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Briggs v. Freeport-McMoran Copper & Gold, Inc.

United States District Court, W.D. Oklahoma

March 28, 2017

HELEN BRIGGS, et al., Plaintiffs,
v.
FREEPORT-MCMORAN COPPER & GOLD, INC., et al., Defendants.

          ORDER

          VICKI MILES-LaCRANGE, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. Introduction

         This action stems from plaintiffs' allegations of continuous and ongoing pollution and contamination in and around the City of Blackwell, Kay County, Oklahoma.[1] Plaintiffs allege the pollution emanates from the Blackwell Zinc Smelter (“Blackwell Smelter”), which plaintiffs allege Defendants own.[2] 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, plaintiffs allege:

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.

         Plaintiffs 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 23(b)(2)&(3).

         II. Motions to Exclude and Strike

         Pursuant 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.[3] 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.

         III. Discussion

         Plaintiffs 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).

         Federal 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 ...

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