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Georgia High Court Certifies Landowner Class in Noxious Fumes Suit

Although courts often decline to certify classes in environmental exposure or contamination cases due to differing circumstances among the plaintiffs, the Georgia Court of Appeals found that a group of property owners claiming hydrogen sulfide gas emissions from a paper mill had damaged their property had demonstrated sufficient commonality to warrant class certification. See Georgia-Pacific Consumer Products, LP. v. Ratner, No. A13A0455 (Ga. Ct. App. July 16, 2013), available at www.bdlaw.com/assets/attachments/GAPACvRatner.pdf.  The certified class included the owners of 34 residential properties and 33 parcels zoned for industrial, agricultural and other uses in an area around the mill, who brought nuisance, negligence, and trespass claims alleging injuries from hydrogen sulfide fumes released by the mill. Georgia-Pacific, slip op. at 6.

Under Georgia certification rules, a class must meet numerosity, commonality, typicality, and adequacy requirements in order to receive class certification. See OCGA § 9-11-23(a). Like the federal requirements, Georgia rules provide that “questions of law or fact common to members of the class predominate over any questions affecting only individual members.” Id. At the class certification hearing, Plaintiffs presented testimony from the mill’s environmental manager that the noxious fumes could be detected within a four-mile radius of the mill. Georgia-Pacific, slip op. at 6. In addition, Plaintiffs also offered the affidavit of a real estate appraiser who testified that the fumes would decrease the market value of the residents’ properties. Id. at 6-7. The trial court issued an order certifying the class, and the Defendants appealed. Id. at 7.

Among other arguments, Defendants claimed that Plaintiffs failed to establish the “commonality” element necessary for class certification because individual landowners were affected in different ways and sustained varying amounts of harm. Id. at 7. In affirming the lower court’s decision, the Georgia high court ruled 4-3 that a number of issues were common to the class, including issues surrounding Defendant Georgia-Pacific’s operation of the mill, its implementation of safety programs, as well as the overall effects of the noxious emissions on landowners. Id. at 10-11, 16-17.

Three dissenting judges raised common injury and damages concerns, noting that the Plaintiffs had alleged a variety of medical issues and property damages. Id. at 8-16 (Branch, J., dissenting). Also, the dissenters warned “significant trial time would be devoted to determining separate issues of liability,” because the Plaintiffs had not presented sufficient evidence that the fumes actually affected a majority of the homes in the class area or adequate proof that the fumes were the proximate cause of the alleged property damage. Id. at 16.  

© 2021 Beveridge & Diamond PC National Law Review, Volume III, Number 309
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About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

212-702 5417
Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal...

212-702-5415
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