Petition for Writ of Certiorari — Zrnchik v. Amoco Oil Co.

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a Supreme Guert, US

FILED

No.9 98 TS4 OCT 280%

De te ak

IN THE

Supreme Court of the Whited States

October Term, 1998

Dorthea and Joseph Zrnchik, et al.,

Petitioners,

Amoco Oi! Company,

Respondent

On Petition for a Writ of Certioran

To the Supreme Court of Indiana

PETITION FOR WRIT OF CERTIORARI

Edward McGlynn Gaffney, Jr.* William F. Satterlee III

Valparaiso University School Larry G. Evans

of Law Jack A. Kramer

Valparaiso, IN 46383 Hoeppner, Wagner& Evans

219-465-7860 103 East Lincolnway

* Counsel of Record

Valparaiso, IN 46384

219-464-496 |

Patrick J. McNanama

P.O. Box 374

Crown Point, IN 46307

219-756-2110

‘VU

Questions Presented

Whether the certification of a mandatory state class action

pursuant to Rule 23(B)(1) of the Indiana Trial Rules, without any

notice to parties litigating the same issues in federal court, with-

out any meaningful hearing in which these federal plaintiffs

could object to the class certification, and without a right to opt

out of a class wholly for monetary damages, violates the Due

Process Clause of the Fourteenth Amendment.

Whether a State trial rule allowing an automatic change of

venue violates the Equal Protection Clause of the Fourteenth

Amendment, where the rule permits wholesale exclusion of

members of racial minorities from sitting on juries called to de-

liberate about environmental damage occurring within communi-

ties in which they predominate, and where no race-neutral reason

for the request was required at the time the change of venue was

ordered.

iit

List of Parties

The parties to this proceeding are:

Petitioners: Dorthea and Joseph Zrnchik, Diana and Ed-

ward Abrego, Anastasha Abrego, Edward Abrego, Jr., Gilbert

Abrego, Magda Abrego, Melchor Abrego, Lucilia and Francisco

Aguilera, David Aquilera, David C. Aquilera, Jr., Veronica

Aquilera, Brian Arteaga, Blanca Banegas, Kelly Benegas, Mi-

chael Banegas, Eileen and Peter Beda, Michael Beda, Michelle

Beda, Lucille and James Braun, Lorene and Harold Burgan,

Stella and Joseph Cook, Brittney Cornelius, Jennifer Cornelius,

Dorothy and Carl Davis, Marlene and Raymond Gajewski, Mat-

thew Gajewski, Magda and Pascual Garcia Jr., Aisha Garcia,

Deborah and William Harris, Patricia and Paul Heidenthal, Mar-

than and Ronald Hric, Alisha Hric, Kelly Hric, Oliver Hric,

Pauline and Charles Johnson, Lillian Kacak, Diana and Joe Kei-

thly, Margaret Kreevich, Judith and Francis Kubeck, Keith Ku-

beck, Donna Kusbel, Katherine Kusbel, Janet and Rigorberto

Lemus, Nicole Lemus, Michele and Emest Livingston, David

Livingston, Michael Livingston, June and Donald Long, Kather-

ine and Anton Maleckar, Barbara Maleckar, Mildred Maleckar,

Spring Maleckar, Paula Maloney, Brian Maloney, Kerry Ma-

loney, Paul Maloney, Beth and Albert Minniti, Leta Minniti, Jac-

quelyn and John Moore, Daniel del Muro, Elvira del Muro,

Juanita del Muro, Luis del Muro, Rolando del Muro, Jennifer and

Eric Perez, Catherine Petrak, Martha and Francisco Ponce, David

A. Ponce, Francisco Ponce III, Marina and Adrian Rangel, Karen

and Phil Rapchak, Charlene and James Simko, Kyle Simko, Elvia

and John Slivka, Mary Solcich, Martin Soto, Margie Soto, Vicki

Soto, Brian Staley, Christian Staley, Glen Staley, Jr., Elizabeth

and Richard Taylor, Janet and George Taylor, Ruby and Cash

Tunstall, Marion Wilkening, John Wilkening, Patricia Wilkening,

Austin Yale, Wilma and Jerry Young, Carl Young, Kasey Young,

Kim Young, Benjamin Zrnchik, Lisa Zrnchik, Stephanie Zmchik,

and William Zrnchick.

Respondent: Amoco Oil Company, a Maryland corporation

with its principal place of business in Chicago, Illinois.

Summary of Key Procedural Facts ............--+---+-:ss-ssssssssssee

Detailed Chronology of Key Procedural Facts ........---------

Reasons for Granting the WTit ............-.---s-sssesssessesrenenenennneees

1. The Decision Below Departs from this Court's Teaching

about Due Process Rights to Adequate Notice, to a Fair and

Full Hearing, and to Opt Out of a Mandatory Class Action

Wholly for Money Judgments.” The Decision Below Is in

Direct Conflict with Decisions of Federal Courts of Ap-

POONS ..ascnecocsconssnnsensssonsesnsesnsssnsesnvernrssnecnnssnnssnscsansquncsnecnacensssess

2. The Court Has Expressed a Continuing Interest in the

Issue of a Due Process Right to Opt Out of Class Actions. .....

3. This Case does not Suffer from the Defects that Led the

Court to Dismiss the Writ in Ticor and in Adam...........---..+++-

4. Amoco Offered No Race-Neutral Reason for its Re-

quested Change of Venue at the Time it was Ordered. The

Court Should Invalidate Automatic Change of Venue Rules

that Exclude Members of Racial Minorities from Juries

Deliberating about Environmental Damage Occurring. in

Communities in which They Predomimate. ...........-.-.--+---s-0-

Conclusion

iv :

Table of Authorities

Page(s)

Cases cited:

Adams v. Robertson and Liberty National Life

ee EES. 2: RE ER 8 A 18-20

Adarand Constructors, Inc. v. Pena,

Se oa i aldasnethilpdniabahiipenncitanconchiutit 26

Amchem Products, Inc., et al. v. George Windsor,

OO SE Pe PO LOD I icra csiccdickcessdhccsasvicvesecestebginnssinn 14

Bankers Life & Casualty Co. v. Crenshaw,

nO clean caesecendeediaitacierenaninspnscancctaenences 20

Bousley v. United States, 118 S.Ct. 1604 (1988).................. 21

Rowling v. Pfizer, Inc., 143 F.R.D. 141

eg, RS ICSE STR id IAAP A Bie ee ROE AT 14

Braun v. Amoco Oil Company, Civ. No. H91-360

CE Sa Is I iia niet enanternenntensabnsnnctesanronnie 7

Brown v. Ticor Title Ins. Co., 982 F. 2d 386

(9th Cir. 1992), cert. granted, 510 U.S. 810 (1993),

cert. dismissed, 511 U.S. 117 (1994) .00.....ccccceccceceseees 18-19

City of Independence v. Amoco Oil Co., Civ. No.

95-0019-CV-W-2 (W.D. Mo., July 30, 1998) 0.0... 13

County of Suffolk v. Long Island Lighting Co..,

SOT FF A AR nite thdtinteliiecinsstocinnprestingsins 9

Crawford-El y. Button, 118 S.Ct. 1584 (1998).........0000000..... 21

Davis v. Wechsler, 263 U.S. 22 (1923) ..........cccccesscesseeseeeees 23

Edmonson v. Leesville Concrete Co., 500 U.S. 614

CN iirviciiccsitciistnintyincinnsiniittipaii peat he sais allteemsenis 23-24

Healy v. Beer Institute, 491 U.S. 324 (1989) ......... Skee 22

Illinois v. Gates, 462 U.S. 213 (1983).............c.cccccccceeeseeeeees 19

In re Bendectin Products Liability Litigation,

Fs Bae I icant tilavicsicecscsensceecticccscees 17

In re N. Dist. of Cal., Dalkon Shield IUD Products

Liability Litigation, 693 F. 2d 847 (9th Cir. 1982) .............. 17

In re Temple, 851 F. 2d 1269 (1 1th Cir. 1988)..................... 17

Martin et al. v. Amoco Oil Company, 679 N.E. 2d

139 (Ind. App. 1997).......-s:ccsccssssessessnseneessennsnnsensensennsnnscnnsnssss 1

Martin et al. v. Amoco Oil Company, 696 N.E. 2d

383 (Ind. 1998).........:ssessescnesssssnssnsensensennecnssnnsnssnscnnennncansensssess 1

Mathews v. Eldrige, 424 U.S. 319 (1976)... 15-16

Moore v. Ogilvie, 394 U.S. 814 (1969) .......sscsesesceseeeeeseeesees 19

Moore & Richardson v. Kocur, Cause No. 45D05-

9101-CT-260 (Lake Co. Sup. Ct., Sept. 18, IPED sksiséieciancce 24

Morrison v. State, 542 N.E. 2d 564 (Ind.. 1989) ..........0++ 6,21

Morales v. TWA, 504 U.S. 374 (1992) .....-s::esscseseresessessescees 22

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950).........cecccesessesesseseeseesenenenenensesnenenanenenseees 15

Mu'mim v. Virginia, 500 U.S. 415 (1991) ......--.---000 26-27

New York v. New Jersey, 118 S.Ct. 1726 (1998)......-..-.--1+-+ 21

Osmulski v. Becze, 638 N.E. 2d 828 (Ind.Ct. App. 1994) ......24

Phillips Petroleum Company v. Shutts, 472 U.S. 797

(19B5)......ccscscssseseesssseseeesnenseesneseeeneasesssestecs 9-11,15-19,21,22

Robertson vy. National Basketball Assn.,

556 F. 2d 682 (2d Cir. 1977)......--.sesccesesereenesereessesssssenenenene 17

State v. Smith, 170 N.E. 2d 423 (Ind. 1960) ........-.-.--seesess000 4

State ex rel. Rabel v. Jasper Superior Court,

467 NE. 2d 693 (Ind. 1984)..........-ccccssceseeseseesencnstsssstesneneenees 6

State ex rel. York v. Newton Circuit Court,

531 NE. 2d 198 (Ind. 1988)............-.ceececcecesseeeseneresetssnenennenes 6

Stone v. LN.S., 514 U.S. 386 (1995)........-:sceseseeesereereteesenees 22

Taylor v. State, 507 N.E. 2d 978 (Ind. 1987)..........::sscseecreee 4

Thomas v. State, 656 N.E. 2d 819 (Ind. 1995) .....-.--.-.--+ 6,21

Ticor Title Ins. Co. v. Brown,

511 U.S. 117 (1994) .0.....eceseccersecessensessensensnenenenensenenenens 18,19

Village of Arlington Heights v. Met. Housing

Dev. Corp., 429 U.S. 252 (1977)...------ssseseessseeeensntennsnnsense 24

Walb v. Esheiman, 94 N.E. 566 (Ind. 1911).....---.--.---seeeeeeeees 6

Webb v. Webb, 451 U.S. 493 (1981) .......----eeeeerereeseeseeereees 20

Yick Wo v. Hopkins, 118 U.S. 356 (1886)..........--.-- enor 24

Statutes cited:

EB ET occccncsnscgccticsassies Fie mn te Res tam |

Comprehensive Environmental Response, Compensation

and Liability Act, 42 U.S.C. § 9601 et seq. o.oo... ccc cecceeeseees 6

Federal Rules cited:

Peete DF I Oiccccis kaha itelcitheini istics deisccthittbents 7

PUNE eta I AIG I cincacen sanesoconnnaieniaitbtienihtdbssatenbenactiivlentbih 7

A ee nee eM se | 2,5,17

Pee ie Es In <sinatenncetaiiniedstiniaceapantentannai 2-6, 18,19

Teale BUCO: Te BONN occ daiha Binks. tsccsdecinatitih muaeleneilichatlllas 13

SURED Sis MIE, Seis ainssnavegihithitiienenntsticeiitenntitaaldaitiael 27

SUE re > PID i iaicisn ichcictcrctaestncenpcttlimeenancenins 13

ok CR a ae a eee 2

Indiana Rules cited:

bs ANE WT AEN: ee eh n E 2-6

Be EP iesececnaceeesntilbipsdhaasiinaibiietedbstiemtemccabaeins 9

Pg, Sea S Hee Debs Bae RSW is IF 25

iicietieniiiiiiictdiatiactih tindaassnheshielinthinbioa 2,4,12,23-24

ee Fei aii icttiiiichetiiiltaintniiitbig ses 2,4-7,12,21

Aapie Bake BB an scteiniinte ek kB nti is: 14

Miscellaneous authorities:

Vicki Been, Environmental Justice and Equities,

vii

Chap. 25 in Patrick Rohan, ed., ZONING AND

LAND USE CONTROLS (1995) .....ceccco+-ovesesessssserveesseessneeennsee 25

John Coffee, Class Wars: The Dilemma of the Mass

Tort Class Action, 95 COLUM. L. REV. 1343 (1995)..........-. 17

Howard Downs, Federal Class Actions: Diminished

Protection for the Class and the Case for Reform,

73 NEB. L. REV. 646 (1994)............ccccccccessseeeseneeeeserecnneeeeeees 14

Sheila Foster, Justice from the Ground Up: Distributive

Inequities, Grassroots Resistance, and the Transformative

Politics of the Environmental Justice Movement,

86 CAL. L. REV. 775 (1998)............-0ccec-scesseeneeseensenseesenseneenes 25

Jack Friedenthal, Mary Kay Kane, and Arthur R. Miller,

CIVIL PROCEDURE (2d ed. 1993)............-:ceccesseeseeeeneeeennnenees 17

Michael Gerrard, WHOSE BACKYARD, WHOSE RISK?

FEAR AND FAIRNESS IN TOXIC AND NUCLEAR WASTE

SITING (1994)..00.....0..cccccccceescenerennrennensecenneneesansnenenernnnasnnsenes 25

Michael Gerrard, The Victims of NIMBY,

21 FORDHAM URB. L.J. 495 (1994).............scccecceseeecoeeeeeeeee 25

Susan Konaik, Feasting While the Widow Weeps:

Georgine v. Amchem Products, Inc.,

80 CORNELL L. REV. 1045 (1995)...........------ccccseeseeceeeneeeees 14

Linda S. Mullenix, Getting to Shutts,

46 U. KAN. L. REV. 727 (1998) .........----:-esesscensneneenereensnenes 19

National Research Council, UNDERSTANDING RISK:

INFORMING DECISIONS IN A DEMOCRATIC SOCIETY (1996) 25

Judith Resnik, Litigating and Settling Class Actions:

The Prerequisites of Entry and Exit,

30 U.C. DAVIS L. REV. 835 (1997) ..........----c.-ccscceeeeeeeeeeeenees 14

Stephen J. Safranek, Do Class Action Plaintiffs Lose

Their Constitutional Rights?, 1996 WIS. L. REV. 263 ....19,26

viii

Index of Appendices

Appendix A: Chronology of Principal Events ..................... la-6a

Appendix B: Opinion of Supreme Court of Indiana .......... 7a-lla

Appendix C: Opinion of Court of Appeals of Indiana ..... 12a-30a

Appendix D: Order of Newton Circuit Court Certifying a

Property Class Under Indiana Rule 23(B)1) and Notice

of Class Action, 1/23/92 .0........00.cccccccceceesseeceesseeeeee 3la-35a

Appendix E: Pre-Trial Orders, Newton Circuit Ct, 4-26-93..........

pe SE EE Ron on Oe eR Re Bere, Rael 36a-38a

Appendix F: Order of Newton Circuit Court Denying Mo-

tion to Vacate Mandatory Class Certification Order or

to Set a Hearing to Reconsider whether Martin Should

Continue as a Mandatory Class or an Opt Out Class,

BREE DEES WO eM RE es ON 39a

Appendix G: Final Judgment Order and Judgment on the

Verdict, Newton Circuit Court, 12/14/93 ................ 40a-41la

Appendix H: Order of Newton Circuit Court on Intervenors'

Motion to Correct Errors, 8/1/94 200........cccccccscsseescesseseeeee 42a

Appendix I: Order of Newton Circuit Court on Class Plain-

tiffs’ Motion to Correct Errors, 8/1/94 .0000000.000...0..... 43a-44a

Appendix J: Indiana Trial Rule 23. Class Actions .......... 45a-47a

Appendix K: Indiana Trial Rule 75. Venue Requirements ..... 48a

Appendix L: Indiana Trial Rule 76. Change of Venue ........... 49a

Appendix M: Indiana Trial Rule 79. Special Judges ....... 50a-Sla

Appendix N: Indiana Appellate Rule 11(B)(3)I .................... 52a

Appendix O: Population by Race: Lake & Newton County.... 53a

Appendix P: Letter of Frank J. Citek, Manager Amoco Oil

Refinery, to Residents of Whiting, 1/23/91 ............. 54a-56a

Appendix Q: "Massive Underground Oil Spill Slowly

Spreads from Whiting,” Hammond Times 1/24/91 .. 57a-61a

Appendix R: News Release of Amoco Oil Co., 6/17/92 . 62a-64a

Appendix S: Table of Contents, Brief for Intervenors in the

Court of Appeals of Indiama ...0........0.......cceccceceseeeees 65a-66a

Appendix T: Table of Contents, Brief for Intervenors in the

Supreme Court of Indiiama 2..0..0...0.0.....ccesceeeseeesceseseeseess 67a

Appendix U: Excerpt, Transcript of Fairness Hearing, City

of Independence v. Amoco Oil Co., 7/30/98 ........... 68a-69a

Petition for a Writ of Certiorari

Petitioners Dorthea and Joseph Zmchik, ef al. (referred to

as “federal plaintiffs” or “objectors to mandatory class in state

court”) respectfully petition for a writ of certiorari to review the

constitutionality of the judgment of the Supreme Court of Indiana

in this case.

Opinions Below

The opinion of the Supreme Court of Indiana is reported

under the name Martin et al. v. Amoco Oil Company at 696 N.E.

2d 383 (Ind. 1998). App. 7a-lla. The opinion of the Court of

Appeals of Indiana is reported under the name Martin et al. v.

Amoco Oil Company at 679 N.E. 2d 139 (Ind. App. 1997). App.

12a-30a.

Jurisdiction

The decision of the Supreme Court of Indiana was rendered

on June 29, 1998. A timely application was presented to Justice

Stevens, as Circuit Justice for the United States Court of Appeals

for the Seventh Circuit, for an extension of time, up to October

28, 1998, within which to file this petition. On September 18,

1998, Justice Stevens granted the application. The jurisdiction of

this Court is invoked under 28 U.S.C. §1257(3).

Constitutional Provisions Involved

The Fourteenth Amendment to the United States Constitu-

tion provides in relevant part: “... nor shall any State deprive any

person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection

of the laws.”

Statement of the Case

As the Supreme Court of Indiana noted succinctly, “These

claims originated from a notice from Amoco to the residents [of

Whiting, Indiana] which warned of the possibility of under-

ground oil migration onto their properties.” App. 7a-8a. In a letter

dated January 23, 1991, the manager of Amoco’s Whiting refin-

ery wrote to Dorthea and Joseph Zmchik and hundreds of other

residents of Whiting: “Amoco Oil Company has reason to believe

that petroleum products beneath its Whiting refinery have moved

beyond its property underground.... Amoco is committed to

working with state and local officials to determine the extent of

the petroleum underground and developing and implementing a

comprehensive plan to remediate the affected area. We also are

committed to working to prevent future leaks or spills.” App.

54a. The oil company acknowledged that 16.8 million gallons of

oil (nearly double the amount of oil involved in the Exxon Val-

dez spill) had spilled or leaked from the containers at the refin-

ery, and pledged remediation of the contamination. '

Summary of Key Procedural Facts

This case began with an admission by the oil company that

-- like Tom Hanks in “Apollo 13” — it had “a problem.” Litiga-

tion ensued. Because the procedural facts of the case are compli-

cated, we set them forth in greater detail below and in a chart

(Appendix A). App. la-6a. The essential facts of the case relating

to the questions presented can be boiled down to five basic

themes.

1. A week after the oil company’s admission of the spill, on

February 1, 1991, two households sued the oil company in an

opt-out class action for compensatory damages in state court un-

der Indiana Trial Rule [hereafter T.R.] 23(B)(3), App. 45a-47a,

which reads the same as the Rule 23, F.R.Civ. P.

2. On April 24, 1991, the oil company sought to move the

state case out of the urban environment in which the oil spill oc-

curred, the population of which is appro~imately 25% African-

American, to a rural county with a population of African-

Americans less numerous than .1%. Under the form of T.R. 76

governing this case, the oil company offered no reason whatever

for its requested change of venue at the time it was ordered, since

such motions were then granted automatically.

3. On June 10, 1991, Hon. Marvin McLaughlin was ap-

pointed as special judge in the case, but failed to qualify within

the jurisdictional period stated in T.R. 79(5). Nevertheless he

took jurisdiction of the case and continued to exercise it.

4. On October 10, 1991, 43 individuals jointly filed an ac-

tion in federal court under Rule 20, F. R. Civ. P., seeking com-

pensatory damages from the oil company, and joined with it a

class action, limited to the issue of punitive damages. On January

7, 1992, the federal plaintiffs clarified that the class action aspect

' See “Massive Underground Oil Spill Slowly Spreads from Whit-

ing,” Hammond Times, Jan. 24, 1991. App. 57a-61la. See Rule 902(6),

F.R. Evid.

of the lawsuit would be a Rule 23(b)(3) opt-out class. With one

exception (Henry Cornelius) noted below, federal plaintiffs are

the petitioners here.

5. On January 23, 1992, the attorney for the oil company

and the attorney for the state plaintiffs moved to switch the state

class action from an opt-out to a mandatory class under Ind. T.R.

23(B\(1), representing to the court that their motion was “unop-

posed.” Judge McLaughlin, despite his evident lack of jurisdic-

tion under state law, immediately granted this motion, entering an

order certifying a mandatory class. Once that decision was

reached, all attempts by the federal plaintiffs to opt out of the

state action were rebuffed by the Indiana courts.

The motions of the oil company and the state plaintiffs for a

mandatory class were “unopposed” by the federal plaintiffs on

that day for the simple reason that they had no notice of the

hearing. If petitioners had received adequate notice, they could

have raised several meritorious objections, including: (a) the con-

stitutional violation implicated in the automatic change of venue,

(b) the constitutional nght to opt out of a class wholly or pre-

dominantly for a money judgment, (c) the lack of jurisdiction of

the trial judge, and (d) the impropriety of certifying a mandatory

class under T.R. 23 (B)(1) on at least two grounds. First, in a case

predominantly for damages there is no risk of inconsistent obli-

gations (paying plamtiff A is consistent with paying plaintiff B, if

both have suffered injury caused by the defendant). Second, this

is not a “limited fund” case (there was no risk of bankrupting the

oil company, which had posted profits of $1.6 billion in that fis-

cal year).

The reason why it is certain on this record that the federal

plaintiffs could have said these things at the crucial certification

hearing from which they were wrongfully excluded is that they

tried to say these things, over and over again, only to be rejected

at every turn by the Indiana state courts, from the trial court to

the appellate tribunals. The facts recited above are detailed.in the

chronology that follows and in the chart provided in Appendix A.

App. la-6a. But the Court may return to the five points sketched

above to focus on the procedures essential to an understanding of

the two questions presented here. We refer to petitioners as fed-

eral plaintiffs, as objectors to mandatory participation in the state

class action, or, in the state appeal, as intervenors.

Detailed Chronology of Key Procedural Facts

On February 1, 1991, three named litigants -- Robert

O’Drobinak, Eugene Burkat, Jr., and Wanda Burkat - filed a

state class action complaint in the Superior Court for Lake

County, Indiana. These two households sought “entry of an Order

as soon as practicable after hearing, pursuant to Rule 23, certi-

fying that this action may be maintained as a class action by the

representative plaintiffs.... [and] directing to the members of the

Class the best notice practicable under the circumstances advising

them of their option to be excluded from the class and the binding

nature of any judgment if not excluded” (emphasis added). The

prayer for relief sought compensatory damages and an order pre-

venting Amoco from destroying evidence relevant to the oil spill.

It also sought unspecified injunctive relief, a prayer that was sub-

sequently abandoned. Thus the case is “predominantly for money

judgments.” On April 1, 1991, the state plaintiffs filed an

amended complaint, adding two named representatives, James

Martin and Mary Roman, to the state class, and preserving the

right of class members to opt out of the state class action if they

chose to do so.

On April 24, 1991, Amoco filed a motion for change of

venue from Lake County. At that time it did not allege any reason

whatever for its motion. For example, it offered no evidence of

adverse publicity so poisoning the atmosphere that no panel of

unbiased jurors could be relied upon to render a fair verdict in the

county where the events took place. Amoco did not have to offer

any reason for its request because under the form of Ind. T.R. 76

existing at the time, a request for change of venue was granted

automatically. The state case was transferred from Lake County

(the place where the oil spill occurred, the population of which is

approximately 25% African-American) to Newton County (a ru-

11 county with a population of African-Americans less numerous

than .1%). App. 21a; see also Appendix O (indicating population

of Lake and Newton Counties by race), App. 53a.

On June 10, 1991, the Hon. Marvin McLaughlin was ap-

pointed special judge. Judge McLaughlin immediately assumed

control of the case, but did not file an appearance and qualifica-

tion as special judge. App. 13a-14a. Under Ind. T.R. 79(5), the

failure of a special judge to appear and qualify within twenty

days of the appointment “shall revoke the appointment.” App.

51a. Under Indiana law the defect is jurisdictional. 7Zaylor v.

State, 507 N.E. 2d 978 (Ind. 1987), State v. Smith, 170 N.E. 2d

423 (Ind. 1960).

On October 10, 1991, 43 individual plaintiffs effectively

opted out of the state class action by filing a complaint in the

U.S. District Court for the Northern District of Indiana [hereafter,

district court], seeking compensatory damages related to the inju-

ries sustained by the named plaintiffs, all of whom were joined

under Rule 20, F. R. Civ. P. These federal plaintiffs (objectors in

state court and petitioners here) also sought certification as repre-

sentative parties to bring a class action solely with respect to pu-

nitive damages. The federal complaint sought “an Order as soon

as practicable afier hearing, pursuant to [F. R. Civ. P.] Rule

23(b)(1), certifying this action for punitive damages as a manda-

tory class action.” In the alternative, the federal plaintiffs sought

“an Order as soon as practicable afier hearing, pursuant to Rule

23(b)[3], certifying this action for punitive damages as a class

action and directing to the class members adequate notice advis-

ing them of their option to be excluded from the class and the

binding nature of any judgment if not so excluded.” (emphasis

added). The case was assigned to the Hon. James T. Moody.

On January 7, 1992, the federal plaintiffs moved for deter-

mination of the maintenance of a class action -- limited to puni-

tive damages -- as a Rule 23(b)(3) opt-out class.

On January 23, 1992, the four state plaintiffs (James Mar-

tin, Mary Roman, Eugene Burkat, Jr., and Wanda Burkat) and

Amoco both filed motions in state court to certify the class as a

mandatory class under Ind. T.R. 23(B)(1). Counsel for the state

plaintiffs switched from a 23(B)\(3) opt-out class to a 23(B)(1)

mandatory class at the suggestion of counsel for the oil company.

On the same day the motions were filed, with no notice to the

federal plaintiffs or opportunity to be heard, Judge McLaughlin

conducted a telephone conference’ with the lawyers for the state

plaintiffs and for Amoco, and immediately entered an order --

conveniently prepared by the oil company -- certifying the class

as a T.R. 23(B)(1) mandatory class. App. 14a, 31a-35a. The oil

company also prepared a Notice of Class Action accompanying

2 In the informal telephone conference both the counsel for the state

plaintiffs and the counsel for Amoco represented to Judge McLaughlin

that their motions were “unopposed.” The reliability of this statement

turns on whether the due process clause requires pre-certification notice

to potential objectors. The federal plaintiffs had no notice that the mo-

tions were filed, and hence had no opportunity to be heard in the crucial

“hearing” at which the motions were acted upon, the same day they

were filed. The federal plaintiffs could not have anticipated this deci-

sion to deny them an opportunity to be excluded from the state class

action, since the pleadings of the state plaintiffs up to that moment had

sought an opt-out class.

this order, App. 33a-35a, and promptly hand delivered this notice

of a fait accompli to the residents of Whiting living adjacent to

the refinery.

On January 28, 1992, Amoco then went into the district

court to seek from Judge Moody a stay of the federal proceedings

on the ground that the state court had “certified a no opt-out class

under Rule 23(b)(1) that includes all the proposed class members

in this case and all the claims raised in this case.”

On February 3, 1992, the objectors filed a motion in state

court to strike or to vacate the order of a mandatory class on one

simple ground: the jurisdictional defect about the failure of Judge

McLaughlin to qualify under Ind. T.R. 79(5). App. 51a. Under

State law, objectors were required to refrain from making a chal-

lenge on any other issue, such as the due process or equal protec-

tion claims or the impropriety of the class certification under T.R.

23, at the risk of waiving any objection to the court’s jurisdiction.

Thomas v. State, 656 N.E. 2d 819 (Ind. 1995); Morrison v. State,

542 N.E. 2d 564, 570 (Ind. 1989).

On February 14, 1992, the federal plaintiffs (now number-

ing 90 named individuals) filed an amended complaint in the

district court, adding two new causes of action, a state unjust en-

richment claim, and a federal claim arising under the Compre-

hensive Environmental Response, Compensation and Liability

Act [hereafter CERCLA], 42 U.S.C. § 9601. In this complaint,

the federal plaintiffs again sought certification of a class for pu-

nitive damages under F.R.Civ. P. 23(b\(3), allowing potential

class members adequate notice of their right to opt out of the

class.

On March 6, 1992, the federal plaintiffs filed in state court

a 33-page memorandum of law in support of their motion to va-

cate the order certifying the mandatory class. Again, this memo-

randum focused exclusively on Judge McLaughlin’s lack of per-

sonal jurisdiction in the case, and sought his revocation under the

clear terms of T.R. 79(5). App. 51a. The memorandum clarified

that under Indiana law the defect is jurisdictional. It also noted

that under Indiana law new parties to an action may object to the

lack of jurisdiction of a special judge when they are first brought

into the action. State ex rel. York v. Newton Circuit Court, 531

N.E. 2d 198 (Ind. 1988), State ex rel. Rabel v. Jasper Superior

Court, 467 N.E. 2d 693 (Ind. 1984), and Walb v. Eshelman, 94

N.E. 566 (Ind. 1911). Indeed, under Thomas, supra, and Morri-

son, supra, they must do so before proceeding further in the case

or else waive this objection. State law, moreover, requires a mo-

tion to revoke the appointment of a special judge to be heard not

by that special judge, but by the Chief Judge. Stephen v. State,

193 N.E. 375 (Ind. 1933).

On March 18, 1992, ignoring Stephen, Judge McLaughtin

ruled on the motion challenging his jurisdiction, denying the ob-

jectors’ motion for his removal from the case on the ground that

he had failed to appear and qualify within the jurisdictional pe-

riod. Judge McLaughlin offered two reasons for this ruling. First,

the federal plaintiffs “are not such parties as can file motions for

change of judge or attack the authority of the Special Judge.”

Second, he found the specific requirements of Ind. T.R. 795) to

be “useless.”

On March 25, 1992, the federal plaintiffs filed a praecipe

(the Indiana equivalent of the notice of appeal in federal practice,

see Rule 3, F.R. App. P.) to seek a writ of prohibition challenging

of Judge McLaughlin’s jurisdiction. The federal plaintiffs had not

yet filed any motions based on their objections to the propriety of

a mandatory class under T.R.23(B)(1) or based on their federal

constitutional claims of denial of due process. As discussed be-

low, these challenges would follow on June 5, but were not yet

before the state court. The only order on file at this stage of the

litigation in State court, and thus the only possible basis for the

filing of th praecipe was the judge's order finding the jurisdic-

tional limit on his power “useless.” For strategic reasons the fed-

eral plaintiffs decided not to pursue a direct appeal on this matter,

and thus did not file the record with the Supreme Court of Indi-

ana.

On March 26, 1992, in an unreported opinion Judge Moody

granted -- over the strenuous objections of the oil company -- the

federal plaintiffs’ motion under Fed. R. Civ. P. 15(a) to file an

amended complaint. Braun v. Amoco Oil Company, Civ. No.

H91-360 (N.D. Ind. Mar. 26, 1992), at 1-5. Specifically, the dis-

trict court allowed the federal plaintiffs to add a federal cause of

action under CERCLA, noting that under 42 U.S.C. § 9613(b) it

has exclusive jurisdiction over the CERCLA claim. Jd. at 8-9.

The Court also denied Amoco’s motion for a stay of the federal

proceedings on grounds that the parallel state-court litigation was

under way. /d. at 5-10. The district court also questioned “the

ability of the state court proceedings to adequately protect the

rights and interests of all of the plaintiffs in this federal action,”

id. at 9: “The Martin class appears to be the same as the proposed

class in this action, but, in fact, the persons within the class who

filed the state action are not the same persons who filed this ac-

tion, and the [4] named plaintiffs in Martin are substantially less

in number than those in this case [90]. Moreover there is a dis-

pute among the parties in this action as to whether the certified

class in Martin is in fact valid and sufficiently broad to include

all of the members of the proposed class in this action.” /d. at 9-

10.

On June 5, 1992, the federal plaintiffs filed a motion if

state court for leave to opt out of the mandatory class action, of-

fering several grounds for doing so: (1) lack of pre-certification

notice, (2) lack of meaningful hearing to consider the propriety

of certifying a mandatory class on the facts of this case, (3) the

constitutional right to opt out of a class action predominantly for

money judgments, and (4) fundamental fairness to litigants and

judicial economy (federal plaintiffs should not be required to en-

gage in litigation on same issues both in state and in federal

court); Judge McLaughlin took the motion under advisement.

After conducting a groundwater investigation, Amoco is-

sued a news release on June 17, 1992, repeating the statistic that

16.8 million gallons of petroleum hydrocarbons had leaked to the

ground under the refinery, but claiming that only about 25,000 to

50,000 gallons had “migrated past the refinery’s western barrier

system into limited portions of the residential area adjacent to the

refinery.” App. 62a. According to the oil company, the under-

ground oil was confined to “isolated pockets along First Street,

right up next to the refinery’s well-point system, and along the

refinery’s unused utility corridor near 126th Street.” App. 62a.

With no response to its motion to opt out, the objectors then

filed an alternative motion in state court on June 22, 1992, seek-

ing to intervene for purposes of establishing a subclass of prop-

erty owners within the zone acknowledged by Amoco in its June

17 press release to be contaminated by the oil spill. The objectors

argued that the state class representatives failed the typicality re-

quirement since none of them lived within the admittedly con-

taminated zone in Whiting. They suggested that Amoco could

(and later did at trial) introduce evidence from its groundwater

investigation supporting the claim that the representatives do not

even have oil under their property. They also urged that the state

class representatives did not meet the requirement of adequately

protecting and representing the interests of the class, noting that

none of the representatives ever testified in a hearing or a deposi-

tion that he or she was able or willing to assume the fiduciary

obligations of class representatives. The objectors noted that four

federal plaintiffs (Dorthea and Joseph Zrnchik, Henry Cornelius,

and Marion Wilkening) live within the zone acknowledged by

Amoco to be contaminated, and that they fully understand and

are willing to undertake the responsibilities of class representa-

tives.

On June 24, 1992, the federal plaintiffs filed a 28-page

memorandum in support of their earlier motion to opt out of the

mandatory class action, upon which no action had yet been taken.

In this memorandum the objectors made plain that they had

“been made parties to a mandatory class action against their will

and without any notice and opportunity to object.” The objectors

relied expressly on this Court’s teaching in Phillips Petroleum

Company v. Shutts, 472 U.S. 797 (1985) concerning the right to

opt out of a class “wholly or predominately for money judg-

ments.” /d. at 811, n. 3. In addition, the objectors urged that the

intense discovery schedule’ in the federal case constitute/ a sepa-

rate ground requiring that they be allowed to opt out of the state

case to be able to focus their efforts on the federal case, citing

and discussing relevant federal case law, including County of

Suffolk v. Long Island Lighting Co., 907 F. 2d 1295 (2d Cir.

1990). On the same day this memorandum was filed, Judge

McLaughlin denied the objectors’ motion of June 5, in an Order

dealing with this momentous issue in one sentence: “The Court

overrules all Motions to Opt Out of Class.” See also App. 39a

(Judge Smart’s single sentence post-trial ruling to same effect).

On August 27, 1992, the objectors filed a Motion to Set

Aside and Vacate Mandatory Class Certification Order, or, In the

Alternative, to Set a Hearing to Reconsider Whether Martin

Should Continue as a Mandatory Class or an Opt Out Class.

Judge McLaughlin postponed consideration of this motion.

After the state plaintiffs sought an order under T.R. 53.4

denying the objectors’ motion as “repetitive,” the objectors filed

a response on September 15, 1992, clarifying that the court had

never ruled on any of the 7 independent arguments on the funda-

mental constitutional issues they raised. On the same day Judge

McLaughlin entered a hand written order assigning the objectors’

motion to vacate the mandatory class “for hearing at the pretrial

2-5-93.”

On the same day Judge Moody granted the motion of the

federal plaintiffs for an extension of time in which to complete

3 In response to requests for admissions and other ‘nterrogatories,

Amoco deposited with counsel for petitioners 85 large boxes of docu-

ments. Amoco scheduled depositions of 23 individual federal plaintiffs

in June and 10 in July.

EEO

discovery, and he set a date of November 1, 1993, for a trial in

the district court.

On October 29, 1992, the objectors filed another memoran-

dum in state court in support of their motion to set aside the order

certifying a mandatory class. Amoco attacked this motion as

raising “the same objections that the court has already rejected.”

The objectors replied that “not one [of the arguments regarding

the propriety of the mandatory class] has ever been formally

raised or formally ruled upon ty this court.” The objectors noted

that “every court to have ever addressed the situation posed by

this class -- namely certification of a mandatory class without

pre-certification notice to absent class members -- has vacated the

mandatory class certification.” Judge McLaughlin again post-

poned consideration of the motion that these arguments sup-

ported.

On March 5, 1993 the federal plaintiffs filed a supplemental

petition in state court to intervene to establish a subclass of

Whiting residents living within the zone admitted by Amoco to

be contaminated. The state plaintiffs filed an opposition to this

petition on March 19.

On April 26, 1993 Judge McLaughlin ruled as follows:

“The Court overrules any pending ‘opt-out’ motions and orders

that none shall be refiled as these have been heard on numerous

occasions.” He then “opted out” of the state case, recusing him-

self without explanation. The Hon. Robert Smart was substituted

as special judge and duly qualified within the jurisdictional pe-

riod.

On June 2, 1993, the state plaintiffs withdrew their objec-

tion to the intervention of one of the federal plaintiffs (Henry

Comelius), while “continuing to maintain their objections to the

intervention of the other [federal plaintiffs] .. and their objection

to the creation of a subclass.”

At a status conference on June 24, 1993, the state plaintiffs

withdrew their prayer for injunctive relief. Judge Smart granted

the state plaintiffs’ motion to substitute former federal plaintiff

Henry Cornelius in the place of Eugene Burkat, Jr. and Wanda

Burkat. Five points merit emphasis. First, the state case was

henceforth “wholly ... for a money judgment,” Shutts, supra.

Second, Cornelius lives within the geographical area that Amoco

admitted to be contaminated after completion of its testing of the

ground soil; none of the other named plaintiffs in the state class

action do. Third, after Cornelius joined the state class as a named

representative, he withdrew from the federal case, and is not a

petitioner in this Court. Fourth, none of the other federal plain-

tiffs ever participated in the state case other than as strenuous

objectors to mandatory inclusion in those proceedings. App. 13a,

n. 1. On the same day, Judge Smart granted the motion of the

objectors to withdraw their pending motion to establish sub-

classes. Fifth, at the request of counsel for the state plaintiffs and

after discovery had closed in the state case, Richard Komyatte,

lead counsel for the objectors, agreed to assist in the state case as

co-counsel, but all federal plaintiffs -- with the exception of Cor-

nelius (not a petitioner here) -- objected continuously to coerced

participation in the mandatory state class.

On August 9, 1993, objectors asked Judge Smart to recon-

sider Judge McLaughlin’s denial of their motion to opt out. In

light of the fact that all parties agreed that the case now focused

solely on money damages, the federal plaintiffs again urged that

Shutts, supra, protected their right to opt out instanter. Judge

Smart denied this motion on August 11, but later reserved ruling

on the opt-out issue to a post-trial hearing. App. 39a.

The state plaintiffs began their case-in-chief on October 8,

1993. At the conclusion of the evidence, this matter was submit-

ted to the jury on November 22, 1993. On that day, while the jury

was deliberating, the objectors renewed their motion of August

27, 1992, to opt out of this class. App. 16a. On November 23,

Judge Smart ruled against the objectors on this issue in a single

sentence denying a hearing to reconsider whether the state case

should continue as a mandatory class or an opt out class. App.

39a.

On November 29, 1993, the jury rendered verdicts in favor

of Amoco and against the state plaintiffs on all counts. App. 16a.

On December 14, 1993, Judge Smart entered a Final Judgment

Order and Judgment on the Verdict. App. 16a, 40a. On the same

day the objectors filed a motion for leave to intervene for pur-

poses of filing a motion to correct errors and/or for purposes of

filing an appeal. Judge Smart granted this motion on January 13,

1994, and on the same day, the objectors (now known as “inter-

venors”) filed a motion to correct errors, again objecting to the

denial of due process (lack of notice and hearing, and no opt-out)

and of equal protection (automatic change of venue) in the state

case. On March 21, 1994, Judge Smart held a hearing on the ob-

jectors’ motion to correct errors.

On June 6, 1994, Judge Moody granted summary judgment

on the CERCLA claim to the federal plaintiffs, and he stayed the

federal trial pending the outcome of the state proceedings, in-

cluding the appeals. App. 8a, 14a.

class was improper under Indiana T.R. 23, id. at 14-22, and (2)

that Judge McLaughlin's appointment as special judge was re-

voked when he failed to comply with the jurisdictional require-

ments of Ind. T.R. 79, id. at 35-45. App. 66a-67a. *

The courts below ruled that the objectors waived their right

to appeal the propriety of the certification of a mandatory class

for failure to file a praecipe within 30 days after the date when

the trial court entered a final order on this matter. App. 8a-9a.

Although neither court specifies when that order became final.

the most sensible conclusion that can be drawn from their opin-

ions is that the date in question is January 23, 1992, when Judge

McLaughlin certified the mandatory class. App. 8a, 14a Viewing

The Supreme Court of Indiana granted a petition to transfer

this case from the Court of Appeals. Though briefed fully on the

federal questions presented here, App. 67a, the Supreme Court of

Indiana did not discuss these questions. Instead, it focused nar-

rowly on “whether an order certifying a class action is interlocu-

tory in nature or final upon entry and thus appealable as of right.”

App. 7a. The Supreme Court did not vacate the other portions of

the opinion of the Court of Appeals of Indiana, App. 12a-30a, but

summarily affirmed these portions of the lower court's opinion.

App. Ila. See Ind. App. Rule 11(B\3), discussed in note 4 of the

Supreme Court’s opinion. App. Ila. In the event that this Court

finds that the writ should issue to the Court of Appeals of Indi-

ana, petitioners request that the petition be construed accordingly.

Reasons for Granting the Writ

The respondent oil company recently settled (for over $7.6

million) claims of damages to the property of residents of Inde-

pendence, Missouri, arising from a similar oil spill from an

Amoco refinery in Sugar Creek, Missouri. The lead counsel for

Amoco both in that case and in this case appears to have ac-

knowledged belatedly the seriousness of the injury suffered by

property owners in Whiting, Indiana as a result of the oil spill.

On July 30, 1998, he stated in a fairness hearing in federal court

on a settlement of claims in the Sugar Creek case that the situa-

tion in “Whiting is worse”: “the contamination in Sugar Creek is

at very low levels. It is dissolved and it is in the groundwater and

in Sugar Creek the groundwater runs as deep as 60 feet. It is not

near the houses. Now, it does vary. But contrast that with Whit-

ing, Indiana, where it’s on Lake Michigan. The level of the water

in Whiting can be two feet, three feet, four feet, and in fact in

Whiting, there was at various times contamination that went into

some of the residents’ basements, and Amoco went in and reme-

diated that. | compare that because in Sugar Creek, the situation

is far different than it was in Whiting. Whiting is worse.” Tr. of

Fairness Hearing, City of Independence v. Amoco Oil Co., Civ.

No. 95-0019-CV-W-2 (W.D. Mo., July 30, 1998). App. 69a.“

Once litigation commenced, Amoco’s commitment “to pre-

vent future leaks or spills,” App. 54a, turned into a denial that

* This statement is directly relevant to this case, and has two sepa-

rate indicia of credibility. It is a party admission by counsel for the oil

company, Rule 801(d)(2), FR. Evid; and it is a statement by an “offi-

cer of the court” contained within an official court record, Rule 201 (b),

F. R. Evid. A certified copy of the transcript is on file with the Clerk of

this Court

any “leak” or “spill”? had occurred, accompanied by the view

that the oil company had no liability whatever for the event, if it

ever happened. Only after seven years of costly litigation culmi-

nated in victory for the oil company in the Supreme Court of In-

diana on procedural grounds did the lead counsel for the oil com-

pany admit what he had previously denied, that “Whiting is

worse.” These seemingly small, but significant, shifts in this liti-

gation illustrate an initial reason for granting the writ. This Court

should address recurrent difficulties about the abuse of the class

action by defendants to keep deserving claimants from reaching

the merits of their claims in a forum of their choice. See, e.g.

Bowling v. Pfizer, Inc., 143 F.R.D. 141, 152 (S.D. Ohio 1992);

and see Judith Resnik, Litigating and Settling Class Actions: The

Prerequisites of Entry and Exit, 30 U.C. DAVIS L. REV. 835, 836

(1997) (describing “accusations of collusion, attorney self-

interest, and judicial acquiescence in or support of unfair settle-

ments”); Susan Konaik, Feasting While the Widow Weeps:

Georgine v. Amchem Products, Inc., 80 CORNELL L. REV. 1045

(1995) (documenting “improper manipulation of the class defini-

tion to benefit the defendants and class counsel”); and Howard

Downs, Federal Class Actions: Diminished Protection for the

Class and the Case for Reform, 73 Neb. L. Rev. 646, 661-67

(1994) (illustrating financial conflicts between class counsel and

class members), and id. at 671-82 (weakening of notice rights).

In Amchem Products, Inc., et al. v. George Windsor et all,

117 S.Ct. 2231 (1997) (mass asbestos class settlement did not

satisfy Rule 23 requirements of common issue predominance and

adequacy of representation) this Court focused on two difficulties

that arise in multidistrict class action litigation under federal Rule

23. Petitioners raised similar concerns in their frequently repeated

objections to the certification of a mandatory class in state court.

* The complaint filed by the federal plaintiffs in the district court

described the object of the litigation as “a massive underground spill of

oil, petroleum products, and other hazardous and ultra-hazardous

chemicals which Amoco Oil Company has negligently and intentionally

allowed to accumulate through leaks and spills at the Amoco Oil Whit-

ing Refinery over a large number of years.” Once Amoco adopted a

litigation posture, it insisted in the discovery process upon the “non-

pejorative term ‘nderground oil’ rather than ‘oil spill.”” In deference to

the etiquette of the oil company, neither of the decisions below uses the

word “leak” or “spill.” The polite discourse is “alleged oi] migration.”

App. 8a, or “possible underground migration of oil.” For a description

of the noxious effects of this “migration” on the residents of Whiting,

see App. 57a.

Dismissed by the Court of Appeals as “multiple minor motions,”

App. 14a, these objections became all the more cogent after it

became clear that the only relief sought by the state plaintiffs was

damages. Whether the requirements of Ind. T.R. 23(B)(1) were

met in this instance is a state law matter not resolved under

Amchem or presented here. What is raised here as a federal due

process matter is that the Indiana courts may not reach the con-

clusion they did here without affording (1) adequate notice before

deprivation of a liberty clarified by this Court, (2) a hearing

commensurate with the deprivation of liberty suffered without a

hearing, Mathews v. Eldrige, 424 U.S. 319, 339-50 (1976), and

(3) a right to opt out of a mandatory class that -- as in Shutts --

was “wholly or predominately for money judgments.” This case

illustrates, moreover, not only the danger of mandatory inclusion

of objectors in a class action, but also the evil of mandatory,

wholesale exclusion of members of racial minorities from juries

called to deliberate about environmental damage occurring in

communities in which they predominate. We discuss the first

question presented in §§ 1-3, and the second question in § 4 be-

low.

1. The Decision Below Departs from this Court’s Teaching

about Due Process Rights to Adequate Notice, to a Fair and

Full Hearing, and to Opt Out of a Mandatory Class Action

Wholly for Money Judgments.” The Decision Below Is in Di-

rect Conflict with Decisions of Federal Courts of Appeals.

A. Petitioners raised below and adequately preserved

throughout all stages of the litigation three issues relating to the

violation of their due process rights: (1) lack of notice before the

determination of a mandatory class, (2) lack of any meaningful

hearing on this issue, and (3) denial of the right to opt out of a

mandatory class action that was predominantly for a money

judgment.

1. Relying on Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306 (1950), petitioners objected immediately and

repeatedly to the denial of their due process right to adequate no-

tice before the certification of this potential class. In the Court of

Appeals petitioners argued that “the right to be heard has little

value unless one is informed of the matter pending. Mullane, 339

U.S. at 314. While actual notice is not required in every case, an

elementary requirement of due process is notice that is reasona-

bly calculated, under the circurnstances, to apprise the interested

parties of the pendency of the action and afford them an opportu-

nity to present their objections. /d. In this case, no notice to any

putative class member was even attempted.” Brief of the Interve-

nors at 23-24. This case presents the question whether, under the

circumstances such as those found in Shutts and in this case, the

due process clause still requires what this Court said it did in

Shutts: that “a fully descriptive notice [be] sent to each member

of a class action with a clear explanation of the right to opt out of

the class.” 472 U.S. at 798 (emphasis added).

2. Petitioners likewise objected immediately and repeatedly

to the failure of the trial court to conduct a meaningful hearing

regarding the mandatory class certification. Again, petitioners

preserved this issue and argued it in the Court of Appeals: “the

Due Process Clause, at a minimum, requires that a court provide

a party with an opportunity to be heard prior to the deprivation of

life, liberty, or property” citing Mullane, 339 U.S. at 313. See

also Mathews v. Eldridge, supra.

3. Petitioners also objected immediately and repeatedly to

the failure of the trial court to allow them to opt out of the man-

datory state class action. In Shutts the Court held that a state class

action procedure comports with the Due Process Clause of the

Fourteenth Amendment where it requires that a fully descriptive

notice be sent by first-class mail to each member of a class action

with a clear explanation of the right to opt out of the class. 472

U.S. at 812. Petitioners have little to show for seven long years of

litigation seemingly calculated to frustrate their effective access

to the federal forum of their choice by wearing down their re-

sources in a mandatory state class actrion that they wanted no

part in. This result alone might counsel in favor of a clearer rule

requiring class members to “opt in.” Nevertheless, petitioners do

not renew the argument, rejected in Shutts, id. at 811, that the

Due Process Clause requires each class member to consent af-

firmatively to his inclusion within the class. Petitioners are con-

tent with the Court’s view in Shutts that “If ... the plaintifi’s

claim is sufficiently large or important that he wishes to litigate it

on his own, he will likely have retained an attorney or have

thought about filing suit, and should be fully capable of exercis-

ing his right to ‘opt out.” /d. at 813. They present the due proc-

ess question in this petition because the courts below departed

from Shutts by failing to honor their manifest desire to opt out of

a state class action “wholly or predominately for money judg-

ments.” /d. at 812, n. 3.

The first and most obvious manifestation of the objectors’

desire to opt out was the filing of a separate action under Rule 20,

F.R.Civ. P., in the district court. This fact alone “provides evi-

dence that some class members have an interest in controlling the

course of litigation involving their nghts.” Jack Friedenthal,

Mary Kay Kane, and Arthur R. Miller, CIVIL PROCEDURE 736

(2d ed. 1993). At the time this action was filed, moreover, the

state class plaintiffs had only sought certification of an opt-out

class. The attorney for Amoco requested the attorney for the state

class plaintiffs to change his opt-out class to a mandatory class. A

state judge without proper jurisdiction then arranged a telephone

conference call with these two attorneys, who told the judge their

motions were “unopposed” although the federal plaintiffs re-

ceived no notice before the certification “hearing.” Thereafter,

the objectors -- with one exception (Henry Cornelius) -- persis-

tently objected to their inclusion in the mandatory class and re-

peatedly pressed their constitutional right to opt out of a class

action seeking damages. See, e.g., John Coffee, Class Wars: The

Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV.

1343, 1382-84 (1995) (describing mandatory classes as “proba-

bly the most aggressive tactic” to protect “defendants against the

‘anger’ that high stakes individual claimants, dissatisfied with the

terms of the settlement class, will opt out”). The decision in

Martin departs from the teaching of this Court on Shuts.

B. The decision in Martin is in direct conflict with federal

courts of appeal on two important federal questions, (1) the no-

tice requirement and (2) the duty to afford a right to opt out of

actions for money damages.

1. A party may lose a right to opt out of a mandatory class

under Rule 23(b)(1), where notice and opportunity to be heard is

given before the certification of the mandatory class. See, e.g.,

Robertson v. National Basketball Assn., 556 F. 2d 682 (2d Cir.

1977). By the same token, the failure to provide adequate notice

is fatal. Jn re Temple, 851 F. 2d 1269 (11th Cir. 1988) (district

court’s failure to notify plaintiffs of certification hearing violated

due process, and authorized a writ of mandamus to require dis-

trict court to vacate its order certifying a mandatory class action);

see also In re Bendectin Products Liability Litigation, 749 F. 2d

300, 306 (6th Cir. 1984) (no opportunity for objectors to dispute

whether there was a limited fund); and Jn re N. Dist. of Cal., Dal-

kon Shield IUD Products Liability Litigation, 693 F. 2d 847, 857

(9th Cir. 1982) (error for court to certify nationwide 23(b)(1)(B)

class for punitive damages without giving objectors wishing to

pursue remedies in state courts an opportunity to participate in

prior briefings and hearings). The Indiana trial court was fully

briefed on the federal violation posed by the failure to provide

petitioners with notice prior to the crucial certification “hearing”

(if a phone call between two lawyers and a judge can so be de-

cribed), but never corrected this fatal error. Also fully briefed on

the federal claims, App. 65a-67a, the Indiana appellate courts

affirmed that result. This case thus presents a direct conflict be-

tween the highest tribunal of a State and the Second, Sixth,

Ninth, and Eleventh Circuits.

2. Expanding on this Court’s teaching in Shutts, the Ninth

Circuit held in Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th

Cir. 1992), cert. granted, 510 U.S. 810 (1993), cert. dismissed,

511 U.S. 117 (1994), that class members have a due process right

to opt out of a class action asserting significant monetary claims,

even when conjoined with injunctive relief. 982 F. 2d at 392. The

Indiana trial court was fully briefed on the Shutis issue, but de-

nied petitioners’ due process right to opt out of a class action

wholly for money damages. Also fully briefed on the federal

claims, App. 65a-67a, the Indiana appellate courts affirmed that

result. This case thus presents a direct conflict between the high-

est tribunal of a State and the Ninth Circuit. The Court should

resolve these direct conflicts.

2. The Court Has Expressed a Continuing Interest in the Is-

sue of a Due Process Right to Opt of Class Actions.

Twice within the past four years, the Court has granted cer-

tiorari on a question similar to the first question presented here,

only to dismiss the writ as improvidently granted. In Ticor Title

Ins. Co. v. Brown, 511 U.S. 117 (1994), the Court granted certio-

rari on the following question: “Whether a federal court may ref-

use to enforce the judgment in a nationwide class action vertified

under Rule 23(b){1) and (b)(2) on the ground that unnamed class

members have a constitutional right to opt out of any class action

asserting monetary claims.” Brief for Pet. at i.

More recently, the Court granted certiorari in Adams v.

Robertson and Liberty National Life Ins. Co., 520 US. 83

(1997), involving state class action rules failing to provide for an

opt out, on the question: “Whether the certification and settle-

ment of this nationwide class action pursuant to Rules 23(b)(2),

23(b\ 1A), and 23(b)\(1)(B) of the Alabama Rules of Civil Pro-

cedure, with no right to opt out, violate the Due Process Clause

of the Fourteenth Amendment when all class members suffered

individual monetary damages but the vast majority of class mem-

bers receive no monetary compensation for the release of their

claims for compensatory and punitive damages.” Pet. for Cert., at

These grants of certiorari reflect an interest by the Court in

a recurrent issue of national importance. See, e.g., Stephen J. Sa-

franek, Do Class Action Plaintiffs Lose Their Constitutional

Rights?, 1996 WIS. L. REV. 263. If, after Ticor and Adams, this

case seems like “deja vu all over again,” petitioners urge that the

third time the Court has an opportunity to review Shutts should

be a charm rather than a strike-out. Just as the Court on occasion

overcomes suggestions of mootness to resolve critical issues “ca-

pable of repetition yet evading review,” Moore v. Ogilvie, 394

U.S. 814, 816 (1969), so also the Court should not be overly

hesitant in waiting for a perfect vehicle with which to address the

confusion in lower courts over due process requirements in class

actions. See Linda S. Mullenix, Getting to Shutts, 46 U. KAN. L.

REV. 727, 730 (1998) (attorneys seeking to resolve class actions

through the mandatory class procedure, especially mass tort liti-

gation, need definitive resolution of the issue left open in Shutts).

3. This Case does not Suffer from the Defects that Led the

Court to Dismiss the Writ in Ticor and in Adams.

Petitioners understand that the Court’s continuing interest

in an issue, by itself, does not constitute a ground for granting the

writ if there-aré other defects in a particular case. By “adher[ing]

scrupulously to the customary limitations on [the Court’s] dis-

cretion” regardless of the significance of the underlying issue, the

Court “promote[s] respect ... for [its] adjudicatory process.” //li-

nois v. Gales, 462 U.S. 213, 224 (1983). For example, the writ

may be denied or dismissed as improvidently granted to protect

the interest of comity between the federal and state courts, and to

protect the value of a fully developed factual and legal record,

see, e.g., Adams, 117 S.Ct. at 1032. This case does not suffer

from the defect later leading the Court to dismiss the writ as im-

providently granted in 7icor and Adams.

A. Hypothetical question. In Ticor, the Court dismissed the

writ on the ground that “deciding this case would require [the

Court] to resolve a constitutional question that may be entirely

hypothetical.” 511 U.S. at 118. Three members of the Court were

of the view that “[uJnless and until a contrary rule is adopted,

courts will continue to certify classes under Rules 23(b)\(1) and

23(bX(2) notwithstanding the presence of damages claims; the

constitutional opt-out right announced by the court below will be

implicated in every such action, at least in the Ninth Circuit.” /d.

at 124-25 (O’Connor, J., dissenting). However the situation in

Ticor is to be characterized, the repeated efforts of petitioners to

opt out show that the question presented here is not hypothetical.

B. Adequate presentation of federal claim. In Adams, the

Court dismissed the writ on the ground that the petitioner’s fed-

eral claim was not addressed by or properly presented to the Ala-

bama Supreme Court that had rendered the decision to be re-

viewed. Petitioners in Adams had cited a relevant case in their

brief before the state Supreme Court; this portion of the brief,

however, did not assert a general challenge to the state’s class

action rules based on the Fourteenth Amendment, but focused

only on the narrow question whether nonresident members of

class were afforded due process. Adams, 117 S.Ct at 1029. That

particular focus is absent from this record, which deals with in-

state objectors who wish to proceed in federal court rather than in

state court. Petitioners here, moreover, clearly briefed and argued

to the Indiana Court of Appeals and to the Supreme Court of In-

diana a federal due process challenge to state class action rules

that did not afford right to opt out of a class action wholly for

damages. App. 65a-67a. Thus this case fully meets the require-

ments that a “state court had fair opportunity to address the fed-

eral question sought to be presented,” Webb v. Webb, 451 U.S.

493, 501 (1981), and that “the claim was raised ‘at the time and

in the manner required by the state law,“ Bankers Life & Casu-

alty Co. v. Crenshaw, 486 U.S. 71, 77-78 (1988) (citing Webb).

C. Waiver. As noted above, the objectors challenged the

certification of the order of a mandatory class as improper under

Indiana T.R. Rule 23(b\(1), App. 8a. The courts below ruled that

the objectors waived their right to appeal the propriety of the cer-

tification of a mandatory class for failure to file a praecipe within

30 days after the date (unspecified below) when the trial court

entered a final order on this matter. App. 8a, 18a-20a. To reach

this conclusion, the courts below mistakenly adopted the un-

founded speculation of the oil company, Brief of Amoco Oil

Company in Opposition to Intervenors’ Appeal, at 14-19, that the

purpose of the praecipe filed on March 25, 1992, was to seek an

appellate determination on the legitimacy of the class certifica-

tion. Thus the Supreme Court wrote: “On March 25, 1992, Ko-

myaite’s clients filed a praecipe with the trial court clerk, osten-

sibly to appeal the class certification order, but they did not file

the record with the Court of Appeals or otherwise pursue the ap-

peal. Instead, they apparently chose to participate in the litigation

as members of the class.” App. 8a, 14a. Normally this Court is

deferential to state court determinations of state law issues. But

the Cou:t is not bound by conclusory assertions for which there is

no support whatever in the record. See, e.g., Bousley v. United

States, 118 S.Ct. 1604, 1612 (1988); and Crawford-El v. Button,

118 S.Ct. 1584, 1602 (1998) (Rehnquist, C.J., dissenting). And

litigants in this Court may also rely on this rule to attack “find-

ings” for which there is no evidence in the record. See, e.g., New

York v. New Jersey, 118 S.Ct. 1726, 1736 (1998).

There is no basis in the record for the assertion that the

“ostensible” purpose of the praecipe filed on March 25 was to

challenge the certification order. The only order on file as to

which a timely filing of a praecipe could be had at that time was

Judge McLaughlin’s order finding the explicit provision of a ju-

risdictional rule, T.R. 79(5) to be ‘:seless.” Under state law,

moreover, objection to the personal jurisdiction of a special judge

must be made on that basis alone, or else it is waived. Thomas v.

State, 656 N.E. 2d 819 (Ind. 1995); Morrison v. State, 542 N.E.

2d 564, 570 (Ind. 1989). For that reason petitioners refrained

from making a challenge on any other issue, such as the due pro-

cess or equal protection claims or the impropriety of the class

certification under T.R. 23, until the chief judge had ruled on

Judge McLaughlin’s jurisdiction. Hence the filing of the first

praecipe could not conceivably have been to appeal on the lack of

notice or hearing or the due process right to opt out protected in

Shutts, for the obvious reason that petitioners had not yet asserted

those rights and thus there was no final order on those issues

from which to take an appeal. The only ruling on class certifica-

tion was Judge McLaughlin’s order of January 23, 1992, which

is defective for want of adequate notice to the federal plaintiffs.

On February 3, 1992, the federal plaintiffs filed a motion to va-

cate that order, exclusively on the ground that Judge McLaughlin

was without any power to enter any orders in the case since he

had not qualified within the jurisdictional period reflected in Ind.

T.R. 79(6). Ignoring the requirement that another judge rule on

this matter, Judge McLaughlin denied the objectors’ motion with

respect to his jurisdiction on March 18. This was the only order

on file and thus was the only possible ground for an interlocutory

appeal at that point. By the same token, the personal jurisdiction

of the special judge is the only issue that was waived when the

appeal was not perfected after the filing of the first praecipe.

The notion that petitioners “apparently chose to participate

in the litigation as members of the [state] class,” App. 8a, like-

wise has no basis in the facts of this record. Of the 90 federal

plaintiffs, only Henry Cornelius chose to participate in the state

proceedings, and he is not a petitioner here. See List of Parties, ii.

All the other federal plaintiffs continuously objected to inclusion

in the state class action and continuously sought to exercise their

opt-out right secured in Shutts.

The Court of Appeals mistakenly lumped together the ob-

jectors’ challenge to certification of the mandatory class with

their due process rights: “Intervenors’ challenge to the propriety

of the class and their due process challenge of the class were

waived.” App. 20a. Petitioners concede that they waived their

right to appeal the state law issue of the validity of the construc-

tion of Ind. T.R. 23 in the certifying the mandatory class in Mar-

tin. The law of the case now holds that “an [Indiana] order certi-

fying a class action is interlocutory in nature” and not “final upon

entry and thus appealable as of right.” App. 7a. Under state law

applicable at the time of the entry of the order of certification of

the class (a date that on this confused record neither of the courts

below cared to specify) “class certification orders were final and

appealable.” App. 8a.

This petition, however, does not deal with that issue of state

law, but with the violation of the Fourteenth Amendment when

the Indiana courts authorized a deprivation of petitioners’ liberty

and property interests without adequate notice, a fair and full

hearing, and a right to opt out. Petitioners never waived any of

these three rights. It is a wild stretch of the imagination -- not

“harmless error” -- to suggest that petitioners ever waived their

federal due process rights to adequate notice, a fair hearing, and

an opportunity to opt out of a class action wholly for monetary

judgments.

Indiana cannot set up a Hobson’s choice to trap federal liti-

gants from preserving their right to litigate in federal court: either

challenge the jurisdiction of the state court and forego comment

on due process and equal protection violations, or raise violations

of the federal constitution and thereby forego challenge to the

court’s authority to issue any orders at all. See, e.g., Stone v. INS,

514 U.S. 385, 387 (1995),Morales v. TWA, 504 U.S. 374, 381

(1992); Healy v. Beer Institute, 491 U.S. 324, 332 (1989). But

that is precisely what occurred here. Amoco obtained an auto-

matic change of venue from the county where the oil spill oc-

curred (with a high percent of members of racial minorities) to a

rural county (with virtually no racial minority residents). The

state plaintiffs and Amoco then changed the state class action

from an opt-out class to a mandatory class. Both counsel for the

state plaintiffs and counsel for the oil company were well aware

of the pending federal case, but they both failed to give notice to

counsel for the federal plaintiffs and then represented to the judge

that their motions were “unopposed.” A state judge lacking per-

sonal jurisdiction then signed the order of a mandatory class.

When the federal plaintiffs were served the notice of the manda-

tory class -- prepared and hand delivered by the oil company --

they had to make a stark either/or choice between attacking the

personal jurisdiction of the judge (without mentioning any other

issue) or raising a challenge to the class certification under T.R.

23 (and thereby forfeiting their right to attack the power of the

judge without jurisdiction to enter the order in the first place). As

Justice Holmes wrote: “Whatever springes the State may set for

those who are endeavoring to assert rights that the State confers,

the assertion of federal rights, when plainly and reasonably made,

is not to be defeated under the name of local practice... [I]t is

necessary to see that local practice shall not be allowed to put

unreasonable obstacles in the way.” Davis v. Wechsler, 263 U.S.

22, 24-25 (1923). Indiana has placed unreasonable obstacies in

the way of the exercise of federal due process rights plainly and

reasonably asserted throughout this litigation. All of the due pro-

cess rights asserted in the first question presented are adequately

preserved for resolution by this Court.

4. Amoco Offered No Race-Neutral Reason for its Requested

Change of Venue at the Time it was Ordered. The Court

Should Invalidate Automatic Change of Venue Rules that

Exclude Members of Racial Minorities from Juries Deliber-

ating about Environmental Damage Occurring in Communi-

ties in which They Predominate.

The second question presented is “[w]hether a State trial

rule allowing an automatic change of venue violates the Equal

Protection Clause of the Fourteenth Amendment, where the rule

permits wholesale exclusion of members of racial minorities

from sitting on juries called to deliberate about environmental

damage occurring within communities in which they predomi-

nate, and where no race-neutral reason for the request was re-

quired at the time the change of venue was ordered.” Petitioners

are not aware of any direct conflict among the federal circuits or

highest state tribunals on this question.

We note, moreover, that after the events in this case the Su-

preme Court of Indiana amended T.R. 76. App. 49a. In Edmon-

son v. Leesville Concrete Co., 500 U.S. 614 (1991), this Court

ruled that litigants in a civil action may not use peremptory chal-

lenges to exclude jurors because of their race. Relying expressly

on Edmonson, the Superior Court of Lake County, the very same

court in which this case was first lodged, entered findings of fact

and conclusions of law on September 18, 1991, holding that “an

individualized race-neutral justification cannot possibly be made

by a litigant who excludes essentially all black persons via an

automatic change of venue from [Lake] County” and for that rea-

son ruled that T.R. 76 could no longer be applied constitutionally

to cases in which litigants sought an automatic change of venue

from Lake County. Moore and Richardson v. Kocur, Cause No.

45D05-9101-CT-260 (Lake Co. Sup. Ct., Sept. 18, 1991). On

December 6, 1991, the Supreme Court of Indiana, again relying

expressly on Edmonson, announced an amendment to Rule 76,

abolishing the automatic grant of change of venue, “without

having to state why [the parties] could not receive a fair trial in

the county where the lawsuit was properly filed.” App. 49a.

In ruling on the equal protection claim presented by the

objectors/intervenors, the Court of Appeals held that the objec-

tors satisfied the requirement of a prima face showing of racial

discrimination on these facts. App. 22a. But the court erred in

finding that Amoco had rebutted this claim by arguing on appeal

a claim never presented in the trial court: that “they requested a

change of venue to escape the widespread negative publicity in

the Whiting/Hammond area surrounding the alleged migration of

oil from the refinery,” id. and in holding that Amoco “success-

fully presented a race-neutral justification for the change of

venue in the present case.” App. 23a.

The Court should grant the writ on the equal protection

question for two reasons. First, this record shows that an auto-

matic change of venue rule can “may be circumstantial evidence

of discriminatory intent.” App. 22a, citing Osmulski v. Becze, 638

N.E. 2d 828, 834 (Ind.Ct. App. 1994). As this Court acknowledged

in Edmonson, peremptory challenges can be a surrogate for in-

tentional racial discrimination in civil litigation. All the more so

with an automatic change of venue away from a county with

dense populations of racial minorities. Intentionality need not be

demonstrated only in overt statements of evil minds, Yick Wo v.

Hepkins, 118 U.S. 356 (1886), but can be demonstrated through

circumstantial evidence, or may be the product of reasonable in-

ferences from the totality of the circumstances, including, as

here, adventitious behavior. Village of Arlington Heights v. Met.

Housing Dev. Corp., 429 U.S. 252, 241 (1977). Here the oil

company intentionally sought to move the case out of Lake

County, which under state law is the “preferred venue,” Ind. T.R.

75, to Newton County. Why? Amoco’s primary intent may have

been to evade scrutiny in the county where the oil spill occurred.

But it is reasonable to infer, as the Court of Appeals did in hold-

ing that a prima facie case of racial discrimination had been

made, App. 22a, that Amoco also wished the natural conse-

quences of moving the case from a county the population of

which is approximately 25% African-American to a county with

a population of African-Americans less numerous than .1%. This

statistic in the record does not include members of other racial

minorities such as Hispanic-Americans, who form nearly 30% of

the petitioners. See Appendix O, App. 53a.

The Court normally defers to State procedural matters such

as change of venue rules. Such deference must yield to strict

scrutiny where, as here, a state trial rule authorizes mandatory,

wholesale exclusion of members of racial minorities from juries.

Peremptory challenges operate at retail, one juror at a time. Pre-

cisely because automatic transfer rules are automatic, they are

more sweeping, working their intended effects at wholesale, an

entire county at one stroke. If Edmonson is to have any meaning-

ful application to civil litigation, it should not leave open a vast

loophole that allows litigators to eliminate racial minorities from

juries by automatic transfers away from coounties where people

of color are densely concentrated. Members of racial minorities

should not be eliminated from deliberating on juries about envi-

ronmental damage occurring in communities in which they pre-

dominate. See, e.g., Foster, Justice from the Ground Up, 86 CAL.

L. REV. 775 (1998); Vicki Been, Environmental Justice and Eq-

uities, Chap. 25 in Patrick Rohan, ed., ZONING AND LAND USE

CONTROLS (1995); Michael Gerrard, WHOSE BACKYARD,

WHOSE RISK? (1994); Gerrard, The Victims of NIMBY, 21

FORDHAM URB. L.J. 495 (1994); Nat. Research Council,

UNDERSTANDING RISK (1996). See Appendix O, App. 53a.

Second, in its discussion of Amoco’s rebuttal of the prima

facie case of racial discrimination, the Court of Appeals departed

significantly from this Court’s jurisprudence concerning the bal-

ance between free press and fair trial. In holding that the oil com-

pany met its burden of demonstrating a race-neutral justification

for the change of venue, the Court of Appeals overlooked the

obvious fact that the oil company offered no evidence on jury

bias whatever at the trial court. Since lawyers on both sides of the

street are gifted at inventing post-hoc justifications for impermis-

sible conduct, courts must be especially careful in scrutinizing

reasons offered to justify racial discrimination in the administra-

tion of civil justice. See, e.g., Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 227 (1995). The Court of Appeals failed to apply

this standard here.

In its brief before the Court of Appeals Amoco cited only

one article from the Hammond Times, dated January 24, 1991, as

evidence of a story that it claimed “cast Amoco in an unfavorable

light.” Brief of Amoco Oil Company in Opposition to Interve-

nors’ Appeal, at 24. We reproduce the entire article in the Ap-

pendix. App. 57a-6la. The Court can determine whether this

story casts the oil company in “an unfavorable light,” and more

importantly, whether it is the sort of adverse publicity so poison-

ing the atmosphere that no panel of unbiased jurors could be re-

lied upon to render a fair verdict in the county where the events

took place. See, e.g., Mu'mim v. Virginia, 500 U.S. 415, 432

(1991) (requiring inquiry whether jurors could put aside what

they had read or heard and render a fair verdict on the evidence).

In Mu ‘mim the defendant submitted to the trial judge 47 newspa-

per articles relating to the murder “before the voir dire to make

the judge aware of all of the allegedly prejudicial information to.

which prospective jurors might have been exposed.” /d. at 433.

Here, by contrast, the oil company offered only | newspaper arti-

cle, App. 57a-61a, at the appellate stage of litigation to bolster a

claim it never presented at trial. The Court should grant the writ

on the equal protection issue, if only to advise lower courts not to

dilute the rule governing jury bias articulated in cases like

Mu ‘mim.

Petitioners have sustained injury acknowledged by the

respondent. If their plight is truly “worse,” on the oil company’s

admission, than a similar Amoco oil spill in Missouri, App. 69a,

then they should be allowed the opportunity to vindicate their

rights in a fair and full hearing in the federal forum of their

choosing, represented by counsel of their choice, and before a

jury from which members of racial minorities are not automati-

cally excluded. “[OJ}ne who has a unique property right should be

able to determine when and where they want to assert that right.”

Safranek, Do Class Action Plaintiffs Lose Their Constitutional

Rights?, 1996 WIS. L. REV. at 294, n. 183. Perhaps a federal jury

in Hammond on which urban African-Americans and Hispanics

could sit would have reached the same verdict as the all-white

rural jury in Kentland. Under the Fourteenth Amendment, how-

ever, they are entitled to find that out in the forum of their own

choosing, and they should not be bound by a proceeding that was

deeply flawed’ and to which they repeatedly and strenuously ob-

jected. Petitioners have three due process rights: to pre-

certification notice of a mandatory class, to a fair and full hearing

on the certification issue, and to opt out of a class action wholly

for a money judgment. They also have an equal protection right

to a jury from which their African-American neighbors are not

automatically excluded. This Court should address both questions

presented.

* For example, the state trial court allowed the oil company to pres-

ent to the jurors evidence of other polluters in northern Indiana, such as

steel companies and chemical companies. On the issue of whether “the

levels of benzene on the class plaintiffs’ property were high enough to

cause any short or long-term health probiems or physical discomfort,”

the Court of Appeals relied on the testimony of a witness “who lives in

the area but who was not a member of the class ... that he had never

experienced any problems with oil on his property.” App. 24a. Petition-

ers doubt that the district court or the Seventh Circuit would have in-

duiged such leaps of logic, which F.R. Evid. 401 is designed to over-

come.

Conclusion

The petition for a writ of certiorari should be granted.

Edward McGlynn Gaffney, Jr.* | William F. Satterlee III

Valparaiso University School Larry G. Evans

of Law Jack A. Kramer

Valparaiso, IN 46383 Hoeppner, Wagner& Evans

219-465-7860 103 East Lincolnway

* Counsel of Record Valparaiso, IN 46384

219-464-496 1

Patrick J. McNanama

P.O. Box 374

Crown Point, IN 46307

219-756-2110

APPENDICES

Date

1/23/91

2/1/91

4/1/91

4/24/91

6/10/91

10/10/91

1/7/92

1/23/92

App. la

Appendix A

Chronology of Principal Events

Event

Letter from Amoco to residents of Whiting ac-

knowledges leak of 16.8 million gallons of oil at

Whiting refinery

3 State plaintiffs [St. Ps] file 23(B)(3) class action

in Superior Ct. [St. Ct.] for Lake County

St. Ps files amended complaint, adding James

Martin (lead P) & Mary Roman; still 23(B)(3)

Amoco moves for change of venue, stating no

reason in support of motion. Motion granted

automatically under Trial Rule [T.R.] 76. Case

transferred from Lake County (25% African-

American population) to Newton County

(.1% African-American population).

Hon. Marvin McLaughlin appointed special

judge, but fails to qualify w/in 20 days as re-

quired in T.R. 79(5) for exercise of jurisdiction

by special judge.

43 Federal plaintiffs [Fed. Ps] file complaint in

U.S. Dist. Ct. for N. Dist. of Ind. [Fed. Ct.]

seeking permissive joinder under Rule 20, F.R.

Civ. P., of claims for compensatory damages, and

class action under Rule 23(b)1), or in the alter-

native under 23(b)(3), limited to issue of punitive

damages; assigned to Hon. J. T. Moody

Fed. Ps move for determination of 23(b)3) class,

limited to issue of punitive damages

St. Ps and Amoco file motions to certify manda-

tory class under T.R. 23(B\1). Both counsel ad-

vise Judge McLaughlin that their motions are

“unopposed.” Without any notice to Fed. Ps or

opportunity to be heard at certification “hearing,”

Judge McLaughlin immediately enters Order —

prepared by Amoco — for 23(B)(1) mandatory

class with no opt-out. Amoco hand delivers in

1/28/92

2/3/92

2/14/92

3/6/92

3/18/92

3/25/92

3/26/92

6/5/92

“Amoco Comrnunicator” the Notice of Class Ac-

tion — also prepared by Amoco — to residents of

Whiting, Indiana.

Amoco moves to stay proceedings in Fed. Ct. on

ground that no opt-out class in St. Ct. includes all

Fed. Ps and all claims in fed. case.

Fed. Ps move in St. Ct. to vacate order of man-

datory class, focusing exclusively on Judge

McLaughlin’s lack of jurisdiction for failure to

qualify under T.R. 79(5); no ruling on motion.

90 Fed. Ps file amended complaint in Fed. Ct.,

adding new Ps, a new state cle m of unjust en-

richment, and a federal questic: claim under

CERCLA.

Fed. Ps file in St. Ct. a memorandum of law in

support of motion of 2/3/92, focusing exclusively

on Judge McLaughlin’s lack of jurisdiction for

failure to qualify under T.R. 79(5).

Judge McLaughlin denies Fed. Ps’ motion for his

revocation, finding T.R. 79(5) “useless.”

Fed. Ps file praecipe (notice of appeal) to chal-

lenge Judge McLaughlin’s jurisdiction; ruling of

3/18/92 is the only order on file at the time; Fed.

Ps later decide to abandon this appeal.

Judge Moody grants motion of Fed. Ps (contested

by Amoco) to file amended complaint, and denies

Amoco’s motion for stay of fed. proceedings,

questioning “ability of St. Ct. proceedings to

protect the rights and interests of all the Fed. Ps

in this action.” 7

Fed. Ps file motion in St. Ct. for leave to opt out

of mandatory class action on 4 grounds: (1) lack

of pre-certification notice, (2) lack of meaningful

hearing to consider propriety of certification of

mandatory class, (3) constitutional right to opt-

out of class action predominantly for money

judgment, and (4) fundamental fairness to liti-

gants and judicial economy (federal plaintiffs

should not be required to engage in litigation on

6/17/92

6/22/92

6/24/92

8/27/92

9/8/92

9/15/92

10/29/92

App. 3a

same issues both in state and in federal court); no

ruling on motion.

Amoco news release claims that leak of 16.8 mil-

lion gallons of oil is confined primarily to its own

property, but acknowledges that 25,000 to 50,000

gallons of oil “migrated” past boundaries of re-

finery to adjacent homes.

Fed. Ps file alternative motion in St. Ct. seeking

to establish subclass of residents living w/in zone

acknowledged by Amioco in release of 6/17/92 to

be contaminated.

Fed. Ps file memorandum in St. Ct. in support of

motion of 2/3/92 to opt out of mandatory class;

Judge McLaughlin “overrules all motions to opt

out of class.”

Fed. Ps file motion in St. Ct. to set aside or vacate

order certifying mandatory class or to set a hear-

ing to determine whether the case should con-

tinue as a mandatory class or as an opt-out class.

In Fed. Ct. Judge Moody grants motion for exten-

sion of time w/in which to complete discovery in

fed. case, and sets trial date for 11/1/93.

St. Ps file request in St. Ct. for order that Fed. Ps’

motion of 8/27/92 is “repetitive” T.R. 53.4.

Amoco files in St. Ct. opposition to Fed. Ps’ mo-

tion of 8/27/92. Fed. Ps file response to St. Ps’

motion of 9/8/92, noting that Judge McLaughlin

had never ruled on any of the 7 arguments sup-

porting Fed. Ps’ motion of 8/27/92. Judge

McLaughlin denies St. Ps’ motion of 9/8/92, and

postpones consideration of Fed. Ps’ motion of

8/27/92 to pre-trial conference, set for 2/5/93.

Amoco files objection in St. Ct. that Fed. Ps’

motion of 8/27/92 raised same considerations that

Judge McLaughlin had already rejected. Fed. Ps

file memorandum in support of motion of

8/27/92, noting that Judge McLaughlin had never

formally ruled on any of the arguments urged in

support of their motion of 8/27/92. Judge

3/5/93

3/19/93

4/26/93

6/2/93

6/24/93

8/9/93

8/11/93

10/8/93

11/22/93

11/23/93

App. 4a

McLaughlin again postpones consideration of

motior of 8/27/92.

Fed. Ps file supplemental petition in St. Ct. to in-

tervene in St. class action as subclass of residents

living w/in zone acknowledged by Amoco in re-

lease of 6/17/92 to be contaminated.

St. Ps file opposition to Fed. Ps’ petition of

3/5/93.

Judge McLaughlin “overrules any pending opt-

out motions,” and recuses himself from St. case.

Hon. Robert Smart is named special judge and

qualifies under T.R. 79(5).

St. Ps move to substitute Henry Cornelius (a for-

mer Fed. P) but maintain objection to interven-

tion by other Fed. Ps and to creation of a sub-

class.

Status conference: St. Ps withdraw prayer for in-

junctive relief. Judge Smart grants motion to sub-

stitute former Fed. P Henry Cornelius in place of

Eugene and Wanda Burkat; Cormelius withdraws

as Fed. P. Judge Smart grants motion of Fed. Ps

to withdraw motion of 3/5/93 to intervene as sub-

class. Richard Komyatte, counsel for Fed. Ps,

agrees to assist St Ps as co-counsel, but all Fed.

Ps (other than Cornelius) continuously object to

participation in mandatory state class action

wholly for monetary judgment.

Fed. Ps move in St. Ct. to reconsider Judge

McLaughlin’s denial of motion to opt out, based

on stipulation of St. Ps and Amoco that state case

is wholly for damages.

Judge Smart motion to reconsider Judge

McLaughlin’s denial of motion to opt out

Trial begins in St. Ct.

State case submitted to jury; while jurors are de-

liberating, Fed. Ps renew motion of 8/27/92 to opt

out of mandatory class.

Judge Smart denies Fed. Ps’ motion to opt out,

and denies hearing to reconsider whether S. case

11/29/93

12/14/93

1/13/94

3/21/94

6/8/94

8/1/94

8/31/94

App. 5a

should continue as mandatory class

Jury verdict against St. Ps and for Amoco on all

counts.

Judge Smart enters final judgment order & judg-

ment on the verdict. Fed. Ps file motion for leave

to intervene for purposes of moving to correct

errors or to file an appeal.

Judge Smart grants Fed. Ps’ motion of 12/14/93;

Fed. Ps file motion to correct errors: lack of pre-

certification notice; denial of fair opportunity to

oppose certification of mandatory class; denial of

right to opt out of class action wholly for money

judgment; denial of equal protection through

automatic grant of change of venue from Lake

Courty to Newton County

Hearing in St. Ct. on motions to correct errors.

Amoco opposes ability of Fed. Ps (Intervenors) to

file a motion to correct errors.

Judge Moody grants Fed. Ps motion for summary

judgment on CERCLA claim in amount of $46K,

and stays Fed. case pending final resolution of St.

Ct. proceedings, including appeals.

Judge Smart denies Fed. Ps’ motion to correct

errors, denies Amoco’s opposition to Fed. Ps’

motion to correct errors, grants judgment on the

evidence on intentional trespass claim against

Amoco; holding that class representatives failed

to prove compensatory damages, he awards

nominal damages in the amount of one dollar to

each named class representative (total of $2)

Fed. Ps file praecipe in timely basis. In briefs be-

fore the Ct. of App. of Ind. Fed. Ps argue federal

constitutional questions: (A) denial of due proc-

ess through (1) lack of pre-certification notice,

(2) lack of fair opportunity to oppose certification

of mandatory class, and (3) denial of right to opt

out of class action wholly for money judgment;

and (B) denial of equal protection through auto-

matic grant of change of venue from Lake

4/3/97

7/10/97

/29/98

9/18/98

App. 6a

County to Newton County.

Fully briefed on federal constitutional Qs, Ct. of

App. of Ind. issues opinion ruling that Fed. Ps

waived their right to challenge certification of

mandatory class by failure to file praecipe w/in

30 days of final judgment; Ct. did not directly

address due process claims of Fed. Ps (lack of

notice, lack of meaningful hearing, denial of right

to opt out), but ruled in single sentence that they

were waived along with the right to challenge

certification order. On equal protection issue, Ct.

of App. finds prima facie case of racial discrimi-

nation in automatic grant of request for change of

venue, but finds that Amoco offered a race-

neutral justification in rebuttal at appellate stage

of litigation.

Ct. of App. of Ind. denies rehearing.

On transfer, S. Ct. of Ind. rules that a certification

order is interlocutory in nature. Fully briefed on

federal constitutional Qs, S.Ct. of Ind. does not

address these federal Qs, but summarily affirms

the Ct. of App. on all other issues.

In A-232, Justice Stevens grants application for

extension of time w/in which to file a petition for

certiorari, up to 10/28/98.

App. 7a

Appendix B

In the Supreme Court of Indiana

James Martin, Mary Roman, Robert O’Drobinak and

Henry Cornelius, Individually and on Behalf of All Others,

Appellants/Class Representatives Below,

Amoco Oil Company, Appellee/Defendant Below.

No. 56A03-9409-CV-333 in the Court of Appeals

No. 56S03-9804-CV-242 in the Supreme Court

Appeal from the Newton Circuit Court

The Honorable Robert B. Smart, Judge

Cause No. 56C01-9105-CT-67

June 29, 1998.

Saul I. Ruman, David W. Holub, David M. Hamacher,

Hammond, Richard P. Komyatte, Highland, John W. Barce,

Kentland, for Appellants.

Larry G. Evans, William F. Satterlee, III, F. Joseph

Jaskowiak, Jack A. Kramer, Valparaiso, Patrick J.

McManama, Crown Point, for Intervenors Joseph &

Dorthea Zrnchik, et al.

James J. Neath, Amoco Oil Company, Chicago, Evan

E. Steger, Indianapolis, Thomas F. Ryan, Timothy E. Kap-

shandy, Chicago, for Appellee.

SHEPARD, Chief Justice.

The Court of Appeals expressed doubt in this case

about whether an order certifying a class action is inter-

locutory in nature or final upon entry and thus appealable as

of right. We hold it is interlocutory.

Procedural History

On February 1, 1991, appellant Robert O’Drobinak

filed suit against Amoco Oil Company on behalf of himself

and 500 residents of Whiting, Indiana. These claims origi-

App. 8a

nated from a notice from Amoco to the residents which

warmed of the possibility of underground oil migration onto

their properties. Both Amoco and the plaintiffs moved to

certify the class under Indiana Trial Rule 23(B\(1) on Janu-

ary 23, 1992. The court granted the motion on the same day.

Eight days later, attorney Richard Komyatte entered an

appearance for a group of individuals who were at that time

pursuing @ separate suit in federal court based on the same

alleged oil migration.'

On February 3, 1992, these individuals moved to va-

cate the class certification order. The court denied this and

similar subsequent motions.? On March 25, 1992, Ko-

myatte’s clients filed a praecipe with the trial court clerk,

ostensibly to appeal the class certification order, but they

did not file the record with the Court of Appeals or other-

wise pursue the appeal. Instead, they apparently chose to

participate . the litigation as members of the class. Nearly

a year and seven months later, the jury returned verdicts of

not liable on all counts. The court entered final judgment on

December 14, 1993. The trial court later granted plaintiffs’

motions to correct error as to one claim, but it largely left

the jury verdict intact.

On appeal, plaintiffs claimed, in part, that the tral

court erred in certifying the class under T.R. 23(B\1).

Writing for the Court of Appeals, Judge Garrard held that

they had knowingly waived their ngiit to present the issue

on appeal. Martin v. Amoco Oil Co., 679 N.E.2d 139, 145

(Ind. App.1997). In so deciding, the court observed that, at

the time the order was entered, Indiana law clearly stated

that class certification orders were final and appealable. /d.

(citing American Cyanamid Co. v. Stephen, 600 N.E.2d

1387 (Ind.Ct.App. 1992)). It held that appellants had relin-

quished the opportunity for appeal that they possessed in

1992. It was correct to hold that at the time relevant to this

appeal, class certification orders were final and appealable.

' The federal suit is currently stayed pending the outcome of

this appeal.

2 Eventually, the court ordered these plaintiffs to refrain from

filing repetitive motions on the issue.

App. 9a

In coming to its conclusion, however, the court de-

clined to ground its decision on the premise that class certi-

fication orders remain today final interlocutory orders,

Stating: “it is not clear after our supreme court’s decision in

Berry v. Huffman, 643 N.E.2d 327 (Ind. 1994) whether class

certification orders are final and appealable orders at the

present time.” Martin, 679 N.E.2d at 144. We granted trans-

fer to clarify whether Berry, decided after the time relevant

to this appeal, changed the law in this regard.

Discussion

The Court of Appeals pondered whether this case

could be distinguished from Berry on the ground that the

trial court’s judgment in Berry dealt with a motion for par-

tial summary judgment under T.R. 56(C) while in the in-

stant case the trial court granted motions for certification

under T.R. 23(B)(1). For the purpose of determining the

appealability of a trial court order, however, this distinction

is without significance.

Berry v. Huffman was not a case about summary

judgment or about class actions. It addressed the general

appealability of orders under Trial Rules 54 and 56. As we

said then: “[T]he certification requirements of Trial Rules

54(B) and 56(C) supersede the distinct and definite branch

doctrine. Judgments or orders as to less than all of the is-

sues, Claims, or parties remain interlocutory until expressly

certified as final by the trial judge. To the extent that Ri-

chards and other cases support the distinct and definite

branch doctrine, they are overruled. Were we to hold oth-

erwise, litigants would again be left to guess whether or not

a given order was appealable. This is precisely the situation

that T.R. 54(B) and 56(C) were drafted and adopted to pre-

vent. Berry, 643 N.E.2d at 329 (citations omitted). This

logic applies with equal force to class certification orders

and, indeed, to all orders or judgments which are not “final”

under the requirements of Trial Rule 54(B). Were this not

so, the rule would undoubtedly be swallowed by its own

exceptions. The distinct and different branch doctrine, su-

perseded by our adoption of the Indiana Rules of Trial Pro-

cedure as explicitly stated in Berry, would live on in prac-

App. 10a

tice if not in word.

A judgment or order as to less than all of the issues,

claims, or parties in an action may become final only by

meeting the requirements of T.R. 54(B). These require-

ments are that the trial court, in writing, expressly deter-

mine that there is no just reason for delay and, in writing,

expressly direct entry of judgment. T.R. 54(B); Berry, 643

N.E.2d at 329.

We adopted Rules 54(B) and 56(C), based on the fed-

eral model, in an effort to provide greater certainty to liti-

gating parties and to strike an appropriate balance between

the interests in allowing for speedy review of certain judg-

ments and in avoiding the inefficiencies of piecemeal ap-

peals. Berry, 643 N.E.2d at 329 (citing 3 William F. Har-

vey, Indiana Practice: Rules of Procedure Annotated § 54.2

at 480-82 (2nd ed. 1988 & Supp.1993)). Unsatisfactory ex-

periences with the common law “distinct and different

branch of litigation” doctrine, which often lead to ineffi-

cient and unjust results, had much to do with the change. /d.

at 328 (citing as examples Guthrie v. Blakely, 234 Ind. 167,

125 N.E.2d 437 (1955); Washington v. Chrysler Corp., 137

Ind.App. 482, 200 N.E.2d 883 (1964).)

The formalistic (but bright line) approach to which we

now adhere removes uncertainties about when a party

should appeal, thus minimizing the nsk that an appeal will

be dismissed as premature or that the right to appeal will be

inadvertently lost. Further, the rules place the discretion of

deciding when the facts indicate that a judgment should be

deemed final in the hands of the individual best able to

make such decisions-the trial judge. /d.

To the extent that Martin v. Amoco Oil Co., 679

N.E.2d 139 (Ind.App.1997) and other cases support the

continuation of the distinct and definite branch doctrine,

they are overruled.3 Unless the trial court certifies its T.R.

23 determination as final under T.R. 54(B), it remains in-

> Footnote two of Connerwood Healthcare v. Estate of Herron,

683 N.E.2d 1322 (ind.Ct.App.1997), stating “we agree [with the

Martin court) that class certification orders are final and appeai-

able,” is specifically disapproved.

Lig

App. lla

terlocutory. As we stated in Berry: “Were we to hold oth-

erwise, litigants would again be left to guess whether or not

a given order was appealable. This is precisely the situation

that T.R. 54(B) and 56(C) were drafted and adopted to pre-

vent.” Berry, 643 N.E.2d at 329.

Conclusion

The Court of Appeals properly disposed of the claims

in this appeal, and we summarily affirm on each claim. Ind.

Appellate Rule 11(B)(3).4 The trial court is affirmed in part

and reversed in part in accord with the mandate of the Court

of Appeals.

Dickson, Sullivan, Selby and Boehm, JJ., concur.

* We take this opportunity to re-explain the difference between

the terms “summarily affirm” and “expressly adopt.” Indiana Ap-

pellate Rule 11(B)3) states in part: “The opinion or memorandum

decision of the Court of Appeals shall be final except where a peti-

tion to transfer has been granted by the Supreme Court. If transfer be

granted, the judgment and opinion ... of the Court of Appeals shall

thereupon be vacated and held for naught, except as to any portion

thereof which is expressly adopted and incorporated by reference by

the Supreme Court, and further, except where summarily affirmed

by the Supreme Court.”

Often, as in this instance, this Court grants transfer to address

only one of several issues addressed by a Court of Appeals’ opinion.

When this occurs, we use the term “summarily affirm” to indicate

that we decline to review the remainder of the opinion. McGowan v.

State, 674 N.E.2d 174 (Ind.1996). In essence, we partially deny

transfer on these issues. Id. (citing Kimberlin v. DeLong, 637 N.E.2d

121, 123 (Ind.1994)). In contrast, the term “expressly adopt” indi-

cates that we accept the reasoning of a Court of Appeals’ opinion as

Our Own.

App. 12a

Appendix C

In the Court of Appeals of Indiana

James Martin, Mary Roman, Henry Cornelius, and

Robert O’Drobinak, Individually and on behalf of all

others similarly situated, Appellants-Plaintiffs,

VS.

Amoco Oil Company,

Appellee/Cross-Appellant Defendant.

Joseph and Dorthea Zmchik, et al.,

Appellants/Intervenors,

VS.

Amoco Oil Company, Appellee/Defendant.

No. 56A03-9409-CV-333.

Appeal from the Newton Circuit Court

The Honorable Robert B. Smart, Judge

Cause No. 56C01-9105-CT-67

April 3, 1997

Rehearing Denied, July 10, 1997.

Attorneys for Appellants: Saul I. Ruman, David W.

Holub, David M. Hamacher, Ruman, Clements, Tobin &

Holub, P.C., Hammond, Indiana; John W. Barce, Barce &

Ryan, Kentland, Richard P. Komyatte, Komyatte & Free-

land, Highland, Indiana; Larry G. Evans, William F. Sat-

terlee, III, F. Joseph Jaskowiak, Jack A. Kramer, Hoeppner,

Wagner & Evans, Valparaiso, Indiana; Patrick J.

McManama, Patrick J. McManama, P.C., Crown Point, In-

diana.

Attorneys for Appellee: Thomas F. Ryan, Timothy E.

Kapshandy, Brandon D. Lawniczak, Sidley & Austin, Chi-

cago, Illinois; James J. Neath, Amoco Oil Company, Chi-

cago, Illinois; Fred R. Biesecker, Ice Miller Donadio &

Ryan, Indianapolis, Indiana.

GARRARD, Judge.

didi |

year he a ee a DR Ee ee eo me ee Ee eS Oe ee ee ee NS ae aE OE RESTA Pee ELEN ET Ne yey TT ee ee ee

App. 13a

James Martin, et. al. (collectively “Class Plaintiffs’),

Amoco Oil Company (“Amoco”), and Joseph and Dorthea

Zrnchik, et al. (collectively “Intervenors”)' appeal various

facets of a class action involving the alleged underground

migration of cil from Amoco’s Whiting, Indiana refinery to

Class Plaintiffs’ and Intervenors’ property.

Reversed and remanded in part, and affirmed in part.

FACTS

This bitterly contested and often vexatious appeal be-

gan its journey to this court on February 1, 1991, when

Robert O’Drobinak and Eugene Burkat’ filed suit against

Amoco in Hammond, Indiana on behalf of themselves and

the 500 residents of Whiting, Indiana who had received no-

tice from Amoco of the possible underground migration of

oil onto their properties. The complaint, as finally amended,

alleged negligence, negligence per se, nuisance, strict li-

ability, negligent/intentional infliction of emotional distress,

and intentional trespass on the part of Amoco.

On April 24, 1991, Amoco moved for an automatic

change of venue from Hammond pursuant to then Ind. Trial

Rule 76. After both parties struck a proffered county, the

cause was venued to the Newton County Circuit Court.

Shortly thereafter, on June 10, 1991, Judge Marvin

McLaughlin was appointed special judge. Judge McLaugh-

lin immediately assumed control of the case, but did not file

an appearance and qualification as special judge.

The next significant event did not occur until January

23, 1992, when Class Plaintiffs and Amoco both filed mo-

' We refer to these parties as Intervenors solely for the sake of

convenience. They originally became part of this class action as un-

named class plaintiffs and intervened only after the jury verdict for

purposes of filing a motion to correct error and pursue the present

appeal. Because their status during the various stages of the litiga-

tion is in question, we use the term “Intervenors” only as a collective

name for the group and do not imply that they officially intervened

to become part of the sur

? Mr. O’Drobinak was subsequently joined as a class represen-

tative by James Martin and Mary Roman, while Mr. Burkat dropped

out of the suit on June 24, 1993.

App. 14a

tions to certify the class as a mandatory class under

Ind. Trial Rule 23(B)(1). A telephone conference between

Class Plaintiffs, Amoco, and Judge McLaughlin was held

and the order certifying the class as a T.R. 23(B)(1) man-

datory class was entered the same day the motions were

made. It is worth note that, as was characteristic of the en-

tire three year life of this suit, the interims between events

of major importance were filled with multiple minor mo-

tions by the parties to which the trial court was forced to

respond.”

On January 31, 1992, eight days after the class certifi-

cation order, attorney Richard Komyatte entered his appear-

ance on behalf of a group of individuals (the Intervenors)

who were then pursuing a separate suit against Amoco in _

federal court based on the same alleged oil migration.* On

February 3, 1992, Intervenors filed a motion to vacate the

class certification order and to revoke the appointment of

Judge McLaughlin for failing to properly appear and qualify

under Ind.Trial Rule 79. Judge McLaughlin subsequently

denied both motions. The Intervenors repeatedly filed mo-

tions to vacate the certification order and revoke Judge

McLaughlin’s appointment. These motions were continu-

ously denied until Judge McLaughlin ordered the Interve-

nors, on the motion of Amoco, to refrain from filing repeti-

= tive motions on the matter. On March 25, 1992, the Interve-

nors filed a praecipe, ostensibly to appeal the class certifi-

cation order, but did not file the record with this court or

pursue the appeal in any manner.

Between March and June of 1992, the parties, now in-

cluding the Intervenors, continued disputing the limits and

process of discovery, many of the disputes involving dis-

covery of unnamed class members. Eventually Class Plain-

tiffs agreed, though reluctantly, to draft and send a ques-

tionnaire to the unnamed class members about their indi-

vidual claims and damages. The questionnaire explicitly

> To put in context the amount of material the trial court was

forced to consider, we point out that the record on appeal consists of

16,321 pages in 74 volumes packaged in 14 boxes.

* Intervenors’ federal suit is currently stayed pending the out-

come of the present appeal.

a aa lg OR a

App. 15a

Stated that failure to answer the questionnaire and return it

to the class representatives would jeopardize the unnamed

members’ ability to participate in the suit and possibly pre-

clude them from making any claims against Amoco. On

June 24, 1992, the trial court, upon the motion of Amoco,

issued an order setting a deadline for the return of the ques-

tionnaires and ordering that any unnamed member who did

not respond before this deadline would be dismissed from

the suit. The deadline was repeatedly extended by the trial

court, but eventually approximately 301 of the 500 class

members were dismissed from the suit.

After almost two years as special judge, Judge

McLaughlin recused himself on April 26, 1993, and Judge

Robert Smart was appointed as special judge. One day later,

on April 27, 1993, Judge Smart filed his appearance and

qualification as special judge. None of the parties chal-

lenged Judge Smart’s appointment or appearance at that

time, or now on appeal.

On June 2, 1993, Henry Cornelius, a former member

of the Intervenors, was named a class representative. At this

time, attorney Komyatte along with the Intervenors joined

Class Plaintiffs in the prosecution of this suit.° The last

challenged discovery order was filed on June 24, 1993. This

order required independent medical examinations (“IMEs”)

for all class members who were to testify about physical

discomfort and ailments allegedly caused by the under-

ground oil. Most class members who were to testify eventu-

ally submitted to the IMEs, but it appears from the record

that some witnesses were prevented from testifying about

any physical discomfort because they had not submitted to

the examinations.

Opening statements by Class Plaintiffs began on Oc-

tober 7, 1993. On October 8, 1993, the trial court granted

Amoco’s motion in limine excluding any reference to Class

> For the sake of convenience, we will refer to the joined group

of the Class Plaintiffs and Intervenors during the trial as the Class

Plaintiffs. We note that the Intervenors reasserted their separate

identity when they petitioned to intervene after the verdict to pursue

a separate motion to correct error.

App. 16a

Plaintiffs’ fear or anxiety caused by fires or explosions at

the Whiting refinery. Class Plaintiffs objected to this order

in a timely manner, thus preserving the issue for appeal.

The trial continued for the next seven weeks until the jury

began deliberating on November 22, 1993. On that day,

while the jury was still deliberating, Class Plaintiffs re-

newed their motion to vacate the class certification order

and revoke the appointment of Judge McLaughlin. The next

day Judge Smart denied both the motion to vacate the class

certification order and the motion to revoke the appointment

of Judge McLaughlin. On November 29, 1993, the jury re-

turned a verdict of not liable on all counts. Judge Smart en-

tered final judgment on this verdict on December 14, 1993.

On December 30, 1993, the Intervenors, no longer

acting as part of the class, filed a motion to intervene for the

purpose of filing a motion to correct error. Judge Smart

granted this motion to intervene on January 13, 1994. Both

the Intervenors and the Class Plaintiffs then filed their indi-

vidual motions to correct error on January 13, 1994. Over

the next eight months, the trial court heard-arguments by the

parties and responded to a series of accusations and motions

filed by and against all three parties. On August 1, 1994,

Judge Smart entered his order on the various motions to

correct error. This order granted judgment on the evidence

on the intentional trespass claim against Amoco. Judge

Smart then proceeded to hold that the class representatives

had failed to prove any compensatory damages and awarded

each of the named class representatives nominal damages in

the amount of one dollar. In all other respects, Judge Smart

affirmed the verdict of the jury.

All three parties appeal this decision. Further facts will

be provided where necessary.

ISSUES

Class Plaintiffs, Intervenors, and Amoco present sev-

eral issues for review which we consolidate and restate as

follows.

Intervenors present four issues on appeal which we re-

state and consolidate as:

SERRE INN hth SS. ROS iP

CN metab Reson lad eancytn ed gi,

App. 17a

1. Whether the trial court erred by certifying the class as a

mandatory class under T.R. 23(B)(1).

2. Whether Judge McLaughlin’s appointment as special

judge was revoked for failure to comply with T.R. 79.

3. Whether the automatic change of venue from Lake

County to Newton county served as a wholesale per-

emptory challenge of any African-American juror, thus

violating the Equal Protection Clause.

Amoco presents one issue on appeal.

1. Whether the trial court erred by ho'ding Amoco liable

for intentional trespass despite the jury’s verdict.

Class Plaintiffs present six issues on appeal which we

consolidate and restate as:

1. Whether the trial court erred by failing to find Amoco

liable on the nuisance claim.

2. Whether the trial court erred by dismissing 301 un-

named class members for failing to respond to a dis-

covery questionnaire.

3. Whether the trial court erred by excluding evidence of

the class members’ fear and anxiety, and evidence of

fires and explosions at the Amoco refinery.

4. Whether the trial court erred by ordering independent

medical examinations of unnamed class members and

by precluding the testimony of those who did not sub-

mit to these examinations.

DISCUSSION

I. Intervenors’ Claims

A. Challenges to the Class Certification

Intervenors first claim that the trial court erred when it

certified the class as a mandatory class action under T.R.

23(B)(1) for two reasons. First, they argue that the court

erred because the class action did not meet the requirements

of T.R. 23(B\(1) and, secondly, the court violated Interve-

nors’ due process rights by failing to provide them notice of

the class certification hearing and failing to hold a hearing

on the certification of the class. Both claims challenge,

though in different ways, the validity of the mandatory

class. Amoco makes two arguments as well, arguing that

App. 18a

the class was properly certified as a T.R. 23(B)(1) manda-

tory class, and that the Intervenors waived this issue be-

cause class certification determinations are final and ap-

pealable interlocutory orders that must be appealed at the

time of the order. We agree that the Intervenors have

waived any challenge to the class certification, but for a dif-

ferent reason.

We decline to ground our holding on the sole premise

that class certification orders are final and appealable inter-

locutory orders, because it is not clear after our supreme

court’s decision in Berry v. Huffman, 643 N.E.2d 327 (Ind.

1994) whether class certification orders are final and ap-

pealable orders at the present time. Amoco relies on Ameri-

can Cyanamid Co. v. Stephen, 600 N.E.2d 1387

(Ind.Ct.App. 1992), trans. denied, for the proposition that

certification orders are final and appealable orders. Ameri-

can Cyanamid, in stating that certification orders are final

and appealable, relied or this court’s opinion in Gulf Oil

Corp. v. McManus, 173 ‘ad.App. 147, 363 N.E.2d 223

(1977). In Gulf Oil, we held that class certification orders

were final and appealable because they disposed of a dis-

‘inct and definite branch of the litigation. /d. 363 N.E.2d at

227. Cases following Gulf Oil,° including American Cy-

anamid, all followed the same reasoning: certification or-

ders are final and appealable because they dispose of a dis-

tinct and definite branch of the litigation.

In Berry, our supreme court explicitly held that the

definite-and distinct branch doctrine had been superseded

and that interlocutory orders were final only when expressly

certified as final and appealable by the trial judge. Berry,

643 N.E.2d at 329. While Berry did not involve a class cer-

tification order, its broad abrogation of the distinct branch

doctrine undercuts the original rationale for deeming it a

final order. CSX Transp., Inc. v. Clark, 646 N.E.2d 1003

(Ind.Ct.App.1995), written after Berry, dealt with an inter-

Ct. App.1988), reh'g denied, CSX Transp., Inc. v. Rabold, 593

N.E.2d 1277 (Ind. Ct. App. 1992), trans. denied, CSX Transp., Inc.

v. Clark, 646 N.E. 2d 1003 (ind. Ct. App. 1995); ConAgra v. Far-

rington, 635 N.E.2d 1137 (Ind. Ct. App. 1994), reh'g denied.

App. 19a

locutory appeal from a conditional class certification with-

out even discussing the propriety of the appeal in light o/

Berry. Though we agree with the reasoning in Gulf Oil that

Class certification hearings and orders are the only “trial” to

be had on the issue of class certification and therefore

should be final and appealable, we are constrained by Berry

from simply so holding. Notwithstanding this, we hold that

the Intervenors have clearly waived these challenges to the

class certification.

Waiver is the “‘intentional relinquishment or aban-

donment of a known rig*t or privilege.’” State v. Owings,

622 N.E.2d 948, 952 (Ind.1993) (quoting Phillips v. State,

543 N.E.2d 646, 648 (Ind.Ct.App.1989)). A party may

waive a right by word or deed. /d. A party may also waive a

constitutional nght. Marshall v. State, 254 Ind. 156, 258

N.E.2d 628, 631 (1970), reh’g denied. “Due process rights

are subject to waiver.” Town of Speedway v. Harris, 169

Ind.App. 100, 346 N.E.2d 646, 653 (1976). A waiver of a

constitutional right, such as Intervenors’ due process claim,

must be voluntarily, intelligently, and knowingly made. /d.

At the time of the class certification order on January

23, 1992, class certification orders were clearly final and

appealable interlocutory orders. See American Cyanamid

Co. v. Stephen, 600 N.E.2d 1387 (Ind.Ct.App. 1992), trans.

denied. Intervenors knew that they were required to imme-

diately appeal the order, as reflected by the praecipe they

filed on March 25, 1992. They forewent their right to appeal

this issue by then failing to file the record or further pursue

their appeal at that time. Following this, the Intervenors

fully participated in the trial, joining the Class Plaintiffs,’

with their attorney serving as co-counsel. Intervenors now

attempt to rely on the fortuitous decision in Berry to gain a

second chance to appeal this issue. Berry was handed down

on November 30, 1994, after the present appeal had been

commenced and more than two years after the class certifi-

cation. We need not allow Intervenors a second chance at

an issue that they had previously declined to pursue. By de-

” One of the Intervenors, Henry Cormelius, was made a named

class representative.

App. 20a

clining to exercise their known right to immediately appeal

the class certification and electing to fully participate in the

proceedings, the Intervenors waived any objections to the

certification of the class. We, therefore, hold that Interve-

nors’ challenge to the propriety of the class and their due

process challenge of the class were waived.

B. Challenge of Judge McLaughlin

Intervenors claim that Special Judge McLaughlin did

not appear and qualify as required by Ind. Trial Rule 79(5)

and therefore his actions, specifically the class certification,

are void. T.R. 79(5) required that a special judge appear and

qualify within twenty days of his or her appointment. Judge

McLaughlin was appointed on June 10, 1991, but nowhere

in the record or the chronological case summary does Judge

McLaughlin appear and qualify as the special judge. It is

clear that immediately after his appointment, Judge

McLaughlin assumed control of this suit and acted as the

special judge.* While it is true that Intervenors promptly

objected to the Judge’s appointment upon being brought

into the suit by the class certification, their claim is merely a

different attempt to once again challenge the class certifica-

tion. We say this because class certification is the only rul-

ing they challenge, and because, unlike the situation in

Taylor v. State, 507 N.E.2d 978 (Ind.1987), Judge

McLaughlin was succeeded by an admittedly qualified

judge who tried the case.

As noted above, waiver is the intentional relinquish-

ment of a known right. State v. Owings, 622 N.E.2d 948,

952 (Ind. 1993). The only harm that Intervenors claim is the

certification of the class. Intervenors participated fully in |

the trial, presided over by the duly appointed and qualified

Judge Smart, and presented the same evidence and wit-

* Neither Amoco nor the Class Plaintiffs challenge Judge

McLaughlin’s jurisdiction over this suit. In fact, neither party could

challenge the appomtment because they submitted to the jurisdiction

of Judge McLaughlin when they submitted motions to him and acted

in accordance with his orders. Bivins v. State, 485 N_E. 2d 89 (Ind.

1985) (failure to promptly object to judge’s appointment waives any

objection).

—

‘

App. 2la

nesses that would have been presented regardless of Judge

McLaughlin’s failure to qualify. Moreover, at the end of the

trial, Intervenors renewed their objection to Judge

McLaughlin’s appointment before Special Judge Smart.

After reviewing the matter, Judge Smart denied their mo-

tion. Intervenors do not appeal this decision, making it clear

that the true aim of this challenge is the class certification.

By participating fully in the trial and renewing their

objection before Judge Smart, Intervenors waived their right

to again attack the class certification through the technical

challenge to Judge McLaughlin’s appointment.

C. Equal Protection Challenge of the Change of Venue

Intervenors claim as their third and final error that the

automatic change of venue from Lake county to Newton

county pursuant to Ind.Trial Rule 76 violated the Equal

Protection Clause. Specifically, the Intervenors claim that

the change of venue was the equivalent of a wholesale per-

emptory challenge of African-Americans because African-

Americans make up only .1% of the Newton County popu-

lation as opposed to 25% in Lake County. In their Appel-

lant’s Brief, the Intervenors originally challenged the appli-

cation of T.R. 76.” However, in their Reply Brief, Interve-

nors claim to be making a facial challenge to T.R. 76, not a

challenge of its application.” An issue may not be raised for

the first time in a reply brief.” Matter of Adoption of

H.M.G., 606 N.E.2d 874, 874, n. 1 (Ind.Ct.App.1993). We

will, therefore, discuss only Intervenors’ challenge to the

application of the T.R. 76 automatic change of venue to

Newton county.

This court dealt with the same equal protection chal-

lenge involving the same counties in Osmulski v. Becze, 638

N.E. 2d 828 (Ind.Ct. App. 1994) (Garrard, J.). To succeed in

their challenge, the Intervenors must establish a prima facie

case of discrimination. /d. at 834. “To establish a prima fa-

” “Given the unconstitutional application of former Trial Rule

76, this Court must modify the Final Judgment Order and Judgment

on the Verdict of the court below and make it inapplicable to the

intervenors.” Appellant’s Brief, p. 47 (emphasis added).

App. 22a

cie case of discrimination, the litigant is entitled to rely on

the fact that the mere exercise of a peremptory challenge

(or, under these facts, an automatic change of venue) may

be circumstantial evidence of discriminatory intent...” /d.

Once a prima facie case of discrimination has been made

the burden shifts to the defendant, Amoco, “to come for-

ward with a race-neutral explanation for the exclusion.” /d.

The race-neutral explanation need not be enough to support

a challenge for cause, but Amoco must do more than simply

deny a discriminatory intent. /d. Amoco must present a

race-neutral explanation related to the facts of this particular

case. /d.

Because in Osmulski we found the change of venue to

a venire with such a small percentage of African-Americans

was prima facie evidence of discrimination, we now also

find the Intervenors have established a prima facie case of

discrimination. The burden then shifted to Amoco to pres-

ent a race-neutral explanation for the change of venue in

this case. Amoco argues that they requested a change of

venue to escape the widespread negative publicity in the

Whiting/Hammond area surrounding the alleged migration

of oil from the refinery. Amoco points to numerous news-

paper articles about the oil migration and to the statements

of witnesses and attorneys in the case. Clev= Plaintiffs’ at-

torney Ruman, speaking about one article in particular,

stated that the entire Northwest Indiana Community read

the article about the incident. Amoco argues, and we agree,

that this publicity could well have prejudicially affected the

trial. We hold that Amoco has successfully presented a

race-neutral justification for the change of venue in the pre-

sent case and has, therefore, carried its burden of rebutting

Intervenors’ prima facie case. Because the change of venue

request was made for race-neutral reasons, Intervenors’

equal protection rights were not violated by the change of

venue from Lake county to Newton county.

'° We find it interesting to note that none of the Class repre-

sentatives or named Intervenors were African-Americans and that

from review of the record it appears that Intervenors/Class Plaintiffs

attempted to emphasize this fact before the all white jury.

App. 23a

Il. Amoco’s Claim

Amoco claims that the trial court erred when it granted

Class Plaintiffs’ motiou to correct error and entered judg-

ment on the evidence finding Amoco liable for intentional

trespass. More specifically, Amoco claims that the trial

court applied the incorrect intent standard for proving in-

tentional trespass. In its order on the motion to correct error,

the trial court stated that Amoco’s intent to refine oil in

Whiting was sufficient to fulfill the intent element of the

intentional trespass claim. Amoco claims that the mere in-

tent to refine oil is not sufficient to satisfy this requirement.

We agree. Because we find the issue of intent to be disposi-

tive, we need not discuss the sufficiency of the evidence of

trespass.

In its order granting judgment on the evidence, the

trial court found that the simple intent to refine oil at Whit-

ing was sufficient to support the finding of intentional tres-

pass. Amoco claims that it must have intended that the oil

migrate under the Class Plaintiffs’ land, while Class Plain-

tiffs’ argue, quite naturally, that the trial court was correct.

Both parties rely on Hawke v. Maus, 141 Ind.App. 126, 226

N.E. 2d 713 (1967) to support their contentions. Hawke in-

volved an intentionzi tvespass claim against the driver of a

delivery truck which struck the plaintiff's tree. From the

facts of the case, it was clear that the truck driver did not

intend the trespass. The main issue before the court of ap-

peals was whether the trespass was the result of a volitional

act by the driver or whether the driver was forced into the

tree by the third party. Quoting the 1 RESTATEMENT

(SECOND) OF TORTS § 164 cmt. a, p. 296 (1965), the court

stated, ““[t]he intention which is required to make the actor

liable under the rule stated in this Section is an intention to

enter upon the particular piece of land in question, irrespec-

tive of whether the actor knows or should know that he is

not entitled to enter.”” /d. 226 N.E.2d at 715. The court

went on to state that “‘[a]ithough it is not necessary that the

trespasser intend to commit a trespass or even that he know

that his act will constitute a trespass, it is required for tres-

pass that there be an intentional act and an intent to do the

App. 24a

very act which results in the trespass.’” /d. at 716 (quoting

87 C.J.S. TRESPASS § 5, p. 960). Neither these statements

nor subsequent case law do much to clarify what intent is

necessary for intentional trespass.

Though it is not binding authority, we find persuasive

the definition of intent the Washington Supreme Court used

in Bradley v. American Smelting and Refining, 104

Wash.2d 677, 709 P.2d 782 (1985). Bradley dealt with an

intentional trespass claim against a smelting plant for haz-

ardous airborne emissions that landed on the plaintiff's

land. The defendant knew that airborne emissions from its

plant were landing on the plaintiff's property and those

around it, but could not prevent the emissions absent dis-

continuing operations at the plant. Much like in Hawke, the

court relied heavily on the RESTATEMENT (SECOND) OF

TORTS in defining the requisite intent but focused on § 158

rather than § 164. Quoting from §158 sec. 8(A) (1965), the

court stated that “‘[t]he word “intent” is used ... to denote

that the actor desires to cause consequences of his act, or

that he believes that the consequences are substantially cer-

tain to result from it.”” Jd. 709 P.2d at 785. The court fur-

ther stated that “‘[i]ntent is not, however, limited to conse-

quences which are desired. If the actor knows that the con-

sequences are certain, or substantially certain, to result from

his act, and still goes ahead, he is treated by the law as if he

had in fact desired to produce the result.” /d. (quoting |

RESTATEMENT (SECOND) OF TORTS § 158 cmt. b, p. 15

(1965)).

We believe that the definition of intent espoused in

Bradley correctly describes the intent discussed by the court

in Hawke. We hold that Amoco must have intentionally

committed an act that it knew or was substantially certain

would result in the migration of oil onto the Class Plaintiffs’ —

property for it to fulfill the intent element of intentional

trespass. Absent some evidence of knowledge of the certain

or substantially certain migration, mere intent to refine the

oil was not sufficient.

Even though Class Plaintiffs requested a new trial, the

trial court granted judgment on the evidence, so it is the

judgment on the evidence standard of revicw to which we

App. 25a

now turn. In considering a motion for judgment on the evi-

dence after a jury verdict, the trial court must look only to

the evidence and reasonable inferences therefrom favorable

to the nonmoving party. Huff v. Travelers Indem. Co., 266

Ind. 414, 363 N.E.2d 985, 990 (1977). “The trial court may

enter judgment only if there is no substantial evidence or

reasonable inference to be adduced therefrom to support an

essential element of the claim, i.e., the evidence must point

unerringly to a conclusion not reached by the jury.” /d.

(emphasis in original). A trial court may not grant judgment

on the evidence if there is relevant evidence which supports

the verdict because the final determination should be left to

the finder of fact. Jd. When reviewing the trial court’s grant

of a motion for judgment on the evidence, we employ the

same standard of review as the trial court. Coffél v. Perry,

452 N.E.2d 1066, 1068 (Ind.Ct. App. 1983).

To uphold the trial court’s judgment on the evidence in

this case, the evidence must point unerringly to the conclu-

sion that Amoco knew or was substantially certain that oil

would migrate onto the Class Plaintiffs’ property if Amoco

operated its Whiting refinery. Though the testimony is con-

flicting, it does not point unerringly to this conclusion.

Amoco presented evidence that it employed various devices

to prevent any migration of oil off its property and that it

believed that these devices were effective. Amoco also pre-

sented evidence that it met all federal safety requirements

and all standards set by the Indiana Department of Envi-

ronmental Management. Though Class Plaintiffs claim that

this evidence should be discounted, it is not the province of

this court to weigh the evidence. Huff, 363 N.E.2d at 990-

91.'' We hold that the evidence does not point unerringly to

a conclusion opposite that of the jury verdict and, therefore,

the trial court erred by granting judgment on the evidence

on the intentional trespass claim.

Because Class Plaintiffs did not Chailenge the under-

4 It appears that the trial court may have mistakenly applied the

standard for a motion for new trial which allows the trial court to sit

~ as the thirteenth juror and weigh the evidence. Huff, 363 N.E.2d at

994.

App. 26a

lying jury verdict on the intentional trespass claim, we now

remand this issue to the trial court and order the trial court

to reinstate the jury verdict.’? See Tancos v. A.W., Inc., 502

N.E.2d 109 (Ind. Ct. App. 1986), reh’g denied, trans. de-

nied (court remanded with orders to reinstate jury verdict

after erroneous grant of judgment on the evidence).

Ill. Class Plaintiffs’ Claims

A. Nuisance Claim

Class Plaintiffs claim that the trial court erred when it

refused to enter judgment on the evidence on their nuisance

claim. Amoco counters that the trial court correctly refused

to enter judgment on the evidence because the evidence

does not point unerringly to the conclusion that the opera-

tion of the Whiting refinery constituted a nuisance. In our

determination of this issue we employ the same standard of

review as we used in Section II, supra. The focus of our

analysis is whether the evidence points unerringly to a con-

clusion opposite that reached by the jury. Huff v. Travelers

Indem. Co., 266 Ind. 414, 363 N.E.2d 985, 990 (1977).

“The essence of a private nuisance is the use of prop-

erty to the detriment of the use and enjoyment of another’s

property.” Wernke v. Halas, 600 N.E.2d 117, 120

(Ind.Ct.App. 1992). To determine whether Amoco’s actions

constituted a nuisance, “the relevant inquiry is whether the

thing complained of produces such a condition as in the

judgment of reasonable persons is naturally productive of

actual physical discomfort to persons of ordinary sensibil-

ity.” Lever Bros. v. Langdoc, 655 N.E.24d 577, 583

(Ind.Ct.App.1995). The determination of whether a nui-

sance has in fact occurred “is to be made by the trier of fact

in light of all the surrounding facts and circumstances.”

'2 The trial court, in its order granting judgment on the evi-

dence, also stated that Class Plaintiffs had failed to demonstrate

compensable damages and awarded nominal damages in the amount

of one dollar to each of the named class representatives. Both Class

Plaintiffs and Amoco challenge these damages. Because we reinstate

the jury verdict of no liability, the issue of damages for the trespass

claim is moot and we, therefore, will not discuss it.

LN TS TN TE EEE CREM Rn mE eT Te |

App. 27a

Wernke, 600 N.E.2d at 120.

Amoco presented evidence at trial from several experts

that the levels of benzene on the Class Plaintiffs’ property

were not high enough to cause any short or long-term health

problems or physical discomfort. Testimony by a real estate

expert showed that the Class Plaintiffs’ property value had

not been adversely affected. Further, Stanley Dostatni, who

lives in the area but who was not a member of the class,

testified that he had never experienced any problems with

oil on his property. There was even testimony from class

representative Robert O’Drobinak that his tenant loved the

house O’Drobinak rented and had moved back into the area

despite the alleged underground oil. The expert testirnony

and testimony of Mr. Dostatni and O’Drobinak is relevant

evidence that Amoco did not create a nuisance. Because

there is conflicting relevant evidence that does not point

unerringly to the conclusion opposite that reached by the

jury verdict, the trial court was correct in denying Class

Plaintiffs’ request to enter judgment on the evidence on the

nuisance claim.

B. Dismissal of Absent Class Members

Class Plaintiffs next claim that the trial court erred

when it dismissed absent class members who failed to re-

turn a discovery questionnaire. Arguing that absent mem-

bers of a class are not subject to discovery, Class Plaintiffs

ask us to find this dismissal erroneous, reverse the jury ver-

dicts, and order a new trial. Amoco argues that the ques-

tionnaire was a proper discovery tool and that absent class

members are subject to discovery. Because we find any er-

ror that occurred to be harmless, we need not address these

claims.

“An error is harmless if it does not affect the substan-

tial nights of the parties.” Bonnes v. Feldner, 642 N.E.2d

217, 219 (Ind. 1994). Class Plaintiffs do not attempt to argue

how the absent class members, who have made no effort to

‘3 We are assuming error occurred only because we find the

harmless error issue to be dispositive and do not offer any opinion as

to the correctness of the dismissal of the absent members.

App. 28a

intervene at the appellate or trial level, were prejudiced by

their dismissal. In fact, Class Plaintiffs admit in their Ap-

pellant’s Brief that the absent members may have no inter-

est at all in the present litigation. We also note that because

we have reinstated the jury verdict of no liability, had the

absent class members not been dismissed, they would be in

the same position they are now, i.e., precluded from further

litigating these claims. We, therefore, hold that any error

that occurred was harmless and we decline to reverse the

jury’s verdict.

C. Exclusion of Evidence of Fear, Fires and Explosions _

Class Plaintiffs next argue that the trial court erred

when it granted Amoco’s motion in limine to prevent testi-

mony about Class Plaintiffs’ fear of fire and explosions, and

testimony about fires and explosions that have occurred at

the Whiting refinery. Arguing that this evidence was rele-

vant and could have led the trial court to grant judgment on

the evidence on the nuisance claim, Class Plaintiffs ask us

to reverse the trial court order and remand for a new trial.

Amoco counters that the proposed testimony was irrelevant

because it dealt with occurrences unrelated to the under-

ground migration of oil and was prejudicial. While we agree

that reversal is not required, we base our decision on rea-

sons different from those proffered by Amoco. “Where evi-

dence is erroneously excluded, reversal is justified only if

the error relates to a material matter or is of such character

as to substantially affect the rights of the parties.” Manns v.

State Dept. of Highways, 541 N.E.2d 929, 936 (ind. 1989).

For the purposes of this issue only, we will assume that the

trial court erred in granting the motion in limine and ex-

cluding the evidence. The only harm that Class Plaintiffs

claim was caused by the exclusion of this evidence was

“that evidence may even have prevented the Court from

finding a nuisance when it corrected the jury’s verdict.”

Appellant Brief of Class Plaintiffs, p. 63 (emphasis added).

As we discussed in section III. A., supra, Amoco presented

enough conflicting evidence concerning the nuisance claim

to preclude judgment on the evidence. The admission of this

additional evidence of fear, fires, and explosions does not

App. 29a

change the fact that this conflicting relevant evidence was

sufficient to preclude judgment on the evidence. Class

Plaintiffs also fail to explain how this additional testimony

would have changed the jury’s verdict. Because the exclu-

sion of this evidence did not substantially affect the rights

of the Class Plaintiffs, reversal is not justified. Manns, 541

N.E.2d at 936.

D. Independent medical exams

In its final claim of error, Class Plaintiffs argue that

the trial court erred by conditioning testimony about physi-

cal discomfort claims upon the witnesses’ submission to

IMEs and by excluding the testimony of those who did not

submit to the examinations. Once again, Class Plaintiffs fail

to claim any prejudice or harmn, simply Stating that the trial

court’s actions were erroneous. Because we find any error

that occurred to be harmless, we need not discuss the merits

of this claim.

“An error is harmless if it does not affect the substan-

tial rights of the parties.” Bonnes v. Feldner, 642 NE2d

217, 219 (Ind.1994). Because Class Plaintiffs make no

claim of harm, we will discuss the effect the exclusion of

evidence would have had on damages and on the trial

court’s decision not to grant judgment on the evidence. '4

We first note that any claim of prejudice in relation to dam-

ages is moot because we have reinstated the jury’s verdict

of no liability on all claims. Turning now to the claim that

this evidence would have affected the trial court’s decision

not to grant judgment on the evidence on the nuisance

claim, we hold that this claim must fail as well. As we dis-

cussed in Sections III. A. and C., supra, the existence of

further evidence of a nuisance does not counteract the rele-

vant conflicting evidence that no nuisance existed. This

conflicting evidence was sufficient to preclude the trial

court from granting judgment on the evidence on the nui-

'* We limit our discussion to these two issues because we fail to

see how the excluded evidence of alleged transitory physical dis-

comfort caused by the underground oil is relevant to any of Class

Plaintiffs’ other claims.

App. 30a

sance claim.

Because the damages issue is moot and the trial court’s

decision on the nuisance claim would not have been

changed by the excluded evidence, we hold that any error

was harmless. We, therefore, decline to reverse the trial

court’s decision to exclude this testimony.

Conclusion

As to the trial cow*'s grant of judgment on the evi-

dence on the trespass clai‘n, we reverse and remand to the

trial court to reinstate the jury verdict. In all other aspects

we affirm the judgment of the trial court.

Reversed and remanded in part, and affirmed in part.

STATON and DARDEN, JJ., concur.

App. 3la

Appendix D

State of Indiana ) In the Newton Circuit Court

) SS:

Coun.y of Newton ) 1993 Term

James Martin, Mary Ruman, Eugene Burkat, Jr., and

Wanda Burkat, Individually and on Behalf of All Other

Similarly Situated, Plaintiffs,

Amoco Oil Company, Defendant

Cause No. 56C01-9105-CT-67

Order Certifying a Property Class

Under Indiana Trial Rule 23(B\ 1)

The Court, having reviewed the pleadings and memo-

randa and other evidence submitted by counsel for the par-

ties, and after due deliberation, finds as follows:

1. The proposed Class satisfies the prerequisites of In-

diana Trial Rule 23 A) because (1) the plaintiffs are so nu-

merous as to make joinder impractical; (2) important issues

of law and fact are common among the class members; (3)

the class representatives’ claims are typical of the class

members’ claims respecting certain class issues, and (4)

class representatives and class counsel wili adequately rep-

resent absent class members.

2. This litigation, seeking injunctive relief and com-

pensatory and punitive damages, involves property rights

respecting a claimed auisance. This action and other related

litigation raise certain core issues of law and fact that

Should be adjudicated in one proceeding. Because the pen-

dency of individual suits raises the possibility of inconsis-

tent adjudications affecting plaintiffs’ and Amoco’s prop-

erty nights and future operations, the Proposed Class satis-

fies the requirements of Indiana Trial Rule 23(B)1)a).

3. Moreover, the presence of multiple lawsuits could

lead to an inequitable distribution of any punitive damages,

were they to be awarded. Accordingly, the proposed class

satisfies the requirements of Rule 23(B)(1)(b) which per-

App. 32a

mits certification where an award to one plaintiff might im-

pair the ability of other plaintiffs to protect their interests.

Accordingly, in this litigation arising from alleged un-

derground migration of petroleum related products (“hydro-

carbons”) from Amoco’s Whiting, Indiana Refinery to other

property, the following class is initially certified pursuant to

Indiana Trial Rule 23(B\(1): approximately 500 residents or

property owners near the Amoco Whiting Refinery who

were contacted by Amoco through a January 23, 1991 letter

in which Amoco sought approval to test groundwater and

conduct air monitoring in nearby residences.

For the purposes of this order, a business or partner-

ship or other entity that received a notice or questionnaire

from Amoco is included in the class.

The Court further finds that certain core issues com-

mon to the class shall be resolved for the class as a whole in

one trial. These “Class Issues” include: (i) whether Amoco

is liable for its operation of the Refinery under theories of

nuisance, trespass, negligence, strict liability or violations

of state or federal statutes. (ii) whether punitive damages

should be awarded and, if so, the amount. (iii) whether the

Class is entitled to attorneys’ fees, expert fees, interest, or

costs.

The class action jury will award compensatory dam-

ages and medical monitoring costs, if any, to the represen-

tative plaintiffs.

If Amoco is found liable to the Class, “individual is-

sues” pertaining to the absent class members skall be re-

solved in mini-trials consisting of several plaintifis. The

relevant individual issues would be fully determined later

but include at a minimum (1) whether the plaintiff is a

member of the class, (2) whether the plaintiff suffered cog-

nizable injuries, including a nuisance or trespass, (3)

whether the alleged underground migration of hydrocarbons

caused those particular injuries, and (4) the amount of com-

pensation to be awarded the plaintiff because of those inju-

ries. At the mini-trials, a judge or jury will award any com-

pensatory damages to the plaintiffs, and a plaintiff receiving

compensatory damages, whether by award or settlement,

EE EEE

App. 33a

will be entitled to share in any punitive damages awarded

by the class action jury.

Notice of this class action in the form of the attached

“Notice of Class Action” is to be served upon the members

of the class by inclusion of it in the next issue of the Amoco

Communicator.

DONE and ORDERED this _23rd_ day of January ,

1992.

__/S/ Marvin D. McLaughlin __

Circuit Judge

NOTICE OF CLASS ACTION

TO: The approximately 500 residents or property

Owners near the Amoco Whiting Refinery who have been

contacted by Amoco and/or sent questionnaires by Amoco

seeking to test on their property.

You are hereby notified, pursuant to Court Order, that

a Class action has been certified in legal proceedings enti-

tled James Martin, et _al., Plaintiffs vs. Amoco Oil Com-

pany, Defendant. The plaintiff class as certified by this

Court on the 23rd_ day of _January_, 1992, includes:

The approximately 500 residents or property own-

ers near the Amoco Whiting Refinery who were

contacted by Amoco through a January 23, 1991

letter in which Amoco sought approval to test

groundwater and conduct air monitoring in nearby

residences.

You are being notified in the belief that you may be a

member of the above-described plaintiff class. This notice

briefly describes this litigation.

THIS NOTICE SHOULD NOT BE UNDERSTOOD

AS AN EXPRESSION OF ANY OPINION OF THE

COURT AS TO THE MERITS OF ANY CLAIMS OR

DEFENSES ASSERTED BY EITHER PLAINTIFFS OR

DEFENDANT. IT IS GIVEN FOR THE SOLE PURPOSE

OF INFORMING YOU OF THE EXISTENCE OF THIS

CLASS ACTION.

App. 34a

DE IN OF THE LITIGATION

Plaintiffs, on behalf of all class members, seek to hold

all responsible parties liable for punitive damages as a con-

sequence of any migration of oil from under the Amoco

Whiting Refinery to certain residential property located

near the refinery. Amoco is currently having tests done to

determine if there has been actual migration from its refin-

ery site and, if so, the extent of such migration, and whether

it caused any damage.

If there is an award of punitive damages against the

defendant, the award will be shared among all those class

members who suffered actual injuries. To sha’e in any pu-

nitive damage recovery, however, a class member must re-

cover compensatory damages either by litigation or settle-

ment. Distribution of any punitive damage award may be

delayed until all class members have litigated or settled any

compensatory damage claims they may have.

The Court has designated the following attorneys as

class counsel to represent the class in this litigation:

Ruman, Clements & Tobin, P.C.

5261 Hohman Avenue :

Hammond, Indiana 46320

Telephone: 219-933-7600

In this class action, Amoco’s liability for punitive

damages, if any, will be determined on behalf of the entire

class in this proceeding. You should be aware of the fol-

lowing:

1. As a member of the plaintiff class, you will share in

the benefits of any judgment favorable to the class, or any

settlement entered into between the class and the defendant.

You will be bound by any judgment favorable to the defen-

dant and adverse to the class. You will still retain the nght

to attempt to prove and settle any claim for compensatory

damages you may have directly with the defendant. If the

recovery or judgment in this class action is beneficial to the

class, the plaintiffs, class attorneys will petition the Court

for an award of attorneys’ fees and reimbursement of their

cost to be paid out of the amount recovered for the class.

Any award of attorneys fees or any proposals to settle the

App. 35a

case, on a class-wide basis, will be ruled on by the Court

only after the class members have been given an opportu-

nity to be heard on the matter.

2. You may enter an appearance in this class action

through counsel of your choosing. Unless notice of such a

Separate appearance is postmarked or received by the Clerk

of the Court within 30 days of the date shown on this no-

tice, you will be represented by the attorneys for the class

named above.

___/S/ Marvin D. McLaughlin __

Circuit Judge

App. 36a

Appendix E

State of Indiana ) In the Newton Circuit Court

) SS:

County of Newton ) 1993 Term

James Martin, Mary Roman, Eugene Burkat, Jr., and

Wanda Burkat, Individually and on Behalf of All Other

Similarly Situated, Plaintiffs,

Amoco Oil Company, Defendant

Cause No. 56C01-9105-CT-67

Pre-Trial Orders of 4-14-93 Filed April 26, 1993

Saul Ruman and all associates, John Ryan and all as-

sociates, and Richard Komyatte and son are all in Court and

pre-trial conference is held. The following rulings are made:

1. All motions regarding the physical exam of Mary

Roman in Indianapolis are heard. The Court orders that de-

fendant shall arrange an appointment at the I. U. Medical

Center sufficiently in advance that said plaintiff can arrange

. her schedule and plaintiff shall present herself in Indian-

apolis for said exam.

2. Plaintiff's Motions to Add Health Claims of Mur-

zyn, Bonnie Finley, and others heretofore named, and all

objections are argued.

The Court orders plaintiffs’ counsel to, within 30 days,

furnish to the Court affidavits for each said claimant stating

unequivocally A. why the deadline for filing same was not

met and B. showing prima facially a connection between

the alleged condition of the claimant and the actions of the

defendant.

3. The Motion to Extend Time for Filing Medical

Authorization of Steve and Rose Ivanovich was granted on

2-23-93.

4. Defendants’ discovery motion regarding Minniti

Real Estate Co. and all objections and Motions to Quash are

submitted. The Motions to Quash are sustained and defen-

App. 37a

dants’ motion is overruled unless Mr. Minniti is listed as a

witness. In that event, regular rules of discovery would ap-

ply to the field of his testimony only.

5. Plaintiffs’ Motion to Add New Expert After Dead-

line and all objections thereto are argued. Court permits the

name of Richard Spector to be added. Court further grants

defendants 60 days to add an expert of their own if desired.

6. Plaintiffs’ Motion for Protective Order Regarding

Absent class Members, to prevent defendants from taking

depositions from said members and from having ex-parte

conversations with members’ medical doctors is submitted.

Arguments are heard and the issue is broadened to cover

other aspects of discovery regarding the absent class.

On the issue of punitive damages, plaintiff states for

the record that no evidence will be introduced regarding the

effect of defendant’s actions upon absent class members.

Said effect upon named class members and listed witnesses

is admissible.

Obviously, regular discovery may be had of any listed

witness or named party.

The present class consists of approximately 500

households, some of which are making no claim. In order to

facilitate discovery, the Court orders plaintiffs to within 30

days file with the Court, two lists. One list shall contain the

names of all persons in the class who are making medical

claims and the other list shall contain the names of all per-

sons in the class who are making property damage claims

including reduction of value claims. Theoretically, some of

the same names could be on both lists. Any person whose

name is not contained on either list, may be talked to by de-

fendants without restriction.

7. Plaintiffs’ Motion for Order Preventing Those De-

siring to “Opt-out” from Filing Repetitive Motion, is sus-

tained. The Court overrules any pending “opt-out” motions

and orders that none shall be refiled as these have been

heard on numerous, previous occasions.

This prevent order does not apply to the present peti-

tion to establish sub-classes as the Court in its order signed

6-24-92 and stamped 6-29-92 specifically permitted same.

App. 38a

8. Other motions remaining to be ruled upon are 1.

whether this is a bench or jury trial. 2. Motion to Establish

Sub-classes. 3. Motion to Amend Order of 2-23-93 and

other case management orders. 4. Motion under TR 36 7 37

for Sanctions and Admissions. The Court finds that these

are case management and trial issues which should be de-

termined by the judge who is to try this cause.

The present judge finds that he must recuse himself;

and therefore, said issues are left for the newly selected

judge.

9. Marvin D. McLaughlin, the Special Judge in this

cause, does now recuse himself and will name a panel from

which the parties may strike if they cannot agree on a judge.

There will only be two sirikes if they cannot agree on a

judge. There will only be two strikes, one by plaintiffs’

counsel and one by defendants’.

/S/

Marvin D. McLaughlin

Special Judge

—

App. 39a

Appendix F

State of Indiana ) In the Newton Circuit Court

) SS:

County of Newton ) 1993 Term

James Martin, Mary Roman, Eugene Burkat, Jr., and

Wanda Burkat, Individually and on Behalf of Al] Other

Similarly Situated, Plaintiffs,

Amoco Oil Company, Defendant

Cause No. 56C01-9105-CT-67

Order on Class Member’s Motion to Set Aside and Vacate

Mandatory Class Certification Order Or, in the Alternative,

to Set a Hearing to Reconsider Whether Martin Should

Continue as a Mandatory Class or an Opt out Class

The Court, having examined the Class Member’s Mo-

tion to Set Aside and Vacate Mandatory Class Certification

Order Or, in the Alternative, to Set a Hearing to Reconsider

Whether Martin Should Continue as a Mandatory Class or

an Opt out Class now denies same.

All of Which Is Ordered this 23rd Day of November, 1993.

/S/

HONORABLE ROBERT B. SMART

Judge, Newton Circuit Court

App. 40a

Appendix G

State of Indiana ) In the Newton Circuit Court

) SS:

County of Newton ) 1993 Term

James Martin, Mary Roman, Eugene Burkat, Jr., and

Wanda Burkat, Individually and on Behalf of All Other

Similarly Situated, Plaintiffs,

Amoco Oil Company, Defendant

Cause No. 56C01-9105-CT-67

Final Judgment Order and Judgment on the Verdict

1. This action came before this Court for trial by jury.

The Honorable Robert B. Smart, Judge of the Newton Cir-

cuit Court presided.

2. The class members consist of “the approximately

500 residents or property owners near the Amoco Whiting

Refinery who were contacted by Amoco through a January

23, 1991 letter in which Amoco sought approval to test

groundwater and conduct air monitoring in nearby resi-

dences.” See Order Certifying a Property Class Under Indi-

ana Trial Rule 23(B)(1) p. 3. The class was represented by

counsel. The Defendant Amoco Oil Company was repre-

sented by counsel.

3. This Court has jurisdiction over the Parties and this

action pursuant to Indiana Trial Rule 4(A).

4. The following issues were tried before the Court

and the jury and verdicts were rendered thereon:

A. Whether Amoco is liable for its operation of the

Refinery under theories of nuisance, trespass, neg-

ligence, strict liability or violations of state or fed-

eral statutes.

B. Whether punitive damages should be awarded.

C. Compensatory damages and medical monitoring

costs, if any, to the class representatives.

WHEREFORE IT IS HEREBY ORDERED, ADJUDGED

App. 4la

AND DECREED: that based upon the jury verdict rendered

in favor of the Defendant, Amoco Oil Company, and

against the class representatives and the class on all issues

submitted, the class representatives and the Class shall take

nothing, that judgment on the merits of this action is entered

in favor of Amoco Oil Company and against the class rep-

resentatives and the class, and for the costs of this action.

All of Which Is Ordered this 14th Day of December, 1993.

/S/

HONORABLE ROBERT B. SMART

Judge, Newton Circuit Court

App. 42a

Appendix H

State of Indiana ) In the Newton Circuit Court

) SS:

County of Newton ) 1993 Term

James Martin, Mary Roman, Eugene Burkat, Jr., and

Wanda Burkat, Individually and on Behalf of All Other

Similarly Situated, Plaintiffs,

Amoco Oil Company, Defendant

Cause No. 56C01-9105-CT-67

Order on Motion to Correct Errors Filed upon Plain-

tiffs/Intervenors and Subsequent Motions Filed Incidental

Thereto

The Motion to Correct Errors filed upon behalf of the

Plaintiffs/Intervenors ha

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