and then litigate these issues for every single one of the twenty thousand properties that are within a one hundred and fifty four square mile class area just as in ybor gate and even if they don't have a single particle on their problems that was an abuse of discretion for multiple reasons first it makes no sense in connection with a twenty three d three class which is limited to economic damages to definition and property and response costs nd there is no evidence to support the court's premise and every member of the class with necessarily move about the class area and regularly encounter on safe levels up and of contaminants further this rationale ignores the undisputed evidence that the vast majority of claim of samples did not contain any contaminant of consumption in excess a background of holes much less an amount that could give rise to health concerns and the coroner also he nor the undisputed evidence that the contaminants of concern bit wouldst in the environment and had many other sources within the class area i should note in this regard i have a question about that if you're going to take you big as other sources and things i'm wondering if it is your position only bit because of this sampl biased sampling method that you called it did this case itself is fatally flawed from the get go or or are you saying that any such case is fatally flawed model and expert or who it turned out was manipulating the inputs and producing outcome that his clients were paying him to produce so he had to be withdrawn and that's why they have using that word samples because they never try to do it through a proper sampling program but i think more broadly it would be exceedingly difficult given the size of this class area and the nature of this kind of release to ever a stablish that kind of comedy injury after all he court has moved with the win environmental cases that could demonstrate common exposure injury in causation and one example which is cited several times by the district court in its opinion is  affected but when you're talking about what's basically invisible corals that could have gone anywhere it's i think it's almost impossible to certify that kind of class and certainly not one hundred and fifty four square miles let me ask you this i think there is a core issue in this case you know in that difficult pollution case if you will it's over time there's other entities that are polluting all of the conflicts and concerns that you raise you know are inherent this when they're focusing on a particular day and the preparation for that or lack of preparation is they  supposed to do everybody's done if they didn't do what they were supposed to do then we move on to all of this stuff that's in the air literally and figuratively well it is best economists you that we stipulated existed  under this current court case law predominance has to be established for the case as a whole not for one issue and you're supposed to look at the way the case will be tried which is something that this a court never get there is no way to try this case without having twenty thousand trials to establish where they expose what you know do they have the contents of concern on the property are they  of background if so are there potential alternative sources there was a un expert testimony in this case all of which by the way the trial court ignored discussing the alternative sources and how the plaintiff's experts had not done anything to them hot one of the many errors committed by the trial court was yelling to weigh the evidence of both wrong in certifying these classes he just didn't even look at the evidence that we put on and i would contrast that with the decision  work or are you saying that or work well i don't know in any way no further work would make a difference even if they were to start over which i don't think not inconsistent with this court's opinion and then that trial for the kids plaintiff a nd chance to try to establish the requirements for classification with new evidence and then it appeal back up and the and this quote said no that's not what we know and you don't get to do so even if they could which i just i i don't think for the reasons i said before they ever could get into it in a case in which they're overreaching so much to try to get such a big class area that they could ever established with common evidence the kind of the exposure the causation the injury and i should say damages this court has often this court has said it can be enough and here on top of that we have individual s issues going to liability on it if the court permit just know it was there so then the next question is was how did it get there because as i said there are many alternative sources these chemical that cause ation you are distinguishing causation in iraq you are correct that it was trying to understand the injury cause asian it is how the bucket get there so both it's a exposure is if there is anything injurious if it exceeds background and then causation is after you rule out in seven mile radius circle in some parts of the circle you're quite close to other you know to me find areas in other parts of your brain on the railroad tracks or ninety all of away with it's negligence if it can defeat a class action this easily well i don't think it should be any theory that they've been sued in individual suits and if you notice in the plaintiff's brief they say they've all wind up lawyers if the case gets decertify and so they're not going to get away with it and i should also say that our coming out has been in this area for a long time and they pride themselves on being a good neighbor and when people call them up and say we've place here but you know well as everyone knows that was a once in two thousand year storm so getting away with not being prepared for that kind of storm is not plate getting away with  that there were other factors inec case that they argue caused the decline in the property values in there how do you distinguish that well two things st it's is the question that judge all rod asked at the very end does this court permit a bifurcated trial plan in a mass environmental harm case everything that mr tabor said goes to the fact that there will be individual damages calculations there will be secondary proceedings that are necessary to the final disposition of this case but this court in deep water horizon and in several other cases has said that when all the issues that go to the liability are common that a bifurcated tropp plan is the most effective this point which is the robinson versus monsanto case in which you had a similar type of symbol of and exposure question and an environmental case and this court denied class certification there but did so because all of the live realty issues had already been resolved before it came to the courts and if i can read what this court said it said if the usual class action were to be used in accordance with the usual method of resolving mass tort claims that this type the proceedings would most likely be bifurcated to try the common issue of liability on a class wide and write in miller and rely on exactly the same provisions of those treatises leaving aside that they moved over in subsequent edition but the exact same provisions of those troops says that were relied on by this cour again crutchfield and that were alive upon by the u s supreme court in the tyson foods case and with those provisions established is that there is increase income for in courts around the country an increase in law in the courts of appeals that allows for precisely what the district court did here which is to find that all of the issues of liability quoting this court's to leave decision all of the issues of liability would focus on the defendant's conduct we don't have questions of contributory negligence here we don't have questions that go to any aspect of any point this behavior m at the very end of his argument if they did something wrong if they did something wrong and their contention is there was no negligence there was no strict liability this is a once in a two thousand year flood event which incidentally there have been thirty two thousand year flooding events in the houston area in the last ten years so there is a significant question whether they acted conformity with what would be the appropriate standards of care for a facility operating such alter hazardous to vicki's but if that's the question and that's a question that's not only before this court i a question the before the state courts in the seven hundred proceedings there and you submitted a demonstrative to this court showing how they characterized the case of cases in the texas state system in the exactly the same way that the district court did here which is the say at the liability states they're all the same case they're all present the same evidence they all ask the same questions there's no variation between them and that is what the district court found here and we presented to the demonstrative the comparable findings by the district court and their own assertions in the texas they court system but go in exactly the same direction so the question is whether this court could ever allow a predominance inquiry to be satisfied in a bifurcated trial proceeding now certainly there are many cases of this court that reject predominance findings but they fall into certain patterns and the patterns distinguish this case in the way that judge chains indicated set this case apart so for example you have multiple cases beginning with castano and and most recently the crew son case where you have choice of law issues where you have multiple legal standards that have to be assessed the same time this case presents no such issue there are two federal statutes and a series of texas common law claims and that's it it's all one body of law that governs this there are cases that deal with personal injury or emotional distress and almost all  cases that fail as a class action cases in these kinds of mass harm cases are those which raise the personal inquiry as to emotional distress personal consequence personal vulnerability that may follow the rd is where there are multiple defendants and this court in the deepwater horizon case actually went  step beyond where many courts have gone in allowing a case to go forward as a class action and recognized in better trial plan could successfully manage even when there d were multiple defendants the th one is when there is a stretched out time horizon so that in cases like the monsanto case or in cases like the cases they rely on from out of the circuit the gates case and the ybor case from the thirty eight circuits those are cases where the toxic exposure is exactly the question the judge paints asked the toxic exposure was something that occurred over decades and decades and decades and we don't know exactly who was exposed when or when the harm cease or what other actors may have come into this and finally the most critical failing in the predominance involves cases where there  tickets of all things and it's a case in which somebody's got moved from one place to another says my view my sightline was not as good you told me this i didn't expect that that's the classic what did i anticipate what representations was i relying on this case has nothing to do with it and in clutch feel this court's we have upheld certification of class actions in certain mass tort cases they  conduct usually committed by a single defendant that's what this case is a single event single defendant single overarching question of are they responsible and not only are we pursuing this in this fashion but there is criminal procedures going on that were unfortunately disrupted by by the covert emergency there are criminal proceedings going on against our camilla and two of its officers including its c e o on exactly the same question are you responsible or not that's the critical question in this case now in their brief twice and then in their reply brief once are come up asserts that this court has a per se rule nearly per se rule that in fire mental torts are inappropriate for class certification the st time they assert this it's bereft of accidents were not appropriate for twenty three p three that may be so but that has nothing to do with this case it has nothing to do with the spirits of this court in handling environmental cases in this fashion and most centrally it cannot explain the success that this court had in dealing with the biggest environmental catastrophe ever brought to the courts  well i'll say this that case was settled and we were dealing with a settlement as it's been supposedly settled and i would say every always sitting i have to have at least one be the case so clearly it's still going on so whether that i mean i don't know whether that was a great way to handle it or not but it was a settlement that can't even imagine if they were trying to try you know fifty thousand cases or whatever it would have been because just the opt outs and the disagreement over  settlement processing has created a huge amount of work for the district court and bar or yes it has judge and i am not unfamiliar with the deepwater horizon litigation  spent quite a bit of time before your honor's in various instances of that and i can say that the question is always what the alternative is that's what the predominance inquiry asks and it is not that this will all go away if the class is certified or that there will be a lot of work to do believe me the work that this court had to do in deepwater horizon was not caused by the class certification order but by the explosions on the oil rig and the oil rig gave rise to massive numbers of cases brought by states brought by municipalities brought by individual businesses brought by all sorts of these and the question was whether that was and a sufficient effective way of handling the dispute and there yes the bulk of it settled and based upon that settlement issues were narrowed but there were pieces of deepwater horizon that went to trial there were two trials held in deepwater horizon there were the personal injury case the death cases that were settled outside the framework of the class action so the the issue and mr trigger keeps raising this there will be so much work to do the reason there's a lot of work to do is that a chemical plant exploded in crosby texas and that's  prohibited event that should not have happened it's a mallam in say it is you know a race of so loquitur this all these terms that should not happen now they say act of god force missouri  nobody could have anticipated this we submit every other chemical plant in the area didn't to support this did shut down production at of time and what the question what the spoke and the nature of their negligences is a matter  that is has to be addressed now the only issue judge haynes is not whether the class action will resolve everything but whether the liability has to be proven again and again and again and we recommend to this court's attention the decision of the th circuit in the met coil case because that really is an opening for this entire area of law the inability to find any even liability at the class wide level and this court was deeply influenced by that in castano romper long is a pace in which there's a toxic relates and the issue is does the plume from the toxins fall into an apple for or not and judge posner and mr travers brief says he does this undersea for that's just wrong there is no mention of of section twenty for not now he acknowledges in that case that subsequent work will have to be done so for example it will have to be determined whether individuals draw some or most or all of the water from the aquifer whether there were alternative sources some members within the class zone and in inmet coil drew their water directly from lake michigan so they would not have been affected under any circumstances but there is no guarantee horizon it roberts crutchfield but if it allows bifurcated proceedings that means that the application of that will go through a nd phase and that nd phase can take many forms there can be a settlement there which is what usually happens there can be some kind of administrative proceeding mr taker's brief and echoed unfortunately by the chamber of commerce says oh no no at that point we're going to have statistical sample and we're going to have trial by formula this violates dukes there's no mention in the district court's opinion of trial by formula what the district court says in the phase two we will figure out if there is liability how to get to the damages portion some pathways and the efficiency gain is that if the plane if the defendants prevail at trial we never get there so we don't have to do a lot of work but the but the what the trial court said was we could have some bellwethers trials which is the classic mechanism that's advanced by the federal judicial center in the the manual on complex litigation that's what courts used routinely that's not trial by sample i'm sorry this on trial by by statistics that's trial by let's see how much one of these cases is worth and let's see what the jury comes back with in a few of them and then we can we can figure this out it's true that it's property was in your visual eyes it visualized harm or be appropriate here the bellwether would tell you whichever trials went forward as bellwethers it would say juries find that this is a significant it is not significant the arkham a brief so intimate that there is such a toxic stew that is ever present in this part of east texas that no harm was done anyway that all these things are present there including other metals that don't matter that weren't issue here like arsenic but the question what the what that will do is give valuation and parties settle on the basis of common understanding it's all the time or they can agree to an a v r proceeding they can agree to all sorts of things once the central question of liability has been determined on the central question of liability mr taker keeps insisting that there is no evidence before the district courts and that is not correct and here again and it's the only place where i will invoke this the standard of review is important because it's a highly deferential to district court h extensive hearings has a massive factual record before it but mr mr tabor relies on two things as our air expert did not to do a complete sampling and so forth we rely below on the work that was done by the trinity firm which confirmed to a distance of six eight miles that there was ambient particles of the toxins released from the plant up to a level of six feet now these don't just sit in the air that emanate from the ground and so on that basis we define the class zone as the seven mile radius and if there are these metals present then we will go back at the propre time and find out exactly where the hot spots are in all that that is a class methodology that's all that's required here is your take says well we have evidence to the contrary of course they do but that's not what the class certification hearing is for that's what the the supreme court rejected and amgen as the cart before the horse that's what summary judgment is for that's which route cl sufficiently well should we send it back for the district court to lay those pathways out or should or do you want us to rip the band aid off and decide or want one way or opinions in virtually in the in roberts soon in crutchfield in deepwater horizon were wrong that this court come out and say it right away because let's not waste time and money if that's the rule of this court th finish this thought i think it would be more than odd i think it would be one pamela overruling bill the law that seems to have been understood by prior animals as controlling in this circuit and that was certainly apply not just in dicta but applied as part of the applications and given the paucity of actual case law on this point there may very well may then of course we should go back and have the chance to perfect the record under however this court elaborates that the legal standards issue that was not common was dented and true some cases have said that is alone enough and i think in this but that's probably something that's closer  there would be for all the reasons we discussed in the st fifteen minutes injury causation exposure all elements of the causes of action so and the i mean to get you to put them into group because once causation is established or not established i mean that's the thing and then you put them in groups by their injuries well causation is about causes that can't be done through any kind of group proof every property is different they're located in different places and i quickly touch on the trinity that's an air dispersion model not an air disposition model it's about where the particles were any air not where they would have fallen on the ground there are six different variables that would govern where they might fall that were not addressed by either trinity or the claims which include the height of the plume the temperature a mass of a core because the wind this there would be no way she could have concluded that now i want to touch on what the actual predominance in that is in asserting this court has said over and over again that for the issues to predominate of predominance can't be satisfied if the case with degenerate into a series of individual trials which is exactly what happened here all that mr is is that well we're just going to kick the can down the road into a nd case but it's still going to be twenty thousand trials and this court has and i think you alluded to that this court said in the robinson case and in madison case that you can't just have a trial plan that says will certify now and tell you how we're going to do it later and i think if i could bridge to her point i couldn't reach down the for fifteen minutes one of the problems will be to class is that they never a stablished that everybody in the class would have seen the interests in medical surveillance maldonado and i'm blanking on the nd case but there were two cases but not so they never said what it would look like but they also never put in any evidence that people throughout this class area would all out there to be kicked out of their homes for three days or to have their yards dug up or be subjected to medical tests so the  satisfied and can't be satisfied by his trial plan ok thank you council we have your argument we appreciate the arguments both else of today which were helpful to the court this case is submitted we will take a tin before considering the next case for that thank you