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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.  

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About this Author

Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

212-702 5417
Mackenzie Schoonmaker, Environmental Lawyer, Beveridge & Diamond Law Firm

Mackenzie Schoonmaker focuses her practice on litigation and environmental regulatory matters.  Ms. Schoonmaker’s litigation practice includes representing clients in state and federal courts, as well as in data compensation arbitrations under the federal pesticide statute, FIFRA.  Most recently, Ms. Schoonmaker was part of the Firm’s trial team that secured a defense judgment in the District of Columbia Superior Court after a three week trial on tort claims alleging the client supplied corrosive water to apartment buildings.