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Hamilton v. 3D Idapro Solutions, LLC

United States District Court, W.D. Wisconsin

August 1, 2019

ANDREA HAMILTON, individually and on behalf of all others similarly situated, Plaintiff,



         In this proposed class action, plaintiff Andrea Hamilton is suing defendant 3D Idapro Solutions, LLC for nuisance and negligence, alleging that foul-smelling odors are emanating from a food-dehydrating plant that 3D Idapro owns. The following motions are before the court: (1) Hamilton's motion for class certification, Dkt. 32; (2) 3D Idapro's motion to exclude the opinions of Hamilton's expert, Dkt. 48; (3) Hamilton's motion to exclude the opinions of 3D Idapro's expert, Dkt. 67; and (4) the parties' joint motion to stay a ruling on other pending motions during settlement negotiations, Dkt. 63.

         The court will deny the parties' motion to stay as moot. The parties asked the court to stay a ruling for four weeks, but that was in April 2019, and the parties have not asked to renew the stay.

         The court will deny Hamilton's motion for class certification and deny the motions to exclude the experts. Even if I credit Hamilton's expert, Hamilton has failed to meet the requirements in Federal Rule of Civil Procedure 23 that there are common questions of law or fact, and that the common questions predominate over any questions affecting individual class members. The court need not and has not considered the opinions of 3D Idapro's expert. Because Hamilton may be able to cure these deficiencies, the court will deny the motion without prejudice and give Hamilton a short time to indicate whether she plans to renew her motion with additional information.


         Hamilton seeks to certify a class of “[a]ll owner/occupants and renters of residential property residing within 1.5 miles of [3D Idapro's] facility's property boundary.” Dkt. 25-1, ¶ 19. The facility is a food-processing plant in Wisconsin Rapids that dehydrates potatoes for use in dog food and other products. It has a history of emitting strong odors in the area, particularly in 2016 and 2017, when residents filed multiple complaints with the City of Wisconsin Rapids and the Wisconsin Department of Natural Resources about the odors. Dkt. 33-5.

         There are three requirements for class certification under Rule 23: (1) the class must be “defined clearly” using “objective criteria, ” Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015); (2) the class must satisfy the threshold requirements of numerosity, commonality, adequacy, and typicality under Rule 23(a); and (3) the class must meet the requirements of at least one of the types of class actions listed in Rule 23(b). In this case, Hamilton seeks certification under Rule 23(b)(3), which applies when “the questions of law or fact common to class members predominate over any questions affecting only individual members, ” and “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Hamilton satisfies the first requirement because she has clearly defined a class that can be identified using objective criteria-a class member is one who owns or rents residential property within the class area. But Hamilton fails to satisfy the requirements of Rule 23(a) and (b) because she has not shown a connection between the proposed class area and the odors released from 3D Idapro's facility.

         Under Rule 23(a)(2), a class action must involve “questions of law or fact common to the class.” Closely related is Rule 23(b)'s requirement that common questions predominate over questions affecting individual class members. But it is not enough to simply raise a common question. An issue of fact or law is common only if it is capable of class-wide resolution. Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 374 (7th Cir. 2015). In other words, class certification is appropriate only if the common questions have common answers, and if the plaintiff can demonstrate that the class members “have suffered the same injury.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011) (citation omitted).

         Hamilton seeks to bring Wisconsin-law claims for negligence and private nuisance on behalf of the class. Her negligence claim has four elements: (1) a duty of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection between the conduct and the injury; and (4) an actual loss or damage as a result of the injury. Martindale v. Ripp, 2001 WI 113, ¶ 33, 246 Wis.2d 67, 89, 629 N.W.2d 698, 707. Hamilton's nuisance claim requires her to establish “a nontrespassory invasion of another's interest in the private use and enjoyment of land” that is either (1) intentional and unreasonable; or (2) unintentional and “otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.” Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶ 30-31, 350 Wis.2d 554, 835 N.W.2d 160. (Hamilton does not specify which type of nuisance claim she is bringing, but her complaint alleges that 3D Idapro both “intentionally and negligently caused an unreasonable invasion Plaintiffs' interest in the use and enjoyment of their property.” Dkt. 29, ¶ 33.)

         Some elements of these claims cannot be resolved on a class-wide basis. Even if all class members were exposed to 3D Idapro's odors, individual inquiries would be required to determine whether the odor was strong enough to interfere with the enjoyment of individual class members' property, or whether individual class members experienced an actual loss or damage. And Hamilton concedes that the extent of damages, such as any diminution in real estate value, will vary from person to person. But even when a claim as a whole cannot be resolved on a class-wide basis, Rule 23 allows an action to be “brought or maintained as a class action with respect to particular issues.” Fed.R.Civ.P. 23(c)(4); see also Bell, 800 F.3d at 379 (“The fact that the plaintiffs might require individualized relief or not share all questions in common does not preclude certification of a class.”). Hamilton contends that whether 3D Idapro was negligent in its operation of the facility, and whether it released noxious odors into the class area, are issues that can be resolved on a class-wide basis.

         Hamilton does not need to prove that she will prevail on the merits to establish that these issues are common to the class. See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). But she must show that the requirements of Rule 23 are met, and the court must make whatever factual and legal inquiries are necessary to determine if the requirements of Rule 23 are met, even if those inquiries overlap with the merits. Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010). This requires the court to “walk a balance between evaluating evidence to determine whether a common question exists and predominates, without weighing that evidence to determine whether the plaintiff class will ultimately prevail on the merits.” Bell, 800 F.3d at 377. The Seventh Circuit explained this balance by comparing two ground-water pollution cases. Id. In Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003), the court certified a class of plaintiffs who alleged that a leaking container contaminated the class area's groundwater. They did not prove that the container had leaked or that the water was even contaminated, but they submitted evidence showing that any contamination in the class area's water could be traced to a single source. In contrast, in Parko v. Shell Oil Co., 739 F.3d 1083, 1084 (7th Cir. 2014), the court reversed certification in part because plaintiffs had not shown that pollution in the groundwater could be traced to a single defendant or that residents in the class area relied on the groundwater as a source of water in their homes.

         This case is more like Parko because Hamilton has not shown that odors suffered by the class area can be traced to a common defendant. She offers two main pieces of evidence in support of the commonality requirement: (1) the results of a survey of the of the proposed class area, and (2) the expert report of Dr. Mark Cal, an atmospheric-dispersion expert. Neither of them establishes that the residents of the proposed class area have suffered a common injury.

         A. Survey results

         The 1.5-mile radius of the class area is based on the results of a survey conducted by Hamilton's lawyers. (Both Hamilton and 3D Idapro refer to the survey results in their arguments, but neither side provided the full results to the court.) In the survey, Hamilton's counsel asked Wisconsin Rapids residents to indicate where they lived, how long they have lived there, and whether they had ever “noticed any offensive odors from the 3D Idapro Solutions facility.” Dkt. 33-1. Respondents who noticed odors were asked to describe them. Hamilton says that residents of about 160 houses responded to the survey, and her liability ...

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