# Petition for Writ of Certiorari — Town of Ferriday v. Martello

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 1072

## Text

Supreme Court, U.S.
FILED

eae I) 02 552 SEP 4 - 2002

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

NO.

GLORIA B. MARTELLO
Plaintiff

VS.
TOWN OF FERRIDAY, OWEN & WHITE, INC.

And US FILTER WASTEWATER GROUP, INC.
Defendants

Petition for Writ of Certiorari to the Court of Appeals of
Louisiana, Third District

A CIVIL ACTION

APPLICATION OF THE TOWN OF FERRIDAY
FOR A WRIT OF CERTIORARI OR REVIEW

STACY C. AUZENNE, P.L.C. (#21995)

RANDALL B. KEISER, P.L.C. (#20894)

PAUL BOUDREAUX, JR., P.L.C. (#3303)
KEISER, AUZENNE & BOUDREAUX, L.L.C.

Attorneys at Law
P.O. Box 12358
Alexandria, Louisiana 71315-2358
________Telephone:(318) 443-6168

Attorneys for the Town of Ferriday, Applicant

— oN Ne i eee oe

QUESTIONS PRESENTED FOR REVIEW

‘. Did the Trial Court, Court of Appeal and
Louisiana Supreme Court err when they failed to
grant writ applicant’s Exceptions of No Right and
No Cause of Action based on Discretionary Act
Immunity, before certifying the class action?

y Is writ applicant, the Town of Ferriday, immune
from liability for its performance of a
discretionary function, namely operating a water
treatment plant for its town residents?

a Is the analysis required of District Courts into the
predominance and superiority requirements of
Article 591(B)(3) of the Louisiana Code of Civil
Procedure sufficiently made without considering
whether the class action effectuates substantive
law, judicial economy, and individual fairness?

4. Does the Substantive Law of Louisiana allow for
the recovery of emotional damages for
aggravation, annoyance, and inconvenience,
experienced by aclass of Town residents, students,
and employees who had to boil drinking water
during a four month Boil Notice, but who have
sustained no physical injury or illness?

a. Does a District Court properly exercise its
discretion, within the framework of Article 591, in
certifying a class of persons whose only damages
are emotional, unaccompanied by physical injury,
without conducting a rigorous inquiry into every
aspect of the case, including the substantive
elements of each asserted cause of action and each
affirmative defense applicable to the claims?

6. Do the common issues of defendants’ alleged fault
predominate over the individual issues when the

li

substantive elements of the claims of the vast
majority of the class members, involving
inconvenience and annoyance without physical
injury, can only be determined by an examination
of the special circumstances surrounding each
claim?

Do the common issues of defendants’ alleged fault
predominate when the causes of action assert legal
theories that raise individual issues of fraud,
standing, reliance, knowledge and prescription?

il

RULE 29(6) CORPORATE DISCLOSURE STATEMENT

Defendant and writ applicant, the Town of Ferriday, is a
political subdivision located in Concordia Parish, Louisiana.

Plaintiff, Gloria Martello is a natural person residing in
Ferriday, Concordia Parish, Louisiana, and is the sole proprietor of
Brocato’s Restaurant located in Ferriday, Louisiana. Mrs. Martello
is represented by Ms. Linda Harang, Ms. Julie Jacobs, and Mr.
Steven Murray of the Murray Law Firm in New Orleans, and Mr.
Charles Norris of Vidalia, Louisiana.

Co-Defendants, Owen & White Engineers, Inc., Mr.
Eugene Owen, Mr. Roy Waggenspack, and Mr. Peter Randy Hollis,
individually, are principals of an engineering firm located in Baton
Rouge, East Baton Rouge Parish, Louisiana. Owen & White
Engineers are represented by Mr. Stephen Wilson, Mr. John Wolff
and Mrs. Nancy Gilbert of the Keogh, Cox & Wilson Law Firm in
Baton Rouge, Louisiana.

Co-Defendant, US Filter Wastewater Group is the
successor corporation of Neptune Microfloc Corporation, which
sold a pre-packaged water plant to the Town of Ferriday on the
recommendation of the Owen & White Engineers. US Filter
Wastewater Group was recently purchased by Vivendi, a
Corporation believed to be chartered under the laws of France. US
Filter Wastewater Group is represented by Mr. Robert Kerrigan,
Mr. Victor Franckiewicz, and Mr. Joseph McReynolds of the
Deutsch, Kerrigan & Stiles Law Firm, of New Orleans, Louisiana.

iV

APPENDIX/CITATIONS OF OPINIONS BY LOWER

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

COURTS

Judgment of the District Court, signed
July 25, 2001, Civil Action: 36,358-A, 7®
Judicial District Court, Concordia Parish,
Louisiana.

Written Reasons of the District Court,
signed July 25, 2001, Civil Action:
36,358-A, 7" Judicial District Court,
Concordia Parish, Lousiana.

Decision of the Third Circuit Court of
Appeal on original Application dated
March 6, 2002

Martello _v. City of Ferriday, 01-1240
(La. App. 3 Cir. 3/6/02) 2002 WL 356167

Decision of the Third Circuit Court of
Appeal upon the Town’s Application for
Rehearing dated May 1, 2002, Docket No.
01 01240-CA.

Writ Application denial by Louisiana
Supreme Court on Class Certification and
Discretionary Act Immunity issues dated
June 7, 2002, No. 2002-C-1514.

TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ............... ii

RULE 29(6) CORPORATE DISCLOSURE STATEMENT .. . iv

CITATIONS OF OPINIONS BY LOWER COURTS ....... Vv
TAREE GP CORGEGINED. 640 ccnsctncvncaks euexseeenes vi
TABLE GF ALTESRREEEED 5 cc vcesoncsesvcscuuesease Vili
STATEMENT OF JURISDICTION .................008- |
RELEVANT STATUTORY PROVISIONS .............. 3
STATEMENT GOP Tile CARS occccevevesncvenviucseunss 5
(1) Allegations of the Lone Plaintiff ........... 5

(2) The Certification Hearing ................ 6

(3) The Judgment ................eeeeeeee 11

(4) Post-Certification Amendments to the Petition and
| MP ETTTT TTT er ee 13

SUMMARY OF ARGUMENT ...............e ee eeeee 14
ABERIEINE | oc cb cconcenkccksenevepesaneeeeiee 15

(1) The discretionary policy making decisions implicating
budgetary priorities of a Town to provide services to its
citizens is protected by Discretionary Act Immunity 15

(a) The Town of Ferriday’s argument that it is
entitled to Discretionary Act Immunity
was never fully considered by any Court in
Pere Ter yr ~20

(2) This case is not suitable as a class action because it does
not advance or preserve the intertwined goals of
effectuating substantive law, judicial efficiency, and
avoiding undesirable and unfair results to the parties 25

CARURAAMEMODS ch ccuevcdnnstavecesessdnentetsweekes 27

Vil

TABLE OF AUTHORITIES

STATUTES:

Acts 1997, No. 839, Sect. 1, eff. July 1,1997 ............ 25
La. Civil Code, Article 667 ....cccccccccccccccccccces 21
LG, CE, BHO GES co ccccescccesovecesoevecee 21
La. Code of Civil Procedure, Article 1562 ............. 12
La. Code of Civil Procedure, Article 1736 ........ secce BB
La. Code of Civil Procedure, Article 591 ....... 3, 6, 14, 26
La. Code of Civil Procedure, Article 591A(1) .......... 11
La. Code of Civil Procedure, Article 591A(3) .......... 11
La. Code of Civil Procedure, Article 591A(4) .......... 11
La. Code of Civil Procedure, Article 591B(3) .......... 11

La. Code of Civil Procedure, Article 591B(1)(b) .... 5,6, 11

La. Code of Civil Procedure, Article 591C ............. 26
La. Code of Civil Procedure, Article 593.1 ............. 12
La. Code of Civil Procedure, Article 594 .............. 27
PRA MMIC SS cccccccccccccccceccccccecccce 1, 14, 25
Le. RAS. DBTSSD wc ccccccccccccccccccecs 3, 18, 19, 23, 25
EM, TRB. SOSSEE wc ccccccccccccccccccsccsscccceecess 24
LM. RRB. SESE cccccccvcccccccccecsccesccescoccves 24

La. RS. S324161 Of 80q. ccccccccccccccccccccccccccees 25

CASES:
Amchem Products, Inc. vs. Windsor, 529 U.S. 591, 117 S. Ct.
Fates SHOO CETTE occvovecciecescececesocecdeueces 1, 26

Attaya v. Town of Gonzales, 192 So. 2d 188 (La. App. 1 Cir.
BOGE) cacccccccvccccdecevecccccccccevevcecccccones 24

Banks v. New York Life Insurance Co., 98-0551 (La. 7/2/99),
of BS fe. SP PrrreTrrTirrrrr Tre Tee ee 2

Barrett v. T. L. James & Co., 671 So. 2d 1186 (La. App. 2 Cir.
1996) writ denied 674 So. 2d 973
(Le, IFIED accccccccccccccccccccccccccevcsccecocccs 22

Bartlett v. Browning Ferris Indus. Chem. Services, Inc.,683
So.2d 1319 (La. App. 3 Cir. 1996); overruled on other grounds
99-0494 (La. 11/12/99) 759 So.2d 755.6 wsececcccceceees 22

Begnaud v. Camel Contractors, Inc., 721 So. 2d 550 (La. App.
F COR TFBS) cccccvcccccedecccccccccccccccecccccccce 23

Berkovitz v. Chambers, 486 U. S. 531, 108 S. Ct. 1954, 100 L.
Bd, 20 S31 (TFCE) wnccccccvcccccccccccccvccccccccces 24

Bernard v. Thigpen Construction Company, et al, 97-1877 (La.
BE/ZIIIT) FOS GARE BTS? coccccccccvcoccesceccececcee 25

Bogan v. Scott-Harris, 118 S.Ct. 966, 523 U.S. 44 (1998)
WOITITTITITITITITI TTT Tir iii rir 1, 14, 16, 20

Boguille v. Chambers, 685 So. 2d 582 (La. App. 4 Cir.
IMT] occccccccsccccccsceccvovesccvesesvcescece 24

Castano v. American Tobacco Co., 84 F. 3d 734, 746 (5 Cir.
| BPTI TTT TCT TTT CTT TT TT TT TTT TTT re re 27

ix

Dalehite v. United States, 346 U.S. 15, (1953) .. 16,17, 18, 20

Doerr v. Mobil Oil Corporation, 01-0775 (La. App. 4 Cir.
MATTGE) BOGS WE TFOGTI ccccccccccccsccccccccccccce 26
Duhe v. Texaco, Inc., 99-2002 99-2002 (La. App. 3 Cir.

PRGA TIPOREE TOTS ci cccccccceceeceocecsccaseses 25
Feldheim v. Si-Sifth Corp., 715 So. 2d 168 (La. App. § Cir.
FFP cecvcecececceceserevcscoesesesteseecescecese 21
Ford v. Murphy Oil USA, Inc., 96-2913 (La. 9/9/97), 703 So.2d
FAS cccavenccecceeeedeesedoterecseceececcecceees 2, 26
Graf v. Town of St. Gabriel, 744 So. 2d 1 (La. App. 1 Cir.

FORE 6c csseeceecsecoesececedsceceeesesecceseeceses 20
Hampton vy. Illinois Central Railroad, 98-0430 (La. App. 1 Cir.
GET TACOMA TUTE ce cerceceescencecsnseeeese 26, 27
Hardy v. Bowie, 744 So.2d 606, 613 (La. 1999) ......0006. 24
McCastle v. Rollins Environmental Services of Louisiana,

Inc., 456 So.2d 612 (La. 1984) ..cccccccceccecces 26, 27, 28
Michael v. City of Minden, 704 So. 2d 409 (La. App. 2 Cir.
FPFTD ccveecceceecreceensseedesceceseccovessesoses 24
Miller v. Mackey International, Inc. 452 F.2d 424, 427 (5" Cir.
TP7TED cvceccené CTTTITIT TTT CET Tee 26
Ortiz v. Fibreboard Corporation, 119 S.Ct. 2295, 527 U.S. 815,
pr gm psi ti, PRPPPPTTTTTT Tre TrrreerereTr ee 1, 26
Simeon v. Doe 618 So. 2d 848 (La. 1993) ...cccccccecees 24

State ex rel. Guste vs. General Motors Corp., 370 So.2d
dh, Bg, BOPETTUCT TTT OCT RTT TCT CTP TCT TT Tee Tee 2

Stevens vs. Board of Trustees, 309 So.2d 144 (La. 1975)

Pere TET Te TTT TET TUTTE TTT TOTTI TLE. 2, 20, 21
Stewart v. City of Pineville, 511 So.2d 26 (La. App. 3 Cir. 1987)
POC Tee eT TTT Tee. TITEL TT ULL TLL EE 22
Tenney v. Brandhove, 341 U.S. 367, 377 (1951) ....eeeeee 16
United States v. Muniz, 374 U. S. 150,163 (1963) ......05. 18
United States v. Varig Airlines, 467 U.S.797 (1984)

PUTT T TT TTTTT TCT TT TCT TTC T TTT 1,14, 18, 19, 20
Ursin v. New Orleans Aviation Board, 506 So. 2d 947 (La.

App. $ Cir. 1987) .cccccssccccccvcccccvcevescsccececs 21
Welcker v. Fairgrounds Corp, 577 So. 2d 301 (La. App. 4 Cir.

| eee Terre err errr rrr rT Terre TT Tere TT 21
Williams vs. State, 350 So.2d 131 (La. 1977) ...ccccceeees 2

Xl

F si we

STATEMENT OF JURISDICTION

United States Supreme Court Rule 10 provides that
jurisdiction is proper in this case because a state court of last resort
has decided an important issue which conflicts with this Court’s
earlier rulings concerning the doctrine of Discretionary Act
Immunity in Bogan y. Scott-Harris.' This Honorable Court also
has jurisdiction over this case because the Louisiana Supreme
Court’s denial of a writ of certiorari implicitly refused to consider
this Court’s decision upholding Discretionary Act Immunity for
alleged negligent acts committed by the employees of a
governmental entity (the Federal Aviation Administration) in
United States v. Varig Airlines.

The Louisiana Supreme Court has allowed class
certification in this case where the named plaintiff, proposed class
representatives, and potential class members would only recover
damages based on nuisance, aggravation, and annoyance, without
providing supporting documentation of any other damages,
contrary to Louisiana substantive law. This Honorable Court has
recently reversed the grant of class certification in Amchem
Products v. Windsor and Ortiz v. Fibreboard Corporation, when
plaintiffs failed to prove that the requirements of Federal Rule of
Civil Procedure, Article 23(b)(1)(B) "limited fund" certification
had been met.? While this case was certified under Louisiana
procedural law, the 1997 amendments to the Louisiana Code of
Civil Procedure articles concerning class certification are virtually
identical to Federal Rules of Civil Procedure, Article 23. In
cases decided before the 1997 Amendments, Louisiana Courts
have repeatedly directed lower Courts to look to Rule 23 and its
interpretative jurisprudence for guidance, particularly concerning
the predominance and superiority analysis now made statutory,

| Bogan y. Scott-Harris, 118 S.Ct. 966, 523 U.S. 44 (1998)
2 United States v. Varig Airlines, 467 U.S. 797 (1984)

3 4mchem Products v. Windsor, 521 U.S. 591, 117 §.Ct.2231, 138
L.Ed.2d 689 (1997); Ortiz v. Fibreboard Corporation, 119 S.Ct. 2295, 527 U.S.
815, 144 L.Ed.2d 715 (1999).

before exercising their discretion to certify a class.‘

This writ application is for review of a District Court
Judgment, affirmed by the Louisiana Third Circuit Court of
Appeal, and subsequent denial of the Town’s writ application by
the Louisiana Supreme Court, which certifies a potential class of
4,000 persons who allegedly seek to recover emotional damages,
unaccompanied by any physical injury or illness, from three
separate defendants under different factual and legal theories of
recovery, some of which are novel, untested and subject to
prescription.’ The certification of the class in this case represents
an expansion into a whole new area of "mass tort" litigation,
involving purely emotional damages unaccompanied by any
physical injury.

The danger of opportunistic and manufactured claims is :
even more pronounced in cases like the one at bar, involving 3
claims for pure emotional injury, without medical treatment, and :
in any other case in which large groups of people, who have 4
sustained no physical injury, but may have witnessed an event, :
such as a neighborhood fire or a plant explosion miles away, file :
class actions for emotional distress, anxiety, aggravation, or
inconvenience. As a procedural device, the class action is not
supposed to give substance to claims that have none, or apply to
claims involving issues of causation and injury-in-fact that can :
only be resolved on an individual basis. If the policy limiting —
causes of action for purely emotional damages is to discourage the
litigation of spurious claims, then that policy is not advanced by
the certification ofa class of persons on the basis of a Petition filed
by one or two disgruntled persons purporting to assert emotional
damages for the group. The dangers of magnified claims, skewed

PE a ae Tee

4 State ex rel. Guste vs. General Motors Corp., 370 So.2d 477 (La.
1978)(on rehearing); Williams v. State, 350 So.2d 131 (La. 1977); Stevens vs.
Board of Trustees, 309 So.2d 144 (La. 1975); Ford v. Murphy Oil, U.S.A., Inc.,
96-2913 (La. 9/9/97), 703 So.2d 542; Banks v. New York Life Insurance Co.,
98-0551 (La. 7/2/99), 737 So.2d 1275.

‘Two of the five purported class representatives also seek recovery of 2
losses to their businesses and damages to personal water filtration devices used in s
their businesses. a

trial outcomes, and unfair settlement for fear of "all-or-nothing"
verdicts militate against certification.

Additionally, a policy consideration of Discretionary Act
Immunity for similarly situated towns must be seriously
considered by this Honorable Court, since the Louisiana Supreme
Court, the Louisiana Third Circuit Court of Appeal, and the Trial
Court gave no consideration to this doctrine and its application to
class certification.

The Town of Ferriday asks that this Application be
granted, and for full briefing and argument, to determine whether
the Town is entitled to Discretionary Act Immunity, and whether
a class should be certified consisting of persons claiming
emotional damages without any physical injury.

RELEVANT STATUTORY PROVISIONS

La. R.S. 9:2798.1 states:

Liability shall not be imposed on public entities or their
officers or employees based upon the exercise or
performance or the failure to exercise or perform their
policy making or discretionary acts when such acts are
within the course and scope of their lawful powers and
duties.

Louisiana Code of Civil Procedure, Article 591 provides
as follows:

A. One or more members of a class may sue or be sued as
representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members
is impracticable;

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are
typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately
protect the interests of the class.

(5) The class is or may be defined objectively in terms of
ascertainable criteria, such that the court may determine
the constituency of the class for purposes of the
conclusiveness of any judgment that may be rendered in
the case.

B. An action may be maintained as a class action only if
all of the prerequisites of Paragraph A of this Article are
satisfied, and in addition:

(1) The prosecution of separate actions by or against
individual members of the class would create a risk of:

(a) Inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing
the class, or

(b) Adjudications with respect to individual members of
the class which would as a practical matter be dispositive
of the interests of the other members not parties to the
adjudications or substantially impair or impede their
ability to protect their interests; or

(2) The party opposing the class has acted or refused to act
on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole; or

(3) The court finds that the questions of law or fact
common to the members of the class predominate over
any questions affecting only individual members, and that
a class action is superior to other available methods for the
fair and efficient adjudication of the controversy. The
matters pertinent to these findings include:

(a) The interest of the members of the class in individually
controlling the prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the
controversy already commenced by or against members of
the class;

(c) The desirability or undesirability of concentrating the
litigation in the particular forum;

(d) The difficulties likely to be encountered in the
management of a class action;

(e) The practical ability of individual class members to
pursue their claims without class certification;

(f) The extent to which the relief plausibly demanded on
behalf of or against the class, including the vindication of
such public policies or legal rights as may be implicated,
justifies the costs and burdens of class litigation; or

(4) The parties to a settlement request certification under
Subparagraph B(3) for purposes of settlement, even
though the requirements of Subparagraph B(3) might not
otherwise be met. 7

C. Certification shall not be for the purpose of
adjudicating claims or defenses dependent for their
resolution on proof individual to a member of the class.
However, following certification, the court shall retain
jurisdiction over claims or defenses dependent for their
resolution on proof individual to a member of the class.

STATEMENT OF THE CASE

1) Allegations of the Lone Plaintiff

This case involves a lawsuit filed in October of 1999, by
Gloria B. Martello, the owner of Brocato’s Restaurant in Ferriday,
Louisiana, against the Town of Ferriday, Owen & White
Engineering, and later US Filter Wastewater Group. Her original
Petition asserted four separate causes of action, including strict

liability, breach of contract, negligence and redhibition, predicated
on the engineering firms’ alleged fault in designing, maintaining
and operating the Town’s new water plant, and the Town’s alleged
negligent operation of that same plant. The claim against US Filter
Wastewater Group, the successor corporation of Neptune
Microfloc, was predicated on the improper design, and alleged
negligently conducted pilot plant water content study performed in
1983, which indicated that the Adsorption Clarifier System in the
Neptune Plant was capable of removing Manganese from Marengo
Bend, the source of the Town’s water. The plant came online in
late 1988, and the first Manganese problems surfaced in April of
1989.

Mrs. Martello seeks recovery of damages for alleged
"severe mental and emotional distress", fear of disease,
inconvenience, annoyance and discomfort, along with unspecified
business and property losses sustained. Mrs. Martello also sought
damages for the three day disruption of water service caused by the
shut down of the plant and an issuance of a boil water notice by the
State Department of Health and Hospitals in August, 1999. The
Boil Notice was lifted in December, 1999. Mrs. Martello’s
Petition also sought class certification under the Louisiana Code
of Civil Procedure, Article 591. Mrs. Martello alleged twenty-
four separately numbered allegations of common issues of law and
fact, all pertaining to the defendants’ alleged legal liability. The
Petition also advanced the right to pursue remedies under two
contracts between the Town and Owen and White under the
Louisiana Civil Law stipulation pour autrui (third party
beneficiary) doctrine.

Prior to its filing of an Answer, the Town of Ferriday
asserted an Exception of No Right of Action, which was orally
amended by agreement of all counsel at the class certification
hearing to an Exception of No Cause of Action. The Town also
filed a Dilatory Exception of Vagueness which was never waived
or set for hearing by the Trial Court.

(2) The Certification Hearing

Mrs. Martello sought to have the class certified under
Louisiana Code of Civil Procedure, Article 591(B)(1)(b), known

6

as the "limited fund" class certification theory. In March, 2001,
approximately six days before the Certification Hearing, Martello
attempted to amend her Petition a third time to include Shelby
Guidry, Mildred McKinney, Christine Murray Roberts, and
Tommie Massey as additional petitioners,® but Leave to Amend
was not ted before the Certification Hearing.

In depositions taken prior to the amendment as part of the
pre-certification discovery, McKinney, Roberts, and Massey
testified that by joining suit they were not seeking compensation
for themselves and wanted only clean water from the plant.’ The
depositions of these class members were proffered at the class

certification. Mrs. Roberts testified in deposition:

Well, I have to admit I never thought that we were gonna
get any money out of this. I just wanted to prove a point
that we really need to do something about the water....I do
like Ferriday. I know people that live there, and I just, you
know, wanted to stand up and at least tell what I had to go
through in hopes that it would help to get things changed
for the better.

Mrs. Roberts moved with her family to Natchez,
Mississippi in late August, 1999, a few days after the Boil Order
was instituted. Mrs. Roberts’ testimony at Trial was representative
of the late- added putative class representatives toward personal

Neither the Third Supplemental and Amending Petition nor
Order granting leave to file it appear in the record. Petitioners attempted
to file the Petition about six days prior to the certification hearing, when
all defendants objected. Petitioners withdrew the Amending Petition, and
the Hearing to allow tlie Amending Petition was set for August 15, 2001,
but was continued by plaintiffs without date. As of this date a hearing
requesting leave of court to file a superceding and amending petition was
heard on August 20, 2002, and the Trial Court took this Motion under
advisement.

"The pre-class certification depositions appear in the record as a
proffer.

compensation as follows:

Q. And isn’t it fair to say that you
never thought that you’d get any
money out of this, you just
wanted to prove a point that they,
the City, really needed to do
something about the water?

A. Yes, I did say that.

Massey does not live in Ferriday, but is an Administrator
of a Nursing Home in Ferriday and owned by a company in
Atlanta, Georgia. Massey testified in deposition that he was
seeking reimbursement of losses sustained only by his corporate
employer.® The nursing home corporation, however, is not a party
to this action.

At the certification Hearing conducted April 30 through
May 4, 2001, McKinney, Roberts, and Massey all changed their :
testimony and claimed that they were seeking personal
compensation for their individual stress, aggravation, and
inconvenience suffered during the time the Boil Water Notice was
in effect.

Guidry and Martello, neither of whom used the Town’s
water at their home for drinking or cooking, are the only claimants
seeking to recover business losses and property damage for
themselves.’ Guidry’s claim is for lost laundry business during the
shutdown and for expenses and reimbursement of the price of a
filter system she had installed in her laundraumat in 1996, three
years before the boil advisory, to filter out Manganese. Mrs.
Guidry stated that her water filter system was constantly having to

pe ee

Su
#3, p. 6.

I don’t have anything other than expenses." US Filter Proffer

*Martello moved back to Ferriday in 1986, but used only bottled
water for personal consumption. Guidry does not use the Town’s water
in her home, since she does not live in the Town of Ferriday, but only
uses the Town’s water at her laundromat located within the city limits.

8

be cleaned and "regenerated" during and after the Boil Water
Notice.

None of the petitioners claimed or proved that they
suffered any physical injuries or illnesses from consuming or
bathing in the water, and no evidence was submitted at the
certification hearing that any purported class member had
sustained any physical injury or illness as a result of the Boil
Notice. None of the class representatives testified that they feared
illness or disease, or sought medical or psychological counseling.
All but Massey testified that they intended to pursue this action
even if it were not certified as a class.

Other witnesses called by the plaintiff established that the
Town of Ferriday hired Owen and White Engineers in 1978 to
undertake improvements and extensions of their municipal water
system and to investigate the possibility of using an additional or
alternative water source. The existing plant drew ground water
from the Mississippi River alluvial sands, but was in poor
condition. Owen & White investigated a number of alternative
water sources, but eventually settled on Marengo Bend known at
the time to contain high levels of iron and Manganese as a surface
water source. A pipeline system was erected to connect the plant
to the water intake structure on Marengo Bend. Owen & White
recommended that a design for the intake structure that was
conscious of certain hyper-inflated construction costs which were
prevalent between 1982 and 1984. The Town of Ferriday also had
lost revenue sharing in the first part of the 1980's, so an adsorption
clarifier system was utilized rather than the existing settling pond
and/or tube settling technology, which was more expensive at the
time. This savings was approximately $170,000.00 in construction
costs, and Owen & White recommended a pilot plant water study,
which was conducted on or about May 20, 1983, at the intake
structure. Owen & White then determined that the Neptune Plant
was suitable for the job and recommended that the Town buy the
Plant at the lower cost. The Plant was built and ultimately
commenced operation in December 1988.

In Spring of 1989, complaints began surfacing about the
staining of laundry in Ferriday, which Owen & White determined
to be caused by high levels of Manganese in the water. These high
levels of Manganese typically occurred when the water levels were

9

lower during the dryer summer months, and recurred periodically
every year until the Summer of 1999.

The presence of Manganese is a secondary water concern
to the Louisiana Department of Health and Hospitals, and does not
pose a threat of bodily injury to anyone consuming that water.
Manganese does have something of an odor and reacts adversely
with laundry bleach, which discolors and stains clothes.

In 1989, Owen & White recommended several solutions,
including a floating intake structure which was never approved by
either the Town or the U.S. Army Corp of Engineers. Owen &
White did design and install a culvert system which forced water
to be drawn through the valve from a higher level where the levels
of Manganese in the water were lower.

The Town’s financial problems continued to affect the
operation of the plant, and ultimately a $1.1 million dollar grant
was obtained from the U.S. Department of Agriculture to either
install a floating intake structure, or a detention and oxidation tank.
To date, neither alternative has been implemented.

In August, 1999, during an inspection of the Town’s Plant,
Michael Cazes of the Louisiana Department of Health and
Hospital, Office of Public Health, found rising turbidity levels
(particulate matter in the water) in excess of Federal and State
levels. Mr. Cazes suspended the inspection to give the Town time
to correct the problem, and when it couldn’t, he issued a Boil
Water Advisory. The Advisory was a request that the Town notify
all water customers to boil their water before drinking or cooking
with it, and when Mr. Caze later learned that a local school had not
received notice, a Boil Water Notice was issued on August 24,
1999. Mr. Caze testified that the State’s issuance of the Boil
Notice did not mean that the Town’s water was not drinkable, only
that the Town’s water quality (clarity) was questionable.

At that same time, the Plant shut down due to the
accumulation of sludge in the Cleanwater Holding Tank. The
sludge clogged up the clean water filter and drained the tank of
needed fresh water to backwash and clean the filter. The sludge
was removed in three days, and the turbidity levels were brought
under control within a few days after the holding tank had been
cleaned and water service restored. Ninety-eight percent (98%) of
the water samples tested in October, and all of the samples tested

10

in November were within the State and Federal guidelines.

The State Department of Health and Hospitals did not lift
the Boil Notice until December-1999, after the Town made repairs
to the Plant. The Plant has been producing quality water ever
since, and free water was made available by the Town of Ferriday
to all its water customers and residents at schools and businesses
during the period of the Boil Notice.

(3) The Judgment

After the Class Certification Hearing was held, the Trial
Court issued a Judgment, along with Written Reasons for that
Judgment on July 25, 2001. (App. "A") The Trial Court’s Reasons
for Judgment were a verbatim copy of the Proposed Findings of
Fact and Conclusions of Law submitted by plaintiffs attorneys.
(App. "B") Abandoning the theory of the Limited Fund under
Louisiana Code of Civil Procedure, Article 591(B)(1)(b),
originally pled by the plaintiff, the Court concluded that the
plaintiffs had satisfied all of the statutory requirements of
Louisiana Code of Civil Procedure, Article 591(A)(1)-(4)
concerning numerosity, commonality, typicality, and adequacy of
representation. Also, the Court held that the common issues of law
and fact predominated over individual issues, and that a class
action was superior to all other available methods of adjudication
required under Article 591(B)(3). The Trial Court had previously
excluded defendant’s expert on class certification, who was
prepared to testify that common issues of law and fact did not
predominate over individual issues, and that one consolidated
lawsuit was superior to the class certification. This exclusion was
solely based on the plaintiff's attorneys’ representation that they
were proceeding under the Limited Fund Theory of Louisiana
Code of Civil Procedure, Article 591(B)(1)(b).

The Trial Court specifically acknowledged in Written
Reasons that not one of the purported class members suffered any
physical injury, illness, or disease. The Trial Court incorrectly
concluded that the common issues of liability and fault
predominated because the "claims for damages differ only by
degree or amount, but they are all of the same common types and
categories, predominantly being claims of inconvenience,

li

annoyance, and discomfort; mental and emotional distress and
stress; non-reimbursed personal expenses; and also non-
reimbursed business expenses." The Trial Court further concluded
that the class action was a superior device, without giving any
consideration to alternative procedures such as joinder or
consolidation, because of the Court’s presumed authority to order
separate Jury Trials of liability issues without the party’s consent,
as would otherwise be required under Louisiana Code of Civil
Procedure, Articles 1562 and 1736. The District Court failed to
note that the statutory authority for ordering separate Jury Trials
under Article 593.1 had been repealed in 1997. The District Court
adopted the following class definition:

All persons, businesses, or entities who belong to at least
one of the following five groups, and who, as a direct
result of receiving the water from the Town...Water Plant
between August 20, 1999 and December 22, 1999, have at
least one of the following claims: Mental and emotional
distress; non-reimbursed personal expenses;
non-reimbursed business expenses; loss of personal
income; loss of business income, annoyance, discomfort,
and inconvenience; personal injury including fear of
contraction of disease or illness; or property damage.

1) Residents [who received water at their
residence from the Town];

2) Owners and/or operators of businesses
[that receive their water at their business];

3) Lessors [that receive their water at their
lease property];
4) Employees of business [that receive their

water at their place of employment]; and
5) School students and patients in healthcare

facilities [who receive their water at
school or the facility].

12

(4) Post Certification Amendments to the Petition and
Recusal

On July 27, 2001, after the entry of the Certification
Judgment, Mrs. Martello moved for Leave to file a Superseding and
Consolidated Amended Petition listing Roberts, McKinney, Massey,
and Guidry as petitioners, and adding fifteen additional itemized
allegations of common issues of law and fact. The Order for Leave
to file this Amendment has not yet been signed.

The Consolidating Amended Petition adds new claims of
fraud against three additional defendants, Eugene Owen, Roy
Waggenspack, and Peter Hollis, all employees of Owen & White
Engineers. Plaintiffs alleged that they were unaware of the alleged
fraudulent conduct of Owen & White and the newly added
defendants until the individual defendants’ depositions were taken in
July, 2000, as part of the pre-class certification discovery.'° They
alleged that this newly discovered fraud was a “cause-in-fact of the
damages the petitioners and class members have suffered and
continue to suffer" in the case.

Less than two weeks after signing the plaintiffs’ verbatim
Reasons for Judgment, on August 6, 2001, Judge Kathy Johnson,
who presided over the certification hearing and issued the
certification Judgment, and Judge Leo Boothe, the other sitting
Judge in the 7" JDC, both recused themselves from the case on
their own Motion. The Louisiana Supreme Court subsequently
appointed Judge Charles R. Brackin to preside over the case. All
defendants filed Suspensive Appeals challenging the certification
of the suit as a class action, and the Louisiana Third Circuit Court
of Appeal affirmed the Judgment, citing the manifest error standard

\0The Certification Hearing was conducted ten (10) months after
these depositions were taken. Certainly additional issues of fraud would
not be common, and whether the named plaintiffs or class representatives
would have any action for fraud is yet another issue.

13

of review but undertaking no analysis of the appropriateness of the
class action in effectuating substantive law or of the individual
proof necessary for each claimant to establish a claim. (App. "C")
The Town of Ferriday applied for a Rehearing, on the basis that the
Third Circuit stated that there was.never an Exception of No Cause
and/or No Right of Action placed before it for decision. The
Request for Rehearing was denied on May 1, 2002. (App. "D")
Application for Supervisory Writs was made to the Louisiana
Supreme Court by all defendants, and that Court denied writs on
June 7, 2002. (App. "E")

SUMMARY OF ARGUMENT

The Town of Ferriday’s providing water to citizens is
clearly a discretionary function, and actions taken by Town
employees to provide such water should be protected from liability
by Discretionary Act Immunity. This Court has held that, although
impossible to define with precision every contour of the
discretionary function exception, the nature of the conduct and the _
goal of preventing judicial "second guessing" of legislative and
administrative decisions grounded in social, economic and political
policy through the medium of a tort action, should be protected
with immunity.'' This Court recently held that individual
legislators are individually immune from liability for their
legislative acts.'* Clearly, the Town of Ferriday should be
dismissed from this class action suit because the actions taken by
their employees in providing water to their citizens are rooted in
social, economic and political policy, protected by Discretionary
Act Immunity.

This case is not appropriate for class certification under the
1997 amendments to Louisiana Code of Civil Procedure, Article
591, which make it nearly identical to_Federal Rule of Civil
Procedure, Article 23. The large number of purportedly aggrieved
class members consists of persons whose only alleged injuries are
emotional damages associated with inconvenience and annoyance,

| United States v. Varig Airlines, 467 U.S. 797 (1984).

2 Bogan v. Scott-Harris, 118 S.Ct. 966, 523 U.S. 44 (1998).

14

unaccompanied by any physical injury or illness whatsoever.
Under Louisiana Law, compensable damages for emotional
distress, unaccompanied by physical injury or illness, is necessarily
dependant upon individual proof surrounding the circumstances
and severity of the alleged distress. As a matter of substantive
policy and law, to guarantee that the claim is not spurious, there
must be proof of an especial likelihood of genuine and serious
mental distress that can only be determined on an individual basis.
Such individual claims are not maintainable as a class action in
light of the prohibition in Article 591(C) that "Certification should
not be for the purpose of adjudicating claims or defenses dependant
for their resolution upon proof individual to a member of the class."

The evidence submitted at the certification hearing failed
to establish that common issues of fact and law predominate over
the issues affecting individual members or that the class action was
superior to other methods of adjudicating the controversy,
particularly Louisiana’s Procedure for Joinder and Consolidation.
The evidence did not establish a sufficient number of truly
aggrieved persons that would make joinder or consolidation
impracticable, or that the compensable claims asserted by the five
putative class members were typical of other claims for damages
sustained by the class members, other than purely emotional
damages unaccompanied by physical injury.

De-certification should also be made on policy grounds.
The danger of magnified and opportunistic claims of potential class
members who have no injuries also weigh in favor of de-
certification. All of the purported class members testified that they
are willing to pursue their claims on an individual basis, even if this
case is not certified. Those claims are better resolved or settled
under Louisiana’s liberal Joinder Rules concerning consolidation
or accumulation of actions. Those procedural devices better serve
the policies underlying the substantive law and insure fairness to all
parties, so that defendants are not subjected to unfair settlements,
all or nothing verdicts, or skewed trial outcomes involving
meritless claims.

ARGUMENT
(1) The discretionary policymaking decisions implicating
budgetary priorities of a Town to provide services to its
citizens is protected by Discretionary Act Immunity.

15

This Honorable Court has held that local legislative
officials are entitled to absolute immunity from suit for their
actions taken when performing legislative functions.'? This
Honorable Court specifically stated that the enactment of an
ordinance, which reflected the discretionary, policymaking
decisions implicating the budgetary priorities of the city and the
services it provides to its constituents, protected the local
legislators from tort suit with immunity.'* This Honorable Court
further held that the exercise of legislative discretion should not be
inhibited by judicial interference or distorted by the fear of personal
liability.!° The time and energy required to defend against a lawsuit
are of particular concern at the local level, where part time citizen-
legislators remain commonplace, and the threat of liability may
significantly deter service in local government.’* The principle of
absolute immunity for legislators is not new, but has its roots in the
English Parliament’s struggles of the 16" and 17" Centuries."
Thus, in the Bogan case local elected officials’ actions of
eliminating from their budget the department where an employee
who had been reported as cursing members of the general public
were found to be protected by immunity from a civil rights suit
brought by the employee.

This Honorable Court held that government discretion does
not end upon the initiation of programs and activities, but includes
determinations made by executives and administrators in
establishing plans, specifications or schedules of operations.'* This
Honorable Court further held that the acts of subordinates in
carrying out the operations of government in accordance with

13 Bogan v. Scott-Harris, 118 S.Ct.966, 523 U.S. 44 (1998)

41d at p. 49
Sid at p. 50

161d at p. 50 citing Tenney v. Brandhove, 341 U.S. 36, 37 (1951)

"See Tenney supra; & Bogan. at p. 48.

8 Dalehite v. United States, 346 U.S. 15, 35-36 (1953)

16

official directions cannot be actionable.'? In the Dalehite case, the
United States government cabinet-level decision to institute a
fertilizer export program to war ravaged Europe was never
seriously disputed. However, the need for further testing of the
explosive properties of the fertilizer, (considering the explosion that
leveled Texas City, Texas, in 1947), was the subject ofa negligence
suit instituted by some 300 plaintiffs asserting personal and
property damage claims under the Federal Tort Claims Act as a
result of the explosion. This Honorable Court held that the four
specific acts of negligence found actionable by the trial court in
Dalehite did not subject the United States Government to liability
because they were all responsibly made at a planning, rather than
an operational, level.”°

An analogy is easily made to the case at bar considering the
choice of the Town of Ferriday in its purchase of the current water
plant. Choices such as the type of plant to purchase, considering
meager resources in the 1970's and early 1980's; the rising cost of
construction which made the Town consider the adsorption clarifier
system rather than conventional tube settlers or sedimentation
pond; the placement of a water intake structure nearly one mile
away from the plant when the Town could not afford to purchase
the land immediately behind the plant; the placement of chemical
feed equipment near the adsorption clarifier, rather than at the
source of water intake; the rate of feed and choice of chemicals and
"floccing" agents to remove the manganese from the water; the
maintenance schedules for repair of the adsorption clarifier, the
clean water holding tank, and backwashing the water filters all
involve the exercise of discretion by the Town. The Town of
Ferriday should be provided immunity protection from suit based
on discretionary choices made due to monetary constraints
imposed on the Town. Further, the Town could only afford to hire
a certain number of water plant operators, and by the time that
these operators obtained certification from the State, the operators
would find better paying jobs. Clearly, discretionary acts
performed by the Town of Ferriday in operating their water plant

91d at p. 36.

207d at p. 42.

17

should protect them from tort suit herein.

This Honorable Court further extended immunity to
employees of the Federal Aviation Administration when their
aircraft design inspection procedures failed to detect a violation of
applicable safety standards in the Boeing 707 trash receptacle, |
which resulted in a fire that killed most passengers aboard a flight
from Rio de Janeiro to Paris.’ Finding that the FAA had limited
resources to conduct the inspections necessary to comply with the
elaborate compliance review process, this Court stated that the
parameters of discretionary immunity were impossible to define.”
Certain factors must be considered when determining whether the
actions of a government employee are protected from liability
based on Discretionary Act Immunity, including 1) the nature of
the conduct rather than the status of the actor, and 2) the
discretionary acts of the Government acting in its role as a regulator
of the conduct of private individuals.”

This Court reasoned that Congress wished to prevent
judicial "second guessing" of legislative and administrative
decisions grounded in social, economic and political policy through
the medium of an action in tort. By fashioning an exception for
discretionary governmental functions, Congress took "steps to
protect the Government from liability that would seriously
handicap efficient government operations."*° The Town of Ferriday
is entitled to the Discretionary Act Immunity of La. R.S. 9:2798.1
because the providing of water to its citizens is a discretionary act,
for their health, safety and general welfare, as testified to by former
Ferriday Mayor Montgomery. Mayor Montgomery testified that
the Town had the sole discretion to place its funds where necessary
to run the Town and provide services to its citizens.

2! United States v. Varig Airlines, 467 U.S. 797 (1984)

221d at p. 813 citing Dalehite v. United States,346 U.S. 15, 33 (1953)

- Id at p. 813.
247d at p. 814.

251d at p. 814 citing United States v. Muniz, 374 U.S. 150, 163

(1963).

18

|

Mayor Montgomery testified that the note payable on the
water plant and chemical costs related to running the water plant
were the single largest expenditures the Town made, and the Town
had to apply for grants, raise water consumption bills, and raise
taxes to keep the water plant running.”

Every witness who testified at the class certification
hearing agreed that the Town considered the cost of the water plant
in its initial construction, monthly chemical costs, maintenance,
operation, and hiring of operators, to be a crucial factor in
providing water to its residents.”’ In essence, the Town did what it
could do with limited resources to provide its citizens with the best
water available. Engineers, chemists, water operators, and
chemical salesmen could not figure out how the Town water plant
could remove the manganese. The Town of Ferriday, with 4,500
residents, simply could not afford the $200,000.00 annual chemical
cost bill and the $240,000.00 annual note payable to the Farmers
Home Administration for the water plant. The decision to allocate
scarce Town resources to the water plant was purely discretionary,
by definition, and the Town should therefore be entitled to
Discretionary Act Immunity pursuant to La. R.S. 9:2798.1. The
source of the Town’s Exception of No Cause and/or No Right of
Action was based on Discretionary Act Immunity.

This Honorable Court refused to "second guess" the
political, social and economic judgments of an agency exercising
its regulatory function in the Varig Airlines case, considering the
FAA’s goal of accommodating air transportation safety and the
reality of finite agency resources.” Considering the Town of
Ferriday’s minimal resources, where the chemical costs and note
payments for its water plant are the largest expenditures the Town
makes in its entire budget, such decisions should be protected by
Discretionary Act Immunity. Thus, the Trial Court erred denying
the Town’s Exception of No Cause/No Right of Action, and

26See Record p. 1489-1491, 1501-1502.

27 See Record (p. 1457, 1489-1491, 1501-1502, 1565-1566,
1626-1627, 1646-1666, 1647, 1477, & 1833).

2817.5. y. Varig Airlin»s, 467 U.S. 797, 820 (1984)

19

considering this Court’s pronouncements in the Bogan, Dalehite,
and Varig Airlines decisions, this wnt application should be
granted, and Mrs. Martello’s suit should be dismissed.

(a) The Town of Ferriday’s argument that it is
entitled to Discretionary Act Immunity was
never fully considered by any court in this
matter.

The Trial Court only spent one paragraph in its 24 page
"Reasons for Judgment" addressing the Town’s Exception of No
Right of Action, conformed by agreement of the parties at the
beginning of the class certification hearing to an Exception of No
Cause of Action, as follows:

Since the Court finds that the plaintiff has met and
satisfied all of the Article 591(A) Requirements for
Certification, and has met and satisfied the Article
591(B)(3) Requirement for Certification as to all
three defendants, the Court finds that the Town of
Ferriday has failed to meet the burden of proof on
its Exception of No Cause of Action. The Town of
Ferriday’s Exception of No Cause of . Action,
therefore, is hereby OVERRULED for all the same
reasons for Judgment assigned herein. (See App.
"B a

This statement in the Trial Court’s Written Reasons for
Judgment that the plaintiff met all of the requirements for class
certification, and that the Town had failed to meet their burden of
supporting their Exception, is per se grounds to overturn the Trial
Court’s Judgment. The Louisiana First Circuit Court of Appeal’s
decision in Graf v. Town of St. Gabriel, required that the Trial Court
first consider the Exception of No Right of Action before considering
and/or ruling on the class certification issue.”

In Louisiana, an Exception of No Cause of Action is the

9 Graf v. Town of St. Gabriel, 744 So.2d 1 (La.App. 1Cir. 1998)

20

proper procedural vehicle to challenge the use of a class action
procedure, and it "need not be heard on the pleadings alone".*® The
Louisiana Supreme Court has upheld the ability of parties to put on
evidence in support of or in opposition to class certification through
the procedural device of an Exception of No Cause of Action.*' In
the case at bar, no evidence presented by the plaintiff supported
their theory that inconvenience and nuisance alone were
compensable. In fact, Louisiana law does not allow a suit for
nuisance alone to proceed, unless accompanied by severe emotional
distress, individual to the claimant, and well documented with
appropriate medical history.

In Ursin v. New Orleans Aviation Board” the Trial Court
granted an Exception of No Cause of Action refusing to certify a
class action, but allowed the case to proceed through individual
suits brought by property owners adjacent to the New Orleans
International Airport. The suit involved complaints of excessive
noise and inconvenience associated with the residents living near
the airport in the aircraft flight path.

Additionally, a damage award to a property owner adjacent
to the New Orleans Fairgrounds Racetrack was overturned by the
Louisiana Fourth Circuit of Appeal when the only real damage a
landowner had suffered was "mere inconvenience" without
economic harm.? The Court held that damage to the "ambiance"
of the building by the fairground lights was no more than
"inconvenience" defined by Louisiana Civil Code, Articles 667 &
668, and not compensable. The owner of the property never
attempted to market the property, had no intention of selling it, did
not show it as a historical attraction, and steadily increased the rent
to his tenants over the years that the damage allegedly occurred.

An award of $1,000.00 in damages was upheld by the

30 Feldheim v. Si-Sifh Corp., 715 So.2d 168 (La. App. 5 Cir. 1998)
citing Stevens v. The Board of Trustees, 309 So.2d 144, 152 (La. 1975); Ursin v.
New Orleans Aviation Board, 506 So.2d 947 (La. App. 5 Cir. 1987).

. | Stevens, Supra.
32596 So.2d 947 (La.App. 5Cir. 1987).

33 Welcker v. Fairgrounds Corp., 577 So.2d 301 (La. App. $Cir. 1991).

21

Louisiana Third Circuit Court of Appeal based on noise and
inconvenience suffered by the plaintiff during construction of a
water pumping station adjacent to the plaintiff's home.** Although
the Louisiana Third Circuit found the noise a nuisance, there was
no evidence of depreciation of property values, no damage to
vehicles from sandblasting, and the natural servitude of drain was
not made more burdensome by the City’s action.

All the putative plaintiffs who have testified in this case,
including Mrs. Martello, are attempting to make claims for
damages based on nuisance, inconvenience, and minor business
expense associated with the boil order, such inconvenience is
usually not enough to award damages against the alleged offending
party.’ In Barrett, a plaintiff's claims for mental anguish,
respiratory disease, inconvenience, and diminution of property
value due to a nearby plant construction were rejected.

The Third Circuit Court of Appeal upheld the jury verdict
which rejected plaintiff's claims that alleged noxious fumes from
a nearby hazardous waste site caused his damages.*° In the Bartlett
case, one of the plaintiffs testified that smells from the adjacent
hazardous waste facility disturbed his sleep, burned his eyes, and
occasionally made him dizzy. The large trucks passing in front of
his house would track mud and clay on his road, and on one
particular occasion the smell was so bad that it "knocked him to his
knees". Despite this compelling testimony, and much like Mrs.
Martello and the purported class representatives in this case, the
plaintiff never sought medical treatment for alleged medical
problems associated with the smells. No complaints of residual
effects after the odor problem disappeared were made by the
residents, and the Jury found no damages.

The Third Circuit Court of Appeal has held that the

34 Stewart v. City of Pineville, 511 So.2d 26 (La. App. 3Cir. 1987).

35 Barrett v. T.L. James & Co., 671 So.2d 1186 (La. App. 2Cir. 1996)
Writ denied 674 So.2d 973 (La. 1996).

3 © Bartlett v. Browning-F. erris Industries, Chemical Services, Inc., 683
So.2d 1319 (La. App. 3Cir. 1996) overruled on other grounds 759 So.2d 755

(La. 11/12/99).

22

defendant/owners of excavation pits were not liable to the plaintiffs
for mental anguish suffered strictly as a result of property
damage.°” The Court upheld the property damage award related to
excessive noise, fumes, and dirt caused by the defendant’s business,
but rejected plaintiff's claims for damages related to mental
anguish suffered in conjunction with the property damage.

The Claims asserted in this case are solely for mental
anguish, nuisance, and inconvenience. These types of claims have
consistently been rejected when they were made without any
associated physical damages.

The Town of Ferriday’s Exception of No Cause/No Right
of Action cuts right to the heart of this case in the sense that
plaintiffs’ claims for nuisance alone are not supportable when they
are not accompanied by physical damage to either their persons or
their property. The Town did not place a Boil Order on its citizens,
that restriction was imposed by the Department of Health and
Hospitals®.

The issue of turbidity or water clarity was the only reason
that DHH issued the Boil Notice. There was never an issue of
Ferriday water being toxic or non-consumable. The Exception of
No Cause/No Right of Action should have been granted by the
Trial Court, the suit against the Town should have been dismissed.

Alternatively, the Town’s providing water to its citizens is
a discretionary function, and therefore the Town is protected by
Discretionary Act Immunity. By alleging strict liability Mrs.
Martello has placed the issue of Discretionary Act Immunity at the
forefront of her suit. Discretionary Act Immunity is governed by
La. R.S. 9:2798.1 as follows:

F. "Liability shall not be imposed on public
entities or their officers or employees based
upon the exercise or performance or the
failure to exercise or perform their policy

37 Begnaud v. Camel Contractors, Inc., 721 So.2d 550 (La. App. 3Cir.
1998).

38No claim has been asserted by the putative plaintiffs against the
Louisiana Department of Health and Hospitals.

23

making or discretionary acts when such acts
are within the course and scope of their
lawful powers and duties."

The Town has no statutory or jurisprudential duty to provide
its citizens with drinking water. The fact that such a decision was
made indicates its discretionary nature. Providing of fluoride to a
municipal water supply, has been found a "discretionary act", and
related to the "health, safety, convenience, and general welfare" of
its citizens.*” Further, a DHH decision not to warn the general public
of bacteria dangers related to the ingestion of raw oysters was
deemed discretionary, and subject to immunity.*° A Dock Board’s
decision to restrict fishing in certain areas of Lake Pontchartrain was
deemed discretionary.*' Finally, the Louisiana Second Circuit Court
of Appeal held that a municipality’s decision to apply the proceeds
ofan electricity rebate to capital improvements of the electrical plant
rather than distribute the proceeds to utility customers was soundly
within the City’s discretion and legislative authority.

A governmental entity’s choice to provide water to its |
citizens should protect it from suit. The Courts should not restrict
legislative discretion in policy formation or its implementation by
imposing tort liability for discretionary decisions.” | When
discretion is involved, the Court must determine whether that
discretion is the kind which is shielded by the Exception; i.e., one
that is grounded in social, economic, or-political policy.“ The
providing of drinking water by the Town of Ferriday is governed by
Louisiana Revised Statutes, 33:3811 through 33:3837. Public

39 Attaya v. Town of Gonzales, 192 So.2d 188 (La. App. 1Cir. 1966).
“0 Simeon v. Doe, 618 So.2d 848 (La. 1993).

*| Boguille v. Chambers , 685 So.2d 582 (La. App. 4 Cir. 12/11/96).
*? Michael v. City of Minden, 704 So.2d 409 (La. App. 2 Cir. 1997).

3 Hardy v. Bowie, 744 So.2d 606, 613 (La. 1999).

" Hardy v. Bowie, Supra citing Berkovitz v. U.S., 486, U.S. 531, 108
S.Ct. 1954, 100 L. Ed. 2d 531 (1988).

24

utilities are governed by La. R.S. 33:4161 et. seq. The Town is
entitled to the protection of Discretionary Act Immunity contained
in La. R.S. 9:2798.1 because providing water to its citizens is a
discretionary act related to the social, economic and political
policies of health, safety and general welfare. Mayor Montgomery
testified that the Town had the sole discretion to place its funds
where necessary to run the Town and provide services to its
citizens, including providing water to its citizens. For these
reasons, it is respectfully requested that this Honorable Court grant
the Town’s writ application, and reverse the lower courts’ decisions
denying the Town’s exceptions.

(2) This case is not suitable as a class action because it does
not advance or preserve the intertwined goals of effectuating
substantive law, judicial efficiency, and avoiding undesirable

and unfair results to the parties.

The Louisiana Supreme Court has held that, under certain
circumstances, the existence of individual causation and liability
issues as to each potential class member may so predominate over
common issues that class certification is inappropriate.** The case
at bar is such a case when due process rights of potential class
members are implicated by the lone plaintiff and class
representatives’ unique damage issues. Class certification in
Louisiana is recognized in the Duhe v. Texaco, Inc.“ decision as
being virtually identical to the requirements of Federal Rule 23.”
This Honorable Court’s decisions to decertify class actions
considering the Rules Enabling Act’s admonition that rules of
procedure shall not abridge, enlarge or modify any substantive

4s Bernard v. Thigpen ConstructionCompany, et al, 97-1877 (La.
11/21/97) 702 So.2d 1387.

4© Duhe v. Texaco, Inc. 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d
1070.

47 Acts 1997, No. 839, §1, eff. July 1, 1997.

25

—eo~

right, should be considered in this case.

The primary issue considering Article 591 in this case is
whether common questions of law or fact predominate over
individual issues and whether the class action is superior to other
procedural methods available. This requirement significantly limits
class actions, considering the additional Louisiana Code of Civil
Procedure’s restriction that certification not depend on individual
proof unique to individual class members.” In this case, class
representatives report business losses, but the vast majority of the
claims concern minor misery, nuisance and aggravation, without
further showing of damages. Class actions do not serve to
effectuate substantive law or the policies underlying causes of
action when, by use of the procedure, claims are given substance
that, when pursued individually, have none under the law. This is
the distortion effect recognized in McCastle, Ford, and Hampton.”
Despite their recitation of certification requirements, none of the
lower courts made any serious inquiry into the substantive law
applicable to the purported class of aggrieved persons, or the effect
of the Town’s affirmative defense of Discretionary Act Immunity,
the individual issue predominance and availability of alternative
joinder methods.

One undesirable end specifically identified by the
Louisiana Supreme Court in Ford v. Murphy Oil USA, Inc.,°'
where a class of 4,009 persons claiming minor physical injuries
caused by the emissions from four petrochemical plants was

8 Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999) citing Amchem
Products v. Windsor, 521 U.S. at p. 613 (1997).

9 Article 591C. es

This analysis to determine whether the class action effectuates the
policies underlying substantive law does not conflict with the admonition that
district courts not be concerned with whether plaintiffs will prevail in the merits
or even if they have asserted a cause of action. See, e.g., Hampton, 730 So.2d
at6 1093; Doerr v. Mobil Oil Corporation, 01-0775 (La.App. 4Cir. 2/27/02),
2002 WL 334679 (not yet released for publication), both citing Miller v.
Mackey International, Inc., 452 F.2d 424, 427 (5* Cir. 1971).

5196-2913 (La. 9/9/97), 703 So.2d 542.

26

decertified because individual issues of causation predominated
over common issues of the defendants’ alleged fault as follows:
In the context of mass tort class actions,
certification dramatically affects the stakes for
defendants. Class certification magnifies and
strengthens the number of unmeritorious claims.
Aggregation of claims also makes it more likely the
defendant will be found liable and results in
significantly higher damage awards.
In addition to skewing trial outcomes, class
certification creates insurmountable pressure on
defendants to settle, whereas individual trials would
not. The risk of facing an all-or-nothing verdict
presents too high a risk, even when the probability
of an adverse judgment is low.”

That danger is echoed in Judge Kuhn’s concurring opinion in
Hampton, cited and discussed above. The Louisiana courts’
collective conclusions affirming certification resulted from
insufficient analysis and an insufficient exercise of discretion.

CONCLUSION

The plaintiff, and putative class representatives,
are straining to characterize this case of" glorified misery,"
and turn it into a "mass disaster tort suit" like the McCastle
y. Rollins Environmental Services of Louisiana, Inc.”
case. In the Rollins case, 4,000 residents sustained minor
and temporary physical injuries allegedly caused by the
actions of a single defendant who polluted the air that
purported class members all breathed. Except for the
identification of the Town’s water plant as the sole source
of water in Ferriday, there are no other similarities between
the case at bar and the McCastle v. Rollins case. Class

. 2 Td. , quoting Castano v. American Tobacco Co., 84 F.3d 734, 746
(5Cir. 1996)(citations omitted). The last sentence of the quoted paragraph reads:
"These settlements have been referred to as judicial blackmail.”

53456 So.2d 612 (La. 1984).

27

a

members in McCastle actually breathed polluted air and
sustained actual physical injury, however minor or
temporary. In the case at bar, there has been no evidence
whatsoever that the Town’s water was polluted, that any of
the residents drank it during the Boil Notice, or were
injured even if they had. To the contrary, Town employees
testified that they brushed their teeth in the water and
bathed in it during the Boil Notice, without suffering any
harm. :

This case involves the assertion of what amounts
essentially to individual claims of frustration, annoyance,
and inconvenience, resulting from years of alleged
uncontrollable levels of Manganese, over which the Town,
Owen & White, and US Filter had no control. Manganese,
while unpleasant, is not a health hazard, and is not
something that the Town could control in Marengo Bend,
the source of its water. The five class representatives may
be expressing frustration at the fact that the Boil Order was
the "final straw". Irritation over having to boil drinking
water does not justify a class action lawsuit. However
creative the attorneys can be in characterizing this case as
a mass tort case, this Honorable Court should look at
Louisiana and federal jurisprudence to determine whether
there is any merit to what amounts to a glorified nuisance
claim. If the class certification is allowed to stand, then the
floodgate of class action suits will open, allowing persons
with no damages to extort settlements from small
municipalities across Louisiana and this Country. Most
small municipalities will not be able to afford to provide
basic services to their residents. Who then will benefit
from class action suits? The people purportedly whose
rights are being trampled will experience firsthand
hardship as a result of class action lawsuits.

For the foregoing reasons, the Town of Ferriday
Prays that this writ application be granted for full briefing
and argument, or alternatively, that a peremptory writ be
issued reversing the decisions of the Louisiana courts, de-
certifying this class, and remanding the case for further
proceedings as an ordinary action.

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Respectfully Submitted,

STACY C. AUZENNE, P.L.C. (#21995)
RANDALL B. KEISER, P.L.C (#20894)

PAUL BOUDREAUX, JR. P.L.C. (#3303)
KEISER, AUZENNE & BOUDREAUX, L.L.C.
Attorneys at Law -

P.O. Box 12358

5216 Rue Verdun

Alexandria, Louisiana 71315-2358

Telephone: (318) 443-6168

Fax: (318) 443-6211

ATTORNEYS FOR THE TOWN OF
FERRIDAY, WRIT APPLICANT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0546%3A1. Public record. Not legal advice.