COLUMBIA, S.C. — Over two days last week, attorneys for New-Indy Catawba and the plaintiffs argued for and against certification of the class-action suit.
Attorneys representing both parties met in U.S. District Court in Columbia in front of Judge Sherri Lydon on Thursday, April 11, and Friday, April 12.
Certification of the class-action lawsuit against New-Indy would allow one trial on the matter versus various trials by individual clients. There are roughly 14 individuals who brought the main lawsuit against New-Indy, but according to attorney Phil Federico, his firm represents 2,000 people as part of the class action against the Catawba, S.C., mill, located between Rock Hill and Van Wyck, which has allegedly made people sick due to the release of hydrogen sulfide starting in 2021.
Attorneys from Motley Rice, representing the plaintiffs, stated the reason for certification was because New-Indy created a nuisance and was negligent in its operations.
Plaintiff’s attorney Brent Ceryes said the area affected by the mill is 420 square miles, which includes 125,000 properties and 500,000 people.
Federico added that it would benefit the court to certify the class action in the long run.
“We are going to save the court a tremendous amount of time,” he said.
Under the law
However, Lydon stated that the issues have to fit within the law to have the class-action suit certified.
Certification of class-action suits comes under Rule 23 of the federal rules of civil procedure. That rule and subsets of the rule lay out a playbook for certification, which New-Indy attorney Scott Schutte says the plaintiffs’ attorneys don’t meet.
“Rule 23 has a set of rules and it is a rule with rules in it,” he said. “You can’t take something that is uncertifiable and certify it.”
The rule states there are four reasons to certify a class-action case — numerosity, commonality, typicality and adequacy.
Schutte, with Morgan Lewis firm, said that with that many people it’s impossible to say that the mill affected all of them.
“We don’t dispute there are some common issues,” he said. “The common issues have to drive a resolution.”
Ceryes added that it benefits Lydon and the court to have one trial instead of several.
“There is a point where the line is drawn between individual issues and common issues,” he said. “We believe there are benefits in trying this in one trial.”
Motley Rice attorneys argued that New-Indy causes property damage and personal damage as a result of negligence and the nuisance part of their claim.
Lydon said harm has to have been caused because of this.
“There has got to be an experienced harm,” she said. “Was there harm? Who was harmed? What kind of harm?”
Motley Rice attorney David Hoyle said that harm was certainly caused in this case.
“The harm here is unprecedented,” he said.
At times, Lydon said she struggled to see what class-action relief would resolve.
“We have issues within the issues that can’t be certified,” she said.
Because the suit covers so much geographical territory, Schutte argued there was no way to avoid multiple trials because the issues raised by the plaintiffs don’t fall under rule 23, thus the suit shouldn’t be certified.
“They didn’t try something manageable,” he said. “They went for the long shot.
“They don’t meet the rule 23 requirements. Just cause it would be easier to do it this way (as a class action), doesn’t make it right.”
Ceryes added because this was an airborne problem caused by New-Indy that it couldn’t be treated like a groundwater problem which can be traced from source to victim.
“There are many different shapes and structures to this,” he said.
Lydon added she struggled with how manageable the issue was with so many plaintiffs involved and the volume of the area it covers.
Schutte also argued there are plaintiffs in the case who live together who have different experiences regarding the mill.
“Claims are not typical of each other,” he said. “You have people living in the same house that say the odor affects them differently.”
A long trial
If Lydon does certify the class-action suit, then it is scheduled to start Thursday, June 20, in Columbia.
The plaintiffs’ attorneys laid out that they expect to call roughly 40 witnesses, which would include victims, New-Indy employees and former employees, as well as experts in chemistry, weather patterns, medical doctors and other scientific areas. The jury trial is expected to last at least two weeks, if not longer.
Schutte said the defense would have at least five or six days of counter-testimony before closing arguments and the trial would be handed over to a jury.
Lydon didn’t make a ruling on the possible certification of the class-action suit during last week’s recent court appearance, but did say she would make a decision before the end of the month.
Lydon also needs to rule on whether New-Indy Containerboard, the firm’s parent company based in California, would be part of the litigation or if it would involve just the local mill, New-Indy Catawba.
