United States Court of Appeals For the First Circuit

No. 09-1717

MURRAY GINTIS, ET. AL,

Plaintiffs, Appellants,

v.

BOUCHARD TRANSPORTATION COMPANY, INC., ET. AL,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,

Souter, Associate Justice,* and Selya, Circuit Judge.

Jason B. Adkins, with whom John Peter Zavez, Noah Rosmarin, and Adkins, Kelston & Zavez, P.C. were on brief, for appellants. Ronald W. Zdrojeski, with whom Linda L. Morkan, Peter R. Knight, Robinson & Cole, LLP, Austin P. Olney, Robert G. Goulet, Christopher DeMayo, and Dewey & LeBoeuf, LLP were on brief, for appellees.

February 23, 2010

* The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. SOUTER, Associate Justice. A fuel barge owned and

operated by defendants discharged a substantial amount of oil into

the waters of Buzzards Bay in southeastern Massachusetts.

Plaintiffs are owners of residential waterfront property on the bay

who brought suit as individuals and as members of a proposed class.

The district court denied class certification, but because the

court did not subject the parties’ contentions to the plenary

analysis that precedent requires, we vacate the judgment and

remand.

I

Defendants (collectively, Bouchard) owned and operated

both the tugboat Evening Tide and the fuel barge Bouchard No. 120

in tow across Buzzards Bay on April 27, 2003. The vessels strayed

off course, and the barge struck a reef west of the clearly marked

shipping channel, spilling as much as 98,000 barrels of fuel oil,

and contaminating about 90 miles of the shore.

The cleanup efforts were directed initially by a “Unified

Command,” drawn from the United States Coast Guard, the

Massachusetts Department of Environmental Protection and Bouchard,

and later by a “Licensed Site Professional” (LSP) acting on behalf

of Bouchard but under the supervision of the Commonwealth. The

Command divided the shoreline into 149 segments, which Shoreline

Cleanup Assessment Teams inspected and categorized according to the

degree of oiling observed (clean, very light, light, moderate,

-2- heavy), the final tally being that 120 of the 149 segments were

contaminated. The observations were collected along with

information from other sources and used to produce maps identifying

both the location of oil and the degree of oiling along the water’s

edge. The LSP then used the same segment and degree-of-oiling

references to evaluate the effectiveness of the cleanup efforts,

which the LSP declared complete as to any segment that posed no

significant risk to human health, safety, public welfare, or the

environment. Those segments subject to very light or light oiling,

and those including stretches of sandy beach subject to moderate

oiling, were certified to pose no such risk in May 2004. The

segments remaining (subject to moderate and heavy oiling) were,

with two apparent exceptions, certified in August 2006,1 and the

Commonwealth approved the LSP’s comprehensive assessment in October

2006.

Plaintiffs sued in April 2006, raising three claims, one

under Massachusetts General Law ch. 21E, § 5 (imposing strict

liability for damage to real property on the owner of a vessel from

which oil has spilled), a second for violation of Massachusetts

General Law ch. 91, § 59A (providing double damages for the

negligent discharge of petroleum), and a third for common law

nuisance. Plaintiffs moved the district court to certify a class

1 Despite the late date of certification, it appears that there were no documented closures of recreational areas following the spill.

-3- consisting of all persons having an interest in property damaged by

the spill, save for shorefront residents of the town of

Mattapoisett, who had been certified as their own class in a state

court action against the defendants.

The district court denied the motion for class

certification upon making a finding under Federal Rule of Civil

Procedure 23(b)(3) that common issues of law and fact do not

predominate throughout the many potential claims of those who own,

or own interests in, the bay shoreline. The judge noted that

Bouchard has not conceded liability to any individual plaintiffs,

that on the public nuisance claim plaintiffs must show both

unreasonable interference and special injury to each claimant, and

that plaintiffs must establish compensatory damages specific to

each piece of property. The court relied heavily on the denial of

class certification in Church v. General Electric Co.,

(D. Mass. 2001), which had stressed that recovery for

contamination of land downstream from a point of toxic discharge

into a river would require parcel-by-parcel determinations as to

injury and damages.

II

Decisions on class certification must rest on rigorous

analysis, Gen. Tel. Co. v. Falcon,

(1982); Smilow

v. Sw Bell Mobile Sys.,

(1st Cir. 2003), a standard

that we think is not met by the district court’s opinion, which

-4- listed the elements to be proven by evidence that ultimately must

speak to individual claims, and cited one precedent example among

cases going different ways. Although the district court’s fact

finding was too sparse to provide a prudent basis for us to say

that a class should have been certified, we can say that plaintiffs

presented substantial evidence of predominating common issues that

called for a searching evaluation.

To begin with, Church does not support a general rule

that pollution torts charged against a single defendant escape

class treatment on the ground that the requirements to show injury,

cause and compensatory amount must be sustainable as to specific

plaintiffs. If that were the law, the point of the Rule 23(b)(3)

provision for class treatment would be blunted beyond utility, as

every plaintiff must show specific entitlement to recovery, and

still Rule 23 has to be read to authorize class actions in some set

of cases where seriatim litigation would promise such modest

recoveries as to be economically impracticable. Amchem Prods.,

Inc. v. Windsor,

(1997); Smilow,

.

Thus the Supreme Court has said, “[e]ven mass tort cases arising

from a common cause or disaster may, depending on the

circumstances, satisfy the predominance requirement.” Amchem,

. Although Church is one example of a single

tortfeasor-multiple victim case in which certification was denied,

others in the same genre go the other way. See, e.g., In re Methyl

-5- Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.,

,

447 & nn. 98-104 (S.D.N.Y. 2007) (collecting cases involving a

single incident or cause of harm where certification was granted);

see also Mejdrech v. Met-Coil Sys. Corp.,

(7th

Cir. 2003) (noting that case law on “the appropriateness of class

action treatment in pollution cases” is divided and collecting

cases). Whether Church’s reasoning survives Smilow is a question

we need not address; here, it is enough to note such counter

examples on the books, and the need for a trial court to come to

grips with the actual alternatives of common versus individual

litigation in the specific circumstances.

When that is done on remand, the focus will be on the

plaintiffs’ claim that common evidence will suffice to prove

injury, causation and compensatory damages for at least a very

substantial proportion of the claims that can be brought by

putative class members. The proffer of common evidence goes beyond

Bouchard’s admission of negligence in causing the spill, and

includes the contamination and clean-up records that will be

offered to show harm to individual ownership parcels. Bouchard, to

be sure, says not so fast, for it denies that records of the spill

and its aftermath are exact enough to serve as proof keyed to very

many specific parcels, and the briefs before us contend strenuously

over the evidentiary adequacy of the documentation in question.

But Bouchard’s very opposition to the use of the arguably helpful

-6- records seems to promise that most or all cases, if individually

litigated, would require repetitious resolution of an objection by

Bouchard that is common to each one of them. Bouchard’s position,

in other words, apparently guarantees a crucial common issue of

great importance in the event of individual litigation.

Bouchard has also made it abundantly clear that appraisal

methodology will be another highly significant common issue.

Plaintiffs have offered affidavits of their expert economist in

support of a class-wide methodology for appraising damages

depending on severity and duration of contamination. Bouchard’s

effort to discredit this approach apparently portends a fight over

admissibility and weight that would be identical in at least a high

proportion of cases if tried individually.

It is enough to say here that Bouchard’s arguments in

this appeal appear to show that substantial and serious common

issues would arise over and over in potential individual cases.

Indeed, the only apparent mitigation of this prospect of

duplicative litigation lies in the possibility that not many

individual actions would be brought if separate actions were the

only course, and this implicates the second condition for

certification under paragraph (3), that class litigation be

superior to a string of individual plaintiffs going alone. While

superiority is a separate base to be touched, it is addressed by

many of the considerations that inform a trial court’s judgment

-7- call about how clearly predominant the common issues must be. See

Smilow,

. Here there is evidence that may well go

to the very reason for Rule 23(b)(3), mentioned before (i.e., to

make room for claims that plaintiffs could never afford to press

one by one), since the record contains one estimate that potential

individual recoveries are probably in the $12 to $39 thousand

range. Given the elements of injury, causation and compensation on

which Bouchard intends to join issue, there is a real question

whether the putative class members could sensibly litigate on their

own for these amounts of damages, especially with the prospect of

expert testimony required. Like predominance, the issue of

superiority is thus a serious one in these circumstances and should

be addressed thoroughly.

We repeat that the district court’s spare treatment of

the contending factual claims makes it inadvisable for us to decide

here whether denying class certification (on damages alone or on

all issues, see Fed. Rule Civ. Proc. 23(c)(4); Smilow,

) would be an abuse of discretion. But ruling on

certification without grappling in detail with the parties’

contending proffers and arguments stopped short of exercising

informed discretion, and for that reason we vacate and remand for

plenary consideration.2 Each party shall bear its own costs.

2 Bouchard argues for affirmance on grounds of issue preclusion, invoking the judgment of the Massachusetts state court certifying a class limited to owners of property in Mattapoisett,

-8- So ordered.

instead of the baywide class originally requested by the named plaintiffs. But that judgment has no preclusive effect against these plaintiffs, who were neither parties to the state action nor in privity with those who were. See Migra v. Warren City Sch. Dist. Bd. of Educ.,

(1984) (preclusive effect in federal court of state-court judgment is determined by state law); Sena v. Commonwealth,

(Mass. 1994); Mass. Prop. Ins. Underwriting Ass’n v. Norrington,

, 1366- 67 (Mass. 1985) (“A nonparty to a prior adjudication can be bound by it only where the nonparty’s interest was represented by a party to the prior litigation.” (internal quotation marks omitted)).

-9-