NEW ORLEANS (Legal Newsline) - Defendants accused of creating a public nuisance by operating a smelly dump in Louisiana can’t delay a trial while they wait to see if a court certifies a class action over the same questions, the Fifth Circuit Court of Appeals ruled in a decision that dismissed the defense theories as wrong.
Residents near the Jefferson Parish Landfill sued the parish as well as Waste Connections Bayou and Aptim Corp. over noxious emissions from the site from 2017 to 2019. They complained of headaches, nausea, vomiting, anxiety and other ailments.
Lawyers filed a proposed class action as well as a mass action consisting of more than 500 individual lawsuits. After nearly five years of pretrial maneuvering, including a trial judge’s decision that the plaintiffs had established the central element of causation, a bellwether trial was scheduled for this month to test the strength of the plaintiff claims.
The defendants moved to halt the trial, arguing Rule 23 of the Federal Rules of Civil Procedure, which lays out the class action procedure, prohibited any trials of individual claims until the class action was certified. The trial court rejected this argument, so the defendants sought a writ of mandamus from the Fifth Circuit.
Their request was denied in a tart ruling dated Aug. 24. Mandamus is “an extraordinary form of relief” reserved for cases where judicial error is clear, the Fifth Circuit said.
“It is not for testing novel legal theories,” the court said. “And petitioners’ theory is not merely new; it is also wrong.”
The defendants argued Rule 23 requires courts to rule on class certification before trying any related lawsuits. “And yet, petitioners cannot identify even a single case with this holding,” the Fifth Circuit said. While it is true a class action can’t be tried until the class is certified, the court went on, no such limit applies to individual lawsuits filed outside the class mechanism.
The court rejected arguments allowing the individual suits to go to trial would violate the U.S. Supreme Court’s prohibition of “one-way intervention.” Before Rule 23 was amended in 1966, potential class members could wait on the sidelines as the class action was tried and decide whether to join it or opt out after a verdict.
Rule 23 was amended to prevent that and there’s no possibility of it happening here, the Fifth Circuit said, making an analogy to baseball teams. The class action and the individual suits “are separate teams. But they share something in common: they both have left-handed pitchers.”
The class action lawyers can learn something by watching the individual plaintiffs and change their game strategy if the individual plaintiffs lose. But the defense is watching the game, too, and can change its strategy if the plaintiffs win. Meanwhile, the individual plaintiffs can’t join the class after trying their cases and losing.