United States District Court, W.D. Oklahoma
MILES-LaCRANGE, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' Motion for Class Certification
and Brief in Support, filed February 23, 2015. On March 27,
2015, defendants Freeport-McMoran, Inc., f/k/a
Freeport-McMoran Copper & Gold Inc., Freeport Minerals
Corporation f/k/a Freeport-McMoran Corporation f/k/a Phelps
Dodge Corporation, Cyrus Amax Minerals Company, and Blackwell
Zinc Company, Inc. (collectively “Defendants”)
responded. On June 25, 2015, plaintiffs replied, and on July
24, 2015, Defendants filed their surreply. Also before the
Court are plaintiffs' Motion to Exclude Certain Opinions
of Dr. Barbara Beck and Defendants' Motions to Exclude
Plaintiffs' Expert Mark Berkman and Brief in Support, to
Exclude Opinions of Plaintiffs' Expert J. Berton Fisher
and Brief in Support, and to Exclude Opinions of
Plaintiffs' Expert Richard DeGrandchamp and Brief in
Support, filed June 26, 2015. Finally, before the Court are
Defendants' Motion to Strike Rebuttal Reports of
Plaintiffs' Experts and Brief in Support, filed July 10,
2015, and Defendants' Motion to Strike Second Rebuttal
Report of Plaintiffs' Expert Richard DeGrandchamp, filed
July 29, 2015. All of the above motions of plaintiffs and
Defendants have been fully briefed. Based on the parties'
submissions, the Court makes its determination.
action stems from plaintiffs' allegations of continuous
and ongoing pollution and contamination in and around the
City of Blackwell, Kay County, Oklahoma. Plaintiffs allege
the pollution emanates from the Blackwell Zinc Smelter
(“Blackwell Smelter”), which plaintiffs allege
Defendants own. The Blackwell Smelter began operations in
1916 and ceased operations on May 17, 1972. Plaintiffs allege
that the Blackwell Smelter has continued to spread pollution
throughout Blackwell from the beginning of its operations
until today. Plaintiffs further allege that smelters, like
the Blackwell Smelter, can cause air-polluting emissions and
that Defendants operated the Blackwell Smelter with no
emission controls. In their First Amended Complaint,
Some of Defendants' pollution was placed directly on the
Plaintiffs' properties. In other cases, the blowing of
the wind picks up Defendants' pollution and distributes
it on Plaintiffs' properties. . [sic] These pollutants
contained considerable amounts of arsenic, lead, cadmium,
zinc and other heavy metals. Defendants' holding areas
and slag ponds were unlined and, as a result, heavy metals,
such as zinc, lead, arsenic, and cadmium, contaminated the
soils and leached into the groundwater.
Fir. Am. Compl. ¶ 122.
filed this instant action seeking actual and punitive damages
and injunctive relief against Defendants for (1) trespass;
(2) private nuisance; (3) public nuisance; (4) negligence;
(5) negligence per se; and (6) unjust enrichment.
Plaintiffs now move this Court to certify this matter as a
class action, pursuant to Federal Rules of Civil Procedure
Motions to Exclude and Strike
to Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993), plaintiffs have
moved to exclude certain opinions of Defendants' expert
Barbara Beck, and Defendants have moved to exclude the
opinions of plaintiffs' experts Mark P. Berkman, J.
Berton Fisher, and Richard DeGrandchamp. Further, Defendants
have moved to strike the rebuttal reports of plaintiffs'
experts and the second rebuttal report of plaintiffs'
expert Richard DeGrandchamp. As set forth below, the Court
finds, even considering the parties' respective expert
reports and opinions, that class certification is not
appropriate in this case. Therefore, the Court finds no need
to address the parties' motions to exclude and
Defendants' motions to strike and finds these motions
should be denied as moot.
not only seek monetary damages but injunctive relief in the
form of remediation and, therefore, move this Court for an
order certifying classes in this action under Rules
23(b)(2)&(3). “The class action is an exception to
the usual rule that litigation is conducted by and on behalf
of the individual named parties only.” Wal-Mart
Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011)
(internal quotations and citation omitted). “To come
within the exception, a party seeking to maintain a class
action must affirmatively demonstrate his compliance with
Rule 23.” Comcast Corp. v. Behrend, 133 S.Ct.
1426, 1432 (2013) (internal quotations and citation omitted).
Further, although the plaintiff ultimately bears the burden
of showing that the Rule 23 requirements are met, this Court
must engage in its own “rigorous analysis” to
ensure that certification is appropriate. See Shook v. El
Paso Cty., 386 F.3d 963, 968 (10th Cir. 2004).
Rule of Civil Procedure 23 provides, in pertinent part:
(a) Prerequisites. One or more members of a class may sue or
be sued as representative parties on behalf of ...