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Powell v. Tosh

ELR Citation: 43 ELR 20186
Nos. 5:09-CV-00121, (W.D. Ky., 08/02/2013) (Russell, J.)

A district court decertified a class of Kentucky residents who filed nuisance claims against a neighboring hog farm. The court previously determined that commonality existed because the residents had all asserted that the farmer's conduct at a single hog barn had caused them the same injury. But the evidentiary development of this case since the class was certified warrants decertification. The question whether the farm's conduct amounts to a permanent nuisance requires an individualized inquiry and is not capable of determination on a classwide basis. While some residents do claim to have experienced substantial annoyance and/or an interference, as required by Kentucky nuisance law, some clearly do not, making this element of liability incapable of being resolved by a common answer. The court therefore reversed its prior certification of the class under Fed. R. Civ. P. Rule 23.