Prantil v. Arkema

Case: 19-20723 Document: 00515716552 Page: 1 Date Filed: 01/22/2021

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

January 22, 2021

No. 19-20723 Lyle W. Cayce

Clerk

Corey Prantil; Ronald Whatley; Betty Whatley; Bret

Simmons; Phyllis Simmons; Greg Nason; Larry

Anderson; Tanya Anderson; Keith Lyons; Beverly

Flannel; Roland Flannel,

Plaintiffs—Appellees,

versus

Arkema Incorporated,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CV-2960

Before Higginbotham, Elrod, and Haynes, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

As Hurricane Harvey deluged southeastern Texas with record floods,

volatile chemicals at a facility in Crosby, Texas, combusted, releasing toxic

ash and smoke into the surrounding communities and causing the evacuation

of nearby residents. Seeking redress for the physical and financial effects of

the incident, certain Crosby-area property owners brought a class action

against the facility’s owner—Arkema, Inc.—on behalf of themselves and

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No. 19-20723

their neighbors. Arkema appeals from an order granting class certification.

We vacate the district court’s certification order and remand the case for

further proceedings under Rule 23.

I.

Arkema’s facility in Crosby, Texas, produces Luperox, a liquid

organic peroxide used to make plastics and composites. Luperox is a volatile

compound that decomposes and combusts unless refrigerated. The Crosby

facility sits in a flood plain near the Gulf Coast, leaving it vulnerable to the

approach of Hurricane Harvey. By August 24, 2017, it was clear that Harvey

would make landfall and likely stall over Texas. Arkema continued

production at Crosby until August 25, 2017, before implementing the

facility’s hurricane preparedness plan. Several days of heavy rain and rising

flood waters at Crosby forced the facility’s “ride-out” team to move nearly

350,000 pounds of combustible materials to refrigerated trailers set on higher

ground. But the floodwaters’ continued rise eventually threatened the

trailers’ cooling systems as well, and on August 29, 2017, Arkema alerted

local authorities that a combustion event was imminent. The authorities

responded by establishing a 1.5-mile evacuation zone around the facility.

Between August 31 and September 4, nine refrigerated trailers burned in

three separate ignitions, the last of which was a controlled burn by emergency

personnel. Further, two of the facility’s wastewater tanks overflowed,

dispersing contaminated water and bringing the count to five total emissions

events. Shortly afterward, local residents saw clouds of white smoke and

accumulating ash on their properties, and persons inside and outside of the

established 1.5-mile evacuation zone reported physical symptoms including

bodily rashes, headaches, eye irritation, blisters, and respiratory difficulty.

Plaintiffs are local property owners who seek to represent a class of all

property owners within a seven-mile radius of the Crosby facility to pursue

2

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injunctive relief and damages against Arkema. They claim to have suffered

adverse health effects, property damage, or both, because of Arkema’s

emissions. They bring claims against Arkema under the Resource

Conservation and Recovery Act (RCRA), the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA), and

the common-law doctrines of negligence, trespass, and public nuisance.

After extended oral argument on Plaintiffs’ motion for class

certification and Akrema’s motions to exclude certain experts, the district

court granted Arkema’s motion to exclude Plaintiffs’ damages expert, but it

credited three of Plaintiffs’ experts and granted Plaintiffs’ motion for class

certification. 1 In granting certification, the district court held that the

proposed class met the elements of Federal Rule of Civil Procedure 23(a) and

that it should be certified as a damages class under Rule 23(b)(3) because

common issues would predominate in the resolution of the class claims and

that a class action was the superior method for adjudicating the dispute. 2 The

district court also certified an injunctive-relief class under Rule 23(b)(2)

because the “actions alleged apply broadly to the entire class, and the

injunctive relief sought will commonly address this injury.” 3 We granted

leave to appeal on October 17, 2019.

Arkema urges four arguments on appeal: (1) that the district court did

not conduct the rigorous analysis required by Fifth Circuit and Supreme

Court precedent, to ensure that the individual claims can be fairly and

effectively adjudicated in a class action; (2) that the district court erred when

1

Prantil v. Arkema, No. 17-2960 at 39 (S.D. Tex. June 3, 2019) (order granting class

certification).

2

Id. at 19-27, 29-39.

3

Id. at 28.

3

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it determined that the proposed class met Rule 23(b)(3)’s predominance

requirement and Rule 23(b)(2)’s cohesiveness requirement; (3) that the

benefits realized by classwide adjudication of common questions would be

lost in the necessary sifting through individualized evidence on the causation

and injury elements in addition to the intractably individualized nature of the

damages and injunction inquiries; and (4) that the district court erred by

relying on certain expert opinions in its certification decision without first

ensuring those opinions would be admissible at trial under the Daubert

standard.

II.

We review the district court’s decision to certify a class for abuse of

discretion. 4 Although a district court has broad discretion to certify a class, it

must “rigorously analyze Rule 23’s prerequisites” before doing so. 5 Such

analysis requires “the district court to go beyond the pleadings to determine

whether the requirements of Rule 23 have been met: ‘a court must

understand the claims, defenses, relevant facts, and applicable substantive

law in order to make a meaningful determination of the certification

issues.’” 6 Additionally, the district court must consider “how a trial on the

merits would be conducted” if the class were certified. 7

We begin with the standard applicable to expert evidence at the class-

certification stage. We then address the predominance of common questions

4

Crutchfield v. Sewerage & Water Bd. of New Orleans, 829 F.3d 370, 375 (5th Cir.

2016).

5

Spence v. Glock, G.m.b.H., 227 F.3d 308, 310 (5th Cir. 2000).

6

Cole v. Gen. Motors Corp., 484 F.3d 717, 724 (5th Cir.2007) (quoting Castano v.

Am. Tobacco Co., 84 F.3d 734, 745 (5th Cir. 1996)).

7

Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996).

4

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in the Rule 23(b)(3) damages class and the cohesiveness of the Rule 23(b)(2)

injunctive-relief class.

A. Daubert’s Applicability to Class Certification

Since its early days, Rule 23 with its b(2) and b(3) classes has played

an increasingly important role in addressing the challenges of aggregating

large numbers of persons seeking recompense for a single event or for injuries

suffered from a common set of facts—product failures, myriad disasters at

the hand of man and nature. With all its difficulties in application, the class

device has proven to be a powerful workhorse to the benefit of plaintiffs and

defendants so as now to be essential.

Yet, certification changes the risks of litigation often in dramatic

fashion. 8 Thus, under Rule 23(f), we have the discretion to hear interlocutory

appeals of class certification orders. 9 This rule was a response to the

determinative character of the certification decision and a perceived need for

developing a jurisprudence of federal class actions across substantive lines in

conformity with the Enabling Act. 10 The Supreme Court in turn developed a

mootness doctrine that treated certification of a class as the determinant—

loss of the class representative did not moot a certified class. 11 In short, these

responses to the consequential character of class certification frames the

8

See Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 834 (7th Cir. 1999) (“[A]

denial of class status can doom the plaintiff,” while “a grant of class status can put

considerable pressure on the defendant to settle.”).

9

Fed. R. Civ. P. 23(f).

10

Advisory Committee’s 1998 Note on subd. (f) of Fed. Rule Civ. Proc. 23.

11

See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75–76 (2013) (explaining

that under Sosna v. Iowa, 419 U.S. 393 (1975) and United States Parole Comm’n v.

Geraghty, 445 U.S. 388 (1980), “a putative class acquires an independent legal status once

it is certified under Rule 23”).

5

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question of the quality of evidence its rests upon. And, we ask, when the

cementing of relationships among proffered class members of liability or

damages or both turns on scientific evidence should we insist that the metric

of admissibility be the same for certification and trial. We answer that

question in the affirmative; the Daubert hurdle must be cleared when

scientific evidence is relevant to the decision to certify.

In so holding, we join three other federal courts of appeal. 12 The Third

Circuit’s reasoning on this issue in In re Blood Reagents Antitrust Litigation, is

particularly instructive, drawing as it does on recent Supreme Court

precedent. 13 The Third Circuit saw the need to apply Daubert at the

certification stage as a natural extension of the Supreme Court’s admonition

in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011), and Comcast Corp.

v. Behrend, 569 U.S. 27, 35 (2013), to conduct a “rigorous analysis” of the

proposed class’s conformity with Rule 23. 14 In Dukes, the Supreme Court

expressed “doubt” that “Daubert did not apply to expert testimony at the

certification stage of class-action proceedings.” 15 And in Comcast, which

concerned use of an expert’s damages model to certify an antitrust class

action, the Supreme Court reaffirmed that it is incumbent on plaintiffs to

submit “evidentiary proof” of their compliance with Rule 23. 16 As the Third

Circuit observed, “[e]xpert testimony that is insufficiently reliable to satisfy

the Daubert standard cannot ‘prove’ that the Rule 23(a) prerequisites have

12

In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015); Sher v.

Raytheon Co., 419 F. App’x 887, 890–91 (11th Cir. 2011); Am. Honda Motor Co. v. Allen, 600

F.3d 813, 816 (7th Cir. 2010).

13

783 F.3d 183 (3d Cir. 2015).

14

Id. at 187.

15

564 U.S. at 354.

16

569 U.S. at 33–34.

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been met ‘in fact,’ nor can it establish ‘through evidentiary proof’ that Rule

23(b) is satisfied.” 17 This is consistent with our prior holding that the class

“certification inquiry . . . must be made based on adequate admissible

evidence to justify class certification.” 18 Thus, if an expert’s opinion would

not be admissible at trial, it should not pave the way for certifying a proposed

class.

Plaintiffs do not take issue with this reasoning; they do not contend

that case law or practical considerations militate against using Daubert for

class certification. Instead, they contend that Arkema has no grounds for

complaint here because the district court applied a full-bore Daubert analysis

when it assessed Plaintiffs’ experts. Our able district judge here was sensitive

to the concerns presented by expert evidence. He heard arguments on each

of Arkema’s motions, and granted one, excluding Plaintiffs’ damages expert

“because he has not actually built or tested any regression analyses that he

suggests could be appropriate for determining damages on a class-wide

basis.” 19 The district court did not disregard its gate-keeping role, but its

analysis of the expert reports reflect hesitation to apply Daubert’s reliability

standard with full force.

The district court began its discussion of the expert reports by

observing that “[w]hether a full Daubert analysis at the class certification

stage is required is unclear.” 20 When discussing Plaintiffs’ evidence of

chemical contamination, the district court observed that “[w]hile it certainly

would have been better for Dr. Kaltofen additionally to include the

17

In re Blood Reagents, 783 F.3d at 187.

18

Unger v. Amedisys Inc., 401 F.3d 316, 319 (5th Cir. 2005).

19

Prantil, No. 17-2960 at 15.

20

Id. at 6.

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background levels, it was not necessary under Daubert at the class

certification stage,” 21 implying that Daubert is less applicable to evidence

used for certification. In its certification order, the district court was not as

searching in its assessment of the expert reports’ reliability as it would have

been outside the certification setting. We do not suggest that the remaining

reports should be excluded; some of Arkema’s objections may only affect the

weight of the reports without undermining their fundamental reliability. In

sum, an assessment of the reliability of Plaintiffs’ scientific evidence for

certification cannot be deferred.

B. The Predominance of Questions Common to the Damages

Class

The district court determined that the proposed damages class was

suitable for certification under Rule 23(b)(3), which provides that a class

action can be maintained if Rule 23(a) is satisfied, if “questions of law or fact

common to class members predominate over any questions affecting only

individual members, and [if] a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.” 22 Arkema

does not dispute that the proposed class meets Rule 23(a)’s threshold

requirements or that a class action is the superior litigation vehicle. 23 This

leaves the issue of predominance.

The predominance requirement “tests whether proposed classes are

sufficiently cohesive to warrant adjudication by representation.” 24 It “calls

21

Id. at 12.

22

Fed. R. Civ. P. 23(b)(3).

23

Prantil, No. 17-2960 at 18-27 (finding that the class satisfies the requirements of

numerosity, commonality, typicality, adequacy, and ascertainability).

24

Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d 629, 636 (5th Cir. 2016) (en banc)

(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)).

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upon courts to give careful scrutiny to the relation between common and

individual questions in a case.” 25 Predominance is a “far more demanding”

hurdle than Rule 23(a)’s commonality requirement. 26

Courts should consider predominance on a claim-by-claim basis, 27 and

the district court did so here: for negligence, it found duty and breach to be

common issues; 28 for trespass, the question of unlawful entry was common

to the class;29 for public nuisance, the question of unreasonable interference

was common. 30 Similarly, the district court concluded that all three elements

of Plaintiffs’ RCRA claim presented common questions. 31 As for CERCLA,

25

Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). “An individual

question is one where ‘members of a proposed class will need to present evidence that

varies from member to member,’ while a common question is one where ‘the same

evidence will suffice for each member to make a prima facie showing [or] the issue is

susceptible to generalized, class-wide proof.’” Id. (alteration in original) (quoting

2 William B. Rubenstein, Newberg on Class Actions § 4:50 (5th ed.

2012)).

26

Amchem Prods., Inc., 521 U.S. at 623–24.

27

Castano, 84 F.3d at 744.

28

Prantil, No. 17-2960 at 31.

29

Id. at 31-32. For a claim of trespass to real property, the plaintiff must show

ownership or a right to possess property; physical, intentional, and voluntary entrance by

the defendant; and injury. Wilen v. Falkenstein, 191 S.W.3d 791, 798 (Tex. Ct. App.—Fort

Worth 2006, pet. denied).

30

Prantil, No. 17-2960 at 32. The elements of a public nuisance claim are an

“unreasonable interference with a right common to the general public” and a “special

injury” that is “distinct from the injury to the public at large.” Peiqing Cong v.

ConocoPhillips Co., 250 F. Supp. 3d 229, 233 (S.D. Tex. 2016).

31

Prantil, No. 17-2960 at 33. To bring an RCRA claim, the plaintiff must show “(1)

that the defendant is a person, including, but not limited to, one who was or is a generator

or transporter of solid or hazardous waste or one who was or is an owner or operator of a

solid or hazardous waste treatment, storage, or disposal facility; (2) that the defendant has

contributed to or is contributing to the handling, storage, treatment, transportation, or

disposal of solid or hazardous waste; and (3) that the solid or hazardous waste may present

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the district court found that three issues—Arkema’s status as a qualifying

responsible person, the Crosby site’s status as a qualifying facility, and the

occurrence of a hazardous release—were common. 32

The district court then addressed whether Plaintiffs’ alleged damages,

the diminution in their property values, would entail individual inquiries

outweighing the common inquiries relating to liability. Plaintiffs proposed to

calculate classwide damages through mass property appraisals, but the

district court rejected the report of Plaintiffs’ damages expert because he

failed to offer a reliable means of making these calculations. Neither the court

nor Plaintiffs identified another means by which Plaintiffs could calculate

damages on a classwide basis. Nonetheless, the district court found that

common legal and factual questions still predominated because “‘virtually

every issue prior to damages is a common issue,’” and Plaintiffs proposed to

bifurcate the proceedings so that damages could be addressed separately, if

at all. 33

The district court identified elements of each claim that would present

common questions, but its predominance inquiry then paused. With that

pause, the district court’s approach resembles that taken by the district court

an imminent and substantial endangerment to health or the environment.” Cox v. City of

Dallas, 256 F.3d 281, 292 (5th Cir. 2001).

32

Prantil, No. 17-2960 at 33-34. A CERCLA plaintiff must show “(1) that the site

in question is a ‘facility’ as defined in [42 U.S.C.] § 9601(9); (2) that the defendant is a

responsible person under [42 U.S.C.] § 9607(a); (3) that a release or a threatened release

of a hazardous substance has occurred; and (4) that the release or threatened release has

caused the plaintiff to incur response costs.” Vine St. LLC v. Borg Warner Corp., 776 F.3d

312, 315 (5th Cir. 2015).

33

Prantil, No. 17-2960 at 37 (quoting Bertulli v. Ind. Ass’n of Continental Pilots, 242

F.3d 290, 298 (5th Cir. 2001)).

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in Madison v. Chalmette. 34 In Madison, the district court certified a class of

individuals who sought damages for exposure to a refinery’s emission of coke

dust while attending a reenactment of the Battle of New Orleans. The district

court concluded that class certification was appropriate because “there is one

set of operative facts that [will] determine liability[:] Plaintiffs were either on

the battlefield and exposed to the coke dust or they were not.” 35 We vacated

the order because, despite the appealing simplicity of its formulation, “[t]he

district court did not meaningfully consider how Plaintiffs’ claims would be

tried.” 36 The inadequacy of the district court’s predominance inquiry was

due, in part, to its failure to account for issues implicated by the asserted

claims and defenses, issues turning on potentially nuanced determinations of

plaintiffs’ “location, exposure, dose, susceptibility to illness, nature of

symptoms, type and cost of medical treatment, and subsequent impact of

illnesses on individuals.” 37 Although we did “not suggest that class

treatment [was] necessarily inappropriate,” we vacated the certification

order and remanded the case because the lack of “‘analysis or discussion

regarding how [the district court] would administer the trial’” was an abuse

of discretion. 38

Here, as in Madison, the district court’s certification order did not

discuss the considerations affecting the administration of trial, and it

concluded that common questions would predominate without adequately

addressing Arkema’s arguments that causation, injury, and damages would

34

637 F.3d 551 (5th Cir. 2011).

35

Id. at 556.

36

Id.

37

Id. at 557.

38

Id. at 556–57 (quoting Robinson v. Tex. Auto. Dealers Ass’n, 387 F.3d 416, 425–26

(5th Cir. 2004)).

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be highly individualized. The district court’s discussion of trial

administration was limited to observing that it was amenable to Plaintiffs’

proposal to bifurcate the trial of liability and damages. But it did not discuss

the manner in which it would conduct the liability phase or how it would

implement Plaintiffs’ proposed “bellwether trials” at the damages phase.

Although the district court acknowledged that Plaintiffs’ mass appraisal

approach to property damages was untenable after their expert was

disqualified, it did not discuss how this difficulty might affect an eventual

damages phase in the proceedings. The district court recognized that

individualized damages do not make the case per se unsuitable for class

treatment, 39 and then concluded that any issues could be addressed as they

arose. In so doing, the court drifted to the “figure-it-out-as-we-go-along”

approach, one to be avoided. 40

When considering the propriety of class certification, the district

court must “respond to the defendants’ legitimate protests of individualized

issues that could preclude class treatment.” 41 This is part of the district

court’s obligation to “understand the claims [and] defenses” at play. 42 A

39

See, e.g., In re Deepwater Horizon, 739 F.3d 790, 815–16 (5th Cir. 2014) (“[I]t is

indeed possible to satisfy the predominance ... requirements of Rule 23(b)(3) in a mass tort

or mass accident class action despite the particular need in such cases for individualized

damages calculations.” (internal quotations omitted)).

40

Madison, 637 F.3d at 557.

41

Chavez v. Plan Ben. Servs., Inc., 957 F.3d 542, 546 (5th Cir. 2020) (citing M.D. ex

rel. Stukenberg v. Perry, 675 F.3d 832, 842-43 (5th Cir. 2012) (noting that “[t]he district

court clearly rejected” the defendant’s individualization argument but had not

“sufficiently analyzed” it)).

42

Castano, 84 F.3d at 745.

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certification order ought to reflect the district court’s consideration of a

defendant’s weightiest arguments against certification. 43

We find that the certification order is wanting in its answer to

Arekma’s arguments that a trial of class claims would devolve into

individualized inquiries on causation, injury, and damages. For instance, the

district court rejected Arkema’s contention that causation would become too

individualized by reasoning that because “Plaintiffs focus only on chemicals

with a strong link to the facility explosion, there are fewer hyper-localized

alternative sources that would turn proof of causation into a series of mini-

trials. . . . [and] alternative causes would likely apply to large chunks or all of

the class area.” 44 The basis for this conclusion that few alternative sources

need be considered is unclear. Other parts of the order suggest that the

district court may have relied on Plaintiffs’ expert, Dr. Kaltofen, to conclude

that alternative sources for the chemicals in question would not be an issue.

But the order also states that Dr. Kaltofen addressed only “some of these

alternative sources and ruled them out in his rebuttal report.” 45 The

difficulty is that we are uncertain whether alternative sources will be a factor

at trial and whether these alternative sources can be dealt with in groups, as

the district court suggested.

The district court also held that injury resulting from Arkema’s

alleged negligence, trespass, etc. could be proven on a classwide basis because

“individuals’ exposure to contaminants results not just from contaminants

43

See, e.g., Chavez, 957 F.3d at 549 (reversing a class certification where the district

court responds to “warring factual contentions” concerning putatively common issues,

with a “thin survey” and “unsupported assurance” as explanations for why predominance

is satisfied).

44

Prantil, No. 17-2960 at 31.

45

Id. at 14 (emphasis added).

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on their properties, but from community-wide contaminants that individuals

are exposed to as they go about their daily lives in the area.” 46 This reasoning

has a welcome, commonsense appeal, but “Rule 23 requires the court to

‘find,’ not [] assume, the facts favoring class certification.” 47 The issue is

whether the record contains scientific evidence supporting the conclusion

that the movements of class members could result in exposure sufficient to

cause cognizable harm. 48 An assumption about the movement of persons

throughout the class area cannot relieve Plaintiffs of their burden to

“‘affirmatively demonstrate [their] compliance with [] Rule [23].’” 49 And by

itself, the assumption does not allay the concern that proof of causation and

harm could vary greatly from one class member to another based on the

location of their property and the extent and frequency of their movements

within the class area.

Much of the district court’s predominance analysis proceeded from

its view that “all injuries resulted from [a] single course of conduct,” and

thus “the focus will be on Defendant’s actions.” 50 Of course, a case may be

relatively more suitable for class treatment where only one defendant and one

course of conduct are at issue. 51 But what is needed here is discussion of how

proof of Arkema’s conduct will affect trial. 52 Absent such analysis, we are

46

Id. at 26-27.

47

Unger, 401 F.3d at 321.

48

“[C]ourts must certify class actions based on proof, not presumptions.” Flecha

v. Medicredit, Inc., 946 F.3d 762, 768 (5th Cir. 2020).

49

Id. at 766–67 (quoting Dukes, 564 U.S. at 350).

50

Prantil, No. 17-2960 at 32.

51

See, e.g., Crutchfield, 829 F.3d at 378 (listing cases).

52

See Gene & Gene LLC v. BioPay LLC, 541 F.3d 318, 326 (5th Cir. 2008) (“The

district court did not explain how the common course of conduct it described would affect

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unable to judge whether the common issues relating to Arkema’s conduct in

the leadup to Hurricane Harvey are relatively more complex such that they

can be expected to predominate over individualized issues. 53 Future

certification proceedings would here benefit from detailing the evidence the

parties may use to prove or defend against liability and its commonality to all

class members.

We do not exhaustively catalogue the matters deserving consideration

under Rule 23(b)(3) on remand. And we do not suggest that Arkema is

entitled to prevail on its counterarguments to certification. We hold only that

the relative balance of concededly common claim elements to contested

elements of causation and injury warrants closer attention.

C. The Cohesiveness of the Injunctive-Relief Class

Plaintiffs seek two separate forms of injunctive relief from Arkema:

medical monitoring and property remediation. Rule 23(b)(2) provides that a

class action may be maintained if “the party opposing the class has acted or

refused to act on grounds that apply generally to the class, so that final

injunctive relief or corresponding declaratory relief is appropriate respecting

the class as a whole[.]” 54 “It is well-established that ‘[i]nstead of requiring

common issues, [Rule] 23(b)(2) requires common behavior by the defendant

a trial on the merits. Thus, the district court’s assertion that this case would not degenerate

into a series of individual trials is largely unsupported and is, in our opinion, mistaken.”).

53

Cf. Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006)

(“Based on the evidence presented to the district court regarding the complexity of the

medical causation and damages issues, and with little evidence that the liability issues are

similarly complex, it was not an abuse of its discretion for the district court to conclude that

Appellants had failed to demonstrate that the class issue of Appellee’s negligence or strict

liability predominates over the vastly more complex individual issues of medical causation

and damages.”).

54

FED. R. CIV. P. 23(b)(2).

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toward the class.’” 55 Thus, 23(b)(2) certification has three requirements:

“(1) ‘class members must have been harmed in essentially the same way’;

(2) ‘injunctive relief must predominate over monetary damage claims’; and

(3) ‘the injunctive relief sought must be specific.’” 56 “The specificity

element requires plaintiffs to give content to the injunctive relief they seek so

that final injunctive relief may be crafted to describe in reasonable detail the

acts required.” 57

The district court concluded that members of the proposed class had

been harmed in essentially the same way because the injuries for which they

seek injunctive relief arise from Arkema’s conduct in preparing for and

mitigating the effects of Hurricane Harvey on its Crosby facility. Concerning

Plaintiffs’ request for medical monitoring, the district court found that “[i]f

their allegations are true, Plaintiffs need to be repeatedly tested for health

effects so that cancer or other diseases may be caught early and treated,” and

“the injunctive relief sought will commonly address [Plaintiffs’] injury.” 58

The district court envisioned the medical monitoring injunction as an

iterative process involving “early detection and treatment” through which

“a more complete understanding of the potential consequences of exposure

is attained and treatment plans are put into place.” 59 But the district court

did not discuss the range or types of medical monitoring the injunction would

implement.

55

Yates v. Collier, 868 F.3d 354, 366 (5th Cir. 2017) (quoting In re Rodriguez, 695

F.3d 360, 365 (5th Cir. 2012)).

56

Id. (quoting Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 524 (5th Cir.

2007)).

57

Yates, 868 F.3d at 367 (internal quotations omitted)

58

Prantil, No. 17-2960 at 27.

59

Id. at 27-28.

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Concerning Plaintiffs’ request for property remediation, the district

court explained that “a remediation program can be applied class-wide—

perhaps one that orders testing of Plaintiffs’ properties and cleanup of

contaminants, as described” in the report of one of Plaintiffs’ experts, Dr.

Glass. 60 The district court observed that it was necessary to deal with

remediation on a classwide basis because “[i]ndividual clean-up attempts

would be ineffectual, [and] because landowners could still be exposed as they

move throughout the class area.” 61 Although it mentioned the possibility of

implementing the testing program in Dr. Glass’s report, the district court

made no specific findings as to what the property remediation program would

entail.

These discussions of the injunctions in their broad strokes do not

satisfy the requirement that injunctive relief be reasonably specific. Our

decisions make clear that more is needed than a common failure by the

defendant and the prospect that all class members could realize some benefit

if the defendant is compelled to act or desist. 62 To be sure, “Rule 23(b)(2)

does not require that every jot and tittle of injunctive relief be spelled out at

the class certification stage,” but some “‘reasonable detail’ as to the ‘acts

required’” is necessary. 63

We do not agree with Arkema that our decision in M.D. ex rel.

Stukenberg v. Perry necessarily precludes all possible forms of injunctive relief

for the proposed class. In Stukenberg, a proposed class of foster care children

sought “at least twelve broad, classwide injunctions, which would require the

60

Id. at 28.

61

Id.

62

Stukenberg, 675 F.3d at 846.

63

Yates, 868 F.3d at 368 (quoting Stukenberg, 675 F.3d at 848).

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district court to institute and oversee a complete overhaul of Texas’s foster

care system.” 64 Although we reversed the district court’s finding that the

class was cohesive, we clarified that Rule 23(b)(2) does not require “a

specific policy uniformly affecting—and injuring—each [plaintiff] . . . so long

as declaratory or injunctive relief ‘settling the legality of the [defendant’s]

behavior with respect to the class as a whole is appropriate.’” 65 The

proposed class in Stukenberg sought injunctive relief addressing years of

varied neglect and requiring the district court to outsource responsibility for

determining the form of the injunctions to expert panels that would do the

actual work of tailoring relief. 66

Here, by contrast, there is stronger evidence that through its response

to a specific event, Hurricane Harvey, Arkema “acted or refused to act on

grounds that apply generally to the class.” 67 The current record does not

compel the conclusion that Plaintiffs’ medical and property injuries are

incapable of being addressed by classwide injunctions. For instance, it is not

necessarily fatal to a uniform scheme of property remediation that certain

properties may contain higher concentrations of contaminants than others,

provided Plaintiffs can identify a common method of remediation and some

reasonable standard by which remediation might be assessed. 68

64

Stukenberg, 675 F.3d at 845.

65

Id. at 847–48 (quoting Fed. R. Civ. P. 23(b)(2) 1966 Amendment advisory

committee note).

66

Id. at 846-47.

67

Fed. R. Civ. P. 23(b)(2)

68

Cf. Yates, 868 F.3d at 368 (requested injunction deemed reasonably specific for

class certification where plaintiffs “identified air-conditioning as a remedy that would

provide relief to each member of the class” and identified “maintaining a heat index of 88

degrees or lower” as the applicable standard).

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Still, we are sensitive to the challenges inherent in crafting appropriate

injunctions. As Arkema notes, there is some uncertainty as to what symptoms

or conditions will be medically monitored for all class members, whether

individual health considerations need to be addressed for relief to be

adequate. Concerning property, the certification order leaves us uncertain as

to how the extent of necessary property remediation can be determined, and

whether a responsive injunction can be fashioned to account for Arkema’s

past remediation efforts. If the district court intends to wholly adopt one or

another proposal from Plaintiffs’ experts, it must say so and explain how that

proposal overcomes Arkema’s concerns. 69 Despite the present uncertainty

concerning the propriety of classwide injunctive relief, we are confident that

by evaluating the particulars of each injunction on remand, both the parties

and the district court will arrive at a nuanced assessment of whether

Plaintiffs’ claims for relief can be effectively addressed in a class action. 70

III.

We do not here limit the tools necessary to the district court’s

management of complex litigation, such as the oft-deployed bifurcation of

liability and damages. The reality of Rule 23 is that it depends upon the

69

Cf. Maldonado, 493 F.3d at 524 (plaintiffs could not seek classwide injunctive

relief under 23(b)(2) requiring defendant to provide “mutually affordable healthcare”

when plaintiffs “failed [] to identify any way to determine what a reasonable or ‘mutually

affordable’ rate [was] for the wide variety of medical services offered”).

70

See id. (“The difficulty in specifying exactly what Appellants seek from an

injunction highlights the fact that individualized issues here overwhelm class

cohesiveness.”).

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management skills of our able district courts. We only set the boundaries of

the field on which their discretion is applied.

We vacate the district court’s order certifying the proposed class and

remand the case for further proceedings including certification of the class.

20