MEMORANDUM OPINION
Plaintiffs are all residents of areas surrounding a power plant operated by Louisville Gas & Electric (“LG & E”), who have filed suit against Defendant seeking monetary and injunctive relief for damage allegedly resulting from fallout and noxious odors emitted by that facility. Specifically, Plaintiffs proceed under theories of nuisance, negligence and/or gross negligence, strict liability for ultrahazardous activities, and trespass.
Currently before the Court is Plaintiffs’ motion for class certification, which Defendant has opposed. The parties have briefed the issue and on March 3, 2008 the Court heard oral arguments. Deciding issues of class certification in cases such as this inevitably involves the exercise of care, judgment and appropriate discretion. The Court has attempted to employ proper doses of each and, at every turn, to clearly explain its reasoning. This consideration should not be viewed as a proxy for any decision on the merits of Plaintiffs’ claims.
Having considered the briefs, oral arguments, and evidentiary record, the Court finds Plaintiffs’ motion to be deficient in several significant ways, and therefore, the Court will deny the motion.
I.
Named Plaintiffs, over seventy (70) residents of an area near LG & E’s Louisville, Kentucky facility, have alleged that emissions from LG & E’s operations in the plant have invaded their property in the form of particulate matter (“fallout”) and noxious odors. The Court must take as true their testimony about the nature of the fallout on their property, but cannot give particular credence to a belief that any aspect of the fallout came from the LG & E plant. This would be for others with more specialized knowledge to suggest.
Plaintiffs characterize the fallout blanketing their property variably as black ash, grey ash, black dust, black grit, black soot, sticky black material, white dust, white ash, white powder, yellow-green powdery substance, an oily film, or a syrupy or brine-like substance. Descriptions of the odors are similarly varied and include burnt rawhide, dirty gym socks, acid, a burning smell, sweeVfoul, formaldehyde, burned electrical wire, vinegary, burning hard plastic, barnyard, fingernail polish remover, burning rubber, fish, sewer, sulfur, ammonia, chlorine, cod liver oil, horse manure, skunk, glue, mildew, mold, gas, rotten eggs, garbage, bleach, and urine. Plaintiffs’ Memorandum in Support of Motion for Certification of Class Action, Exhibit 3.
Owners or residents of single family residences within two miles of the LG & E Cane Run facility, whose property was damaged by noxious odors, fallout, pollutants and contaminants which originated from the LG & E Cane Run facility located in Louisville, Kentucky and who have owned or resided at that single family residential home from May 9, 2003 to the present and continuing.
Plaintiffs’ Motion for Certification of Class Action at 113. Plaintiffs estimate that this class may consist of as many as 14,294 people or more, and assert that for this and other reasons, the requirements of Rules 23(b)(2) and 23(b)(3) are met.
LG & E is an electric and natural gas utility. LG & E’s Cane Run facility is a 510-acre coal-fired electrical generating plant. As part of its operations at the plant, LG & E burns approximately 1.3 million tons of coal annually and stores piles of coal on-site. The coal combustion process causes emissions from the plant’s smokestacks which Plaintiffs allege have carried hazardous materials onto their property in the form of odors and particulate matter.
II.
The Court recently had an opportunity to consider the issue of class certification in a very similar case also litigated by Plaintiffs’ counsel. Brockman v. Barton Brands, Ltd.,
At oral argument on the instant motion, the Court solicited the opinions of Plaintiffs’ and LG & E’s counsel as to the validity of the Court’s analytic framework in Brockman. Neither side took issue with that framework or sought to dispute the applicability of the precedents to which the Court referred therein. Therefore, the Court has adopted a similar approach to that used in Brockman. The authorities referred to in Brockman will often appear below, and at times the Court’s language will track Brockman verbatim. The Court has expanded and improved on its approach, but any differences in the Court’s language here should not be taken to imply divergence with the basic approach set forth in Brockman. In short, the Court acknowledges and addresses the factual dissimilarities between Brockman and the instant facts and while the Court intends that the discussion below stand on its own as an analysis of the relevant legal principles, similarities in approach are inevitable.
III.
A district court has broad discretion in determining whether class certification is appropriate, Sterling v. Velsicol Chem. Corp.,
To meet the requirements of Rule 23(a): (1) the class must be so numerous that join-der of all members is impracticable; (2) there must be questions of law or fact common to the class; (3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; and (4) the representative parties must fairly and adequately protect the interests of the class. Olden v. LaFarge Corp.,
This Court will address each Rule 23(a) requirement in turn, after considering an overriding concern particular to the type of class proposed here.
A.
“Although not specifically mentioned in [Rule 23], the definition of the class is an essential prerequisite to maintaining a class action.” Adams v. Fed. Materials Co.,
As this Court discussed in Brockman, courts have rejected proposed classes where plaintiffs failed to “identify any logical reason ... for drawing the boundaries where they did.” Daigle v. Shell Oil Co.,
[t]he fact that radioactive materials have escaped the confines of the plant, is, by itself, not sufficient to justify defining the class to include everyone who lives or owns property within six miles of the plant’s boundaries. Although the class definition is subject to refinement ... there should be some evidence at this stage of the case that plaintiffs’ definition is reasonable. This requires an examination of the plaintiffs’ evidence of the dispersion of hazardous emissions.
Boggs v. Divested Atomic Corp.,
Elsewhere, plaintiffs seeking recovery from alleged dioxin pollution limited their
More recently, a Colorado district court approved a class of property owners within a defined “plutonium contour,” modeling its inquiry on Boggs and finding that by virtue of this defined contour, the proposed class definition was distinguishable from the seemingly arbitrary boundaries proposed in Daigle. Cook v. Rockwell Intern. Corp.,
By contrast, courts have declined to certify proposed classes where “no evidence establishes a connection between defendants’ conduct and the proposed class boundaries.” See, e.g. Daigle,
As noted above, Rule 23 does not explicitly command evaluation of the proposed class definition, which explains why many courts have opted not to perform such an evaluation. See, e.g., Olden v. LaFarge Corp.,
The Court has repeatedly pressed for an evidentiary relationship between the geographic boundaries of the proposed class definition and the alleged exposure zone of pollution. Yet at bottom, Plaintiffs rest their motion upon complaints of residents in a single, geographically-confined area about various substances and odors on their property, and lengthy recitals of the emissions of the LG & E facility. Plaintiffs have presented no evidence from which the Court could infer that similar circumstances, whether ultimately attributable to LG & E or not, exist throughout the proposed two mile radius of LG & E’s facility class area. Though Plaintiffs repeatedly describe the proposed class definition as “objectively reasonable,” they offer no evidence whatsoever that the airborne contaminants might have spread in all directions from LG & E’s facility for a distance of up to two miles.
Notably, Plaintiffs have not provided an expert report, as was provided in Brockman. Instead, the entirety of Plaintiffs’ scientific evidence appears to consist of a three-page (including cover sheet) analysis of two samples Plaintiffs assert they collected and sent to a lab. Plaintiffs’ Memorandum in Support of Motion for Certification of Class Action, Exhibit 16. As scientific or expert evidence, the lab report is extraordinarily lacking in relevant information. Among other things, the lab analysts were not those who collected the samples, and the “Conclusions” proffered by the lab analysts apparently were primarily that the samples contained “plant matter and mold” as well as “environmental dust,” none of which seems to indicate the presence of any contaminant, much less one that could be attributed to a coal-fired plant such as LG & E’s. The substance discovered in the samples which Plaintiffs argue supports their theory is “organic black particulate consisting of a mixture of carbonized material, rubber dust, and possibly coal dust (a minor component in the mixture).” Id. (emphasis added). And it is from this result and the extensive documentation of LG & E’s emissions that Plaintiffs ask the Court to accept that “the complaints against Defendant’s odors and fallout affect citizens throughout the Burkhead class definition geographic area commonly and predominantly.” Id. at 5.
To be clear, the Court is not troubled by the lack of such evidence merely because the Court fears individualized or non-uniform damage calculations, but rather because without it there seems to be virtually no evidence in the record that distinguishes members of the proposed class from the general public based upon acts of LG & E. See Bentley,
Additionally, Plaintiffs’ proposed class definition limits membership to those “whose property was damaged by noxious odors, fallout, pollutants and contaminants which originated from the LG & E Cane Run facility.” This definition seems to make the ultimate issue in the case (property damage at the hands of LG & E) a component of the class definition, thereby front-loading the individualized damage determinations which ordinarily would be reserved until later in the proceedings.
All of these considerations flaw Plaintiffs’ proposed class definition and their case for class certification at its threshold. But as it did in Brockman given that proper class definition is not made an explicit stand-alone requirement by the text of Rule 23, the Court will proceed to consider the enumerated factors of Rule 23(a) and the additional requirements of Rules 23(b)(2) and (3). Throughout this analysis, the ramifications of Plaintiffs’ improper class definition will be evident.
B.
A class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). “There is no strict numerical test for determining impracticability of joinder.” In re Am. Med. Sys., Inc.,
As this Court has noted, “numerosity ... is inextricably bound up in the question of class definition.” Paulley v. Chandler,
Here, the proposed class would include “at least 14,294” Plaintiffs. Plaintiffs’ Motion for Class Certification at H 3. If all 14,294 belong in the class, the Court would find that Plaintiffs have easily met the numerosity requirement, since even a much smaller class could satisfy this requirement. See Senter,
The commonality requirement of Rule 28(a) generally will be satisfied where there is a “single issue common to all members of the class.” In re Am. Med. Sys.,
(1) the cause of Defendant’s emissions; (2) whether Defendant’s emissions were fore- . seeable; (3) were there any precautions Defendant could have taken to have prevented the emissions; (4) whether Defendant exercised any available precautions to prevent the emissions; (5) the amount of Exemplary Damages the Plaintiff Class is entitled to from Defendant; and (6) the type of economic impact Defendant’s emissions had upon the Plaintiff class.
Plaintiffs’ Memorandum in Support of Motion for Certification of Class Action at 21. According to Plaintiffs, the common questions of law include whether Defendant is liable for nuisance, negligence, gross negligence, trespass, or strict liability, whether the proposed class is entitled to exemplary damages, and whether the proposed class is entitled to injunctive relief. Id. The Court does not necessarily accept Plaintiffs’ assertion that “[t]he actions sought to be challenged by Plaintiffs are not dependent upon any case by case analysis.” Id. at 20. Nevertheless, without finding that all of the issues noted above would be common to all class members and given that Plaintiffs have identified several questions of law and fact that ostensibly lend themselves to adjudication on a elasswide basis, the Court finds that Plaintiffs meet the requirements of Rule 23(a)(2).
D.
A plaintiff’s claim may be considered typical “if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” In re Am. Med. Sys.,
Here, it cannot be said that the proposed representative Plaintiffs represent “an adequate cross-section” of the proposed class. This is so largely because their geographic concentration makes it unlikely in the absence of any supporting evidence that their property damage claims would be “typical” of those that might be brought by individuals elsewhere in the sizeable proposed class area. Other members of the proposed class appear to live in areas subject to completely different influences, meaning that the factual and legal issues of other proposed class members’ claims, or even claims by various subgroups of class members against LG & E could “differ dramatically from one ... to the next.” See Daigle,
The Court recognizes that differences in amount or apportionment of damages alone will not defeat typicality, but here the significant gaps in Plaintiffs’ proffered evidentiary showing make it impossible for the Court to conclude whether the proposed representatives are “typical” of the class they purport to represent.
E.
The adequacy of representation inquiry under Rule 23(a)(4) seeks to discover conflicts of interest between named representatives and the class they seek to represent, see Amchem Prods. Inc. v. Windsor,
Here the adequacy determination is complicated because Plaintiffs have voluntarily foregone their original personal injury claims. Burkhead v. Louisville Gas & Elec., No. 06-282 (W.D. Ky. June 6, 2007). Thus while Plaintiffs wish to pursue property damage claims on behalf of the entire proposed class, they also wish to impose upon the entire proposed class their decision to give up any personal injury claims that could be asserted against LG & E. Under Kentucky law, absent class members would be barred from later asserting such claims, Yeoman v. Commonwealth Health Policy Bd.,
Certain state courts have suggested “a wide array of options” to assuage concerns about the adequacy of a proposed class. These “options” include “limit[ing] the class issues to liability ... and allowing] each class member to use that judgment as a basis for an individual action to recover damages for the breach,” as well as “dividing] the class into subclasses,” and finally “us[ing] the class notice procedure to give those class members with [personal injuries] the opportunity to opt out of the class.” Plaintiffs’ Reply at 8 (citing Hicks v. Kaufman & Broad Home Corp.,
Plaintiffs’ own options do not satisfy the potential inadequacies of their proposed class. Their first suggestion pertains to individualized damage determinations, which are not an impediment to certification anyway. Plaintiffs’ second suggestion leaves unclear how creating subclasses would allow absent class members’ foregone claims to be asserted later. And finally, in a(b)(2) class, as Plaintiffs have requested here in addition to a(b)(3) class, no opt-out rights are ordinarily
In short, the Court’s analysis of the proposed class representatives raises questions that “the interests of the class members will be fairly and adequately protected in their absence,” Amchem,
IV.
In addition to meeting the four requirements of Rule 23(a), a proposed class must meet at least one of the requirements of Rule 23(b). Here, Plaintiffs have requested certification under Rule 23(b)(2) as well as under Rule 23(b)(3).
Certification under Rule 23(b)(2) is appropriate where “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). The drafters of the Rule explained that this provision “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed. R.Civ.P. 23(b)(2) advisory committee’s note; see also Reeb,
monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief. By incidental, we mean damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief ____ such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member’s circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex determinations.
Allison v. Citgo Petroleum Corp.,
In Olden, a case upon which Plaintiffs rely heavily, a(b)(2) class defined as “all owners of single family residences in the City of Alpe-
The Sixth Circuit admittedly evinced a reluctance to conduct a rigorous 23(b)(2) inquiry on appeal, but did so largely because the proposed class qualified for certification under Rule 23(b)(3). Olden,
Here Plaintiffs cannot as easily avoid a searching (b)(2) analysis by claiming that “the Rule 23(a) prerequisites have been met,” id. at 510-11 (citing 7A Wright, Miller & Kane, Federal Practice and Procedure § 1775 (2d ed.1986)), nor can they claim that their case is as readily distinguishable from Coleman as was the Olden plaintiffs’ case. Plaintiffs seek various types of relief, including compensatory damages and “any and all further relief, including equitable relief,” and what is clear is that the monetary damages Plaintiffs seek are more than “incidental,” making the concerns about (b)(2) certification noted in Allison, Coleman, and Reeb more compelling. As in Brockman, Plaintiffs’ complaint is similar to that considered in In re Sch. Asbestos Litig.,
V.
Certification under Rule 23(b)(3) is appropriate when “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). Rule 23(b)(3) classes therefore must satisfy a two-part test of commonality and superiority, and should only be certified if doing so would “achieve economies of time, effort, and expense.” Sterling,
*299 In complex, mass, toxic tort accidents, where no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and individual issues outnumber common issues, the district court should properly question the appropriateness of a class action for resolving the controversy. However, where the defendant’s liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy.
Sterling,
To be sure, a need for individualized damage determinations is not fatal to (b)(3) certification. See, e.g., Olden,
Here, as in Brockman, the question is whether common factual and legal questions predominate, that is, whether any individualized questions relate solely to the amount of damages potentially owed to each class member. Yet just as in Brockman, despite their repeated invocation of Sterling, Plaintiffs have failed to provide evidence that “the defendant’s liability can be determined on a class-wide basis.” Sterling,
Plaintiffs have noted examples of courts giving less weight to such concerns, as in the unpublished certification decision in Stanley v. U.S. Steel Co.,
To prove their trespass claim, for example, Plaintiffs must show “an intrusion (or encroachment) which is an unreasonable interference with a property owner’s possessory use of his/her property.” Smith v. Carbide & Chems. Corp.,
VI.
As was the ease in Brockman, Plaintiffs have pointed to a variety of mass environmental tort cases in which courts have certified classes, often ones alleging contamination via air pollution. Plaintiffs’ Memorandum in Support of Motion for Certification of Class Action at 17. Plaintiffs correctly observe that “[t]he principles for certification ... set forth in Sterling have been applied consistently” in certifying such cases. However, this observation is of minimal persuasiveness, given the significant differences between the evidence supporting most of those proposed classes and that supporting the one proposed here. One could suggest in good faith, as Plaintiffs have, that this Court has the discretion to certify a class even where no evidence defines the precise nature and scope of the torts allegedly committed by Defendant. Indeed, some courts, adopting such a view, have done so based upon what this Court perceives as a less-than-rigorous analysis.
Whether certification here might fall just within the broad parameters of the Court’s discretion is not precisely the question. Rather, it is whether employing the class action mechanism in this situation would achieve the “significant judicial economies” for which it is designed. 1 Alba Conte & Herbert Newberg, Newberg on Class Actions, § 1:1, at 3 (4th ed.2002). Plaintiffs bear the burden of producing something more than their wholly subjective belief that their property is affected by Defendant’s emissions and that all those in a two-mile radius must be similarly affected. Quite simply, Plaintiffs’ strenuous arguments that mass environmental tort accidents are usually suitable for class action adjudication are beside the point until Plaintiffs demonstrate that a defined class has similarly experienced a mass environmental tort of some kind.
Upon repeated reexamination of the record, the Court finds a substantial amount of relatively uncontroverted evidence indicating that (a) Defendant, as part of its electrical generation operations, emits various pollutants into the atmosphere, and (b) Plaintiffs, a geographically concentrated group living relatively close to Defendant’s plant (as well as facilities operated by other companies) have some sort of substances and noxious odors on their property. Rule 23 exists precisely to ensure that class certification is based upon something more than the generalized assumptions as to the sizeable pro
The Court will issue an order consistent with this Memorandum Opinion.
Notes
. In addition to the "fallout” allegedly emitted by LG & E, coal dust from the coal piles maintained by LG & E at the facility has also allegedly entered Plaintiffs' property.
. In Duffin, the district court noted that "Plaintiffs have failed to provide evidence that tritium contamination is present throughout the class area,” id. at *5, and expressly distinguished between a determination that property damage had occurred (a merits issue) and a determination that properties in the class area were even potentially contaminated. Duffin,
. Though less important at the certification stage, the Court notes that Plaintiffs also do not explain how the proposed two-mile-radius class area takes into consideration many if not all of the proposed class members’ proximity to other pollution-emitting facilities in the area, including Oxy Vinyl, a nearby coal-fired facility also being sued by Plaintiffs’ counsel. Here again, any sort of evidentiary assurance that a particular pollutant from LG & E could have spread across the proposed class area would be helpful, but has not been provided.
. Interestingly, Plaintiffs did have additional testing performed. They apparently sent a sample of material collected on Plaintiff Burkhead’s property to the same lab which analyzed the samples to which they refer in their Memorandum. Defendant's Response at 6. The lab found only "a mixture of natural cellulose, plant matter, wood fragments, quartz, and clays” in the sample. Defendant’s Response, Exhibit C at 2. This result’s utter lack of support for Plaintiffs’ theory may explain why Plaintiffs fail to mention this test in their briefing, though the lab’s report on this sample includes substantially more information than the report to which Plaintiffs look for support.
. Plaintiffs repeatedly urge the Court not to view individual damage determinations as relevant to class certification. See, e.g., Plaintiffs’ Memorandum in Support of Motion for Certification of Class Action at 16, 22-24, 29-30. Usually, the potential for individualized damage determinations is not an impediment to class certification. But by making such individualized determinations a component of their proposed class definition, Plaintiffs make the Court's ability to determine class membership difficult and perhaps not "administratively feasible.”
. At oral argument, Plaintiffs' counsel also referred to some 488 families wishing to join Plaintiffs' action.
. In support of a different aspect of their argument for certification Plaintiffs have cited a case in which a court in the Sixth Circuit exercised its discretion under Rule 23 to certify a(b)(2) class with opt-out rights for class members. Fuller v. Fruehauf Trailer Corp.,
. As noted above, such concerns could he lessened by allowing class members to opt out of a(b)(2) class, as in Fuller,
. Notably, the Sixth Circuit alluded to concerns about individualized causation determinations in Olden, going so far as to discuss Reilly, in which such concerns precluded the district court from certifying a(b)(3) class. Olden,