United States District Court, N.D. California
DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION;
GRANTING DEFENDANT'S MOTIONS IN LIMINE; AND DENYING
Plaintiff's MOTION TO SUBSTITUTE AND MOTION TO ADMIT
OCTOBER 26, 2016 PHYSALIA REPORT; SETTING CASE MANAGEMENT
CONFERENCE FOR APRIL 14, 2017 AT 3PM Re: Dkt. Nos. 123, 181,
182, 206, 207, 216
ILLSTON United States District Judge
December 9, 2016, the Court held a hearing on Plaintiff's
motion for class certification, Plaintiff's motion for an
order admitting into evidence the Verde/Physalia report dated
October 26, 2016, Plaintiff's motion to substitute a new
fisheries expert, defendant's motion in limine to strike
and exclude the report and testimony of Professor Jasper
Abowei, and defendant's motion in limine to exclude the
socio-economic report and testimony by the authors of the
Onyoma Research Group.
reasons set forth below, after careful consideration of the
voluminous record in this case, the Court concludes that
plaintiff has not met his burden to demonstrate that this
case should be certified as a class action pursuant to
Federal Rule of Civil Procedure 23(a) and (b)(3). Plaintiff
has failed to show through any evidence that causation can be
proven on a classwide basis, and much of the evidence
submitted has been shown to be unreliable. Furthermore, the
Court concludes that plaintiff has not demonstrated
typicality, adequacy or superiority, and the proposed class
definition suffers from numerous deficiencies.
January 16, 2012, an explosion occurred on the KS Endeavor
drilling rig, which was drilling for natural gas in the North
Apoi Field, five nautical miles off of the coast of Nigeria.
Plaintiff Natto Iyela Gbarabe is a fisherman who resides in
the Niger Delta region of southern Nigeria. Plaintiff alleges
that prior to and on January 16, 2012, “a series of
pump failures on the rig led to a massive build-up of
pressure which was reported to defendant Chevron Corporation,
either directly or through [Chevron Nigeria Limited
(“CNL”)].” Fourth Amended Compl. ¶ 4
(Dkt. No. 99). Plaintiff alleges that “[t]he
instruction from Chevron Corp. was to continue drilling the
borehole which proximately caused a ‘blow-out'
manifesting itself in an explosion which killed 2 rig workers
and created a fire which burned, spreading toxins and
hydro-carbons, heating the ocean water and polluting the
same. The fire continued to rage for some 46 days until
extinguished on or about March 2, 2012.” Id.
Plaintiff alleges that the KS Endeavor was operated by KS
Drilling under the management of CNL, which in turn acted at
defendant Chevron's direction. CNL is not named as a
defendant in this action.
January 13, 2014, six plaintiffs (Natto Iyela Gbarabe, Fresh
Talent, Elder Endure Humphrey Fisei, Matthew Kingdom
Mieseigha, Foster Ogola, Chris Wilfred Itonyo) filed this
lawsuit claiming to represent 65, 000 people throughout eight
Local Government Areas of Bayelsa State, Nigeria. Dkt. No. 1
at ¶¶ 9, 24. The original complaint alleged,
Each of the Plaintiffs brings this action on behalf of
themselves and their communities for which each has been
designated a ‘leader.' Some 65, 000 persons have
been identified as having been directly affected by,
interested in and have claims arising out of the incident of
January 16th 2012 and a list of those currently identified
with claims are to be found at the offices of the Nigerian
representative, A.P. Egbegi of Bayelsa State, Nigeria who
holds a power of attorney to act on behalf of the communities
and which list will be made available. The said power of
attorney has been granted in turn to the attorneys herein
representing the Plaintiffs.
Id. ¶ 9.
complaint alleged that the plaintiffs and the people they
represented suffered “losses to their livelihood,
” “environmental disaster impacting upon food and
water supplies, ” and “health problems, ”
and the complaint sought “compensation arising out of
the Defendants' gross negligence, willful misconduct,
negligence per se, acts of nuisance and negligent infliction
of emotional distress and breaches of Nigerian law - in
particular the Nigerian Oil Pipelines Act 1990, the Petroleum
(Drilling and Production) Regulations 1969 and the Land Use
Acts of 1978.” Id. ¶ 3. The complaint
alleged that “[e]xpert reports have concluded that
there have been significant environmental impacts and all
areas have been subjected to various degrees of
damage.” Id. ¶ 25.
case was initially assigned to Judge Samuel Conti. Judge
Conti dismissed the original complaint in part because the
six plaintiffs purported to represent other members of the
Nigerian communities allegedly affected by the explosion and
fire, but they did not bring the case as a class action. Dkt.
No. 30 at 10-11. Plaintiffs had argued that it is common
practice in Nigeria for large groups of plaintiffs to sign
onto a lawsuit by executing powers of attorney. Dkt. No. 25
at 17-18. As the Court explained, however, “the Federal
Rules of Civil Procedure require that an action be prosecuted
in the name of the real party in interest.” Dkt. No. 30
Conti also dismissed the complaint because plaintiffs had not
adequately alleged injury to the six plaintiffs. Judge Conti
noted that plaintiffs had merely listed general categories of
damages they allegedly suffered, but that nowhere did they
explain how the explosion or fire on the KS Endeavor harmed
plaintiffs. The Court explained:
There is no discussion whatsoever of how a fire on an
offshore rig damaged the businesses, livelihoods, property,
or health of Dr. Ogola or any of the other plaintiffs in this
case. Plaintiffs make claims about damage to fish, livestock,
contamination of water and soil, and “general health
breakdown.” But there are no allegations that the
damaged livestock belonged to Plaintiffs, that the
Plaintiffs' livelihoods depended on fisheries, that the
contaminated water or soil harmed them or their property, or
that the “general health breakdown” affected
Id. at 10 (citation omitted).
being granted leave to amend, plaintiffs filed their first
amended complaint as a class action on behalf of 65, 000
“clients.” Dkt. No. 34 ¶ 12. Plaintiffs
again alleged that expert reports showed damages in
“all areas” (id. ¶ 30), and
plaintiffs relied on the allegations regarding expert reports
showing “the severe impact upon these communities of
the trauma of the explosion” in opposing
defendant's motion to dismiss. Dkt. No. 40 at 3:12-13.
Judge Conti granted defendant's second motion to dismiss,
finding that the amended complaint only alleged injury to
unidentified class members and failed to allege that the
named plaintiffs had suffered injury in fact. Dkt. No. 44 at
September 3, 2014, plaintiffs filed the second amended
complaint. Dkt. No. 45. The second amended complaint added
allegations of property damage and adverse health
consequences for the six plaintiffs. Id.
¶¶ 12(i)-(vi). It alleged, for example, that
Plaintiff Natto Iyela Gbarabe is a fisherman in Koluama 1, in
the Southern Ijaw Local Government area of Bayelsa State. He,
like other members of this particular community, which
depends upon fishing for its primary method of earning a
living, suffered personal loss by way of an almost total loss
of yield in the waters customarily fished by plaintiff after
the KS Endeavor rig explosion and 46 day fire. The diminution
in yield in the area plaintiff customarily fishes continues.
Plaintiff further suffered health [sic] from the effects of
the polluted air and water caused by the gas rig explosion of
the KS Endeavour, which included diarrhea and vomiting.
Plaintiff is aware of other community members who suffered
the same health issues, as well as additional debilitating
conditions caused by the released pollutants, such as skin
rashes and boils.
Id. ¶ 12(vi). As with the previous complaints,
the SAC realleged that expert reports showed significant
environmental impacts and damage to “all areas.”
Id. ¶ 33. Plaintiffs also attached to the
second amended complaint a document titled “Schedule A,
” listing the names of 65, 000 putative class members
across Bayelsa State and the economic damages each allegedly
incurred.Dkt. No. 45-1 to 45-4.
moved to dismiss the second amended complaint on several
grounds, including that plaintiffs had failed to allege
causation and that the allegations of harm up to 60 miles
inland were facially implausible. Dkt. No. 49 at 4-6. In
opposition, plaintiffs argued that their allegations were
sufficient and they reiterated that their claims were
supported by “expert reports [that] have identified the
severe impact upon the communities[.]” Dkt. No. 51 at
4. Judge Conti granted in part and denied in part
Chevron's motion. Judge Conti found that plaintiffs'
amended allegations were not implausible on their face, and
he noted that plaintiffs were not required to prove causation
at the pleadings stage. Dkt. No. 56 at 4-5. Judge Conti
dismissed plaintiffs' public nuisance claim with
prejudice and granted Chevron's motion to strike the
second amended complaint to the extent that it asserted
claims on behalf of communities rather than the
communities' individual members. Id. at 9.
January 23, 2015, the parties agreed to limit the first phase
of discovery to issues relevant to class certification. Dkt.
Nos. 63, 69. The parties agreed to a class certification
schedule under which plaintiffs would file their class
certification motion by August 6, 2015, with a hearing
scheduled for December 4, 2015. Dkt. No. 69.
March 18, 2015, the parties stipulated and the Court entered
an order modifying the class certification schedule. Dkt. No.
76. The stipulation stated that the extension of time was
necessary because “plaintiffs' counsel has advised
that their retained experts are investigating which named
plaintiffs and alleged class members have what
plaintiffs' counsel consider objectively sustainable
claims and, based on that investigation, anticipate reducing
the number of named plaintiffs and class members and/or the
scope of the proposed class.” Id. at 1:23-26.
The stipulation and order provided:
June 1, 2015 will be the deadline for plaintiffs' counsel
to file the appropriate pleadings for the purpose of limiting
the currently identified lead plaintiffs and/or prospective
class members to those deemed by plaintiffs' counsel to
have sustainable claims. If plaintiffs intend to narrow the
definition of the class from the description in the CMC
Statement filed January 23, 2015, they shall do so in an
appropriate pleading by June 1, 2015.
Id. ¶ 1.
12, 2015, Chevron moved to dismiss with prejudice the claims
of Foster Ogola, Elder Endure Humphrey Fisei, Fresh Talent,
Matthew Kingdom Mieseigha, and Chris Wilfred Itonyo for
failing to respond to Chevron's first and second requests
for production and first set of interrogatories. Dkt. No. 77.
That discovery sought the basis for plaintiffs'
allegations of statewide injury and injury to the named
plaintiffs and the 65, 000 putative class members. Dkt. No.
78 ¶¶ 1-3. In response to Chevron's motion,
plaintiffs filed an opposition that did not actually oppose
the dismissal of the five plaintiffs, and acknowledged that
the five plaintiffs did not have articulable claims of
damage. Dkt. No. 80 at 5. The opposition also stated:
What has changed, through the development of scientific
evidence, is the defined area within which the complaint
alleges environmentally damaging pollution from an
exploratory gas rig explosion and fire impacted individuals
and their communities within the Nigerian State of Bayelsa,
causing damage to the land, coastal waters, rivers, inlets
and waterways and impacted the health and livelihoods of
individuals within the area contaminated.
This objective scientific evidence rendered it apparent to
plaintiffs' counsel that some - though not all - of the
communities represented by five of the six lead plaintiffs
could not articulate a provable claim for environmental
damage from the signature incident - a good faith
determination that, when communicated, was not met favorably
by the five lead plaintiffs representing, in part, those
communities deemed to be outside said definable zone of
Dkt. No. 80 at 2:13-23; see also id. at 3:17-20
(“It is counsels' careful investigation that has
developed evidence that the full effect of the explosion, and
thus the impact zone, must be more narrowly and specifically
defined to conform to proof. The practical effect is that
some, but by no means all, of the communities already known
to the defendant and the Court through the pleadings will be
stricken.”). Plaintiffs' counsel referred to this
process as a “realignment” of the class.
Id. at 3:27. Plaintiffs' counsel also stated,
“The proposed redefinition of this action is almost
complete and plaintiffs' counsel will be seeking
defendant's agreement to a stipulated amendment of the
complaint to articulate the reduced number of communities
asserting claims under the original pleading, together with
the names of the new, duly authorized lead plaintiffs to
adequately represent the interests of each of these
communities. If a stipulated amendment cannot be agreed upon,
plaintiffs will seek amendment by motion filed on or before
June 1, 2015.” Id. at 4:19-25.
1, 2015, plaintiffs filed their third amended complaint
without defendant's consent or leave of court. Dkt. No.
82 (“TAC”). The TAC removed the five plaintiffs
who were the subject of Chevron's sanctions motion and
added eleven new named plaintiffs. The TAC reduced the
putative class from 65, 000 to 15, 000 people by dropping
five of the eight Local Government Areas covered in the
previous complaints, leaving Brass, Ekeremor, and Southern
Ijaw Local Government Areas (the specific communities within
those LGAs were listed in the caption). Id.
¶¶ 8, 32. The TAC contained the same allegation as
the previous complaints that expert reports showed damage in
all areas. Id. ¶ 33.
order filed July 28, 2015, the Court granted Chevron's
motion to strike the TAC. Dkt. No. 94. The Court held that
plaintiffs were required to seek leave of court before filing
the TAC because the TAC added eleven new plaintiffs.
Id. at 4. The Court rejected plaintiffs'
argument that the new plaintiffs were not actually new
because they were among the 65, 000 community members that
the original named plaintiffs claimed to represent through
power of attorney. Id. The Court noted that it had
“rejected this argument at least twice, and it
admonishes Plaintiffs for raising it yet again. As explained
in the Court's order on Defendant's first motion to
dismiss, ‘the Federal Rules of Civil Procedure require
that an action be prosecuted in the name of the real party in
separate order filed July 28, 2015, the Court granted
defendant's motion for the sanction of dismissal of five
of the named plaintiffs for failure to comply with discovery
obligations. Dkt. No. 93. The Court found that the five
plaintiffs were served with discovery which required
responses by April 3, 2015. The Court further found that
those five plaintiffs had not responded by that date or any
time thereafter, and that the plaintiffs were not cooperating
with their counsel.
September 29, 2015, named plaintiff Natto Iyela Gbarabe filed
the fourth amended complaint pursuant to a stipulation and
with leave of court. Dkt. No. 99. The fourth amended
complaint (“FAC”) is the operative complaint. The
FAC realleges that plaintiff suffered “personal loss by
way of an almost total loss of yield in the waters
customarily fished by plaintiff after the KS Endeavor rig
explosion and 46-day fire, as well as damage to fishing
equipment, ” and that “Plaintiff further suffered
health issues from the effects of the polluted air and water
caused by the gas rig explosion of the KS Endeavour, which
included diarrhea and vomiting.” Id. ¶
10(i). Similarly, the FAC realleges that “[e]xpert
reports have concluded that there have been significant
environmental impacts and all areas have been subjected to
various degrees of damage.” Id. ¶ 30. The
FAC seeks compensation and punitive damages arising out of
Chevron's alleged gross negligence, willful misconduct,
negligence per se, acts of nuisance, and breaches of Nigerian
law. Id. ¶ 3.
alleged a class consisting of,
All residents of the coastal, estuarine and adjacent river or
creek-situated areas of the Ekeremor, Southern Ijaw, Brass
and Nembe Local Government Areas, State of Bayelsa, Federal
Republic of Nigeria who, as of January 16, 2012 and
thereafter, used the land, rivers, waterways, ponds, inlets,
estuaries and adjacent oceanic waters for the purpose of
fishing and/or farming to provide food and livelihood and who
sustained articulable damage and/or diminution to said
activities as a result of the explosion of defendant's
exploratory gas rig as detailed herein.
Id. ¶ 12. The FAC added:
[t]he communities wherein known Class Members are located and
which are represented by the plaintiff are identified as
Koluama 1 and 2; Ezetu 1 and 2; Ekeni; Sangana; Kongo Akassa;
Minibie; Buama; Otuo; Itohoni-ama; Igbabeleu; Egwama; Llama;
Fishtown aka Beleugbene (Brass); Ikebiri 1; Ikebiri 2;
Foropa; Bilabiri; Amatu; Bessengbene; Letugbene; Odioama;
Ewoama; Okpoma and Twon.
Id. The FAC further reduced the putative class from
15, 000 to 12, 600 people by eliminating three of the
communities that were covered by the previous complaints
(Koluama 11, Ezetu 11, and Ikebiri 11).
Schedule for class certification
stipulation and order, Plaintiff's Rule 23 motion was
originally due on August 6, 2015, with a hearing scheduled
for December 4, 2015. Dkt. No. 69. The parties agreed that
Plaintiff's class certification motion “will
include causation evidence as to the named Plaintiffs
comparable to Lone Pine.” Dkt. No. 63 at
March 18, 2015, in light of Plaintiff's counsel's
need for additional time to “investigat[e] which named
plaintiffs and alleged class members have what
plaintiffs' counsel consider objectively sustainable
claims” and the anticipated reduction of the scope of
the proposed class, the class certification filing date was
extended to November 9, 2015. Dkt. No. 76. The March 18, 2015
stipulation and order also provided,
By June 1, 2015, plaintiffs shall also serve Rule
26-compliant reports and other required materials for any
expert that they intend to use to support their class
certification motion, subject to timely supplementation. All
such supplemental reports and materials will be provided to
counsel for defendant as and when received and before filing
of plaintiffs' class certification motion.
Id. ¶ 2.
parties agreed to extend the June 1, 2015 deadline to June
15, and on that date, plaintiff served on defendant a report
titled “KS Endeavor Rig Blowout Environmental Desk
Study, ” prepared by Verde Environmental Group, Ltd.
Dkt. No. 97 ¶ 2, Ex. 1. The executive summary for that
report states, inter alia, that the report
“presents an initial desk study review of available
reports pertaining to a Drilling Rig explosion that occurred
on 16th January 2012, ” and that “Verde concludes
that further independent studies are required and recommends
the completion of air and water monitoring in the immediate
area of the incident along with air dispersion modeling.
Furthermore to confirm whether damage has occurred to the
marine environment, it is recommended that an appropriate,
internationally-accepted marine survey and analysis
techniques are implemented.” Id. Ex. 1 at 1.
September 17, 2015, plaintiff requested a ten-month extension
of the class certification filing deadline. Plaintiff's
counsel stated that they needed the extension because they
had “retained an environmental consulting firm named
Verde in May 2015 to conduct a review of gathered evidence
regarding the environmental impact of the rig explosion on
the surrounding marine and coastal area, ” and
[F]ield investigation work supportive of Plaintiff's
class certification submission is required and this work, to
be carried out by the retained firm, Verde Environmental
Consultants Ltd, cannot be undertaken until the end of the
current Nigerian rainy season. As set forth in the supporting
declaration of Kevin Cleary of Verde, this field work cannot
begin until mid-October at the earliest and, based upon
Verde's experience and knowledge of working conditions in
Nigeria, cannot reasonably be expected to be completed until
around July 2016.
Dkt. No. 95 at 2:3-8; Dkt. No. 95-1 ¶ 2 (Cleary Decl.).
opposed the request for an extension, arguing that plaintiff
did not provide any explanation for why he failed to
commission any expert field work in the 16 months between
when this case was filed in January 2014 and the beginning of
the rainy season in May 2015. Defendant noted that although
plaintiff stated that he had retained Verde in May 2015,
plaintiff had listed Verde as his expert in his Initial
Disclosure Statement on February 20, 2015. See Dkt.
No. 97 (Ex. 4 at 4). Defendant also submitted deposition
testimony from Kevin Cleary of Verde, in which Mr. Cleary
testified that Plaintiff's counsel did not formally
retain Verde or ask it to perform any work until one week
before the June 1, 2015 deadline for expert reports for class
certification. Dkt. No. 103-1 (Cleary Dep. at 17:20-25,
Conti rejected the ten-month extension, but gave plaintiff a
three-month extension until February 6, 2016. Dkt. No. 108.
In granting the extension Judge Conti stated that “[n]o
further extensions of the above dates will be granted.”
Id.; see also Dkt. No. 107 at 16:21-25
(transcript of Oct. 1, 2015 hearing, during which Judge Conti
stated: “That's the last extension. That's the
last. I mean, there's not going to be any other. And if
it's detrimental to the plaintiff, then it's
detrimental to the plaintiff. But everything has to come to
an ending. You've had plenty of time.”).
case was re-assigned to this Court on November 3, 2015. Dkt.
No. 111. In a case management conference statement filed
December 7, 2015, plaintiff requested an additional three-
month extension of the class certification filing deadline
“based upon delays caused by scientific imperatives and
the upcoming holiday season.” Dkt. No. 115 at 10:9-10,
15. Plaintiff claimed Verde could not take seabed samples on
the December 2015 trip because the laboratories would be
“closed for approximately two weeks between Christmas
and New Year” and unable to do the testing.
Id. at 11. Plaintiff stated,
Since the briefing schedule issued by Court Order on October
5, 2015 (ECF No. 108), counsel for Plaintiff have been
organizing the on-site inspection and sampling work required
for class certification support with their designed
environmental experts, Verde Environmental Consultants. Verde
will be in Nigeria and engaged in the first phase of this
work - the mapping of the seabed to identify sample sites and
the taking of water samples - at the time of this case
management conference [December 11, 2015].
It had been hoped that Verde would be able to complete the
in-field investigation in one trip to the accident area but,
based upon unforeseen delays in the securing of an
appropriate boat to mount the necessary equipment for the
collection of seabed samples, that phase of the operation has
run into a problem caused by the upcoming holiday period as
It is essential for evidentiary purposes that all samples
taken from in and around the site of the rig explosion are
collected, stored and preserved in a manner that guarantees
their integrity from collection through bringing them to
shore, packaging and dispatching them from Nigeria to the
United Kingdom to the laboratories who are contracted to
conduct the testing of the samples for evidence of
environmental impact directly related to the KS Endeavor
blowout. The advent of the Christmas and New Year holidays in
the U.K. means that these laboratories will be closed for
approximately two weeks between Christmas and New Year.
Counsel for Plaintiff have been informed that the integrity
of samples collected prior to that time would be compromised
by any delay in testing and that the holiday closures creates
such a delay. Being that it is essential that the samples are
preserved and tested in a scientifically appropriate manner
to verify the results and findings, Verde has been advised to
wait until after the holiday period before collecting and
sending the samples.
Dkt. No. 115 at 10:22-11:9. Plaintiff's counsel further
The only rational decision under the circumstances is for
Verde to return to Nigeria in early 2016 to collect the
necessary samples for dispatch to the U.K. testing facilities
for analysis upon arrival. This, unfortunately, means
completion of the investigation, testing and results will be
pushed back for at least a month and a half to two months.
Id. at 14:27-15:2. The Court granted plaintiff a
two-month extension of the filing deadline, until April 8,
2016. Dkt. No. 116.
April 8, 2016, plaintiff filed his motion seeking class
certification pursuant to Rule 23(a) and (b)(3). Plaintiff
supported his motion with reports from four sets of experts:
(1) a set of reports by the Verde/Physalia group, which
include reports by Jones Environmental Laboratory Ltd.
(collectively the “Physalia 1” report), Dkt. No.
124-1 to 124-11; (2) a report titled “Summary of Post
Impact Studies and Findings of the Effect of January 2012
Chevron Gas Rig Explosion Off the Atlantic Ocean” by
Professor Jasper Abowei, a Nigerian fisheries professor, Dkt.
No. 125-3; (3) a report by the Onyoma Research team led by
Professor Alagoa titled “Socio-Economic Report on the
Effects of the KS Endeavor Rig Explosion on the Coastal
Communities of Bayelsa, ” Dkt. No. 125-1, 125-2; and
(4) a report titled “Damage Model for Class Action
Management in the Matter of Gbarabe v. Chevron, ” by
Christopher Money. Dkt. No. 126-1. Plaintiff also submitted
other evidence in support of the class certification motion,
such as declarations from putative class members, photographs
of the site of the explosion and surrounding areas, and
declarations from Nigerian lawyers regarding the Nigerian
failed to timely produce to defendant the materials on which
Plaintiff's experts relied as required by Federal Rule of
Civil Procedure 26(a)(2)(B)(ii), thus necessitating further
modifications of the schedule. See Dkt. Nos. 129,
September 16, 2016, defendant filed its opposition to
Plaintiff's motion for class certification, along with
several expert reports in support of the opposition. Dkt.
Nos. 180, 183-89. Defendant also filed two motions in limine
to exclude the report and testimony of Jasper Abowei and to
exclude the report by the Onyoma Research team. Dkt. Nos.
September 30, 2016, the Court held a case management
conference. At that conference, the parties informed the
Court that on September 14, 2016, plaintiff proposed a new
class definition, and that Chevron had declined to stipulate
to it. See Dkt. No. 190 at 1. Plaintiff requested
permission from the Court to amend the class definition, and
the Court directed plaintiff to provide the proposed amended
class definition to defendant by October 7, 2016, and allowed
defendant to file a response to the proposal by October 21,
2016. See Dkt. Nos. 192, 199-200.
November 10, 2016, the Court held a further case management
conference. At the conference, plaintiff requested a further
extension of time to file the reply papers from November 18
to November 25, 2016. The Court granted that extension. At
that conference, the parties informed the Court that
plaintiff wished to replace his fisheries expert Jasper
Abowei with a different fisheries expert, Professor Eyiwunmi
Falaye, and that Chevron objected to Plaintiff's request.
The parties also informed the Court of a dispute regarding
Plaintiff's request to submit a new report dated October
26, 2016 from the Verde/Physalia experts (“Physalia
2”). The Court directed plaintiff to file motions for
leave to substitute a new fisheries expert and for leave to
submit the new Physalia 2 report. Dkt. No. 205. Plaintiff
filed the two motions for leave on November 16, 2016. Dkt.
Nos. 206-11, 217-18.
November 26, 2016, plaintiff filed his reply brief in support
of the class certification motion, along with exhibits
totaling over 1, 500 pages. Dkt. Nos. 213-16. Buried in the
thousands of pages of exhibits are seven new expert reports:
(1) a November 25, 2016 report by Physalia titled
“Gbarabe v. Chevron; Scenarios for Fisheries Impacts,
Dkt. No. 214-4 at 1-17; (2) a November 24, 2016 report by
Lwandle Marine Environmental Services titled “KS
Endeavour Gas Blowout Incident: Potential Effects on
Artisanal Fisheries, ” Dkt. No. 214-4 at 18-31; (3) a
report by Roy van Ballegooyen, WSP Coastal and Port
Engineering, titled “Transport and Fate of Fine
Sediments and Muds Released into the Marine Environment
During the KS Endeavor Blowout Incident”), Dkt. No.
214-4 at 32-47; (4) a November 2016 report by Plaintiff's
proposed new fisheries expert, Professor Falaye, titled
“Report on Effects of Funiwa Deep 1A Gas Blowout in
Bayelsa State, Nigeria on Fish Diversity.” Dkt. No.
214-4 at 48-95; (5) a November 25, 2016 report by Physalia
titled “Review of, and Comments on, the Adams (Neal
Adams Services) Document: An Evaluation and Assessment of the
2012 KS Endeavor Natural Gas Blow-out Incident” Dkt.
No. 214-3; (6) a November 17, 2016 report by Physalia titled
“Review of, and Comments on, the Deardorff, Deines and
Palmquist (Exponent) Document” Dkt. No. 214-5; and (7)
a declaration and supporting exhibit titled “Conceptual
Document” by John Welches of Red Mallard, Inc., Dkt.
No. 215-3 at 4-36, and a C.V. and declaration by Todd Hilsee
(in a different case) regarding providing notice, Dkt. No.
215-4 to 215-5. Defendant has objected to this evidence on
of the class
discussed supra, at some point plaintiffs'
counsel became aware that the claims of five named
plaintiffs, and of most of the original class of 65, 000,
were untenable. What plaintiff and his counsel knew, and when
they knew it, has been the subject of much discovery and some
motion practice. At an August 24, 2016 hearing, Ms. Perry
stated, “[i]t was in about [March/February 2015] that
we first learned through Mr. Alagoa Morris that the
likelihood of the full complement of the 60-odd-thousand
people in all those 300-odd communities was more likely than
not to be claims that could not be sustained. That was in
about February 2015.” Dkt. No. 173 at 24:3-7.
response to defendant's discovery requests,
Plaintiff's counsel have admitted that they had no
contacts with the six plaintiffs or the Nigerian lawyer Mr.
Egbegi before filing this lawsuit. Dkt. No. 154-1 (Ex. 3 at
4-7); Dkt. No. 154-2 (Ex. 8 at 1; Ex. 9); Dkt. No. 173 at
11-14 (transcript of Aug. 24, 2016 hearing; counsel stating
that they first had contact with six plaintiffs around May
2014). Plaintiff's counsel have stated that Mr.
Ekhorutomwen, the Nigerian lawyer who practiced with a U.K.
firm, purportedly assured them that Mr. Egbegi had done
“full due diligence” in Nigeria. Dkt. No. 154-1
(Ex. 3 at 4, 5). According to counsel, “[i]t is not
customary nor acceptable practice for a barrister to do due
diligence on a fellow professional within the English
system[.]” Id. at 4.
with Plaintiff's responses to discovery seeking the
factual basis for the allegations of causation and injury to
the named plaintiffs and the class in the various iterations
of the complaint,  on July 22, 2016, defendant filed a motion
to compel further discovery. Dkt. No. 153. In response, Ms.
Perry submitted an August 7, 2016 declaration stating:
8. . . . When five of six original lead plaintiffs became
non-cooperative and concern grew in regard to evidence which,
in our opinion, required further authentication, we launched
an investigation into the best method of establishing fully
credible evidence emanating from the Niger Delta region, a
remote area of a foreign nation fraught with well-recorded
dangers and conflicts. Our independent investigation led us
to Mr. Alagoa Morris, an environmental activist whose
credibility and integrity was determined to be acknowledged
generally in the Niger Delta region. He was asked to assist
on the ground in Bayelsa State to determine whether the
original lists of claimants were credible, given the
withdrawal of cooperation by all but one of the original lead
plaintiffs and the Nigerian referring attorney, Mr. Egbegi.
Mr. Morris was of the opinion that we could not rely upon the
authenticity of the original list of communities because of
their location inland from the ocean, even though the State
is made up of a maze of rivers and creeks. An
investigation was instigated utilizing the services and local
knowledge of Mr. Morris which culminated in the decision to
reduce the zone of claimed contamination and reduce the
number of claimants to those in communities located on or
near the Bayelsan coast. Defendant was immediately informed
of this undertaking and kept informed at every stage of these
developments, which included our difficulties in obtaining
the cooperation of or information from 5 of the 6 Lead
Plaintiffs and Nigerian counsel. This lack of cooperation
meant that decisions as to the viability of the claims as
original[ly] constituted had to be made based upon available
information. Whether or not the sudden withdrawal of
cooperation by five or six original lead plaintiffs and
Nigerian counsel was because of any knowledge on their part
that the original claimant list contained false claims could
not be established, nor were we able to secure the original
sign-up documents. Therefore, a judgment as to the necessity
for a realignment of the case had to be based upon the
available facts and evidence known to us.
9. A further development in 2014 was that [Nicholas
Ekhorutomwen] removed himself from Harding Mitchell and
commenced his own firm of solicitors. It has been made clear
to defendant that Mr. Fraser and I had lost confidence in
[Nicholas Ekhorutomwen]'s competence and that we began to
doubt we could rely upon him or Peter Egbegi for the
information we sought. Our concern was that we only continued
to represent individuals who, in our legal opinion, appeared
to have genuine and viable claims within an establishable
zone of contamination. With the assistance of Mr. Morris, who
had independently investigated the impact of the subject rig
explosion immediately after it happened for his own
organization, it was determined to reduce the claims to those
emanating from the coastal communities currently part of this
action. Defendant was fully informed of this determination
and of our commitment that, at no time, would we be party to
any claim that was determined to be less than credible. The
recent re-signups were conducted to assist us in identifying
and eliminating such claims. Careful procedures were put in
place. It appears, however, that some re-signups may lack the
honesty and/or diligence, which, once fully investigated,
will sound in their removal from the case as appropriate.
Defendant is aware that we have repeatedly assured them that
any clam found to be false will be excised.
10. It is submitted that this continued commitment to
ensuring all claims are genuine evidences an ethical standard
we adhere to that makes defendant's allegations of fraud
all the more repugnant. This is Nigeria, an African nation
with well-documented problems of corruption from the upper
reaches of government down in which individuals and
corporations have both, at times, been implicated. If there
are some “bad apples” within the claimants
herein, we intend to take the necessary action to dismiss
them from further participation. It is not appropriate to
characterize the entire case as based upon a fraud as it is
clear evidence capable of inflicting damage on the livelihood
of thousands of claimants has been developed and the extent
of damage, ultimately, presents a factual question.
Dkt. No. 162 ¶¶ 8-9; see also Dkt. No.
186-3, Ex. 2 at 22:10-16 (transcript of Aug. 24, 2016 hearing
wherein Ms. Perry stated that “[t]he first time we knew
that the amounts [on Schedule A] had been doctored was when
Mr. Gbarabe and the other 11 then, we hoped, named plaintiffs
were asked to deal with the interrogatories. That's when
we first found out. That was in June 2015. . . . It was in
June we first knew that the figures were wrong.”); Dkt.
No. 186-1 (Gbarabe Dep. Vol. 1 at 111-16, testifying that all
of the lost income figures on Schedule A were
“doctored”). Plaintiff's counsel have also
stated that they never reviewed or had access to the
documents on which Schedule A was based, and that they
“haven't been able to get any information from the
people that compiled these lists.” Dkt. No. 173 at
2016, plaintiff undertook a “re-signup” process
to collect new claim forms from all putative class members in
an effort to ensure that only genuine claims were included in
the class. At the August 24, 2016 hearing, counsel described
the “re-signup” process as follows:
[T]he re-sign-up process only involves persons that are on
the original list that can be verified to actually have a
genuine - we're trying to verify who has a genuine claim;
making sure that these people exist, and they live in the
community where these lists say they live, and that they have
credible claims of damage because of their occupation, and
the fact that they lived in Koluama, for example, at the time
of the incident.
The re-sign-up process that went forward in the early part of
this year will need to be addressed again in certain aspects
to continue to hone down the client list, and make sure that
we only have what we believe to be genuine claimants involved
in this case; but Schedule A, in and of itself, contains the
list of all the precertification claimants that will be in
this case going towards class certification. We're just
-but we've already dropped a great many of them. And
there's going to be more done based upon the information
we've got back during the re-sign-ups. That was done to
try and authenticate the - what portions of the lists were,
in fact, accurate.
Id. at 23:4-18.
as late as August 24, 2016 - well after Plaintiff's
motion for class certification was filed - Plaintiff's
counsel stated that they were still “trying to verify
who has a genuine claim” and acknowledging that the
“re-signup” process was flawed and that
Plaintiff's counsel would need to “continue to hone
down the client list.” Id. Indeed, as
discussed in greater detail infra, discovery
conducted by Chevron during the summer of 2016 shows that the
“re-signup” process has been riddled with
unreliability, as inter alia, new claim forms were
submitted in the names of deceased persons; there are
multiple inconsistent forms with matching names, but
different income figures and signatures; and class members
testified that the forms contain false and inaccurate
information and that forms were submitted on behalf of
individuals without their knowledge or consent using
inaccurate information and fraudulent signatures or
actions are governed by Rule 23 of the Federal Rules of Civil
Procedure. Plaintiff bears the burden of showing that he has
met each of the four requirements of Rule 23(a) and at least
one subsection of Rule 23(b). Berger v. Home Depot USA,
Inc., 741 F.3d 1061, 1067 (9th Cir. 2014), citing
Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180,
1186 (9th Cir. 2001).
Court's “class certification analysis must be
rigorous and may entail some overlap with the merits of the
Plaintiff's underlying claim.” Amgen Inc. v.
Connecticut Retirement Plans and Trust Funds, 133 S.Ct.
1184, 1194 (2013) (quoting Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 351 (2011) (internal quotation
marks omitted)). These analytical principles govern both Rule
23(a) and 23(b). However, “Rule 23 grants courts no
license to engage in free-ranging merits inquiries at the
certification stage.” Amgen, 133 S.Ct. at
1194-95. “Merits questions may be ...