Document Generated from the Louisiana Court of Appeal, Fourth

NOT DESIGNATED FOR PUBLICATION CHICAGO PROPERTY * NO. 2011-CA-0788 INTERESTS, LLC AND ZOE ALDIGE', INDIVIDUALLY * AND ON BEHALF OF THOSE COURT OF APPEAL SIMILARLY SITUATED * FOURTH CIRCUIT VERSUS * STATE OF LOUISIANA AARON BROUSSARD AND * * * * * * * JEFFERSON PARISH

CONSOLIDATED WITH: CONSOLIDATED WITH:

DARLENE JACOB LEVY NO. 2011-CA-0789

VERSUS

THE PARISH OF JEFFERSON

CONSOLIDATED WITH: CONSOLIDATED WITH:

LLOYD LOGA, VINCA NO. 2011-CA-0790 DELESDERNIER, MICHAEL & MARY DELESDERNIER, DAVID MAIN, DOUGLASS & PAULETTE GRUBBS, KEVIN GRUBBS, JASON GRUBBS, JOSEPH & MICHELLE MAYFIELD, DENNIS & DEBRA GEE, VAL & ELIZABETH REINHARDT, MITCH & MELISSA CHILAN, DWIGHT & GAY RAMSEY, KATHLEEN PENDER, MICHAEL

& LISA MORGANI, RALPH & AUDRY SCHINDLER AND TOMMY & LYN FOTO

VERSUS

JEFFERSON PARISH, AARON BROUSSARD, INDIVIDUALLY AND AS PRESIDENT OF JEFFERSON PARISH, A CONSULTING CO., B CONSULTING CO., C. ENGINEERING CO. & D CONSTRUCTION CO.

CONSOLIDATED WITH: CONSOLIDATED WITH:

ROB SCHMIDT NO. 2011-CA-0791

VERSUS

THE PARISH OF JEFFERSON AND AARON BROUSSARD IN HIS CAPACITY AS ITS PRESIDENT

CONSOLIDATED WITH: CONSOLIDATED WITH:

BRIDGETTE D. KACZMAREK NO. 2011-CA-0792 WIFE OF & GERALD M. KACZMAREK, PAIGE H. WINSTEAD, WIFE OF & SCHOTT B. WINSTEAD, SHELLY CENTANNI, WIFE OF & NICHOLAS CENTANNI, BETTINA DIAZ, WIFE OF & MICHAEL DIAZ, NY DANG THANH, WIFE

OF & MINH THANH VU, INDIVIDUALLY & ON BEHALF OF THOSE SIMILARLY SITUATED

VERSUS

AARON BROSSARD, IN HIS CAPACITY AS PRESIDENT OF/AND JEFFERSON PARISH

CONSOLIDATED WITH: CONSOLIDATED WITH:

DENISE CASON, WIFE OF & NO. 2011-CA-0793 JOHN CASON, CHARLENE SIGNORELLI, AND PATRICIA FARNSWORTH, INDIVIDUALLY & ON BEHALF OF THOSE

SIMILARLY SITUATED

VERSUS

AARON BROUSSARD & JEFFERSON PARISH

CONSOLIDATED WITH: CONSOLIDATED WITH:

JUDY BROWN AND SHERON & NO. 2011-CA-0794 CORNEL SANDERS

VERSUS

AARON BROUSSARD, JEFFERSON PARISH, CONSOLIDATED DRAINAGE DISTRICT NO. 1 OF THE PARISH OF JEFFESON, ET AL.

CONSOLIDATED WITH: CONSOLIDATED WITH:

BRENDA MANARD WIFE NO. 2011-CA-0795 OF/AND ROBERT L. MANARD III

VERSUS

BANKERS INSURANCE COMPANY, THE AMERICAN INSURANCE COMPANY, FIREMEN'S FUND INSURANCE CO. & THE PARISH OF JEFFERSON

APPEAL FROM 24TH JUDICIAL DISTRICT COURT NO. 624-459,C/W 624-778, C/W 625-145, C/W 625-988, C/W 626-415, C/W 635- 370, C/W 635-539, C/W 635-883 DIV. “I” Honorable John L. Peytavin, Judge Ad Hoc * * * * * * Judge Dennis R. Bagneris, Sr. * * * * * * (Court composed of Chief Judge Charles R. Jones, Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome) BELSOME, J., CONCURS IN THE RESULT AND ASSIGNS REASONS

E. Carroll Rogers MURPHY ROGERS SLOSS & GAMBEL 701 Poydras Street 400 One Shell Square New Orleans, LA 70139-0400 -AND- R. Glenn Cater CATER & ASSOCIATES, LLC 124 South Clark Street New Orleans, LA 70119 -AND- Darleen M. Jacobs JACOBS SARRAT & LOVELACE 823 St. Louis Street New Orleans, LA 70112 -AND- Michael Delesdernier 3632 North Labarre Road Metairie, LA 70002 -AND- Bridgette D. Kaczmarek KACZMAREK LAW FIRM, LLC 513 South Tejon Street Colorado Springs, CO 80903 -AND- Robert J. Caluda THE CALUDA LAW FIRM 3232 Edenborn Avenue Metairie, LA 70002 -AND- Kenny M. Charbonnet CHARBONNET LAW FIRM 3730 South Claiborne Avenue New Orleans, LA 70125 -AND- Richard M. Martin, Jr. LAW OFFICE OF RICHARD M. MARTIN, JR., LLC 20 Versailles Blvd. New Orleans, LA 70125-4114 COUNSEL FOR PLAINTIFFS/APPELLEES CHICAGO PROPERTY INTERESTS, LLC AND ZOE ALDIGE, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED

Dennis J. Phayer Christopher K. Tankersley Scott O. Gaspard BURGLASS & TANKERSLEY, L.L.C. 5213 Airline Drive Metairie, LA 70001-5602 COUNSEL FOR DEFENDANTS/APPELLANTS, THE PARISH OF JEFFERSON, AARON BROUSSARD, AND CONSOLIDATED DRAINAGE DISTRICT NO. 2

MAY 23, 2012

AFFIRMED

This appeal arises out of a judgment certifying the plaintiffs/appellees as a class. In a consolidated matter the defendants/appellants, the Parish of Jefferson,

Aaron Broussard and Consolidated Drainage District No. 2, appeal the certification. For the reasons that follow, we affirm.

The instant litigation arose from the mass destruction caused by Hurricane

Katrina. The plaintiffs/appellees filed suit in the 24th Judicial District for the Parish of Jefferson. The case was later consolidated in this Court. According to the pleadings, on August 28, 2005, pump operators in Jefferson Parish were ordered to evacuate in an effort to take life saving measures for the parish employees who operated the pumps. At this stage in the litigation the plaintiffs/appellees allege that the pumps were shut off in Jefferson Parish causing massive flooding to surrounding properties and imperiled the citizens of the parish who did not evacuate. According to the briefs, a “Doomsday Plan” was confected by Jefferson

Parish seven years prior to Hurricane Katrina. After the destruction, numerous suits were filed wherein the plaintiffs/appellants alleged that they sustained injuries and/or damages as a result of the failure of the Parish to “properly draft, implement, distribute and review a Doomsday Plan”.

The issue of class certification was heard in June, 2010 and the district court certified two subclasses: East Bank Jefferson and West Bank Jefferson, as follows:

1. EAST BANK JEFFERSON Those named and putative class members, persons and/or entities (or their heirs, successors, or assigns) residing or owning property in the Parish of Jefferson, State of Louisiana who sustained injuries, losses, and/or damages as a result of the August 2005 flood caused and/or contributed by the non-operation of the pumping and drainage systems during and/or following Hurricane Katrina who more specifically were within that area of Jefferson Parish situated between Lake Pontchartrain and the Mississippi River west of Orleans Parish including but not limited to the incorporated communities of Harahan and Kenner and the un-incorporated communities of Elmwood, Jefferson, Metairie and River Ridge.

Said East Bank Jefferson subclass area being more specifically described as being bounded on the West by the Jefferson Parish/St. Charles Parish line, on the South by the Mississippi River, on the North by Lake Pontchartrain and on the East by the Jefferson Parish/ Orleans Parish Line.

LESS AND EXCEPT: The Old Jefferson or Hoey's Basin area of Jefferson Parish more particularly described as:

All residents, domiciliaries, business entities, property owners, and other persons and entities residing or present on August 29, 2005, inside the geographic area bounded by (1) Metairie Road to the North, (2) Mississippi River to the South, (3) 17th Street Canal to the East, and (4) North Arnoult Road to the West (also known as Hoey's Basin), who or which suffered damages, injury or loss as a result of Hurricane Katrina-related flooding on an after August 29, 2005, and/or thereafter may have suffered additional damages including but not limited to wrongful death, personal injury, loss of income and other and non-economic losses, mental anguish and distress, long term, health risks associated exposure to polluted flood waters, relocation expenses, damage to real property, and damage to personal property.

2. WEST BANK JEFFERSON Those named and putative class members, persons and/or entities (or their heirs, successors, or assigns) residing or owning property in the Parish of Jefferson, State of Louisiana who sustained injuries, losses, and/or damages as a result of the August 2005 flooding caused and/or contributed by the non-operation of the pumping and drainage systems during and/or following Hurricane Katrina who more specifically were within that area of Jefferson Parish situated South of

the Mississippi River including, but not limited to the incorporated communities of Avondale, Bridge City, Estelle, Harvey, Marrero, Terrytown, Timberlane, Waggaman and Woodmere.

Said West Bank Jefferson subclass area being more specifically described as being bounded on the North by the Mississippi River, on the West by the Jefferson Parish/St. Charles Parish line, on the East by the Jefferson Parish/Plaquemines Parish and Jefferson Parish/Orleans Parish lines and on the South to the full extent of the incorporated and unincorporated communities listed herein to and including all areas within or north of the southern flood protection levee zone.

It is from the judgment dated September 22, 2010 that the defendants/appellants take the instant appeal.

Assignments of Error

On appeal, the defendants/appellants present the following assignments of error: (1) the trial court erred in granting the plaintiffs‟/appellees‟ motion for class certification where the plaintiffs/appellees failed to demonstrate that questions of law or fact common to all class members predominated over individual questions so as to satisfy the predominance requirement of La. C.C.P. Art 591(B)(3); (2) the trial court erred in finding that the class-wide damage calculation formula proffered by plaintiffs/appellees, which addressed only a single narrow type of property damage out of the fourteen items of general and special damages alleged by plaintiffs/appellees, constituted an acceptable mathematical/formulaic calculation of all individual damages on a class-wide basis so as to satisfy the predominance requirement of La. C.C.P. Art 591 (B)(3); and (3) the trial court erred in concluding that the plaintiffs‟/appellees‟ claims were of modest monetary value, especially in the face of the actual status of the Jefferson Parish insurance policy moneys.

Standard of Review

The appellate standard of review as it applies to class certification is unique in that both the manifest error and abuse of discretion standards apply. Therefore, this court conducts a de novo review of the record. The law is clear:

The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interest to persons so numerous as to make it impracticable to bring them all before the court. The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are “similarly situated,” provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion from the class. Chiarella v. Sprint Spectrum LP, 04–1433, p. 16 (La.App. 4 Cir. 11/17/05), 921 So.2d 106, 118, citing Ford v. Murphy Oil U.S.A., Inc., 96–2913, 96–2917, 96–2929 (La.9/9/97), 703 So.2d 542, 544.

In Louisiana, the class action certification procedure is governed by Louisiana Code of Civil Procedure articles 591–597. The prerequisites for maintaining a class action are found in article 591. Those requirements have generally been summarized as: numerosity, commonality, typicality, the adequacy of the representative parties to protect the interest of the class, an objectively definable class, the predominance of common issues, and the superiority of the class action procedure…

In order to obtain class certification, the plaintiffs must meet all of the requirements of article 591(A) and also satisfy at least one of the subsections of article 591(B). Oubre v. Louisiana LCPIC Fair Plan, 07–66, p. 6 (La.App. 5 Cir. 5/29/07), 961 So.2d 504, 508, writ denied, 07–1329 (La.9/28/07), 964 So.2d 363, citing, Daniels v. Witco Corp., 03–1478 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, 1014, writ denied, 04–2287 (La.11/19/04), 888 So.2d 205. The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the action as a class action. Oubre, 961 So.2d 504, 508.

The customary standard of review for a trial court's ruling on a motion for class certification is tri-parte. Factual findings are subject to the manifest error standard, but the trial court's ultimate decision of whether or not to certify the class is reviewed by the abuse of discretion standard. Brooks v. Union Pacific Railroad Company, 08– 2035, p. 10 (La.5/22/09), 13 So.3d 546, 554. The question of whether the district court applied the correct legal standards in determining whether to certify the class is reviewed de novo. Id.

A trial court has wide discretion in deciding whether or not to certify a class. Chiarella, 04–1433 at p. 16, 921 So.2d at 118. Any error to be made in deciding class action issues should be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of trial so require. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 620 (La.1984).

Oliver v. Orleans Parish School Bd., 2009-0489, pp. 7-9 (La. App. 4 Cir.

11/12/09) 25 So.3d 189, 196-198.

We must note that we will not adjudicate this matter on appeal by analyzing specific facts associated with the alleged misconduct of the defendants/appellants to reach factual conclusions; a trial on the merits must take place to reach such conclusions. Our position is to resolve whether the district court erred in certifying the class of plaintiffs/appellees so that this matter can go to trial effectively and efficiently.

La. Code of Civil Procedure Article 591, Prerequisites; Maintainable Class Actions

Class actions are governed by La. C. Civ. Pro art 591 which reads as follows:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:

(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.

(4) The representative parties will fairly and adequately protect the interests of the class.

(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:

(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:

(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(d) The difficulties likely to be encountered in the management of a class action;

(e) The practical ability of individual class members to pursue their claims without class certification;

(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or

(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.

C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

Assignment of Error #1

In their first assignment of error, the appellants assert that the trial court erred in granting the appellees‟ motion for class certification where the appellees failed to demonstrate that questions of law or fact common to all class members predominated over individual questions so as to satisfy the predominance requirement of C.C.P. Art 591(B)(3), see above.

The appellants cite Brooks v. Union Pacific Railroad Company, 2008-2035

(La. 5/22/09) 13 So.3d 546, to support their argument that the class lacks common causation because in Brooks the court concluded that each member of the class would have to prove that causation was individual, yet based on the same facts.

The appellants further rely on Dupree v. Lafayette Insurance Company,

2009-2602, (La. 11/30/10), 51 So. 3d 673, as a parallel case to the case at bar. The appellants argue that in this more recent class certification case, the Supreme Court reversed the district court and concluded that certification was inappropriate because common questions of law and fact did not exist nor did they predominate over questions affecting only individual members and thus a class action would not be “superior” to other procedural methods.

Specifically the appellants argue that the appellees‟ pleadings range so vastly in the recovery sought that individual inquiries must be made to the sum of sixteen specialized questions. The appellants rely on the four expert reports

submitted by the Parish, that of Frank Newell, Engineer; Mike Traux, Real Estate

Appraiser; Erik Nelson, Architectural Engineer; and James Richardson, Economist.

The appellants reasoned that the testimony of the experts confirm the predominance of individual issues over any common issues, precluding class certification.

The appellants also rely on the live testimony of six proposed class representatives wherein they argue that the testimony of these appellees “clearly demonstrate that each individual‟s Hurricane Katrina experience was unique and personal, and the damages each allegedly sustained were similarity unique and personal”. They further maintain that the deposition testimony of certain appellees confirm the need for “individualized, person by person, property by property inquires in assessing the cause as well as the type and scope of personal and property damages sustained by any given individual”.

The appellees counter the appellants by asserting that the claims are typical of all of the class members and the class representatives and that all of the appellees were subject to the same type of damages and injuries. Also relying on

Brooks v. Union Specific Railroad Company, Supra at 560, the appellees cite, “in order to meet the common cause requirement, each member of the class must be able to prove individual causation based on the same set of operative facts and law that would be used by any other class member to prove causation.” Id. at 559.

The district court offered thirty pages of Reasons for Judgment. The reasons specifically reference the expert opinions in support of its judgment:

The Court read and considered the testimony of all witnesses (live and by deposition) and drew some conclusions considering them as follows:

1. The Class representatives were able to accurately relate their own experiences and those of their neighbors due to neighborhood familiarity.

2. Whereas many lived in residences many also had businesses and experienced similar business interruptions.

3. None had ever heard of the "Doomsday Plan" and many indicated that they would have "stayed, or planned or evacuated differently" had they known.

4. Some had owned property at the time of the 1989 and 1995 floods and had never before flooded.

5. Kathleen Johnson and her husband lived at 4204 Lime Street in Metairie. They evacuated to Natchitoches, La. When the wind subsided her husband received a phone call from a fireman who had toured their neighborhood in a Hummer. He advised that there was 2' to 4' of water in their house. He stated that the policeman and the fireman had evacuated to East Jefferson Hospital. She thought that the pump operators should have been required to stay at their pumps "or at least sent to East Jefferson Hospital with the policeman and fireman."

6. Llyod Loga did not evacuate and was one of the early plaintiffs who filed his own suit. He lived at 3833 Edenborne near Severn and West Esplanade. He experienced the worst winds and rain between 4:00 a.m. and 8:30 a.m. on Monday morning. At 10:30 a.m. he noticed the water rising ½" every 30 minutes so he got on his 3 wheeler and rode the levee to various pumping stations particularly at the Suburban and Bonnabel Canals. He observed water flowing from the lake into the canals and through the pumping stations into the parish and felt that this would not have happened if the pumps had been operating.

7. Kazem Alikhani was the lone lay witness who testified for the parish. He worked as its public works director for one half year before Katrina. He left Sunday afternoon and retuned Monday night. He agreed that pumping would have reduced flooding. He stated that "flooding would have been far less" and added that "some, but not most, would have occurred." He stated that labor forces remove debris from screens with rakes and would have been hampered by high winds. When asked who gave the order to evacuate he answered "emergency management." He perceived the reason to be so that no one would die and the pumps would not be damaged. When asked what portion of East Jefferson was not serviced by the pumps, he answered the Hoey Basin which was serviced by the New Orleans Sewage and Water Board. He also confirmed that "Jefferson did not suffer a single flood wall failure."

A showing of commonality of questions of law and fact among the class is the second prerequisite in certifying the class. The test for commonality requires only that there be at least one issue the resolution of which will affect all or a significant number of putative class members. Oliver v. Orleans Parish School Bd.

2009-0489, pp. 10-11 (La. App. 4 Cir. 11/12/09) 25 So.3d 189, 198 citing, Watters v. Dept. of Social Serv., 05–0324, p. 15 (La.App. 4 Cir. 4/19/06), 929 So.2d 267,

278, Duhe v. Texaco, Inc., 99–2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078.

The district court has weighed the testimony as it relates to class certification. The testimony establishes, as does the record that the claims of the parties arise out of the same occurrence, that the parties alleged related to damages that occurrence and that the parties allege that the damages are a direct result of the parishes failure to implement a plan to protect the parties from wide spread damage.

There is no error by the district court in finding that there is a commonality between the class members. The evidence and testimony in the record supports that causation of the appellees‟ claims are not individual and that there can be resolution that will affect the majority of the class.

Assignment of Error #2

In its second assignment of error, the appellants maintain that the trial court erred in finding that the class-wide damage calculation formula proffered by the appellees, which addressed only a single narrow type of property damage out of the fourteen items of general and special damages alleged by the appellees, constituted an acceptable mathematical/formulaic calculation of all individual damages on a class-wide basis so as to satisfy the predominance requirement of

C.C.P. Art 591 (B)(3). See above. Specifically the appellants argue that the appellees failed to demonstrate that the multiple elements of damage for which they seek recovery are susceptible of calculation on a class-wide basis. The appellants cite Steering Committee v. Exxon Mobil Corp., 461 F.3d 598, 602 (5th

Cir 2006), wherein the Court reasoned that each individual plaintiff suffered differently albeit personal injury, property injury, both or one, and therefore not subject to any formulaic calculation. In the instant matter, the appellants claim error by the district court in finding that a mathematical formula was not necessary because there is no Louisiana case law that supports such a requirement and that its reliance on Federal case law such as Steering is appropriate when the appellees in the instant matter failed to profer the requisite mathematical or formulaic method of collectively calculating, on a class wide bases, the broad array of damages for the appellees.

The appellees argue that since Steering was decided in 2006, the Supreme

Court has ruled on several class certifications and failed to adopt a mathematical or formulaic calculation requirement and that real estate appraiser Kermit Wayne

Williams offered the court an acceptable formula.

The record supports that Kermit Wayne Williams is a Certified General Real

Estate Appraiser. Mr. Williams offered his expertise on neighborhood composition, location and area, land use, valuation process, market comparison and group sales. Mr. Williams submitted an August 6, 2007 report wherein he explained that the reason for his report was “[t]o estimate the potential for loss in market value of the subject properties due to stigma damages”. The district court adopted in its Reasons for Judgment Mr. Williams‟ calculated conclusions as follows:

By comparing these average sale prices per square foot, the market preference for flood free properties is demonstrated. Likewise, the diminution in value due to flood stigma is demonstrated.

A comparison of square foot sales price of properties in areas five (5) feet above sea level with acknowledged flood properties showed a loss or diminution of value of an average of $18.13 per square foot of 14.4% computed as follows:

Square foot diminution in value $126.21 - $108.08 = $18.13 per square foot

Percentage of diminution in value $18.13/$126.21 = 14.4% loss Non flood area market advantage $18.13/$108.08 = 16.8% market advantage

Comparing the same area homes that did acknowledge flooding with properties that included a declaration of not flooding demonstrated similar numbers:

Square foot diminution in value $125.31 - $108.08 = $17.23 per square foot

Percentage of diminution in value $17.23/$125.31 = 13.8% loss

Non flood area market advantage $17.23/$108.08 = 15.9% market advantage

The appellants argue that Mr. Williams‟ valuation process is flawed because

“Plaintiffs have not even proposed a manner, method, or formula to establish the alleged diminution in property value on a class-wide basis. Rather, plaintiffs have presented an expert, Kermit Williams, who proposes a valuation process for only a single item of the many types of alleged property damage claims - a diminution of property value for „stigma.‟" Therefore the appellants argue that “[o]n this basis alone, Williams' proposal is defective because it fails to account for the other types of property damage claims asserted by the plaintiffs”. Appellants once again suggest that the district court failed to consider the testimony of Michael Traux,

James Richardson and Erik Nelson wherein they insist that the reports of these

experts “expound at length on the inappropriateness of mass or generalized class- wide appraisal methodologies”. We do not agree. The district court, in its Reasons for Judgment, thoroughly analyzed the expert reports indicating to us that such reports were greatly considered.

Appellate Court's review of a trial court's decision to allow or exclude expert testimony is conducted under an abuse of discretion standard. Cheairs v. State

Dep't. of Transp. and Dev., 2003–0680 (La.12/3/03), 861 So.2d 536; Hooper v.

Travelers Ins. Co., 2010-1685, p. 6 (La. App. 4 Cir. 9/28/2011) 74 So.3d 1202,

1205, p. 6 (La. App. 4 Cir., 9/28/2011). The great discretion and deference granted to the fact-finder on appellate review extends to its assessment of expert testimony.

Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). After weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert. It is within the trial court's discretion to substitute common sense and judgment when such a substitution appears warranted upon the record as a whole. Verret v. Verret, 34,982 (La. App. 2 Cir. 5/9/01), 786 So.2d 944.

Further, a trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Raney v. Wren, 98-0869, 722 So.2d 54 (La. App. 1 Cir. 11/6/98);

Goodwin v. Goodwin, 618 So.2d 579, 586 (La. App. 2 Cir.1993); McKenzie v.

Cuccia, 2004-0112, p. 6 (La. App. 4 Cir. 6/23/04), 879 So.2d 335, 339.

It is imperative to note that Mr. Williams concluded that:

Since this is on going [sic] research that appraiser may revise, add too the [sic] supplement or otherwise amend this report. However, the present research is sufficient to conclude that there are many properties in this community which share the common issue of damages due to flood. Flood from rising water is the cause of diminution in value which is common and identifiable in real esate in affected areas. It appears, additionally, that a reasonable

apportionment of diminution of values is feasible among properties in this group of damaged properties.

Although this report has addressed the losses in value to residential properties it is reasonable to expect similar losses to commercial, industrial, institutional, multi family [sic] and income producing properties.

Clearly the expert reports are subject to possible changes. Such revisions will not be known until a trial on the merits begins; the appellants‟ insinuated argument that the formula referred to by the district court cannot and will not be flexible is rebutted by Mr. Williams‟ conclusion of his analysis.

Further, the district court noted:

One final point needs to be addressed. An issue has been raised concerning Katrina Barge's1 insistence on the need for a mechanical formula for damages. Plaintiffs in their Post-Hearing Reply Memorandum argue that no Louisiana Court has made the determination that individual damages must be determined by a mathematical or formulaic calculation as part of class certification. The Court agrees that it has found no such requirement. Even if it is later determined, however, that Louisiana law imposes this requirement, the Court finds that Wayne Kermit Williams' before and after test provides that formula. This conclusion is supported by the testimony of Class Representative Susan M. Lochr. She held a college degree with post graduate work and worked as a loan officer for a bank. She testified that her house was worth $260,000.00 before Katrina. She repaired it after the storm and sold it for only $136,000.00.

The district court did not abuse its discretion in accepting the expert reports and formulating a mathematical calculation of the damages that can be used in the future of this litigation if the court sees fit.

Assignment of Error #3

In their last assignment of error the appellants maintain that the trial court erred in concluding that the appellees‟ claims were of modest monetary value. The

1 “Katrina Barge plaintiffs” are referenced by expert John A. Kilpatrick, Ph.D in his July 30, 2007 report on mass appraisal techniques submitted to the district court.

appellants specifically argue that the district court was manifestly erroneous in concluding that Jefferson Parish insurance policy moneys have been placed in federal court and that stay orders have been issued as to the Jefferson Parish defendants. The appellants reference one appellee who has made a claim that her loss is a “minimum of $124,000”.

The appellees aver that by its own admission Jefferson Parish has $4 million of potential insurance coverage to cover the appellees‟ claims which would cause each class member to receive nominal payouts thus reducing the class member‟s

“ability and incentive” to pursue individual claims.

The district court reasoned:

In Conrad v. Lamarque Ford, Inc., 13 So.3d 1154 (La. App. 5 Cir. 2009) the Fifth Circuit cited with approval the district court's reasons:

The trial judge found that "because the plaintiffs' claims are of modest monetary value, requiring them to proceed by individual trials will disenfranchise large numbers of injured persons from the legal system." She concluded that the "costs associated with individual liability suits would exceed the value of plaintiffs [sic] claims." Considering that "the ultimate goal of the class action is to efficiently and fairly ensure that the substantive law underlying the plaintiffs' claims is effectuated,' the trial judge carefully balanced "considerations of procedural fairness with judicial efficiency." She found "that class action [was] virtually the only method by which that goal will be achieved in this case."

These same findings would also apply to potential individual plaintiffs in the present case. They are magnified in this case because:

All available Jefferson Parish insurance policy moneys have been placed under a federal court umbrella and stay orders have been issued as to named potential Jefferson Parish defendants. This factor greatly reduces individual Jefferson Parish plaintiffs' ability and incentive to pursue individual claims.

This assignment of error lacks merit. Once the district court has established that class certification is the most judicially feasible way to proceed under La. C.

Civ. Pro. art 591, coupled with the court‟s reasoning in Price v. Martin, 2011-

0853, p.7 (La. 2011) 79 So.3d 960, 967, concluding that “any errors to be made in deciding class action issues should, as a general rule, be in favor of and not against the maintenance of the class action because a class certification is always subject to modification or decertification if later developments so require”, we are of the opinion that appellants fail to show error by the district court.

Decree

For the reasons stated herein, we affirm the judgment of the district court certifying the plaintiffs/appellees as a class to proceed against the defendants/appellants in litigation as per the September 22, 2012 judgment of the

24th Judicial District Court for the Parish of Jefferson.

AFFIRMED