Southwestern Refining Co., Inc. v. Bernal

Because of this conclusion we need not assignment

consider whether the

claim from Nash to Burns Motors violates

public policy. We conclude the court appeals reversing erred in the trial summary judgment,

court’s and according-

ly appeals’ judgment reverse the judgment

and render that Burns Motors nothing.

take

SOUTHWESTERN REFINING COM-

PANY, INC., Corpora- Kerr-McGee

tion, Breaux, and Sherwood Petition-

ers, BERNAL, al., Respondents.

Julia et

No. 98-0154.

Supreme Court of Texas.

Argued April 1999. May

Decided Weathered, Hall, L.

Frank Cor- Nelson Christi, pus for Petitioners. Kesler, A. Flem-

Christopher George M. Hayes, ing, Debra B. Andres Christian Davidow, Houston, Pereira, Sylvia for Re- spondents.

Justice delivered the GONZALES Court, in opinion of the which Justice OWEN, BAKER, HECHT, Justice Justice Justice ABBOTT and Justice O’NEILL joined. interlocutory principal issue this class

appeal propriety certifying is the a plaintiffs against of 904 Southwest- Company alleged personal ern Refining injuries refinery tank fire arising from Christi, trial Corpus Texas. The and the class directed certified proceed phases: in three the first to class general liability gross negli- determine and gence; punitive the second to determine third cau- damages; and the to determine damages. The court sation and actual the certification order appeals modified repre- class require determination punitive actual sentatives’ whole damages may be for the assessed class. Southwestern review, contending petition filed this jurisdiction has conflicts this Court pre- common issues do not and that the over the individual issues. We dominate conten- agree both of Southwestern’s with Therefore, tions. we the court reverse and this cause appeals’ judgment remand proceedings to the court for further opinion. consistent with I a.m., 7:30 January On at about refinery slop at a Southwestern tank Bernal, Corpus exploded. ately Christi Julia by reduced the number of individu- Garza, Mary De La Anita Barrerra and requisite als who can not make the Suarez, Josephine Corpus four Christi res- showing of actual proxi- idents, sued Southwestern and four III, other mate cause in if any. Phase defendants for extreme fear and mental The order does not indicate whether the anguish by sight caused and sound of trial court envisioned single jury decid- explosion personal injuries and for and ing all phases, including three the 904 property damages by expo- caused toxic damage individual claims. They allege sure. explosion brought Southwestern an interlocutory ensuing fire plume sent a of toxic smoke appeal seeking to reverse the certification into air and that soot and ashes from argued order. It that the prerequisites to the smoke descended on their homes certification, notably most the re surrounding neighborhoods. Plaintiffs quirement that common predomi issues claim that explosion, they because of the ones, nate over individual were not met. difficulties, respiratory suffered skin irrita- It argued also that the trial court erred tion, irritation, headaches, eye nausea, splitting phases, trial into different lawns, and their foliage, and pets died. which fault punitive-dámages would be After additional joined 900 claimants determined before causation and actual lawsuit, certify moved to damages. personal injury claims aas class action appeals The court of held that the class consisting of all of the claimants. trial The certification satisfied the pre- class action motion, court granted the certifying the requisites. it acknowledged While that class with nineteen representatives class “individual may predominate issues in de- 42(b)(4) under Rule of the Texas Rules of damages,” termination of causation and it 42(b)(4). Civil Procedure. Tex.R. Civ. P. reasoned that the class was maintainable And as the requested, the court plan because the modified trial called for excluded from the class all for prop- claims the individual litigated issues to be sepa- erty or damages. diminution-in-value The rately from the common issues. 960 court’s order granting provided the motion S.W.2d at The suggested 299. court that for a three-phase trial: these issues would not necessarily over- Phase I will alleged address the liabil- whelm the because remains to be “[i]t ity of defendants to the named class seen” whether “the issues of causation and representatives on the negli- issues of damages may proven [expeditiously] by gence, liability, strict toxic trespass, nui- models, formulas, the use of damage and gross sance and negligence. I Phase event, brochures.” at In any Id. the will establish whether defendants are suggested, separate juries could be explosion hable for the and whether the summoned to resolve the individual issues. released capable materials were of caus- See id. ing alleged the harm by the class. during If I Phase there is a finding of However, response to Southwestern’s gross II negligence, Phase of the trial arguments, the court of appeals modified will determine the amount to be recov- plan require the trial proof of actual by ered punitive damage[s]. class as damages by representa- the nineteen class Phase III will determine jury may whether tives before the punitive resolve individual class members can show suffi- damages for the entire class. Under the specific injuries cient damages and plan, phase modified trial I as remained they ordered, whether were proximately caused the trial court originally phase II by the release explosion. due to the tank proximate would determine and ac- cause punitive damages, amount of damages.for award- tual repre- nineteen class II, if any, sentatives, ed Phase proportion- will be III phase pu- would determine 430 class, the deci- damages upon

nitive the entire the same state facts that proximate IV cause phase necessarily would determine sion case is conclusive one ” remaining actual for the 885 damages Corp. other.’ decision Coastal petitions (Tex.1998) class members. Southwestern Garza, v. 979 S.W.2d decision, arguing for review from this that Avalos, v. 907 S.W.2d (quoting Gonzalez court’s certification order was (Tex.1995)). Stating it another abuse of discretion. Southwestern con- way: that the is not tends class action maintain- jurisdiction to on the basis of [f]or attach predom- able because individual issues will on the conflict must be “[t]he conflict^] over of law and questions inate common very actually law involved question of objects fact. Southwestern also determined, respect anof issue being an inferior and un- class as cases, one being both the test whether

manageable adjudicating method other in operate to overrule the Moreover, controversy. Southwestern ar- they were both rendered damage that can- gues liability and issues court.” same phases be tried in and that separate Coastal, at (quoting 319-20 for the entire can- punitive damages Williams, Christy Tex. v. tried actu- not be until the determines (1957)). Finally, al entire class. contends that the court Southwestern maintains the class is Southwestern appeals’ in this case conflicts with: opinion joinder impractica- not so numerous ble, Insurance v. Mor- (1)Transportation have a conflict of Co. class counsel id, (Tex.1994), regarding they interest because are also counsel for tried must decide whether whether can be punitive those members who out, that class notice was defi- before causation and actual opt proximate (2) damages; Corp. Hayes, cient. RSR 1984, writ (Tex.App. S.W.2d 928 — Dallas II dism’d), propriety the of regarding matter, claims, As we preliminary injury a and personal certification of (3) jurisdiction if we have must determine Iley Hughes, 158 Tex. interlocutory appeal. (1958), this Juris consider regarding whether dif S.W.2d 648 interlocutory appeals gener over diction is personal injury a claim ferent elements of appeals. in ally final the courts of See by sepa in separate phases can tried 22.225(b) (“Except § as juries. rate Tex. Gov’t Code (c) (d), by judg or Subsection a provided analysis begin our conflicts We a is on appeals ment of court of conclusive Moriel, upon with In we held that Morid. facts, a of error not the law and and writ is a a trial court must bifur party’s request, court, supreme from in the allowed the on jury findings cate the trial and obtain (3) ... following appeal civil cases: an allow liability damages actual and a interlocutory appointing order from including a de ing evidence of evidence— or or from other interlocu receiver trustee pu of worth—on the amount fendant’s net by are tory appeals allowed damages: nitive ”). law;.... jurisdiction has Court But this hears jury first approach, Under this when the court interlocutory appeals over actual liability for evidence relevant with prior conflicts appeals’ of decision damages, of actual damages, the amount appeals of court of decision another (e.g., liability punitive damages question law material to the on of Court find- and then returns 22.225(c); gross negligence), §§ id. See decision the case. an- 22.001(a)(2). jury If the observed, ings these issues. on recently As we liability punitive swers the jurisdiction is wheth conflicts standard “ favor, the same question in the cases are far rulings in two ‘so er presented short, is then evidence relevant In not conflict if a cases do mate- punitive to the amount damages, legitimately rial factual difference distin- guishes and determines proper holdings. amount of their On the other hand, punitive damages, immaterial considering the totali- factual variations do ty of presented preclude finding jurisdictional the evidence at not both phases very trial. conflict. A conflict could arise on underlying different facts if those facts at 30. The court of appeals important legal principle acknowledged the tension tri- between the being announced. al court’s certification order rule Coastal, 979 S.W.2d at In Coastal Moriel that a jury must liability decide the Court reviewed the conflict that con and actual damages issues before it consid- jurisdiction ferred on our Court in New punitive ers damages. 960 S.W.2d at 298. Obersteller, (Tex. man v. 960 S.W.2d 621 appeals’ The court of solution was to modi- 1997). Newman, We observed that fy the certification by adding order anoth- three question eases conflicted on a phase, prior er punitive damages construction, statutory jurisdic giving us phase, to determine representa- the class tion, though legal even question arose Thus, tives’ actual damages. the order of in each different factual circum proof in appeals’ the court of modified Coastal, stances. See (1) S.W.2d at 320 duty, order is breach of duty, gross Obersteller). (discussing Newman v. issues; (2) negligence the nineteen class cases discussed Newman were different representatives’ proximate cause and actu- not only in the facts relating to the cause (3) issues; al damages punitive damages of action but procedural also their (4) facts: class; for the entire the 885 re- two appealed were from denial of sum maining plaintiffs’ proximate cause and ac- mary judgments, and the appeal third was tual issues. ed from a verdict directed after a trial on Southwestern contends that the multi- Compare merits. Newman v. Ober phase trial plan, as modified the court steller, 915 S.W.2d (Tex.App. Corpus — of appeals, still conflicts with Moriel. Un- 1996), rev’d, Christi 960 S.W.2d 621 and der the modified trial plan, evidence relat- Whitman, City Galveston v. ed to punitive damages, including net 929 (Tex.App. [14th Dist.] —Houston worth, will be introduced before the denied) Mathis, writ with Davis v. asked to decide causation and actual dam- S.W.2d (Tex.App. no — Dallas ages for the 885 nonrepresentative mem- writ). illustrate, As Coastal Newman Also, bers of the class. plan the will re- jurisdictional our analysis must focus on quire jury the to punitive decide damages facts, whether in including differences the evidence,” before totality “the of the in- facts, procedural prevent holding the in cluding causation the amount of actual one case from in controlling another. damages for the nonrepresentative Conversely, if proceeding the form of the members, class presented. is Plaintiffs ar- important is not to whether the substan gue that the plan modified trial does not tive legal principles we in announced Mor- case, conflict with Monel because this un- case, iel would control the decision in this Moñel, action, like ais class and that the jurisdiction then we have to resolve the procedural different legitimately context conflict. distinguishes the cases. Here, the form of the lawsuit as a class disagree. jurisdic We Conflicts important action is not to the substantive tion require does not that legal the two cases be principles we announced in Moriel identical either on the facts underlying the because of the breadth of our in holding causes of action procedural nor on the that case. Our decision in Moriel is strik- facts. As we noted in ing Coastal- it categorical because is stated as a limit that is

imperative. holding necessarily We did not our the decision of one case case, particular the facts nor did the in of decision the other.” conclusive rule, principle general we state the Coastal, as at 319. This thereby may that implying excep- there Moriel, and we therefore conflicts with Instead, we that the tions. said Moriel jurisdiction we con- here. Because “apply punitive damage standards all in appeals’ clude that the court of decision cases in the tried future.” 879 S.W.2d at this case conflicts with Moriel we need not We ac- exception made no for class of analysis conduct conflicts RSR tions. Moreover, Rey. jur- once a conflict confers Court, on our the before isdiction case is Moreover, procedural our rules do not purposes. us all Food See Randall’s permit form of proceeding the de- Markets, Johnson, Inc. v. legal termine whether princi- substantive (Tex.1995); Stafford, 643-44 will in ples argues, control. The dissent Stafford (Tex.1987). Thus, we S.W.2d effect, that Moriel does not conflict be- complaints turn to Southwestern’s just cause class actions different from appeal. interlocutory ordinary litigation. But class actions do not exist some sort of alternative uni- jurisprudence. verse outside our normal Ill procedural rules provide Our otherwise: consider first the issue raised We the form of an action under the must rules by jurisdictional question, we whether any “enlarge or diminish substantive class exempt should reconsider Moriel rights obligations any parties any of pronouncement its actions from about civil action.” Tex.R. Civ. P. 815. Thus cases. proof punitive damages order of lawsuit, se, per the form of this not a of reasoned that its appeals court material factual that difference distin- modified order would solve the order-of- guishes principles we announced proof problem: Moriel. jury to resolve plan This still allows In in Moriel summary, we held punitive damages the common issue cases, punitive damages jury all must relatively early litigation, in the but also findings liability

return on and actual dam- understanding allows the to have it ages issues before hears evidence on the extent actual suffered damages. punitive In this dam- punitive by assessing punitive the class before case, court ages appeals held damages. plaintiffs may present pu- evidence of at 299. Plaintiffs contend finding nitive and obtain a before appeals complied with Moriel deciding damages. actual plaintiffs’ most dam- to decide actual requiring law, If good appeals’ Moriel is the court ages representatives holding Conversely, cannot be sustained. Moreover, damages. deciding exemplary appeals’ holding can uphold we the court of plan plaintiffs argue guards that the by overruling to the it Moriel extent against prejudicial evidentiary the con- ruling The in one applies to class actions. in by that led bifurcation Moriel cerns necessarily conclusive in the other on a dam- exemplary a reduction of ordering in material to the decision question of law is unable ages class member who for the case. prove damages. actual the Accordingly, we conclude that into go that considerations appeals’ court of decision overrule do damages the to award punitive decision been issued the same Moñel had both the was not on whether depend rulings court determine that the and we In we action. Moriel brought as class appeals’ in the court of decision Moñel and existing procedures concerned that upon “so the same state of facts were are far

433 dism’d). All class damage writ punitive App. failed to ensure — Dallas “ re satisfy four threshold grossly proportion out actions must awards ‘are not (“the (1) class is numerosity of the and have severity quirements: offense to the com relationship to members is joinder of all some understandable so numerous ” Moriel, (“there (2) damages.’ 879 pensatory commonality impracticable”); Co. v. (quoting at Mut. Ins. to the law or common questions fact Pacific Life 1, 22, Haslip, (“the S.Ct. (3) U.S. class”); or de typicality claims (1991)). pro To achieve such L.Ed.2d parties are representative the fenses of Moriel, must portionality, under of the the claims or defenses typical of damages punitive decide the amount of (4) representation class”); adequacy of totality of evidence from based on the the (“the fairly and parties will representative liability punitive the as well as the phase of the protect the interests adequately Here, nine the damages stage. deciding 42(a). class”). In addi P. See Tex.R. Civ. representatives’ teen class actual actions class prerequisites, tion to these satisfy the under first does not concerns four subdivi satisfy at least one of must pinning legal principles announced 42(b). assert this Plaintiffs of Rule sions the court modi appeals’ Moriel. Under 42(b)(4), Rule which action satisfies class order, fied would decide punitive law or fact questions of requires common entire damages for the class know without affecting questions over predominate of the ing severity the ex offense or class treat members and only individual any, tent of compensatory damages, if for available “superior to other ment to be plaintiffs. each of the 885 The certification adjudica the fair for and efficient methods provision order’s to eliminate punitive P. controversy.” Tex.R. Civ. tion of the who are not able to Prods., 42(b)(4); Inc. v. see also Amchem prove damages may actual harm limit the 591, 615,117 Windsor, S.Ct. 521 U.S. to Southwestern. But the modified (1997) (discussing the 138 L.Ed.2d plan is prejudicial nevertheless because it that can be main kinds of class actions fails to punitive ensure that damages have 23(b)); rule Green v. tained under federal some understandable com relationship to 541 F.2d Corp., Occidental Petroleum pensatory damages and are grossly out th(9 Cir.1976) (observing that proportion to the severity of the offense 23(b)(1)(A), under rule certification federal plaintiffs. for each of the 885 The con counterpart to Texas’s Rule the federal cerns this Court articulated in ap Model 42(b)(1)(A), inappropriate ordinarily will ply equally in class action cases. Accord damages). ingly, we see no reason to except class 42(b)(4)’s predomi- We consider Rule actions from rule articulated in Moriel. it requirement nance first because is one We now turn to the class certification is stringent to class prerequisites most sues. To aid a determin- certification. (b)(4) ing if appropriate, certification is

IV rule a list of fac- establishes nonexhaustive argues Southwestern tors to consider: trial court its by certify abused discretion (A) interest of ing members class this case 42 of as action. Rule individually prosecu- controlling gov Texas Rules Civil Procedure (B) actions; tion defense of separate erns class certification. P. 42. Tex.R. Civ. any litigation The rule is the extent nature of patterned after Federal Rule of 23; Civil concerning already the controversy Procedure federal com- consequently, against decisions and menced or of interpreting authorities cur members the class; (C) rent federal requirements desirability class action are the undesirabil- or persuasive authority. Corp. ity See concentrating litigation RSR v. of the (Tex. 928, (D) Hayes, forum; particular 673 S.W.2d 931-32 the difficulties 434 in the

likely manage- to be encountered V ment of a action. class requirement The is predominance litigation prevent intended to class 42(b)(4). Tex.R. P. Civ. diversity when and of complexity the sheer issues overwhelm or individual if Courts determine common compromise or severely confuse a a identifying the predominate by issues sub party’s present claims or ability viable issues of case that will control stantive require predominance But the defenses. litigation, assessing the outcome of the always rigorously ment has not been so predominate, which issues will and deter applied. presented significant with When are, in mining predominating if the issues issues, simply some have individual courts fact, the class. Re those common to See de may be remarked that creative means Kirkland, v. 917 serve Ins. Co. Life them, identify with signed to deal without 836, (Tex.App. 839 [14th S.W.2d — Houston whether considering means or ing those 1996, writ); no v. Amoco Prod. Co. Dist.] ability they parties’ would vitiate 813, Hardy, (Tex.App.— 628 816 S.W.2d See, present claims or defenses. viable dism’d). 1981, Corpus Christi writ Garza, e.g., Corp. Hess v. 973 Amerada predominance not test for is whether com 667, (Tex.App. Corpus 680 S.W.2d — mon issues outnumber uncommon issues 1996), w.o.j., writ dism’d 979 Christi but, stated, as one court “whether com (Tex.1998); v. Dono Franklin S.W.2d 318 object will be mon or individual issues 308, ho, (Tex.App. 313 774 S.W.2d — Austin litigants of most of the of the efforts writ) (both that, 1989, expressing faith no Light court.” Power & v. Central Co. how, can the trial court suggesting not but Juan, 602, City San 962 S.W.2d 610 with significant individual creatively deal 1998, writ (Tex.App —Corpus Christi . be both fair a manner that will issues in Ellis, w.o.j.); dism’d see also Glassell v. efficient). indulged Other courts 676, (Tex.App 956 S.W.2d 686 —Texar the trial favor every presumption 1997, w.o.j.); v. kana writ Adams dism’d in the the evidence ruling, viewed court’s 284, 791 289 Reagan, (Tex.App. S.W.2d ruling, and light favorable to most writ). If, 1990, —FortWorth no after com erred, it they if acknowledged frankly resolved, presenting mon issues See, e.g., certification. would be in favor resolving likely to be individual issues Jackson, Corp. v. Am. & Tennis Health unmanageable task overwhelming 583, ton (Tex.App.—San 928 S.W.2d An single do jury, for a then common issues 1996, w.o.j.); Reserve dism’d io writ Life predominate. Ideally, “a judgment 836, Kirkland, 839, v. 917 S.W.2d Ins. Co. deci members should favor 1996, 843 (Tex.App Dist.] [14th . —Houston all controversy, sively settle entire writ). postulated no others have Still other members remain is for that should for the or a verdict because settlement of their claim.” proof the class file issues could end on the common defendant Brister, v. Co. Ins. the Southwest individual issues litigation Life 764, (Tex.App. raised, not be predominance 722 S.W.2d need would be — Fort 1986, writ); See, Mo Ford e.g., no accord Sun Coast later. Worth until evaluated (Tex. 525, 65, Sheldon, Cooper, Resources Inc. v. S.W.2d 965 S.W.2d tor Co. v. 1998), rev’d, Dist.] (Tex.App App. [1st 533-34 .—Houston — Austin Co. v. Corp. (Tex.2000); Pac. Resources w.o.j.); pet. dism’d Union Microsoft (Tex. (Tex.App.— Chilek, Manning, 914 dism’d). w.o.j.). Other 1998, pet. Be dism’d writ Austin App. — Texarkana predomi suggested that individual is courts have we whether fore determine really prelimi is not in nance requirement ones over common predominate sues class can at all because nary class, properly requirement we consider how if individual always be decertified later requirement. predominance apply

435 ultimately certification have been met. See issues are not resolved. See sites to the v. Fal Gypsum Kirbyville Indep. National Co. v. General Tel. Co. Southwest (Tex. con, 147, 161, 2364, Dist., 621, 72 457 U.S. 102 S.Ct. 627 Sch. 1989, (1982); re w.o.j.) L.Ed.2d 740 see also In Ameri App. writ dism’d —Beaumont (“There Inc., 1069,1078- Sys., can 75 F.3d danger proceed can be no in this Medical (6th Cir.1996). Although may 79 it not be ing Appellant recog for the certify a class in his that individual abuse of discretion to nized order issues fail, addressed, stated, that we conclude that a would have to be could later certification, course, to class certification is may approach ‘This be al cautious tered, 42 “flexibility” amended or at time essential. The of Rule “en withdrawn ”); judgment.’ final the usefulness of the class-action before Ins. Co. v. hances Life Brister, 764, device, actual, (Tex.App.— presumed, [but] 775 not con writ) 1986, Fort no formance with remains ... in (suggesting [the Rule] Worth that Falcon, doubt, 160, predominance dispensable.” at when is “the most 457 U.S. 102 approach efficient for the trial court is to S.Ct. As the Supreme 2364. Court at present allow class certification the time stressed Amchem: must be “[C]ourts subject that rule composed to a motion the defendants after mindful the as now developed requirements they the case has to dissolve the class sets the are bound to grounds on the ... questions common are enforce.... The text of a rule limits trial.”). Prods., not at predominant judicial inventiveness.” Amchem Inc., 620, 2231; 521 U.S. at 117 see S.Ct. reject We approach certify now Bloyed, also Motors Corp. General Products, and worry later. In Amchem (Tex.1996)(emphasizing Windsor, Inc. v. the United States Su- importance “the of the trial obli court’s preme reemphasized Court importance the gation protective to determine that the vigorously applying predominance the met”). requirements of Texas Rule requirement in a class-action certification certify it improper Thus sought global settlement of current can knowing class without how the claims and future asbestos-related claims. There likely and will be tried. See Castano v. Supreme emphasized Court impor- Co., American Tobacco 84 F.3d carefully tance of scrutinizing predo- (5th Cir.1996). A trial court’s certification minance standard to ensure that pro- order must indicate will how claims posed “sufficiently class is cohesive to likely be tried so that conformance with adjudication by representation.” warrant Prods., may Inc., meaningfully Rule 42 evaluated. Amchem at U.S. burden, plaintiffs’ “Given the a court can S.Ct. Noting predomi- that “the rely on [mere] assurances counsel nance criterion is far demanding” more any problems predominance with than commonality requirement, Castano, superiority can be overcome.” Court determined that plaintiffs’ analy at a proper 84 F.3d 742. To make shared experience exposure of asbestos sis, “[g]oing beyond pleadings is neces might commonality meet the requirement, sary, as a court must understand predominate but failed to over individual claims, defenses, facts, Prods., Inc., appli relevant issues. Amchem at U.S. cable law in order to make a substantive effect, 117 S.Ct. 2231. In the exact- meaningful determination of the certifica ing standards of the predominance inquiry Castano, at 744. tion issues.” 84 F.3d act as a check on commonality the flexible 42(a)(2). Any proposal expedite resolving individ test under Rule unduly party

ual issues must not restrict a perform “rigor presenting Courts must from viable claims or defenses analysis” ruling party’s ous on class certifi without that consent. See Tex.R. 22.004(a) 815; prerequi § cation to determine whether all P. Tex. Civ. Gov’t Code in law- procedural degenerate practice multiple “rules into (stating that Texas’s separately suits tried. abridge, enlarge, modify or may not a If it is rights litigant”). (1966). substantive 69,103 F.R.D. from the outset that the

not determinable Here the causation and issues in a individual issues can be considered class mem- uniquely are individual to each time-efficient, fair man manageable, yet proximity explosion to the ber. ner, appropriate. is not then certification from less than residents’ homes varied of a mile to almost nine miles. Corp. Bloyed, 916 one-half See General Motors v. winds (“[T]he prevailing There is evidence that (Tex.1996) trial S.W.2d away from blew the smoke the residents’ uncertainty court that ‘there is as [found] explosion tank oc- homes. When the properly action could be to whether a class curred, in members were scattered class through certified and maintained be than one locations that varied from less potentially are substantial in cause there mile explosion away from the to as far as fact law and ob questions dividual and homes, inside their Beaumont. Some were manageability to the stacles outside; walking, others were some were If the trial court be on a class basis.’ representative, driving. others were One case, it should lieved this to be the not fact, think he admitted that he did not ”). the class.... have certified anything from the tank fire exposed was representative Another did explosion. and turn to of the class- application We suing he or what not even know who was injury generally personal action device deposition, In he suing he was over. his whether individual is- cases determine rep- expressed his belief that this lawsuit predominate over common ones sues benzene relating resented claims to 1993 this class. plant. Corporation release from a Coastal that there are Plaintiffs’ counsel concede VI not or who do not class members who were they exposed. think One of the class were injury claims will of Personal members, in a Beaumont example, was thorny damage causation and present ten An- occurred. prison explosion when the highly individualistic variables issues with Nevertheless, was in California. other individually must re that insist that class mem- plaintiffs counsel Prods., Amchem Inc. generally solve. See think were who do not bers who not or L.Ed.2d 117 S.Ct. 521 U.S. need to be included they exposed were Thus, rarely class action will be within the class so represented resolving device for them. appropriate of “less spectrum the whole class can cover 23(b)(3), Rule The drafters of Federal cases, really cases and medium severe 42(b)(4), recog to our Rule counterpart good cases.” they person observed that nized this when pre- issues that individual We conclude generally inappropri claims are injury al in this class. over common ones dominate certification: ate for class phase will establish The common-issues injuries resulting A “mass accident” responsi- legally whether Southwestern numerous, ordinarily not persons is the re- and whether explosion ble for the action because of appropriate causing capable of materials were leased questions, significant the likelihood al- of the class the harm some members liability but questions answers to these lege. The present, liability, li- defenses considering Southwestern’s necessary ways. in different affecting individuals not establish whether ability, they but will was class member an action con- to what extent each In these circumstances was the exposure whether nominally exposed, as a class action would ducted proximate Supply Moye, cause of harm to each class Able Co.

member, (both (Tex.1995) and to vindicating whether what extent other defendants’ harm, alleged cases, factors contributed to the rights, case-by-case in mass tort to damage and the amount that should com- discovery on in- basic medical and causal formation). pensate harm. each member’s As for issues, latter highly these individualistic procedur The class is a each including

variables class member’s judicial al to econ device intended advance location, dosage, activity, age, medical his- omy by trying together claims that lend tory, sensitivity, credibility and will all be themselves to collective treatment. It is establishing essential to causation and not parties’ meant to alter the burdens of damages. trial, proof, right jury to a or the substan 42(b)(4) requires Rule class treatment to recovery tive to a prerequisites giv under superior adju- be for the fair and efficient may en tort. Procedural devices “not be controversy. dication of the See Tex.R. enlarge any construed to or diminish sub 42(b)(4). P. Here Southwestern is Civ. rights obligations any parties stantive or opportunity entitled to a fair to individual 815; civil any action.” Tex.R. Civ. P. determinations of causation and 22.004(a); § see also In re Tex. Gov’t Code for each of the 904 plaintiffs difficult —a (Tex. Ethyl Corp., 975 S.W.2d undertaking any jury. argue for Plaintiffs 1998) (“The systemic urge aggregate that under the trial plan single jury a a litigation trump must not be allowed to our single can lawsuit and will consider the justice, dedication to and we must take fairly individual issues and efficiently. care that each individual —and Plaintiffs assert that they present can not be lost in defendant’s —cause the shad their entire case—all four it—in phases of ow of a towering litigation.”) (quoting mass First, eight they six to weeks. plan to Brooklyn Navy Litig., In re Yard Asbestos offer evidence on most elements of dam- (2d Cir.1992)). 971 F.2d Although ages records, using summaries, medical goal system a of our is to resolve lawsuits expert testimony. Second, and they plan “great expedition dispatch with and and at to submit a charge to the with dam- expense,” supreme objective the least ages proximate and using cause issues a fair, just, the courts is “to obtain a matrix format. urge Plaintiffs that equitable impartial adjudication and models, strategy, coupled with the use of rights litigants under princi established formulas, brochures, and damage will allow ples of substantive law.” Tex.R. Civ. P. 1. litigate phase them to expeditiously IV and This means that “convenience and econo enable the through to sort and delib- my yield paramount must to a concern for personal erate each injury claim. impartial a fair and trial.” In re Ethyl models, formulas, help

With the Corp., 975 S.W.2d at 613. And basic to the brochures, extrapolation, indeed, and damage right to a fair basic to the trial — plaintiffs may indeed present very process be able to essence of the adversarial —is their expeditious an manner. that have party opportunity each Likewise, may adequately vigorously any Southwestern choose to ma present defense, present timely If efficient terial claims and defenses. Southwest making arguments presenting challenge credibility evi ern chooses to generalized, responsibility personal dence on and its for each class-wide But, basis. may injury individually, may while Southwestern not claim then what trials, separate nominally initially entitled to it is entitled be a class action challenge the credibility degenerate practice multiple of and its re into law sponsibility for personal injury each claim suits tried. therefore con separately We 42(b)(4)’s individually. generally See In re requirement Colonial clude that Rule (Tex.1998); Pipeline, superior class treatment be to other avail short, adju per able methods for a fair and n. 16. In were not efficient defendants exposure dication has been satisfied. mitted to contest individual 2,288 causation nonre issues urged Some commentators presentative class members the 160 their courts relax commitment to individu sample appeal from judg cases. On alized treatment of causation and cases, ment rendered in 159 of the See, e.g., tort context. David mass reversed, holding Fifth Circuit Actions Torts: Rosenberg, Class Mass plan defendants’ violated Seventh Doing Individual Justice Collective rights and violated Texas’s Amendment (1987) Means, L.J. Indiana Cimino, 151 at substantive law. See F.3d (arguing justice imple that “bureaucratic 311-321; v. Corp., see also Leverence PFS through mented class actions bet provides 735, 317, 193 532 Wis.2d N.W.2d 739-40 opportunities achieving ter for individual (1995) (reversing judgment in which trial justice system’s than does the tort private court, law, objections, processes”); over defendants’ used disaggregative Samuel cause, Issacharoff, on Damage aggregative procedures issues of Administering Litigation, Awards in Mass-Tort 10 Rev. contributory negligence, Litig. (“The (1991) 463, determination). legal system 493 of place individualized now to confront conflict be beginning can al Aggregating dramatically claims case-by-case tween idealized forms of ad jurisprudence. ter tort substantive Under judication reality injured and the of par model, recovery tort is con traditional dying ties’ of regularly litigation responsibility. ditioned on defendant Against backdrop jus their claims. this of and the plaintiff prove, must defendant denied, proposals rough- tice for routinely contest, must be to given opportunity justice dispensed cut on a must mass scale every By removing element of a claim. Indeed, seriously.”). in be taken under from the individual considerations adver pressure manage tense mass-tort their process, system sarial is shorn of a the tort dockets, dispensed some trial courts have out screening margin valuable for method with for proof requirements certain ele In way, al and claims. unfounded sharply ments and limited defendants’ magnifies certification “[c]lass claims, rights plaintiffs’ to contest strengthens the number unmeritorious appeal. be on H. Roger reversed See Castano, 746; at claims.” 84 F.3d see also Trials in Transgrud, Mass Mass Tort Siliciano, A. John Mass Torts and the Dissent, 69, Cases: A 1989 U. III. L.Rev. Crisis, 990, Rhetoric 80 Cornell L.Rev. (illustrating how mass create 84-85 trials McGovern, (1995); 1010-11 Francis E. improper incentives for behavior and deci A Looking to the Future Mass Torts: For judges). example, sions trial Siliciano, 80 Comment on Schuck Industries, Inc., Raymark Cimino v. 151 (both (1995) 1022, 1023-24 (5th Cir.1998), 297, F.3d trial court Cornell L.Rev. 304 observing tort cases a ten that mass have 2,298 certified a class of cases asbestos dency many to attract unmeritorious plan a trial implemented which claims). subject If claims are to some trial to award for planned attention, 2,128 level of individual defendants are extrapolation on an cases based more sample likely More to be held liable claimants awards for 160 eases. over, no harm. they the trial court refused to allow defen whom caused exposure or dants to contest causation Finally, contend that de Cimino, plaintiffs sample cases. See 151 160 is, in reality, nial of treatment Instead,

F.3d at 304-05 & n. complete many redress for legal denial of jury to court instructed the assume many their of the 904 because plaintiffs, each had sufficient to be plaintiff exposure justify simply an claims are too small to cause of producing asbestos-related Cimino, litigation. argu At oral 151 & cost injury. See F.3d at 304-05 individual ment, plaintiffs’ something counsel stated that “we into worth recoveries some- exceed, injuries probably do not (usually attorney’s) one’s labor. on an individual Prods., Windsor, Amchem Inc. v. 521 U.S. basis, urge a thousand dollars.” Plaintiffs 591, 617, 2231, L.Ed.2d S.Ct. that the compelling certify most reason to (1997) (quoting Mace v. Van Ru Credit a class action is the existence of a “nega th(7 Cir.1997)). Corp., 109 F.3d suit, in litigat tive value” which the cost of justice But fairness and to all concerned ing each individual claim would surpass require adherence to certification stan any potential recovery. See General Mo may dards before a court allow a case to Corp. v. Bloyed, tors 953 proceed as a class action. See General (Tex.1996); Castano v. American Tobacco Corp. Bloyed, Motors (5th Cir.1996). Co., 84 F.3d (Tex.1996). second-guess

We do not plaintiffs’ We hold that the trial court’s certifica- that, contention perspec from a financial tion was an order abuse of discretion be- tive, may pursu some claims not worth predominate. cause common issues do not ing if class-action treatment is denied. Because of this conclusion we need not But proceeding may very as a class action objections consider Southwestern’s other run, if, long well cost more in the as can be to the class action or trial re- plan. We here, expected the ultimately class must judgment verse the of the court of appeals dissolved because there manageable is no and remand this cause to the trial court for fair way, to both parties, to resolve the proceedings further consistent with this individual issues. And right “there is no opinion. litigate to a claim as a Rath class action. er, provides only Rule 42 that the court Justice BAKER filed a concurring may certify a plaintiff class action if the opinion, joined. in which Justice HECHT satisfies requirements the of the rule.” Justice filed a dissenting ENOCH Resources, Sun Coast Inc. Cooper, v. 967 justice in opinion, which Chief PHILLIPS 525, S.W.2d 529 (Tex.App. [1st — Houston joined. and Justice HANKINSON 1998, pet. w.o.j.); Dist.] dism’d accord Weatherly Touche, v. Deloitte & BAKER, joined by Justice Justice S.W.2d (Tex.App. [14th — Houston HECHT, concurring. w.o.j.); Dist.] writ dism’d Vinson v. I concur with the opinion Court’s Bank-Houston, N.A., Texas Commerce with its conclusion that we have conflicts (Tex.App. — Dallas jurisdiction here because the ap- court of writ). 1994, no This class certification peals’ opinion Transporta- conflicts with satisfy does not those requirements. Moriel, tion Insurance v. Company (Tex.1994). However, S.W.2d 10 because

VII the Court decided the conflicts issue on properly When applied the Moriel, Iley the Court did not discuss. class action unquestionably device is (Tex.1958). Hughes, 311 S.W.2d 648 I valuable tool in protecting rights of our separately write because I that it is believe citizens. As the United Supreme States necessary Iley to discuss the context of Court has stated: juries separate try whether can different very core of the class action mecha- of a personal injury sep- elements claim nism to problem overcome the phases. arate small recoveries in- provide do not centive for individual bring a solo The court of if it appeals suggests that prosecuting his or A rights. necessary, her were the trial could class action solves this problem by ag- multiple juries decide the individual issues gregating relatively paltry potential in the phase. trial’s final 960 S.W.2d at Although Agent Orange. departs Iley, exposure from suggestion 297. This circum- allowing causation and individual disapproved generic which Court n concerning plaintiff lia- each and his juries to determine contested stances different Orange in a thus bility damage personal exposure Agent issues or her intertwined, at injury Iley, inextricably claim. to be appear See ge- would have allowed the class action injury litigation Piecemealing personal determined without neric causation to be juries the com- by having separate decide those characteristics and the regard to “a sub- and individual issues works mon exposure. individual’s change in the nature of stantial Wright, trial itself.” 9 ChaRles Agent Orange Litig., Prod. Liab. In re Alan et Cir.1987). (2d al., 145,164-65 F.2d Practice and Procedure Federal (1995). procedure § at Such a true, ob- appeals It is as the court of is- juries forces two to evaluate discreet served, that “the same considerations of knowledge context and without sues out of in- practice long-standing policy can procedure all evidence. This Iley” decision spired Court’s lead to inconsistent verdicts between also approximately different “when somewhat Moreover, common class members. as proceed nine hundred seek to interwoven may and individual issues be so But, action.” 960 at 297. a class litigants present would have view, having juries decide my separate juries, much of the evidence to both same injury personal of this phases different litigants’ wasting the court’s time and the First, option. is not a viable true with money. particularly This is phase considering the trial’s IV general specific into and splitting causation general causation evi- need to consider commentator has stated components. One whether and to what dence to evaluate general trials on the issue of mass specific the toxic smoke was the extent savings only causation create substantial injuries. claimant’s particular cause of lose because this leads plaintiffs when the savings might negate any This would num- immediately large dismissal of to the jury decide by having the first be achieved Roger H. of mass tort claims. See bers causation. general Mass Tort Mass Trials in Trangsrud, case, Second, in this damage claims 69, Dissent, III. L.Rev. A 1989 U. Cases: suffering, are anguish pain mental that if the This commentator observed pro- appellate trial and unliquidated. Our causation, for ex- general first finds separate trials prohibit cedural rules could product that the defendant’s ample, liability when unliquidated damage claims individu- injury, plaintiffs have caused the 320; see Tex.R. P. is contested. See Civ. necessary, and there- trials will still be al Tex.R.App. P. 44.1. also is saved. expense no time and fore little or Third, Texas’s aver other courts share L.Rev. at 79. 1989 U. Ill Trangsrud, See prefer and its litigation piecemeal sion to Appeals The Circuit Court Second trials, when particularly unitary ence of de- the usefulness questioned has also See, involved. injury claims are personal regard causation without ciding general Co., Tobacco v. American e.g., Castano specific causation: (5th Cir.1996); 734, Cavender F.3d ... whether question is not The relevant 887, 226, 479 S.E.2d McCarty, 198 W.Va. to cause capacity has the Agent Orange (1996) J., concurring); (Cleckley, 893-94 issue, harm, causation but generic Corp., Motors v. General Brown harm and to whom. it did cause whether (1965). 461, 464 407 P.2d Wash.2d individual- highly That is determination above, I Thus, stated for the reasons istic, the characteris- depends upon appeals’ sugges reject court of would (e.g. state of tics of individual by separate trials using separate health, them tion of and the nature of lifestyle) view, juries in my Iley’s opinion, this case. In I published appeals’ nev- important rationale is an consideration ertheless must dissent we do not because a trial jurisdiction whenever court must determine to reach the merits of this questions whether common of law or fact order. class-certification predominate questions affecting only over our jurisprudence, Under conflicts error individual members and whether class is not as conflict. the same Decisions are treatment “superior is to other available conflict, in purposes of this Court’s adjudica methods for the fair and efficient jurisdiction, if conflicts when issued tion controversy.” Tex.R. Civ. P. court, by the same the later decision would 42(b)(4); Prods., see also Amchem Inc. v. overrule the earlier decision. Under this Windsor, 615,117 521 U.S. S.Ct. standard, appeals’ opinion the court of (1997) 138 L.Ed.2d 689 (discussing class this case does not conflict with our decision actions that can be maintained under Fed in Transportation Insurance Co. v. Mor 23(b), eral Rule on which Texas’s Rule iel or by parties. other case cited 42(b) based); Green v. Occidental Petro repeatedly emphasized We have how dif- (9th Corp., leum 541 F.2d Cir. jurisdic- ficult it is to establish conflicts 1976) (observing that certification under tion.2 jurisdiction for such test has 23(b)(1)(A), Federal Rule the federal long been whether “the rulings the two equivalent 42(b)(1)(A), to Texas’s Rule will far upon cases ‘so the same state of ordinarily be inappropriate an action for facts that the decision of one case is neces- damages). sarily conclusive the decision in the I otherwise concur with the Court’s ”3 conflict, other.’ For cases to it must be opinion judgment. that “one operate to overrule the they other were both rendered ENOCH, joined Justice by Chief Justice the same court.” HANKINSON, PHILLIPS and Justice appeals’ The court of decision dissenting. case does not conflict with Moriel. We law, In some areas of including that, held in Moriel if requested, certifications, class-action Legislature court permit jury should not to hear has chosen jurisdiction to limit this Court’s punitive damages, evidence about including by making interlocutory worth, most appeals final liability defendant’s net before appeals. the courts of Sometimes damages and actual have been submitted has meant that cases that would otherwise to jury.5 The Court its con- supports merit our attention because they are im- flicts conclusion here with the observation portant to jurisprudence lawsuit, se, of the state that “the form per of this is not beyond our reach. This is such a case. a material factual difference that distin- But frustration at not being guishes able to reach principles we announced in every important so, merits of case is not a That may Moriel.”6 be but it has sufficient judicial whether, reason to fail to nothing exercise to do with had the same Thus, restraint. I while share the Court’s court issued both Moriel and the court of remedy significant here, desire to appeals’ opinion errors the latter would (Tex. 1994). Christy, 568-69). 1. 879 S.W.2d (quoting 10 4. Id. 298 S.W.2d at Garza, Corp. 2. See Coastal v. Moriel, 5. S.W.2d at 30. 879 (Tex.1998) Avalos, (quoting 319 v. Gonzalez (Tex.1995)). (citing 6. 22 S.W.3d at 437 Texas Rule of Civil Gonzalez, proposition 3. for the (quoting 907 S.W.2d at 444 Procedure 815 that a class Williams, Christy "enlarge any or Tex. cannot diminish sub- (1957)), quoted Corp., rights obligations any parties in Coastal stantive to action”). S.W.2d at civil jurisprudence, fail- our conflicts plausible reading Under the former. No overrule previously an- apply a properly ure to opinion would lead appeals’ of the court of has never been legal principle nounced to that conclusion. understood, amount to a today, to the Court’s dis- telling compare It is to that the court conflict. The Court claims appeals’ of Moriel to the court of cussion be- merely more than err appeals did “ the trial why it modified rationale ‘[t]he in Moriel that stan- cause we said does the Court plan. court’s trial How punitive to all apply announce dards we ” 11 Thusly: holding our in Moriel? describe But in the future.’ damage cases tried actual liability decide jury “a must possi- does not foreclose this statement punitive it considers damages issues before might apply bility that Moriel’s standards And what did the court damages.”7 they actions than differently in some class holding? ’s Vir- appeals say about Moriel single-plaintiff-single-defendant apply clearly in- thing: “Moriel tually the same appeals may eases. The court liability and actual that issues of dicates analysis, but it did at- wrong in its been Moriel n jury be submitted to damages should holding pro- tempt apply first, damages issues are and that punitive in Moriel: present context not cedural jury to the after presented to be its trial abused discretion [T]he have been de- liability damages and actual that would allow the devising plan a trial termined.” damages before jury punitive to assess familiarity with the actual attaining any hold Moriel? why And did we so plan, which we damages. A better Because, today, punitive the Court tells us judgment in this part as of our adopt proportional to actual damages have to be case, delay punitive is to assessment were concerned damages: “In Moriel we damages actual damages until after faded to ensure existing procedures have been representatives the class damage awards ‘are not punitive allows the plan This still proven. severity of to the proportion out of grossly punitive common issue of to resolve the and have some understandable the offense early litiga- in the relatively ”9 damages.’ compensatory relationship tion, have an allows the but also appeals court of deter why And did the of actual understanding of the extent trial in this case that the court’s mine as- suffered a class before Because, an abuse of discretion? plan was damages.12 sessing punitive opinion, in its told us appeals the court claiming this rationale for The Court’s proportional damages have to punitive actually the conflicts with Moriel or “The certification damages: to actual ap- the court of analysis of how Court’s provide any in case does not der this misapplied Moriel: peals has familiar jury to become mechanism for appeals’ in modified damages present actual the court of with the sort of Under order, punitive jury would decide jury’s determination prior to the this class without arrange for the entire Such damages. punitive or severity of the offense provides knowing it ... because prohibited is ment if damages, compensatory the extent damages to be reason way punitive for no plaintiffs. any, for each of the damages.”10 to actual ably proportional (citing Nat’l Alamo S.W.2d at 298 10. 960 at 431. 7. Id. (Tex. Kraus, Bank v. 1981)). Moriel, (citing 960 S.W.2d at 298 8. 30). at S.W.2d Moriel, 879 (quoting 22 S.W.3d at 432 Court)). by (emphasis added at 26 S.W.2d Moriel, (quoting at 433 9. 22 S.W.3d omitted)). (internal quotation 12. Id. at 298-99. at putting jurisdiction, elimi- flicts we would provision certification order’s to that is what punitive damages nate who cart the horse. And prove are not able to actual the Court does here.

may limit the harm to Southwestern. ap- that the court of I cannot conclude neverthe- plan But the modified trial because conflicts with RSR peals’ opinion prejudicial less because it fails to ensure in case failed to appeals the court of this punitive damages grossly that are not description of the factu- include a sufficient severity out of to the of the proportion legal principles al and the to be allegations plaintiffs.13 offense for each of the 885 I applied allegations to those from which Tellingly, the can’t that the Court conclude course, can determine a conflict. Of courts appeals’ court of decision would overrule facts in appeals must include sufficient by Moñel had both been issued the same their deci- opinions their to ensure that analyzes until it court whether or not Mor- subject meaningful sions are to conflicts applies iel to actions. do not class We analysis. may suspect But while one that jurisdiction simply here because the opinion, a conflict lurks beneath the such appeals guessed wrong court of on how we juris- suspicion does not establish conflicts apply very Monel in this different diction here. Unless a case meets our (cid:127) context. conflict, or is a rigorous test for a there jurisdiction Nor do we have conflicts on appeals, dissent from the court of we do ground alleges. other Southwestern jurisdiction not have over class-certifica- notes, theAs Court Southwestern asserts Legislature decides appeals tion until the that of appeals’ opinion the court conflicts give to it to us. Morid, just with but also with RSR it, too, Corp. Hayes14 Iley Iley, v. It I conclude that does Hughes.15 As doesn’t. jurisdiction not afford us over this case. proce- In that our rules of Iley, we held If permitted our conflicts jurisprudence trials,” in permit “piecemeal dure did not go appeals’ opin- us to behind the court of case are which different issues the same conflict, ion search the record for a I LikeMoriel, Iley juries. tried to different might differently conclude about RSR. But action, holding and how its was not determining whether decisions are yet applies in the class context is an issue conflict, we look to the face More- be determined this Court. record, opinions.16 We cannot turn to the over, it appeals the court of stated at stage, the conflicts to see what that “more than one was not convinced evidence establishes. This is because sec- case.”18 try will be needed Of 22.225(b) tion of the Government Code course, many my personal doubt that so final appeals makes the court arbi- presented single claims could be interlocutory ter of the facts and law an to do with whether we have nothing has jurisdiction unless under appeal, we have jurisdiction. light conflicts And 22.225(c) (d).17 And if we were section presented procedural different context case, to look first to the merits of the here, I decided, say appeals’ can’t it concluding wrongly was opinion Iley. con- here conflicts with and therefore conclude we have mind, we 13. 22 S.W.3d at 433. isdiction in turn to whether appeals' opinion in this conflicts court of (Tex.App. Dallas, 14. 673 S.W.2d 928 writ — ...."). with RSR w.o.j.). dism’d (1958). 22.225(b). § 15. 158 Tex. 311 S.W.2d 648 17. Tex. Gov’t Code Corp., 16. See Coastal 979 S.W.2d at 320 18. 960 S.W.2d at 297. (“With understanding jur- of our conflict jurisdiction in do not have conflicts We Therefore, I

this case. dissent. COMPANY, Leif

FORD MOTOR Ford, Inc. and Fred

Johnson

Capdevielle, Petitioners, SHELDON, Rueter,

Barry Matthew Porter,

Margaret Dunayer, John Wil- Dobbs, Beasley and

liam James B.J. individually

Sanders, and on behalf similarly situated, Respon-

all others

dents.

No. 98-0539. Texas.

Supreme Court of

Argued Feb. 1999. May

Decided

Case Details

Case Name: Southwestern Refining Co., Inc. v. Bernal

Court Name: Texas Supreme Court

Date Published: May 11, 2000

Citation: 22 S.W.3d 425

Docket Number: 98-0154

Court Abbreviation: Tex.