LAURIE FREEMAN, SHARON MOCKMORE, BECCY BOYSEL, GARY D. BOYSEL, LINDA L. GOREHAM, GARY R. GOREHAM, KELCEY BRACKETT, and BOBBIE LYNN WEATHERMAN, Appellees,
GRAIN PROCESSING CORPORATION, Appellant.
from the Iowa District Court for Muscatine County, Thomas G.
appeals district court ruling certifying case as a class
Michael R. Reck, Mark McCormick, Charles F. Becker, and
Kelsey J. Knowles of Belin McCormick, P.C., Des Moines;
Steven J. Havercamp and Eric M. Knoernschild of Stanley,
Lande & Hunter, P.C., Muscatine; and Joshua B. Frank of
Baker Botts L.L.P., Washington, D.C., for appellant.
E. Siskind and Scott A. Entin of Miner, Barnhill &
Galland, P.C., Madison, Wisconsin; James C. Larew of Larew
Law Office, Iowa City; and Claire M. Diallo of Browne, Diallo
& Roy, LLP, Princeton Junction, New Jersey, for
appeal, we must decide whether the district court abused its
discretion by certifying this case as a class action. The
plaintiffs are residents of Muscatine, Iowa, who live near a
corn wet milling plant. The plaintiffs allege air pollution
from the plant interferes with the use of their property.
They have filed this lawsuit alleging state common law and
statutory claims based on nuisance, trespass, and negligence
theories. In a prior appeal, we held their claims were not
preempted by the Federal Clean Air Act (CAA). Freeman v.
Grain Processing Corp., 848 N.W.2d 58, 94 (Iowa 2014).
On remand, the district court, over defendant's
objections, granted the plaintiffs' motion for class
certification and divided the class into two subclasses. For
the reasons explained below, we affirm the class
Background Facts and Proceedings.
Processing Corporation (GPC) has operated its corn wet
milling facility in Muscatine since 1943, converting corn
kernels into products for commercial and industrial use. On
April 23, 2012, eight Muscatine residents living near GPC
filed a putative class action on behalf of "themselves
and others who have resided within one and one-half miles
from the perimeter" of GPC's facility within the
preceding five years, an estimated 4000 residents. Their
petition provides this overview of their claims:
The plaintiffs allege the corn wet milling operation at
GPC's facility creates hazardous by-products and harmful
chemicals, many of which are released directly into the
atmosphere. . . . They assert the polluting chemicals and
particles are blown from the facility onto nearby properties.
They note particulate matter is visible on properties, yards,
and grounds and various chemical pollutants are also present.
Compounding these adverse effects, according to the
plaintiffs, GPC has used, continues to use, and has failed to
replace its worn and outdated technology with available
technology that would eliminate or drastically reduce the
pollution. The plaintiffs assert these emissions have caused
them to suffer persistent irritations, discomforts,
annoyances, inconveniences, and put them at risk for serious
Id. at 63-64. The plaintiffs limited their damage
claims to loss of use and enjoyment of property, foregoing
claims for diminution in value or personal injury.
moved for summary judgment, asserting plaintiffs' common
law and statutory claims were preempted by the CAA and Iowa
Code chapter 455B (2011), Iowa's counterpart to the CAA.
GPC's motion alternatively argued the lawsuit raised
nonjusticiable political questions. The district court
granted GPC's motion for summary judgment based on
preemption and the political-question doctrine. The district
court relied on a key federal preemption decision that
subsequently was reversed on appeal. On our review, we
concluded the plaintiffs' claims were not preempted or
barred by the political-question doctrine. Id. at
83-85, 88- 89, 93-94. We reversed the summary judgment and
reinstated the lawsuit against GPC, relying in part on the
new federal appellate decision filed after the district
court's ruling. See id. at 65 n.2 & 94. We
remanded the case to the district court.
Plaintiffs' Motion for Class Certification.
plaintiffs moved for class certification after remand. GPC
resisted class certification on several grounds. The
plaintiffs argued common questions of law and fact
predominated over individual claims-a fundamental requirement
for class certification. Common questions included
"whether GPC violated its duty of care, whether the
haze, odor, and smoke emitted from GPC [were] the product of
negligence, and whether such emissions constituted negligence
or unlawful trespass." The plaintiffs proposed a plan
for adjudicating their claims. The plan focused on three
prongs: GPC's common course of conduct, proof of harm,
and calculation of damages.
the plaintiffs proposed to show GPC's common course of
conduct in knowingly creating a nuisance. They pointed to
internal emails indicating GPC was aware of the pollution and
the need to update equipment to improve air quality. For
example, in 2008, Derek Biggs, GPC's plant manager,
emailed coworkers observing, "At times when I was there,
the parking lot and south end of Muscatine [were] covered in
a haze, and if we had that odor, haze, etc. in Washington, we
would have serious problems with the locals." Mick
Durham, GPC's environmental director, received an email
in 2010 from Kurt Levetzow, an employee of the Department of
Natural Resources (DNR) who stated he was "amazed at a
bluish colored haze that was leaving GPC's property and
blanketing the residential neighborhood across from the
plant." A 2012 email from Bill Chrisman, GPC senior
process engineer, to Durham disclosed that over one weekend
the facility's dryers caused "the neighborhood [to
be] so smoky across the street that it was fairly hard to
see, not to mention breathe." GPC engineers described
the dryers as "antiquated, " "deteriorating,
" "run down, " and "older higher
plaintiffs proposed to prove that GPC delayed fixing the
problems by choosing to focus its resources elsewhere.
Technologies to reduce emissions were available but not
implemented at GPC's Muscatine plant. The plaintiffs
characterized this common proof as the "most significant
portion of the trial, " stating,
Whether it be a class case or an individual trial, there is
going to be a lot of evidence, a significant amount of
evidence regarding the culpability of GPC's conduct. That
evidence will be the same, over and over again, for every
single class member. Regardless if this case is tried once or
tried hundreds or thousands of times, the same witnesses, the
same documents will be testified about, the same issues [will
plaintiffs noted, "[T]hese conditions and GPC's
knowledge of them are facts and evidence that reside at the
heart of every class member's claims."
second phase, the plaintiffs proposed to focus on proof of
harm: that every resident within one-and-a-half miles
suffered a nuisance. The plaintiffs would offer three
categories of evidence. The first addressed causation; it
"revolve[d] around GPC's public admissions that its
operation had been causing the smoke, the odor and the haze
that had concerned the Muscatine community for years."
next addressed harms suffered by the residents. The
plaintiffs proposed to offer testimony from twenty to thirty
"normal" persons living within the class
boundaries, describing the common character of the harm. The
plaintiffs submitted over 100 declarations from residents.
Most described the smell emitted from the GPC plant as
"burned corn" or "rotten eggs." Many
mentioned dust-like particles accumulating on their lawns and
homes. Sometimes the dust was white or gray, and sometimes it
was darker. Most declarations indicated the smell or ash
happened daily or nearly every day and mentioned symptoms of
burning eyes and irritated sinuses. Many said they could not
open windows or enjoy the outdoors due to the smell and dust.
The plaintiffs alleged these declarations, together with
residents' testimony, met the objective standard for
nuisance: that normal persons in the community found the
conditions offensive, annoying, or intolerable. The
Plaintiffs are prepared to present testimony from normal
persons from all over the class area who regard GPC's
pollution as definitely offensive, seriously annoying or
intolerable. Whether they are, in fact, normal persons living
in the community will be a jury question. But if so, and if
the jury credits their testimony, it will establish that GPC
created a nuisance at their properties, and if in every
portion of the class area normal persons testify that they
experienced a nuisance, then it is permissible for a jury to
infer that a nuisance has been suffered throughout the class
could then present conflicting testimony from other residents
within the class boundaries who did not experience similar
harm or were not bothered by the emissions.
final type of evidence plaintiffs intended to offer was air
modeling data from Dr. Paul Rosenfeld. Dr. Rosenfeld plotted
the dispersion of three types of emissions: volatile organic
compounds (VOCs), particulate matter (PM10), and sulfur
dioxide. These emissions were proxies for odor, smoke, and
haze, respectively. Dr. Rosenfeld used AERMOD, an
EPA-approved modeling algorithm that accounts for wind
direction, wind speed, temperature, humidity, precipitation,
and certain obstructions to estimate where the wind blew
particles from GPC. Dr. Rosenfeld's model revealed
pollutant concentrations and variations over time across the
class area. He also developed a "wind rose"
analysis, based on the sixteen cardinal wind directions,
which he used to quantify the amount of time each property
received "direct hits, " or was downwind from, the
emissions. Dr. Rosenfeld's data showed "the presence
of the same pollutants frequently and repeatedly on every
property in the class, and . . . the presence of those
pollutants at properties closely surrounding the properties
of the testifying normal persons." At the class
certification hearing, the plaintiffs' counsel explained,
And if you look at this, what you don't see, Your Honor,
is during the hour of 5:00 to 6:00 a.m., a single solitary
orange little cloud only covering the red cross that is Ms.
Mockmore's property. What you do see is that when
GPC's soup of pollutants are blown at Ms. Mockmore's
property, all of the other parcels and properties in close
proximity to Ms. Mockmore's are similarly hit by
GPC's soup of pollutants.
And the Mockmore's property is not isolated in this
observation, Your Honor. And this is important because this
is why it supports the inference that we're asking the
jury to make in this case, that when Ms. Mockmore or this
normal person or that normal person testifies about his or
her experience with GPC's pollutants . . . it is a
reasonable inference for the jury to infer that similar
properties in close proximity experience a similar
of this evidence in combination, these three categories of
evidence, " the plaintiffs argued, "will support a
reasonable inference by the jury that the nuisance conditions
existed on every property in the class area."
for the third phase of the plaintiff's proposed trial
strategy, the plaintiffs suggested a formula for calculating
damages. Initially, they proposed using a simple per diem
formula, in which the jury would assess a per-hour amount
($10 to $15) for the time each resident lived in the area.
Alternatively, the plaintiffs proposed another, more exacting
formula in which the jury's assigned baseline per-hour
value would be multiplied by each property's "direct
hit" hours and prorated based on each property's
pollutant concentration. Pollution concentration, plaintiffs
argued, could be calculated as follows:
The formula takes the average concentrations of each of
[VOCs, PM10s, and sulfur dioxide] present on each parcel and
then sums them up to arrive at a property-specific
concentration total and to determine how that compares to the
total concentrations of the hardest hit property. And we
refer to the hardest hit property as the baseline for all
others. The formula divides the concentration total for each
property into the . . . baseline total.
acknowledged that because the model measures only the amount
of time a property is hit by emissions, lower concentration
totals may measure emissions that residents would not notice.
It would be left for the court and jury to identify what
total concentration level, if any, constituted a nuisance.
The plaintiffs admitted this formula does not account for
time class members spent asleep or away from their property,
but asserted the formula was permitted under our caselaw
allowing approximation of damages.
extent issues remained concerning individual damages, the
plaintiffs contended these issues could be litigated during a
"claims administration process typical to class
actions." During this process, individual factors such
as tenure of the residents and proximity to other sources of
pollution could be addressed.
GPC's Resistance to Certification.
argued the residents' claims were inherently individual,
and as such, individual issues predominated over those common
to the class. GPC pointed to variances in testimony submitted
by the residents. For example, their descriptions of
GPC's emissions differed, such as "yellow dust,
" "syrupy, sticky residue, " "similar to
pencil shavings, " "sticky, brownish tan
particulates, " "small black pellets like
peppercorns, " or "dust that looks like fur."
Some residents had moved into the neighborhood with knowledge
of the emissions, while others were unaware before moving.
The neighbors had lived in the area for varying periods, some
moving to the area after the lawsuit was filed and others
living there for over fifty years. Some stated they may have
received reduced pricing on their homes because of the
pollution. Some lived closer to other emission sources, such
as a wastewater treatment plant or railroad. GPC identified
seven residents (out of over 100 declarants) who stated they
never had been prevented from doing anything outdoors because
of the smells or emissions. Even these residents, however,
acknowledged the prevalent odor in their neighborhood from
GPC's facility. The individual issues, GPC argued,
necessitated a property-by-property, person-by-person
analysis to determine whether GPC's conduct created a
also resisted the residents' phased trial strategy.
Specifically, GPC objected to the use of lay testimony to
infer classwide harm. GPC noted a class action must
"rise or fall" with the named plaintiffs. Allowing
the jury to infer, from representative testimony, conditions
on surrounding properties, GPC argued, would impermissibly
alleviate each resident's burden to prove nuisance on his
or her property. Moreover, using inferences would mask
individual issues, hindering individual defenses and thereby
depriving GPC of due process.
submitted expert testimony criticizing Dr. Rosenfeld's
model and corresponding allocation of damages. It alleged the
model was flawed because it combined disparate substances
(VOS, PM10, and sulfur dioxide) to reach an aggregate total,
even though properties with differing concentrations of these
substances would experience differing harms. The model showed
concentration totals on a linear scale, although testimony
established that emissions would not be experienced linearly.
A property with a concentration total of 200 would not suffer
double the lost use of enjoyment as one with 100. The model
only accounted for wind direction and failed to account for
hours during which the residents were sleeping, on vacation,
or otherwise away from home. Because the model measured
emissions hitting the property even at levels that would not
be perceptible, let alone cause compensable harm, GPC argued
the model did not establish a nuisance. GPC also noted the
residents' model and formula could not measure any
alleged trespass or negligence by GPC.
The District Court's Decision.
district court granted class certification. Noting its
authority to modify or decertify the class at any time, the
district court divided the class into two subclasses, one for
members in close proximity to GPC, and the other for those in
peripheral proximity. The court reasoned that plaintiffs'
air dispersion analysis "yields results one would
expect-properties in close proximity have comparable
'Concentration Totals' and direct-hit hours."
Therefore, "named plaintiffs suffer the most comparable
harm to absent class members who live in close proximity, and
the closer the proximity the more analogous the harm."
The court sorted six named plaintiffs into the
close-proximity subclass and two into peripheral proximity.
district court further determined that common issues of law
and fact existed and that common issues predominated over
individual ones. Common issues included GPC's course of
conduct, its knowledge of the pollution, and its level and
duration of emissions. Addressing GPC's concerns, the
district court, citing Miller v. Rohling, 720 N.W.2d
562 (Iowa 2006), stated,
Because Iowa measures the existence of nuisance-level harm
objectively, a nuisance claim brought under Iowa law is not
inherently individual. Indeed, Iowa's objective standard
renders many of Defendant's Due Process
arguments-idiosyncratic sensitivities, physical infirmities,
life style choices, preferences for use and enjoyment,
housekeeping habits-immaterial to proving nuisance. Further,
Iowa's objective-nuisance standard supports
Plaintiffs' plan for presenting the jury with lay
testimony from witnesses-whom the jury can find are
"normal persons living in the community"-to prove
the class-wide impact of the alleged nuisance throughout each
Miller also supports Plaintiffs' proposed use of
formulaic damages. Miller upheld the trial
court's formulaic use of an identical per hour dollar
value for all of the plaintiffs notwithstanding differences
in their proximity to the sources of the pollution.
Miller also approved the trial court multiplying an
identical per hour dollar value by sixteen hours a
day-because it assumed that "most normal people would be
out of their home a period of eight hours a day." . . .
Miller approving formulaic damages based on
reasonable inferences and approximation renders more of
Defendant's Due Process arguments-each class member
living in a different proximity to the source of the
pollution, the varying rate of emission over time, the
varying velocity and direction of the wind, and the number of
hours each plaintiff was actually or wakefully present at his
or her property-immaterial to proving nuisance.
district court concluded, "Due to the remedial nature of
our class action rules, the manageability concerns raised by
Defendant's arguments are presently insufficient to deny
appealed as of right. See Iowa R. Civ. P. 1.264(3)
("An order certifying or refusing to certify an action
as a class action is appealable."). GPC argues the
district court abused its discretion in certifying the class
and that certification infringed upon its due process rights.
We retained the appeal.
Standard of Review.
review of the district court's ruling granting or denying
certification of a class is limited because the district
court enjoys broad discretion in the certification of class
action lawsuits." Legg v. W. Bank, 873 N.W.2d
756, 758 (Iowa 2016) (quoting Vos v. Farm Bureau Life
Ins. Co., 667 N.W.2d 36, 44 (Iowa 2003)). We review a
district court's class certification ruling for abuse of
discretion. Id. The district court abuses its
discretion when its "grounds for certifying a class
action are clearly unreasonable." Id. If the
district court " 'weigh[ed] and consider[ed] the
factors and [came] to a reasoned conclusion as to whether a
class action should be permitted for a fair adjudication of
the controversy, ' we will affirm." Anderson
Contracting, Inc. v. DSM Copolymers, Inc., 776 N.W.2d
846, 848 (Iowa 2009) (alterations in original) (quoting
Luttenegger v. Conseco Fin. Servicing Corp., 671
N.W.2d 425, 437 (Iowa 2003)). To the extent GPC argues
certification infringes upon its due process right to present
a defense, our review is de novo. Kragnes v. City of Des
Moines, 810 N.W.2d 492, 498 (Iowa 2012).
decide whether the district court abused its discretion by
certifying this class action. GPC contends that commonality,
a question of law or fact common to the class, is not present
as required under Iowa Rule of Civil Procedure 1.261(2). GPC
relatedly argues common issues of law or fact do not
predominate over individual issues, a factor it contends the
district court failed to sufficiently weigh when concluding a
class action should be permitted for the fair and efficient
adjudication of the controversy. See Iowa R. Civ. P.
1.263(1)(e). We determine that common issues of law
or fact exist and predominate over individual issues.
Finally, GPC argues the certification order violates due
process by interfering with its right to litigate individual
defenses. We disagree and conclude GPC will be able to
litigate individual issues. We hold the district court did
not abuse its broad discretion in certifying this class
Whether the District Court Abused Its Discretion by
Certifying the Class Action.
Rules of Civil Procedure 1.261 through 1.263 govern class
actions. Under rule 1.262, the district court may certify a
class action if it finds all of the following:
a. The requirements of rule 1.261 have been
b. A class action should be permitted for the fair
and efficient adjudication of the controversy.
c. The representative parties fairly and adequately
will protect the interests of the class.
Id. r. 1.262(2). Rule 1.261 provides parties may sue
as a class when "[t]he class is so numerous . . . that
joinder of all members . . . is impracticable" and
"[t]here is a question of law or fact common to the
class." Id. r. 1.261(1)-(2). "A failure of
proof on any one of the prerequisites is fatal to class
certification." City of Dubuque v. Iowa
Trust, 519 N.W.2d 786, 791 (Iowa 1994). But at the
class certification stage, "the proponent's burden
is light." Id. The class action rules should be
"liberally construed and the policy should favor
maintenance of class actions." Lucas v. Pioneer,
Inc., 256 N.W.2d 167, 175 (Iowa 1977). The goal of the
rules is the
efficient resolution of the claims or liabilities of many
individuals in a single action, the elimination of
repetitious litigation and possibly inconsistent
adjudications involving common questions, related events, or
requests for similar relief, and the establishment of an
effective procedure for those whose economic position is such
that it is unrealistic to expect them to seek to vindicate
their rights in separate lawsuits.
Comes v. Microsoft Corp., 696 N.W.2d 318, 320 (Iowa
2005) (quoting 7A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure §
1754, at 49 (2d ed. 1986) [hereinafter Wright]).
1.263(1) lists thirteen factors the district court may
consider in determining whether "the class action should
be permitted for the fair and efficient adjudication of the
controversy." Iowa R. Civ. P.
1.263(1). These factors "center on two broad
considerations: 'achieving judicial economy by
encouraging class litigation while preserving, as much as
possible, the rights of litigants-both those presently in
court and those who are only potential litigants.' "
Vos, 667 N.W.2d at 45 (quoting Vignaroli v. Blue
Cross of Iowa, 360 N.W.2d 741, 744 (Iowa 1985)).
factor is whether "common questions of law or fact
predominate over any questions affecting only individual
members." Iowa R. Civ. P. 1.263(1)(e).
"[T]he language of rule 1.263 indicates the district
court has 'considerable discretion' in weighing the
factors." Anderson Contracting, 776 N.W.2d at
848 (quoting Vignaroli, 360 N.W.2d at 744). The
district court decides what weight, if any, to give each of
the factors and may weigh one factor more heavily than
another. Id. "Whether or not we agree with the
decision arrived at by the trial court is not the issue. The
issue is one of abuse of discretion." Id.
(quoting Martin v. Amana Refrigeration, Inc., 435
N.W.2d 364, 369 (Iowa 1989)). The district court has
considerable leeway when deciding whether to certify the
class. See, e.g., Legg, 873 N.W.2d at
761-62 (affirming class certification and noting broad
discretion); Kragnes, 810 N.W.2d at 500 ("We
find no abuse of the district court's broad discretion in