Litig. , 214 W. Va. at 57, 585 S.E.2d at 57 ("A representative party's claim or defense is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. Rule 23(a)(3) only requires that the class representatives’ claims be typical of the other class members’ claims, not that the claims be identical."). Accordingly, we reject Surnaik's first, second, third, fifth, and sixth assignments of error. Surnaik's fourth assignment of error is identical to its fourth assignment of error in Surnaik I , that is, "Surnaik alleges that the circuit court erred by certifying a class whose members are not readily identifiable by reference to objective criteria." Surnaik I , 244 W. Va. at 256, 852 S.E.2d at 756. Surnaik argues that members must "be identified with sufficient specificity so that it is administratively feasible for the court to ascertain whether a particular individual is a member." Syl. pt. 3, in part, State ex rel. Metro. Life Ins. Co. v. Starcher , 196 W. Va. 519, 474 S.E.2d 186 (1996). Surnaik contends the circuit court's order lacked sufficient specificity to define the individuals within the class.
The circuit court discussed the effects of "smoke and particulate matter of 3 ug/m3 of PM2.5," finding that the evidence of record suggested "those levels of PM2.5 increase the risk of injury, resulting in death, asthma, heart attacks, and coronary artery thickening in a small percentage of persons subjected to them, and some level of discomfort in an unknown but much larger percentage of individuals." The circuit court concluded that it was up to the jury to "decide whether these levels of small particulate [exposure] ... are sufficient to constitute an interference with the use of enjoyment of property, or whether higher levels" of exposure to smoke and particulate matter are required which would then "require a narrowing of the class boundary, thereby denying the claims for compensation of those outside the boundary."
We reject this argument because the class is clearly defined by a geographical boundary. It is well-established that Rule 23 permits courts to certify classes defined by geography. See , e.g. , Perrine , 225 W. Va. at 502, 694 S.E.2d at 835 (certifying "a property-damage class of property owners in a five-by-seven mile area surrounding the smelter site, and a medical-monitoring class of approximately 8,500 people who had lived in the class area"); Collins v. Olin Corp. , 248 F.R.D. 95, 101 (D. Conn. 2008) ("Many courts have certified classes defined by geography, as the class here is defined by the contours of the Newhall neighborhood."). The court in Cook v. Rockwell International Corporation , 151 F.R.D. 378 (D. Colo. 1993) approved two classes (one for medical monitoring, another for property losses) defined geographically by lines ringing a weapon production facility that leaked plutonium. When defining a class, the Cook court said "the class does not have to be so ascertainable that every potential member can be identified at the commencement of the action. If the general outlines of the membership of the class are determinable at the outset of the litigation, a class will be deemed to exist." Id. at 382 (cleaned up). Similarly, the court in Boggs v. Divested Atomic Corporation , 141 F.R.D. 58, 60–61 (S.D. Ohio 1991), approved a class defined "as all persons living within a six-mile radius of the boundaries of the Portsmouth Plant whose persons or property have been exposed to radioactive or hazardous wastes released from the plant." The court approved this class, in part, because "the class definition does not include the element of actual injury, only exposure." Id. at 64. Here, the circuit court order narrowed the class to individuals within geographically defined isopleths of potential exposure. Accordingly, we find no merit in Surnaik's fourth assignment of error.
IV. Conclusion
After consideration of Surnaik's assignments of error, we find no clear error as a matter of law in the circuit court's June 2021 class certification order. Hence, we cannot say the lower tribunal exceeded its legitimate powers, and we must, therefore, deny the requested writ of prohibition.
Writ denied.
JUSTICE ARMSTEAD concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
JUSTICE BUNN did not participate.
Armstead, Justice, concurring, in part, and dissenting, in part:
The petitioner in this matter, Surnaik Holdings of WV, LLC, ("Surnaik") requests this Court to prohibit the circuit court from enforcing an order certifying a class of individuals, businesses, and government entities that allegedly suffered adverse effects from a warehouse fire that occurred in Parkersburg in October 2017. According to Surnaik, class certification is improper because the "overwhelming majority" of class members have not been injured, because proving the class members’ alleged injuries will require individual proof, because the class members are not ascertainable, because the claims of the class representative (respondent Paul Snider) are not typical of the class, and because the migration of smoke and fumes across a class member's property is not actionable. The majority opinion rejects these arguments, and I concur with much of the majority opinion's analysis. Nevertheless, I remain convinced that individual questions of fact predominate in this matter and render class certification inappropriate. Accordingly, I respectfully dissent and would grant the writ of prohibition.
As the majority opinion notes, we prohibited the circuit court from enforcing a previous class certification order in State ex rel. Surnaik Holdings of WV, LLC v. Bedell , 244 W. Va. 248, 852 S.E.2d 748 (2020), because we found that the circuit court failed to conduct a thorough analysis of the class certification requirements contained in Rule 23 of the West Virginia Rules of Civil Procedure. Id. at 251, 852 S.E.2d at 751.
In a closely related assignment of error, Surnaik contends that "no single proximate injury applies equally to each class member" and that federal courts "invariably refuse to certify similar personal injury claims."
Predominance Analysis.
For a class to be certified under Rule 23(b)(3) of the West Virginia Rules of Civil Procedure, "questions of law or fact common to the members of the class [must] predominate over any questions affecting only individual members ...." W. Va. R. Civ. P. 23(b)(3) [eff. 2017]. Whether common questions "predominate" over individual questions is an issue that requires "thorough analysis" and "includes (1) identifying the parties’ claims ... and their respective elements; (2) determining whether these issues are common questions or individual questions by analyzing how each party will prove them at trial ; and (3) determining whether the common questions predominate." Syl. Pt. 7, in part, State ex rel. Surnaik Holdings of WV, LLC v. Bedell , 244 W. Va. 248, 852 S.E.2d 748 (2020) (emphasis added). Individual questions are those "where ‘members of a proposed class will need to present evidence that varies from member to member[.]’ " Tyson Foods, Inc. v. Bouaphakeo , 577 U.S. 442, 453, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016) (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50, pp. 196–197 (5th ed. 2012) ). Common questions are those "where ‘the same evidence will suffice for each member to make a prima facie showing [or] [where] the issue[s] [are] susceptible to generalized, class-wide proof.’ " Id. (first alteration in original). We have held that "circuit courts should assess predominance with its overarching purpose in mind—namely, ensuring that a class action would achieve economies of time, effort, and expense , and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results." Surnaik , 244 W. Va. at 250, 852 S.E.2d at 750, syl. pt. 7, in part (emphasis added). Inefficiency is present when there is a "line of thousands of class members waiting their turn to offer testimony and evidence on individual issues." In re Asacol Antitrust Litig. , 907 F.3d 42, 51 (1st Cir. 2018). "[A] class cannot be certified on the premise that [the defendant] will not be entitled to litigate its ... defenses to individual claims." Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 367, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (invoking the Rules Enabling Act, 28 U.S.C. § 2072(b) ).
Predominance of Individual Questions Regarding Injury.
In this case, the circuit court has certified a class seeking damages for, among other things, personal injuries, damage to real property, and loss of use and enjoyment of real property. As the majority opinion observes, class membership is defined in reference to
geographic areas (called "isopleths") surrounding the burned warehouse ... [that] met two conditions: beginning with the start of the warehouse fire, (1) there were concentrations of fine particles 2.5 micrometers or less in size ("PM2.5") that had been emitted by the fire; and (2) the fine particles averaged three micrograms per cubic meter ("3 ug/m3") or more over any twenty-four-hour period during the fire.
This threshold concentration of fine particulate matter stems from an expert report prepared by Michael McCawley, Ph.D. According to Dr. McCawley's report, "PM2.5 exposure in excess of 3 µg/m3 from the warehouse fire particulate is sufficient to cause inflammation and subsequent harm to humans exposed to it[,]" and such "inflammation caused by exposure to the above-mentioned particulate concentration could be sensed by individuals as irritation, particularly to the respiratory tract, including the nose and throat."
However, Dr. McCawley's deposition revealed that not every member of the class would experience an adverse reaction to 3 ug/m3 of PM2.5. Indeed, according to his testimony the vast majority of people exposed to this concentration of fine particulate matter would experience no discomfort at all:
[T]here's a distribution of people .... So if you're—you know, what was it, .6% of the people are going to die? So of the .6% of that population, .6% die, well, maybe 10% were feeling sick and maybe another 20% were feeling uncomfortable. That would be the expected sort of distribution that I'm talking about.
(Emphasis added.)
Surnaik calls our attention to this testimony, arguing that class certification is inappropriate "when the number of uninjured class members exceeds a de minimis level[.]" I agree. "Uninjured class members cannot prevail on the merits," thus "their claims must be winnowed away as part of the liability determination." In re Rail Freight Fuel Surcharge Antitrust Litig. - MDL No. 1869 , 934 F.3d 619, 624 (D.C. Cir. 2019). Accordingly, the issue becomes "when ... the need for individualized proof of injury and causation destroy[s] predominance?" Id. However, the Asacol court observed,
this is not a case in which a very small absolute number of class members might be picked off in a manageable, individualized process at or before trial. Rather, this is a case in which any class member may be uninjured, and there are apparently thousands who in fact suffered no injury.
907 F.3d at 53 (emphasis added). "[A] class should not be certified if it is apparent that it contains a great many persons who have suffered no injury at the hands of the defendant[.]" Kohen v. Pac. Inv. Mgmt. Co. LLC , 571 F.3d 672, 677 (7th Cir. 2009). It is difficult to see how common questions can predominate in a case where seventy percent of the class has suffered no injury and the injuries that were arguably suffered may vary greatly.
Perhaps recognizing this problem, the circuit court shifted its focus from particulate matter to smoke, finding that "three micrograms of PM2.5 per meter of cubic air over 24 hours is the concentration at which smoke is objectively experienced by reasonable people as unpleasant, annoying and irritating[.]" (Emphasis added.) This finding, in turn, allowed the circuit court to find predominance regarding class claims "for property damage [ ] and especially nuisance or loss of the use and enjoyment of property[.]" Regarding these claims, the circuit court found that "common questions related to the duty and breach of duty elements in both nuisance and negligence claims predominate over the individual questions related to damages." According to the circuit court, "individual questions related to causation for these categories of damages ... would be so minor as to hardly impact the analysis[,]" and individual proof of damages would "involve, in most cases, little more than the testimony and skillful cross-examination of the claimants themselves as to the impact the event had on their lives." The majority opinion essentially adopts this view, finding that "the evidence supports the circuit court's threshold finding that all properties within the geographically designated isopleths, and any individuals within those properties, were exposed to levels of smoke particulates at levels sufficient to cause interference with the use and enjoyment of those properties."
However, these findings by the circuit court are unsupported by the record. Particulate matter is not the same thing as smoke. As the report prepared by William Auberle states, "[t]he plume of smoke from the fire contained solid particles (particulate matter) and a wide range of gaseous pollutants. " (Emphasis added.) Dr. McCawley's report offered an opinion only regarding PM2.5 exposure and resulting inflammation, not regarding exposure to smoke generally and its varieties of particles and gases. Even with respect to PM2.5 exposure, Dr. McCawley's deposition testimony shows that he rejects any claim that exposure at the level of 3 ug/m3 will cause inflammation in every individual or be sensed by all persons.
Additional evidence that class members were exposed to peak one-hour concentrations of at least 100 µg/m3 of total suspended particulates ("TSP") does not bolster the circuit court's finding. Though Mr. Auberle is expected to testify that background levels of TSP range from 20 µg/m3 to 35 µg/m3, nothing in Dr. McCawley's report indicates how this concentration of TSP is experienced by humans.
Q. .... So when you say, "Exposure in excess of 3 micrograms per cubic meter is sufficient to cause inflammation," you are not testifying that exposure in excess of 3 micrograms per cubic meter will always cause inflammation?
A. That's correct.
Q. .... So to use a hypothetical, if the four of us are in the room and a level of PM2.5 exposure in the air right now is 3 micrograms per meter cubed, some of us might experience inflammation and some of us might not, correct?
A. That's correct.
....
Q. .... [Y]ou use [in your report] the phrase "could be sensed."
A. Correct.
Q. And so—
A. It's not going to be a hundred percent.
Q. So the same thing?
A. Same thing.
Q. There could be four of us in this room, 3 micrograms per cubic meter, two of us sense it, two of us don't?
A. Correct.
Thus, the circuit court had insufficient basis to find that "three micrograms of PM2.5 per meter of cubic air over 24 hours is the concentration at which smoke is objectively experienced by reasonable people as unpleasant, annoying and irritating[.]" In fact, based on testimony from Mr. Snider's own expert, no member of the class can be presumed to have a claim for loss of enjoyment of property. To make such a claim, each of the more than 57,000 members of the class will have to offer individualized proof of how he or she (or, in the case of a business or governmental entity, how its employees or patrons) experienced the smoke and associated particulate matter resulting from the fire. It seems highly unlikely that any two structures have the same susceptibility to smoke infiltration, and relevant inquiries for residential properties might include such things as the age and condition of the structure and whether the occupants were away from their homes. For business properties, similar questions would arise regarding the age and condition of the structure, as well as foot-traffic patterns and the number of customers potentially affected. The parties would have a right to explore these and related matters both at trial and through discovery. It is difficult to see how "mini-trials or bellwether-type trials" will be feasible due to the challenges in determining whether any group of "individuals ... experienced similar levels and concentrations of particulate matter and smoke invasion" in their homes or businesses. (Emphasis added.)
Individualized questions will also arise regarding property damage claims and personal injuries. As the circuit court concedes, "not every issue for every element—especially the element of damages and aspects of causation for claimants alleging bodily injuries—is capable of class wide resolution." The circuit court assumes that property damage claims can be resolved "primarily [by] the individual [c]lass [m]embers’ testimony, and any receipts in their possession" and will "not require extensive document or expert discovery." However, this approach does not account for the fact that, on this record, we do not know how many members of the class, if any, have suffered an actual injury to property, and injury is an essential element of a negligence claim. Wheeling Park Comm'n v. Dattoli , 237 W. Va. 275, 280, 787 S.E.2d 546, 551 (2016) (quoting Webb v. Brown & Williamson Tobacco Co. , 121 W.Va. 115, 118, 2 S.E.2d 898, 899 (1939) ) ("[T]o prevail in a negligence suit ‘it is incumbent upon the plaintiff to establish, by a preponderance of the testimony, three propositions: (1) A duty which the defendant owes him; (2) A negligent breach of that duty; (3) injuries received thereby , resulting proximately from the breach of that duty.’ " (emphasis added)); see also Carter v. Monsanto Co. , 212 W. Va. 732, 737, 575 S.E.2d 342, 347 (2002) ("[B]efore one can recover under a tort theory of liability[, including nuisance], he or she must prove each of the four elements of a tort: duty, breach, causation, and damages."). At present, Mr. Snider is the only named member of the class, and he could not identify any property damage to his home from the fire. Thus, individual proof of injury will be necessary where any member of the class seeks to recover for property damage, and we have no way of knowing whether tens of thousands of class members have suffered any injury at all. Even if the circuit court's rosy predictions are correct and property damage claims prove relatively simple to litigate, "[t]he need to identify those individuals [whose property has been injured] will predominate and render an adjudication unmanageable absent evidence such as the unrebutted affidavits ... or some other mechanism that can manageably remove uninjured persons from the class in a manner that protects the parties’ rights." Asacol , 907 F.3d at 53–54. However, there is no reason to assume that relevant evidence of property damage claims will be limited to the class members’ testimony and receipts. Ultimately, there is no reason to assume that the parties will forego any lawful means of proving or contesting liability in relation to any class member's alleged injury to property.
For example, Surnaik might seek to discover and offer proof regarding photographs of properties, prior insurance claims, and the presence of fireplaces and other sources of smoke within a home. The parties may also wish to introduce scientific testing results or expert testimony.
A predominance finding is arguably even less tenable for personal injury claims. Though the circuit court correctly conceded that "individual questions of causation of bodily injuries will involve document review (mostly medical records) and expert testimony (at least, a medical doctor will have to testify to the diagnosis, specific causation, and ruling out other possible causes)[,]" the circuit court, nonetheless, concluded that "common duty and breach of duty issues ultimately outweigh, and therefore predominate over, any difficulties in managing the individual causation and damages questions" and predicted that "aggregating groups of individual bodily injury claimants according to injury type" may yield "additional efficiencies[.]"
The circuit court's analysis simply does not account for the reality that class members may have been exposed to PM2.5 under a variety of different circumstances and the fact that individual questions of proximate causation and differing exposures often render class certification inappropriate. See In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig. , 241 F.R.D. 435, 448 (S.D.N.Y. 2007) (noting that "proximate causation often cannot be resolve[d] on a class-wide basis in the case of exposure to a chemical" and that "class certification is often denied in such cases"); Presbyterian Church of Sudan v. Talisman Energy, Inc. , 226 F.R.D. 456, 477 (S.D.N.Y. 2005) (observing that "certification is generally granted in a tort case where there is a demonstrated cohesiveness of the class due to a shared experience that is confined in time and place and produces similar effects" and that "[w]here these elements are not present, certification is usually denied"); and Reilly v. Gould, Inc. , 965 F. Supp. 588, 602 (M.D. Pa. 1997) (explaining that "it is the presence of additional individualized factors affecting individual plaintiffs which wreaks havoc on the notion that all plaintiffs’ injuries have been caused solely by the defendant's actions"). The individual class members may assert claims of injury or damage, and Surnaik may assert particularized defenses, each of which may require careful development of the facts and circumstances surrounding individual class members’ exposure to smoke. Pursuing such defenses will require substantial discovery from individual class members and the presentation of individual proof at trial, all of which threatens any attempt to aggregate and try personal injury claims in groups according to the type of injury asserted.
Ultimately, the only substantial common liability issues in this case are those that relate to Surnaik's alleged duty to maintain the warehouse's sprinkler system and Surnaik's alleged breach of this duty. While it is possible that some efficiencies may be obtained from class-wide resolution of these issues, I am not convinced that these issues predominate over the individualized claims and justify class certification. Duty and breach are only two of the three elements that class members must prove to prevail on a negligence claim. Wheeling Park Comm'n , 237 W. Va. at 280, 787 S.E.2d at 551. If a plaintiff prevails against Surnaik on the issues of duty and breach of duty with regard to the sprinkler system, any plaintiff in a subsequent claim may arguably invoke the doctrine of collateral estoppel to prevent Surnaik from contesting these issues a second time. Thus, the common questions of duty and breach of duty are not predominant over the individual injury or harm that each individual class member must prove. Accordingly, because I believe that individual issues of fact pertaining to injury and causation predominate in this matter, and because I believe that the circuit court's finding to the contrary was erroneous, I dissent as to the issue of predominance and would grant a writ of prohibition on this basis.
See Syl. Pt. 3, Holloman v. Nationwide Mut. Ins. Co. , 217 W. Va. 269, 617 S.E.2d 816 (2005) (" ‘Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.’ Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).").