On appeal of a class of homeowners against a neighboring landfill, the defendant challenged certification on “definiteness” (or “ascertainability”) grounds:

“Although the trial court’s certification order does not expressly discuss the definiteness requirement, we cannot say that the court’s adoption of the Homeowners’ definition was an abuse of the court’s discretion. There is no reasonable question as to whether a three-mile radius is specific enough to determine whether a given individual is a class member. It plainly is….  CFL nonetheless asks that we invent new rules to heighten the evidentiary burden under Trial Rule 23’s implicit definiteness requirement. We decline to do so, but we do note that the record is replete with designated evidence that identifies residents who complained of odors emanating from the landfill to IDEM or in response to a survey distributed by the Homeowners’ counsel. In each case, the residents provided their home addresses. While there is not a map in the record that plots specifically where each address falls relative to a three-mile radius around the landfill, the trial court was within its discretion to take notice of those addresses and their locations…. It is CFL’s burden on appeal to show that the numerous addresses in the record would not be captured by the Homeowners’ class definition, that other residents who should have been captured by the definition were omitted by the Homeowners’ definition, that the Homeowners’ definition is somehow inappropriately overinclusive, or, most significantly, that the Homeowners’ definition is not specific enough to allow the court to determine whether a given individual is a class member. CFL fails to do any of those things and instead simply, and erroneously, asserts that the definition here is ‘untethered to any actual evidence.’  Accordingly, we conclude that CFL has not met its burden on appeal to show that the trial court erred in adopting the Homeowners’ definition of the class.”

With respect to predominance, the Court of Appeal affirmed the trial court’s conclusion that “the proposed class is bound together by a mutual interest in resolving common questions regarding the emanation of odors from the landfill more than it is divided by individual interests or variances in the specific measure of damages from those emanations, and the resolution of those questions would significantly advance the litigation.” Still, the Court notes, the defendant asserts that there is no evidence that the class members’ damages are similar or that their damages will be assessed in the same manner. “That is, CFL asserts that there is no evidence the class representatives agree on the nature of the odor or how specifically the odor interfered with each of their quiet enjoyments of life and property, with some complaining about not being able to open windows and others complaining about not inviting company over.  But the class members are those who suffered noxious intrusions from the landfill’s odors – that is the damage, and that is a common question, which predominates over individualized concerns. CFL would replace the need to show a common question with the need for each class member to show identical questions. Such a conclusion would obviate Trial Rule 23, and we reject it.”

 

Clark-Floyd Landfill v. Gonzalez, 150 N.E.2d 238 (Ind. Ct. App. 2020).