Burkhead v. Louisville Gas & Electric Co.

250 F.R.D. 287, 2008 U.S. Dist. LEXIS 22651
CourtDistrict Court, W.D. Kentucky
DecidedMarch 21, 2008
DocketCivil Action No. 3:06CV-282-H
StatusPublished
Cited by14 cases

This text of 250 F.R.D. 287 (Burkhead v. Louisville Gas & Electric Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkhead v. Louisville Gas & Electric Co., 250 F.R.D. 287, 2008 U.S. Dist. LEXIS 22651 (W.D. Ky. 2008).

Opinion

MEMORANDUM OPINION

JOHN G. HEYBURN, II, Chief Judge.

Plaintiffs are all residents of areas surrounding a power plant operated by Louisville Gas & Electric (“LG & E”), who have filed suit against Defendant seeking monetary and injunctive relief for damage allegedly resulting from fallout and noxious odors emitted by that facility. Specifically, Plaintiffs proceed under theories of nuisance, negligence and/or gross negligence, strict liability for ultrahazardous activities, and trespass.

Currently before the Court is Plaintiffs’ motion for class certification, which Defendant has opposed. The parties have briefed the issue and on March 3, 2008 the Court heard oral arguments. Deciding issues of class certification in cases such as this inevitably involves the exercise of care, judgment and appropriate discretion. The Court has attempted to employ proper doses of each and, at every turn, to clearly explain its reasoning. This consideration should not be viewed as a proxy for any decision on the merits of Plaintiffs’ claims.

Having considered the briefs, oral arguments, and evidentiary record, the Court finds Plaintiffs’ motion to be deficient in several significant ways, and therefore, the Court will deny the motion.

I.

Named Plaintiffs, over seventy (70) residents of an area near LG & E’s Louisville, Kentucky facility, have alleged that emissions from LG & E’s operations in the plant have invaded their property in the form of particulate matter (“fallout”) and noxious odors. The Court must take as true their testimony about the nature of the fallout on their property, but cannot give particular credence to a belief that any aspect of the fallout came from the LG & E plant. This would be for others with more specialized knowledge to suggest.

Plaintiffs characterize the fallout blanketing their property variably as black ash, grey ash, black dust, black grit, black soot, sticky black material, white dust, white ash, white powder, yellow-green powdery substance, an oily film, or a syrupy or brine-like substance. Descriptions of the odors are similarly varied and include burnt rawhide, dirty gym socks, acid, a burning smell, sweeVfoul, formaldehyde, burned electrical wire, vinegary, burning hard plastic, barnyard, fingernail polish remover, burning rubber, fish, sewer, sulfur, ammonia, chlorine, cod liver oil, horse manure, skunk, glue, mildew, mold, gas, rotten eggs, garbage, bleach, and urine. Plaintiffs’ Memorandum in Support of Motion for Certification of Class Action, Exhibit 3.

[290]*290Plaintiffs seek certification under Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure of a class defined as follows:

Owners or residents of single family residences within two miles of the LG & E Cane Run facility, whose property was damaged by noxious odors, fallout, pollutants and contaminants which originated from the LG & E Cane Run facility located in Louisville, Kentucky and who have owned or resided at that single family residential home from May 9, 2003 to the present and continuing.

Plaintiffs’ Motion for Certification of Class Action at 113. Plaintiffs estimate that this class may consist of as many as 14,294 people or more, and assert that for this and other reasons, the requirements of Rules 23(b)(2) and 23(b)(3) are met.

LG & E is an electric and natural gas utility. LG & E’s Cane Run facility is a 510-acre coal-fired electrical generating plant. As part of its operations at the plant, LG & E burns approximately 1.3 million tons of coal annually and stores piles of coal on-site. The coal combustion process causes emissions from the plant’s smokestacks which Plaintiffs allege have carried hazardous materials onto their property in the form of odors and particulate matter.1 LG & E has opposed class certification, arguing among other things that the proposed class definition is flawed, that the proposed class representatives do not raise claims typical of those of the class, and that individual issues will predominate over common ones, making Plaintiffs’ claims unsuited for class adjudication.

II.

The Court recently had an opportunity to consider the issue of class certification in a very similar case also litigated by Plaintiffs’ counsel. Brockman v. Barton Brands, Ltd., 2007 WL 4162920 (W.D.Ky. Nov. 21, 2007). In that case, the Court denied certification of a proposed class defined in essentially the same manner as the one currently before the Court.

At oral argument on the instant motion, the Court solicited the opinions of Plaintiffs’ and LG & E’s counsel as to the validity of the Court’s analytic framework in Brockman. Neither side took issue with that framework or sought to dispute the applicability of the precedents to which the Court referred therein. Therefore, the Court has adopted a similar approach to that used in Brockman. The authorities referred to in Brockman will often appear below, and at times the Court’s language will track Brockman verbatim. The Court has expanded and improved on its approach, but any differences in the Court’s language here should not be taken to imply divergence with the basic approach set forth in Brockman. In short, the Court acknowledges and addresses the factual dissimilarities between Brockman and the instant facts and while the Court intends that the discussion below stand on its own as an analysis of the relevant legal principles, similarities in approach are inevitable.

III.

A district court has broad discretion in determining whether class certification is appropriate, Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988), but in arriving at that determination the court has no authority to “conduct a preliminary inquiry into the merits of a suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The likelihood that these individual plaintiffs may have valid claims is not relevant to class certification. However, “sometimes it is necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); see also Manual for Complex Litigation (Fourth) § 21.14 (2004). As such, the Court must conduct a “rigorous analysis” to determine whether the requirements of Rule 23 are met. Falcon, 457 U.S. at 161, 102 S.Ct. 2364. Plaintiffs have the burden to prove the requisite elements of class certification under either or both of Rules 23(b)(2) and (b)(3). In re Am. Med. Sys., 75 F.3d 1069, 1079 (6th [291]*291Cir.1996) (citing Falcon, 457 U.S. at 161, 102 S.Ct. 2364).

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250 F.R.D. 287, 2008 U.S. Dist. LEXIS 22651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkhead-v-louisville-gas-electric-co-kywd-2008.