295 Ga. 524

FINAL C OPY
S13G172 3. GEORGIA-PACIFI C CONSUMER PRODUCTS, LP

v. RATNER e t al.
B LACK WE LL , Justice. The named plaintiffs in this class actio n own real pro per ty in M allard Pointe , a reside ntial ne ighborhood in Effingha m Count y. Ne arby, since 1 986, Georgia-Pacific Consum er Produc ts, LP has operated the Sa vannah River Mill,
a facil ity tha

t include s morethan a h undred acres of sludge field s, into which Georgia-Pacif

ic put s the solid waste genera ted at the Mill. A s this solid waste decom poses, the plaintiffs sa

y, hyd rogen sulf

ide gas is rele ased from thesludge fields. Alleging that the ir rea l propert y has be en conta

minat ed by

this gas — and that, as a re sult, the

y havebeen e xposed to no xious odors, their use and enjoyment of their property has been impaired, a

nd the value of their property has dimini shed — the

plaintiffs sued Georgia-Pacific for nuisa nce, t respass , and negligence. The pla

intiffs so ug ht not only

to reco ver mo netary

damages for thems elves, but they proposed t o seek r elief for a class of other nea

rby property
owners.1 Ge nerally speaking, these 67 pr operti es are i n a conti guous area to the w est of Fort

Ho wa rd R oad. T he M ill is si tuate d just to the e ast of Fort Howard Road. Of the propert ies in the cl ass are a, the lots in M allard Pointe — a neighb orhood that is located just off F ort Howard Road — and a few other properties on Fort Howa rd Road appear to be the closest in proximit

y t o the sl udge fiel ds at t he Mill. To be exact, the tr ial c ourt defi ned the class as follows: All citizens of the Sta te of Georgi a who, as of November 18, 2010, owned prop erty lying, in whole or in par t, wit hin an are a of land ly ing in Effi ngham Co unty, Ge orgia, a nd b oun ded a s follo ws: On th e e as t b y a line running along the west side of t he right of way of Fort Howard Road between the i nters ecti on of For t How ard Ro ad an d Se cking er Fo rd R oad a nd th e sou th side o f the right of way of the rail road li ne that serves t he G eorg ia

Pacific plan t; On the no rth by a line runn ing alo ng th e south side o f said rail road right

of way between For[ t] Howard Road and RinconStil lwell Road; On the west by

a line running along the east s ide of the ri ght of way of Rincon-St ill well Road; [and] On the south by

a line running al ong the nort h side of the right of wa y of Bu nyan K essler R oad b eginn ing at R incon -Stillw ell Road and g oing in an e asterly direc tly to a poin t at Lati tud e 32.30 5 82649 and Longitude minus 81.21047668 and thence easterly along a st

raight line to the intersection of F ort How ard Road and Seckinger For d Road. Exp ressly excluded fr om membership in t he class are [Geor gia -Pac ific], its relat ed corporat ions and al l dir ector s, off icers and employ ees of [Georgia

Pacific]. This cla ss defi niti on identi fies t he members of the cl ass with e nough precis ion.
2 See OC GA § 9-11-23 (g) (“A court’s order certify ing a class or ref using to certi fy a class shall be appealabl e in the same manner as a fi nal orde r to the appel late court which wou ld otherw ise have jurisdiction o ver the app eal from a final order in the a ction.”). 2 The trial court per mitted them to do so, certifyin g a cla ss that c onsists of the owners of

67 parce ls of

real pr o perty in and arou nd Mallard Po inte. 1 Georgia-Pacific appealed thecerti fication of theclass, 2 and theCourt of Appeals3 Many provis ions of OCGA § 9-11-23 we re bo rrow ed fro m F edera l Rule of C ivil

Proced ure 23, and f or this re ason , wh en G eorg ia cou rts inter pret and a

pply OCG A § 9-11-23, they com mo nly look to decisi ons of the feder al court s int erpret ing and appl yi ng Rule 23. See, e.g., State Farm M ut. Auto. Ins. C o. v. Ma bry , 274 Ga. 498, 499 (1) (556 SE 2d 114 ) (2001); Rite Aid of Ga. v. Peacock , 315 Ga. App. 573, 574 (1) (72 6 SE 2d 5 77) (2 012 ); Brenntag M id South, Inc. v. Sma rt , 308 Ga. App. 899, 903 (2) (71 0 SE 2d 5 69) (2 011 ); Fuller v. Heartwood 11, LLC , 301 Ga. App. 309, 312 (687 SE 2d 2 87) (2 009 ); Gay v. B. H. Transfer Co. , 287 Ga. Ap p. 61 0, 61 1, n. 2 (65 2 S E2 d 20 0) (2 007 ). 3 affirm ed, Georgia-Pacific Consumer Prod ucts, LP v. Ratner , 323 Ga. A pp. 203, 203-212 (746 SE2d 829) (2013), alt hough th ree of its judg es dissente d. Seeid. at 213-221 (Branch, J., dis senting). Upon the p etition of Ge orgia-Pacific, we issued a writ o f c ertiorari to review the decision of the Court of Appeals. We conclud e that the trial court abused i ts discretion when it certified the cl ass, a nd we reverse the judg ment of the Court o f Appeals. 1. “The c lass a ction is an exception to the usual rule that litigation is conducted by and on behal f of the indi vidual named parti es only,” Comc ast Corp. v. Beh

rend , ___ U. S. _ __, ___ ( II) (133 SCt 1426, 185 L E2d 515) ((2013) (c itation

and punct

uation omitted), and cons istent with it s exceptional nature, a class ac tion is permitted only in the l imited circum stances described in OCGA§ 9-11-23. 3 The pa rty seeking to re

present a cla ss “bear[s ] the bu

rden of proving that class certificatio n is approp riate.” Carne tt’s, Inc . v. Ha mmon d , 2794 OCG A § 9-11-23 (a) (1) (“The class is so nu mero us tha t joinde r of all m emb ers is

impracticable[ .]”).

5 OCGA § 9- 11- 23 ( a) (2 ) ( “The re ar e qu es ti ons of l aw or fac t c omm on to the class[.]”).

6 OCG A § 9-11-23 (a) ( 3) (“The cl aims . . . of the repres entat ive part ies ar e ty pical of the claims . . . of the class[.]”).

7 O CGA § 9- 11-2 3 (a) (4 ) (“Th e repre sentativ e partie s will fairly and a dequ ately pro tect th e inte rests of th e cla ss.”)
.

8 OCG A § 9-11-23 (b) ( 3) (“[T]he quest ions of l aw or fact com mon to the mem bers of the cl ass pred ominat e ov er an y que stion s affec ting onl y indiv idu al m em ber s, an d . . . a class acti on is super ior t o other avail able methods for the fa ir and ef fici ent adj udicat ion of the controver sy. ”). For

a class acti on to procee d, al l the r equiremen ts of OCGA § 9-11-23 (a) must be satisfi ed, as well as one of the three requi rements des cribed i n OCG A § 9-11-23 (b). Here, the plaint iffs have r elie d exclusi vely upon OC GA § 9-1 1-23 (b) (3), a nd th at is the onl y para gra ph o f su bse ction (b), th eref ore , wit h w hich we are c onc ern ed. 4 Ga. 125, 127 ( 3) (610 S E2d 529) ( 2005) (ci ta tion omi tted). See a lso McGar ry v. Cingular Wireless, LLC , 267 Ga . App. 23 , 25 (1) (599 SE2d 34) (200 4). In this case , to per

mit the certi fication of a

class of plaint iffs, the named plainti ffs had to sa tisfy each of the fou

r requirements descri

bed in OC GA § 9-11-2 3 (a) — numerosity, 4 commonality, 5 typicality, 6 and adequacy of repre sentation 7 —
as well a s the pre dominance require ment o f OCGA § 9-11-23 (b) ( 3). 8 See AmericanDebt Foundation v. Hodzic , 312 Ga. A pp. 806, 80 8 (720 SE2d 283) (2011). To sati sfy the se requirements, it was not enough for the plaintiffs simply to have alleged that th ey were satisfied. Wal-Ma rt Sto res, Inc. v. Dukes , ___5

U. S. ___, ___

(II) (A) ( 131 SCt 2541, 180 LE2d 374 ) (2011). Se e also Fortis Ins. Co. v. Kahn , 299 Ga. App. 319, 321-322 (1) (6 83 SE2d 4) (20 09). Ra ther, the plain tiffs h ad to co me for ward wi th evidence to p rove the ir satis facti on of the statuto ryrequirements. See Dukes , ___ U. S. at ___ (II) (A). Se e also Jones
v. Douglas County , 262 Ga. 317, 324 (2) (418 SE2d 19) (1992); Rite Aid of Ga. v. Peacock , 315 Ga. App. 57 3, 574-57 5 (1) (72 6 SE2d 57 7) (2012 ). Whether to cert

ify a c lass is a m atter

comm itted to the disc retion of

the trial court, State F arm M

ut. Auto. Ins. Co. v. Mabr y , 274 Ga . 498, 499- 500 (1) (556 SE2d 114) (20 01), but any exerc ise of tha t discre tion

must comport with the statuto ry requirements. More over, the certifica tion of a class is appropriate only to the ext ent

that “the trial co urt is satisf ied, after a rigoro us analysis, that [the statutory requ irements] have been satisfied.” Gen. T el. C o. of the Sout hwest
v. Falcon , 457 U. S. 147, 161 (III) (102 SCt 2364, 72 L E2d 740) ( 1982). See also Rite Aid , 315 Ga. App. at 574-575 (1); Kahn , 299 Ga. App. at 321 (1). As
a part of this rigorous analysis, “some times it ma y be necessa

ry for the court to probe behind the

pleadings before comin g to rest on the certificatio n question .” Falcon , 457 U. S. at 160 ( II). Indeed, as th e United States Su preme Court has explained:9 Georgia-Paci fic does not disput e that

the cer tifi ed class is suff

icie ntly numerous, s ee OCGA § 9-11-23 (a ) (1), and aside f rom the quest ion of ty

pical ity , the y appea r not to d ispute that the named plaintiff s are ad equa te repres entat ives of t he class . See OCGA § 9-11-23 (a ) (4). See also Horton v. Goose Creek I ndependent Sch ool D ist. , 690 F2 d 470, 48 5 (IV), n. 27 (5 th Cir. 1982) (“The requi rements [of ty pical ity and adequacy ] are cl osely relat ed, fo r demanding ty

pical ity on the part

of the re present ative helps ens ure his adequac y as a representative.”). 6 Frequently

that ri goro us anal ysis wi ll enta il some overla p with the merits of the plainti ff’s und erlying claim. That can not be he lped. The class determ

ination g enerally involves cons iderat ions that a

re enmeshed in the factual and legal issues compr ising theplainti ff’s cause of acti on. Dukes , ___ U. S. at ___ (II ) (A) (c itation and pun ctuati on omitt ed). Se e also Rite Aid , 315 Ga. App. at 575 (1); McGar ry , 267 Ga. App. at 25 (1). Upon our review of the record, we con clude t hat theplaintif

fs failed to
come forward

with evi d ence sufficie

nt to show t

he com monal ity of th e particular class that was c ertified. Georgia-Pa cific rais es some fair que stions about typicality an d predominance as well, 9 but we do not haveto reach those questions today. Beca

use com monal ity is l acking, the tria l cour t abuse d its d iscret ion when it certi fied the class, and theCourt of A ppeals should have
reverse d the certifica

tion. 2. To show c ommo n ality, th e plain tiffs ha d to dem onstrate

that “[t ]here
are questions of law or fact common to th e class,” OCGA § 9-11-23 (a) (2), but10 The tri al court — and the majority of t he Court of

Appeals — appear to have fal len into the very

analy tica l tr ap against

which the Unit ed State s Supreme Court warned i n Dukes
. I n its orde r certifying the cla ss, the trial c ourt re cited a list of “c om mo n” qu estions that, although “common” in a sens e, do not show the sort

of commonality

requir ed fo r OC GA § 9-11-23 (a) ( 2). For

inst ance, t

he tri al court

noted tha t the c ase invol ves “common” questi ons concerni ng:
• The mate rials used by Ge orgia- Pacif ic at t he M ill, in clu di ng th e w ays in which thos e materi als ar e stor ed and used;

• The man ner in w hich G eorg ia-Pac ific op erates th e M ill, includin g its sludge fields;

• The reasons for releases of hy drogen sulfide gas from the sludge fields;

• The potenti al effect s of a rel ease of hy drogen sul fide gas, i ncluding t he toxic and corrosive properti es of the gas;

• The nature and adequacyof precaut ions t aken by Georgi a-Pa cific to prevent the release of hy drogen sulfide gas;

• The “liabi lit

y of Georgi a-Pacif

ic”;

• The “common affirmati ve defenses r aised by Georgia-Paci fic”; and

• The remedies a vailable to me mbers of the class , inc luding t he appr opriate measure of damages, exemplary damages, andexpenses of 7 as the United States S upreme Court rece ntly ex p lained in Dukes , “[t]hat languag e is easy to misre ad, since any c ompetently cra fte d cla ss com plaint literally raises common questi ons.” ___ U. S. a t ___ (II) (A) (cita

tion and punctua tion omitte d). Eve ry puta

tive class action presen ts question s that are, in
a sense, “common” to the

class. But for c ommo nality under OC GA § 9-11-2 3 (a) (2), not j ust

any “c ommo n” questions will do. Commonality depends on the presence of a par

ticula r sort of “common” quest

ion, and simply

reciting a lis t of questions that are “common” in anoth er sense co ntribute s nothing to t he commonality inquir y. 10 Dukes , ___ U. S. at ___ (II) (A).lit igati on.

The majority

in the Court of Appeals recited a similar l ist of “common” quest ions . See Ratner , 323 Ga. App. at 208 (1) (b) . No doubt, t hese quest ions may

be “common” in a sense, but they do n ot sho w th e com mo nality that th e st atute requires, and “[r]eciting t hese questi ons is not

suffici ent to [warrant ] clas s cert ific ation. ” Dukes , ___ U . S. at ___ (II) (A).
11 To b e clear , wh en it referred in Dukes to the n eed to demonstrate “that the cl ass mem bers hav e su ffe red the s am e inju ry,” we do not underst and the Supreme Court to have meant that all the class members must have sustain ed pr ecisely the same damages. See In re Deepwater Horizon , 739 F3 d 790, 81 0-811 (IV ) (A) (5 th Cir. 2014) (“[T]he legal requir ement that class members have all ‘ suffered t he same inj ury ’ can be sat isfi ed by an i nstance of the defend ant’s injur ious conduct , even wh en the resulting injuriou s effe cts — the damages — are diverse.”).

12 At class certi ficat ion, pl ainti ffs need not pr ove the meri t of t he ir “common content ion” — that is, they ne ed no t defin itively prov e th at each and every member of the class did, i n fact, suffer t he “same inj ury .” But theyhave t o show that t heir “c ommon 8 To establish the s ort of commonality t hat OC GA § 9-11-2 3 (a) (2) require s, the plaintiffs were re quir ed to sh ow “that the cl ass members have suffered the same injury.” 11 Dukes , ___ U. S. at ___ (II) (A) ( citation and punctua tion omitted). See also Rite Aid , 315 Ga. App. at 575 (1) (a) . To do so, the plaintiffs had to poin t to a “common content ion” that eac h mem ber of the class had suffered thesame instance or cour se of wrong ful condu ct, see Dukes ,

___ U. S. at ___ (II) (A), and the plainti ffs also ha d to show th at this “ common contentio n” “is capable of classwide r esolution — which means that determ ination of its trut h or falsity wil l resolve an iss ue t hat is cent ral to th e validity of e ach one of the claims in one stro ke.” 12 Id. “Wha t mat ters to c lasscontent ion” is capabl e of being proved at once for the whole class. To d o that, th ey have to pointto som e evid ence by wh ich the y could prove the mer it of t heir “c ommon con tenti on.” 9 certi ficationis not the raising o f c ommon questions — even in droves — but, rather the ca

pacity of a cl asswide

proceeding to generate

common answers apt to drive t he resolution of the litigat ion.” Id. (ci tation a nd punctua

tion omi tted; emphasis in original). Alt

hough Dukes makes these points more clearly than our
own precedents, it is entirely consistent wi th tho se precedents. See Carne tt’s , 279 Ga. at 129 (4) (“A com mon que stion is not

enough when the answermay vary with each class member and is determinative of whether the m ember is properly part of the class.” (Citatio n omitted; emphasis i n origin al.)). The plainti ffs in this casepointed t o a “com mon content ion” tha

t might pro perl yform the basis for a finding of com monality, namely, that their propertie s we re cont amina ted wit h hydroge n sulfidegas rel ease d from th e sludge fields at theMill. B ut pointing to a “co mmon content ion” is on ly the first step. The plaintiffs also had to show tha t this “c ommo n contention” is “capable of classwide resolu tion” with res pect to the particu lar cl ass tha t the tri al cour

t certified. And that is w

here they ca

me up short.13 The dissent reli es on Smith v. ConocoPhi lli ps Pipe Line Co. , 2014 U .S. Dist. LEX IS 43172 (E.D. Mo. Mar. 31, 2014), and Jackson v. Unocal Corp. , 262 P3d 874 (Colo. 2011). In each of the se cas es, the c ourts we re pres ented with scientif ic evidence t

hat te nded to show the contaminat ion of

the p rop ose d cla ss ar ea. Sm ith , 2014 U.S. Dist . LEXIS 43172, at *11- 14 (IV) (A ); Jackson , 2 62 P 3d a t 8 87- 888 (I V) ( A). As Jackson notes, “[u]sual ly , sci entif ic or object ive e vi dence clos ely ties the spr ead of the al leged pol luti on or contami nation t o the proposed class boundaries , as many mass envir onmental t ort cas es demonstr ate. ” 262 P3d 10 We do not find in the re cord evi denceby whic h the plaint iffs m ight be able to prove on a classwide basis th at the entire area by whi ch the class was defin ed, in fact, was co ntaminated w ith hydrog en sulfid e gas from thesludge fields. Thereis, for i

nstance , no sci entificevidenc e of theamount s o f gas released from the sludg e fields, no evid ence of the rate of release, no evidence of the extent

to which the amounts released and r ates of release varied o ver time, and no evidenc e of exactly ho w the ga s would beexpec ted to move through the air upon its release. As for th e direction in which gas would be expe cted to move, the only eviden ce of local wind p atterns is that the prevailing winds over the sludge fields blow aw ay from the cl ass are a, and

the wind s blow from

the sludge fields toward a

ny spec ific loc ation within the c lass area only about four perce ntof the time. There is no evid ence of the ra te at w hich the gas woul d be expected to dissip ate following its release, and the re is no evidence of air quality sampling across the class area at any time. 13at 887 (IV) (A) ( cita tion and p unctuat ion omit ted). But “where plai ntiff s fail to produce ev idence linki ng the propos ed boundary to the e nvironmenta l hazar d, court s have den ie d certi ficat ion.” Sm ith , 2014 U .S. Dist. LEX IS 4317 2, at *10 (IV ) (A) (citations om itted).

14 The re is ev idenc e of c om plaints th at do n ot invol ve the cor rosion of air- conditi oning units, but it appears that most of those complaint s did not origi nate within the c lass area and that those t hat did — like t

he complaint s about ai r-condi tioni ng units — originated i n or near Mallard Point e. 11 The record does co ntain some anec dotal e vidence of hydrogen su lfide gas in some area s around the Mill, but t his anecd otal evidence is not enough to satisfy a rigorous analy sis with respec t to the c ommo nality of the pa rticula r clas s that the tria

l court c ertifie d. First, there i s evide nce of m ultipl e complain

ts to Georgia-Pacific about

the cor rosion of air-c onditioning

units in th e vicin ity of the Mill. But as best we

can tellfrom the record, a nu mber of these complaints didnot even ori ginatewithin th e are a by wh ich theclass was de fined, a nd those that did appear to have originated in a geographically com

pact a nd rela tively small portion

of the c lass area, a

ll in Ma llard Pointe itse lf or otherwi se alon g the fareastern edge of t

he cla ss area , just a cross Fort Howard Road from the Mill. 14 The class area stretches substantially to the west of the small and compact area from which these complaint s came, and the complaints do not, theref o re, tend12

to show that th e class area as a whole was cont amina ted by hydrogen sulf

ide gas. Therealso is the testimony of tw o air-c onditioning

techni cians, both of whom testifi ed that

they ha ve obser ved corrosion in a

numberof aircondition ing units in th e vicin ity of the Mill, which was, th eysurmised, a result of exce ssive hy dro g en sulfide exposure. But ac cording to the record, to determ ine whether any particular corrosio n actually was a result of h ydrogen sulfideexposure, it wo uld be n ece ssary to test th e corrod ed com ponents, and
n either of the technicians has subm itted any parts for such testing . Consequentl y, their opinion that the cor rosion is due

to hydrogen sulfide exposureseems to amount to nothing more tha

n conjec ture. A

ndin any event,
one of the technicians testifie d that the corrosion he observed was ne ar the Mill, but not within th e cla ss area . The o ther te chnici an said that he saw corrosion in
a few air-conditioning units within th e class area and outsi de Mal lard Point e, but the locati ons at wh ich he s aw cor rosion still were close in p roximity — relative to the cl ass are a as a

whol e — to Mall ard Pointe . Without more, evidenc e of corrosion at the se locations do es not tend to show any likelih ood that the cl ass area as a whole was contaminated.13

Therealso was ev idence

from the name d plainti ffs themselves, who no ted t hat they h ad been exposed to noxio us odors at their homes, which t hey attributed to hydrogen sulfidegas. But again, the named plaintiffs live in Malla rd Pointe, which sits ju st across the ro ad from the Mill its elf. The idea that their te stimony

tends to show that the class a rea as a whole

— which stretches for some distanc e to the

west of Malla rd Pointe — has be en expose d to harm ful hydrogen s ulfide gas is a dubious one. From the evidenc e of

record, one fairly cou ld concl ude that a numbe r of people in the vicinity of th e Mill — especially tho se living in Mallard Poin te — have experienced problem s that might be attributa ble to the all eged relea se of hydrogen sulfide g as f

r om the sludge fi elds at the Mill. But the locations at
w hich t hese pe ople hav e expe rience d such probl ems (a s evide nced by the record) do not seem to coincide wi th the full ext ent of the class area. Whet her the “common conte ntion” of ha rmful e xposure c an be pro ved on a c lasswi de basis is in doub t, at least as to the class as th e trial court de fined it . As Judge Branch aptly said in her dissent: [T]he cl ass a ppears to have b een defined not by any logical determ ination of the actual effec ts of the Mill’s numerous an d intermittent

relea ses of hy drogen sulf ide on pe rso ns a nd property15 The record bears out the idea that the cl ass w as de fined “by me ans o f arbitra rily

dr awn lines on a map.” According t o the test imony of r ecord, t he area by

which the class was defined wa s iden tified in s ignific ant pa rt by a real e state appr aiser, w ho sim ply drove around in the vic init

y of t he Mill, looking for

“major roa ds” and other “specif ic geogra

ph ica l boundaries” that “ seemed reasona ble” t o bound th e c la ss ar ea . Wh en “i t s ee medli ke we were getti ng too far a way from [the M ill],” the ap praise r app arently would turn back and look for a closer boundary . The apprai ser t esti fied that he went in sear ch of the boundaries of the class area w ith ou t an y sc ien tif ic a na lysi s o f a ir q ua lity o r expe cted gas movements , without knowledge of local wind patte rns, and without knowledge of other pot entia l nearby sources of gases that might

cause noxious odors. The apprais er als o did not r ely upon any appr aisal methodology

in helpi ng to sel ect bou ndar ies for the cla ss area , adm itting ex plicitly that “it’s a seat of the pant s kind of t

hing.” 14 over a perio d of yea

rs, but ra ther by mea ns of arbitrarily drawn

lines on a ma p. Ratner , 323 Ga. App. at 21 8 (Branch, J., d isse nting) (c itation and punct

uation omitte d). 15 N o one should misunderstand us to say t hat com monal ity nev er ca

n be shown in the context o f environmental mass torts, that it cannot be shown in this case, or even th at it c annot beshown in th is case as to the class as the t

rial c ourt defined it. It c ertainly is c onceiva ble tha t the pla intiffs m ight show the requisite commonality

of that c lass or anothe r. Cf. Brennta g Mid South, Inc. v. Smart , 308 G a. App. 899, 902 (2) , n. 2, 903-904 (2) (a ) (ii) (710 SE2d 56 9) (2011 ) (plainti ffs in cla ss acti on a sse rting claims of env ironmental tort s satisfied commonality

requirement with p roof that each class member actual l y was15

evacu ated a s a result of

accidental release of acidic gas, an d class was defined in te rms of th e loca

tions cove

red by “evacua

tion order s as we ll as e xpert consulta tion as to ‘th e act

ual ge o graphical extent of the c hemical plum e as it spread’ ”). But if th e plain tiffs are to sat

isfy the commonality requirement, they have some m

ore work to do. The

certi fication of theclass was an abuse of discre tion, a

nd the Co urt of

Appeals should have reversed it. Ac cordingly, we
reverse the judgment of the

Court of A

ppeals. Judgme ntrevers ed. Al l the Justice s concur , exce pt Benha m and H unstein, JJ., who dissent.MELTO N, Justi ce, c oncurring. Although I concur full y in the majority opi nion, I write separa tely to point out that, f or man y of thesame

reasons discusse d with re gard to c ommo na l ity, certi ficationof the c lass in t his cas e woul d be i nappropria te due to a lac k of typicality. OCGA § 9-11-23 provi des tha t “(a) O ne or m ore members of a cl ass may sue or be sued as repres entative parties on behalf of all only i f: . . . (3) The claims or defe nses of th e repre sentative par ties a re typi cal of t he claims or defenses of

the class.” The

named plaintiffs in this ca se have not been shown to be typical of

the claims or de fenses of the proposed class, a s its members own differenttract s of land s ubject ed to v aryin g uses (some re siden tial, s ome agricultural, some commercial and/or in dustrial , some vaca ntand unuse d) and located at different dist ances and dire ctions from the sludge fi elds in qu estion. Therefore, the purpor

ted cla ss in this instance fails for both lac k of commonality and typicality.HUNSTE IN, Justice, dissenting.

I must respectfully dissent. 1. The major

ity’s a nalysi s affords insuffic ient de ferenc e to the tri a l court’s determ

ination o n class certi fication in this case . As thi s Court ha s noted, “trial judges ha

ve broad discre tion in de ciding w he ther t o certify a class.” Carne tt’s, Inc. v. Hamm

ond , 279 Ga . 125, 127 (3) (610 SE2 d 529) (2005) ; see also Jones v. Douglas County , 262 Ga. 317, 32 3 (2) (418 SE 2d 19) (1992) (“[o]n appellate review . . . ‘the discre tion of the

trial j udge in c ertify ing or refusing to certi fy a cla ss acti on is to berespec ted in all cas es whe re not abused’ ”). “‘Impli cit in t his deferential st and ard of re view is a rec ognition of the fact- intensiv e basis of the certi fication inquiry and of the

trial c ourt’s inheren tpower to man age a

nd c ontrol p ending liti gation.’” Brenntag Mid South, Inc. v. Smart , 308 Ga . App. 89 9, 90 2 (2) (710 SE 2d 569) (2011). The trial court here did

conduct the “rigorous analysis” c ontemplated in Wal-Ma rt Stores, Inc. v. Dukes , __ U. S . __ (II) (A) (131 S Ct 2541, 180 L E2d 374) (2011), and concluded that c ommo n issues, typica l of thoseface d across the class, would

predominate over i ssues of an in dividuali zed nature. See Griffin Indus., Inc. v. Green , 297 Ga . App. 35 4 , 35-356 (2 ) (677 SE2d 31 0) (2009)2

(affirm ing trial c ourt’s decisi on to cert ify cl ass unde r abuse of discretion standar dof review, while noting that under a de nov o stan dard t he out come of the appeal may have been differen t ). This determination did not con stitute an abuse of discre tion, a

nd it should b e affirmed. First, the tria

l court w as wel l within its di scretio n in finding t he commonality

requirement to have

been satisfied. Ge orgia-Pa cific is the sole defenda ntwhose s ingle c ourse of c onduct ha s alle gedly a ffecte d all c lass
mem bers in a common manner. Theplainti ffs have raise d a numb er of co mmon issues with regard to establishing Georgia -Pacific’s liabilit y, including GeorgiaPacifi c’s operations at t

he Savanna

h River M ill, it s waste

disposal practi ces, and i ts safet y progra m; the type a nd concentration

of chem icals emit ted from the Mill and sludge

fields; and

the properties a

nd toxici ty of hy drogen sulf ide and its capacity to cause property dam age and ill heal th effe cts. The resol ution of all of these

issues w ill depend on the same evidence, n o matt er the c lass
mem ber. The a

nswers to all t

hese que stions ca

n be generated e fficiently, o n a classwide basis, “ in one stro ke.” Dukes , __ U. S. at __ (II ) (A).3

For similar reasons, th e trial court a ppropriat ely fou

ndthat the typicality require ment

has been satisfied. See Liberty Lending Svcs., Inc. v. Canad a , 293 Ga. App. 731, 738 (1) (b) (6 68 SE2d 3) (2008 ) (typicality satisf iedby showing “that the def

endan t ‘commit ted th e same unlawful acts in the sa me m ethod against [the] entire class’”). Co ntrary to the vi ew expressed in the c oncurring opinion , the fact that the cl ass inc ludes prope rties w ith different

uses doe s not defeat typicality. Though the particular use

to which a parc el is put

may affect the mea sure of

damages inc urred, t

he presence of ind ividualized d amages issues does not alter the fa ct that a sing le course o f conduct on the part of Geor giaPacific is alleged to have c aused injury to the entire class. See id. ; see a

lso Brenntag , 308 Ga. App. at 90 6-907 (p resence of indiv idualized damages iss ues didnot defeat typicalityor any of the other requirements for cla ss cert ifica tion). Moreove r, the plaintiffs did not rely on mere allegations in

support of their request for cla ss cert

ifica tion. T he plainti ffs prese

nted the depositi on testimony of Georgia -Pacif

ic’s environmental manager, wh o acknowledged that hydrogen sulfidewas being emitted from the sludge fi elds an d admi tted, for exa mple, the compa ny’s knowled ge regardi

ng the noxio us odors from these emissio ns and the damage cause d to air c ond itio ning units on various ne arby pro pertie s. The4

plainti ffs also p resent ed test imony f rom a prop erty a

ppraise r regarding the metho dology

employedin asce

rtaining the cl ass bounda

ries a nd the proc ess by which one would

determ ine thediminut

ion of a property’ s valueresulting from envi ronmental contami nants . The pla intif fs pr esented furth er test imo n y p rovidingspecif

ic evid ence of dam age to t he air c onditioning

units on c ert ai n properties in proximity to the Mill. A ccordingly, the plaintiffs sa tisfied their duty to establish commonality and typi calit

y with evidence , as oppos ed to m ere allegations. Likewise, I would fin d no abuse of disc re tion in the

trial c ourt’s conclus ionthat, on balance, the com mon issues regarding liability predom inate
over the individu alized issues inv olving d amages. See Brenntag , 308 Ga . App. at 906-907 (affirm

ing class certi fication in suit involving th e acc identa l rele ase of toxic acid fr om a chemi cal s torage tank lo cated at the defendant’ s facility, concluding that “‘( c)ommon issue s may predominate w

hen lia bility c an be determined on a cla ss-widebasi s, even when there are some indi vidualized damages issues’”); Flournoy v. Honeywell Intl., In c. , 239 FRD 696 (S.D. Ga.16 See also Smit h v. Conoc oPhil lips Pipe L ine Co. , 298 FRD 575 (E.D . Mo. Mar. 31, 2014) ( certify

ing property

damage class despite need for individual damages assessments); Powell v. Tosh , 280 FRD 296 (W.D. Ky. 2012) (same) ; Jackson v. Unocal Corp. , 262 P3d 874 (Colo. 20 11) (affir ming c ertific ation of pr

operty damage class despite need for individual damages assessments). 5 2006) (certifying a

Rule 23 (b) (3) class of prop erty owners sui ng for damages allege dly ca

used by p ollutant s ema

nating from def

endant’ s nearby

plant). 16 2. Though the majority purports to find insuffic ient co mmon ality among class mem

bers (a ndhints that it might find typ icality and predo minance lackin g for the same reasons), the issue the majority

actually pinpoints as problematic is the cl ass def

inition. Specifically, the majority finds fa ult with the manner in which the cl ass bounda ries were dete

rmine d and thepotentia l over- or underinc lusivene ss of the class. However, the i ssue of w hether a propose d class is suffic iently

precis e and a scerta

inableis not coe xtensive with the issue of commonality. See, e.g., Smith v. ConocoPhi llips , 298 FRD 575 (IV) (an alyz ing class definition independent ly of commonality require ment) ; Jackson v. Uno cal , 262 P3d at 887-888 (sa

me). Courts ha

ve typi cally

assess ed the s ufficiency of
a proposed c lass de finition “[ i]n kee ping with t

he libe ral con structi on to be given [to Rule 23].” Charles Alan Wrig ht et al., 7A Fed. Prac. & Pr oc. Civ. § 1760 (3d ed. 201 4). “All that is required is a ‘re asonable’ relationship between6

the evidence and the class b oundaries as p roposed by theplaintiff.” Jackson v. Unocal , 262 P3d at 887. See also Smith v. ConocoPhi llips , 298 FRD 575 (IV) (atclass certifica tion stage, “[p]laintiffs a re not re quired to adduce definitive evidence about the

extent and scop e of thecontam ination . . . . Plaintiffs need some evidence that cont amination was presen t in the class area.”). Assessed under this standard, the evidenc e here was sufficie nt to sustain the class as defined at t

his stage of the pro ceedings. Ac cording to the plaintiffs, the farthest point from the cla ss to the sludg e fields i s approximately .9 mil es. Georgia -Pacif

ic’s environm ental m

anage r acknow ledged in depositi on testimony that the compa ny has r eceived c ompl aints a bout the odor from t

he Mill from four to fi ve miles away and that the odor f rom the hydrogen

sulfide gas wouldreac h every

member of the proposed class. Testim ony from two air condition ing techni cians s upports the conclus ion that t

he gases would likely affectall air conditioning units within the class area. Georgia-Pacific has in fact received complaints regarding c orrosion of air condition ing units up to 2.4 miles away f rom the Mill, well beyon d the class bou ndaries, and has assumed responsibilityfor replacing an air con ditioning un it due to corrosion on at least
one property

lying out side the

class boundarie s. This fact, highlighte d b y th e7

majority to support i ts finding o f an abs ence of com m onality, actually establishes just theopposite: in an ab undance of caution, the plaintiffs drew their class boundari es conservativ ely, deliberately excludi ng some potent ial plainti ffs to avoid creatin g an over-in clusive class that would tru ly lack commonality. See Wright, 7A Fed. Prac . & Proc. C iv. § 1760 (n oting that potential underinc lusivene ss of a pro posed cl ass is not f atal to a cla ss def init ion). In short, the evi dencesupported the plaintiffs’ p roposed c lass definition , and the majority is wro ng to conclu de otherwise. 3. Th ough I d isagree with the c onclusion that the class as currently defined is not supporte d by the current record, I note tha

t the m ajority ’s opinion expressly contemplate s the possibility that the pla intiffs h ere could still, with additional ev idence, establish t he existence of a sus tainable class. See OCGA § 9-11-23 (c) (1), (d) (

both subsec tions giving tria l courts t he autho rity, prior

to
a decision on the merits, to alter or ame nd orders regardin g class certi fication or
casemanagement); see

also Ful ler v . Hea

rtwood 11 , 301 Ga . App. 30 9 (687 SE2d 287) (2009) (n oting absenc e of fixe d deadline in sta tute or court rul es by which class must be

certi fied). It

thus remains to be

seen whether this ca se will move f orward a s a cla ss acti on.8

I am authorized to sta

te that Justice Benham concurs in this dissent.

Decid ed July

11, 2014. Certio rari to t

he Court of Appeals of Ge orgia – 323 Ga. A pp. 203. Hull Barrett, David E. Huds on, William J. Keo gh III, E llis, Pa inter, Ratterree &

Adams, Ry

burn C. Ratterree , Tracy A. O’Connell , for appellant. Bell & Brigham, John C. Bell, Jr., Oliv er Maner , Benj amin M . Perkin s, Timothy D. Roberts, Melis sa L. Bailey , for appellees. Brinson Askew Berry Seigler Ri chardso n & Davi s, Robe rt M. Br inson, Nor manS. Flet cher, Troutm an Sanders, Will iam M . Droze , Doug las A
. Hender son, McNa

tt, Gre ene & Peterson, Hugh B. McN att, Randall D. Quintrel l, Robbins, Russell, Englert , Orseck, Untereiner & S auber, Alan E . Unte reiner , Matthew M. Madden, Skadden, Arps, Sl ate, Meagher & Flom, John H. B eisner , Geoffrey M. Wyatt, Je ssica D. Miller, GreenL aw, Steven D. Caley , amici curiae.