In the summer of 2004, during Hurricane Frances, an industrial facility released approximately 65 million gallons of process water into Tampa Bay. A group of commercial fishermen promptly filed a putative class action. The class representatives alleged that the release damaged the natural habitat and adversely affected commercial fishing in and around Tampa Bay. At the certification hearing class representatives testified to what they alleged was their firsthand observation of harm to the bay and their experience of loss in commercial fishing landings and revenue. They argued that the “overwhelming common legal and factual aspects between the claims of the named [p]laintiffs and putative class members dwarf any variation in the claims and predominate over any individualized issues.” The defendant presented the testimony of experts in the fields of ichthyology, benthic ecology, marine biology, physical oceanography, estuarine science, and commercial fishing economics to demonstrate not only the absence of areawide impact, but that the class representatives failed to provide any methodology to demonstrate classwide impact and no class representative could prove the cases of the absent class members by proving their own individual cases.

The trial court certified the class by bifurcating liability and damages. It stated in its certification order:

The liability issues are common to all plaintiffs, since they are determined only by the actions of the defendant and of nature. These common questions predominate up to and including the determination of the severity of the spill’s potentially toxic effects in each geographic area. The plaintiff’s yet-to-be-revealed evidence of the effect of the spill and the defendant’s “no causation” defense both pertain to particular geographic areas, not particular people, and are thus common questions to be resolved at the liability stage.

The defendant appealed the trial court’s class certification to the Second District Court of Appeal, which rendered a decision reversing the trial court’s certification, holding that the trial court “abused its discretion because there was no competent, substantial evidence supporting its ‘proof-based inquiry’ into and ultimate determination of rule 1.220(b)(3)’s predominance requirement.” Mosaic Fertilizer, LLC v. Curd, et al., Case No. 2D17-2301 (Fla. 2d DCA Nov. 9, 2018). In its decision, the appellate court made the following important points:

1. The class representatives must provide a reasonable methodology for proving classwide impact. The appellate court stated that “[a] proponent of certification must demonstrate a ‘reasonable methodology for generalized proof of class-wide impact’ whereby ‘proving his or her own individual case, [the putative class representative] necessarily proves the cases of the other class members.’” And that in this case, “[t]he fisherman [] had the burden of proving—beyond mere ‘supposition’—some methodology for generalized proof by which the class representative would necessarily prove the cases of all other commercial fishing license holders who claim to have been damaged by the spill.”
2. The class representatives’ evidence did not satisfy that requirement. The appellate court observed that “[t]aken as a whole, it is not possible to view [the class representatives’] testimony as plausibly putting forth a reasonable methodology for proving classwide claims.” Consequently, they “failed to carry their burden of positing any reasonable methodology for proving classwide claims.”
3. Florida’s Engle case is unique and does not necessarily authorize bifurcation as a means of satisfying the predominance requirement. The appellate court observed that bifurcating liability and damages does not necessarily satisfy “a means of meeting” predominance, and Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) is an idiosyncratic case that is “unique and unlikely to be repeated.”
4. The trial court left for later what it was required to do at the class certification hearing. Finally, the appellate court noted that “[w]ithout making some antecedent showing of the methodology by which the fisherman intended to prove classwide claims, the fisherman failed to meet the burden imposed by rule 1.220(b)(3).”

Mosaic Fertilizer, LLC v. Curd, et al. provides useful guidance in the field of environmental class actions.

Greenberg Traurig served as counsel to Appellant, Mosaic Fertilizer, LLC, in this case.