State of West Virginia, ex rel., Surnaik Holdings of WV, LLC v. Honorable Thomas A. Bedell, sitting by assignment as Judge of the Circuit Court of Wood County and Paul Snider

• Court: West Virginia Supreme Court
• Decided: June 8, 2022
• Docket: 21-0610
• Status: Separate

Opinion

FILED June 8, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

No. 21-0610, State of West Virginia ex rel. Surnaik Holdings of WV, LLC v. The Honorable

Thomas A. Bedell, Sitting by Assignment as Judge of the Circuit Court of Wood County;

and Paul Snider

Armstead, Justice, concurring, in part, and dissenting, in part:

The petitioner in this matter, Surnaik Holdings of WV, LLC, (“Surnaik”)

requests this Court to prohibit the circuit court from enforcing an order certifying a class

of individuals, businesses, and government entities that allegedly suffered adverse effects

from a warehouse fire that occurred in Parkersburg in October 2017. 1 According to

Surnaik, class certification is improper because the “overwhelming majority” of class

members have not been injured, because proving the class members’ alleged injuries will

require individual proof, 2 because the class members are not ascertainable, because the

claims of the class representative (respondent Paul Snider) are not typical of the class, and

because the migration of smoke and fumes across a class member’s property is not

actionable. The majority opinion rejects these arguments, and I concur with much of the

1 As the majority opinion notes, we prohibited the circuit court from enforcing a previous class certification order in State ex rel. Surnaik Holdings of WV, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748 (2020), because we found that the circuit court failed to conduct a thorough analysis of the class certification requirements contained in Rule 23 of the West Virginia Rules of Civil Procedure. Id. at 251, 852 S.E.2d at 751. 2 In a closely related assignment of error, Surnaik contends that “no single proximate injury applies equally to each class member” and that federal courts “invariably refuse to certify similar personal injury claims.” majority opinion’s analysis. Nevertheless, I remain convinced that individual questions of

fact predominate in this matter and render class certification inappropriate. Accordingly,

I respectfully dissent and would grant the writ of prohibition.

Predominance Analysis.

For a class to be certified under Rule 23(b)(3) of the West Virginia Rules of

Civil Procedure, “questions of law or fact common to the members of the class [must]

predominate over any questions affecting only individual members . . . .” W. Va. R. Civ.

P. 23(b)(3) [eff. 2017]. Whether common questions “predominate” over individual

questions is an issue that requires “thorough analysis” and “includes (1) identifying the

parties’ claims . . . and their respective elements; (2) determining whether these issues are

common questions or individual questions by analyzing how each party will prove them at

trial; and (3) determining whether the common questions predominate.” Syl. Pt. 7, in part,

State ex rel. Surnaik Holdings of WV, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748

(2020) (emphasis added). Individual questions are those “where ‘members of a proposed

class will need to present evidence that varies from member to member[.]’” Tyson Foods,

Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (quoting 2 W. Rubenstein, Newberg on Class

Actions § 4:50, pp. 196–197 (5th ed. 2012)). Common questions are those “where ‘the

same evidence will suffice for each member to make a prima facie showing [or] [where]

the issue[s] [are] susceptible to generalized, class-wide proof.’” Id. (first alteration in

original). We have held that “circuit courts should assess predominance with its

overarching purpose in mind—namely, ensuring that a class action would achieve

2 economies of time, effort, and expense, and promote uniformity of decision as to persons

similarly situated, without sacrificing procedural fairness or bringing about other

undesirable results.” Surnaik, 244 W. Va. at ___, 852 S.E.2d at 750, syl. pt. 7, in part

(emphasis added). Inefficiency is present when there is a “line of thousands of class

members waiting their turn to offer testimony and evidence on individual issues.” In re

Asacol Antitrust Litig., 907 F.3d 42, 51 (1st Cir. 2018). “[A] class cannot be certified on

the premise that [the defendant] will not be entitled to litigate its . . . defenses to individual

claims.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 367 (2011) (invoking the Rules

Enabling Act, 28 U.S.C. § 2072(b)).

Predominance of Individual Questions Regarding Injury.

In this case, the circuit court has certified a class seeking damages for, among

other things, personal injuries, damage to real property, and loss of use and enjoyment of

real property. As the majority opinion observes, class membership is defined in reference

to

geographic areas (called “isopleths”) surrounding the burned warehouse . . . [that] met two conditions: beginning with the start of the warehouse fire, (1) there were concentrations of fine particles 2.5 micrometers or less in size (“PM2.5”) that had been emitted by the fire; and (2) the fine particles averaged three micrograms per cubic meter (“3 ug/m3”) or more over any twenty-four-hour period during the fire.

This threshold concentration of fine particulate matter stems from an expert report prepared

by Michael McCawley, Ph.D. According to Dr. McCawley’s report, “PM2.5 exposure in

excess of 3 µg/m3 from the warehouse fire particulate is sufficient to cause inflammation 3 and subsequent harm to humans exposed to it[,]” and such “inflammation caused by

exposure to the above-mentioned particulate concentration could be sensed by individuals

as irritation, particularly to the respiratory tract, including the nose and throat.”

However, Dr. McCawley’s deposition revealed that not every member of the

class would experience an adverse reaction to 3 ug/m3 of PM2.5. Indeed, according to his

testimony the vast majority of people exposed to this concentration of fine particulate

matter would experience no discomfort at all:

[T]here’s a distribution of people . . . . So if you’re—you know, what was it, .6% of the people are going to die? So of the .6% of that population, .6% die, well, maybe 10% were feeling sick and maybe another 20% were feeling uncomfortable. That would be the expected sort of distribution that I’m talking about.

(Emphasis added.)

Surnaik calls our attention to this testimony, arguing that class certification

is inappropriate “when the number of uninjured class members exceeds a de minimis

level[.]” I agree. “Uninjured class members cannot prevail on the merits,”thus “their

claims must be winnowed away as part of the liability determination.” In re Rail Freight

Fuel Surcharge Antitrust Litig. - MDL No. 1869, 934 F.3d 619, 624 (D.C. Cir. 2019).

Accordingly, the issue becomes “when . . . the need for individualized proof of injury and

causation destroy[s] predominance?” Id. However, the Asacol court observed,

this is not a case in which a very small absolute number of class members might be picked off in a manageable, individualized process at or before trial. Rather, this is a case in which any 4 class member may be uninjured, and there are apparently thousands who in fact suffered no injury.

907 F.3d at 53 (emphasis added). “[A] class should not be certified if it is apparent that it

contains a great many persons who have suffered no injury at the hands of the defendant[.]”

Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672, 677 (7th Cir. 2009). It is difficult to see

how common questions can predominate in a case where seventy percent of the class has

suffered no injury and the injuries that were arguably suffered may vary greatly.

Perhaps recognizing this problem, the circuit court shifted its focus from

particulate matter to smoke, finding that “three micrograms of PM2.5 per meter of cubic

air over 24 hours is the concentration at which smoke is objectively experienced by

reasonable people as unpleasant, annoying and irritating[.]” (Emphasis added.) This

finding, in turn, allowed the circuit court to find predominance regarding class claims “for

property damage [] and especially nuisance or loss of the use and enjoyment of property[.]”

Regarding these claims, the circuit court found that “common questions related to the duty

and breach of duty elements in both nuisance and negligence claims predominate over the

individual questions related to damages.” According to the circuit court, “individual

questions related to causation for these categories of damages . . . would be so minor as to

hardly impact the analysis[,]” and individual proof of damages would “involve, in most

cases, little more than the testimony and skillful cross-examination of the claimants

themselves as to the impact the event had on their lives.” The majority opinion essentially

adopts this view, finding that “the evidence supports the circuit court’s threshold finding

that all properties within the geographically designated isopleths, and any individuals

5 within those properties, were exposed to levels of smoke particulates at levels sufficient to

cause interference with the use and enjoyment of those properties.”

However, these findings by the circuit court are unsupported by the record.

Particulate matter is not the same thing as smoke. As the report prepared by William

Auberle states, “[t]he plume of smoke from the fire contained solid particles (particulate

matter) and a wide range of gaseous pollutants.” (Emphasis added.) Dr. McCawley’s

report offered an opinion only regarding PM2.5 exposure and resulting inflammation, not

regarding exposure to smoke generally and its varieties of particles and gases. 3 Even with

respect to PM2.5 exposure, Dr. McCawley’s deposition testimony shows that he rejects

any claim that exposure at the level of 3 ug/m3 will cause inflammation in every individual

or be sensed by all persons.

Q. . . . . So when you say, “Exposure in excess of 3 micrograms per cubic meter is sufficient to cause inflammation,” you are not testifying that exposure in excess of 3 micrograms per cubic meter will always cause inflammation? A. That’s correct. Q. . . . . So to use a hypothetical, if the four of us are in the room and a level of PM2.5 exposure in the air right now is 3 micrograms per meter cubed, some of us might experience inflammation and some of us might not, correct? A. That’s correct.

3 Additional evidence that class members were exposed to peak one-hour concentrations of at least 100 µg/m3 of total suspended particulates (“TSP”) does not bolster the circuit court’s finding. Though Mr. Auberle is expected to testify that background levels of TSP range from 20 µg/m3 to 35 µg/m3, nothing in Dr. McCawley’s report indicates how this concentration of TSP is experienced by humans. 6 .... Q. . . . . [Y]ou use [in your report] the phrase “could be sensed.” A. Correct. Q. And so— A. It’s not going to be a hundred percent. Q. So the same thing? A. Same thing. Q. There could be four of us in this room, 3 micrograms per cubic meter, two of us sense it, two of us don’t? A. Correct.

Thus, the circuit court had insufficient basis to find that “three micrograms

of PM2.5 per meter of cubic air over 24 hours is the concentration at which smoke is

objectively experienced by reasonable people as unpleasant, annoying and irritating[.]” In

fact, based on testimony from Mr. Snider’s own expert, no member of the class can be

presumed to have a claim for loss of enjoyment of property. To make such a claim, each

of the more than 57,000 members of the class will have to offer individualized proof of

how he or she (or, in the case of a business or governmental entity, how its employees or

patrons) experienced the smoke and associated particulate matter resulting from the fire.

It seems highly unlikely that any two structures have the same susceptibility to smoke

infiltration, and relevant inquiries for residential properties might include such things as

the age and condition of the structure and whether the occupants were away from their

homes. For business properties, similar questions would arise regarding the age and

condition of the structure, as well as foot-traffic patterns and the number of customers

7 potentially affected. The parties would have a right to explore these and related matters

both at trial and through discovery. It is difficult to see how “mini-trials or bellwether-type

trials” will be feasible due to the challenges in determining whether any group of

“individuals . . . experienced similar levels and concentrations of particulate matter and

smoke invasion” in their homes or businesses. (Emphasis added.)

Individualized questions will also arise regarding property damage claims

and personal injuries. As the circuit court concedes, “not every issue for every element—

especially the element of damages and aspects of causation for claimants alleging bodily

injuries—is capable of class wide resolution.” The circuit court assumes that property

damage claims can be resolved “primarily [by] the individual [c]lass [m]embers’

testimony, and any receipts in their possession” and will “not require extensive document

or expert discovery.” However, this approach does not account for the fact that, on this

record, we do not know how many members of the class, if any, have suffered an actual

injury to property, and injury is an essential element of a negligence claim. Wheeling Park

Comm’n v. Dattoli, 237 W. Va. 275, 280, 787 S.E.2d 546, 551 (2016) (quoting Webb v.

Brown & Williamson Tobacco Co., 121 W.Va. 115, 118, 2 S.E.2d 898, 899 (1939)) (“[T]o

prevail in a negligence suit ‘it is incumbent upon the plaintiff to establish, by a

preponderance of the testimony, three propositions: (1) A duty which the defendant owes

him; (2) A negligent breach of that duty; (3) injuries received thereby, resulting

proximately from the breach of that duty.’” (emphasis added)); see also Carter v. Monsanto

Co., 212 W. Va. 732, 737, 575 S.E.2d 342, 347 (2002) (“[B]efore one can recover under a

8 tort theory of liability[, including nuisance], he or she must prove each of the four elements

of a tort: duty, breach, causation, and damages.”). At present, Mr. Snider is the only named

member of the class, and he could not identify any property damage to his home from the

fire.

Thus, individual proof of injury will be necessary where any member of the

class seeks to recover for property damage, and we have no way of knowing whether tens

of thousands of class members have suffered any injury at all. Even if the circuit court’s

rosy predictions are correct and property damage claims prove relatively simple to litigate,

“[t]he need to identify those individuals [whose property has been injured] will

predominate and render an adjudication unmanageable absent evidence such as the

unrebutted affidavits . . . or some other mechanism that can manageably remove uninjured

persons from the class in a manner that protects the parties’ rights.” Asacol, 907 F.3d at

53–54. However, there is no reason to assume that relevant evidence of property damage

claims will be limited to the class members’ testimony and receipts. Ultimately, there is

no reason to assume that the parties will forego any lawful means of proving or contesting

liability in relation to any class member’s alleged injury to property. 4

A predominance finding is arguably even less tenable for personal injury

claims. Though the circuit court correctly conceded that “individual questions of causation

4 For example, Surnaik might seek to discover and offer proof regarding photographs of properties, prior insurance claims, and the presence of fireplaces and other sources of smoke within a home. The parties may also wish to introduce scientific testing results or expert testimony. 9 of bodily injuries will involve document review (mostly medical records) and expert

testimony (at least, a medical doctor will have to testify to the diagnosis, specific causation,

and ruling out other possible causes)[,]” the circuit court, nonetheless, concluded that

“common duty and breach of duty issues ultimately outweigh, and therefore predominate

over, any difficulties in managing the individual causation and damages questions” and

predicted that “aggregating groups of individual bodily injury claimants according to injury

type” may yield “additional efficiencies[.]”

The circuit court’s analysis simply does account for the reality that class

members may have been exposed to PM2.5 under a variety of different circumstances and

the fact that individual questions of proximate causation and differing exposures often

render class certification inappropriate. See In re Methyl Tertiary Butyl Ether (MTBE)

Prod. Liab. Litig., 241 F.R.D. 435, 448 (S.D.N.Y. 2007) (noting that “proximate causation

often cannot be resolve[d] on a class-wide basis in the case of exposure to a chemical” and

that “class certification is often denied in such cases”); Presbyterian Church of Sudan v.

Talisman Energy, Inc., 226 F.R.D. 456, 477 (S.D.N.Y. 2005) (observing that “certification

is generally granted in a tort case where there is a demonstrated cohesiveness of the class

due to a shared experience that is confined in time and place and produces similar effects”

and that “[w]here these elements are not present, certification is usually denied”); and

Reilly v. Gould, Inc., 965 F. Supp. 588, 602 (M.D. Pa. 1997) (explaining that “it is the

presence of additional individualized factors affecting individual plaintiffs which wreaks

havoc on the notion that all plaintiffs’ injuries have been caused solely by the defendant’s

10 actions”). The individual class members may assert claims of injury or damage, and

Surnaik may assert particularized defenses, each of which may require careful development

of the facts and circumstances surrounding individual class members’ exposure to smoke.

Pursuing such defenses will require substantial discovery from individual class members

and the presentation of individual proof at trial, all of which threatens any attempt to

aggregate and try personal injury claims in groups according to the type of injury asserted.

Ultimately, the only substantial common liability issues in this case are those

that relate to Surnaik’s alleged duty to maintain the warehouse’s sprinkler system and

Surnaik’s alleged breach of this duty. While it is possible that some efficiencies may be

obtained from class-wide resolution of these issues, I am not convinced that these issues

predominate over the individualized claims and justify class certification. Duty and breach

are only two of the three elements that class members must prove to prevail on a negligence

claim. Wheeling Park Comm’n, 237 W. Va. at 280, 787 S.E.2d at 551. If a plaintiff prevails

against Surnaik on the issues of duty and breach of duty with regard to the sprinkler system,

any plaintiff in a subsequent claim may arguably invoke the doctrine of collateral estoppel

to prevent Surnaik from contesting these issues a second time. 5 Thus, the common

questions of duty and breach of duty are not predominant over the individual injury or harm

5 See Syl. Pt. 3, Holloman v. Nationwide Mut. Ins. Co., 217 W. Va. 269, 617 S.E.2d 816 (2005) (“‘Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.’ Syllabus Point 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).”). 11 that each individual class member must prove. Accordingly, because I believe that

individual issues of fact pertaining to injury and causation predominate in this matter, and

because I believe that the circuit court’s finding to the contrary was erroneous, I dissent as

to the issue of predominance and would grant a writ of prohibition on this basis.