Plaintiffs seeking class certification for environmental nuisance actions will face an uphill battle — at least in Kentucky. In Powell, et al. v. Tosh, et al., 5:09-CV-00121 (Aug. 2, 2013), the District Court for the Western District of Kentucky decertified a plaintiff class after concluding that the highly individualized proof necessary to establish a permanent nuisance claim under Kentucky law made class certification unavailable under Fed. R. Civ. P. 23 (“Rule 23”). This ruling indicates that plaintiffs seeking class certification based purely on nuisance claims under Kentucky law will face a heightened burden to meet Rule 23’s requirements because of the highly individualized showing necessary to prove a nuisance claim under Kentucky law.  
    
In Powell, residents and property owners in Marshall County, Ky., alleged that they were adversely affected by the less-than-savory smell of a nearby hog farm. The plaintiffs first filed suit in 2009 against several sets of defendants who they alleged were responsible for the hog farm, and in 2012, the Western District of Kentucky certified a plaintiff class under Rule 23(b)(3). That class consisted of current and former residents and property owners within a 1.25-mile radius of the hog farm. The court certified the class for claims of temporary nuisance, permanent nuisance, trespass, negligence, negligence per se, punitive damages, products liability, civil conspiracy and battery, but the class was only certified as against one set of defendants (the “Tosh defendants”).  

On March 8, 2013, the court granted motions for summary judgment against all of the plaintiffs’ claims except permanent nuisance. Based on this ruling, the Tosh defendants moved to decertify the class, arguing that the dismissal of all claims except permanent nuisance warranted reversal of the court’s initial certification of the class. After examining Rule 23 and the necessary elements of proof for a permanent nuisance claim under Kentucky law, the court agreed and ordered that the class be decertified. 

In doing so, the court first examined Rule 23’s standards for class certification and noted that a party seeking to maintain a class action has the burden to affirmatively demonstrate compliance with Rule 23’s requirements. Specifically, Rule 23 provides, in relevant part:

  1. Prerequisites. One or more members of a class may sue ... as representative parties on behalf of all members only if:
    1. the class is so numerous that joinder of all members is impracticable;1
    2. there are questions of law or fact common to the class;2
    3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;3and
    4. the representative parties will fairly and adequately protect the interests of the class.4
  2. Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(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 court noted that pursuant to Rule 23(c)(1)(C), it retained the power to decertify the class at any time before final judgment if evidentiary developments warranted doing so. Relying on this authority, the court held that developments in the case post-class certification warranted a re-examination of three of the four Rule 23(a) prerequisites, and it concluded that the class members could no longer satisfy their affirmative burden under Rule 23.5

The court's primary concern had to do with the class’s continued ability to satisfy Rule 23’s "commonality" prerequisite in light of the dismissal of all claims except permanent nuisance. The court initially held that the class satisfied this prerequisite because each of the potential class members had asserted a common contention that the operation of the subject hog farm caused the same injury (i.e., noxious odors and decrease in the potential class members' property values). However, at the time the court granted class certification, the plaintiffs had not yet had the vast majority of their claims dismissed on summary judgment, and the court’s initial class certification relied, in part, on the fact that liability for several of the plaintiffs' claims could be determined on a class-wide basis.6 After summary judgment, the court concluded that Kentucky's nuisance law prevented the plaintiffs from satisfying the “commonality” prerequisite with regard to their sole surviving claim:

[…] the Court’s review of Kentucky nuisance law compels the conclusion that the question whether the Tosh Defendants’ conduct amounts to a permanent nuisance requires an individualized inquiry [for each Plaintiff] and is not capable of determination on a class-wide basis. That is, the common question of whether the Tosh Defendants' conduct amounts to a permanent nuisance - and, thus, are liable to a given Plaintiff- cannot adequately be resolved by a common answer.

(emphasis added).

The court held that the highly individualized showing necessary to prove a permanent nuisance under Kentucky law necessarily meant that the class could not satisfy the “commonality” prerequisite. Kentucky statutory law outlines the requirements for establishing a claim for permanent nuisance, and states in part:

(2) A permanent nuisance shall exist if and only if a defendant’s use of property causes unreasonable and substantial annoyance to the occupants of the claimant’s property or unreasonably interferes with the use and enjoyment of such property, and thereby causes the fair market value of the claimant’s property to be materially reduced.

KRS § 411.530(2). The court held that Kentucky’s permanent nuisance statute contained both subjective and objective components:

The Kentucky nuisance statute can be broken down into several parts. First, it lays out what a claimant must experience: a defendant’s use of property must either (1) cause unreasonable and substantial annoyance to the claimant, or (2) unreasonably interfere with the claimant’s use and enjoyment of his own property. Each of these possible showings has both a subjective and objective component. In the former, the subjective component asks whether the claimant was in fact ‘substantially annoyed,’ and the objective component asks whether that substantial annoyance was unreasonable. In the latter, the subjective component asks whether there was in fact an ‘interference with the claimant’s use and enjoyment of his property,’ and the objective component asks whether that interference was unreasonable […]7

The court found that both the subjective and objective components of the plaintiffs’ permanent nuisance claim could not be resolved by a common, class-wide answer. With regard to the subjective component, some class members had testified that the hog farm’s smells did not bother them, which cast doubt on whether such members’ claims could meet Kentucky’s requirements for a permanent nuisance. With regard to the objective component, any reasonableness determination required an individualized inquiry requiring individualized proof.8

The court also found the “typicality” factor lacking for many of the same reasons that it found "commonality" lacking. The court noted that because determination of whether the hog farm constituted a permanent nuisance “necessarily still requires a highly individualized inquiry,” proving one plaintiff's claim would not, “by virtue of the necessarily individualized inquiry required, prove the claim of any other named Plaintiff or class member.” Finally, the court examined the “adequacy of representation” prerequisite of Rule 23(a)(4), and noted that the deposition testimony indicating some of the unnamed class members were unaffected by the hog farm seemed to directly undercut or contradict the testimony and position taken by the named class members. Accordingly, the court found this prerequisite also supported its ultimate conclusion that decertification was appropriate.
 

Finally, the court examined Rule 23(b)(3)'s requirement that “questions of law or fact common to the members of the class predominate over any questions affecting only the individual members.” The court noted that “[p]redominance is usually decided on the question of liability, and if the liability issue is common to the class, common issues are held to predominate over individual questions” (quoting In re Revco Sec. Litig., 142 F.R.D. 659, 662 (N.D. Ohio 1992) (internal symbols omitted)). Based on the court's previous conclusions regarding Rule 23(a)'s prerequisites and Kentucky's nuisance law, it found that the “question of liability will require individualized proof and, thus, is not capable of resolution on a classwide basis” because the “individualized issues relative to liability clearly predominate over the common issues.”On August, 2, the Western District of Kentucky decertified a plaintiff class after concluding that the highly individualized proof necessary to establish a permanent nuisance claim under Kentucky law made class certification unavailable under Fed. R. Civ. P. 23 (“Rule 23”) (Powell, et al. v. Tosh, et al., 5:09-CV-00121). This ruling indicates that plaintiffs seeking class certification based purely on nuisance claims under Kentucky law will face a heightened burden to meet Rule 23’s requirements because of elements necessary to prove such a claim.I invite you to read my recent article regarding the Powell decision and learn more about the court findings.