Contributing Author: Amanda Karp

The Supreme Court of Louisiana recently struck down the trial and appellate courts’ class certification in Alexander v. Norfolk Southern Corp., 82 So.3d 1234 (La. 2012) for a lack of predominance of common issues. The case highlights the critical importance of procuring expert testimony on predominance issues at the class certification stage.

In this case, hundreds of passengers on a train were allegedly exposed to a chemical leak. Quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011), the court determined that to grant a class certification “there must be ‘significant proof,’ subject to ‘rigorous analysis,’ of a common question – one where the ‘determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. at 1236.

The district court had certified a class based on a finding that there were “common issues of law and fact [including] whether the chemicals released … were capable and did in fact cause the alleged damages to the plaintiffs and whether the defendants’ negligence caused damage to the class members.” Id. The Supreme Court of Louisiana reversed.

In particular, the Supreme Court found that undisputed testimony adduced from both plaintiffs’ and defendant’s experts on class issues demonstrated that individual damage determinations would predominate the case. Id. at 1236. Plaintiff’s expert conceded that only 0.1% of the population would be so susceptible to the low concentrations of the released chemical as to cause any symptoms. Id. Further, any particular person’s likelihood to develop symptoms would depend on a myriad of individual factors, including the person’s health, medical history, records, and the dose of exposure he or she experienced. Id. The dose of exposure itself turned on important individual variables, such as the specific location of the plaintiff at the time of the exposure, and whether the plaintiff moved from location to location during the exposure. Id.

Based on the expert testimony, the court held that since each member of the proposed class would necessarily have to offer different facts to establish liability and damages, certification would degenerate into a series of individual trials. Id. The court thus reversed the certification, finding that these individualized determinations predominated and rendered the case inappropriate for class treatment. Id.