MOSAIC FERTILIZER, L L C v. HOWARD CURD

• Court: District Court of Appeal of Florida
• Decided: November 9, 2018
• Docket: 17-2302
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

MOSAIC FERTILIZER, LLC, ) ) Appellant, ) ) v. ) Case No. 2D17-2302 ) HOWARD CURD, FLOYD DEFOREST, ) SCOTT MOBLEY, GARY BRUCE, ) DAVID LAGGNER, BRYAN ) IBASFALEAN, PHILIP JOHNSON, and ) ANGELO LOGRANDE, on behalf of ) themselves and all others similarly ) situated, ) ) Appellees. ) ________________________________ )

Opinion filed November 9, 2018.

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Hillsborough County; Steven Scott Stephens, Judge.

David B. Weinstein and Kimberly Mello of Greenberg Traurig, P.A., Tampa, and Andrew J. Patch of Greenberg Traurig, P.A., Tampa (withdrew after briefing), for Appellant.

Andra T. Dreyfus and Casey C. Harrison of Dreyfus Harrison, P.A., Clearwater, and F. Wallace Pope, Jr., of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellees. NORTHCUTT, Judge.

Mosaic Fertilizer, LLC, appeals a nonfinal order granting plaintiffs' motion

for class certification. We reverse because the putative class of plaintiffs failed to

demonstrate a reasonable methodology for proving classwide claims.

Howard Curd and other commercial fishermen sued Mosaic following a

pollutant spill into Tampa Bay. The fishermen alleged that Mosaic owned or operated a

phosphogypsum storage area near Archie Creek in Hillsborough County. Within the

storage area was a pond containing the pollutant-rich wastewater from a phosphate

plant. Although dikes enclosed the wastewater pond, the fishermen alleged that in the

summer of 2004 the Hillsborough County Environmental Protection Commission and

the Florida Department of Environmental Protection warned Mosaic that the pond was

dangerously close to exceeding safe storage levels. In September 2004 Hurricane

Frances swept across Florida, and on September 5, 2004, the dike gave way, spilling

wastewater into Tampa Bay. In their lawsuit, the fishermen claimed that "the spilled

pollutants resulted in a loss of underwater plant life, fish, bait fish, crabs, and other

marine life. [Though the fishermen did not claim ownership of the damaged marine life,

they claimed that the spill] resulted in damage to the reputation of the fishery products

the fishermen are able to catch and attempt to sell." Curd v. Mosaic Fertilizer, LLC, 993

So. 2d 1078, 1079 (Fla. 2d DCA 2008), decision quashed, 39 So. 3d 1216 (Fla. 2010).

The circuit court allowed the fishermen to proceed on their claim, but

ultimately it dismissed the claim as unauthorized by the economic loss rule. See

generally Tiara Condo. Ass'n. v. Marsh & McLennan Cos., 110 So. 3d 399, 401-07 (Fla.

-2- 2013) (discussing the origin and development of the economic loss rule). This court

affirmed and certified questions of great public importance; the Florida Supreme Court

quashed this court's opinion and held that the economic loss rule did not bar the

fishermen from pursuing both a common law negligence claim as well as a statutory

cause of action under section 376.313(3), Florida Statutes (2004). Curd v. Mosaic

Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010) (quashing Curd v. Mosaic Fertilizer, LLC,

993 So. 2d 1078 (Fla. 2d DCA 2008)). The supreme court concluded that section

376.313(3) provides "private causes of action to any person who can demonstrate

damages as defined under the statute," id. at 1222, and that "the discharge of the

pollutants constituted a tortious invasion that interfered with the special interest of the

commercial fishermen to use those public waters to earn their livelihood." Id. at 1228.

On remand, the fishermen filed their fifth amended complaint and made an

initial attempt to certify a class of commercial fishermen. However, the fishermen later

opted to forgo class certification and instead moved to intervene or join the putative

class members and proceed on a nonclass basis. The circuit court denied the motion to

intervene. The fishermen appealed, and this court affirmed without opinion. Anderson

v. Mosaic Fertilizer, LLC, 160 So. 3d 419 (Fla. 2d DCA 2015) (table decision).

Again before the trial court, the fishermen moved for class certification.

They defined the putative class members as:

Those persons engaged in the commercial catch and sale of fish, bait fish, shrimp, crabs, and other living sea creatures in the Tampa Bay and who have lost income and continue to suffer damages because of the pollution, contamination, and discharge of hazardous substances by the defendant, Mosaic.

-3- The fishermen argued that the putative class met all of the threshold requirements of

Florida Rule of Civil Procedure 1.220(a). They also asserted that the putative class met

rule 1.220(b)(3)'s predominance requirement because all members are entitled to

recover under the exact same legal theories and because the members sustained

damages resulting from the same spill. The fishermen concluded that the

"overwhelming common legal and factual aspects between the claims of the named

Plaintiffs and putative class members dwarf any variation in the claims and predominate

over any individualized issues."

Mosaic responded in opposition to class certification. It contended that

the fishermen ultimately would be unable to prove any of their claims, and it attached a

bevy of environmental impact reports authored by various government agencies as well

as private environmental services firms. Mosaic asserted that all of the reports indicate

that the pollutant release from the Mosaic facility was "localized, ephemeral, and

resulted in no statistically significant difference in the composition of the fish and

invertebrate communities" in Tampa Bay. Mosaic attacked the putative class on all

grounds of rule 1.220(a) and argued that the fishermen could not demonstrate a

classwide impact or a methodology for generalized proof sufficient to support

certification.

The circuit court held a hearing on the motion for certification. On the first

day of hearings, the fishermen presented the testimony of two plaintiffs, Eugene Nipper

and Howard Curd. Nipper testified that he is a commercial fisherman who has dived in

the waters of Tampa Bay since the 1970s. He recounted that since he began his

career, he regularly walked on the bottom of Tampa Bay using weights and scuba

-4- equipment. Nipper related that he used to see a flourishing seabed where he walked

the bottom. But after the spill, he said, he began seeing more dead sea life and noticed

that the color of the water changed. Nipper stated that over time, more sponges started

to come back after an initial decline following the spill. After a series of objections from

Mosaic, the court ruled that Nipper was not qualified to offer opinions about the spill's

impact on the condition of the water or on the marine and vegetation life. Nipper's

testimony was restricted to his personal observations and recollections of after-spill

changes to Tampa Bay.

Curd, a commercial fisherman in Tampa Bay for thirty years who fished

primarily for blue crab, testified that in the days following the spill, his traps were filled

with dead blue crab. He also stated that the year after the spill, the blue crab did not

come as far into the bay as they once had. He said that every year after the spill the

crab would stay farther and farther out to sea. Curd testified that several years after the

spill, he was unable to catch any blue crab for two years in a row. Mosaic objected to

Curd's testimony, and the court prohibited him from offering an opinion or belief about

whether the spill caused a decrease in his fishing yields or whether the spill had an

effect on other Tampa Bay fishermen's yields.

After the first day of hearings, the circuit court entered an order requiring

further proceedings for class certification determinations. In the order, the court noted

that time expired at the hearing before Mosaic presented its evidence and ordered the

resumption of the hearing. It noted that after the first day of hearings, the "plaintiffs

have placed in the record sufficient showing that could support the court in its discretion

certifying class." The court further observed that the "common claims predominate

-5- because if the named plaintiffs can prove their damages . . . they would be proving

impact quite remote from the spill site and thus necessarily prove the case of the other

class members." The court sua sponte amended the proposed class definition to

include "holders of commercial fishing licenses who claim to have been damaged by the

spill."

On the second day of hearings, Mosaic tendered the testimony of seven

expert witnesses without objection. The experts gave unrebutted opinions that

supported Mosaic's argument that the spill only caused localized, ephemeral, and

statistically insignificant changes in sea-life communities. More specifically, the experts

opined that the contents of the spill were so quickly diluted and dispersed that there was

no scientifically valid means of predicting or even inferring the spread or presence of

any pollutant outside of the immediate impact area. After Hurricane Frances, the

experts opined, Tampa Bay became so inundated with pollutants and debris from storm

water runoff that there was no reliable method of distinguishing Mosaic's pollutants from

the river and creek sediments, petroleum products, household chemicals, and untreated

sewages that were flushed into the bay. Mosaic's experts concluded that there were no

long-term or population-level effects on any species of marine organism and that the

only effects on marine life were isolated to the immediate area of the spill. Mosaic also

presented an expert on commercial fishing economics who opined that the various

fishing areas covered by the putative class are so diverse in targeted species, contain

such diverse biology and life history of those species, as well as changes in those

species' characteristics over time, that it would be impossible to correlate or make

predictions about those fishing areas.

-6- After the two days of hearings, the circuit court entered an order

bifurcating the case into liability and damages phases and cited to Engle v. Liggett

Group, Inc., 945 So. 2d 1246 (Fla. 2006). The court defined the liability phase as

extending "up to and including determination of the geographic scope of potentially

harmful effects of the spill." The order suggested that after all liability issues were

resolved the court would consider decertification for the determination of individual

damages. The court also granted the fishermen's motion for class certification only as

to the liability phase. It found that the fishermen had met their burden under rule

1.220(a) and that the liability issues—as the court defined them—are common

questions which predominate the individual damages issues. Mosaic appealed the

order bifurcating the case and certifying the class; we have jurisdiction. See Fla. R.

App. P. 9.030(b)(1)(B); 9.130(a)(3)(C)(vi).

We review orders granting class certification for an abuse of discretion.

Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 103 (Fla. 2011). " '[T]he

determination that a case meets the requirements of a class action is a factual finding,'

which falls within a circuit court's discretion." Id. (quoting Bouchard Transp. Co. v.

Updegraff, 807 So. 2d 768, 771 (Fla. 2d DCA 2002)). The circuit court abuses its

discretion where its order is not supported by competent, substantial evidence or if it

makes an erroneous conclusion of law. Id. at 103.

To obtain class certification, the proponent carries the burden of proving

the elements required under rule 1.220. See id. at 106; Ernie Haire Ford, Inc. v. Gilley,

903 So. 2d 956, 958 (Fla. 2d DCA 2005); Marco Island Civic Ass'n v. Mazzini, 805 So.

-7- 2d 928, 930 (Fla. 2d DCA 2001). Rule 1.220(a) contains four threshold elements that

must be satisfied to obtain class certification:

(1) the members of the class are so numerous that separate joinder of each member is impracticable ["numerosity"], (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class ["commonality"], (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class ["typicality"], and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class ["adequacy"].

Additionally, the proponent of class certification must satisfy one of the three

subdivisions of rule 1.220(b). The fishermen alleged and the circuit court found that the

putative class satisfied subdivision 1.220(b)(3), which requires that

the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, ["predominance"] and class representation is superior to other available methods for the fair and efficient adjudication of the controversy ["superiority"].

Rule 1.220(b)(3)'s superiority requirement requires the court to weigh the benefits of

class certification versus proceeding on an individual, nonclass basis. See Sosa, 73

So. 3d at 116 (instructing that courts should consider three factors: whether a class

action would provide the only economically viable remedy to class members, the

likelihood of individual claims large enough to justify the expense of individual litigation,

and whether a class action cause of action is manageable). Rule 1.220(b)(3)'s

predominance requirement, however, calls upon the court to make a "proof-based

inquiry." Id. at 112. A proponent of certification must demonstrate a "reasonable

methodology for generalized proof of class-wide impact" whereby "proving his or her

-8- own individual case, [the putative class representative] necessarily proves the cases of

the other class members." Id.

In this case, the fishermen failed to carry their burden of positing any

reasonable methodology for proving classwide claims. The circuit court sua sponte

amended the putative class to include any holders of commercial fishing licenses who

claim to have been damaged by the Mosaic spill. The fishermen therefore had the

burden of proving—beyond mere "supposition"—some methodology for generalized

proof by which the class representative would necessarily prove the cases of all other

commercial fishing license holders who claim to have been damaged by the spill. Ernie

Haire Ford, 903 So. 2d at 958.

The fishermen's support for class certification amounted only to the

testimony of Curd and Nipper. Both men testified that they were commercial fishermen

who worked in the Tampa Bay waters for over thirty years. Both men testified that they

witnessed changes in certain marine life concomitant with the Mosaic spill. The circuit

court restricted both men's opinion testimony and ruled that they were not qualified to

offer any opinions about the spill's impact on the condition of the water, the spill's impact

on the marine and vegetation life, or whether the spill caused any decrease in the

Tampa Bay fishing yields. Taken as a whole, it is not possible to view Curd's and

Nippers' testimony as plausibly putting forth a reasonable methodology for proving

classwide claims. The circuit court therefore abused its discretion because there was

no competent, substantial evidence supporting its "proof-based inquiry" into and

ultimate determination of rule 1.220(b)(3)'s predominance requirement. Sosa, 73 So. 3d

at 112.

-9- Although the circuit court bifurcated the case into a liability and damages

phases in the vein of Engle, this bifurcation does not change our decision. First, it is not

necessarily clear that Engle prospectively authorized bifurcation as a means of meeting

rule 1.220(b)(3)'s requirements. See Engle, 945 So. 2d at 1267-71; see also Fla. R.

Civ. P. 1.220(d)(4)(A) ("When appropriate . . . a claim or defense may be brought or

maintained on behalf of a class concerning particular issues."). The Engle court cited

numerous federal cases which certified liability questions and which left damages

questions for individual resolution. Engle, 945 So. 2d at 1268-69. Engle also noted a

split of that federal authority on the issue. Id. at 1269 n.11. Ultimately, the Engle court

approved the certification of certain liability issues holding that rule 1.220(b)(3)'s

predominance test was satisfied on the facts presented. However, the Engle court also

underscored the idiosyncratic nature of that case noting that the procedural posture was

"unique and unlikely to be repeated," id. at 1270 n.12, and describing its holding as the

"pragmatic solution" to those unique circumstances. Id. at 1270.

Even assuming that Engle authorized the circuit court to use rule

1.220(d)(4)(A) to certify classwide liability issues, the fishermen did not present a

reasonable methodology for proving those issues classwide. Again, the court's order

certifying class defined the liability phase as containing all issues up to and including

determination of the geographic scope of potentially harmful effects of the spill. Yet the

court's order acknowledges that the "plaintiffs' yet-to-be-revealed evidence of the effect

of the spill" is a question to be resolved at the liability stage. Without making some

antecedent showing of the methodology by which the fishermen intended to prove

classwide claims, the fishermen failed to meet the burden imposed by rule 1.220(b)(3).

- 10 - Accordingly, we reverse the order on appeal and remand for further

proceedings consistent with this opinion.

Reversed and remanded.

KELLY and SALARIO, JJ., Concur.

- 11 -