SUSAN ILLSTON, District Judge.
On December 9, 2016, the Court held a hearing on plaintiff's motion for class certification, plaintiff's motion for an order admitting into evidence the Verde/Physalia report dated October 26, 2016, plaintiff's motion to substitute a new fisheries expert, defendant's motion in limine to strike and exclude the report and testimony of Professor Jasper Abowei, and defendant's motion in limine to exclude the socio-economic report and testimony by the authors of the Onyoma Research Group.
For the reasons set forth below, after careful consideration of the voluminous record in this case, the Court concludes that plaintiff has not met his burden to demonstrate that this case should be certified as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3). Plaintiff has failed to show through any evidence that causation can be proven on a classwide basis, and much of the evidence submitted has been shown to be unreliable. Furthermore, the Court concludes that plaintiff has not demonstrated typicality, adequacy or superiority, and the proposed class definition suffers from numerous deficiencies.
On January 16, 2012, an explosion occurred on the KS Endeavor drilling rig, which was drilling for natural gas in the North Apoi Field, five nautical miles off of the coast of Nigeria. Plaintiff Natto Iyela Gbarabe is a fisherman who resides in the Niger Delta region of southern Nigeria. Plaintiff alleges that prior to and on January 16, 2012, "a series of pump failures on the rig led to a massive build-up of pressure which was reported to defendant Chevron Corporation, either directly or through [Chevron Nigeria Limited ("CNL")]." Fourth Amended Compl. ¶ 4 (Dkt. No. 99). Plaintiff alleges that "[t]he instruction from Chevron Corp. was to continue drilling the borehole which proximately caused a `blow-out' manifesting itself in an explosion which killed 2 rig workers and created a fire which burned, spreading toxins and hydro-carbons, heating the ocean water and polluting the same. The fire continued to rage for some 46 days until extinguished on or about March 2, 2012." Id. Plaintiff alleges that the KS Endeavor was operated by KS Drilling under the management of CNL, which in turn acted at defendant Chevron's direction. CNL is not named as a defendant in this action.
On January 13, 2014, six plaintiffs (Natto Iyela Gbarabe, Fresh Talent, Elder Endure Humphrey Fisei, Matthew Kingdom Mieseigha, Foster Ogola
Id. ¶ 9.
The complaint alleged that the plaintiffs and the people they represented suffered "losses to their livelihood," "environmental disaster impacting upon food and water supplies," and "health problems," and the complaint sought "compensation arising out of the Defendants' gross negligence, willful misconduct, negligence per se, acts of nuisance and negligent infliction of emotional distress and breaches of Nigerian law — in particular the Nigerian Oil Pipelines Act 1990, the Petroleum (Drilling and Production) Regulations 1969 and the Land Use Acts of 1978." Id. ¶ 3. The complaint alleged that "[e]xpert reports have concluded that there have been significant environmental impacts and all areas have been subjected to various degrees of damage." Id. ¶ 25.
This case was initially assigned to Judge Samuel Conti. Judge Conti dismissed the original complaint in part because the six plaintiffs purported to represent other members of the Nigerian communities allegedly affected by the explosion and fire, but they did not bring the case as a class action. Dkt. No. 30 at 10-11. Plaintiffs had argued that it is common practice in Nigeria for large groups of plaintiffs to sign onto a lawsuit by executing powers of attorney. Dkt. No. 25 at 17-18. As the Court explained, however, "the Federal Rules of Civil Procedure require that an action be prosecuted in the name of the real party in interest." Dkt. No. 30 at 11.
Judge Conti also dismissed the complaint because plaintiffs had not adequately alleged injury to the six plaintiffs. Judge Conti noted that plaintiffs had merely listed general categories of damages they allegedly suffered, but that nowhere did they explain how the explosion or fire on the KS Endeavor harmed plaintiffs. The Court explained:
Id. at 10 (citation omitted).
After being granted leave to amend, plaintiffs filed their first amended complaint as a class action on behalf of 65,000 "clients." Dkt. No. 34 ¶ 12. Plaintiffs again alleged that expert reports showed damages in "all areas" (id. ¶ 30), and plaintiffs relied on the allegations regarding expert reports showing "the severe impact upon these communities of the trauma of the explosion" in opposing defendant's motion to dismiss. Dkt. No. 40 at 3:12-13. Judge Conti granted defendant's second motion to dismiss, finding that the amended complaint only alleged injury to unidentified class members and failed to allege that the named plaintiffs had suffered injury in fact. Dkt. No. 44 at 9-12.
On September 3, 2014, plaintiffs filed the second amended complaint. Dkt. No. 45. The second amended complaint added allegations of property damage and adverse health consequences for the six plaintiffs. Id. ¶¶ 12(i)-(vi). It alleged, for example, that
Id. ¶ 12(vi). As with the previous complaints, the SAC realleged that expert reports showed significant environmental impacts and damage to "all areas." Id. ¶ 33. Plaintiffs also attached to the second amended complaint a document titled "Schedule A," listing the names of 65,000 putative class members across Bayelsa State and the economic damages each allegedly incurred.
Chevron moved to dismiss the second amended complaint on several grounds, including that plaintiffs had failed to allege causation and that the allegations of harm up to 60 miles inland were facially implausible. Dkt. No. 49 at 4-6. In opposition, plaintiffs argued that their allegations were sufficient and they reiterated that their claims were supported by "expert reports [that] have identified the severe impact upon the communities[.]" Dkt. No. 51 at 4. Judge Conti granted in part and denied in part Chevron's motion. Judge Conti found that plaintiffs' amended allegations were not implausible on their face, and he noted that plaintiffs were not required to prove causation at the pleadings stage. Dkt. No. 56 at 4-5. Judge Conti dismissed plaintiffs' public nuisance claim with prejudice and granted Chevron's motion to strike the second amended complaint to the extent that it asserted claims on behalf of communities rather than the communities' individual members. Id. at 9.
On January 23, 2015, the parties agreed to limit the first phase of discovery to issues relevant to class certification. Dkt. Nos. 63, 69. The parties agreed to a class certification schedule under which plaintiffs would file their class certification motion by August 6, 2015, with a hearing scheduled for December 4, 2015. Dkt. No. 69.
On March 18, 2015, the parties stipulated and the Court entered an order modifying the class certification schedule. Dkt. No. 76. The stipulation stated that the extension of time was necessary because "plaintiffs' counsel has advised that their retained experts are investigating which named plaintiffs and alleged class members have what plaintiffs' counsel consider objectively sustainable claims and, based on that investigation, anticipate reducing the number of named plaintiffs and class members and/or the scope of the proposed class." Id. at 1:23-26. The stipulation and order provided:
Id. ¶ 1.
On May 12, 2015, Chevron moved to dismiss with prejudice the claims of Foster Ogola, Elder Endure Humphrey Fisei, Fresh Talent, Matthew Kingdom Mieseigha, and Chris Wilfred Itonyo for failing to respond to Chevron's first and second requests for production and first set of interrogatories. Dkt. No. 77. That discovery sought the basis for plaintiffs' allegations of statewide injury and injury to the named plaintiffs and the 65,000 putative class members. Dkt. No. 78 ¶¶ 1-3. In response to Chevron's motion, plaintiffs filed an opposition that did not actually oppose the dismissal of the five plaintiffs, and acknowledged that the five plaintiffs did not have articulable claims of damage. Dkt. No. 80 at 5. The opposition also stated:
Dkt. No. 80 at 2:13-23; see also id. at 3:17-20 ("It is counsels' careful investigation that has developed evidence that the full effect of the explosion, and thus the impact zone, must be more narrowly and specifically defined to conform to proof. The practical effect is that some, but by no means all, of the communities already known to the defendant and the Court through the pleadings will be stricken."). Plaintiffs' counsel referred to this process as a "realignment" of the class. Id. at 3:27. Plaintiffs' counsel also stated, "The proposed redefinition of this action is almost complete and plaintiffs' counsel will be seeking defendant's agreement to a stipulated amendment of the complaint to articulate the reduced number of communities asserting claims under the original pleading, together with the names of the new, duly authorized lead plaintiffs to adequately represent the interests of each of these communities. If a stipulated amendment cannot be agreed upon, plaintiffs will seek amendment by motion filed on or before June 1, 2015." Id. at 4:19-25.
On June 1, 2015, plaintiffs filed their third amended complaint without defendant's consent or leave of court. Dkt. No. 82 ("TAC"). The TAC removed the five plaintiffs who were the subject of Chevron's sanctions motion and added eleven new named plaintiffs. The TAC reduced the putative class from 65,000 to 15,000 people by dropping five of the eight Local Government Areas covered in the previous complaints, leaving Brass, Ekeremor, and Southern Ijaw Local Government Areas (the specific communities within those LGAs were listed in the caption). Id. ¶¶ 8, 32. The TAC contained the same allegation as the previous complaints that expert reports showed damage in all areas. Id. ¶ 33.
In an order filed July 28, 2015, the Court granted Chevron's motion to strike the TAC. Dkt. No. 94. The Court held that plaintiffs were required to seek leave of court before filing the TAC because the TAC added eleven new plaintiffs. Id. at 4. The Court rejected plaintiffs' argument that the new plaintiffs were not actually new because they were among the 65,000 community members that the original named plaintiffs claimed to represent through power of attorney. Id. The Court noted that it had "rejected this argument at least twice, and it admonishes Plaintiffs for raising it yet again. As explained in the Court's order on Defendant's first motion to dismiss, `the Federal Rules of Civil Procedure require that an action be prosecuted in the name of the real party in interest.'" Id.
In a separate order filed July 28, 2015, the Court granted defendant's motion for the sanction of dismissal of five of the named plaintiffs for failure to comply with discovery obligations. Dkt. No. 93. The Court found that the five plaintiffs were served with discovery which required responses by April 3, 2015. The Court further found that those five plaintiffs had not responded by that date or any time thereafter, and that the plaintiffs were not cooperating with their counsel.
On September 29, 2015, named plaintiff Natto Iyela Gbarabe filed the fourth amended complaint pursuant to a stipulation and with leave of court. Dkt. No. 99. The fourth amended complaint ("FAC") is the operative complaint. The FAC realleges that plaintiff suffered "personal loss by way of an almost total loss of yield in the waters customarily fished by plaintiff after the KS Endeavor rig explosion and 46-day fire, as well as damage to fishing equipment," and that "Plaintiff further suffered health issues from the effects of the polluted air and water caused by the gas rig explosion of the KS Endeavour, which included diarrhea and vomiting." Id. ¶ 10(i). Similarly, the FAC realleges that "[e]xpert reports have concluded that there have been significant environmental impacts and all areas have been subjected to various degrees of damage." Id. ¶ 30. The FAC seeks compensation and punitive damages arising out of Chevron's alleged gross negligence, willful misconduct, negligence per se, acts of nuisance, and breaches of Nigerian law. Id. ¶ 3.
Id. ¶ 12. The FAC added:
Id. The FAC further reduced the putative class from 15,000 to 12,600 people by eliminating three of the communities that were covered by the previous complaints (Koluama 11, Ezetu 11, and Ikebiri 11).
By stipulation and order, plaintiff's Rule 23 motion was originally due on August 6, 2015, with a hearing scheduled for December 4, 2015. Dkt. No. 69. The parties agreed that plaintiff's class certification motion "will include causation evidence as to the named Plaintiffs comparable to Lone Pine." Dkt. No. 63 at 3:21-25.
On March 18, 2015, in light of plaintiff's counsel's need for additional time to "investigat[e] which named plaintiffs and alleged class members have what plaintiffs' counsel consider objectively sustainable claims" and the anticipated reduction of the scope of the proposed class, the class certification filing date was extended to November 9, 2015. Dkt. No. 76. The March 18, 2015 stipulation and order also provided,
Id. ¶ 2.
The parties agreed to extend the June 1, 2015 deadline to June 15, and on that date, plaintiff served on defendant a report titled "KS Endeavor Rig Blowout Environmental Desk Study," prepared by Verde Environmental Group, Ltd. Dkt. No. 97 ¶ 2, Ex. 1.
On September 17, 2015, plaintiff requested a ten-month extension of the class certification filing deadline. Plaintiff's counsel stated that they needed the extension because they had "retained an environmental consulting firm named Verde in May 2015 to conduct a review of gathered evidence regarding the environmental impact of the rig explosion on the surrounding marine and coastal area," and
Dkt. No. 95 at 2:3-8; Dkt. No. 95-1 ¶ 2 (Cleary Decl.).
Chevron opposed the request for an extension, arguing that plaintiff did not provide any explanation for why he failed to commission any expert field work in the 16, months between when this case was filed in January 2014 and the beginning of the rainy season in May 2015. Defendant noted that although plaintiff stated that he had retained Verde in May 2015, plaintiff had listed Verde as his expert in his Initial Disclosure Statement on February 20, 2015. See Dkt. No. 97 (Ex. 4 at 4). Defendant also submitted deposition testimony from Kevin Cleary of Verde, in which Mr. Cleary testified that plaintiff's counsel did not formally retain Verde or ask it to perform any work until one week before the June 1, 2015 deadline for expert reports for class certification. Dkt. No. 103-1 (Cleary Dep. at 17:20-25, 38:2-12).
Judge Conti rejected the ten-month extension, but gave plaintiff a three-month extension until February 6, 2016. Dkt. No. 108. In granting the extension Judge Conti stated that "[n]o further extensions of the above dates will be granted." Id.; see also Dkt. No. 107 at 16:21-25 (transcript of Oct. 1, 2015 hearing, during which Judge Conti stated: "That's the last extension. That's the last. I mean, there's not going to be any other. And if it's detrimental to the plaintiff, then it's detrimental to the plaintiff. But everything has to come to an ending. You've had plenty of time.").
This case was re-assigned to this Court on November 3, 2015. Dkt. No. 111. In a case management conference statement filed December 7, 2015, plaintiff requested an additional three-month extension of the class certification filing deadline "based upon delays caused by scientific imperatives and the upcoming holiday season." Dkt. No. 115 at 10:9-10, 15. Plaintiff claimed Verde could not take seabed samples on the December 2015 trip because the laboratories would be "closed for approximately two weeks between Christmas and New Year" and unable to do the testing. Id. at 11. Plaintiff stated,
Dkt. No. 115 at 10:22-11:9. Plaintiff's counsel further stated,
Id. at 14:27-15:2.
On April 8, 2016, plaintiff filed his motion seeking class certification pursuant to Rule 23(a) and (b)(3). Plaintiff supported his motion with reports from four sets of experts: (1) a set of reports by the Verde/Physalia group, which include reports by Jones Environmental Laboratory Ltd. (collectively the "Physalia 1" report), Dkt. No. 124-1 to 124-11; (2) a report titled "Summary of Post Impact Studies and Findings of the Effect of January 2012 Chevron Gas Rig Explosion Off the Atlantic Ocean" by Professor Jasper Abowei, a Nigerian fisheries professor, Dkt. No. 125-3; (3) a report by the Onyoma Research team led by Professor Alagoa titled "Socio-Economic Report on the Effects of the KS Endeavor Rig Explosion on the Coastal Communities of Bayelsa," Dkt. No. 125-1, 125-2; and (4) a report titled "Damage Model for Class Action Management in the Matter of Gbarabe v. Chevron," by Christopher Money. Dkt. No. 126-1. Plaintiff also submitted other evidence in support of the class certification motion, such as declarations from putative class members, photographs of the site of the explosion and surrounding areas, and declarations from Nigerian lawyers regarding the Nigerian court system.
Plaintiff failed to timely produce to defendant the materials on which plaintiff's experts relied as required by Federal Rule of Civil Procedure 26(a)(2)(B)(ii), thus necessitating further modifications of the schedule. See Dkt. Nos. 129, 169.
On September 16, 2016, defendant filed its opposition to plaintiff's motion for class certification, along with several expert reports in support of the opposition. Dkt. Nos. 180, 183-89. Defendant also filed two motions in limine to exclude the report and testimony of Jasper Abowei and to exclude the report by the Onyoma Research team. Dkt. Nos. 181-82.
On September 30, 2016, the Court held a case management conference. At that conference, the parties informed the Court that on September 14, 2016, plaintiff proposed a new class definition, and that Chevron had declined to stipulate to it. See Dkt. No. 190 at 1. Plaintiff requested permission from the Court to amend the class definition, and the Court directed plaintiff to provide the proposed amended class definition to defendant by October 7, 2016, and allowed defendant to file a response to the proposal by October 21, 2016. See Dkt. Nos. 192, 199-200.
On November 10, 2016, the Court held a further case management conference. At the conference, plaintiff requested a further extension of time to file the reply papers from November 18 to November 25, 2016. The Court granted that extension. At that conference, the parties informed the Court that plaintiff wished to replace his fisheries expert Jasper Abowei with a different fisheries expert, Professor Eyiwunmi Falaye, and that Chevron objected to plaintiff's request. The parties also informed the Court of a dispute regarding plaintiff's request to submit a new report dated October 26, 2016 from the Verde/Physalia experts ("Physalia 2"). The Court directed plaintiff to file motions for leave to substitute a new fisheries expert and for leave to submit the new Physalia 2 report. Dkt. No. 205. Plaintiff filed the two motions for leave on November 16, 2016. Dkt. Nos. 206-11, 217-18.
On November 26, 2016, plaintiff filed his reply brief in support of the class certification motion, along with exhibits totaling over 1,500 pages. Dkt. Nos. 213-16. Buried in the thousands of pages of exhibits are seven new expert reports: (1) a November 25, 2016 report by Physalia titled "Gbarabe v. Chevron; Scenarios for Fisheries Impacts, Dkt. No. 214-4 at 1-17; (2) a November 24, 2016 report by Lwandle Marine Environmental Services titled "KS Endeavour Gas Blowout Incident: Potential Effects on Artisanal Fisheries," Dkt. No. 214-4 at 18-31; (3) a report by Roy van Ballegooyen, WSP Coastal and Port Engineering, titled "Transport and Fate of Fine Sediments and Muds Released into the Marine Environment During the KS Endeavor Blowout Incident"), Dkt. No. 214-4 at 32-47; (4) a November 2016 report by plaintiff's proposed new fisheries expert, Professor Falaye, titled "Report on Effects of Funiwa Deep 1A Gas Blowout in Bayelsa State, Nigeria on Fish Diversity." Dkt. No. 214-4 at 48-95; (5) a November 25, 2016 report by Physalia titled "Review of, and Comments on, the Adams (Neal Adams Services) Document: An Evaluation and Assessment of the 2012 KS Endeavor Natural Gas Blow-out Incident" Dkt. No. 214-3; (6) a November 17, 2016 report by Physalia titled "Review of, and Comments on, the Deardorff, Deines and Palmquist (Exponent) Document" Dkt. No. 214-5; and (7) a declaration and supporting exhibit titled "Conceptual Document" by John Welches of Red Mallard, Inc., Dkt. No. 215-3 at 4-36, and a C.V. and declaration by Todd Hilsee (in a different case) regarding providing notice, Dkt. No. 215-4 to 215-5. Defendant has objected to this evidence on numerous grounds.
As discussed supra, at some point plaintiffs' counsel became aware that the claims of five named plaintiffs, and of most of the original class of 65,000, were untenable. What plaintiff and his counsel knew, and when they knew it, has been the subject of much discovery and some motion practice. At an August 24, 2016 hearing, Ms. Perry stated, "[i]t was in about [March/February 2015] that we first learned through Mr. Alagoa Morris that the likelihood of the full complement of the 60-odd-thousand people in all those 300-odd communities was more likely than not to be claims that could not be sustained. That was in about February 2015." Dkt. No. 173 at 24:3-7.
In response to defendant's discovery requests, plaintiff's counsel have admitted that they had no contacts with the six plaintiffs or the Nigerian lawyer Mr. Egbegi before filing this lawsuit. Dkt. No. 154-1 (Ex. 3 at 4-7); Dkt. No. 154-2 (Ex. 8 at 1; Ex. 9); Dkt. No. 173 at 11-14 (transcript of Aug. 24, 2016 hearing; counsel stating that they first had contact with six plaintiffs around May 2014). Plaintiff's counsel have stated that Mr. Ekhorutomwen, the Nigerian lawyer who practiced with a U.K. firm, purportedly assured them that Mr. Egbegi had done "full due diligence" in Nigeria. Dkt. No. 154-1 (Ex. 3 at 4, 5). According to counsel, "[i]t is not customary nor acceptable practice for a barrister to do due diligence on a fellow professional within the English system[.]" Id. at 4.
Unsatisfied with plaintiff's responses to discovery seeking the factual basis for the allegations of causation and injury to the named plaintiffs and the class in the various iterations of the complaint,
Dkt. No. 162 ¶¶ 8-9; see also Dkt. No. 186-3, Ex. 2 at 22:10-16 (transcript of Aug. 24, 2016 hearing wherein Ms. Perry stated that "[t]he first time we knew that the amounts [on Schedule A] had been doctored was when Mr. Gbarabe and the other 11 then, we hoped, named plaintiffs were asked to deal with the interrogatories. That's when we first found out. That was in June 2015. . . . It was in June we first knew that the figures were wrong."); Dkt. No. 186-1 (Gbarabe Dep. Vol. 1 at 111-16, testifying that all of the lost income figures on Schedule A were "exaggerated" and "doctored").
In 2016, plaintiff undertook a "re-signup" process to collect new claim forms from all putative class members in an effort to ensure that only genuine claims were included in the class. At the August 24, 2016 hearing, counsel described the "re-signup" process as follows:
Id. at 23:4-18.
Thus, as late as August 24, 2016 — well after plaintiff's motion for class certification was filed — plaintiff's counsel stated that they were still "trying to verify who has a genuine claim" and acknowledging that the "re-signup" process was flawed and that plaintiff's counsel would need to "continue to hone down the client list." Id. Indeed, as discussed in greater detail infra, discovery conducted by Chevron during the summer of 2016 shows that the "re-signup" process has been riddled with unreliability, as inter alia, new claim forms were submitted in the names of deceased persons; there are multiple inconsistent forms with matching names, but different income figures and signatures; and class members testified that the forms contain false and inaccurate information and that forms were submitted on behalf of individuals without their knowledge or consent using inaccurate information and fraudulent signatures or thumbprints.
Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Plaintiff bears the burden of showing that he has met each of the four requirements of Rule 23(a) and at least one subsection of Rule 23(b). Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1067 (9th Cir. 2014), citing Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001).
The Court's "class certification analysis must be rigorous and may entail some overlap with the merits of the plaintiff's underlying claim." Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S.Ct. 1184, 1194 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (internal quotation marks omitted)). These analytical principles govern both Rule 23(a) and 23(b). However, "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage." Amgen, 133 S.Ct. at 1194-95. "Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether Rule 23 prerequisites for class certification are satisfied." Id.
Under Rule 23(a), the class may be certified only if: (1) the class is so numerous that joinder of all members is impracticable, (2) questions of law or fact exist that are common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a). A plaintiff must also establish that one or more of the grounds for maintaining the suit are met under Rule 23(b): (1) that there is a risk of substantial prejudice from separate actions; (2) that declaratory or injunctive relief benefitting the class as a whole would be appropriate; or (3) that common questions of law or fact predominate and the class action is superior to other available methods of adjudication. See Fed. R. Civ. P. 23(b). In addition, the class must not be vaguely defined and must be "sufficiently definite to conform to Rule 23." Probe v. State Teachers' Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986); see also Briseno v. ConAgra Foods, 844 F.3d 1121, 1124 n.4 (9th Cir. 2017) (holding that party seeking class certification does not need to show it is "administratively feasible" to identify class member, and citing Probe for the proposition that Rule 23 does require class to be "sufficiently definite").
"If expert testimony critical to class certification is challenged, a district court must make a determination as to the admissibility and persuasiveness of that evidence before certifying a class." Grodzitsky v. Am. Honda Motor Co., No. 2:12-cv-01142-SVW-PLAx, 2014 WL 718431, at *6 (C.D. Cal. Feb. 18, 2014) (citing Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982-83 (9th Cir. 2011) (holding that the "district court correctly applied the evidentiary standard set forth in Daubert" to expert declarations at the class certification stage). Federal Rule of Evidence 702 permits expert testimony where "(a) a scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702. See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002) ("[Rule 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion.").
Before turning to the specific issues raised by the pending motions, the Court makes several preliminary and general observations. First, plaintiff's motion and reply briefs repeatedly make factual assertions without citation to any evidence in violation of Civil Local Rule 7-5(a).
Second, plaintiff has repeatedly shown a disregard for scheduling orders in this case. As the procedural history recounted supra shows, plaintiff was granted numerous extensions of the deadline to file the class certification motion and supporting evidence. Once briefing was finally underway, however, plaintiff repeatedly failed to provide the materials upon which his experts relied, resulting in further delay; sought to amend the class definition after Chevron filed its opposition, resulting in additional briefing; filed motions on the eve of the hearing seeking to add a new expert and to admit new expert reports, again resulting in further briefing; and filed a raft of new and undisclosed expert reports in connection with the reply brief. This case has been pending since January 2014, and plaintiff has been provided with more than ample time to conduct discovery and prepare the class certification motion. Both Judge Conti and this Court have been generous with regard to granting plaintiff extensions of time and affording plaintiff considerable leeway in presenting the class certification papers.
Third, citing a January 23, 2015 case management conference statement, plaintiff's motion for class certification incorrectly asserts that defendant has stipulated to liability for class certification purposes. Dkt. 123 at 3:12-15. In fact, that statement provides, "Defendants have advised that that they do not intend to dispute that there are questions of law and fact common to the proposed class, to wit the allegations concerning Defendant's role in the events leading up to the Incident and Chevron Corporation's relationship with CNL and other entities as set forth in the second amended complaint." Dkt. No. 63 at 7:12-16. Defendant also stated, "[d]efendants have further advised that they intend to dispute whether Plaintiffs have defined a proper class, whether the named Plaintiffs are typical or adequate representatives, whether causation of alleged damages and injuries and the presence or extent thereof are common to class members and predominate over common issues, whether a class action is superior, and whether Rule 23(b)(2) is satisfied." Id. at 7:16-18. Thus, all of the matters identified by defendant are contested in the pending motions.
In support of the class certification motion, plaintiff filed a report titled "Summary of Post Impact Studies and Findings on the Effect of January 2012 Chevron Gas Rig Explosion of the Atlantic Ocean," by Jasper Abowei, a biology professor at the Niger Delta University. Dkt. No. 125-3. In his report, Professor Abowei states that he conducted a field study from April to May 2012 "to establish the effects of the January, 16, 2016 [sic], Chevron gas plant blowout at the Atlantic Ocean on the started [sic] environmental parameters. A total of seven sampling stations were established: Foropa, Ekene, Ejetu, Kulama 1 and 2, fish town and Ikebiri fishing port." Id. at § 2.1. Professor Abowei's report summarizes four articles that he previously wrote about that 2012 study; Professor Abowei did not conduct any new research for the report in this case. Dkt. No. 186-1 at 54-55 (Abowei Dep. Vol. 1). Professor Abowei concludes in his report:
Id. at 15. Professor Abowei's report also asserts, inter alia,
Id. at 4 (emphases and punctuation in original).
Plaintiff's motion for class certification cited Professor Abowei's report as evidence of causation:
Dkt. No. 123 at 26-27. Thus, plaintiff relied on Professor Abowei's report to show that the rig explosion harmed the marine environment and "devastat[ed]" the fishing lifestyle and industry of the putative class.
On September 16, 2016, defendant filed a motion in limine to exclude Professor Abowei's report and testimony. Defendant contends that Abowei's report and related testimony are unreliable and inadmissible on numerous grounds, including inter alia (1) Professor Abowei altered some data in his report in order to support his conclusions,
On October 15, 2016 (the deadline for filing plaintiff's opposition to defendant's motion in limine), plaintiff withdrew Abowei as an expert. Dkt. No. 194 at 3. In a November 7, 2016 case management conference statement, plaintiff's counsel stated,
Dkt. No. 202 at 27:21-29:4. At the November 10, 2016 case management conference, the Court informed plaintiff that if he wished to retain a new expert in the place of Abowei, plaintiff must file a motion seeking leave of court. Dkt. No. 205.
On November 16, 2016, plaintiff filed a "motion in support of substitution of designated fisheries expert witness in place of Professor Jasper Abowei." Dkt. No. 207. That motion states that in response to defendant's motion in limine to exclude Professor Abowei's report and testimony, "the plaintiff voluntarily agreed, on a without prejudice basis, that Professor Abowei would be withdrawn as a witness," and that "[i]mportantly, the plaintiff did not concede that the report and testimony of Professor Abowei should be excluded." Id. at 4. Plaintiff asserts,
Id. at 10.
Plaintiff seeks to substitute Professor Eyiwunmi Falaye in place of Professor Abowei. Plaintiff asserts that a substitution would not be disruptive because "[t]he expert initially designated has been withdrawn and will take no further part. The material already presented by that expert has already been viewed and closely critiqued by the defendant to the extent required to form the basis of the defendant's in limine motion and therefore is unlikely to occupy any additional time in countering the material if it is in fact adopted in whole or in part by the substituted expert." Id. at 6-7. As noted supra, on November 26, 2016, plaintiff filed, without leave of court, a November 2016 report by Professor Falaye, titled "Report on Effects of Funiwa Deep 1A Gas Blowout in Bayelsa State, Nigeria on Fish Diversity." Dkt. No. 214-4 at 48-95. Professor Falaye's report was filed as "Physalia Exhibit G," an exhibit to Physalia's (unauthorized) November 25, 2016 report.
The Court has carefully reviewed Professor Abowei's report and all of the material filed by defendant in support of its motion in limine, and concludes that the report and any related testimony is inadmissible pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Federal Rule of Evidence 702, and Federal Rule of Civil Procedure 26. Among the myriad problems with Professor Abowei's report, there is no scientific data or analysis supporting the report's conclusions, and when asked at his deposition whether the rig explosion caused pollution, Professor Abowei could only say "maybe it did, maybe it didn't." This admission alone renders his causation opinion speculative and inadmissible. The Court is very troubled by the fact that Abowei apparently altered data to fit his theory and that he copied data from unrelated studies and passed that data off as relevant to the issues in this case. Because plaintiff has withdrawn Abowei, the Court finds it unnecessary to set forth an exhaustive list of all of the reasons why his report and testimony are inadmissible. However, defendant's motion in limine details the numerous, serious problems with the reliability of Professor Abowei's report and related testimony, and the Court finds it appropriate to GRANT defendant's motion for the reasons set forth by defendant. For these reasons, it would also not be appropriate for another expert to rely on Professor Abowei's flawed and speculative report.
The Court also concludes that plaintiff has not demonstrated good cause under Federal Rule of Civil Procedure 16(b)(4) to amend the scheduling order in this case in order to substitute in Dr. Falaye.
Plaintiff also claims that he exercised diligence in retaining Abowei, and that the issues uncovered by defendant came as a surprise to counsel. Plaintiff's counsel state they first learned of Abowei's lost data at his deposition. However, as defendant notes, under Rule 26(a)(2)(B)(ii), the "facts or data" considered by Abowei in forming his opinions were required to be produced as part of his report. At a minimum, plaintiff's counsel should have asked Abowei about his underlying facts and data prior to producing his report on April 8, 2016; the fact that they did not itself demonstrates a lack of due diligence. Moreover, when the underlying "facts or data" were not produced with Abowei's report on April 8, 2016, defendant asked for those materials on April 13, 2016. Dkt. No. 210, Ex. C. In a series of e-mails beginning June 14, 2016, plaintiff's counsel confirmed to defense counsel that Abowei's data was lost in the 2012 flood. Therefore it is inaccurate for counsel to state that they did not know this fact until the June 30-July 1 deposition. Id., Ex. D-E.
Further, even a cursory review of the report Abowei prepared for this case should have raised alarms. The report contains numerous typographical errors, including repeatedly listing the wrong date for the KS Endeavor explosion. See Dkt. No. 125-3 at 3, 6. The report contains sentences that do not make sense. See, e.g. id. at 9 ("The diagram was repeated six times along the fitted."), id. at 14 ("The fish species landed, their relative abundance and distribution were very low."). If counsel had reviewed the four articles Abowei summarized to create the report for this case, counsel should have noticed numerous red flags, including the fact that one article, mentioned supra, based its conclusions on samples from the "Degema" sampling station, which was not one of the stations in the Koluama area listed in the article (and the Degema sampling station related to an earlier study in a different part of Nigeria), Dkt. No. 125-9 at 145.
Plaintiff argues that there will be no prejudice to defendant if plaintiff is allowed to substitute in a new fisheries expert, while "if the motion is denied, it is plaintiff who may be deprived of the opportunity to present any expert evidence as to fisheries and marine ecology and thereby suffer prejudice, the most drastic of sanctions that result from a game-changing and outcome-determinative inflexibility." Dkt. No. 218 at 3-4. Contrary to plaintiff's assertions, the Court finds that allowing plaintiff to retain a new fisheries expert at this time would cause considerable prejudice to defendant and disruption to the schedule in this case. Allowing plaintiff to substitute in a new expert would also require permitting Chevron to (1) review Professor Falaye's report, (2) take Professor Falaye's deposition (likely in Nigeria), (3) designate a defense expert to prepare a responsive report, (4) file a Daubert motion if it wished, and (5) file supplemental briefing on class certification.
In support of the class certification motion, plaintiff filed a report titled "Socio-Economic Report on the Effects of the KS Endeavor Rig Explosion of [sic] the Coastal Communities of Bayelsa." Dkt. No. 125-1. The authors of the report are Professor Ebiegberi Alagoa, Professor Abi Derefaka, and Dr. Atei Okorobia, and they work for Onyoma Research in Port Harcourt, Nigeria. The three authors are historians, and Professor Derefaka is also an archaeologist.
The report contains four sections: (1) an introduction (Dkt. No. 125-1 at 24-25), (2) an explanation of the authors' methodology (id. at 27-36), (3) a "baseline documentation of the history, traditions and socioeconomic structure of the impacted coastal communities of Bayelsa State before the KS Endeavour rig explosion of January 16th 2012" (id. at 37-113), and (4) a discussion of the alleged "impact" of the explosion on the coastal communities. Id. at 114-47. The authors opine that the rig explosion caused "deafening noise pollution," "earth vibrations that shook" buildings like a "military invasion," "sea encroachment," "dust-cum-chemically saturated wind" causing "accelerated rusting," disappearance of sea life, cracks in buildings, an invasion of "strange sea-weeds" resulting in a decline in fish catch, "dwindl[ing] of the weaving and carving industries," "desecration of traditional religious beliefs, cultural values and institutions," the breakdown of family structures, difficulties for women to "enjoy sexual intimacy with their spouses," migration of people from coastal communities to surrounding areas, "medical/health challenges" such as anemia, hypertension, malaria and arthritis, "collapse in morals, family values and security," including "young women resort[ing] to prostitution" and "young men [taking] to piracy and militancy." Id. at 114, 116, 119, 122-24, 131-33, 136-37, 142-43.
The authors' findings are based on "field work" which consisted of their "unstructured interviews" of putative class members and reviewing the results of a written survey of class members. Id. at 31-36 (describing methodology). At their depositions, the authors testified that they did not conduct any scientific studies to determine whether there was a scientific basis for their findings regarding increased pollution, earth vibrations, a decline in fish catch or disappearance of marine life. Dkt. No. 186-2 (Okorobia Dep. at 281 ("we are not in a position to do that," referring to conducting scientific studies on noise pollution), id. at 34 (we are "not a natural scientist and a physical scientist" regarding how far the effects and noise of an explosion can be felt); Dkt. No. 186-1 (Derefaka Dep. at 44 (we "don't have scientific evidence to determine" percussive effects). Professor Alagoa testified that the authors did not consider taking samples of water, fish or anything else because "we expected that those scientific things should be left to specialists in those types of activity." Dkt. No. 186-1 (Alagoa Dep. at 125). Similarly, Professor Okorobia testified, when asked whether he measured any fish to support the finding of fish depreciation, "Those are things that those in the fishery science will do. Historians don't go measuring fish size and all that. We don't do that in our profession. We don't weigh things, we don't measure things." Dkt. No. 186-2 (Okorobia Dep. at 172). The authors also acknowledged that they are not experts in studying prostitution, (Dkt. No. 186-1, Alagoa Dep. at 14; Derefaka Dep. at 16), and when asked for the number of people who engaged in prostitution following the explosion, Alagoa responded, "It could be any number." Id., Alagoa Dep. at 90-91. Similarly, the authors admitted that they are not experts in studying militancy and could not cite any study that says the KS Endeavor incident caused an increase in militancy in the relevant communities. Dkt. No. 186-1 (Derefaka Dep. at 16); Dkt. No. 186-2 (Okorobia Dep. at 157).
Defendant has moved to exclude the Onyoma report as inadmissible under Federal Rule of Civil Procedure 26, Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Defendant contends that the report's findings are not based on any scientific study or expertise, and instead that the report is largely a compilation of second- and third-hand hearsay (the interviews of class members and responses to the written survey) offered for the truth of the matter asserted.
Defendant also argues that the written survey and its results are inadmissible. The survey was created by the Onyoma team and administered by Gbarabe and others acting as community representatives to 145 prospective class members. Citing the Onyoma authors' deposition testimony regarding their backgrounds and training, defendant argues that the Onyoma authors are not experts in designing surveys, and that the individuals who administered the surveys do not have any training or expertise in survey administration or interview techniques. Defendant also argues that the survey is filled with leading and suggestive questions, such as questions that assume the rig explosion caused particular kinds of damage (e.g., Question No. 82, "What kind of damage has your shrine or other cultural resource suffered as a result of the Chevron facility explosion in 2012?"), and questions that suggest a change in circumstances in 2012 (e.g., Question Nos. 19 and 20, asking respondents how much income they earned before and after 2012). Dkt. No. 186-20 (survey). Defendant also argues that the survey was not free of self-interest bias because, inter alia, the respondents knew that the survey was for litigation. See Dkt. No. 186-1 (N. Gbarabe Dep. Vol. 2 at 302-03) (testifying that when he gave putative class members the survey, he told them survey was for the case); (Baghebo Dep. at 88) (same); (Elemokumo Dep. at 38) (same); (J. Bruce Dep. at 76) (same). Defendant also argues that the survey is flawed because the Onyoma team did not supervise the survey process and no one verified the accuracy of responses. Chevron states that when it deposed 13 purported survey respondents in Nigeria, many testified either that they had not participated in the survey or that they had no memory of doing so. See Dkt. No. 186-2 (Igoli Dep. at 60-61); (Ipale Dep. at 181-82); (Kojo Dep. at 86-87); (B. Morris Dep. Vol. 1 at 157-59); (Ododo Dep. at 25-26, 94-95); (Toruyai Dep. Vol. 2 at 45-46). Others testified that they provided false information on the surveys. See Dkt. No. 186-2 (Tukuru Dep. at 205); Dkt. No. 186-1 (J. Bruce Dep. at 199-200). Defendant also notes that the Onyoma team included an "honesty question" in the survey, and that 117 of the 145 respondents failed the Onyoma team's test.
Defendant also argues that plaintiff failed to comply with Rule 26(a). Defendant notes that the report is not signed, does not include a statement of compensation, and does not identify the cases in which the authors testified in the past four years. The report also does not specify what is intended as an opinion rather than a factual statement, and does not state "the basis and reasons" for any opinions.
In response, plaintiff concedes that the report is not "Daubert-compliant on any scientific issue regarding the rig explosion itself or the consequent extent of environment[al] damage." Dkt. No. 194 at 5. Plaintiff states that he "is not relying on any opinion in the report as to the causal link between the rig explosion and its impact on the economic, social and cultural life of the affected communities." Id. at 10. Plaintiff also appears to concede that the report does not comply with Rule 26, but asserts that these issues are "not prejudicial, administrative, and easily remedied without impacting upon any substantive issues." Id. at 3. Plaintiff does not specifically respond to any of defendant's arguments regarding channeling of hearsay or the infirmities of the written survey, or the authors' lack of scientific, technical or other specialized knowledge regarding the subjects in the report.
Notwithstanding these concessions by plaintiff regarding the inadmissibility of the report's findings and the failure to comply with Rule 26, plaintiff asserts that the report is admissible for the purpose of "provid[ing] the historical and societal framework upon which plaintiff's argument that damages are capable of proof on a class wide basis is consequently constructed." Id. at 5. Plaintiff asserts that "the fundamental reason for the Onyoma report's submission is to provide a historical perspective and societal background information not otherwise generally known to the average American layman about the coastal area of Bayelsa State and the communities closest to the site of the ill-fated exploratory Chevron gas rig." Id. at 6.
There are a number of problems with plaintiff's assertions. First, as defendant notes, plaintiff's motion for class certification clearly did rely on the Onyoma report to prove class-wide impact. After describing the "field report findings" as "detailed, first-hand and deeply sourced," plaintiff's motion for class certification contained the following block quote from the Onyoma report:
Dkt. No. 123 at 25-26 (quoting Dkt. No. 125-1 at 12-13) (emphasis in motion and report). Thus, it is disingenuous and inaccurate for plaintiff to assert that he "is not relying on any opinion in the report as to the causal link between the rig explosion and its impact on the economic, social and cultural life of the affected communities." Dkt. No. 194 at 10.
Second, plaintiff asserts — without any explanation — that the report's historical and societal background section (Chapter 3) shows that damages are capable of proof on a class-wide basis. Plaintiff asserts,
Dkt. No. 194 at 8:11-27 (emphasis in original). As an initial matter, it is not clear how the various factors identified by plaintiff, such as the "historical dominance of the fishing industry to the virtual exclusion of other sources of income," would demonstrate that damages can be proven on a class-wide basis.
Moreover, the report does not state that the coastal communities rely on the fishing industry "to the virtual exclusion of other sources of income." The report states that "fishing, saltmaking and trading [are] the three dominant occupations of the Bayelsa Coastal Communities. Other subsidiary vocations were subsistent farming, canoe-carving and other local crafts." Dkt. No. 125-1 at 77. Defendant also notes that during the depositions, putative class members testified that they were teachers, accountants, civil servants, and pastors, and some class members testified that they had other sources of income such as disability payments or payments from a government amnesty program for former militants. See Dkt. No. 201-1, Ex. 2 (deposition testimony). Similarly, contrary to plaintiff's assertion, the report does not show that fishing catch is uniform throughout the region due to the "timeless ways of fishing that generally employ small boats made from natural materials" and the "use of nets cast by hand." Dkt. No. 194 at 8. Instead, the report states that "as many as 31% [of fishermen] use semi-industrial vessels." Dkt. No. 125-1 at 10. Further, defendant has submitted evidence showing that class members used different types of fishing equipment, and that the claim forms that plaintiff produced to defendant in this case show a wide range of claimed fishing income both before and after the rig explosion. See Dkt. No. 201-1, Ex. 2 (deposition testimony); Dkt. No 201-1 ¶ 4. Simply asserting that over 70 pages of a report is relevant to proving class damages does not, without more, make it so.
The Court accordingly GRANTS defendant's motion in limine as to the Onyoma Research Report.
In support of the class certification motion, plaintiff also filed a set of reports by the Verde/Physalia group, which include a chemical analysis by Jones Environmental Laboratory Ltd. (collectively the "Physalia 1" report), Dkt. No. 124-1 to 124-11. On November 16, 2016, plaintiff filed a motion for leave to file the "Physalia 2" report, which is dated October 26, 2016.
Physalia 1 states that plaintiff's experts visited the well site in January 2016 and completed their planned mapping and sampling between January 26 and February 3, 2016. Dkt. No. 124-1 at § 3.0. The scientists mapped the seabed around the well site and collected 48 sediment samples from the seabed in an area radiating 2.7 km from the KS Endeavor rig site (the "near-field" samples). Dkt. No. 124-2 at 1. Plaintiff also obtained samples from 26 other sites outside the near-field, ranging up to 12 km from the KS Endeavor rig (the "far field" samples). Id. at 11. The Physalia 1 report contains a "benthic" analysis of microscopic sediment-dwelling animals in the 48 near-field samples. The experts did not conduct a benthic analysis of the 26 "far field" samples. The Physalia 1 report includes a chemical analysis of sediment samples taken from both the near-field and the far field sampling sites. Id. at 1-2 and Dkt. No. 124-9 to 124-11.
Physalia 1 concludes that a crater exists in the seabed and that there may be fewer small organisms (known as benthic meiofauna and macrofauna) in the sediment in the immediate area around the well site than in areas farther away. Dkt. No. 124-2. Plaintiff's class certification motion cites the Physalia 1 report for the assertion that "the displacement and re-distribution of materials that emanated from the KS Endeavor crater during and following the blow-out incident resulted in long-term, persistent impacts on the surrounding marine habitats." Dkt. No. 123 at 24:2-4 (quoting Dkt. No. 124-2 at 31). Plaintiff also cites the Physalia 1 report as proof that "gas leakage at the rig site has never ceased since the January 2012 blowout." Dkt. No. 123 at 24-25. Plaintiff's motion for class certification did not cite or discuss the chemical analysis performed by Jones Environmental Laboratory Ltd.
Defendant's opposition to plaintiff's motion for class certification argues that Physalia 1 does not provide any scientific evidence of causation. Defendant has submitted deposition testimony of the Physalia 1 authors (taken on May 3-5, 2016), in which they state that the opinions in Physalia 1 focused only on benthic fauna in the small area near the well site, and that they were not opining that any impact on fish or humans occurred. Dr. Marcus Trett, the Scientific Director of Physalia, was specifically asked about the conclusion in the report that "the crater during and following the blowout incident resulted in long-term, persistent impacts on the surrounding marine habitat":
Dkt. No. 186-2 (Trett Dep. Vol. 2 at 197-198:9). Dr. Trett also stated that it is impossible to detect any impact on fish from a loss of benthic fauna:
Id. at 198-99. Dr. Trett also testified that Physalia 1 "did not offer any opinion on" "dead or diseased fish," "dead or diseased livestock," "contaminated water," "contaminated soil," "contaminated air," "a general health breakdown in the community," whether there was a "methane release at the time of the KS Endeavor release," whether "any wells containing drinking water were impacted by the KS Endeavor incident," whether "any kind of pollutant was carried inland by the tides and the creeks and soil," "illness and sickness in the community," "the impact on farming of food products," or whether "any economic damages exist to plaintiffs." Dkt. No. 186-2 (Trett Dep. Vol. 1 at 109-10); see also Dkt. No. 186-1 (Calvo Dep. at 8 (Physalia 1 did not offer an opinion on impact of KS Endeavor on fish)).
The Physalia experts also testified that while it was their opinion that the low diversity of benthic fauna at the well site was due to the rig explosion, the scientists did not have any data on the baseline or background conditions. Dkt. No. 186-2 (Trett Dep. Vol. 1 at 50-51); Dkt. No. 186-1 (Forster Dep. at 48-50; Calvo Dep. at 10). Dr. Forster (Senior Ecologist) testified that the "far field" samples "should give you an idea of the background conditions" and that until the far field samples were tested, "we can't state, without undertaking [the testing of the far field samples], whether [the near field samples] can be considered background conditions or whether they're as a result of the proximity of the incident." Dkt. No. 186-1 (Forster Dep. at 48-50). Dr. Forster was asked, "But you didn't do the work here because of the timing?" To which he answered "No, we've got the samples but we didn't analyze them, no." Id. at 49; see also Trett Dep. at 50-51 (testifying that "the far field would be of considerable interest to be able to tie that down and put the other sediments into context so we could adjust our hypotheses, because we have to generate these as we look and try and describe things, to see what it is that's driving the — driving the community structures.").
On November 16, 2016, plaintiff filed a "motion for an order admitting into evidence the Verde/Physalia far field sediment sample analyses for consideration as part of class certification hearing." Dkt. No. 206. The report that plaintiff wishes to have admitted into evidence is dated October 26, 2016, and titled "The KS Endeavor Blowout Incident Residual Marine Benthic Impact Assessment; Final Report; Near & Far Field Survey Results." Dkt. No. 210-1, Ex. I.
Plaintiff's argument about why he should be permitted to rely on the October 26, 2016 Physalia report essentially amounts to the following: the report is important and plaintiff needs it to prove causation; there "wasn't enough time" to analyze the far field samples prior to filing the class certification motion; there is no harm to defendant because the far field samples were split and provided to defendant when they were collected in January-February 2016, and thus defendant has had the opportunity to conduct its own analysis of those samples;
Defendant objects to plaintiff's motion on numerous grounds. As an initial matter, defendant notes that plaintiff has mischaracterized Physalia 2 as being limited to a "benthic" analysis of the 26 "far field" sediment samples. In fact, Physalia 2 also reworks the chemical analysis of all of the samples, and the report introduces new evidence about the "prevailing direction of the water current" and normalizing samples using aluminum as a proxy. See, e.g., Dkt. No. 210-1, Ex. I at 31.
Plaintiff does not dispute that the October 26, 2016 report contains new chemical analysis. Instead, plaintiff's reply brief in support of the motion to admit the Physalia 2 report states,
Dkt. No. 217 at 6:1-2. Thus, plaintiff's explanation of why Physalia 2 contains new chemical analysis is to cite the November 2016 fisheries report by plaintiff's proposed new fisheries expert, Dr. Falaye (that was filed in connection with plaintiff's reply papers), and to Physalia 2 itself. This is a circular and wholly inadequate explanation for the inclusion of new chemical analysis in Physalia 2. The Court also finds that by omitting the fact that the new report contains new chemical analysis, plaintiff's "motion for an order admitting into evidence the Verde/Physalia far field sediment sample analyses for consideration as part of class certification hearing" does not accurately represent the scope of the newly supplied report.
Defendant also argues that plaintiff has not demonstrated any good cause to supplement the record well after the deadlines set by the Court for expert evidence relevant to class certification. In addition, at the December 9, 2016 hearing, defendant informed the Court that despite numerous requests, plaintiff had still not provided to defendant the facts and data upon which the October 26, 2016 Physalia 2 report relied.
The Court concludes that plaintiff has failed to demonstrate any good cause to modify the scheduling order and permit the filing of this late report. As noted supra, since March 18, 2015, the scheduling order (Dkt. No. 76) has required plaintiff to disclose all expert opinions, including supplemental opinions, no later than the deadline for filing the class certification motion. At a minimum, if plaintiff knew that his experts would not be able to perform the "benthic" analysis on the far field samples by April 8, 2016, plaintiff should have filed a motion for leave to file a supplemental expert report no later than April 8, 2016. Instead, plaintiff waited until November 16, 2016, to file that motion, well after defendant had taken the depositions of the Physalia experts and after defendant filed its opposition papers. At the December 9, 2016 hearing, in response to questioning by the Court about why plaintiff's counsel waited so long to have the far field analysis done, plaintiff's counsel stated,
Dkt. No. 239 at 9:7-11 (transcript of Dec. 9, 2016 hearing). Deciding to "wait to see what was going to be set out in the May depositions with the scientists," and then waiting another five months after that to file a motion seeking leave to file a late expert report flies in the face of any claim that plaintiff has acted diligently or that there is good cause.
The Court also finds that the record does not support counsel's claim that they did not have sufficient time to conduct the analysis contained in Physalia 2 prior to the class certification deadline. As detailed supra, on December 4, 2015, plaintiff's counsel requested from this Court an additional three month extension of the class certification filing deadline, because, counsel reported, the UK laboratories would be closed for two weeks between Christmas and New Year's. Dkt. No. 114. Plaintiff's counsel stated at that time that they intended the December 2015 trip to be limited to mapping the seabed, and that the experts would return in January 2016 to collect the water and sediment samples. Defendant has submitted deposition testimony of Mr. Cleary (Verde), in which he testified that Messrs. Forster and Trett of Physalia, who were the individuals who conducted the sampling, did not get their visas to travel to Nigeria until January 2016. Dkt. No. 227 (Cleary Dep. at 133:2-18). The record before the Court, consisting of emails between the Verde/Physalia scientists, as well as the deposition testimony of Cleary, Forster and Trett, shows that by early December 2015, plaintiff and his experts had decided that the December 2015 trip would be limited to mapping the seabed, not only due to the "scientific imperatives" and the holiday closures of the UK laboratories, Dkt. No. 115 at 10:9-10, but also due to the fact that the scientists would who be conducting the sediment sampling did not have their visas to travel to Nigeria until January 2016. See generally Dkt. 142.
Plaintiff's other arguments about the Physalia 2 report are equally lacking in merit. The fact that defendant was provided with the far field samples when they were taken is entirely irrelevant to the issue of whether plaintiff should be permitted to file a brand new report containing new expert analysis months after the class certification filing deadline and after defendant has filed its opposition. Similarly, the fact that defendant pointed out the various limitations of Physalia 1 in the opposition to the class certification motion does not "open the door" to allow plaintiff to submit new, late expert evidence. Finally, for all of the same reasons that the Court denied plaintiff's request to substitute a new fisheries expert, the Court finds that allowing plaintiff to file a late report containing new analysis is prejudicial to defendant. See Tele Atlas N.V. v. NAVTEQ Corp., No. C-05-01673 RMW, 2008 WL 4809441, at *1-4 (N.D. Cal. Oct. 28, 2008) (denying Tele Atlas' request for leave to file an additional expert report where Tele Atlas "realized it had failed to produce evidence on a variety of topics"; holding Tele Atlas failed to act diligently and "NAVTEQ will also be substantially prejudiced if Tele Atlas is permitted to supplement the record after expert discovery has closed in response to NAVTEQ's motions for summary judgment.").
In support of the class certification motion, plaintiff filed declarations from nine class members (named plaintiff Natto Iyela Gbarabe; class members Beatrice Ezekiel, Benjamin Ayibatonye, Cornelius Olumofa, Daniel Awe, Ebiwei Baghebo, Festus Ileberi, Iyadima Duoduo, Peter Agu). Chevron objects on the grounds of hearsay, lack of authentication, and lack of personal knowledge to the class member declarations, particularly to the portions of the declarations offering scientific and medical opinions and referring to matters they did not personally observe. For example, Chevron objects to Mr. Gbarabe's statements "A medical monitoring team was sent by the Bayelsa State Government to visit and report upon the communities. However, none of the communities had or were given access to medical treatment and traditional remedies were used throughout the area, using local plants and known natural curatives," and "It will be noted that prospective class members sustained exact or similar reactions to the onslaught of chemicals that assailed the air both from the explosion and fire storm that raged for 46 days. Thus I and thousands of community members were affected by this discharge of chemicals which cause breathing difficulties, skin problems as referred to above as well as the gastrointestinal problems that beset so many by eating affected fish and drinking polluted water." Dkt. No. 126-2, ¶¶ 7, 22.
The Court finds that the class member declarations submitted by plaintiffs contain numerous statements based on hearsay and which lack authentication and personal knowledge. See, e.g., Dkt. No. 126-4 ¶ 19 ("The communities of Sangana, Konho Akassa, Minibie, Otuo, Itohoni-Ama, Liama, Igweama, Igbabeleu, Buo-Ama were badly affected by the pollutants emanating from the explosion and burn through the air and in the sea and waters of the coast. Stomach complaints; eye complaints; skin complaints; breathing problems, as well as severe shock and psychological distress, were common throughout my communities."). The Court sustains Chevron's objections, and finds that Gbarabe and the class members may only testify about matters for which they have personal knowledge.
On November 26, 2016, plaintiff filed his reply brief in support of the class certification motion, along with exhibits totaling over 1,500 pages. Dkt. Nos. 213-16. The voluminous exhibits contain seven new expert reports: (1) a November 25, 2016 report by Physalia titled "Gbarabe v. Chevron; Scenarios for Fisheries Impacts, Dkt. No. 214-4 at 1-17; (2) a November 24, 2016 report by Lwandle Marine Environmental Services titled "KS Endeavour Gas Blowout Incident: Potential Effects on Artisanal Fisheries," Dkt. No. 214-4 at 18-31; (3) a report by Roy van Ballegooyen, WSP Coastal and Port Engineering, titled "Transport and Fate of Fine Sediments and Muds Released into the Marine Environment During the KS Endeavor Blowout Incident"), Dkt. No. 214-4 at 32-47; (4) a November 25, 2016 report by Physalia titled "Review of, and Comments on, the Adams (Neal Adams Services) Document: An Evaluation and Assessment of the 2012 KS Endeavor Natural Gas Blow-out Incident" Dkt. No. 214-3; (5) a November 17, 2016 report by Physalia titled "Review of, and Comments on, the Deardorff, Deines and Palmquist (Exponent) Document" Dkt. No. 214-5; (6) a declaration and supporting exhibit titled "Conceptual Document" by John Welches of Red Mallard, Inc., Dkt. No. 215-3 at 4-36, and a C.V. and declaration by Todd Hilsee (in a different case) regarding providing notice, Dkt. No. 215-4 to 215-5; and (7) the November 2016 report by plaintiff's proposed new fisheries expert, Professor Falaye, Dkt. No. 214-4 at 48-95, which the Court has excluded supra. In addition to these reports, plaintiff has filed, inter alia, press articles (Dkt. No. 213-2) and documents recently produced by Chevron (Dkt. No. 214, Ex. K).
Defendant has objected to this evidence on numerous grounds. As defendant notes, "[p]laintiff simply loaded these reports into the record, without citing them by page or line in its reply brief. The brief refers to six as `Physalia rebuttal reports' (and purports to incorporate all six by reference in a mass citation to Ex. L (ECF 212, 5:16-18)), without disclosing that three separate, unauthorized reports by different purported experts are buried as `exhibits' and an appendix to Physalia reports [the Lwandle, van Ballegooyen, and Falaye reports]." Dkt. No. 220 at 1:3-8. In addition, many of the exhibits are unaccompanied by a declaration in violation of Civil Local Rule 7-5(a).
Defendant objects that none of the reports, even those that purport to be rebuttal, are true rebuttal reports. Defendant argues that plaintiff has not identified any new unforeseen facts offered by defendant's experts or otherwise demonstrated that the reply materials could not have been submitted with the class certification motion. Defendant also argues that the new reports violate the scheduling order, that the submission of new materials with the reply will prejudice defendant, and that the reports are replete with speculation regarding potential impacts, assumptions, and what "can happen."
The Court SUSTAINS defendant's objections to all of the new reports (and exhibits thereto) filed by plaintiff in connection with the reply brief. The Court agrees with defendant that the new reports are not true rebuttal reports, and that plaintiff is simply attempting yet again to submit new expert evidence long after the deadlines that the Court set for the filing of such expert evidence. Plaintiff claims that the new reports are prompted in part by a recent document production by Chevron (filed by plaintiff as Dkt. No. 214, Ex. K), which plaintiff claims provides new baseline information. However, as defendant notes in its objection, plaintiff's reply does not explain how this document provides new baseline information and plaintiff does not cite any specific pages in this document (nor does plaintiff cite any specific pages of any of the new expert reports which purportedly analyze Exhibit K). Further, Exhibit K was produced by defendant in response to a September 22, 2016 document request by plaintiff. See Dkt. No. 212 at 5:9-16 (stating that Exhibit K was produced in response to a document request at Dkt. 204-1); Dkt. No. 204-1 (plaintiff's request for production of documents dated September 22, 2016). Thus, plaintiff did not even request this document until well after the deadline for filing the class certification motion and accompanying expert evidence. The Court also SUSTAINS defendant's objections to the press articles as hearsay, and Exhibit K as improper rebuttal evidence. The Court will permit the filing of the deposition testimony attached to Mr. Carr's declaration.
To the extent that plaintiff has objected to the expert declarations filed by defendant,
Plaintiff's motion for class certification, filed on April 8, 2016, proposed to certify the class as it was framed in the FAC. During the course of briefing the class certification motion, however, plaintiff sought to further revise the proposed class definition. In an August 8, 2016 case management conference statement, plaintiff's counsel stated,
Dkt. No. 163 at 10:19-28.
Plaintiff's new class definition, served on Chevron on October 7, 2016, several weeks after Chevron filed its opposition, proposes the following class:
Dkt. No. 200-1. Plaintiff does not state how many people are included in the proposed amended class (although defendant states that approximately 5,630 people have filed claims as part of the "re-signup" process, which was undertaken prior to the proposed amendment of the class definition). Dkt. No. 189 at 13; Dkt. No. 200-2 ¶ 2.
According to defendant, the principal differences between the proposed class definition and the previous class definition are: (1) the previous class was limited to residents of the listed coastal areas, whereas the new definition expands the class to include non-residents whose "customary fishing grounds" as of the date of the KS Endeavor incident were within the proposed "geographic zone"; (2) the previous definition covered 90 miles of the Bayelsa State coastline, while the new definition covers about 75 miles of that coastline, dropping on the western side a portion of the coastline in the Ekeremor LGA and, on the eastern side, a portion of the Brass LGA and all of the Nembe LGA; (3) the previous definition listed 26 communities in which "known Class Members" were located, while the new definition includes only 17 of those communities (and related "fishing camps") and limits the proposed resident class to those communities; and (4) the new definition expressly refers for the first time to adverse "health" effects, and drops the express reference in the previous definition to "farming." The nine excluded communities are two inland communities (Ikebiri 1 and 2), three communities near the western edge of the proposed "geographic zone" (Bessengbene, Letugbene, Bilabiri), and four communities outside the eastern edge (Twon, Ewoama, Okpoma, and Odioama).
There are numerous problems with plaintiff's proposed amended class. First and foremost, plaintiff has not submitted any evidence showing that the proposed geographic area covered by the amended class definition corresponds to an area of actual harm. As discussed in the previous sections, plaintiff has not submitted any scientific evidence showing that the rig explosion impacted fish or humans, or that there is a geographic "zone of contamination." Without any such evidence of causation, plaintiff's amended class definition is arbitrary and untethered to any evidence of harm. See Kemblesville HHMO Ctr., LLC v. Landhope Realty Co., Civ. A. No. 08-2405, 2011 WL 3240779, at *6 (E.D. Pa. July 28, 2011) (finding class definition improper because it was "arbitrary and not reasonably related to evidence of record concerning MTBE contamination"); Brockman v. Barton Brands, Ltd., No. 3:06CV-332-H, 2007 WL 4162920, at *4 (W.D. Ky. Nov. 21, 2007) (denying class certification and finding the plaintiffs "offer no evidence whatsoever that the airborne contaminants spread in a uniform fashion in all directions . . . for a distance of up to two miles, or that the contaminants complained of by proposed class members bear a relationship to Defendant"); Duffin v. Exelon Corp., No. CIV A 06 C 1382, 2007 WL 845336, at *4 (N.D. Ill. Mar. 19, 2007) (denying class certification because "[t]here is simply no correlation between plaintiffs' evidence concerning the location of contaminated air and groundwater, and the `arbitrarily drawn lines on a map' constituting plaintiffs' proposed class"); Second, the issues identified by plaintiff as giving rise to the need to amend the class definition are not cured by the amended class definition. Plaintiff's counsel stated in the August 8, 2016 case management conference statement that that they wished to amend the class definition to exclude individuals who filed claims for the Shell Bonga oil spill. In an e-mail dated October 21, 2016, plaintiff's counsel informed defense counsel that one of the reasons for dropping the Odioama community was "the documented onshore damage from the AGIP oil spill and the Bonga spill." Dkt. No. 200-3.
Although the amended proposed class includes individuals who have submitted claims for the Shell Bonga oil spill, plaintiff has made no effort to exclude the Bonga oil spill (or other sources of pollution, such as illegal oil bunkering and refining operations) as a possible cause of the injuries claimed by plaintiff and the putative class. None of the expert reports mention the Bonga oil spill, let alone exclude it as a possible cause of the claimed damage. The Bonga oil spill occurred less than a month before the KS Endeavor rig explosion, and purportedly affected the same geographic areas at issue in this case — as evidenced by the fact that the named plaintiff and thousands of class members have submitted claims for the Bonga oil spill, and yet plaintiff has not attempted to either exclude the Bonga oil spill claimants from the proposed class or show through any scientific evidence that the Bonga oil spill is not the cause of the claimed injuries in this case. Cf. Clausen v. M/V New Carissa, 339 F.3d 1049 (9th Cir. 2003) (addressing expert testimony regarding causation and reliability of expert's opinions excluding other possible causes in case involving destruction of oyster beds which allegedly occurred as a result of an oil spill).
In the August 8, 2016 case management conference statement, plaintiff also stated that the community of Bilabiri would be excluded because no claim forms were submitted by members of that community. Dkt. No. 163 at 10. However, defendant states that no residents of Igbabaleu submitted claim forms, and yet Igbabaleu is still included in the amended class definition. Dkt. No. 200-2 ¶¶ 2-3.
Further, plaintiff stated that the need to amend the class definition was prompted by the "testimony elicited in the recent depositions in Nigeria." Although plaintiff does not specify what he means by that statement, defendant has submitted deposition testimony from 36 proposed class members whose depositions were taken in June and July, 2016. This deposition testimony reveals the following: (1) claim forms were submitted on behalf of individuals without their knowledge or consent using inaccurate information and forged signatures or fraudulent thumbprints
Dkt. No. 186 ¶ 33. Plaintiff has not disputed this statement. Although the amended class definition drops some communities where the claims of damage were highly questionable,
Finally, the class definition uses vague terms like "articulable damage," "diminution to said activities," "neighboring fishing camps related to said communities," "customary fishing grounds," and "verifiable claim" without defining them. This ambiguous language prevents an objective determination of class membership. For example, what are the "neighboring fishing camps"? How would it be determined if a non-resident's "customary fishing grounds" were within the defined geographic zone?
A named plaintiff bears the burden of demonstrating that the class meets the following four requirements of Rule 23(a): (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a); see Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.), opinion amended on denial of reh'g, 273 F.3d 1266 (9th Cir. 2001). Defendant contends that plaintiff has not demonstrated typicality or adequacy.
Defendant argues that named plaintiff Gbarabe is not typical because he alleges that he suffered only a few of the many injuries that are claimed by the class. Defendant also argues plaintiff is atypical because he is subject to an individual standing defense due to a power of attorney that he gave for his fishing cooperative.
Plaintiff responds that a named plaintiff's claims need only be "reasonably co-extensive with those of the absent class members; they need not be identical." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). At the hearing, plaintiff's counsel also stated that the putative class is no longer seeking relief for property damage or "special" medical injuries, only "a general health impairment that took place in the first couple of weeks after the incident." Dkt. No. 239 at 15-16 (transcript of Decl. 9, 2016 hearing). While it is still unclear precisely what medical injuries are currently being alleged by the putative class, the Court agrees that named plaintiff Gbarabe need not allege all of the same injuries as the absent class members in order to be typical.
However, "a named plaintiff's motion for class certification should not be granted if there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it." Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks and citation omitted). Defendant argues that Gbarabe is atypical because he needs to overcome a threshold standing issue that is not applicable to anyone other than the members of his fishing cooperative. Defendant has submitted evidence showing that in April 2012, Gbarabe, through his fishing cooperative, granted an irrevocable power of attorney to Chief Hudson Ebiowei to, inter alia, "[e]valuate and assess the damages done to our Deep Sea, Rivers, Creeks and other economic activities as a result of Gas Fire and Pollution at Koluama, Southern Ijaw Bayelsa State of Nigeria; on the 16th of January, 2012" and "[t]o immediately demand and/or take all necessary steps including legal action to ensure prompt and adequate payment of the total damages covered by the dangerous Gas Fire of Chevron Nig. Pic. at Koluama, Bayelsa State." Dkt. No. 186-29 (Power of Attorney). The Power of Attorney is signed by Gbarabe (and other members of the fishing cooperative), and he is listed as the Chairman of the cooperative. Id. Defendant has also submitted a copy of a claim submitted by Chief Hudson Ebiowei to Chevron on behalf of Gbarabe's fishing cooperative (as well as on behalf of numerous other fishing cooperatives), as well as a copy of the cooperative's bylaws which state that the cooperative is intended to promote the economic interests of its members and to, inter alia, market fish on behalf of its members. Dkt. No. 186-34 (claim); Dkt. No. 186-13 (bylaws).
Plaintiff does not specifically respond to defendant's argument regarding standing. Plaintiff's reply brief states, "In terms of standing, it matters not how plaintiff's fishing losses arose; the evidence is clear they, just like all other prospective class members, stem from fishing losses that the existing evidence also suggests strongly are a direct result of the environmental damage inflicted on the marine environment by Chevron's rig blowout." Dkt. No. 212 at 10:16-19. However, this assertion does not respond to the specific challenge raised by defendant, namely whether Gbarabe has standing to seek relief for damage to his fishing livelihood in light of the fact that he signed the power of attorney on behalf of his fishing cooperative. Based on plaintiff's failure to respond to this issue, the Court cannot make an evaluation of whether this standing question is unique to Gbarabe or shared by some or many of the putative class, nor can the Court determine whether a challenge to Gbarabe's standing would be successful. The Court does note, however, that defendant has raised a non-trivial challenge to Gbarabe's typicality to which plaintiff has provided no response. However, because the Court finds that Gbarabe is not adequate, the Court need not determine whether he is typical.
Defendant contends that plaintiff Gbarabe is not adequate for the same reasons he is not typical, and also because his sworn testimony and verified discovery responses have been evasive and contradictory, raising serious questions about his credibility. Defendant has submitted the following evidence regarding Gbarabe's testimony and discovery responses:
Plaintiff's reply accuses defendant of indulging in a "sideshow" regarding Gbarabe's credibility. Dkt. No. 212 at 11:8. Plaintiff asserts,
Id. at 11:9-16. Plaintiff does not address any of the other inconsistencies in his testimony or discovery responses, including the conflicting statements that plaintiff provided in March and July of 2016 regarding his pre-incident fishing income.
The Court finds that defendant has raised significant, unanswered questions about Gbarabe's credibility that render him an inadequate named plaintiff. "The honesty and credibility of a class representative is a relevant consideration when performing the adequacy inquiry because an untrustworthy plaintiff could reduce the likelihood of prevailing on the class claims." Harris v. Vector Mktg. Corp., 753 F.Supp.2d 996, 1015 (N.D. Cal. 2010). "[I]ssues relating to credibility do not automatically result in inadequacy of a class representative; rather, lack of credibility renders a class representative inadequate only where the representative's credibility is questioned on issues directly relevant to the litigation or there are confirmed examples of dishonesty, such as a criminal conviction for fraud." Senne v. Kansas City Royals Baseball Corp., 315 F.R.D. 523, 570 (N.D. Cal. 2016) (internal quotation marks and citation omitted). Here, Gbarabe's credibility has been seriously questioned on numerous issues directly relevant to this case, including his pre-incident fishing income, the allegations in the complaint about his injuries, and whether he was a member of a fishing cooperative. While a named plaintiff's credibility issues would be of concern in any class action, they are particularly important in a case such as this where there is no documentation of income, residence, or medical records, and thus the testimony of the named plaintiff is essential. Plaintiff's response that the Court should take note of Gbarabe's honesty because he admitted that he signed an affidavit containing numerous false statements does not provide the Court with any degree of confidence that Gbarabe can adequately represent the class. For all of these reasons, the Court concludes that plaintiff Gbarabe is not an adequate class representative.
The Court also concludes that plaintiff's counsel have not demonstrated that they can adequately represent the proposed class in this complex case. Throughout the history of this matter, and specifically the litigation of the class certification motion, plaintiff's counsel have demonstrated a complete disregard for scheduling orders, evidenced a lack of familiarity with or understanding of the Federal Rules of Civil Procedure and the Civil Local Rules, and failed to diligently prosecute this case. Despite being on notice since March 2015 that plaintiff would be required to submit evidence of causation for class certification, and after being given numerous extensions of time to prepare the class certification motion, plaintiff's class certification motion fell woefully short of meeting his evidentiary burden. The expert reports by Professor Abowei and the Onyoma group were deficient on myriad levels, which plaintiff ultimately and belatedly conceded. The expert reports of the Verde/Physalia group — both timely and untimely — did not evaluate the impact of the explosion on fish or humans. Plaintiff repeatedly failed to produce to defendant the underlying data that his experts used, and remarkably even as of the date of the class certification hearing, plaintiff had not provided defendant with the data underlying the Physalia 2 report. The class member evidence is riddled with falsity and unreliability, including the evidence gathered after the "re-sign up" process that was intended to weed out the "bad apples" and ensure that only genuine claims were included in this case.
In short, the entire manner in which plaintiff's counsel have litigated this action leads the Court to conclude that they should not be appointed as class counsel. See Gomez v. St. Vincent Health, Inc., 649 F.3d 583, 592-93 (7th Cir. 2011) (affirming district court's denial of class certification where court found, inter alia, that counsel was not diligent, failed to develop a full record for summary judgment consideration, and demonstrated lack of respect for judicial resources); Wrighten v. Metropolitan Hosp., Inc., 726 F.2d 1346, 1351-52 (9th Cir. 1984) (affirming denial of class certification on adequacy grounds where counsel filed late class certification motion, counsel had difficulty furnishing evidence of discrimination experienced by class, failed to comply with federal and local rules, and engaged in improper and disruptive behavior in discovery); Sweet v. Pfizer, 232 F.R.D. 360, 370-71 (C.D. Cal. 2005) (finding counsel inadequate for numerous reasons, including failure to comply with federal rules, failure to submit trial plan, and quality of pleadings).
"Rule 23(b) also requires that class resolution must be `superior to other available methods for the fair and efficient adjudication of the controversy." Hanlon, 150 F.3d at 1023 (quoting Fed. R. Civ. P. 23(b)(3)). The Court must determine "whether the objectives of the particular class action procedure will be achieved in the particular case." Id. (citation omitted). The four factors for the Court's examination are: (1) the interest of each class member in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against the class; (3) the desirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. Zinser, 253 F.3d at 1190-92.
The record before the Court shows that a proposed class action in this Court is not superior to other methods of adjudicating this controversy. The first factor is the interest of each member in "individually controlling the prosecution or defense of separate actions." Fed. R. Civ. P. 23(b)(3)(A). "Where damages suffered by each putative class member are not large, this factor weighs in favor of certifying a class action." Zinser, 253 F.3d at 1190. In December 2015, plaintiff's counsel represented that the damages claimed were "in excess of $1.5 billion." Dkt. No. 115 at 20:12-13. At that time, the proposed class was alleged to include 12,600 people, and thus the average damages claim was $119,000 per person. Even if the claimed damages were reduced by half, the Court finds the claimed damages are significant, and thus that this factor is weighs against certifying a class.
On the second factor, defendant has submitted evidence showing that as of September 16, 2016, Chevron was aware of 72 lawsuits that were filed in various Federal High Courts in Nigeria seeking compensation for alleged injuries resulting from the KS Endeavor rig explosion and fire, including many suits on behalf of communities, fishing cooperatives, and other large groups. Dkt. No. 186 (Mitchell Decl. ¶ 41); Dkt. 186-13 (Ex. 28, list of lawsuits). Defendant asserts that at least one lawsuit was filed on behalf of all allegedly affected residents in Bayelsa State, encompassing all of the putative class. See Ekiozidi Jonathan Diekedie, et al. v. Chevron Nigeria Limited, et al., No. FHC/YNG/CS/99/2015 (Nigeria Fed. High Court) (bringing claims on behalf of "all of Bayelsa state"). Thus, there is considerable litigation regarding this controversy that is pending in Nigeria, and this factor weighs against certifying this case as a class action.
In addition, "[a]lthough the issue has not been addressed by the Ninth Circuit, other federal district courts have held that `[c]ourts may properly consider res judicata concerns when evaluating the Superiority Requirement with respect to a proposed class that includes foreign class members.'" Willcox v. Lloyds TSB Bank, PLC, CIVIL NO. 13-00508 ACK-RLP, 2015 WL 10090605, at *10 (D. Haw. Nov. 12, 2015 (quoting In re Alstom SA Sec. Litig., 253 F.R.D. 266, 281 (S.D.N.Y. 2008)). Plaintiff has submitted the declaration of Oba Nsugbe, who states that he/she is a Queen's Counsel and a Barrister qualified to practice law in the United Kingdom and in Nigeria. Dkt. No. 127-6. Nsugbe states that "the provisions of [a Nigerian statute] show that the mechanism exists in Nigeria through which a Nigerian court may recognize such a foreign judgment as the basis to resist and dismiss local proceedings brought in Nigeria that have already been subject to completed proceedings in a court of the United States between the same parties relating to the same subject matter." Id. ¶ 3. However, evidence that a "mechanism exists" by which a Nigerian court may enforce a foreign judgment does not demonstrate that Nigerian courts likely would bar Nigerians from pursuing their cases in Nigeria simply because they are absent class members in a United States class action.
The third factor — the desirability of concentrating the litigation in this forum — also weighs against class certification. The proposed class consists of thousands of Nigerian citizens, and the gas explosion occurred in Nigeria. All of the witnesses and evidence are located in Nigeria. The only connection to this forum is the presence of defendant Chevron Corporation, which allegedly directed the activities of non-party Chevron Nigeria Limited. See Zinser, 253 F.3d at 1191-92 ("[W]here the potential plaintiffs are located across the country and where the witnesses and the particular evidence will also be found across the country, plaintiffs have failed to establish any particular reason why it would be especially efficient for this Court to hear such a massive class action lawsuit.") (internal quotation marks and citation omitted); see also Baricuatro v. Indus. Pers. & Mgmt. Servs. Inc., Civ. A. No. 11-2777, 2013 WL 6072702, at *11 (E.D. La. Nov. 18, 2013) (proposed class action where majority of class members lived in the Philippines was not a superior method of adjudication).
Finally, the record before the Court also demonstrates that there would undoubtedly be significant difficulties in managing a class of thousands of Nigerian residents. Plaintiff's counsel have repeatedly stated that they have had difficulty in obtaining verifiable information regarding the claims of the people who they represent. See, e.g., Dkt. No. 186-5, Ex. 21 (April 18, 2016 letter from plaintiff's counsel to defendant stating "as you know well, Nigeria can be a difficult place from which to extract information and in particular the Delta area. Comprehensive investigations take time anyway — in Nigeria, the inherent logistical and geographic difficulties multiply general difficulties many times over."). Further, because Chevron lacks power to subpoena witnesses from Nigeria, the only class member testimony at trial will be from witnesses plaintiff wants or is able to proffer. Defendant states that "of the 55 claimants whom Chevron sought to depose in Nigeria, plaintiff produced 36 of them. Even though the no-shows had submitted claim forms, and counsel had confirmed their availability only a week before the depositions, they reportedly became unavailable because they `migrated,' were too old, or couldn't be located." Dkt. No. 189 at 13 n.21.
For the reasons set forth above, the Court concludes that plaintiff has failed to meet his burden to show that this case should be certified as a class action. Accordingly, the Court DENIES plaintiff's motion for class certification, DENIES plaintiff's motion to admit the Verde/Physalia "far-field" sediment sample analyses, DENIES plaintiff's motion to substitute a new fisheries expert, and GRANTS defendant's motions in limine. A case management conference is scheduled for April 14, 2017 at 3:00 p.m.
