NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

MOSAIC FERTILIZER, LLC, )

)

Appellant, )

)

v. ) Case No. 2D17-2302

)

HOWARD CURD, FLOYD DEFOREST, )

SCOTT MOBLEY, GARY BRUCE, )

DAVID LAGGNER, BRYAN )

IBASFALEAN, PHILIP JOHNSON, and )

ANGELO LOGRANDE, on behalf of )

themselves and all others similarly )

situated, )

)

Appellees. )

________________________________ )

Opinion filed November 9, 2018.

Appeal pursuant to Fla. R. App. P. 9.130

from the Circuit Court for Hillsborough

County; Steven Scott Stephens, Judge.

David B. Weinstein and Kimberly Mello of

Greenberg Traurig, P.A., Tampa, and

Andrew J. Patch of Greenberg Traurig,

P.A., Tampa (withdrew after briefing), for

Appellant.

Andra T. Dreyfus and Casey C. Harrison

of Dreyfus Harrison, P.A., Clearwater,

and F. Wallace Pope, Jr., of Johnson,

Pope, Bokor, Ruppel & Burns, LLP,

Clearwater, for Appellees.
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NORTHCUTT, Judge.

Mosaic Fertilizer, LLC, appeals a nonfinal order granting plaintiffs' motion 

for class certification. We reverse because the putative class of plaintiffs failed to 

demonstrate a reasonable methodology for proving classwide claims.

Howard Curd and other commercial fishermen sued Mosaic following a 

pollutant spill into Tampa Bay. The fishermen alleged that Mosaic owned or operated a 

phosphogypsum storage area near Archie Creek in Hillsborough County. Within the 

storage area was a pond containing the pollutant-rich wastewater from a phosphate 

plant. Although dikes enclosed the wastewater pond, the fishermen alleged that in the 

summer of 2004 the Hillsborough County Environmental Protection Commission and 

the Florida Department of Environmental Protection warned Mosaic that the pond was 

dangerously close to exceeding safe storage levels. In September 2004 Hurricane 

Frances swept across Florida, and on September 5, 2004, the dike gave way, spilling 

wastewater into Tampa Bay. In their lawsuit, the fishermen claimed that "the spilled 

pollutants resulted in a loss of underwater plant life, fish, bait fish, crabs, and other 

marine life. [Though the fishermen did not claim ownership of the damaged marine life, 

they claimed that the spill] resulted in damage to the reputation of the fishery products 

the fishermen are able to catch and attempt to sell." Curd v. Mosaic Fertilizer, LLC, 993 

So. 2d 1078, 1079 (Fla. 2d DCA 2008), decision quashed, 39 So. 3d 1216 (Fla. 2010).

The circuit court allowed the fishermen to proceed on their claim, but 

ultimately it dismissed the claim as unauthorized by the economic loss rule. See 

generally Tiara Condo. Ass'n. v. Marsh & McLennan Cos., 110 So. 3d 399, 401-07 (Fla. 
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2013) (discussing the origin and development of the economic loss rule). This court 

affirmed and certified questions of great public importance; the Florida Supreme Court 

quashed this court's opinion and held that the economic loss rule did not bar the 

fishermen from pursuing both a common law negligence claim as well as a statutory 

cause of action under section 376.313(3), Florida Statutes (2004). Curd v. Mosaic 

Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010) (quashing Curd v. Mosaic Fertilizer, LLC, 

993 So. 2d 1078 (Fla. 2d DCA 2008)). The supreme court concluded that section 

376.313(3) provides "private causes of action to any person who can demonstrate 

damages as defined under the statute," id. at 1222, and that "the discharge of the 

pollutants constituted a tortious invasion that interfered with the special interest of the 

commercial fishermen to use those public waters to earn their livelihood." Id. at 1228.

On remand, the fishermen filed their fifth amended complaint and made an 

initial attempt to certify a class of commercial fishermen. However, the fishermen later 

opted to forgo class certification and instead moved to intervene or join the putative 

class members and proceed on a nonclass basis. The circuit court denied the motion to 

intervene. The fishermen appealed, and this court affirmed without opinion. Anderson 

v. Mosaic Fertilizer, LLC, 160 So. 3d 419 (Fla. 2d DCA 2015) (table decision).

Again before the trial court, the fishermen moved for class certification. 

They defined the putative class members as:

Those persons engaged in the commercial catch and sale of 

fish, bait fish, shrimp, crabs, and other living sea creatures in 

the Tampa Bay and who have lost income and continue to 

suffer damages because of the pollution, contamination, and 

discharge of hazardous substances by the defendant, 

Mosaic.
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The fishermen argued that the putative class met all of the threshold requirements of 

Florida Rule of Civil Procedure 1.220(a). They also asserted that the putative class met 

rule 1.220(b)(3)'s predominance requirement because all members are entitled to 

recover under the exact same legal theories and because the members sustained 

damages resulting from the same spill. The fishermen concluded that the 

"overwhelming common legal and factual aspects between the claims of the named 

Plaintiffs and putative class members dwarf any variation in the claims and predominate 

over any individualized issues."

Mosaic responded in opposition to class certification. It contended that 

the fishermen ultimately would be unable to prove any of their claims, and it attached a 

bevy of environmental impact reports authored by various government agencies as well 

as private environmental services firms. Mosaic asserted that all of the reports indicate 

that the pollutant release from the Mosaic facility was "localized, ephemeral, and 

resulted in no statistically significant difference in the composition of the fish and 

invertebrate communities" in Tampa Bay. Mosaic attacked the putative class on all 

grounds of rule 1.220(a) and argued that the fishermen could not demonstrate a 

classwide impact or a methodology for generalized proof sufficient to support 

certification.

The circuit court held a hearing on the motion for certification. On the first 

day of hearings, the fishermen presented the testimony of two plaintiffs, Eugene Nipper 

and Howard Curd. Nipper testified that he is a commercial fisherman who has dived in 

the waters of Tampa Bay since the 1970s. He recounted that since he began his 

career, he regularly walked on the bottom of Tampa Bay using weights and scuba 
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equipment. Nipper related that he used to see a flourishing seabed where he walked 

the bottom. But after the spill, he said, he began seeing more dead sea life and noticed 

that the color of the water changed. Nipper stated that over time, more sponges started 

to come back after an initial decline following the spill. After a series of objections from 

Mosaic, the court ruled that Nipper was not qualified to offer opinions about the spill's 

impact on the condition of the water or on the marine and vegetation life. Nipper's 

testimony was restricted to his personal observations and recollections of after-spill 

changes to Tampa Bay.

Curd, a commercial fisherman in Tampa Bay for thirty years who fished 

primarily for blue crab, testified that in the days following the spill, his traps were filled 

with dead blue crab. He also stated that the year after the spill, the blue crab did not 

come as far into the bay as they once had. He said that every year after the spill the 

crab would stay farther and farther out to sea. Curd testified that several years after the 

spill, he was unable to catch any blue crab for two years in a row. Mosaic objected to 

Curd's testimony, and the court prohibited him from offering an opinion or belief about 

whether the spill caused a decrease in his fishing yields or whether the spill had an 

effect on other Tampa Bay fishermen's yields.

After the first day of hearings, the circuit court entered an order requiring 

further proceedings for class certification determinations. In the order, the court noted 

that time expired at the hearing before Mosaic presented its evidence and ordered the 

resumption of the hearing. It noted that after the first day of hearings, the "plaintiffs 

have placed in the record sufficient showing that could support the court in its discretion 

certifying class." The court further observed that the "common claims predominate 
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because if the named plaintiffs can prove their damages . . . they would be proving 

impact quite remote from the spill site and thus necessarily prove the case of the other 

class members." The court sua sponte amended the proposed class definition to 

include "holders of commercial fishing licenses who claim to have been damaged by the 

spill."

On the second day of hearings, Mosaic tendered the testimony of seven 

expert witnesses without objection. The experts gave unrebutted opinions that 

supported Mosaic's argument that the spill only caused localized, ephemeral, and 

statistically insignificant changes in sea-life communities. More specifically, the experts 

opined that the contents of the spill were so quickly diluted and dispersed that there was 

no scientifically valid means of predicting or even inferring the spread or presence of 

any pollutant outside of the immediate impact area. After Hurricane Frances, the 

experts opined, Tampa Bay became so inundated with pollutants and debris from storm 

water runoff that there was no reliable method of distinguishing Mosaic's pollutants from 

the river and creek sediments, petroleum products, household chemicals, and untreated 

sewages that were flushed into the bay. Mosaic's experts concluded that there were no 

long-term or population-level effects on any species of marine organism and that the 

only effects on marine life were isolated to the immediate area of the spill. Mosaic also 

presented an expert on commercial fishing economics who opined that the various 

fishing areas covered by the putative class are so diverse in targeted species, contain 

such diverse biology and life history of those species, as well as changes in those 

species' characteristics over time, that it would be impossible to correlate or make 

predictions about those fishing areas.
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After the two days of hearings, the circuit court entered an order 

bifurcating the case into liability and damages phases and cited to Engle v. Liggett 

Group, Inc., 945 So. 2d 1246 (Fla. 2006). The court defined the liability phase as 

extending "up to and including determination of the geographic scope of potentially 

harmful effects of the spill." The order suggested that after all liability issues were 

resolved the court would consider decertification for the determination of individual 

damages. The court also granted the fishermen's motion for class certification only as 

to the liability phase. It found that the fishermen had met their burden under rule 

1.220(a) and that the liability issues—as the court defined them—are common 

questions which predominate the individual damages issues. Mosaic appealed the 

order bifurcating the case and certifying the class; we have jurisdiction. See Fla. R. 

App. P. 9.030(b)(1)(B); 9.130(a)(3)(C)(vi).

We review orders granting class certification for an abuse of discretion. 

Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 103 (Fla. 2011). " '[T]he 

determination that a case meets the requirements of a class action is a factual finding,' 

which falls within a circuit court's discretion." Id. (quoting Bouchard Transp. Co. v. 

Updegraff, 807 So. 2d 768, 771 (Fla. 2d DCA 2002)). The circuit court abuses its 

discretion where its order is not supported by competent, substantial evidence or if it 

makes an erroneous conclusion of law. Id. at 103.

To obtain class certification, the proponent carries the burden of proving 

the elements required under rule 1.220. See id. at 106; Ernie Haire Ford, Inc. v. Gilley, 

903 So. 2d 956, 958 (Fla. 2d DCA 2005); Marco Island Civic Ass'n v. Mazzini, 805 So. 
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2d 928, 930 (Fla. 2d DCA 2001). Rule 1.220(a) contains four threshold elements that 

must be satisfied to obtain class certification:

(1) the members of the class are so numerous that separate 

joinder of each member is impracticable ["numerosity"], (2) 

the claim or defense of the representative party raises 

questions of law or fact common to the questions of law or 

fact raised by the claim or defense of each member of the 

class ["commonality"], (3) the claim or defense of the 

representative party is typical of the claim or defense of each 

member of the class ["typicality"], and (4) the representative 

party can fairly and adequately protect and represent the 

interests of each member of the class ["adequacy"].

Additionally, the proponent of class certification must satisfy one of the three 

subdivisions of rule 1.220(b). The fishermen alleged and the circuit court found that the 

putative class satisfied subdivision 1.220(b)(3), which requires that

the questions of law or fact common to the claim or defense 

of the representative party and the claim or defense of each 

member of the class predominate over any question of law 

or fact affecting only individual members of the class, 

["predominance"] and class representation is superior to 

other available methods for the fair and efficient adjudication 

of the controversy ["superiority"].

Rule 1.220(b)(3)'s superiority requirement requires the court to weigh the benefits of 

class certification versus proceeding on an individual, nonclass basis. See Sosa, 73 

So. 3d at 116 (instructing that courts should consider three factors: whether a class 

action would provide the only economically viable remedy to class members, the 

likelihood of individual claims large enough to justify the expense of individual litigation, 

and whether a class action cause of action is manageable). Rule 1.220(b)(3)'s 

predominance requirement, however, calls upon the court to make a "proof-based 

inquiry." Id. at 112. A proponent of certification must demonstrate a "reasonable 

methodology for generalized proof of class-wide impact" whereby "proving his or her 
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own individual case, [the putative class representative] necessarily proves the cases of 

the other class members." Id.

In this case, the fishermen failed to carry their burden of positing any 

reasonable methodology for proving classwide claims. The circuit court sua sponte 

amended the putative class to include any holders of commercial fishing licenses who 

claim to have been damaged by the Mosaic spill. The fishermen therefore 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. Ernie 

Haire Ford, 903 So. 2d at 958.

The fishermen's support for class certification amounted only to the 

testimony of Curd and Nipper. Both men testified that they were commercial fishermen 

who worked in the Tampa Bay waters for over thirty years. Both men testified that they 

witnessed changes in certain marine life concomitant with the Mosaic spill. The circuit 

court restricted both men's opinion testimony and ruled that they were not qualified to 

offer any opinions about the spill's impact on the condition of the water, the spill's impact 

on the marine and vegetation life, or whether the spill caused any decrease in the 

Tampa Bay fishing yields. Taken as a whole, it is not possible to view Curd's and 

Nippers' testimony as plausibly putting forth a reasonable methodology for proving 

classwide claims. The circuit court therefore 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. Sosa, 73 So. 3d 

at 112.
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Although the circuit court bifurcated the case into a liability and damages 

phases in the vein of Engle, this bifurcation does not change our decision. First, it is not 

necessarily clear that Engle prospectively authorized bifurcation as a means of meeting 

rule 1.220(b)(3)'s requirements. See Engle, 945 So. 2d at 1267-71; see also Fla. R. 

Civ. P. 1.220(d)(4)(A) ("When appropriate . . . a claim or defense may be brought or 

maintained on behalf of a class concerning particular issues."). The Engle court cited 

numerous federal cases which certified liability questions and which left damages 

questions for individual resolution. Engle, 945 So. 2d at 1268-69. Engle also noted a 

split of that federal authority on the issue. Id. at 1269 n.11. Ultimately, the Engle court 

approved the certification of certain liability issues holding that rule 1.220(b)(3)'s 

predominance test was satisfied on the facts presented. However, the Engle court also 

underscored the idiosyncratic nature of that case noting that the procedural posture was 

"unique and unlikely to be repeated," id. at 1270 n.12, and describing its holding as the 

"pragmatic solution" to those unique circumstances. Id. at 1270.

Even assuming that Engle authorized the circuit court to use rule 

1.220(d)(4)(A) to certify classwide liability issues, the fishermen did not present a 

reasonable methodology for proving those issues classwide. Again, the court's order 

certifying class defined the liability phase as containing all issues up to and including 

determination of the geographic scope of potentially harmful effects of the spill. Yet the 

court's order acknowledges that the "plaintiffs' yet-to-be-revealed evidence of the effect 

of the spill" is a question to be resolved at the liability stage. Without making some 

antecedent showing of the methodology by which the fishermen intended to prove 

classwide claims, the fishermen failed to meet the burden imposed by rule 1.220(b)(3).
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Accordingly, we reverse the order on appeal and remand for further 

proceedings consistent with this opinion.

Reversed and remanded. 

KELLY and SALARIO, JJ., Concur.