The Georgia Supreme Court, in a 5-2 decision, has reversed a decision by the Georgia Court of Appeals granting class-action status in a lawsuit against Georgia-Pacific’s Savannah River Mill Plant.
The suit was originally filed in 2010 by Kirbi and Aaron Ratner and David and Kathy McDonald, who live near the Fort Howard Road Plant.
The lawsuit presented claims of nuisance, trespass and negligence, alleging that sludge dumped in disposal cells at the plant released hydrogen sulfide, a gas that causes egg-like smells and is corrosive to metal. The property owners claim the gas caused loss of property values and physical damage to homes.
Much of the reported damage has been from corrosion to air-conditioning systems.
Class action certification was granted by Effingham County Superior Court Chief Judge William E. Woodrum in July of 2012. The class-action certification allowed lawsuit members to include owners of 65 properties that neighbor the plant. The properties included an area west of Fort Howard Road, south of the railroad line and east of Rincon-Stillwell Road.
Georgia-Pacific appealed that ruling to the Georgia Court of Appeals in 2013. That court upheld the class-action status.
The issue was then appealed to the Georgia Supreme Court by Georgia-Pacific and arguments were heard early this year.
The Supreme Court ruling states that the homeowners did not meet state requirements to qualify as a class, including the requirement of commonality.
“We conclude that the trial court abused its discretion when it certified the class, and we reverse the judgment of the Court of Appeals,” Justice Keith Blackwell said, in writing for the majority. “What matters to class certification is not the raising of common questions — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”
The opinion also states there was no evidence in the record that might prove on a class-wide basis that the entire area defined as the class was contaminated with hydrogen sulfide gas from the sludge fields.
“There is, for instance, no scientific evidence of the amounts of gas released from the sludge fields, no evidence of the rate of release, no evidence of the extent to which the amounts released and rates of release varied over time, and no evidence of exactly how the gas would be expected to move through the air upon its release,” the court wrote. And while the record contains some anecdotal evidence of hydrogen sulfide gas in some areas around the Mill, “this anecdotal evidence is not enough to satisfy a rigorous analysis with respect to the commonality of the particular class that the trial court satisfied.”
In a dissent of the majority court decision, Justice Carol Hunstein wrote that while she disagreed that the class was not supported by the record, “I note that the majority’s opinion expressly contemplates the possibility that the plaintiffs here could still, with additional evidence, establish the existence of a sustainable class.”
Ben Perkins, a Savannah attorney representing the plaintiffs, said presenting additional evidence to the trial court is one option to be explored for his clients in light of Friday’s ruling.
“Second, we could file separate lawsuits on behalf of individual property owners whose property has been damaged by Georgia-Pacific’s pollution.” Perkins said. “Despite Georgia-Pacific’s claim that it is taking steps to halt its pollution, a claim Georgia-Pacific has made for more than a decade, the property damage and resulting diminution in property value caused by Georgia-Pacific’s pollution continues to occur.”
Perkins said he and the other attorneys involved in the suit would continue to work for their clients.
“Those persons whose property rights have been trampled upon by Georgia-Pacific are entitled to compensation, and we will do everything in our power to help them obtain such relief.”
Carrie Thompson, a spokesperson for Georgia-Pacific, said that her company had just received the decision.
“We are evaluating it and the impact that it will have,” Thompson said. “This is one step in the overall legal process on this issue. We’ll continue moving forward in that process, and we’ll continue working hard to be a good neighbor.”