SINES v. DARLING INGREDIENTS INC.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES and MANUELA SINES, on behalf of

themselves and all others similarly situated,

Plaintiffs, Civil Action No. 19-19121

v. OPINION

DARLING INGREDIENTS INC.,

Defendant.

PADIN, District Judge.

Plaintiffs are a putative class of Jersey City residents who allege that Defendant Darling

Ingredients Inc. (“Darling”), which operates a Newark animal rendering facility, releases noxious

odors into the environment which reduce Plaintiffs’ property values. D.E. 2 (“Am. Compl.”) ¶¶

3, 6, 16-19. Plaintiffs move for class certification pursuant to Federal Rule of Civil Procedure 23.

D.E. 70 (“Class Cert. Mot.”). Darling opposes. D.E. 78 (“Class Cert. Opp’n”). Darling also

moves, pursuant to Federal Rule of Evidence 702, to exclude the testimony of two experts offered

in connection with class certification: Mark Cal and Theodore Lamicella. D.E. 72 (“Cal Daubert

Mot.”); D.E. 73 (“Lamicella Daubert Mot.”). Plaintiffs oppose these motions. D.E. 76 (“Cal

Daubert Opp’n”); D.E. 77 (“Lamicella Daubert Opp’n”). The Court has reviewed all relevant

submissions and considered the motions without oral argument.1 See Fed. R. Civ. P. 78(b); L.

1 Plaintiffs have filed a reply in support of the class certification motion. D.E. 82 (“Class Cert.

Reply”). Likewise, Darling has filed replies in support of the motions to exclude expert testimony.

D.E. 79 (“Cal Daubert Reply”); D.E. 80 (“Lamicella Daubert Reply”).

Civ. R. 78.1(b). For the following reasons, the Court will GRANT the motions to exclude and

DENY the motion for class certification.2

I. BACKGROUND3

Darling operates an animal rendering facility that is surrounded by residential properties,

including the properties where Plaintiffs reside. Am. Compl. ¶¶ 16-17. Plaintiffs allege that the

Darling animal rendering facility releases noxious odors that enter the surrounding residential

properties, contaminate the air, disturb residents’ use and enjoyment, and diminish property values.

Id. ¶¶ 18-19, 83-84, 92, 106-07. Plaintiffs seek relief on behalf of a putative class of owner-

occupants and renters on theories of nuisance, trespass, and negligence. Id. ¶¶ 87, 100, 108.

Initially, Plaintiffs defined the putative class as all owner-occupants and renters of

residential property within 1.75 miles of the Darling animal rendering facility. Id. ¶ 59. However,

in the present class certification motion, Plaintiffs modify the putative class to include only those

owner-occupants and renters of residential property within a pre-defined geographic area in Jersey

City, across the bay from Darling’s facility. Class Cert. Mot. at 1-2; see also D.E. 70-2 (proposed

class area map). Plaintiffs seek to certify this putative class pursuant to Rule 23(a) and Rule

23(b)(3). D.E. 70-1 (“Class Cert. Br.”) at 9, 48.

2 The Court will grant the motions to exclude without a hearing because there is “a sufficient record

upon which to rely, including [the] expert report and the parties’ submissions, rendering a Daubert

hearing unnecessary.” Antonio v. Progressive Ins. Co., 795 Fed. App’x 128, 131 (3d Cir. 2020);

see also Oddi v. Ford Motor Co., 234 F.3d 136, 154 (3d Cir. 2000) (affirming the exclusion of

expert testimony without a hearing because “the district court already had before it the depositions

and affidavits of the plaintiff's experts”). In any event, Plaintiffs do “not even begin to suggest

how such a hearing would have advanced [their] position, and we can not begin to imagine that it

would have” because the class certification motion would be denied even if the expert testimony

was not excluded. Oddi, 234 F.3d at 154.

3 This section is based on the Amended Complaint’s allegations. At this stage, the Court does not

accept the class allegations as true.

To meet class certification requirements, Plaintiffs offer expert testimony from Mark Cal

and Theodore Lamicella. See, e.g., id. at 26-30. Plaintiffs offer Cal’s testimony to provide a class-

wide method for determining whether Darling emitted odors throughout the proposed class area,

as well as the extent of any odor emissions. See D.E. 70-29 at 5 (Cal Rpt.). Relatedly, Plaintiffs

offer Lamicella’s testimony to provide a class-wide method for determining whether Darling

caused damages, as well as the measure of any damages. See D.E. 70-30 at 3 (Lamicella Decl.).

However, Darling asserts that both experts’ testimony is inadmissible under Rule 702 and the

standard set out in Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993). D.E. 72-1 (“Cal

Daubert Br.”); 73-1 (“Lamicella Daubert Br.”). Accordingly, Darling has moved to exclude both

experts. Cal Daubert Mot. at 2; Lamicella Daubert Mot. at 2.

II. LEGAL STANDARDS

A “party proposing class-action certification bears the burden of affirmatively

demonstrating by a preponderance of the evidence [its] compliance with the requirements of Rule

23.” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015), as amended (Apr. 28, 2015).

Specifically, “every putative class action must satisfy the four requirements of Rule 23(a) and the

requirements of either Rule 23(b)(1), (2), or (3).” Marcus v. BMW of N. Am., LLC, 687 F.3d 583,

590 (3d Cir. 2012).

Under Rule 23(a), a class may be certified only if: (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)(1)-(4). These requirements are, respectively, referred to as the numerosity,

commonality, typicality, and adequacy requirements. See, e.g., Marcus, 687 F.3d at 590-91.

Under Rule 23(b)(3), a party who seeks class certification must satisfy three additional

requirements. First, the party must prove “that the class is ascertainable.” Byrd, 784 F.3d at 163.

Second, the party seeking class certification must establish that “questions of law or fact common

to class members predominate over any questions affecting only individual members” of the class.

Fed. R. Civ. P. 23(b)(3). Third, the party must show “that a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.” Id. These additional

requirements are, respectively, referred to as the ascertainability, predominance, and superiority

requirements. See, e.g., Byrd, 784 F.3d at 161 n.4, 162, 164.

A party who seeks class certification cannot “demonstrate conformity with Rule 23”

through “challenged expert testimony” unless the party also proves “that the expert testimony

satisfies the standard set out in Daubert” and Rule 702. In re Blood Reagents Antitrust Litig., 783

F.3d 183, 187 (3d Cir. 2015). According to the standard set out in Daubert, the district court acts

as a “gatekeeper” pursuant to Rule 702 to ensure that “any and all expert testimony or evidence is

not only relevant, but also reliable.” 509 U.S. at 589. Under Rule 702 and Daubert, the district

court must consider: (1) the “qualifications” of the expert, (2) the “reliability” of the expert

methodology, and (3) the “fit” between the expert analysis and the case. In re Paoli R.R. Yard Pcb

Litig., 35 F.3d 717, 741-43 (3d Cir. 1994); Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir.

2000). The party offering the expert testimony bears the burden of demonstrating compliance with

these requirements by a preponderance of the evidence. See Padillas v. Stork-Gamco, Inc., 186

F.3d 412, 418 (3d Cir. 1999).4

4 Plaintiffs are correct that the “‘[t]he trial court’s gatekeeping function is . . . reduced when the

gatekeeper is keeping the gate only for himself.’” Cal Daubert Opp’n at 29 (quoting In re

Tropicana Orange Juice Mktg. & Sales Practices Litig., 2017 WL 2362848, at *2 (D.N.J. May 31,

2017)); Lamicella Daubert Opp’n at 19 (same). Nevertheless, the “rigorous analysis” of class

certification “applies to expert testimony critical to proving class certification requirements.”

III. ANALYSIS

Plaintiffs’ putative class does not satisfy Rule 23. Specifically, the putative class fails the

adequacy requirement of Rule 23(a) and the ascertainability, predominance, and superiority

requirements of Rule 23(b)(3). Additionally, Plaintiffs’ expert testimony does not satisfy Rule

702 or Daubert; Cal and Lamicella propose approaches that fail the reliability and fit requirements,

and Lamicella also fails the qualifications requirement. Importantly, even if the Court does not

exclude the relevant expert testimony, it would still decline to certify the class.

A. The Putative Class Does Not Satisfy Rule 23(a)

Although Plaintiffs’ putative class satisfies the numerosity, commonality, and typicality

requirements, it fails the adequacy requirement of Rule 23(a).5

1. The Numerosity Requirement is Satisfied

“No minimum number of plaintiffs is required to maintain a suit as a class action, but

generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40,

the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir.

2001). Here, Plaintiffs have demonstrated that there are 3,550 households in the proposed class

area. D.E. 70-11 at 2 (Roman Decl.).6 Thus, the numerosity requirement is satisfied.

Blood Reagents Antitrust Litig., 783 F.3d at 187 (internal citations omitted). Therefore, the Court

will consider the qualifications, reliability, and fit of the experts and their approaches,

notwithstanding the absence of a jury.

5 Importantly, “putative class members need not establish Article III standing.” Neale v. Volvo

Cars of N. Am., LLC, 794 F.3d 353, 362 (3d Cir. 2015). Darling argues that this holding “was

abrogated by Ramirez and is wrong.” Class Cert. Opp’n at 29 n.8. However, in Ramirez, the

Supreme Court held that every class member must establish standing to recover after class

certification; it did not “address the distinct question [of] whether every class member must

demonstrate standing before a court certifies a class.” TransUnion LLC v. Ramirez, 141 S. Ct.

2190, 2208 n. 4 (2021). At this stage, “the problem of un-injured absent class members is a

problem of Rule 23, not of Article III.” Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1273 (11th

Cir. 2019) (internal citations omitted).

6 Matthew Roman is a paralegal at Liddle Sheets Coulson P.C., Plaintiffs’ counsel.

2. The Commonality Requirement is Satisfied

“[T]he commonality requirement will be satisfied if the named plaintiffs share at least one

question of fact or law with the grievances of the prospective class.” In re Ins. Brokerage Antitrust

Litig., 579 F.3d 241, 264 (3d Cir. 2009) (internal citations omitted). Additionally, the common

question “must be of such a nature that it is capable of classwide resolution—which means that

determination of its truth or falsity will resolve an issue that is central to the validity of each one

of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

Here, Plaintiffs have demonstrated that the putative class shares questions of fact and law

that are capable of class-wide resolution. In New Jersey, a public nuisance is “an unreasonable

interference with the exercise of a right common to the general public” and a private nuisance is

“an [unreasonable] invasion of another’s interest in the use and enjoyment of land.”7 Mayor &

Council of Borough of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1056 (D.N.J. 1993);

Smith v. Honeywell Int’l Inc., 2011 WL 810065, at *3 (D.N.J. Feb. 28, 2011) (internal citations

omitted). Relatedly, negligence entails “(1) a duty of care owed by defendant to plaintiff; (2) a

breach of that duty by defendant; and (3) an injury to plaintiff proximately caused by [that]

breach.”8 Optica, Inc. v. Metro Pub. Adjustment, Inc., 2005 WL 1719134, at *16 (D.N.J. July 21,

2005). Most of the common questions proposed by Plaintiffs are plainly relevant to these factual

and legal determinations.9 And since a trespass is “an [unauthorized] entry onto another’s

7 Although the Amended Complaint referenced nuisance in general, the Court previously held that

Plaintiffs sufficiently pled public nuisance and private nuisance. D.E. 30 at 3 n.1.

8 Although the Amended Complaint referenced negligence and gross negligence, the Court

previously held that “[g]ross negligence and negligence claims consist of the same elements . . . .”

D.E. 30 at 10.

9 For example, the following shared questions are clearly relevant: “whether Defendant interfered

with a right common to the public” (public nuisance); “what constitutes a substantial and

unreasonable interference for a normal person in the community” (private nuisance); “whether the

NJDEP’s repeated issuance of NOVs constituted conduct proscribed by a statute, ordinance, or

property,” another shared question is whether the dispersion of noxious odors constitutes an entry

onto property. Rowe v. E.I. Dupont De Nemours & Co., 262 F.R.D. 451, 463 (D.N.J. 2009).

Ultimately, these common questions can be resolved in one stroke, as they concern Darling or

objective inquiries, rather than Plaintiffs or the putative class. Accordingly, the commonality

requirement is satisfied.10

3. The Typicality Requirement is Satisfied

To determine whether the typicality requirement has been satisfied, “courts must consider

the attributes of the proposed representatives, the class as a whole, and the similarity between the

proposed representatives and the class.” In re Schering Plough Corp. ERISA Litig., 589 F.3d 585,

597 (3d Cir. 2009). “If the claims of the named plaintiffs and putative class members involve the

same conduct by the defendant, typicality is established regardless of factual differences.” Newton

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183-84 (3d Cir. 2001), as amended

(Oct. 16, 2001).

Here, the claims of the named Plaintiffs and the putative class members involve the same

conduct by the same defendant. The proposed representatives are James and Manuela Sines,

whose attributes echo the class a whole. According to the data sheet submitted to Plaintiffs’

counsel, the Sines have owned and occupied a residential property in Jersey City for over 10 years

administrative regime” (negligence); “whether Defendant acted intentionally or unreasonably in

causing off-site odor emissions” (private nuisance and public nuisance); “whether or not

Defendant failed to adequately utilize each of the available odor mitigation techniques in its

operation of the Facility” (public nuisance, private nuisance, and negligence); “whether

Defendant’s conduct is of a continuing nature” (same). Class Cert. Br. at 35-36.

10 Darling argues that commonality is not satisfied because “conflicting answers to key liability

questions” remain. Class Cert. Opp’n at 30. However, Plaintiffs’ only burden is to show a single

common question that is capable of class-wide resolution. In any event, “this individualized issue

is more appropriately analyzed under [another] requirement” for Rule 23, such as predominance.

Jane v. Rodriguez, 2020 WL 6867169, at *5 n.5 (D.N.J. Nov. 23, 2020).

and have noticed odors of “rotting animal carcasses” from Darling throughout that time. D.E. 70-

24; see also D.E. 70-25 at 7, 14 (Manuela Sines Tr.). Moreover, Manuela Sines has testified that

“this ugly smell of rotten meat” disturbs her enjoyment of the outdoors and affects the value of her

home. D.E. 70-25 at 13-14 (Manuela Sines Tr.). Thus, the typicality requirement is satisfied.11

4. The Adequacy Requirement is Not Satisfied

Adequacy is established if the proposed representatives have “the ability and the incentive

to represent the claims of the class vigorously” and if “there is no conflict between the individual’s

claims and those asserted on behalf of the class.” In re Cmty. Bank of N. Va., 622 F.3d 275, 291

(3d Cir. 2010) (internal citations omitted), as amended (Oct. 20, 2010). To satisfy the adequacy

requirement, “the named plaintiff’s interests must be sufficiently aligned with the interests of the

absentees” and “the plaintiff’s counsel must be qualified to represent the class.” Beneli v. BCA

Fin. Servs., Inc., 324 F.R.D. 89, 98 (D.N.J. 2018).

Here, Plaintiffs’ counsel is qualified to represent the class, but the named Plaintiffs’

interests are not sufficiently aligned with the interests of the absentees. Plaintiffs’ counsel has

experience with “environmental class actions of this type” and “knowledge, expertise, and

resources” to litigate this case. D.E. 70-31 at 2 (Sheets Decl.).12 However, the named Plaintiffs

have admitted that they are “not seeking damages for physical injury” and that “the claims made

in this case are limited to claims of property damages.” D.E. 78-44 at 3, 6 (Pls.’ Resp. and Obj. to

Def.’s First Req. for Admis.). Yet numerous putative class members have described adverse health

impacts in data sheets. See, e.g., D.E. 70-22 at 31, 38, 45, 71, 121, 123, 138. Because class actions

11 Darling argues that “the conflicts of interest that render Plaintiffs inadequate also defeat

typicality,” but this issue is more appropriately analyzed under the adequacy requirement. Class

Cert. Opp’n at 34.

12 Laura Sheets is an attorney at Liddle Sheets Coulson P.C., the law firm retained to represent

Plaintiffs.

have preclusive effects on the entire class, “a plaintiff proposing to be a class representative cannot

adequately do so where that plaintiff has voluntarily for[e]gone personal injury claims” and

“multiple data sheets suggest that some plaintiffs may have personal injury claims.” Thornburg v.

Ford Motor Co., 2022 WL 4348475, at *7 (W.D. Mo. Sept. 19, 2022) (internal citations omitted);

see also Taylor v. Sturgell, 553 U.S. 880, 894 (2008) (claim preclusion applies to class actions);

City Select Auto Sales, Inc. v. David Randall Associates, Inc., 2012 WL 426267, at *5 (D.N.J. Feb.

7, 2012) (the entire controversy doctrine “is a form of claim preclusion with a slightly broader

scope” that applies to a class action if “the class was certified”). In other words, since there is a

conflict between the individuals’ claims and those asserted on behalf of the class, the proposed

representatives do not have the ability and the incentives to represent the claims of the class

vigorously. Accordingly, the adequacy requirement is not satisfied.

B. The Putative Class Does Not Satisfy Rule 23(b)(3)

Additionally, Plaintiffs’ putative class fails the ascertainability, predominance, and

superiority requirements of Rule 23(b)(3).

1. The Ascertainability Requirement is Not Satisfied

To satisfy the ascertainability requirement, “the class must be defined with reference to

objective criteria” and “there must be a reliable and administratively feasible mechanism for

determining whether putative class members fall within the class definition.” Hayes v. Wal-Mart

Stores, Inc., 725 F.3d 349, 355 (3d Cir. 2013). “If class members are impossible to identify without

extensive and individualized fact-finding . . . then a class action is inappropriate.” Marcus, 687

F.3d at 593.

Here, there is a reliable and administratively feasible mechanism to determine whether a

putative class member falls within the class definition. Specifically, “all that is required is to

determine whether that person’s home is geographically located within the class area boundary.”

Class Cert. Br. at 32; see also Lloyd v. Covanta Plymouth Renewable Energy, LLC, 585 F. Supp.

3d 646, 653 (E.D. Pa. 2022) (there was a feasible mechanism to determine whether a putative class

member resided within 1.5 miles of an alleged odor emitter because “one would only need a map

to discern whether a property is located within this radius”).

Darling argues that class members cannot be identified without extensive and

individualized fact-finding because there is “no class-wide means of determining which properties

are residential and which are commercial.” Class Cert. Opp’n at 27; see also 78-36 at 31-32

(Lamicella Tr.) (tax assessor data can be inaccurate); 78-43 at 11 (Phillips Rpt.) (same); 78-34 at

8 (Phillips Decl.) (examples of commercial properties with residential units).13 However, even if

Plaintiffs would need to consult websites, conduct virtual or drive-by inspections, or occasionally

inquire with occupants, “there are unlikely to be serious administrative burdens that are

incongruous with the efficiencies expected in a class action.” Byrd, 784 F.3d at 170 (internal

citations omitted). In fact, Plaintiffs have indicated that “all class members will receive individual

notice at their residence by first class mail,” so it should not be difficult to collect forms detailing

the designations of properties and to check this information against public records or other readily

available information. Class Cert. Br. at 33; see also Byrd, 784 F.3d at 160-61, 169-171; City

Select Auto Sales Inc., 867 F.3d at 441.14

13 Trevor Phillips is Managing Director at Alvarez & Marsal Disputes and Investigations, LLC,

the firm Darling retained to evaluate alleged loss in property value and alleged loss of use and

enjoyment of property.

14 In Byrd, the district court found that it would be unfeasible to identify the household members

of owners and lessees, but the Third Circuit reversed, in part because the household members could

complete forms detailing their addresses, which could be checked against public records and the

owners’ and lessees’ addresses. 784 F.3d at 160-61, 169-171. Likewise, in City Select Auto Sales

Inc., the Third Circuit held that “[a]ffidavits, in combination with records or other reliable and

administratively feasible means, can meet the ascertainability standard.” 867 F.3d at 441.

Nevertheless, the class is not defined with reference to objective criteria. Plaintiffs have

modified the proposed class area—from the 1.75 miles surrounding the animal rendering facility

to a pre-defined geographic area across the bay—but have offered no credible explanation for this

change. At most, Plaintiffs have pointed to data sheets collected by Plaintiffs’ counsel to assert

that the proposed class area is “the most significantly impacted” by the animal rendering facility.

Class Cert. Br. at 14 n.1; see also 70-3, 70-4, 70-21, 70-22. However, Plaintiffs have also

submitted notices of violation and penalty assessments issued to Darling by county health officials

and state environmental regulators, and the only locations indicated therein are northwest of

Darling, in the opposite direction of the proposed class area. D.E. 71-1 at 17, 25, 62.

Additionally, Plaintiffs have submitted a complaint filed by the New Jersey Department of

Environmental Protection, as well as the consent order that terminated the litigation. D.E.s 70-12,

71-2, 71-4. But the underlying complaints that gave rise to the litigation were from Cortland Street

in Newark, which is also located northwest of Darling, in the opposite direction of the proposed

class area.15 D.E.s 70-14 at 6, 70-15 at 3, 70-17 at 2 (investigator declarations); see also D.E. 78-

33 at 2 (underlying complaints map). Clearly, Plaintiffs have based the class definition “upon their

own interpretation of the limited information available to them.” Brooks v. Darling Int’l, Inc.,

2017 WL 1198542, at *7 (E.D. Cal. Mar. 31, 2017) (the class was not objectively defined because

the proposed class area was based only on data sheets and complaints to a governmental entity and

“not upon any preliminary finding made by their experts”); see also Thornburg v. Ford Motor Co.,

2022 WL 4348475, at *5 (W.D. Mo. Sept. 19, 2022) (the class was not objectively defined in part

15 According to the consent order, only two underlying complaints were from Jersey City, and

these were verified after the litigation arose. D.E. 71-2 at 4. Likewise, of the approximately 150

complaints that individuals made to the Department and that Plaintiffs have submitted, only 40

were from Jersey City. D.E. 70-5.

because the expert did “not supply any explanation as to why the proposed class area’s boundaries

were chosen”).

Although there is a feasible means to determine class membership without extensive fact-

finding, since the class is not defined with reference to objective criteria, the ascertainability

requirement is not satisfied.

2. The Predominance Requirement is Not Satisfied

The predominance requirement “tests whether proposed classes are sufficiently cohesive

to warrant adjudication by representation, a standard far more demanding than the commonality

requirement of Rule 23(a).” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310-11 (3d

Cir. 2008) (internal citations omitted). However, predominance does not require absolute identity

of the underlying claims. See Harnish v. Widener Univ. Sch. of Law, 833 F.3d 298, 304 (3d Cir.

2016). “[I]f the court decides that the central, predominant issues in the case are common, then

Rule 23(b)(3) is met despite the possibility that some subsidiary issues will require individualized

evidence.” Id.

Here, the putative class is not sufficiently cohesive to warrant adjudication by

representation because the central, predominant issues in the case require individualized evidence.

To assess liability, the fact finder must determine: (1) whether Darling emitted odors throughout

the class area; (2) whether the odor emissions were unreasonable, unauthorized, or a breach of the

duty of care; and (3) whether Darling interfered with a public right to unpolluted air, invaded a

private interest in the use or enjoyment of property, or proximately caused injury to class members.

Put simply, liability depends upon the extent of emissions, their potential justifications, and any

resulting impacts. Even if there is a common basis to evaluate justifications—because the relevant

facts concern Darling, rather than the putative class—Plaintiffs have not provided class-wide

means to analyze emissions or impacts.

Plaintiffs have retained Mark Cal and Theodore Lamicella to provide class-wide means for

determining, respectively, the extent of emissions and any resulting impacts. However, their

expert testimonies are inadmissible under Rule 702 and Daubert, as they do not uniformly satisfy

the qualifications, reliability, and fit requirements.

a. Qualifications, Reliability, and Fit

First, to satisfy the qualifications requirement, an expert must have “specialized

knowledge” in the relevant area, whether through “practical experience” or “academic training and

credentials.” Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998) (internal citations omitted). In

general, the Third Circuit has been “satisfied with more generalized qualifications.” In re Paoli,

35 F.3d at 741.

Second, to satisfy the reliability requirement, a methodology must be based upon “the

methods and procedures of science rather than on subjective belief or unsupported speculation”

and the expert have “good grounds for his or her belief.” Calhoun v. Yamaha Motor Co., U.S.A.,

350 F.3d 316, 321 (3d Cir. 2003) (internal citations omitted). Relevant considerations include the

testability, controlling standards, and error rates of the methodology, as well as any peer review or

general acceptance in the scientific community. In re Paoli, 35 F.3d at 742 & n.8.

Third, to satisfy the fit requirement, an expert analysis must be “sufficiently tied to the facts

of the case [such] that it will aid the jury in resolving a factual dispute.” Daubert, 509 U.S. at 591

(internal citations omitted). In other words, “the connection between the scientific knowledge and

the case must itself constitute scientific knowledge,” which is a standard “higher than bare

relevance.” In re Paoli, 35 F.3d at 745 n.13.

Here, the qualifications, reliability, and fit requirements are not uniformly satisfied. As an

initial matter, Lamicella does not have specialized knowledge in the relevant areas, whether

through practical experience or academic training and credentials. Even at a general level,

Lamicella is not qualified to apply the methodology or analysis that he previews. Additionally,

Lamicella and Cal do not offer methods and procedures of science for which there are good

grounds. Although each proposes an approach with abstract appeal, neither has obtained peer

review, and as applied to this case, their methodologies are not testable or subject to controlling

standards or error rates.16 Likewise, Lamicella and Cal offer analyses that are not sufficiently tied

to the facts of the case. Indeed, neither supplies any meaningful connection between his scientific

knowledge and the case.

b. Mark Cal’s Expert Testimony is Inadmissible Under Rule 702 and Daubert

Mark Cal is an environmental engineer who is certified by the State of New Mexico and

the American Academy of Environmental Engineers and Scientists. D.E. 70-29 at 17 (Cal Rpt.).

Cal has a B.S. in Chemical Engineering and an M.S. and Ph.D. in Civil and Environmental

Engineering from the University of Illinois at Urbana-Champaign. Id. In addition to a multi-

decade career in academia, Cal has long been the sole proprietor of a consulting firm that

specializes in air quality engineering and atmospheric dispersion modeling. Id. at 17-18. Although

Cal is qualified, his methodology is unreliable and his analysis does not fit the case.

i. Cal Offers Boilerplate Opinions

To measure the extent of emissions, Cal proposes to employ AERMOD, which he describes

as “the preferred atmospheric dispersion model used by local, state and federal regulatory agencies

16 Even if Cal’s model has general acceptance in the scientific community, his methodology is still

unreliable. Moreover, Lamicella’s methodology has not been generally accepted in the scientific

community.

and in non-regulatory situations, such as modeling of odor dispersion.” Id. at 2, 12. According to

Cal, AERMOD “can determine the frequency, intensity and location of nuisance level odors within

the proposed class area.” Id. However, Cal has not run AERMOD for the Darling facility in

Newark, and he could not testify with a reasonable degree of certainty that he would be able to run

the model for the animal rendering plant. D.E. 72-3 at 22, 34 (Cal Tr.). Instead, Cal has authored

a preliminary report that describes the required inputs and expected outputs of AERMOD in

general terms, but that does not explain how AERMOD can or will be applied to this specific case.

D.E. 70-29 (Cal Rpt.). Even if Cal has demonstrated that AERMOD constitutes scientific

knowledge, he has not demonstrated that the connection between AERMOD and the case itself

constitutes scientific knowledge.17 In fact, Cal has not described any connection between

AERMOD and the case, so no tests or controlling standards can be implemented, and no error rates

can be discerned.

ii. Cal Does Not Have the Necessary Data

Although Cal is not obligated to determine the extent of emissions at this stage, he must

demonstrate that his methodology and analysis are ultimately capable of determining emissions.

Put differently, while Cal is not required to produce the expected outputs of AERMOD, he must

assess the availability of necessary inputs for the model if he wishes to demonstrate the reliability

and fit of his approach. However, Cal has not investigated the “real-world input data” needed to

run AERMOD, including the emissions data that serve as a critical input for the model. Id. at 8;

D.E. 72-3 at 15-16 (Cal Tr.). As a result, he does not know whether such data exist or where such

data could be located. D.E. 72-3 at 15-16 (Cal Tr.). Cal has suggested that emissions data can be

17 Nor has Cal demonstrated that AERMOD has been subject to peer review. At most, he suggests

that the “general principles of AERMOD” are based upon “scientific literature, publications, and

peer review . . . .” D.E. 76-1 at 8 (Cal Decl.).

“determined by on-site testing or estimated with emissions factors.” D.E. 70-29 at 8 (Cal Rpt.).

But he has not investigated possible changes in odor control equipment, policies, or practices, so

his on-site testing would not necessarily reflect past emissions data. D.E. 72-3 at 13-15 (Cal Tr.).

Likewise, he has not investigated the production rates or feed rates of raw materials, which are

critical to estimate emissions data using emissions factors.18 Id. at 16-19. Without emissions data

or information about odor control changes or production and feed rates, Cal cannot run an accurate

AERMOD model. Id. at 20-22.

Cal speculates that permits might require facilities to maintain the necessary data for an

AERMOD model, including information about changes in odor control equipment. Id. at 21, 32.

However, corporate representative William Frish has testified that Darling does not measure

emissions from its Newark facility, and expert witness Karen Vetrano has investigated and

confirmed that emissions data do not exist. D.E. 79-5 at 5 (Frish Tr.); D.E. 72-5 at 4, 30 (Vetrano

Rpt.).

Plaintiffs attempt to discredit Vetrano by suggesting “that all she does is ‘interpret the

output information.’” Class Cert. Reply at 9 n.12. But Plaintiffs misconstrue the relevant

testimony, which indicates that Vetrano has experience assisting the development of AERMOD

models, specifically with respect to emissions inputs. D.E. 82-3 at 7-8 (Vetrano Tr.). In any event,

18 Cal has suggested that he could “perform a search for publicly available emission factors” or

that “a firm could be retained to measure emission factors for odorous species emitted from the

Darling Facility.” D.E. 76-1 at 9 (Cal Decl.). However, he has done no work to assess whether

public searches would be fruitful, and measurements from a firm would face the same obstacles as

on-site testing. Cal also speculates about the potential of “other data” as inputs, but he does provide

any detail about the nature or sufficiency of this information vis-a-vis AERMOD modeling. Id.

Plaintiffs have not demonstrated that Cal satisfies Rule 702 and Daubert, even if the Court

disregards the Vetrano’s opinions.19

Finally, Plaintiffs argue that Darling has exploited the bifurcation of discovery to withhold

important emissions information. Cal Daubert Opp’n at 25. The discovery requests and responses,

however, tell a different story. After Plaintiffs requested the production of various documents that

concerned emissions, Darling responded that it would “conduct a reasonable search for any non-

privileged formal reports or analyses it performed relating to the emission of odors that can be

detected outside of Darling’s Newark facility.” D.E. 76-7 at 7-9, 12-13, 23-28. Although Darling

also objected to the extent Plaintiffs sought “merits discovery” for class certification, Plaintiffs

have not demonstrated that Darling ultimately withheld any emissions data. Id. On the contrary,

Darling communicated to Plaintiffs that it “conducted a reasonable search for non-privileged

documents . . . and produced such documents to the extent they exist, if at all.” D.E. 79-6 at 3-4.

iii. Cal Does Not Account for Other Odor Sources

According to Cal, an AERMOD model must consider all potential sources of odors that

can be smelled within the proposed class area. D.E. 72-3 at 31-33 (Cal Tr.). Potential sources of

odor near Jersey City include the Newark facilities of Passaic Valley Sewage Commission, Dart

Transfer Station, American Halal, Firmenich Chemicals, Elan Chemicals, Equistar Chemicals,

Sunoco, Shell, Covanta Essex, and Buckeye Terminals. D.E. 72-5 at 13-17 (Vetrano Rpt.). In

fact, community members have filed complaints with the Essex Regional Health Commission

regarding suspected odors from Passaic Valley Sewage Commission, American Halal, and

Covanta Essex. D.E. 78-9 at 2-5; D.E. 78-11 at 2; D.E. 78-14 at 2-6, 9. Yet Cal has not

19 For the same reason, it is immaterial that Frish has expressed some ambivalence about the

available data or that Vetrano may not have firsthand knowledge of the available data. See D.E.

79-5 at 3-4 (Frish Tr.); D.E. 72-5 at 29 (Vetrano Rpt.).

investigated whether odors smelled within the proposed class were generated by other sources. Id.

at 30-31.

Although Cal has not considered other facilities, many of the data sheets from surrounding

residents reported smells that could have originated from other sources, including sewage, feces,

and rotten egg odors.20 D.E.s 70-3, 70-4, 70-21, 70-22; see also D.E. 72-5 at 37-39 (Vetrano Rpt.).

Additionally, many of the surrounding residents who completed data sheets later testified that they

did not intend to attribute the odors to Darling, and much of their testimony described smells

associated with other facilities.21 See, e.g., D.E. 78-19 at 4-5 (Circhlow Tr.); D.E. 78-20 at 4

(Canfield Tr.); D.E. 78-24 at 4 (Yau-Hopf Tr.); D.E. 78-25 (Vega Decl.); D.E. 78-26 (Alfaro

Decl.); D.E. 78-27 (Calianese Decl.); D.E. 78-28 (Green Decl.); D.E. 78-32 (Burno Decl.); D.E.

70-39 at 28 (Caporale Decl.); see also 72-5 at 33-37, 40, 44 (Vetrano Rpt.).22 Likewise, of the

nearly 100 surrounding residents who provided Darling with signed statements, many identified

smells or odors that likely originated from other sources.23 D.E. 70-37, 70-38, 70-39, 70-40, 70-

47; see also D.E. 72-5 at 40, 44 (Vetrano Rpt.).

Put simply, “several other possible sources of noxious odors” could have been detected in

the proposed class area, and not “every person . . . was complaining about the same smell.”

20 Cal has conceded that surrounding residents who reported sewage, feces, or rotten egg smells

could have perceived odors that were emitted by waste-water treatment plants, landfills, or garbage

collection centers. D.E. 72-3 at 9-12, 36-38 (Cal Tr.).

21 It is plausible that the putative class members did not intend to attribute the odors to Darling, as

the data sheets presupposed that Darling was responsible for the smells. Specifically, the data

sheets listed Darling atop the form and placed a checkbox near the question about odors from

Darling, leaving little room to blame other facilities. D.E. 70-3, 70-4, 70-21, 70-22.

22 Eugene Critchlow, William Canfield, Pearl Yau-Hopf, Veronica Vega, Rafaelita Alfaro, Pamela

Calianese, Hazel Green, Katherine Burno, and Gary Caporale are Jersey City residents.

23 The community member complaints to the Essex County Regional Health Commission also

included descriptions of odors that likely originated from sources other than Darling, such as

sewage, garbage, and chemical smells. D.E. 78-9 at 2-5; D.E. 78-11 at 2; D.E. 78-14 at 2-6, 9.

Hamilton v. 3D Idapro Sols., LLC, 2019 U.S. Dist. LEXIS 128217, at *8 (W.D. Wis. Aug. 1,

2019). Thus, Plaintiffs have “not shown that odors suffered by the class area can be traced to a

common defendant.” Id. at 7. Cal has suggested that AERMOD can measure “total impact from

multiple sources” and that “source groups can be turned on or off to see their contribution to the

overall pollutant concentrations within a geographic region.” D.E. 70-29 at 5, 9 (Cal Rpt.); see

also 76-1 at 6, 10-11 (Cal Decl.) (“I believe that I will be able to procure all of the necessary data

to produce an atmospheric dispersion model that demonstrates Darling’s contribution to the odor

that has been reported in the community.”). But speculative say-so is insufficient because “Cal

has not actually run any AERMOD simulations.” Hamilton, 2019 U.S. Dist. LEXIS 128217, at

*9. In other words, even if the model could generally control for other odor sources, Cal has not

demonstrated that he can consider other facilities in this specific instance.24

c. Theodore Lamicella’s Expert Testimony is Inadmissible Under Rule 702 and Daubert

Theodore Lamicella is a real estate appraiser and tax assessor with certifications from the

States of New Jersey and Pennsylvania. D.E. 70-30 at 11, 13 (Lamicella Decl.). Lamicella has

completed courses at Ocean County College, but has not obtained any academic or professional

degrees. Id. at 11. However, Lamicella has many years of experience as a commercial appraiser

and tax assessor, and he provides consulting services to public and private institutions and legal

professionals as the Director of Appraisal & Litigation Services at Associated Appraisal Group.

24 Although some of the foregoing evidence involves the original class area, rather than the

modified class area, there is sufficient evidence to consider odor sources other than Darling. See

D.E. 78-46 (Vetrano Decl.) (adopting opinions regarding the original class area for the modified

class area). For example, a Facebook group for residents of Society Hill and Droyer’s Point

includes posts that detail other odor sources, as well as smells associated with other facilities. D.E.

70-28 at 1, 4, 20, 21, 24, 35, 53, 54. Plaintiffs submitted these Facebook posts, which largely

preceded this litigation.

Id. at 11-12. Nevertheless, Lamicella is unqualified, his methodology is unreliable, and his

analysis does not fit the case.

i. Lamicella Lacks the Requisite Expertise

Lamicella lacks the requisite expertise to calculate depreciation in property values through

the study that he proposes. Lamicella has extensive experience in real estate and mass appraisals.

D.E. 70-30 at 1-2 (Lamicella Decl.). But he has never conducted mass appraisals outside the

context of tax assessments or sewer and water enhancements, nor has he performed difference-in-

differences hedonic regression analyses, neighborhood comparison evaluations, or assessments of

property value diminution attributable to environmental sources.25 D.E. 73-4 at 29, 54-55

(Lamicella Tr.). Indeed, while Lamicella has testified that mass appraisals involve regression

analyses, he has received no formal training in statistics and does not consider himself an expert

in the subject matter. Id. at 24, 33. Additionally, Lamicella has never served as an expert in a

market value diminution case that involves environmental sources or large numbers of properties,

nor has he offered opinions in a class action. Id. at 27-29. Tellingly, Lamicella suggests that he

could “oversee” a study undertaken by others at his firm, but without the relevant specialized

knowledge, practical experience, or academic training and credentials, he could not ensure the

integrity of the study. D.E. 70-30 at 3 (Lamicella Decl.).

ii. Lamicella Offer Boilerplate Opinions

To measure any impacts to putative class members resulting from noxious odor emissions,

Lamicella proposes a mass appraisal coupled with a neighborhood comparison evaluation. D.E.

25 A difference-in-differences hedonic regression analysis is a statistical method to determine how

different factors, including unobserved factors, impact an outcome over time. See H. Spencer

Banzhaf, Difference-in-Differences Hedonics, NATIONAL BUREAU OF ECONOMIC RESEARCH (Aug.

2019),

https://back.nber.org/appendix/w21485/Diff-in-Diff_Hedonics_Aug_2019.pdf.

70-30 at 4-5 (Lamicella Decl.) According to Lamicella, the mass appraisal would identify

properties, define a market area, identify economic characteristics in that market area, develop a

model that reflects those economic characteristics, and apply conclusions from the model to the

properties. Id. The neighborhood comparison evaluation would “then employ the same

methodology to assess a similarly situated neighborhood with the same property and economic

characteristics, but one without the presence of a facility that was found to be emitting noxious

odors.” Id. at 5. In theory, this analysis would illustrate depreciation in property values in the

proposed class area. Id.

In practice, however, Lamicella has not analyzed any diminution in property values,

performed any appraisals, or conducted any neighborhood comparisons for the proposed class

area. D.E. 73-4 at 5-6, 12, 40, 42-43, 53 (Lamicella Tr.). In fact, Lamicella has not even identified

the economic characteristics in the market area or a similarly situated neighborhood. Id.

Since Lamicella “does not provide any detail about—and in fact does not know—fundamental

elements of his proposed analysis,” he fails to supply any meaningful connection between

scientific knowledge and the case. D.E. 78-43 at 7 (Phillips Rpt.). For the same reason, his

barebones methodology cannot be tested, controlled, or evaluated for errors.26 Thus, Lamicella

should be excluded. See Morr v. Plains All Am. Pipeline, L.P., 2021 WL 4478660, at *6 (S.D. Ill.

Sept. 30, 2021) (excluding an expert who “conducted preliminary mass appraisal model

development” for a nuisance, trespass, and negligence case, but who did not conduct “analysis

specific to this case”); In re ConAgra Foods, Inc., 302 F.R.D. 537, 550 (C.D. Cal. 2014) (excluding

an expert who “describe[d] hedonic regression and conjoint” analyses for a consumer fraud case,

26 Nor has Lamicella demonstrated that his approach has been subject to peer review or generally

accepted in the scientific community.

but who did “not actually perform either analysis or describe in any detail their specific application

to this case”).27

iii. Lamicella Lacks the Necessary Data

To compile the necessary data for his methodology and analysis, Lamicella suggests that

he would consult information from the local tax assessor, the federal census, a multiple listing

service, another internet service, or aerial images and maps. Id. at 5-6. However, Lamicella has

conceded that data from local tax assessors, multiple listing services, and other internet services

are not necessarily accurate, and he believes that he has encountered inaccurate information from

the Jersey City tax assessor. D.E. 73-4 at 9, 30-33 (Lamicella Tr.). Nor has Lamicella proposed

alternative sources of aggregate data. See Morr, 2021 WL 4478660, at *5 (excluding an expert

who had not “researched the available residential data necessary to run his model”); ConAgra, 302

F.R.D. at 552 (excluding an expert who did not identify “any data presently in his possession to

which the models can be applied”). Instead, Lamicella suggests that he would utilize information

from “interviews and / or surveys” and he “anticipate[s] that . . . ‘on the ground,’ verification and

collection of additional data may be warranted.” D.E. 70-30 at 6 (Lamicella Decl). But such

interviews, surveys, and on-the-ground verification and collection entail individualized review,

which undermines efforts to measure common impact.28 See Clark v. Prudential Ins. Co. of Am.,

27 In ConAgra, the court also found that the expert did not “identify the set of comparator products

he would include in his analysis” to assess the impact from an allegedly misleading food

advertisement. 302 F.R.D. at 551-52. Here too, Lamicella has not identified the comparable

neighborhood used to assess the impact from the alleged emissions.

28 Indeed, independent real estate appraisers who have worked in the proposed class area are

“unaware of any data” that allows for a class-wide approach and have concluded that “individual

analysis of each property” is unavoidable. D.E. 78-42 at 3-4, 7, 10 (Davey Decl., Lore Decl.,

Smith Decl.).

289 F.R.D. 144, 199 (D.N.J. 2013) (denying class certification “due to lack of commonality and

predominance based on the individualized review necessary”).

As with Cal, Plaintiffs suggest that Lamicella should not be excluded because Darling “has

repeatedly used [the] Phase I discovery limitation to class certification issues to shield Plaintiffs

from discovery of relevant information that would be necessary to actually conduct expert

modeling.” Lamicella Daubert Opp’n at 16. However, Darling objected to producing

“[d]ocuments relating to property values” among ten other categories of documents, and Plaintiffs

have not demonstrated that Darling ultimately withheld property value information on discovery

limitation grounds. D.E. 77-5 at 32. Moreover, Darling objected to the production on other

grounds, including that Plaintiffs sought “information that is publicly available,” which Plaintiffs

could “obtain themselves from public sources.” Id. at 33. In any event, Plaintiffs have not

explained why documents concerning surrounding property values are likely to be in the custody,

possession, or control of a company that operates an animal rendering facility.

iv. Lamicella Does Not Account for Other Sources of Odor

According to Lamicella, any “confirmed and documented polluting facility” should be

factored into a mass appraisal and neighborhood comparison evaluation. D.E. 70-30 at 4

(Lamicella Decl.).29 But Lamicella has not investigated other odor sources, nor is he aware of how

he would allocate depreciation in property values among different polluters.30 D.E. 73-4 at 12,

14-15, 46-47, 50-52 (Lamicella Tr.). Thus, Lamicella “has no method for determining whether

those sources—instead of or in addition to the alleged odors from the Darling Facility—might

29 As detailed above, there are numerous confirmed and document polluting facilities around the

proposed class area.

30 Although Lamicella may “believe” he will be able to allocate proportions of property value

decreases among different facilities, he has not articulated any means of doing so. D.E. 73-4 at 13

(Lamicella Tr.).

contribute to any diminution in value his analysis might find.” D.E. 78-43 at 7 (Phillips Rpt.); see

also ConAgra, 302 F.R.D. at 551-52 (excluding an expert who could not “determine the portion

of any calculated price premium attributable to . . . other possible interpretations” of an allegedly

misleading food advertisement).

v. Lamicella Cannot Measure the Entire Relevant Period

Additionally, Lamicella cannot measure depreciation in property values throughout the

entire relevant period, as his approach only provides “a snapshot in time.” D.E. 73-4 at 42-43, 55

(Lamicella Tr.). In other words, Lamicella proposes to calculate impact at a particular temporal

moment, but his methodology and analysis cannot discern whether this impact applies to a broader

stretch of time. And even if Lamicella could attribute diminution in property values to an extended

interval, he has not identified a time frame for his approach. Id.

vi. Lamicella Cannot Measure Renter Impact

Lamicella also fails to account for renters who are part of the putative class. Indeed, the

study proposed by Lamicella is intended to measure depreciation in property values, which only

impacts owners in the putative class. D.E. 78-43 at 6 (Phillips Rpt.). “Renters – who have no

ownership interest in the property they occupy – cannot suffer diminution in property value

damages.” Id. Lamicella cannot even isolate renters from the putative class to calculate the impact

to owners, as he does not know the number of properties that are owner-occupied versus renter-

occupied or any class-wide means to obtain this information. D.E. 73-4 at 3-4 (Lamicella Tr.). To

his knowledge, the only means to discern the number of owner-occupied versus renter-occupied

properties is through “direct survey.” Id. However, such individualized inquiry defeats the

purposes of his approach, which is to determine impact on a common basis.

vii. Lamicella Cannot Measure Individual Impact

Relatedly, Lamicella fails to account for individual variation within the putative class. As

an initial matter, any diminution in value would “be applied uniformly to the properties within the

class, irrespective of their differing characteristics” or qualities. D.E. 70-30 at 5 (Lamicella Decl.).

For example, “a 5% loss of value caused by the neighboring emitting facility” would be used “to

determine the loss of value to every property” in the proposed class area, and the same rate would

be deducted from the value of each home. Id. Thus, Lamicella proposes a study that can only

measure “average diminution in value across all properties in the Proposed Class Area.” D.E. 78-

43 at 7 (Phillips Rpt.); see also D.E. 73-4 at 44-45 (Lamicella Tr.). But “a court cannot just

aggregate plaintiffs who suffered damages with plaintiffs who did not suffer damages and then

disburse ‘average’ damages.” Dzielak v. Whirlpool Corp., 2017 WL 6513347, at *14 (D.N.J. Dec.

20, 2017).31 The class-wide means offered to determine impact should resolve individualized

issues, not sidestep them altogether.32

Lamicella not only disregards individual variation in property value depreciation, but also

ignores individualized issues regarding the nature of the impact experienced by putative class

members. Some class members could have experienced property value diminution without any

31 In Dzielak, plaintiffs alleged that washing machines were not as efficient as advertised and that

higher energy costs were paid as a result. 2017 WL 6513347, at *2. To measure injury, plaintiffs

proposed to “use estimates of energy expense . . . and attempt to apply it to the entire class—

regardless of each individual’s energy [expense] and regardless of whether the class member

suffered any energy-expense injury at all.” Id. at *12. The Court found this purportedly

“representative evidence” to be inadequate and concluded that there was no class-wide means to

measure injury. Id. at *11-14. Here too, the Court finds the purportedly representative evidence

to be inadequate and concludes that impact cannot be measured on a common basis. Indeed, the

same loss in property value cannot be applied across the entire class regardless of individual

variation in loss and regardless of whether a class member suffered a loss at all.

32 Although Lamicella suggests that “many, if not most, properties could be disaggregated into

categories,” he does not describe this process in any detail or explain how it would resolve

individualized issues. D.E. 70-30 at 7 (Lamicella Decl.).

impact to the use and enjoyment of their property.33 Others could have experienced a disturbance

to the use and enjoyment of property without any impact to their property value. However,

Lamicella only provides a single theory of impact, which does not necessarily apply to every class

member.

For the putative class, individual variation in impact is not merely theoretical, but a

manifest reality. Of the surrounding residents who provided Darling with signed statements, most

indicated that they did not smell any odors, and some suggested that the odors did not disturb the

use and enjoyment of their property.34 D.E.s 70-37, 70-38, 70-39, 70-40, 70-47; see also D.E. 72-

5 at 40, 44 (Vetrano Rpt.). Moreover, independent real estate appraisers who have worked in the

proposed class area have never found odors from Darling to affect the market value of residential

properties. D.E. 78-42 at 4, 7, 10 (Davey Decl., Lore Decl., Smith Decl.); see also D.E. 78-43 at

6 (Phillips Rpt.). Thus, no matter the theory of impact, individualized issues abound. See

Hamilton, 2019 U.S. Dist. LEXIS 128217, at *5 (“Even if all class members were exposed to [the]

odors, individual inquiries would be required to determine whether the odor was strong enough to

interfere with the [use or] enjoyment of individual class members' property, or whether individual

class members experienced an actual loss . . . .”).35

33 But see Burke v. Hemlock Farms Cmty. Ass’n, 2009 WL 3601592, at *5 (M.D. Pa. Oct. 28,

2009) (the use and enjoyment of property is impacted by a decrease in property value).

34 Similarly, putative class members who posted to Facebook sometimes expressed different views

about whether odors could be smelled in the community. D.E. 70-28 at 20, 21, 43.

35 Nor does Cal’s approach resolve these individualized inquiries, as an AERMOD model cannot

determine which individuals were disturbed in the use and enjoyment of their property, nor can it

determine which individuals experienced decreased property values. D.E. 72-3 at 27-29 (Cal Tr.).

Plaintiffs argue that disturbance to the use and enjoyment of property is an objective standard.

Class Cert. Br. at 41; see also Smith, 2011 WL 810065, at *3 (quoting Rowe, 262 F.R.D. at 459)

(“A harm is significant if ‘normal persons living in the community would regard the invasion in

question as definitely offensive, seriously annoying or intolerable . . . .’”). In the abstract, an

AERMOD model could meet this standard by providing “an objective quantification of the

concentration of . . . odorous emissions in specific locations across a geographic area.” D.E. 76-1

Plaintiffs argue that individual variation in impact is unimportant at this stage because

“individualized issues relating to the amount of each class members’ damages are insufficient to

defeat class certification.” Class Cert. Br. at 40; see also Neale, 794 F.3d at 374-75 (quoting

Comcast Corp. v. Behrend, 569 U.S. 27, 42 (2013) (Ginsburg, J. & Breyer, J., dissenting))

(“‘[R]ecognition that individual damages calculations do not preclude class certification under

Rule 23(b)(3) is well nigh universal.’”); Bogosian v. Gulf Oil Corp., 561 F.2d 434, 456 (3d Cir.

1977) (“[I]t has been commonly recognized that the necessity for calculation of damages on an

individual basis should not preclude class determination when the common issues which determine

liability predominate.”). However, “the plaintiffs gloss over the fact that when courts speak of

damages, they are often referring to two distinct concepts: the fact of damage and the

measure/amount of damages.” Harnish, 833 F.3d at 305 (internal citations omitted). Unlike the

amount of damages, “[t]he fact of damage, often synonymous with injury or impact, is frequently

an element of liability requiring plaintiffs to prove that they have suffered some harm traceable to

the defendant's conduct.” Id. Because liability for nuisance and negligence depends upon impact,

Lamicella cannot be excused for his failure to prove loss to property value or disturbance to the

use and enjoyment of property “on a common basis.” Id. at 306.36

Since the qualifications, reliability, and fit requirements are not uniformly satisfied, the

expert testimonies of Cal and Lamicella are inadmissible under Rule 702 and Daubert and cannot

at 7 (Cal Decl.). However, Cal has not demonstrated that he can run an AERMOD model in this

case. Likewise, Lamicella has not demonstrated that he can provide an objective quantification of

impact to the use and enjoyment of property.

36 For this reason, Olden v. LaFarge Corp. is inapposite. There, the court found that “that

individual damage determinations might be necessary, but the plaintiffs have raised common

allegations which would likely allow the court to determine liability (including causation) for the

class as a whole.” 383 F.3d 495, 508 (6th Cir. 2004). Here, Darling has not merely invoked variety

in the measure of damages, but their very existence.

be used to satisfy Rule 23’s predominance requirement.37 But even if the Court does not exclude

Cal and Lamicella, it would still find the predominance requirement unsatisfied, as their expert

testimonies are insufficient to demonstrate that the central, predominant issues in the case are

common.38

3. The Superiority Requirement is Not Satisfied

To determine superiority, the Court considers, among other things, “the likely difficulties

in managing a class action.” Fed. R. Civ. Pr. 23(b)(3). The superiority requirement “asks the court

to balance, in terms of fairness and efficiency, the merits of a class action against those of

alternative available methods of adjudication.” In re Warfarin Sodium Antitrust Litig., 391 F.3d

516, 533-34 (3d Cir. 2004) (internal citations omitted). Ultimately, courts have found “substantial

37 The remaining cases cited by Plaintiffs are unpersuasive. As an initial matter, each case involves

class certification under a state rule, as opposed to Rule 23. See Sutton v. Apex Env’t, LLC, 20-cv-

116 (Ohio Ct. Com. Pl., Jefferson Cnty, Sep. 23, 2022) (at 76-2) (Ohio Civil Rule 23); Gonzalez,

et al. v. Clark-Floyd Landfill, LLC, 10C02-1608-CT-000131 (Ind. Cir. Ct., Clark Cnty., Oct. 18,

2019), aff’d 19A-CT-02680 (Ind. Ct. App. Dec. 16, 2020) (Indiana Trial Rule 23); Baranofky, et

al. v. Rousselot Peabody, Inc., 2084-cv-00896-BLS2 (Mass. Super. Ct., Suffolk Cnty., June 13,

2022) (Mass. Rule of Civil Procedure 23); Dudley et al. v. API Indus. d/b/a Aluf Plastics,

030905/2018 (N.Y. Sup.Ct., Rockland Cnty., Jan. 3, 2022) (N.Y. Civil Practice Law and Rule

901). But state law for class certification often differs from federal law. See, e.g., Weld v. Glaxo

Wellcome Inc., 434 Mass. 81, 87 & n.8 (2001) (Massachusetts law “does not mandate an early

ruling on certification,” so plaintiffs “do not bear the burden of producing evidence sufficient to

prove that the [class certification] requirements have been met.”). Moreover, Baronofsky is

unpersuasive for other reasons. In that case, the ascertainability requirement was less stringent,

the class definition was based on expert modeling, the defendant had not provided evidence of

alternative odor sources, and there was evidence that “the vast majority of putative class members

. . . suffered compensable injury.” D.E. 70-6 at 2-3, 4, 8, 11. Aluf is also unpersuasive for

additional reasons. There, the AERMOD model was subject to the Frye standard, the smells

noticed by putative class members were generally unassociated with alternative odor sources, and

Cal conducted “data collection, mapping, and analysis to measure Defendant’s emissions from

their facility’s five vertical stacks” and concluded “that the residents who reported noxious odors

. . . [were] definitively in the path of ‘odor transport’ from the Defendant’s facility.” D.E. 70-7 at

31-32, 35, 44-45.

38 In similar cases, courts have declined to certify the classes at issue, even without excluding the

relevant expert testimonies. See Tropicana, 2017 WL 2362848; Brooks, 2017 WL 1198542;

Hamilton, 2019 U.S. Dist. LEXIS 128217.

overlap in the superiority and predominance inquiries.” Kelly v. RealPage Inc., 47 F.4th 202, 215

n.11 (3d Cir. 2022).

Here, the Court is likely to encounter difficulties in managing the class action due to the

individualized issues that will predominate in the litigation. In other words, for the same reasons

that the predominance requirement is not satisfied, the merits of a class action are unclear in terms

of fairness and efficiency. Plaintiffs argue that alternative methods of adjudication are inferior

because “the discovery and motion practice involved becomes extensive, time-consuming, and

inefficient.” Class Cert. Opp’n at 7-8.39 But Plaintiffs’ general arguments would dictate the

certification of most putative classes without regard for the specifics of each case. Thus, on

balance, the superiority requirement is not satisfied.

IV. CONCLUSION

For the above reasons, the motions to exclude will be GRANTED and the motion for class

certification will be DENIED. An appropriate Order accompanies this Opinion.

Dated: June 6, 2023

Evelyn Padin, U.S.D.J.

39 Specifically, Plaintiffs argue that “defendants typically issue duplicative discovery requests and

depose each of the named plaintiffs[,] procuring nothing but overwhelmingly redundant

testimony.” Class Cert. Opp’n at 8 n.8. Additionally, Plaintiffs argue that “the complaint will

invariably be amended numerous additional times to add to the never-ending stream of litigants

who come forward throughout the process as they learn about the case from their neighbors.” Id.