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Brooks v. Darling International, Inc.

United States District Court, E.D. California

March 30, 2017

LINDA BROOKS, ET AL., Plaintiffs,


         This matter is before the court on plaintiffs' motion for class certification as well as defendant's motion to strike and exclude evidence presented in support of plaintiffs' motion, specifically resident data sheets and expert reports. A hearing on the motions was held on February 7, 2017. Attorney Nicholas Coulson appeared on behalf of plaintiffs. Attorneys Christopher Hall, Jacob Rhode, and Joseph Callow appeared on behalf of defendant. Having considered the parties' briefs and oral arguments and for the reasons set forth below, the court will deny defendant's motion to strike the resident data sheets, deny defendant's motion to exclude the reports of plaintiffs' experts, and deny plaintiffs' motion for class certification.


         Defendant operates an animal rendering facility at 795 W. Belgravia Avenue in Fresno, California. (Doc. No. 49 at 5.) Animal rendering involves breaking down animal waste products-generally carcasses-into usable products, such as “valuable ingredients for various soaps, paints and varnishes, cosmetics, explosives, toothpaste, pharmaceuticals, leather, textiles, and lubricants.” The Rendering Process, National Renders Association, (last visited Aug. 29, 2016). Defendant's facility is permitted to process up to 850, 000 pounds of animal material each day. (Doc. No. 47-1 at 7.) Defendant operates its plant-purportedly located in the middle of an industrial area that is also home to other industrial facilities, farms, and agriculture businesses including some involved in animal processing-“pursuant to an Odor Control Plan and under a [p]ermit issued by the [District].” (Doc. No. 49 at 5.)

         On May 7, 2014, Donna Conroe, Allen Conroe, and Kimberly Tapscott-Munson (“plaintiffs”) filed suit against Darling Ingredients (“defendant”)-an owner and operator of a rendering plant-in the Fresno County Superior Court. (Doc. No. 1.)[1] Defendant removed the case to this court pursuant to 28 U.S.C. §§ 1332, 1441. (Id.) On August 13, 2014, plaintiffs filed their First Amended Complaint (“FAC”). (Doc. No. 20.) Therein, plaintiffs claim that the rendering process, combined with defendant's alleged failure to implement proper controls, has infused their neighborhood with noxious odors and “forced [them] to live with the smell of rotting death at their homes.” (Id. at 8.)[2]

         On February 2, 2016, plaintiffs filed a motion pursuant to Federal Rule of Civil Procedure 23 to certify the class of owner/occupiers and renters of residential property who lived within 1.5 miles of defendant's plant between May 12, 2011 and the date of class certification. (Doc. No. 47.) On March 1, 2016, defendant filed its opposition to that motion. (Doc. No. 49.) Plaintiffs filed a reply on March 15, 2016. (Doc. No. 53.) In support of their motion, plaintiffs submitted for the court's review a trial plan (Doc. No. 47-2), a preliminary air modeling report drafted by Board Certified Environmental Engineer David Weeks, P.E. (Doc. No. 47-3), a preliminary report on odor sources and mitigation prepared by Professor of Food Process Engineering Dr. Timothy Bowser, P.E. (Doc. No. 47-4), and 160 survey responses, which plaintiffs titled “Resident Data Sheets” (Doc. Nos. 47-10, 47-11).

         On March 15, 2016, defendant filed two separate motions attacking plaintiffs' evidentiary support for their motion for class certification. (Doc. Nos. 51, 52.) The first such defense motion is a motion to strike an exhibit-labeled “Resident Data Sheets”-which plaintiffs' attached to their class certification motion. (Doc. No. 51.) The second motion is a motion to exclude the reports of plaintiffs' experts. (Doc. No. 52.) Plaintiffs filed oppositions to both of defendant's motions on March 30, 2016. (Doc. Nos. 54, 55.)[3]

         Below, the court will first address defendant's motions before turning to plaintiffs' motion for class certification.


         Defendant moves to strike the Resident Data Sheets submitted by plaintiffs. The Resident Data Sheet exhibit consists of seventy-two one-page surveys sent out by plaintiffs' counsel to residents in the neighborhood surrounding defendant's plant. (Doc. No. 47-10, 47-11.) The forms are marked as “advertising material” and were sent to residents in conjunction with a notice explaining that plaintiffs' counsel was “investigating the possibility of filing litigation against Darling International for the emission of noxious odors.” (Doc. No. 51-2 at 3.) The survey asked the respondent if he or she owns the home or is a tenant, the length of time he or she has resided at the property, and whether he or she has “noticed odors from Darling International at [his or her] home.” If the respondent answers yes to this last question, he or she was then requested to elucidate on the character, duration, effect of the offensive odors. The respondent was also asked to sign and date the survey in the designated fields, above which reads “I swear that the above answers are true and accurate to the best of my knowledge.”

         Defendant argues the Resident Data Sheets constitute inadmissible hearsay because they are not notarized and not signed under penalty of perjury. (Doc. No. 51-1 at 4.) Defendant also argues the Resident Data Sheets are the equivalent of a “push poll” because “[t]here was no option on the questionnaire to indicate that odors may have emanated from a third-party source . . . .” (Id. at 2.) Plaintiffs contend the declarations should not be stricken because courts are not prohibited from considering inadmissible evidence at the class certification stage of litigation.

         “In determining whether a class is to be certified, the [c]ourt looks to the parties' allegations and other material ‘sufficient to form a reasonable judgment on each requirement.'” Parkinson v. Hyundai Motor America, 258 F.R.D. 580, 599 (C.D. Cal. 2008) (quoting Blackie v. Barrack, 524 F.3d 891, 901 (9th Cir. 1975)). Although the Ninth Circuit has not explicitly stated as much, district courts have concluded that this “other material” need not be admissible in order to be considered by the court at class certification. See Arredondo v. Delano Farms Co., 301 F.R.D. 493, 505 (E.D. Cal. 2014) (“Since a motion to certify a class is a preliminary procedure, courts do not require strict adherence to the . . . Federal Rules of Evidence.”) (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 178 (1974)).

         On the other hand, the court “should not abandon admissibility standards entirely at the certification stage, ” Parkinson, 258 F.R.D. at 599, because it must still perform a “rigorous analysis” when determining whether a party has satisfied the burden of establishing compliance with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011). In this respect, district courts are left to tread the line between not enforcing the Federal Rules of Evidence at the class certification stage of the litigation while still ensuring that “[a] party seeking class certification . . . affirmatively demonstrate[s] . . . that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350.

         One question on which there has been little consensus among district courts is how to treat declarations submitted in support of class certification that are not executed under penalty of perjury. Generally, for a declaration to be admissible, the declarant must “declare . . . under penalty of perjury . . . .” 28 U.S.C. § 1746. Some courts have found this requirement inapplicable at class certification, noting that while the declarations may be inadmissible at later stages, “strict adherence to the Federal Rules of Evidence” is not required at class certification. Gonzalez v. Millard Mall Services, Inc., 281 F.R.D. 455, 459-60 (S.D. Cal. 2012) (citing Eisen, 417 U.S. at 178); see also Bell v. Addus Healthcare, Inc., No. CO6-5188RJB, 2007 WL 2463303, at *3 (W.D. Wash. Aug. 27, 2007) (permitting submission of declarations not executed under penalty of perjury). Other courts have been less forgiving. See Soto v. Castlerock Farming and Transportation, Inc., No. 1:09-cv-00701-AWI-JLT, 2013 WL 6844377, at *10 (E.D. Cal. Dec. 23, 2013) report and recommendation adopted, No. 1:09-CV-00701-AWI, 2014 WL 200706 (E.D. Cal. Jan. 16, 2014) (striking declarations not signed under penalty of perjury); Charlebois v. Angels Baseball, LP, No. SACV 10-0853 DOC (ANx), 2011 WL 2610122, at *8 (C.D. Cal. June 30, 2011) (declining “to consider any evidence submitted by Plaintiff that comes by way of an unsigned declaration” because such evidence “lack[ed] any indicia of reliability”).

         Though not signed specifically under penalty of perjury, the court notes that the signed surveys at issue here cannot accurately be characterized as unsworn since the signers swore that the information was true and correct to the best of the signer's ability. In any event, strict adherence to the rules of evidence is not required at this stage of the proceedings. Additionally, the surveys are not being offered for the truth of the matters asserted therein, rather, as plaintiffs' counsel has explained, they are merely “illustrative of the resident testimony that plaintiffs will be offering at the class certification stage in conjunction with scientific expert testimony.” (Doc. No. 73 at 6.) According to plaintiffs, the completed surveys “also demonstrate widespread interest in the litigation.” (Id.) Courts that have struck declarations not signed under penalty of perjury have done so because they lacked any indicia of reliability. See, e.g. Charlebois, 2011 WL 2610122, at * 8 (noting that, the declarations offered were “unsigned, or were not even written by the declarants themselves, but were recounted by memory of counsel's staff after speaking with declarants.”)

         Here, the signed surveys submitted by plaintiffs are accompanied by some indicia of reliability: (1) the signers have themselves written out a description of the odors and how they affect their ability to use and/or enjoy their home; and (2) the surveys are signed and sworn to be true and accurate to the best of the signer's knowledge. Accordingly, the court finds that the Resident Data Sheet surveys should not be excluded at this stage of the proceedings and may be considered by the court in determining whether class certification is warranted. Therefore, defendant's motion to strike the resident data sheets will be denied.


         Defendant also moved to exclude the expert reports of Environmental Engineer David Weeks and Professor of Food Process Engineering Dr. Timothy Bowser. Defendant argues the opinions expressed in those reports are “irrelevant, unhelpful, and speculative” because plaintiffs' experts have yet to perform any relevant testing. (Doc. No. 52-1 at 5-6.) Defendant notes that the reports posit only what testing could be performed rather than reporting results obtained from testing that has been conducted. (Id. at 6.) Plaintiffs argue that defendant has failed to attack the credentials of their experts or the reliability of their experts' testimony. (Doc. No. 54 at 3.) Instead, according to plaintiffs, defendant inappropriately seeks to exclude the expert reports on the grounds that they do not address the merits of plaintiffs' claims even though discovery with respect to the merits has yet to commence in this case. (Id. at 1.)

         a. Legal Standard

         Generally, the admission of expert testimony is controlled by Federal Rules of Evidence 702 and the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). “[Federal Rule of Evidence 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion.” United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002). “Prior to the evaluation of those three requirements, however, Daubert holds that a trial court must make ‘a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.'” Spann v. J.C. Penny Corp., 307 F.R.D. 508, 515- 16 (C.D. Cal. 2015) (quoting Daubert, 509 U.S. at 592-93). However, “at the class certification stage, district courts are not required to conduct a full Daubert analysis.” Tait v. BSH Home Appliances Corp., 289 F.R.D. 466, 495 (C.D. Cal. 2012). The general standard by which district courts perform their gatekeeping function during the merits phase of an action is replaced at class certification with “an analysis tailored to whether an expert's opinion was sufficiently reliable to admit for the purpose of proving or disproving Rule 23 criteria, such as commonality and predominance.” Id. “[T]he court should ask only if expert evidence is useful in evaluating whether class certification requirements have been met.” Id; see also Herron v. Best Buy Stores, LP, No. 2:12-cv-02103-TLN-CKD, 2016 WL 1572909, at *2 (E.D. Cal. Apr. 18, 2016) (noting “robust gatekeeping of expert evidence is not required” at the class certification stage).

         Here, for the reasons explained below, the court concludes that the preliminary reports by plaintiffs' experts are useful for purposes of determining whether class certification requirements have been met as of yet.[4]

b. Analysis

         i. David Weeks's Report

         In his report, Environmental Engineer David Weeks concludes that potential class members' exposure to noxious odors over the duration of the proposed class period can be assessed by using the American Meteorological Society/EPA Regulatory Model (“AERMOD”), “the preferred model for short-range dispersion modeling” of the Environmental Protection Agency. (Doc. No. 47-3 at 7.) AERMOD is a proven method, and its use in creating air dispersion models has received approval from a federal regulatory agency. Defendant does not challenge this fact; nor does it challenge the ability to apply AERMOD to the case at hand. Moreover, Mr. Weeks states in his report that the data needed to construct a model is available and that AERMOD can differentiate between “odor complaints originating from multiple sources.” (Id. at 9.) Mr. Weeks concedes that AERMOD is not “100 percent accurate 100 percent of the time.” Nonetheless, this is an issue the parties could contest at the merits phase of this litigation. (Id.) Ultimately, the Weeks report supports the notion that AERMOD can be used to show the range, frequency, and impact of the alleged odor emissions; in other words, such testing can be used to establish commonality and predominance. Accordingly, the court concludes that Mr. Weeks's expert report satisfies the requirements of Daubert for purposes of determining the appropriateness of class certification. Furthermore, Mr. Weeks is a licensed engineer who has experience with air dispersion modeling and is an expert under the requirements of Federal Rule of Evidence 702. Finally, the subject matter is one that is appropriate for expert opinion. Thus, as to Mr. Weeks's expert report, defendant's motion to strike will be denied.

         ii.Dr. Timothy Bowser's Report

         The court also finds Dr. Timothy Bowser's report admissible for the purpose of these class certification proceedings. In his report Dr. Bowser discusses testing methods that would allow him to assess “[t]he sources within the rendering facility which are responsible for odor emissions” as well as “[t]he effectiveness of mitigation efforts taken by [defendant], and the potential effectiveness of further mitigation efforts.” (Doc. No. 47-4 at 10.) In his report, Dr. Bowser also discusses the ability to perform a systematic odor assessment and states that “[i]nternational standards are available to guide the methods and practices of odor measurement.” (Id. at 4.) The court sees no reason not to consider this expert opinion that a method exists to trace the source and level of odor emissions. Dr. Bowser's report would appear to be helpful in addressing the requirement of commonality under Rule 23.

         Dr. Bowser is a Professor of Food Process Engineering at Oklahoma State University with over 30 years of experience in the food processing industry and has written several papers and book chapters on the subject. (Id. at 1.) Moreover, industrial food processing engineering is a subject that lies beyond the knowledge of the average, untrained layperson. Accordingly, Dr. Bowser satisfies the requirements of Federal Rule of Evidence 702. For these reasons, the court denies defendant's motion to strike the expert report of Dr. Bowser.


         a. Legal Standard

         The class action is a procedural mechanism whereby the “usual rule that litigation be conducted by and on behalf of the named parties only” is swept aside so that multiple parties- unwieldly in number but possessing similar or identical claims-may pursue common redress in an efficient and economical manner. Comcast v. Behrend, 569 U.S. -, -, 133 S.Ct. 1426, 1432 (2013) (quoting Dukes, 564 U.S. at 348). See also Abdullah v. U.S. Sec. Associates, Inc., 731 F.3d 952, 963-64 (9th Cir. 2013). Federal Rule of Civil Procedure 23 controls class certification and imposes a two-step process designed to ensure not only that this system of representative adjudication nets expediencies for the litigants and the judiciary, but that it does not sacrifice procedural fairness or zealous advocacy in the process of doing so.

         Rule 23(a) is a hurdle that must be overcome for a case to proceed as a class action. It consists of four prerequisites, often described as: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. If-and only if-a putative class satisfies these four requirements may the plaintiffs attempt to show that the class also satisfies one of the three subsections of Rule 23(b). The party seeking class certification bears the burden of establishing conformity with these requirements, and must do so by producing facts “affirmatively demonstrat[ing]” that certification is warranted. Comcast, 133 S.Ct. at 1432; Dukes, 564 U.S. at 350; Just Film, Inc. v. Buono, 847 F.3d 1108, 1115 (9th Cir. 2017). A court must review the merits of a party's substantive claim to the extent that they overlap with issues touching on class certification. Dukes, 564 U.S. at 351 (“[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.' [citations omitted]”); Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 2011) (“[I]t is not correct to say a district court may consider the merits to the extent that they overlap with class certification issues; rather, a district court must consider the merits if they overlap with the Rule 23(a) requirements.”) (citing Dukes, 564 U.S. at 350-51 and Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992)); see also Blair v. The CBE Group, Inc., 309 F.R.D. 621, 625 (S.D. Cal. 2015). Only after it has conducted a “rigorous analysis” of these facts and determined they show actual, and not presumed, conformance with Rule 23(a) and (b), may a district court certify a class. Ellis, 657 F.3d at 980-81 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S 147, 160, 161 (1982)); see also Comcast, 133 S.Ct. at 1432 (extending the “rigorous analysis” requirement to Rule 23(b)); Patel v. Nike Retail Services, Inc., Case No. 14-cv-4781-RS, 2016 WL 1241777, at *3 (N.D. Cal. Mar. 29, 2016) (“This ‘rigorous' analysis applies both to Rule 23(a) and Rule 23(b).”).[5]

         As an initial and practical matter, however, the court should first determine whether the class is ascertainable. That is a problematic question in this case, given the slim basis for the class definition proposed by ...

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