Appendix — Town of Ferriday v. Martello

reme Court, U.S

(4) LE D

92 552SEP 4- mm

SUPREME COURT OF THO RPYELEDISTATES.ERR

NO.

GLORIA B. MARTELLO

Plaintiff

VS.

TOWN OF FERRIDAY, OWEN & WHITE, INC.

And US FILTER WASTEWATER GROUP, INC.

Defendants

Appendix to the Petition for Writ of Certiorari to the Court of

Appeals of Louisiana, Third District

4 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

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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, r

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.

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Appendix A Appendix B Appendix C

FORM: 305 SEVENTH JUDICIAL DISTRICT

COURT

{NOTICE OF SIGNING PARISH OF CONCORDIA

OF JUDGMENT IN

COMPLIANCE WITH STATE OF LOUISIANA

ART. 1913 OF THE

LA CCP]

36358-A

GLORIA B. MARTELLO

V. CERTIFIED COPIES ATTACHED

REASONS FOR JUDGMENT

AND

CITY OF FERRIDAY ET AL JUDGMENT ON CLASS

CERTIFICATION

TO: RANDALL B. KEISER

ATTORNEY AT LAW

P O BOX 12394

ALEXANDRIA LA 71315

PARISH OF: RAPIDES

You are hereby notified that a JUDGMENT was signed on July

25, 2001, in the above entitled and numbered cause.

The attached is a true and correct copy of said judgment.

Issued by the Clerk of Court on July 26, 2001.

Deputy Clerk of Court for

Clyde R. Webber, Jr. Clerk of Court

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CERTIFICATE OF MAILING

I, Sue Cole, Deputy Clerk of Court in and for the Pansh of

Concordia, State of Louisiana, Seventh Judicial Distnct Court,

hereby certify that on JULY 26, 2001, a certified copy of the

JUDGMENT in the above styled and numbered cause was mailed

to above counsel of record, for the party herein named

Deputy Clerk of Court for

Concordia Parish, Louisiana j

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GLORIA B. MARTELLO, 774 JUDICIAL DISTRICT COURT

Plaintiff,

VERSLS PARISH OF CONCORDIA

CITY OF FERRIDAY, and STATE OF LOUISIANA

OWEN and WHITE, LN‘

Defendants CIVIL ACTION: 36.358, A

FILED

JUDGMENT >

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'T IS ORDERED, ADJUDGED, AND DECREED that the

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ass Action and of their nght to participate tn it. La. C.C.P. art. 5

ne Ourt Ss findings Of fact and CONCiUSIONS OT law pertaining

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‘tself. conducted for four (4) days, with all witnesses testifying live

before the Court (for a total of approximately 30 hours of live

advantage of trying the Class members’ common issues of liability

and fault agginst all three defendants in one common trial, at one

time. This is especially true since there was no expert testimony

ffered by-any party at the Class Certification hearing on the cause

»f the Ferriday water problems or on the cause of the 1999 "Bol

Water CriSis It is clear to the Court that any such expert testimony

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yuld be common [0 4ii Class members, and tnat tying tne

Jetendants liability and tauit in one common {141 IS superior to the

ther availabDie procedural methods of either mass joinder and

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consolidation, OF repetitive individuai tr1ais

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Ihe Court finds, terei re, Tal te C eria tr Louisiana

is af Ciwl Procedure article 591(B 2\ which reanires that th

ce i y Procedure articie 97 i\ DO) which requires tnat the

mmon issues must predominate over the individual ones, and

which also requires that the Cciass action procedure must De superior

teunnao thi

ther available procedural methods for managing and trying Mus

~ase. is satisfied in this case as to all three defendants. The Court's

findings of fact and conclusions of law pertaining to this criteria are

contained in the Reason for Judgment assigned this same date.

IT IS FURTHER ORDERED and the evidence in the

record satisfies the Court that it is appropriate and reasonable for the

Class to be defined as

All persons, businesses, or entities who belong to at least

one of the following give groups, and who, as a direct result

of receiving their water from the Town of Ferriday 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 incomes:

loss of business income; annoyance, discomfort, and

inconvenience; personal injury including fear of contraction

of disease or illness; or property damage

Residents of the Town of Ferriday or any adjacent

community at any time between August 20, 1999 and

December 22, 1999, and who received their water supply to

that residence from the Town of Ferriday Water Plant:

2 Owners and/or operators of businesses in the Town of

Ferriday or any adjacent community at any time between

August 20, 1999 and December 22, 1999, and that received

1

their water supply to that business from the Town of

Lessors of residential and/or commercial property located in

the Town of Ferriday or any adjacent community at any time

between August 20, 1999 and December 22, 1999. and that

received their water supply to that property from the Town

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of Ferriday Water Plant;

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4. Employees of businesses in the Town of Fernday or any

adjacent community at any time between August 20, 1999

and December 22, 1999, and that received their water

supply at their place of employment from the Town of

Ferriday Water Plant; and

5. School students or patients in health care facilities who were

required to be in the Town of Ferriday at any time between

August 20, 1999 and December 2, 1999, and that received

their water supply at their school or health care facility from

the Town of Ferriday Water Plant.

The Court’s findings of fact and conclusions of law

pertaining to the Class definition are contained in the Reasons for

Judgment assigned this same date.

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IT IS FURTHER ORDERED and the Court finds that the

following five (5) persons, who testified about their claims and their

desire to be appointed as Class Representatives, be and hereby are

confirmed as representatives of the Class certified herein:

l. Gloria Martello

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Thomas Massey

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Shelby Guidry

4. Mildred McKinney

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Christine Roberts

The evidence that was presented at the Class Certification

hearing satisfies the Court that the claims of the five (5) Class

Representatives and the claims of the absent Class members (defined

above) have a common character that predominates over their

individual differences, and that the claims of these Class

Representatives are typical of the claims of the members of the Class

certified herein. The Court also finds that none of the above-named

Representatives has any interest in the outcome of this Class Action

litigation that is adverse to the interest of the absent members of the

Class, and that each of the Class Representatives have demonstrated

that they are able and willing to serve in the capacity of a Class

Representative. The Court’s findings of fact and conclusions of law

pertaining to this criteria are contained in the Reasons for Judgment

assigned this same date.

IT IS FURTHER ORDERED and the Court finds that the

following attorneys have the necessary skills, background, expertise

and experience, and absence of any conflict of interest, in order to be

designated as Class Counsel, and are hereby appointed as such: 1.

Charles S. Norris, Jr., Liaison Counsel for the Class, of Vidalia,

Louisiana; and 2. Stephen B. Murray; 3. Linda S. Harang; and 4.

Julie A. Jacobs, all of the Murray Law Firm, New Orleans,

Louisiana. The Court’s findings of fact and conclusions of law

pertaining to this criteria are contained in the Reasons for Judgment

assigned this same date.

IT IS FURTHER ORDERED that Class Counsel are

hereby authorized to give proper Notice, as required by law and

consistent with this Court’s Reasons for Judgment, to all putative

Class members, of the pendency of this Class Action and of their

rights to participate in it. The Court must review and approve the

content, form, and publication details of said Notice.

IT IS FURTHER ORDERED that all communications with

the Class Representatives and the putative Class members regarding

their claims in this Class Action must first be presented to the Court

and receive the Court’s prior approval. Communications between

Class Counsel and the Class Representatives and between Class

Counsel and their own clients who are putative Class members are

not subject to this requirement.

IT IS FURTHER ORDERED that the Court finds that the

Exception of No Cause of Action of the Town of Ferriday,

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challenging the plaintiff's request for class certification (which

originally was brought as a exception of no nght of action, but was

conformed at the beginning of the Class Certification hearing by

consent of all parties and with leave of Court into the Exception of

No Cause of Action), is hereby OVERRULED for all the same

Reasons for Judgment assigned herein.

JUDGMENT READ, RENDERED AND SIGNED at

Vidalia, Louisiana, this day of July, 2001.

HON. KATHY JOHNSON

DISTRICT JUDGE

7™ Judicial District Court

CLERK OF COURT:

SERVE ALL PARTIES WITH THIS JUDGMENT,

AND WITH THE REASONS FOR JUDGMENT

ASSIGNED THIS SAME DATE.

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Appendix B Appendix C

GLORIA B. MARTELLO, 7™ JUDICIAL DISTRICT COURT

Plaintiff,

VERSUS PARISH OF CONCORDIA

CITY OF FERRIDAY,and STATE OF LOUISIANA

OWEN and WHITE, INC.,

Defendants CIVIL ACTION: 36,358, A

FILED:

REASONS FOR JUDGMENT

Pursuant to its authority and duty under article 592(A)(3 a)

of the Louisiana Code of Civil Procedure, this Court held an

evidentiary hearing on the plaintiff's Motion for Class Certification,

and on the Town of Ferriday’s Exception of No Cause of Action

challenging the plaintiffs request for certification. The hearing was

held in Concordia Parish, Vidalia, Louisiana, for four (4) days, on

April 30, 2001, and on May 1, 3, and 4, 2001. All testimony was

presented live; none was presented by deposition. The Court heard

testimony from twelve (12) witnesses; 56 exhibits were accepted into

evidence, 10 exhibits were proffered.

Prior to the hearing, the parties entered into a Stipulation

(which is filed into the record) as to the requirements of numerosity

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and adequacy of representation by the Class members and their

counsel. The Court considers this Stipulation binding on the parties

but not on the Court. See Cotton v. Gaylord, 96-1958, at 12-13 (La.

App. 1* Cir. 3/27/97); 691 So.2d 760, 768. The Court, therefore, has

conducted its own review of the evidence on these two critena.

The issues before the Court at the Class Certification hearing

were:

1. Whether the proposed Class satisfies the numerosity

requirement. La. C.C.P. art. 591(A)(1).

2. Whether the proposed Class satisfies the commonality

requirement. La. C.C.P. art. 591(A)(2).

3. Whether the proposed Class satisfies the typicality

requirement. La. C.C.P. art. 591(A)(3).

4. Whether the proposed Class satisfies the adequacy

requirement. La. C.C.P. art. 591(A)(4).

5. Whether the proposed Class is defined objectively in terms

of ascertainable criteria. La. C.C.P. art. 591(A)(5).

6. Whether the proposed Class satisfies one or more of the

criteria of article 591(B). La. C.C.P. art. 591(B).

The Court finds that all of the statutory requirements for Class

Certification are met in this case. The Court, by its Judgment entered

this date, certifies this case for management and trial as a Class

12

Action, under article 591(B)(3), with the Class defined as:

All persons, business, or entities who belong to at least of the

following five groups, and who, as a direct result of receiving

their water from the Town of Ferriday 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 of the Town of Ferriday or any adjacent community

at any time between August 20, 1999 and December 22, 1999,

and who received their water supply to that residence from the

Town of Ferriday Water Plant;

2. Owners and/or operators of businesses in the Town of

Ferriday or any adjacent community at any time between August

20, 1999 and December 22, 1999, and that received their water

supply to that business from the Town of Ferriday Water Plant;

3. Lessors of residential and/or commercial property located in

the Town of Ferriday or any adjacent community at any time

between August 20, 1999 and December 22, 1999, and that

received their water supply to that property from the Town of

Ferriday Water Plant; and

4. Employees of businesses in the Town of Ferriday or any

adjacent community at any times between August 20, 1999 ana

December 22, 1999, and that received their water supply at their

place of employment from the Town of Ferriday Water Plant.

5. School students or patients in health care facilities who were

required to be in the Town of Ferriday at any time between

August 20, 1999, and December 22, 1999, and that received their

water supply at their school or health care facility from the Town

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of Ferriday Water Plant.

The Court’s findings of fact and conclusions of law upon which

its Judgment are based are as follows:'

Findings of Fact

1. The Town of Ferriday, Louisiana, is located in Concordia Parish,

Louisiana, and at all relevant times has had a population of

approximately 4,500 residents. [Testimony of William McKeel,

Odeal Montgomery, Plaintiff's Ex. 278]

2. Atrelevant times, the residences and businesses of the Town of

Ferriday, and of the adjacent unincorporated areas, including

Red Gum and Lake St. John, received their potable (i.e.

drinkable) water supply from the Town of Ferriday’s water

treatment plant. [Testimony of William McKeel, Odeal

Montgomery, Michael Cazes, William Derrick Wilson]

l

To the extent that the following findings of ‘act include

conclusions of law or mixed findings of fact and conclusions

of law, those findings are hereby adopted by the Court as

conclusions of law. Similarly, to the extend that the

conclusions of law contain findings of fact or mixed

conclusions are hereby adopted by the Court as findings of

fact.

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At all relevant times, the Town yf Fernday has had only one

water treatment plant that supplied potable water to me

residences and businesses of Ferriday and the adjacent

unincorporated areas, including Red Gum and Lake St. John

Testimony of William McKeel. Odeal Montgomery, Michae

Cazes. William Derrick Wilson]

water to the residences and businesses f Fernday and the

adjacent unincorporated areas, including Red Gum and I ake St

John. and billed its water customers monthly for the water they

used. [Testimony of Glona Martello, Tommy Massey, Shelby

Guidry, Mildred McKinney, Christine Roberts]

The Town of Fernday contracted with the Baton Rouge

engineering firm of Owen & White, Inc., in October 1978 for the

purpose of designing a new water treatment plant for the Town

of Ferriday, and for the adjacent communities that are supplied

by the Town’s water treatment plant. [Testimony of Eugene

Owen: Plaintiff's Ex. 152]

Owen & White investigated whether the "old" water treatment

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was not cost-effective for the Town of Fernday to do so

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Testimony of Eugene Owen

wen & White recommended that the Town of Fernday build a

new treatment plant, and the Town accepted th

Owen & White recommended the use of Old River, also called

Marengo Bend, as the source of the raw water for the new

treatment plant, and the Town of Fermday accepted the

ecommendation. [Testimony of Eugene Owen]

The water in Marengo Bend comes from the Mississippi River

Testimony of Eugene Owen, Bryant Hammett]

In February 1982, Owen & White recommended a conventional

type water treatment plant to the Town of Fernday. This design

used, as its primary filtration components, tube settlers and a

sedimentation process. [Testimony of Eugene Owen; Plaintiff's

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In the Fall of 1982, Owen & White changed its proposal an d

recommended that the Town of Ferriday consider using, as the

primary filtration component of its new water treatment plant, a

packaged water treatment plant designed and manufactured by

Neptune Microfloc (the corporate predecessor in interest to

defendant USFilter Water Waste Group, Inc.). [Testimony of

Eugene Owen; Plainti! fs Ex. 136]

In order to determine whether Neptune Microfloc equipment

would adequately treat and filter the raw water in Marengo

Bend, Neptune proposed performing a “pilot water plant” study,

using a scale model of its equipment at Marengo Bend for a

period of one week [Testimony of Eugene Owen; Plaintiff's Ex

1 99)

Owen & White advised the Town of Ferriday to agree to the

"pilot water plant” study, and the Town agreed. [Testimony of

Eugene Owen, Plaintiff's Ex. 130, 136]

The "pilot water plant” study was performed for 2-3 days in May

1983 at Marengo Bend [Testimony of Eugene Owen]

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Neptune Microfloc gave Owen & White a summary of its

findings from the "pilot water plant” study in June 1983, and

reported that its equipment would be able to successfully treat

and filter the water from Marengo Bend. [Testimony of Eugene

Owen; Plaintiff's Ex. 41]

Based on the outcome of the "pilot water plant” study, Owen &

White recommended that the Town of Fernday accept its design

for the new water treatment plant incorporating the Neptune

Microfloc packaged water treatment plant, and the Town

accepted the recommendation. [Testimony of Eugene Owen]

The new water treatment plant was constructed and began

operating in December 1988. Since that time, it has been the

only water treatment plant that supplies potable water to the

residences and businesses of the Town of Fernday and the

adjacent unincorporated areas, including Red Gum and Lake St.

John. [Testimony of William McKeel, Odeal Montgomery,

William Dernck Wilson, Michael Cazes; Plaintiff's Ex. 302,

305]

In August 1999, the Louisiana State Department of Health and

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21.

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Hospitals issued for a "Boil Water Advisory" and several days

later a "Boil Water Notice" for everyone who received their

potable water from the Town of Ferriday’s water treatment plant.

(Testimony of Michael Cazes; Owen & White Ex. 5]

No one was excluded from the "Boil Water Advisory" or from

the "Boil Water Notice". All residences and businesses that were

supplied by the Town of Ferriday’s water treatment plant were

included. [Testimony of Michael Cazes]

The Louisiana State Department of Health and Hospitals’ "Boil

Water Advisory" and "Notice" instructed everyone using the

Town of Ferriday’s water supply that before they could use the

Town’s water for drinking, cooking, washing hands, or bathing,

it first had to be brought to a "rolling" boil for at least 5 minutes.

[Testimony of Michael Cazes; Owen & White Ex. 5]

The Louisiana State Department of Health and Hospitals gave

the same set of instructions for the "Boil Water Advisory" and

"Notice" to all residences and businesses that were supplied by

the Town of Ferriday’s water treatment plant. [Testimony of

Michael Cazes]

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. The "Boil Water Advisory" was issued on the same day for all

residences and businesses that were supplied by the Town of

Ferriday’s water treatment plant. [Testimony of Michael Cazes]

. The "Boil Water Notice" was issued on the same day for all

residences and businesses that were supplied by the Town of

Ferriday’s water treatment plant. [Testimony of Michael Cazes]

. The "Boil Water Notice" was lifted on the same day, December

22, 1999, for all residences and businesses that were supplied by

the Town of Ferriday’s water treatment plant. [Testimony of

Michael Cazes].

. During the approximately four (4) months that the Ferriday

water customers were under the "Boil Water Notice", the

National Guard supplied potable water to the Town of Ferriday

in tanker trucks. Residents could draw water from the trucks into

jars, jugs, bottles, buckets, or any other type of container.

[Testimony of Odeal Montgomery, Gloria Martello, Mildred

McKinney, Tommy Massey].

. Mrs. Odeal Montgomery, who was the Mayor of the Town of

Ferriday during the four (4) months of the "Boil Water Notice",

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28.

29.

30.

described the "Boil Water Notice" as "perilous times".

[Testimony of Odeal Montgomery, Plaintiff's Ex. 319]

Gloria Martello is a life-long resident of the Town of Ferriday.

She is the owner and operator of Brocato’s Restaurant in

Ferriday. At all relevant times, the water at her home and her

business was supplied by the Town of Ferriday’s water treatment

plant. [Testimony of Gloria Martello; Plaintiff's Ex. 292, 293]

Mrs. Martello testified that during the "Boil Water Notice" she

could not use the salad bar in her restaurant because she could

not use her ice maker to supply the ice. She bought ice every

day to serve in drinks, and she bought water or paid someone to

haul water from the National Guard truck every day for cooking

and washing dishes. She testified that she could not use her soft

drink dispenser because it is connected to her water line; so she

bought canned soft drinks for her customers. [Testimony of

Gloria Martello]

Mrs. Martello testified that her claims include: mental and

emotional distress and stress; non-reimbursed business expenses,

loss of -business income; annoyance, discomfort, and

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inconvenience. She also testified about her understanding of a

class action and the duties and responsibilities of a Class

Representative. [Testimony of Gloria Martello]

. Tommy Massey is a resident of Vidalia, Louisiana, and for the

past 28 years has been the Administrator of Heritage Manor

Nursing Home in the Town of Ferriday. At all relevant times, the

water at the Heritage Manor Nursing Home was supplied by the

Town of Ferriday’s water treatment plant. [Testimony of Tommy

Massey]

. Mr. Massey testified that during the "Boil Water Notice" he and

his staff could not use the water supply in a routine, ordinary

manner. Mr. Massey testified about the problems he and his staff

had with cooking and food preparation, with bathing and

cleaning the residents, and doing all the laundry every day.

[Testimony of Tommy Massey]

. Mr. Massey testified that his claims include: mental and

emotional distress and stress; non-reimbursed business expenses;

and annoyance, discomfort, and inconvenience. He testified

about his understanding of a class action and the duties and

22

34.

33.

36.

responsibilities of a Class Representative. [Testimony of Tommy

Massey]

Shelby Guidry is a resident of Ridgecrest, Louisiana, and for the

past nine (9) years she had been the owner and operator of

Guidry’s Laundromat in the Town of Ferriday. At all relevant

times, the water used at Guidry’s Laundromat was supplied by

the Town of Ferriday’s water treatment plant. [Testimony of

Shelby Guidry; Plaintiff's Ex. 294]

Mrs. Guidry testified that during the "Boil Water Notice" she

was not able to use her special water filtration system in the way

it was designed to be used. Her customers had problems with the

water staining their clothes. When this happened, Mrs Guidry re-

washed their clothes at her expense. She testified that she lost

business during the "Boil Water Notice" due to the water

problems. [Testimony of Shelby Guidry]

Mrs. Guidry testified that her claims include: mental and

emotional distress and stress; non-reimbursed business expenses,

loss of business income, annoyance, discomfort, and

inconvenience; and property damage to her filtration system. She

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testified about her understanding of a class action and the duties

and responsibilities of a Class Representative. [Testimony of

Shelby Guidry]

. Mildred McKinney is a resident of the Red Gum area of

Ferriday, Louisiana, and works at the Wal-Mart in the Town of

Ferriday. At all relevant times, the water at Mrs. McKinney’s

home and the business where she works was supplied by the

Town of Ferriday’s water treatment plant. [Testimony of

Mildred McKinney; Plaintiff's Ex. 297]

. Mrs. McKinney testified that during the "Boil Water Notice" she

either bought water at Wal-Mart for her family, or she hauled

water from the National Guard tank truck or from the house of

a relative who lives several miles outside of Ferriday. She

testified that she had problems doing her family’s laundry,

cooking, and bathing. [Testimony of Mildred McKinney]

. Mrs. McKinney testified that her claims include: mental and

emotional distress and stress; non-reimbursed personal expenses;

annoyances, discomfort, and inconvenience; and fear of disease

or illness particularly for her children and her disabled husband.

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40.

41.

She testified about her understanding of a class action and the

duties and responsibilities of a Class Representative. [Testimony

of Mildred McKinney]

Christine Roberts is now a resident of Natchez, Mississippi.

When the "Boil Water Notice" went into effect, Mrs. Roberts

lived in the Town of Ferriday with her husband and her four

children. They owned a home subject to a mortgage. At all

relevant times, the water at their home in Ferriday was supplied

by the Town of Ferriday’s water treatment plant. [Testimony of

Christine Roberts; Plaintiff's Ex. 296]

Mrs. Roberts testified that within a few days after the "Boil

Water Notice" started, she and her family left Ferriday because

of the hardships that she claims were caused by the water

problems. They moved into a vacant, family-owned home in

Natchez, Mississippi. She testified that they commuted between

Natchez and Ferriday to get clothes, check on their mail, get the

children’s toys, and check on their house. They still own the

house in Ferriday. [Testimony of Christine Roberts]

42. Mrs. Roberts testified that her claims include: mental and

25

43.

45.

46.

emotional distress and stress; non-reimbursed personal expenses;

annoyance, discomfort, and inconvenience; and fear of disease

or illness. She testified about her understanding ofa class action

and the duties and responsibilities of a Class Representative.

[Testimony of Christine Roberts]

Each Class Representative testified that he or she is willing and

able to perform the duties and responsibilities of a Class

Representative. [Testimony of Gloria Martello, Tommy Massey,

Shelby Guidry, Mildred McKinney, Christine Roberts]

Within six (6) months after the new water treatment plant began

operating, the Ferriday water customers complained about the

quality of the water being produced by the new plant.

[Testimony of Eugene Owen, Odeal Montgomery, Bryant

Hammett; Plaintiff's Ex. 12/180; 184]

The source of the customers’ complaints was determined to be

an excessively high level of manganese in the raw water of

Marengo Bend. [Testimony of Eugene Owen; Plaintiff's Ex. 13]

The excessively high level of manganese in the water in

Marengo Bend was not detected in any of Owen & White’s

26

47.

48.

49.

50.

51.

water quality studies. [Testimony of Eugene Owen, Plaintiff's

Exh. 184]

The excessively high level of manganese in the water in

Marengo Bend was not reported by Neptune Microfloc in its

summary of the May 1983 "pilot water plant” study. [Testimony

of Eugene Owen; Plaintiff's Ex. 184]

In 1991, Owen & White wrote the Town of Ferriday and

reported that the water plant was in "deplorable" condition due

to improper maintenance and repair. [Testimony of Roy

Waggenspack; Plaintiff's Ex. 166]

In 1994, the Town of Ferriday hired Civil Engineer Bryant

Hammett to investigate the cause of the Town’s continuing water

problems. [Testimony of Bryan Hammett]

In 1996, the Town of Ferriday hired Owen & White to evaluate

the water plant and recommend what needed to be done to get

the plant in proper working condition. [Testimony of Eugene

Owen, Odeal Montgomery, Roy Waggenspack; Plaintiff's Ex.

277)

In August 1999, just one (1) or two (2) days before the "Boil

27

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Water Advisory" was issued, the Ferriday water plant

experienced a complete shut down, leaving all Ferriday water

customers without any water for three (3) days. [Testimony of

William McKeel, William Derrick Wilson]

At the time of the August 1999 water plant shut down, the Town

of Ferriday had not made all the repairs recommended by Owen

& White in 1996. [Testimony of Roy Waggenspack, William

Derrick Wilson]

At the time of the August 1999 water plant shut down, the Town

of Ferriday was using most of its Water Department budget on

the chemicals that were needed to treat the excessively high

levels of manganese, leaving no funds available for maintenance

or repairs. [Testimony of Odeal Montgomery, William Derrick

Wilson]

At the time of the August 1999 water plant shut down and the

issuance of the "Boil Water Advisory" and "Notice", William

Derrick Wilson was the only certified operator at the Ferriday

water treatment plant. [Testimony of William McKeel, William

Derrick Wilson]

28

Conclusions of Law

1. Numerosity

The testimony from Water Plant Superintendent William

McKeel and former Mayor Odeal Montgomery establishes that at all

relevant times there were approximately 4,500 residents in the Town

of Ferriday who received the water at their homes and businesses

from the Town of Ferriday’s water treatment plant. Additionally,

there are residents of the adjacent areas of Red Gum (such as

Mildred McKinney) and Lake St. John who receive their water from

the Town of Ferriday’s water treatment plant. This number of

persons, who claim that they were similarly affected by the 1999

water plant failure and the "Boil Water Notice" is sufficient to satisfy

the "numerosity" requirement. La. C.C.P. art. 591(A)(1).

A class action is appropriate whenever the interested parties

appear to be so numerous that separate suits would unduly burden the

courts, and a class action would "clearly be more useful and

judicially expedient than the other available procedures. "Cotton v.

Gaylord Container, 96-1958 at 14 (La. App. 1* Cir. 3/37/97);

691S0.2d 760, 769, writs denied, 97-0800 and 0830 (La. 4/8/97); 693

29

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So.2d 147. Our courts and our laws do not require a minimum

number of persons, nor do they set a maximum number. The

determination of whether this requirement has been fulfilled depends

on the facts and circumstances of each individual case. Cotton,

supra, 96-1958 at 14, 691 So. 2d at 768; Dumas v. Angus Chemical

Co., 25,632 at 6-7 (La. App. 2d Cir. 3/30/94); 635 So.2d 446, 450.

The Court finds that the testimony establishes that the facts and

circumstances of this case, and the number of persons and businesses

(at least 4,500) who claim that they were similarly affected by the

Town of Ferriday’s water problems in 1999, therefore, is sufficient

to satisfy the "numerosity" requirement. La. C.C.P. art. 591(A)(1).

2. Commonality

The Court heard testimony from witnesses whose homes are

supplied by the Town of Ferriday’s water treatment plant (Gloria

Martello, Christine Roberts, Mildred McKinney), or whose

businesses are supplied by the Town of Ferriday’s water treatment

plant (Gloria Martello, Shelby Guidry, Tommy Massey), or who

work at a business supplied by the Town of Ferriday’s water

treatment plant (Gloria Martello, Shelby Guidry, Tommy Massey,

30

Mildred McKinney).

All of these witnesses testified about the problems and

complaints they had with the water produced by the Town of

Ferriday’s water treatment plant, and with the problems they claim

they experienced during the four (4) months of the "Boil Water

Notice". The witnesses testified about the problems they had with

cooking, drinking, bathing, and doing laundry. Odeal Montgomery

(who a the Mayor when the Town was placed under the "Boil

Water Notice" in August 1999), described these four (4) months as

"perilous times". The Court finds all of these witnesses to be credible

and forthright in their esas.

At this time, the Court is not asked to decide whether these

claims are accurate, valid, or compensable. Nor is the Court asked at

this time to decide who or what contributed to any of the Town of

Ferriday’s water problems, the August 1999 "shut down", or the

August-December 1999 "Boil Water Notice". At this time, the Court

is only required to determine whether these claims have a common

character such that they_ satisfy the statutory requirement of

"commonality". La. C.C.P. art. 591(A)(2).

31

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All of the witnesses described having the same types of problems

during the "Boil Water Notice". They testified about the same types

of inconvenience, the same types of worries, the same types of stress,

the same types of non-reimbursed personal expenses, and the same

types of non-reimbursed business expenses.

Mr. Michael Cazes, an official with the Regional Office of the

Louisiana State Department of Health and Hospitals, testified that the

"Boil Water Notice" started on the same day for everyone, ended on

the same day for everyone, and that everyone was under the same set

of instructions about using the water for the entire period of time that

the "Boil Water Notice" was in effect. Mr. Cazes testified that even

though the water treatment plant was capable of producing water

after the initial 3-day "shut down" the water was not potable

(drinkable without first boiling it) until December 22, 1999, when

the State lifted the "Boil Water Notice".

Based on all of this testimony, the Court finds that the only

differences between the claims of these witnesses are differences of

degree and amount. The nature of their claims is so similar as to be

almost identical. In addition to the common nature of the witnesses’

32

claims, their testimony satisfies the Court that the claims about their

water problems originate from the same common source - the Town

of Ferriday’s water treatment plant. Therefore, if any defendant is

found to be liable to just one Class member due to that defendant’s

role in causing or contributing to the Class member’s water-related

complaints, then the finding of liability should be binding on that

defendant as to all the other similarly situated Class members,

without the need for every other Class member to have a trial on

those same issues.

The Court understands and recognizes that there will be

differences in the Class members’ claims in the degree and amount

of damages they seek, but the nature of their claims is common to the

entire Class. Some may only have claims for lost personal expenses,

whereas some may only have claims for lost business expenses, but

the Court considers these to be differences of degree or amount.

These individual differences in the exact type or amount of damages

does not preclude or defeat class certification. McCastle v. Rollins

Environmental Services of Louisiana, Inc., 456 So.2d 612, 616 (La.

1982); Livingston Parish Police Jury v. Acadiana Shipyards, 598 3

33

So.2d 1177, 1183 (La. App. 1* Cir.), writ denied, 605 So2d 1122 (La.

1992); Bartlett v. Browning-Ferris Industries Chemical Services,

Inc., 99-494 (La. 11/12/99); 759 So.2d 755. It has been established

that the existence of issues particular to individual members of the

class does not defeat commonality. McCastle, supra, 456 So.2d at

620.

The Court finds that the claims of the Class members have a

sufficient common character and are derived from a common source.

Their claims against the defendants are directed at the common

nature of the defendant’s conduct. The Court finds, therefore, that

the "commonality" requirement is satisfied in this case. La. C.C.P.

art. 591(A)(2).

3. Typicality

The "typicality" criteria is a relatively new statutory requirement

for certification. * Louisiana state courts, however, judicially adopted

this requirement years ago, so it is not new to Louisiana class action

?This requirement was included in the 1997 revisions and

amendments to the Louisiana class action articles, La. C.C.P. art.

591(A)(3) (eff. 7/1/97). It was not previously a statutory

requirement in Louisiana.

34

jurisprudence. See e.g. Adams v. CSX Railroads, 615 So.2d 476, 482

(La. App. 4* Cir. 1993); Dumas v. Angus Chemical Co., 25,632 at 6

(La. App. 2d Cir. 3/30/94); 635 So.2d 446, 450.

This criteria combines elements of commonality and adequacy

by requiring that the Class Representatives assert claims that are

typical or a cross-section of those asserted or raised by the rest of the

members of the Class. This criteria also includes a consideration of

the Class Representative’ claims to determine whether any are

adverse to or substantially different in general type from those

asserted by the rest of the Class.

In every class action, except those primarily seeking injunctive

relief, there are almost always differences between and among

members of the Class in the amount and degree of damages each

claims to have suffered. But these differences in degree or amount

are not typicality factors. Typicality is only concerned with the types

of claims being asserted, not with the degree or amount of damages

being requested. See Billieson v. City of New Orleans, 98-1232 at 17

(La. App. 4" Cir. 3/3/99); 729 So.2d 146, 157, writ denied, 99-0946

(La. 10/29/99); 749 So.2d 644.

35

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Each of the Class Representatives testified about the type and

nature of their claims:

Mrs. Martello testified that she experienced mental and

emotional distress and stress; non-reimbursed business expenses;

loss of business income; annoyance, discomfort, and inconvenience.

Mr. Massey testified that he experienced mental and emotional

distress; non-reimbursed business and personal expenses; and

annoyance, discomfort, and inconvenience. Mrs. Guidry testified that

she experienced mental and emotional distress and stress; non-

reimbursed business expenses; loss of business income, annoyance,

discomfort, and inconvenience; and property damage. Mrs. Roberts

testified that she experienced mental and emotional distress and

stress; non-reimbursed personal expenses, annoyance, discomfort,

and inconvenience. Mrs. McKinney testified that she experienced

mental and emotional distress and stress; non-reimbursed personal

expenses; annoyance, discomfort, and inconvenience; and fear of

disease or illness for her family.

Each of the Class Representatives also testified about their

residential or business relationship with the Town of Ferriday during

36

the "Boil Water Notice".

Mrs. Martello testified that she lives in the Town, owns and

operates 2 business in the Town, works in the Town, and owns

property in the Town. The water to her home and her business is

supplied by the Town of Ferriday water treatment plant. Mrs. Guidry

testified that she owns and cperates a business and property in the

Town and works in the Town. The water to her business is supplied

by the Town of Ferriday water treatment plant. Mr. Massey testified

that he operates a business in the Town and works in the Town. The

water to the business he operates is supplied by the Town of Ferriday

water treatment plant. Mrs. Roberts lived in the Town and still owns

property in the Town. The water to her home in Ferriday is supplied

by the Town of Ferriday water treatment plant. Mrs. McKinney lives

and owns property in the Red Gum area of Ferriday, and works in the

Town. The water to her home and the business where she works is

supplied by the Town of Ferriday water treatment plant.

The Court finds that the testimony of these Class Representatives

about the nature and type of their claims was direct and credible. It

was not emotional, exaggerated or contrived. They each genuinely

37

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expressed, in their own words, what they experienced during the

"Boil Water Notice" and why they believe they should be

compensated. Whereas the Court reaches no conclusions at this time

about the merits of their claims, their testimony about the nature and

type of their claims persuades the Court that their claims are, in fact,

typical of all persons who were living in, working in, owning

property in, and/or owning or operating a business in the Town of

Ferriday during the "Boil Water Notice".

The Court finds that individually and as a group the claims of

these Class Representatives are typical of the claims of the Class

members because they are similar in nature, they arise from the same

alleged course of each defendant’s conduct, and they are all based on

the same legal theories under Louisiana law. The Class

Representatives demonstrated to the Court during their testimony

that they are capable and prepared to represent the interests of the

absent Class members.

The Court further finds that the Class Representative are typical

within the meaning of that term in Louisiana class action

jurisprudence because they each present claims that are a cross-

38

+

section of the Class they seek to represent. Louisiana’s "adequacy of

representation" criteria "requires that the claims of the class

representatives be a cross-section of, or typical of, the claims of all

class members. "See e.g. Dumas, supra, 635 So.2d at 450; Livingston

Parish, supra, 598 So.2d at 1177; Lailhengue v. Mobil Oil Co., 94-

2114 at 5-6 (La. App. ++" Cir. 6/7/95); 657 So. 2d 542, 546; Ford v.

Murphy Oil, 96-2913 at 4 (La. 9/9/97); 703 So.2d 542, 544.

Louisiana, however, does not require that either the Class

Representatives or their claims be identical to all the Class members

or to any Class members within the Class. Jd.

The Court finds that the five (5) appointed Class Representatives

present claims that are typical of those likely to be presented by the

absent members of the Class certified herein. Their claims are a

cross-section of the claims of the Class members, and are derived

from the same common source. Their claims against the defendants

are typical of all claims directed at the common nature of the

defendants’ conduct. The Court finds, therefore, that the "typicality"

requirement is satisfied in this case. La. C.C.P. art. 591(A)(3).

4. Adequacy of Representation

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The evidence that was presented at the Class Certification

hearing satisfied the Court that the claims of the five (5) persons now

appointed to serve as Class Representatives and the claims of the

absent Class members (defined above) have a common character that

predominates over their individual differences, and that the claims of

these five (5) Class Representatives and typical of the claims of the

members of the Class certified herein. The Court finds that none of

the Class Representatives has any personal or financial interest in the

outcome of this Class Action litigation that is adverse to the interests

of the absent members of the Class, and also that each of them has

demonstrated that they are able and willing to serve in the capacity

of a Class Representative. La. C.C.P. art. 591(A)(4).

Louisiana requires class actions to be litigated by and through

one or more adequate representatives who participate on behalf of

and for the absent class members. Satisfying this element requires

the proposed Class Representatives to establish that their claims are

"a cross-section of, or typica! of, the claims of all class member."

Andry v. Murphy Oil, U.S.A., Inc., 97-0793 at 6 (La. App. 4® Cir.

4/1/98); 710 So. 2d 1126, 1130.

40

During the hearing, each proposed Class Representative testified

before the Court about their personal and family background, their

work background, their experiences with the Town of Ferriday’s

water, and of the hardships and problems they claim that they each

suffered during the 1999 "Boil Water Notice". Each proposed Class

Representative was questioned about the nature of their claims, their

understanding of the nature of a class action, and their understanding

of the role of a Class Representative. The Court finds that each of

these witnesses was credible, candid and forthright in their answers,

and that they each possess a good understanding of their role in this

case.

The Court also finds that the following attorneys have the

necessary skill, background, expertise, experience, and absence of

any conflict of interest, in order to be designated as Class Counsel,

and are hereby appointed as such. 1. Charles S. Norris, Jr., Liaison

Counsel for the Class, of Vidalia, Louisiana; and 2. Stephen B.

Murray; 3. Linda S. Harang; and 4. Jule A. Jacobs, all of the Murray

Law Firm, of New Orleans, Louisiana.

Each of these counsel submitted as Affidavit to the Court, with

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a curriculum vitae outlining their experience in litigation in general,

and particularly in class action litigation. These Affidavits attest to

their desire to be staunch advocates for the Class, and that they are

financially able to fund this litigation for the Class. Their Affidavits

attest that they are each free of any conflicts of interest. Each counsel

also attached a current Certificate of Good Standing from the

Louisiana Supreme Court as further evidence of their fitness to serve

as Class Counsel. No evidence was introduced at the hearing to

contradict or challenge any of the information in these Affidavits or

curriculum vitae. Additionally, by their presentation to the Court of

their witnesses and evidence during the Class Certification hearing,

- these counsel have demonstrated to the Court that they are able to

adequately and ably represent the Class.

The Court finds, therefore, that as to the five (5) Class members

now appointed to serve as Class Representatives, and as to the four

(4) attorneys appointed to serve as Class Counsel, the "adequacy of

representation" requirement is satisfied. La. C.C.P. art. 591(A)(4).

5. Adequate, Objective Class Definition

The evidence in the record supports the Court’s decision to

42

define the Class as:

All persons, businesses, or entities who belong to at least one of

the following five groups, and who, as a direct result of receiving

their water from the Town of Ferriday 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.

Residents of the Town of Ferriday or any adjacent community at

any time between August 20, 1999 and December 22, 1999, and

who received their water supply to that residence from the Town

of Ferriday Water Plant;

Owners and/or operators of businesses in the Town of Ferriday

or any adjacent community at any time between August 20, 1999

and December 22, 1999, and that received their water supply to

that business from the Town of Ferriday Water Plant;

Lessors of residential and/or commercial property located in the

Town of Ferriday or any adjacent community at any time

between August 20, 1999 and December 22, 1999, and that

received their water supply to that property from the Town of

Ferriday Water Plant; and

Employees of businesses in the Town of Ferriday or any adjacent

community at any time between August 20, 1999 and December

22, 1999, and that received their water supply at their place of

employment from the Town of Ferriday Water Plant.

School students or patients in health care facilities who were

required to be in the Town of Ferriday at any time between

August 20, 1999 and December 22, 1999, and that received their

water supply at their school or health care facility from the Town

43

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of Ferriday Water Plant.

Several witnesses testified about the people, residences, and

businesses that were included in the State’s "Boil Water Advisory"

and "Notice". William McKeel, who was the operator of the Ferriday

water treatment plant at the time of the "Notice" testified that all

residences and businesses supplied by the Ferriday water treatment

plant were included in the "Notice". Then-Mayor Odeal Montgomery

testified that when she received the information from the State,

everyone was included - all residences and all businesses. Michael

Cazes, Regional Engineer for the Louisiana State Department of

Health and Hospitals, confirmed in his testimony that all residences

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included in the "Advisory" and the "Notice".

The Class Representatives themselves, by the very nature of

their home and work experiences, justify the categories or subclasses

of persons included in the Class definition. Three of the Class

Representatives (Martello, McKinney, and Roberts) lived in the

Town when the "Advisory" and "Notice" started, and two of them

(Martello and McKinney) did not move away at anytime during the

44

"Notice". They each claim to have suffered inconvenience, emotional

distress, and stress because of water problems they claim they

experienced at their homes. Mrs. McKinney and Mrs. Roberts claim

to have incurred non-reimbursed personal expenses.

Three of the Class Representatives (Martello, Guidry, and

Massey) operated a business in the Town and the "Advisory" and

"Notice" started and continued operating their businesses throughout

the entire time of the "Notice". They each claim to have suffered

inconvenience, emotional distress, and stress because of the water

problems they claim they experienced at their businesses. They also

claim that they and their businesses either lost income or incurred

extraordinary expenses as a result of the water problems they claim

they experienced during the entire four (4) months duration of the

"Boil Water Notice".

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Four of the Class Representatives (Martello, Guidry, Massey,

McKinney) worked in the Town throughout the entire time of the

"Boil Water Notice". They each claim that they suffered

inconvenience, emotional distress, and stress because of the water

problems they claim they experienced at their businesses throughout

45

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the entire four (4) months of the "Boil Water Notice."

Although none of the Class Representatives was a lessor of

residential or commercial property supplied by the Ferriday water

system during the time of the "Notice", the Court finds it reasonable,

given the other evidence presented, to expect that if there are such

persons, then they likely will have claims similar to those of the

Class Representatives. If the Court is later presented with evidence

indicating that this category should not be included, then the Court

can always modify its definition to exclude this category. La. C.C.P.

art. 592(A)(3)(c). The Court, therefore, includes this category in the

Class definition.

The Court specifically excludes, however, from the Class

definition any person who might be described as "transient" in the

Town of Ferriday during the time of the "Boil Water Notice". For

example, a truck driver who was passing through Ferriday while the

"Notice" was in effect may have been temporarily inconvenienced by

the requirements of the "Notice". The Court finds that the claims of

such a person are too dissimilar from the claims of those who, like

the Class Representatives, had to cope with the problems and

46

situations caused by the "Boil Water Notice" on a regular, daily

basis. Although such a "transient" person may have the basis for a

claim against one or more of the defendants for his temporary

inconvenience, the Court finds that this type of claim lacks the

common character required for it to be included in this Class. The

Court is satisfied that the Class definition is objective and clear

enough to put such a "transient" person on notice that any claim he

may have is not included for adjudication with the claims of the

Class, and that if he desires to bring a claim, he must do so in an

individual suit.

The Court finds, therefore, that the Class, as defined herein, is

defined objectively in terms of criterial that are relatively easy to

ascertain. This definition will enable the Court to objectively

determine whether a person or business meets the Class definition for

the purpose of verifying the conclusiveness of any judgment on the

merits that may be rendered in this case. La. C.C_P. art. 591(A)(5).

6. Article 591(B) Criteria

In addition to satisfying all five of the criteria under La. CAA.

art 591(A), the plaintiff also must satisfy at least one of the criteria

47

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or categories under La. C.C.P. art. 591(B). The Court finds that the

testimony and evidence presented by the plaintiff satisfies this

requirement.

A. Article 591(B)(1)(b)

The plaintiff asked the Court to certify this case as a Class

Action either La. C.C.P. art. 591(B)(1)(b) or La. C.C.P. art

591(B)(3). Specifically, the plaintiff asked for a 591(B)(1)(b) class

to be certified against the Town of Ferriday and Owen & White, Inc.,

with a 591(B)(3) class to be certified against USFilter Waste Water

Group, Inc.

The article 591(B)(1)(b) class is commonly referred to as the

"limited fund" class. In support of the request to certify the Class

under article 591(B)(1)(b), the plaintiff presented evidence, all

through oral testimony, on the subject of the financial assets and

insurance coverages of the Town of Ferriday and Owen & White Inc.

This testimony primarily was from former Mayor Odeal

Montgomery for the Town, and from Eugene Owen for Owen &

White, Inc. There were no financial records, insurance policies, or

accounting documents presented regarding either of these

48

defendants.

However, because the Court finds that the evidence in support of

certifying this case as to all three defendants under article 591(B)(3)

is sufficient, there is no need for any further discussion of the

591(B)(1)(b) criteria.

B. Article 591(B)(3)

The Court finds that the evidence presented by the plaintiff

satisfies the criteria for certification under La. C.C.P. art. 591(B)(3)

as to all three defendants. The article 591(B)(3) class is commonly

referred to as the "predominance and superiority" class.

Predominance:

The first part of the 591(B)(3) criteria requires the Court to find

that "the questions of law or fact common to the members of the

class predominate over any questions affecting only individual

members". La. C.C.P. art. 591(B)(3).

The evidence presented at the Class Certification hearing

satisfies the Court that the common issues of liability and fault raised

by the Class against all three defendants predominate over the Class

members’ individual claims for damages. The Class Representatives’

49

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testimony satisfies the Court that their claims for damages differ only

by degree or amount, but they are all of the same common types and

categories, predominately being claims of inconvenience, annoyance,

and discomfort; mental and emotional distress and stress; non-

reimbursed personal expenses; and also non-reimbursed business

expenses. All of the witnesses testified that they know of no

individuals who suffered any physical bodily injury, disease, or

illness that was diagnosed to be the result of the four (4) month "Boil

Water Notice".

As previously stated in these Reasons, the Court finds not only

that the Class members’ claims are of a common nature, but also that

their claims about their water problems originate from the same

common source - the Town of Ferriday’s only water treatment plant.

Therefore, if any defendant is found to be liable to just one Class

member due to that defendant’s role in causing or contributing to the

Class member’s water-related complaints, then the finding of

liability as to that defendant should be binding on that defendant as

to all the other similarly situated Class members, without the need

for any other Class member to have a trial on the merits of those

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same issues.

The Louisiana Supreme Court recognized more than 20 years

ago in Stevens v. Board of Trustees that differences in the recoveries

sought by individual Class members, differences in the particularities

of their claims and circumstances, and specific variations that might

ultimately lead to recoveries by some Class members and not by

others did not obviate the "common character" of a suit based on the

same factual course of conduct by the defendants and the same legal

relationship between the defendants and the Class members. The

Stevens Court explained that under such circumstances, whether the

tortious conduct arises out of a single incident or a long-term course

of conduct, common issues as to liability predominate. The

predominance of common liability issues invokes the "functional and

pragmatic factors" that should be taken into consideration by this

Court in aid of its ultimate determination of whether "the class action

will clearly be more useful than other available procedures for

definitive determination of a common-based right..." Stevens v.

Board of Trustees, 309 So.2d 144, 151 (La. 1975).

Superiority:

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The second part of the 591(B)(3) criteria requires the Court to

find that "a class action is superior to other available methods for the

fair and efficient adjudication of the controversy." La. C.C.P. art.

591(B)(3).

The Court finds that the Class Certification hearing itself,

conducted for four (4) days, with all witnesses testifying live before

the Court (for a total of approximately 30 hours of live testimony;

none by deposition), demonstrates the procedural advantage of

trying the Class members’ common issues of liability and fault

against all three defendants in one common trial, at one time. This is

especially true since there was no expert testimony offered by any

party at the Class Certification hearing on the cause of the Ferriday

water problems or on the cause of the 1999 "Boil Water Notice". It

is clear to the Court that any such expert testimony would be

common to all Class members, and that trying the defendants’

liability and fault in one common trial superior to the other available

procedural methods of either mass joinder and consolidation, or

repetitive individual trials.

It is clear to this Court that such multiple, subsequent trials

52

would require most, if not almost all, of the same testimony from the

same witnesses and experts, using the same documents and exhibits.

The Court finds, therefore, that managing this case as a Class Action

is the superior method for achieving the goals of fairness and judicial

efficiency. As a Class Action, the Court has the authority to order,

sua sponte, separate trials of separate issues before separate juries.

In all other cases except the Class Action, the consent of the parities

is required. See e.g. La. C.CP. arts. 1562, 1736. Louisiana

jurisprudence makes note of this unique ability in affirming the use

of the Class Action procedure for the determination of common

liability issues in mass torts. Adams v. CSX Railroads, 615 So.2d

476, 483 (La. App. 4" Cir. 1993); Dumas, supra, 635 So.2d at 452.

The ability of a district court to order such a trial without the

stipulation or consent of the parties has been determined to be a

significant factor in the superiority of class action management. Jd.

Article 591(B)(3) Factors:

As a part of the predominance and superiority analysis, article

591(B)(3) lists six non-exclusive factors for this Court to consider:

Factor (a) suggests that certification is appropriate when the

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Class members have not displayed an interest in individually

controlling the prosecution or defense of separate actions. This

District Court’s records evidence that this is the only suit that has

been filed, originally identifying only one plaintiff. There are now

four (4) Class members who have stepped forward with the named

plaintiff, Gloria Martello, and stated their desire and willingness to

serve aS Class Representatives. Four (4) Class Representatives

(Martello, Guidry, McKinney, Roberts) testified that they will pursue

their own claims individually if this case is not certified as a class

action, but none of them has taken any action at this time to file their

own individual suit. The Court finds that this criteria is satisfied.

Factor (b) suggests that certification is appropriate when there is

no other litigation, or only a few suits are already under way by or

against members of the Class and involving these same issues. As

with factor (a), the District Court’s records evidence that there is no

suit pending or filed in any Court in any District on these same issues

other than this one. The Court finds that this criteria is satisfied.

Factor (c) suggests that certification is appropriate when it is

desirable to concentrate complex litigation in one forum or district.

54

The focal point of this litigation is the Ferriday water treatment plant

and intake facility. These facilities are located in Concordia Parish,

and serve a Class of persons that is predominantly located in

Concordia Parish. Most of the witnesses in this case live or work in

Concordia Parish. There has not been any challenge by the

defendants to this District Court as the proper venue or forum for this

litigation. The Court finds that this criteria is satisfied.

Factor (d) suggests that certification is appropriate when it is

determined that directing the case as a Class Action will not present

or create any irreconcilable management difficulties. This Court

recognizes that a case of this type inevitably will create some

management problems. Since it is this Court that must ultimately

reconcile and solve these problems, this Court must decide how best

to try the claims of these Class members.

The Court believes that it is capable of solving the management

problems that this case may present, but the Court can avail itself of

assistance, if needed, in the form of Court-appointed experts (La.

C.C.P. arts. 191,373), ora Court-appointed Special Master (La. R.S.

13:4165). If, however, the problems become too difficult to resolve,

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this Court always has the discretion to alter or amend the Class

definition, or decertify some or all of the Class. La. C.C.P. art.

592(A)(3)(c). In exercising this discretion, the Louisiana Supreme

Court has held that, because of a Court’s ability to review and/or

modify its certification ruling at any time, "if an error is to be made

in favor or and not against the maintenance of the class." McCastle,

supra, 456 So.2d at 620; Ellis v. Georgia-Pacific, 550 So.2d 1310,

1318 (La. App. 1* Cir. 1989), writ denied, 559 So.2d 121(La. 1990);

La. C.C.P. art. 592(A)(3)(c). The Court finds, therefore, that this

criteria is satisfied.

Factor (e) suggests that certification is appropriate when it would

be impractical or unlikely for the Class members to be able to pursue

their claims but for the class action procedure. This factor is

particularly important in cases such as this one, where the Court

anticipates that many of the Class members may have claims that

might be considered "negative value" claims. The policy of

providing a meaningful opportunity for persons with low value

claims to pursue a remedy is at the very core of the rationale behind

the class action procedure. The United States Supreme Court has

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even said that the most dominant reason for a Rule 23(b)(3)° class

action is the vindication of the rights of groups of persons with

negative value claims. See Amchem Products, Inc. v. Windsor, 117

S. Ct. 2231, 2246 (1997). The Court finds that this criteria is

satisfied.

Factor (f) suggests that certification is appropriate when the

relief being demanded, including the vindication of any implicated

public policies or legal rights, justifies the costs and burdens of class

litigation. As was mentioned earlier, if even one plaintiff filed an

individual suit against these three defendants, because of the nature

of the case, the issues involved, and the scientific nature of many of

the facts, this case would be considered complex litigation.

Having five (5) Class Representatives litigate all of the common

issues of liability and fault at one time, with the outcome having res

judicata effect for more than 4,500 Class members, will save costs

and streamline the litigation. The Court finds that the cost of trying

3Rule 23(b)(3) is the federal Rule of Civil Procedure upon

which Louisiana’s article 591(B)(3) class action is based, and the

wording of the two statutes is identical. See Fed. R. Civ. P.3(b)(3);

cf, La. C.C.P. art. 591(B)(3).

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all of the common issues of liability and causation in one trial, with

the Class represented by the five (5) Representatives herein

appointed, sufficiently outweighs the prospect of trying these same

issues repetitively. The Court finds that this criteria is satisfied.

The Court finds, therefore, that the criteria of La. C.C.P. art.

591(B)(3), which requires that the common issues must predominate

over the individual ones, and which also requires that the class action

procedure must be superior to other availabie procedural methods for

managing and trying the claims, is satisfied in this case as to all three

defendants.

7. Exception of No Cause of Action of the Town of Ferriday

The Town of Ferriday brought an Exception of No Cause of

Action challenging the plaintiffs request for class certification.‘ The

exception of no cause of action is recognized by Louisiana courts as

“The Town of Ferriday’s Exception of No Cause of Action

was filed in the early stages of the litigation, in the Town’s

Answer, as an exception of no nght of action. At the Town’s

request, and by consent of the parties and with leave of Court, it

was conformed at the beginning of the Class Certification hearing

into the Exception of No Cause of Action. Neither Owen & White,

Inc., nor USFilter Waster Water Group, Inc., filed an Exception

challenging the plaintiff's request for class certification.

58

an appropriate procedure to use in challenging a motion for

certification. Stevens v. Board of Trustees, 309 So. 2d 144, 152 (La.

1975). When the exception of no cause of action is used to oppose or

challenge class certification, it is appropriate for the Court to

consider evidence and testimony beyond the "four corners" of the

Petition, even though evidence is not usually accepted or considered

in deciding an exception of no cause of action. Id. See also Feldheim

vy. SI-SIFH Corp., 97-875 at 10 (La. App. 5" Cir. 6/30/98); 715 So.

2d 168, 172.

The plaintiff timely requested the opportunity to present

evidence and testimony in opposition to the Town’s Exception of No

Cause of Action, and in further support of the plaintiff's Motion for

Certification. The Court granted both sides the opportunity to present

evidence in support of their pleadings. The Town’s Exception of No

Cause of Action was taken under advisement, pending the

presentation of evidence and testimony by both sides at the Class

Certification hearing. The parties agreed that all the evidence

presented at the Class Certification hearing would be applicable to

~

the proponents and opponents of the Town’s Exception of No Cause

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of Action.

The Court can find no authority to suggest that the criteria upon

which it must decide the Exception of No Cause of Action_is

different from that upon which it must decide the plaintiff's Motion

for Certification. That is, the jurisprudence indicates that the basis

for granting or denying a request for class certification is the same,

regardless of whether the pleading being ruled upon is the plaintiffs

Motion or a defendant’s Exception. When the defendant is the

proponent of an exception challenging a request for class

certification, then the defendant bears the burden of proof on that

exception. See Stevens, supra, and Feldhiem, supra.

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 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,

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————

therefore, is hereby OVERRULED for all the same Reasons for

Judgment assigned herein.

CONCLUSION

SS _—EO—Eee—ee————eeeeeo

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The Court finds that the facts and circumstances of this case

satisfy all of the statutory criteria for class certification under La.

C.C.P. art. 591(A) and 591(B)(3) as the all three (3) defendants

herein, the Town of Ferriday, Owen & White, Inc. and USFilter

Waste Water Group, Inc.

Class Counsel shall be responsible for notifying the putative

Class members of the pendency of this Class Action and of their

rights as Class members to participate in the Class Action, or to

exercise their statutory right to opt out of the Class Action Notice.

The form, content, frequency, and method of publication of the

Official Class Action Notice shall be submitted to the Court for prior

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review and approval.

Accordingly, the Court herby enters its J udgment consistent with

the Reasons for Judgment and these findings assigned herein.

Vidalia, Louisiana, this 25" day of July, 2001.

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HON. KATHY JOHNSON

DISTRICT JUDGE

7" Judicial District Court

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Appendix D

Appendix E

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

01-1240

GLORIA B. MARTELLO Judgement rendered MARCH 2,

2002 Applications for rehearing

may be filed within the delays

VERSUS allowed by La. Code Civ. P. art.

2166 or La. Code Crim, P. art

922.

CITY OF FERRIDAY AND OWEN AND WHITE, INC.

HREKKKKKREKE

APPEAL FROM THE SEVENTH JUDICIAL DISTRICT

COURT, PARISH OF CONCORDIA, NO. 36358, THE

HONORABLE KATHY JOHNSON, DISTRICT JUDGE,

PRESIDING

KKKKKKKKKEKE

NED E. DOUCET, JR.

CHIEF JUDGE

KKEKKKKKEKK

Court composed of Ned E. Doucet, IJr., Chief Judge, Billie

Colombaro Woodard, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Charles S. Norris, Jr.

8 N. Oak St.

Vidalia, LA 71373

ATTORNEY FOR THE CLASS OF PLAINTIFFS/ APPELLEES

Gloria Martello, Class Representative

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Steven B. Murray

Lisa S. Harang

Julie A. Jacobs

909 Poydras St., Ste 2550

New Orleans, LA 70115

ATTORNEYS FOR THE CLASS OF

PLAINTIFFS/APPELLEES

Gloria Martello, Class Representative

Stacy C. Auzenne

P O Box 12394

Alexandria, LA 71315-2394

ATTORNEY FOR THE DEFENDANT/APPELLANT

The Town of Ferriday

Robert E. Kerrigan

Joseph L. McReynolds

Lisa C. Winters

755 Magazine St.

New Orleans, LA 70130

ATTORNEY FOR THE DEFENDANT/APPELLANT

U.S. Filter Wastewater Group, Inc.

John P. Wolff, III

Stephen R. Wilson

Nancy B. Gilbert

P.O. Box 1151

Baton Rouge, LA 70821

ATTORNEY FOR THE DEFENDANT/APPELLANT

Owen & White, Inc.

DOUCET, Chief Judge.

The Defendants, the Town of Ferriday (the Town), Owen &

White, Inc. (O&W) and U.S. Filter Wastewater Group, Inc. (U.S.

Filter), appeal the trial court’s decision to certify this matter as a

class action.

The following undisputed facts, have been taken from the trial

court’s reasons for judgment, although reordered for purposes of this

opinion:

At all relevant times, the Town of Ferriday supplied potable

water to the residences and business of Ferriday and the adjacent

unincorporated areas, including Red Gum and Lake St. John, and

billed its water customers monthly for the water they used.

The Town of Ferriday contracted with the Baton Rouge

engineering firm of Owen & White, Inc., in October 1978 for the

purpose of designing a new water treatment plant for the Town

of Ferriday, and for the adjacent communities that are supplied

by the Town’s water treatment plant.

Owen & White recommended that the Town of Ferriday build

a new water treatment plant, and the Town accepted the

recommendation.

Owen & White recommended the use of Old River, also called

Marengo Bend, as the source of the raw water for the new water

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treatment plant, and the Town of Ferriday accepted the

recommendation.

In the Fall of 1982, Owen & White . . . recommended that the

Town of Ferriday consider using, as the primary filtration

component of its new water treatment plant, a packaged water

treatment plant designed and manufactured by Neptune

Microfloc (the corporate predecessor in interest to defendant US

Filter Water Waste Group, Inc.).

Based on the outcome of [a] "pilot water plant" study [conducted

using the Neptune Microfloc equipment], Owen & White

recommended that the Town of Ferriday accept its design for the

new water treatment plant incorporating the Neptune Microfloc

packaged water treatment plant, and the Town accepted the

recommendation.

The new water treatment plant was constructed and began

operating in December 1998. Since that time, it has been the

only water treatment plant that supplies potable water to the

residences and business of the Town of Ferriday and the adjacent

unincorporated areas, including Red Gum and Lake St. John.

Within six (6) months after the new water treatment plant began

operating, the Ferriday water customers complained about the

quality of the water being produced by the new plant.

The source of the customers’ complaints was determined to be

an excessively high level of manganese in the raw water of

Marengo Bend.

The excessively high level of manganese in the water in

Marengo Bend was not reported by Neptune Microfloc in its

summary of May 1983 "pilot water plant" study.

In August 1999, the Louisiana State Department of Health and

Hospitals issued first "Boil Water Advisory" and several days

later a "Boil Water Notice" for everyone who received their

potable water from the Town of Ferriday’s water treatment plant.

No one was excluded from the "Boil Water Advisory" or from

the "Boil Water Notice". All residences and businesses that were

supplied by the Town of Ferriday’s water treatment plant were

included.

The ... "Boil Water Advisory" and "Notice" instructed everyone

using the Town of Ferriday’s water supply that before they could

use the Town’s water for drinking, cooking, washing hands, or

bathing, it first had to be brought to a "rolling" boil for at least

15 minutes.

The "Boil Water Notice" was lifted on... December 22, 1999,

for all residences and businesses that were supplied by the Town

of Ferriday’s water treatment plant.

During the approximately four (4) months that the Ferriday

water customers were under the "Boil Water Notice", the

National Guard supplied potable water to the Town of Ferriday

in tanker trucks. Residents could draw water from the trucks into

jars, jugs, bottles, buckets, or any other type of container.

In August 1999, just one (1) or two (2) days before the "Boil

Water Advisory" was issued, the Ferriday water plant

experienced a complete shut down, leaving all Ferriday Water

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customers without any water for three (3) days.

As a result of the water problems, Gloria Martello filed a

s

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"Petition for Damages and for Class Certification," seeking to have

the matter certified as a class action to be pursued on behalf of:

All persons or entities who are customers of, who are served by,

and/or who otherwise are or were dependent on the City of

Ferriday for their water supply, and who claim that they suffered

damage or loss as a result of the failure of the Ferriday Water

Plant that began on or about August 20, 1999.

After a hearing, the trial court granted the Plaintiffs motion for

class certification and overruled the Town’s exception of no cause of

action. In connection with this ruling, the court issued twenty-four

pages of written reasons for judgment. The Defendants, the Town, O

& W and U‘S. Filter, appeal the trial court’s ruling.

NO CAUSE /NO RIGHT OF ACTION

The Town asserts as error that the trial court erred in failing "to

rule on the Town’s Exception of No Right and No Cause of Action

before certifying a class pursuant to Graf v. Town of St. Gabriel."

Further, the Town, on the date of oral arguments herein, filed

exceptions of no cause or right in this court.

We first note that the Town, as evidenced by the transcript and

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admitted in its brief on appeal, agreed to convert its exception of no

right of action to an exception of no cause of action. Therefore, we

cannot say that the trial court erred in failing to consider the

exception of no right of action. The court did rule on the exception

of no cause of action and, in fact, denied that motion in the same

judgment in which it granted class certification.

We note that the case of Graf v. Town of St. Gabriel, 97-2022,

(La. App. 1 Cir. 11/6/98); 744 So.2d 1, writ denied, 99-633 (La.

4/23/99); 742 So.2d 888 does not stand for the principle that all

exceptions must be heard prior to class certification. Rather, in Graf

the court required that a challenge to class certification and

maintenance of the matter as a class action be heard prior to hearing

the case on the merits. We find no error on the part of the trial court

in this case in hearing the exception at the class certification hearing.

An exception of no cause of action questions the legal

sufficiency of the pleadings. Steed v. St. Paul’s United Methodist

Church, 31,521, 31,522 (La. App. 2 Cir. 2/24/99); 728 So.2d 931,

writ denied, 99-877 (La. 5/7/99); 740 So.2d 1290. "On review,

dismissal for no cause of action should only be sustained if well-

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pleaded allegations of fact in the petition clearly show that, based on

circumstances alleged, there is no remedy under any theory of law."

Lewis v. 38" Judicial Dist. Court, 00-1204, 00-878, p.2 (La. App.3

Cir. 12/6/00); 795 So.2d.347, 349, writ denied, 00-1898, 00-2401

(La. 8/24/01); 795 So.2d 319, 795 So.2d 320. After reviewing the

pleadings filed by the Plaintiff herein, we find that the pleadings

adequately state a cause of action for damages as well as the

requirements for a class action. Therefore, we find that the trial court

correctly overruled the exception of no cause of action. We further

overrule the exception of no cause of action filed in this court.

DISCRETIONARY ACT IMMUNITY

The Town further asserts that the Trial court should have

dismissed Plaintiff's suit because the town is immune from strict

liability for its discretionary acts under La.R.S. 9:2798.1. The Town

reasserts this in its exception on no right of action filed in this court.

The Town did plead this defense in its answer to the Plaintiff's

petition. However, we find nothing of record which would lead us to

believe that this defense was before the court at the hearing on the

class certification. Nothing in the Town’s exception or argument is

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applicable to this defense. Finding that the question of discretionary

act immunity was not before the trial court, we decline to consider

it on appeal. The record does not contain sufficient evidence to allow

us to rule on this defense. We find that this defense goes to the merits

of the case and does not affect the propriety of the class certification.

U.S. FILTER PROFFER EVIDENCE

The Town assigned as error the trial court’s refusal to allow U.S.

Filter to proffer certain evidence, apparently an agreement between

the Town’s former attorney and O & W. The Town did not object to

this ruling. Therefore, we would not normally review the Town’s

assignments of error and arguments of the Town we will review this

assignment.

After reviewing the record however, we find we need not reach

the question of whether the court was proper in refusing to accept the

proffer, since we find that the evidence was properly excluded. The

trial court ordered the parties to exchange witness and exhibits lists

by January 2, 2002. The order specifically required that:

Exhibit lists and/or any other evidence that any party intends to

introduce during the certification hearing must be disclosed and

presented to the opposing parties (unless already produced in

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discovery) by January 2, 2001. Exhibits or documents already

produced in discovery must be listed by adequate description

and/or by their Bates-stamped number. Copies of demonstrative

exhibits that may be used at the hearing also must be produced.

Exhibits and lists were filed by all parties. This agreement was

not specifically listed in any exhibit list, although the Town —

purported to list as exhibits anything produced by or in the

possession of any other party, without any more specific

identification as required by the trial court’s order.

The theory inherent in pretrial procedure is to avoid

surprise and to allow orderly disposition of cases. The trial court

is vested with much discretion in determining when a pretrial

order should be modified. However, that discretion is necessarily

controlled by the principle that it must be exercised to prevent

substantial injustice to the parties who have relied on the pretrial

rulings or agreements and structured the preparation and

presentation of their case accordingly. Day v. South Line

Equipment Company, 551 So.2d 774, 779-780 (La. App. 1*Cir.),

writ denied, 553 So.2d 474 (La. 1989).

Theriot v. State Dept. of Wildlife & Fisheries, 94-1536, p. 5 (La.

App. 1 Cir. 4/7/95); 661 So.2d 986, 989, writ denied, 95-1617 (La.

10/6/95); 662 So.2d 1041.

We find no error in the trial court’s decision to exclude from

evidence a document not found on any exhibit list.

JUDICIAL BIAS

%

The Defendants assert that the trial court’s ruling in this matter

should be set aside because the trial judge was biased in favor of the

Plaintiff. The trial judge did recuse herself after certifying the class

because her bailiff is a potential class member. However, the

Defendants, in spite of citing several pre-hearing incidents which

allegedly support the finding that the trial judge was biased, did not ©

file a written motion to recuse prior to the hearing or prior to the

rendition of judgment herein. Accordingly, we will not consider this

assignment of error. Woodland Ridge Ass'n v. Cangelosi, 94-2604

(La. App. 1 Cir. 10/6/95); 671 So.2d. 508, $12.

EXPANSION OF THE PLEADINGS

The Defendants/Appellants argue that the Plaintiff limited her

claim for class certification to a "limited fund" theory under La.

Code Civ. P. art. 591 (B)(1)(b) and that the trial court therefore erred

in allowing the Plaintiff to expand the pleadings to argue for

certification under La. Code Civ.P. art. 591(B)(3) in that common

issues of liability and fault predominate over individual claims. After

reviewing the record, we find that Plaintiff's original and amending

petitions sufficiently plead commonality and predominance. Even if

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the petitions did not so plead, the Defendants/Appellants made no

objection to the introduction of evidence tending to support the

finding that common issues of liability of fault predominate over

individual claims.

Unobjected to evidence of issues are not contained in the

pleadings, which is admitted at trial, serves to enlarge the

pleadings. Such evidence is "treated in all respects as if [it] had

been raised by the pleading[s]." La. Code Civ.Proc.art. 1154; See

also, First National Bank of Abbeville v. Greene,612 So.2d. 759

(La. App. 34 Cir. 1992) and Herrell v. Herrell, 594 So.2d 943

(La. App. 3d Cir. 1992).

Hopkins v. American Cyanamid Co., 95-1088 (La. 1/16/96); 666

So.2d 615, 623. Therefore, the trial judge did not err in certifying the

class action based on commonality and predominance rather than on

a limited fund theory.

EXPERT LEGAL TESTIMONY

Defendants/Appellants argue that since the trial court allowed

expansion of the pleadings to allow evidence that common issues of

liability and fault predominate over individual claims, the court

should have allowed the testimony of its expert on class certification,

Ben Hanchey, an attorney. The Plaintiff objected to Hanchey being

used as an expert witness prior to the hearing on class certification.

74

The court ruled that Hanchey would not be allowed to testify and this

court denied the Defendants’ application for writs in this regard.

After reviewing the record, and Hanchey’s deposition which was

proffered by the Defendants/Appellants, we find that Hanchey’s

testimony consists of "legal opinions and conclusions of law."

Wilson v. Wilson, 542 So.2d 568, 573 (La. App. 1 Cir. 1989). His

testimony contains nothing which could not be more properly

presented to the court via argument or memoranda.

The testimony of an expert, with the attendant right to express

opinions and conclusions, is proper for the purpose of assisting

the court only in those fields in which the court lacks sufficient

knowledge to enable it to come to a proper conclusion without

such assistance. Clesi, Inc. v. Quaglino, 137 So.2d. 500 (La.

App. 4" Cir. 1962). The domestic law testimony of an expert iS

not proper, as distinguished from foreign law testimony, on the

theory that the court itself is the expert on domestic law.

Id.

Accordingly, we find no error in the trial court’s decision to

exclude Hanchey’s testimony.

CLASS CERTIFICATION

The various Defendants/Appellants argue that the trial court

erred in certifying the class because the Plaintiff failed to establish

numerosity and typicality, because individual issues predominate

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over class issues.

Louisiana Code of Civil Procedure Articles 591 and 592 describe

the requirements for a class action:

(1) A class so numerous that joinder is not practical;

(2) The joinder of at least one member of the class who is able

to provide adequate representation for the absent members; and

(3) A common character among the rights of the representative

and the absent class members.

Pellerin v. Louisiana Health Serv. & Indem. Co., 460 So.2d 93

(La. App. 3 Cir. 1984). There is no set number of participants needed

to satisfy the "numerosity" requirement. Ducote v. City of

Alexandria, 95-1197 (La. App. 3 Cir. 3/6/96); 670 So.2d 1378.

Courts examine the facts and circumstances of each case to

determine whether the class is so numerous that it makes joinder

impracticable. /d. The trial court found that the persons constituting

the class were too numerous to be joined since there were at least

114 potential class members in Natchitoches Parish alone and that

Schwab stipulated to the same. This large number of potential class

members surely produces too many plaintiffs to join in a manner

conducive to judicial economy.

The requirements of "adequate representation" is satisfied when

the claims of the class representatives are typical or a cross section

of the claims of all of the members in the class. Dumas, 635 So.2d

446. The trial court found that Robert C. Thomas and Robert M.

Kahn were adequate class representatives because their claims were

typical of those of all class members. Since their claims are

consistent with those of the overall class, Mr. Thomas and Dr. Kahn

will provide fair and adequate representation for all of the class

members.

The "common character" requirement only allows class actions

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to be certified in cases where it would achieve economy of time,

effort, expense, and provide for uniform outcomes for similarly

situated plaintiffs. McCastle v. Rollins Envtl. Services, 456 So.2d

612, 616 (La. 1984). The district court found no material difference

between the claims of the class representatives and those of the

absent class members. It noted the absence of differences which

would prevent class certification and stated the court would consider

the use of case management techniques to handle any material

differences which may later arise. Given the evidence provided at

this time, creating a class of individuals who have similar rights will

achieve more efficient outcomes than allowing separate actions to

proceed.

A trial court has broad discretion to certify a class through its

analysis of the facts and circumstances before it, Ducote v. City of

Alexandria, 670 So.2d 1378. The Trial court’s decision cannot be

overturned absent manifest error. Spitzfaden, 619 So.2d 795. Until

the decision on the merits is rendered, the court may alter or amend

its decision to certify a class. La. Code Civ.P. art. 593.1(B). Based on

the evidence that is currently in the record, the trial court did not

abuse its board discretion to certify the class.

Thomas v. Charles Schwab & Co. Inc., 95-1405, pp. 6-8 (La. App. 3

Cir. 9/25/96); 683 So.2d 734, 738-39, writ denied, 97-0009, 96-2579

(La.1/24/97); 686 So.2d 859; 686 So.2d 858.

In this case the trial court adequately explained her reasons for

certifying the class, in extensive reasons for judgment, pertinent parts

of which have been attached hereto as an appendix (footnotes

omitted). After reviewing these reasons, and the record upon which

they are based, we find her analysis of the facts and circumstance to

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be correct. Finding no manifest error, we affirm the decision of the

trial court to certify the class as laid out in her reasons for judgment.

CONCLUSION

For these reasons, we affirm the judgment of the trial court.

Costs of this appeal are assessed equally to the

Defendants/Appellants.

AFFIRMED.

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APPENDIX

Conclusions of Law

1. Numerosity

The testimony from Water Plant Superintendent William

McKeel and former Mayor Odeal Montgomery establishes that at all

relevant times there were approximately 4,500 residents in the Town

of Ferriday who received the water at their homes and businesses

from the Town of Ferriday’s water treatment plant. Additionally,

there are residents of the adjacent areas of Red Gum (such as

Mildred McKinney) and Lake St. John who received their water from

the Town of Ferriday’s water treatment plant. This number of

persons, who claim that they were similarly affected by the 1999

water plant failure and the "Boil Water Notice" is sufficient to satisfy

the "numerosity" requirement. La. C.C.P. art. 591(A)(1).

A class action is appropriate whenever the interested parties

appear to be so numerous that separate suits would unduly burden the

courts, and a class action would "clearly be more useful and

judicially expedient than the other available procedure. "Cotton v.

Gaylord Container, 96-1958 at 14 (La. App. 1* Cir. 3/37/97); 691

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So.2d 760, 769, writs denied, 97-0800 and 0830 (La. 4/8/97); 693

So.2d 147. Our Courts and our laws do not require a minimum

number of persons, nor do they set a maximum number. The

determination of whether this requirement has been fulfilled depends

on the facts and circumstances of each individual case. Cotton,

supra, 96-1958 at 14,691 So.2d at 768; Dumas v. Angus Chemical

Co., 25,632 at 6-7 (La. App. 2d Cir. 3/30/94); 635 So.2d 446, 450.

The Court finds that the testimony establishes that the facts and

circumstances of this case, and the number of persons and businesses

(at least 4,500) who claim that they were similarly affected by the

Town of Ferriday’s water problems in 1999, therefore, is sufficient

to satisfy the "numerosity" requirement. La. C.C.P. art. $91(A)(1).

2. Commonality

The Court heard testimony from witnesses whose homes are

supplied by the Town of Ferriday’s water treatment plant (Gloria

Martello, Christine Roberts, Mildred McKinney), or whose

businesses are supplied by the Town of Ferriday’s water treatment

plant (Gloria Martello, Shelby Guidry, Tommy Massey) or who work

at a business supplied by the Town of Ferriday’s water treatment

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plant (Gloria Martello, Shelby Guidry, Tommy Massey, Mildred

McKinney).

All of these witnesses testified about the problems and

complaints they had with the water produced by the Town of

Ferriday’s water treatment plant, and with the problems they claim

they experienced during the four (4) months of the "Boil Water

Notice". The witnesses testified about the problems they had with

cooking, drinking, bathing, and doing laundry. Odeal Montgomery

(who was the Mayor when the Town was placed under the "Boil

Water Notice" in August 1999), described these four (4) months as

"perilous times". The Court finds all of these witnesses to be credible

and forthright in their testimony.

At this time, the Court is not asked to decide whether these

claims are accurate, valid, or compensable. Nor is the Court asked at

this time to decide who or what caused or contributed to any of the

Town of Ferriday’s water problems, the August 1999 "shut down",

or the August-December 1999 "Boil Water Notice". At this time, the

Court is only required to determine whether these claims have a

common character such that they satisfy the statutory requirement of

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"commonality". La. C.C.P. art 591(A)(2).

All of the witnesses described having the same types of problems

during the "Boil Water Notice". They testified about the same types

of inconvenience, the same types of worries, the same type of stress,

the same types of non-reimbursed personal expenses, and the same

types of non-reimbursed business expenses.

Mr. Michael Cazes, an official with the Regional Office of

Louisiana State Department of Health and Hospitals, testified that the

"Boil Water Notice" started on the same day for everyone, ended on

the same day for everyone, and that everyone was under the same set

of instructions about using the water for the entire period of time that

the "Boil Water Notice" was in effect. Mr. Cazes testified that even

though the water treatment plant was capable of producing water

after the initial 3-day "shut down" the water was not potable

(drinkable without first boiling it) until December 22, 1999, when the

State lifted the "Boil Water Notice”.

Based on all of this testimony, the Court finds that the only

differences between the claims of these witnesses are differences of

degree and amount. The nature of their claims 1s so similar as to be

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almost identical. In addition to the common nature of the witnesses’

claims, their testimony satisfies the Court that the claims about their

water problems originate from the same common source - the Town

of Ferriday’s water treatment plant. Therefore, if any defendant is

found to be liable to just one Class member due to that defendant’s

role in causing or contributing to the Class member’s water-related

complaints, then the finding of liability should be binding on that

defendant as to all the other similarly situated Class members,

without the need for every other Class member to have a trial on

those same issues.

The Court understands and recognizes that there will be

differences in the Class members’ claims in the degree and amount

of damages they seek, but the nature of their claims is common to the

entire Class. Some may only have claims for lost personal expenses,

whereas some may only have claims for lost business expenses, but

the Court considers these to be differences of degree or amount.

These individual differences in the exact type or amount of damages

does not preclude or defeat class certification. McCastle v. Rollins

Environmental Services of Louisiana, Inc., 456 So.2d 612, 616 (La.

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1984); Livingston Parish Police Jury v. Acadiana Shipyards, 598

So.2d 1177, 1183 (La. App. 1* Cir.), writ denied, 605 So. Zd 1122

(La. 1992); Bartlett v. Browning-Ferris Industries Chemical

Services, Inc., 99-494 (La. 11/12/99); 759 So.2d 755. It has been

established that the existence of issues particular to individual

members of the class does not defeat commonality. McCastle, supra,

456 So.2d at 620.

The Court finds that the claims of the Class members have a

sufficient common character and are derived from a common source.

Their claims against the defendants are directed at the common

nature of the defendants’ conduct. The Court finds, therefore, that the

"commonality" requirement is satisfied in this case. La. C.C.P. art.

591(A)(2).

3. Typicality

The "typicality" criteria is a relatively new statutory requirement

for certification. Louisiana state courts, however, judicially adopted

this requirement years ago, so it is not new to Louisiana class action

jurisprudence. See e.g. Adams v. CSX Railroads, 615 So.2d 476, 482

(La. App. 4" Cir. 1993); Dumas v. Angus Chemical Co., 25,632 at 6

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(La. App. 2d Cir. 3/30/94); 635 So.2d 446, 450.

This criteria combines elements of commonality and adequacy

by requiring that the Class Representatives assert claims that are

typical or a cross-section of those asserted or raised by the rest of the

members of the Class. This criteria also includes a consideration of

the Class Representatives’ claims to determine whether any are

adverse to or substantially different in general type from those

asserted by the rest of the Class.

In every class action, except those primarily seeking injunctive

relief, there are almost always differences between and among

members of the Class in the amount and degree of damages each

claims to have suffered. But these differences in degree or amount

are not typicality factors. Typicality is only concerned with the types

of claims being asserted, not with the degree or amount of damages

being requested. See Billieson v. City of New Orleans, 98-1232 at 17

(La. App. 4" Cir. 3/3/99); 729 So.2d 146, 157, writ denied, 99-0946

(La. 10/29/99); 749 So.2d 644.

Each of the Class Representatives testified about the type and

nature of their claims:

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Mrs. Martello testified that she experienced mental and

emotional distress and stress; non-reimbursed business expenses;

loss of business income; annoyance, discomfort, and inconvenience.

Mr. Massey testified that. he experienced mental and emotional

distress and stress; non-reimbursed business and personal expenses;

and annoyance, discomfort, and inconvenience. Mrs. Guidry

testified that she experienced mental and emotional distress and

stress; non-reimbursed business expenses; loss of business income;

annoyance, discomfort, and inconvenience; and property damage.

Mrs. Roberts testified that she experienced mental and emotional

distress and stress; non-reimbursed personal expenses; annoyance,

discomfort, and inconvenience. Mrs. McKinney testified that she

experienced mental and emotional distress and stress; non-

reimbursed personal expenses; annoyance, discomfort, and

inconvenience; and fear of disease or illness for her family.

Each of the Class Representatives also testified about their

residential or business relationship with the Town of Fernday during

the "Boil Water Notice":

Mrs. Martello testified that she lives in the Town, owns and

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operates a business in the Town, works in the Town, and owns

property in the Town. The water to her home and her business iS

supplied by the Town of Ferriday water treatment plant. Mrs. Guidry

testified that she owns and operates a business and property in the

Town and works in the Town. The water to her business is supplied

by the Town of Ferriday water treatment plant. Mr. Massey testified

that he operates a business in the Town and works in the Town. The

water to the business he operates 1s supplied by the Town of Ferriday

water treatment plant. Mrs. Roberts lived in the Town and still owns

property in the Town. The water to her home in Ferriday 1s supplied

by the Town of Ferriday water treatment plant. Mrs. McKinney lives

and owns property in the Red Gum area of Ferriday, and works in the

Town. The water to her home and the business where she works 1s

supplied by the Town of Ferriday water treatment plant.

The Court finds that the testimony of these Class Representatives

about the nature and type of their claims was direct and creditable.

It was not emotional, exaggerated or contrived. They each genuinely

expressed, in their own words, what they experienced during the

"Boil Water Notice" and why they believe they should be

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compensated. Whereas the Court reaches no conclusions at this time

about the merits of their claims, their testimony about the nature and

type of their claims persuades the Court that their claims are, in fact,

typical of all persons who were living in, working in, owning

property in, and/or owning and operating a business in the Town of

Ferriday during the "Boil Water Notice".

The Court finds that individually and as a group the claims of

these Class Representatives are typical of the claims of the Class

members because they are similar in nature, they arise from the same

alleged course of each defendant’s conduct, and they are all based on

the same legal theories under Louisiana law. The Class

Representatives demonstrated to the Court during their testimony

that they are capable and prepared to represent the interests of the

absent Class members.

The Court further finds that the Class Representatives are typical

within the meaning of that term in Louisiana class action

jurisprudence because they each seal claims that are a cross-

section of the Class they seek to represent. Louisiana’s "adequacy of

representation” criteria "requires that the claims of the class

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representatives be a cross-section of, or typical of, the claims of all

class members." See e.g. Dumas, supra, 635 So.2d at 450; Livingston

Parish, supra, 598 So.2d at 1177; Lailhengue v. Mobil Oil Co., 94-

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2114 a 5-6 (La. App. 4 Cir. 6/7/95); 657 So.2d 542, 546; Ford v.

Murphy Oil, 96-2913 at 4 (La. 9/9/97); 703 so.2d 542, 544.

Louisiana, however, does not require that either the Class

Representatives or their claims be identical to all the Class members

or to any Class members within the Class. /d.

The Court finds that the five (5) appointed Class Representatives

present claims that are typical of those likely to be presented by the

absent members of the Class certified herein. Their claims are a

cross-section of the claims of the Class members, and are derived

from the same common source. Their claims against the defendants

are typical of all claims directed at the common nature of the

defendants’ conduct. The Court finds, therefore, that the "typicality”

requirement is satisfied in this case. La. C.C.P. art. 591(A)(3)

4. Adequacy of Representation

The evidence that was presented at the Class Certification

hearing satisfies the Court that the claims of the five (5) persons now

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appointed to serve as Class Representatives and the claims of the

absent Class members (defined above) have a common character that

predominates over their individual differences, and that the claims of

these five (5) Class Representatives are typical of the claims of the

members of the Class identified herein. The Court finds that none of

the Class Representatives has any personal or financial interest in the

outcome of this Class Action litigation that 1s adverse to the interests

of the absent members of the Class, and also that each of them has

demonstrated that they are able and willing to serve in the capacity

of a Class Representative. La. C.C.P. art. 591(A)(4).

Louisiana requires class actions to be litigated by and through

one or more adequate representatives who participate on behalf of

and for the absent class members. Satisfying this element requires

the proposed Class Representatives to establish that their claims are

"a cross-section of, or typical of, the claims of all class members."

Andry v. Murphy Oil, U.S.A. Inc., 97-0793 at 6 (La. App. 4" Cir.

4/1/98); 710 So.2d 1126, 1130.

During the hearing, each proposed Class Representative testified

before the Court about their personal and family background, their

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work background, their experiences with the Town of Ferriday’s

water, and of the hardships and problems they claim that they each

suffered during the 1999 "Boil Water Notice”. Each proposed Class

Representative was questioned about the nature of their claims, their

understanding of the nature of a class action, and their understanding

of the role of a Class Representative. The Court finds that each of

these witnesses were creditable, candid and forthnght in their

answers, and that they each posses a good understanding of their role

in this case.

The Court also finds that the following attorneys have the

necessary skill, background, expertise, experience, and absence of

any conflict of interest, in order to be designated as a Class Counsel,

and are hereby appointed as such: 1. Charles S. Norris, Jr. Liaison

Counsel for the Class, of Vidalia, Louisiana; and 2. Stephen B.

Murray; 3. Linda S. Harang; and 4. Julie A. Jacobs, all of the Murray

Law Firm, of New Orleans, Louisiana.

Each of these counsel submitted an Affidavit to the Court, with

a curriculum vitae outlining their experience in litigation in general,

and particularly in class action litigation. These Affidavits attest to

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their desire to be staunch advocates for the Class, and that they are

financially able to fund this litigation for the Class. Their Affidavits

attest that they are each free of any conflict of interest. Each counsel

also attached a current Certificate of Good Standing from the

Louisiana Supreme Court as further evidence of their fitness to serve

a Class Counsel. No evidence was introduced at the hearing to

contradict or challenge any of the information in these Affidavits or

curriculum vitae. Additionally, by their presentation to the Court of

their witnesses and evidence during the Class Certification hearing,

these counsel have demonstrated to the Court that they are able to

adequately and ably represent the Class.

The Court finds, therefore, that as to five (5) Class members now

appointed to serve as Class Representatives, and as to the four (4)

attorneys appointed to serve as Class Counsel, the "adequacy of

representation" requirement is satisfied. La. C.C.P. art. 591(A)(4).

5. Adequate, Objective Class Definition

The evidence in the record supports the Court’s decision to

define the Class as:

All persons, businesses, or entities who belong to at least one of

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the following five groups, and who, as a direct result of receiving

their water from the Town of Ferriday 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.

Residents of the Town of Ferriday or any adjacent

community at any time between August 20, 1999 and

December 22, 1999, and who received their water

supply to that residence from the Town of Ferriday

Water Plant;

Owners and/or operators of businesses in the Town of

Ferriday or any adjacent community at any time

between August 20, 1999 and December 22, 1999, and

that received their water supply to that business from the

Town of Ferriday Water Plant; and

Lessors of residential and/or commercial property

located in the Town of Ferriday or any adjacent

community at any time between August 20, 1999 and

December 22,1999, and that received their water supply

to that property from the Town of Ferriday Water Plant;

and

Employees of businesses in the Town of Ferriday or any

adjacent community at any time between August 20,

1999 and December 22, 1999, and that received their

water supply at their place of employment from the

Town of Ferriday Water Plant.

School students or patients in health care facilities who

were required to be in the Town of Ferriday at any time

between August 20, 1999 and December 22, 1999, and

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that received their water supply at their school or health

care facility from the Town of Ferriday Water Plant.

Several witnesses testified about the people, residences, and

businesses that were included in the State’s "Boil Water Advisory"

and "Notice". William McKeel, who was the operator of the Ferriday

water treatment plant at the time of the "Notice" testified that all

residences and businesses supplied by the Ferriday water treatment

plant were included in the "Notice". Then-Mayor Odeal Montgomery

testified that when she received the information from the State,

everyone was included - all residences and businesses. Michael

Cazes, Regional Engineer for the Louisiana State Department of

Health and Hospitals, confirmed in his testimony that all residences

and businesses served by the Ferriday water treatment plant were

included in the "Advisory" and the "Notice".

The Class Representatives themse!ves, by the very nature of their. .

home and work experiences, justify the categories or subclasses of

persons included in the Class definition. Three of the Class

Representatives (Martello, McKinney, and Roberts) lived in the

Town when the "Advisory" and "Notice" started, and two of them

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(Martello and McKinney) did not move away at any time during the

"Notice". They each claim to have suffered inconvenience, emotional

distress, and stress because of the water problems they claim they

experienced at their homes. Mrs. McKinney and Mrs. Roberts claim

to have incurred non-reimbursed personal expenses.

Three of the Class Representatives (Martello, Guidry, and

Massey) operated a business in the Town when the "Advisory" and

"Notice" started and continued operating their businesses throughout

the entire time of the "Notice". They each claim to have suffered

inconvenience, emotional distress, and stress because of the water

problems they claim they experienced at their businesses. They also

claim that they and their businesses either lost income or incurred

extraordinary expenses as a result of the water problems they claim

they experienced during the entire four (4) months duration of the

"Boil Water Notice".

Four of the Class Representatives (Martello, Guidry, Massey,

McKinney) worked in the Town throughout the entire time of the

"Boil Water Notice". They each claim that they suffered

inconvenience, emotional distress, and stress because of the water

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problems they claim they experienced at their businesses throughout

the entire four (4) months of the "Boil water Notice".

Although none of the Class Representatives was a lessor of

residential or commercial property supplied by the Ferriday water

system during the time of the "Notice", the Court finds it reasonable,

given the other evidence presented, to expect that if there are such

persons, then they likely will have claims similar to those of the

Class Representatives. If the Court is later presented with evidence

indicating that this category should not be included, then the Court

can always modify its definition to exclude this category. La. C.C.P.

art. 592(A)(3)(c). The Court, therefore, includes this category in the

Class definition.

The Court also finds it reasonable to include in the Class school

students and patients in health care facilities who were required to be

in the Town of Ferriday during the "Boil Water Notice". Given the

evidence presented, the Court expects that if there are such persons,

then they likely will have claims similar to those of the Class

Representatives. If the Court is later presented with evidence

indicating that this category should not be included, then the Court

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can always modify its definition to exclude this category. LaC.CP.

art. 592(A)(3)(C). The Court, therefore, includes this category in the

Class definition.

The Court specifically excludes, however, from the Class

definition any person who might be described as "transient" in the

Town of Ferriday during the time of the "Boil Water Notice”. For

example, a truck driver who was passing through Ferriday while the

"Notice" was in effect may have been temporarily inconvenienced by

the requirements of the "Notice". The Court finds that the claims of

such a person are too dissimilar from the claims of those who, like

the Class Representatives, had to cope with the problems and

situations caused by the "Boil Water Notice” on a regular, daily

basis. Although such a "transient" person may have the basis for a

claim against one or more of the defendants for his temporary

inconvenience, the Court finds that this type of claim lacks the

common character required for it to be included in this Class. The

Court is satisfied that the Class definition is objective and clear

enough to put such a "transient" person on notice that any claim he

may have is not included for adjudication with the claims of the

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Class, and that if he desires to bring a claim, he must do so in an

individual suit.

The Court finds, therefore, that the Class, as defined herein, is

defined objectively in terms of criteria that are relatively easy to

ascertain. This definition will enable the Court to objectively

determine whether a person or business meets the Class definition for

the purpose of verifying the conclusiveness of any judgment on the

merits that may be rendered in this case. La. C.C.P. art. 591(A){5).

6. Article 591(B) Criteria

In addition to satisfying all five of the criteria under La. C.C.P.

art. 591(A), the plaintiffs also must satisfy at least one of the criteria

or categories under La. C.C.P. art. 591(B). The Court finds that the

testimony and evidence presented by the plaintiff satisfies this

requirement.

A. Article 591(B)(1)(b)

The plaintiff asked the Court to certify this case as a Class

Action under either La. C.C.P. art. 591(B)(1)(b) or La. C.C.P. art.

591(B)(3). Specifically, the plaintiff asked for a 591(B)(1)(b) class

to be certified against the Town of Ferriday and Owen & White, Inc.

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with a 591(B)(3) class to be certified against USFilter Waste Water

Group, Inc.

The article 591(B)(1)(b) class is commonly referred to as the

"limited fund" class. In support of the request to certify the Class

under article 591(B)(1)(b), the plaintiff presented evidence, all

through oral testimony, on the subject of the financial assets and

insurance coverages of the Town of Ferriddy and Owen & White,

Inc. This testimony primarily was from Mayor Odeal Montgomery

for the Town, and from Eugene Owen for Owen & White, Inc. There

was no financial records, insurance policies, or accounting

documents presented regarding either of these defendants.

However, because the Court finds that the evidence in support of

certifying this case to all three defendants under article 591(B){3) 1s

sufficient, there is no need for any further discussion of the

591(B)(1)(b) criteria.

B. Article 591(B)(3)

The Court finds that the evidence presented by the plaintiff

satisfies the criteria for certification under La. C.C.P. art. 591(B)\(3)

as to all three defendants. The article 591(B)(3) class 1s commonly

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referred to as the "predominance and superiority” class.

Predominance:

The first part of the 591(B)(3) criteria requires the Court to find

that "the questions of law or fact common to the members of the

class predominate over any questions affecting only individual

members”. La. C.C.P. art. 591(B)(3).

The evidence presented at the Class Certification hearing

satisfies the Court that the common issues of liability and fault rae

by the Class against all three defendants predominate over the Class

members’ individual claims for damages. The Class Representatives’

testimony satisfies the Court that their 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,

annoyance, and discomfort; mental and emotional distress and stress;

non-reimbursed personal expenses; and also non-reimbursed

business expenses. All of the witnesses testified that they know of no

individuals who suffered any physical bodily injury, disease, or

illness that was diagnosed to be the result of the four (4) month "Boil

Water Notice.”

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As previously stated in these Reasons, the Court finds not only

that the Class member’s claims are of a common nature, but also that

their claims about their water problems onginate from the same

common source - the Town of Ferriday’s only water treatment plant.

Therefore, if any defendant is found to be liable to ust one Class

member due to that defendant’s role in causing or contributing to the

Class member’s water-related complaints, then the finding of

liability as to that defendant should be binding on that defendant to

all the other similarly situated Class members, without the need for

any other Class member to have a trial on the merits of those same

issues.

The Louisiana Supreme Court recognized more than 20 years

ago in Stevens v. Board of Trustees that differences in the recoveries

sought by individual Class members, differences in the particularities

of their claims and circumstances, and specific variations that might

ultimately lead to recoveries by some Class members and not by

others did not obviate the "common character" of a suit based on the

same factual course of conduct by the defendants and the same legal

relationship between the defendants and the Class members. The

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Stevens Court explained that under such circumstances, whether the

tortious conduct arises out of a single incident or a long term course

of conduct, common issues as to liability predominate. The

predominance of common liability issues invokes the "functional and

pragmatic factors” that should be taken into consideration by this

Court in aid of its ultimate determination of whether "the class action

will clearly be more useful than other available procedures for

definitive determination of a common-based nght "Stevens v.

Board of Trustees, 309 So.2d 144, 151 (La. 1975).

Superiority:

The second part of the 591(B)(3) criteria requires the Court to

find that "a class action is superior to other available methods for the

fair and efficient adjudication of the controversy." La. C.C.P. art.

591(B)(3).

The Court finds that the Class Certification hearing itself,

conducted for four (4) days, with all witnesses testifying live before

the Court (for a total of approximately 30 hours of live testimony;

none by deposition), demonstrates the procedural advantage of trying

the Class members’ common issues of liability and fault against all

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three defendants in one common tral, at one time. This is especially

true since there was no expert testimony offered by any party at the

Class Certification hearing on the cause of the Ferriday water

problems or on the cause of the 1999 "Boil Water Notice”. It is clear

to the Court that any such expert testimony would be common to all

Class members, and that trying the defendants’ liability and fault in

one common trial is superior to the other available procedural

methods of either mass joinder and consolidation, or repetitive

individual trials.

It is clear to this Court that such multiple, subsequent trials

would require most, if not almost all. of the same testimony from the

same witnesses and experts, using the same documents and exhibits.

The Court finds, therefore, that managing this case as a Class Action

is the superior method of achieving the goals of fairness and judicial

efficiency. As a Class Action, the Court has the authority to order,

sua sponte, separate trials of separate issues before separate juries.

In all other cases except the Class Action, the consent of the parties

is required. See e.g. La. C.C.P. arts. 1562, 1736. Louisiana

jurisprudence makes note of this unique ability in affirming the use

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of the Class Action procedure for the determination of common

liability issues in mass torts. Adams v. CSX Railroads, 615 So.2d

476, 483 (La. App. 4" Cir. 1993); Dumas, supra, 635 So.2d at 452.

The ability of a district court to order such a tnal without the

stipulation or consent of the parties has been determined to be a

significant factor in the superiority of class action management. Id.

Article 591(B)(3) Factors:

As a part of the predominance and superiority analysis, article

591(B)(3) lists six non-exclusive factors for this Court to consider:

Factor (a) suggests that certification is appropriate when the

Class members have not displayed an interest in individually

controlling the prosecution or defense of separate actions. This

District Court’s records evidence that this is the only suit that has

been filed, onginally identifying only one plaintiff. There are now

four (4) more Class members who have stepped forward with the

named plaintiff, Gloria Martello, and stated their desire and

willingness to serve as Class Representatives. Four (4) Class

Representatives (Martello, Guidry, McKinney, Roberts) testified that

they will pursue their own claims individually if this case is not

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certified as a class action, but none of them has taken any action at

this time to file their own individual suit. The Court finds that this

criteria is satisfied.

Factor (b) suggests that certification is appropriate when there is

no other litigation, or only a few suits are already under way by or

against members of the Class and involving these same issues. As

with factor (a), the District Court’s records evidence that there is no

suit pending or filed in any Court in any District on these same issues

other than this one. The Court finds that this criteria is satisfied.

Factor (c) suggests that certification is appropriate when it is

desirable to concentrate complex litigation is one forum or district.

The focal point of this litigation is the Ferriday water treatment plant

and intake facility. These facilities are located in Concordia Parish,

and serve a Class of persons that 1s predominately located in

Concordia Parish. Most of the witnesses in this case live or work in

Concordia Parish. There has not been any challenge by the

defendants to this District Court as the proper venue or forum for this

litigation. The Court finds that this criteria is satisfied.

Factor (d) suggests that certification is appropriate when it is

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determined that directing the case as a Class Action will not present

or create any irreconcilable management difficulties. This Court

recognizes that a case of this type inevitably will create some

management problems. Since it is this Court that must ultimately

reconcile and solve these problems, this Court must decide how best

to try the claims of these Class members.

The Court believes that it is capable of solving the management

problems that this case may present, but the Court can avail itself of

assistance, if needed, in the form of Court-appointed experts (La.

C.C.P. arts. 192, 373), or a Court-appointed Special Master (La. R.S.

13:4165). If however, the problems become too difficult to resolve,

this Court always has the discretion to alter or amend the Class

definition, or decertify some or all of the Class. La. C.C.P. art.

592(A)(3)(c). In exercising this discretion, the Louisiana Supreme

Court has held that, because of a Court’s ability to review and/or

modify its certification ruling at any time, "if an error is to be made,

it should be made in favor of and not against the maintenance of the

class." McCastle, supra, 456 So.2d at 620; Ellis v. Georgia-Pacific,

550 So.2d 1310, 1318 (La. App. 1* Cir. 1989), writ denied, 559

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So.2d 121 (La. 1990); La. C.C.P. art. §92(A)(3)(c). The Court finds,

therefore, that this criteria is satisfied.

Factor (e) suggests that certification is appropriate when it would

be impractical or unlikely for the Class members to be able to pursue

their claims but for the class action procedure. This factor is

particularly important in cases such as this one, where the Court

anticipates that many of the Class members may have claims that

might be considered "negative value" claims. The policy of

providing a meaningful opportunity for persons with low value

claims to pursue a remedy is at the very core of the rationale behind

the class action procedure. The United States Supreme Court has

even said that the most dominant reason for a Rule 23(b)(3)3 class

action is the vindication of the rights of groups of persons with

negative value claims. See Amchem Products, Inc. v. Windsor, 117

S. Ct. 2231, 2246 (1997). The Court finds that this criteria is

satisfied.

Factor (f) suggests that certification is appropriate when the

relief being demanded, including the vindication of any implicated

public policies or legal rights, justifies the costs and burdens of class

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litigation. As was mentioned earlier, it even one plaintiff filed an

individual suit against these three defendants, because of the nature

of the case, the issues involved, and the scientific nature of many of

the facts, this case would be considered complex litigation.

Having five (5) Class Representatives litigate all of the common

issues of liability and fault at one time, with the outcome having res

judicata effect for more than 4,500 Class members, will save costs

and streamline the litigation. The Court finds that the cost of trying

all of the common issues of liability and causation in one trial, with

the Class represented by the five (5) Representatives herein

appointed, sufficiently outweighs the prospect of trying these same

issues repetitively. The Court finds that this criteria is satisfied.

The Court finds, therefore, that a criteria of La. C.C.P. art.

591(B)(3), which requires that the common issues must predominate

over the individual ones, and which also requires that the class action

procedure must be superior to other available procedural methods for

managing and trying the claims, is satisfied in this case as to all three

defendants.

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DODD CNO CC RaaEE.==S=aeaeiemuu-_-- & °° °& &;«&»~»~&~&=; «©.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

P O Box 16577

Lake Charles, LA 70616

(337) 433-9403

Anna Kay Brakenridge Jon Keith Guice

Attorney at Law Hammond & Sills

1112 North Second Street 1103 Royal Street

Ferriday, LA 71334 Monroe, LA 71201

Randall Brian Keiser

Keiser & Auzenne Judgement on Rehearing Rendered

P O Box 12394 May 1, 2002

Alexandria, LA 71315-2394

REHEARING ACTION: May 1, 2002

Docket Number: 01 01240-CA

GLORIA MARTELLO

VERSUS

CITY OF FERRIDAY, ET AL

Appealed from CONCORDIA Parish Case No. 36358

BEFORE JUDGES:

Hon. Ned E. Doucet, Jr.

Hon. Billie Colombaro Woodard

Hon. Elizabeth A. Pickett

As counsel of record in the captioned case, you are hereby

notified that the application for rehearing si! by Town of Ferriday

has this day been

DENIED

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FOR THE COURT

Kenneth J. deBlanc

Clerk of Court

Shone Pierre Baker, Counsel for the Appellee

Linda Suzanna Harang, Counsel for the Appellee

Charles Shelby Norris, Jr., Counsel for the Appellee

Lisa Cutitto Winter, Counsel for the Appellee

John Powers Wolf III, Counsel for the Appellee

Randall Brian Keiser, Counsel for the Appellant

Anna Kay Brakenridge, Counsel for the Appellant

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ae Appendix E

;

The Supreme Court Of The State Of Louisiana

GLORIA B. MARTELLO

VS. NO. 2002-C-1514

CITY OF FERRIDAY AND OWEN AND WHITE, INC.

IN RE: Ferriday City of etal; - Defendant; Applying for Writ of

Certiorari and/or Review, Parish of Concordia, 7" Judicial

District Court Div. A, Nos. 36,358-A; to the Court of Appeal,

Third Circuit, No. 01-0240

June 7, 2002

Denied.

BJJ

PFC

CDK

JPV

CDT

JTK

JLW

Supreme Court of Louisiana

June 7, 2002

Deputy Clerk of Court

For the Court

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