IN THE NEWS
LexisNexis® Mealey's™
Emerging Toxic Torts
Volume 14, Issue #17 · December 9, 2005
Georgia State Court Certifies Class Action Alleging Odors, Waste Contaminate Neighborhood
ATLANTA - The neighbors of a rendering plant in Laurens County, Ga., who allege damages arising from the odors and emissions from the plant can proceed as a class action because they satisfied their burden under Section 9-11-23 of the state code, Fulton County Superior Court Judge Tom Campbell ruled Nov. 7 (Cynthia Green, et al. v. Griffin Industries Inc., et al., No. 04-79741, Ga. Super., Fulton Co.).
(Order certifying class available. Document #15-051209-108R. Motion to certify class available. Document #15-051209-002M. Opposition to motion to certify available. Document #15-051209-003B. Plaintiff reply in support of class certification available. Document #15-051209-004B. Defense supplemental opposition to motion to certify class available. Document #15-051209-006B. Response to supplement opposition available. Document #15-051209-007B.)
Although he found the objections raised by Griffin Industries Inc. to have merit, he said they "do not outweigh questions such as whether Griffin caused and maintained a nuisance; whether the plant was operated in a negligent, improper or illegal manner; and whether plaintiffs' claims are barred by the Right to Farm Act."
'Most Efficiently Adjudicated'
"These questions regarding liability, the defenses and any injunctive relief necessitated by a finding of liability would be most efficiently adjudicated in a class action format," Judge Campbell said. "Damages and any remaining questions of law or fact may be tried on an individual basis."
The defendants opposed class certification in a brief filed Oct. 20, 2003, on the grounds that Georgia law does not permit certification of a class for common questions while reserving individual questions to subsequent litigation.
"Such an approach is completely unauthorized by statute (compare Fed.R.Civ.P. 23[c][4]) Shepardize, and in the only Georgia Supreme Court case confronting the issue, the court declined to decide whether such an approach was permissible," Griffin argued.
Judge Campbell said the plaintiffs had met the requirements of numerosity, adequacy and typicality set out in the Georgia Supreme Court case cited by Griffin, Tanner v. Brasher (254 Ga. 41 [1985] Shepardize).
'Discretion Of The Court'
Furthermore, he said, "The decision whether to certify a class action is entirely within the discretion of the court" as established in Ford Motor Credit Co. v. London (175 Ga. App. 33 [1985] Shepardize).
The motion to certify the class was filed Sept. 19, 2003.
Michael B. Terry, Steven Rosenwasser and Lisa R. Strauss of Bondurant, Mixson & Elmore in Atlanta and Joshua E. Kight of Kight, Baggett & Kight in Dublin, Ga., represent the plaintiffs.
L. Lin Wood of Atlanta and William V. Custer, Leah J. Knowlton and Eric P. Schroeder of Powell, Goldstein, Frazier & Murphy in Atlanta represent the defendants.
