HAMMOND, Ind. (LN) — Residents who allege BP Products North America's Whiting, Indiana oil refinery emits noxious odors that disturb and interfere with the enjoyment of their properties won the right to pursue class claims through discovery, after a federal judge rejected BP's attempt to wipe out the class allegations before a single deposition was taken.
The ruling from U.S. District Judge Philip P. Simon addresses a recurring procedural question in environmental nuisance cases: whether a defendant can use a motion to strike to end the class fight before discovery begins. Simon concluded it could not, joining district courts in the Seventh Circuit that have held the burden at this stage falls on the defendant, not the plaintiffs, to show the proposed class is facially doomed.
Nakeya Baines, Brent Givens, and Briana Rice filed the putative class action on behalf of themselves and all others similarly situated, targeting BP's refinery operations in Whiting. Their First Amended Complaint, filed August 20, 2025, alleges that the refinery's processing of crude oil releases unreasonable noxious odors that disturb and interfere with the enjoyment of nearby residential properties. The three plaintiffs assert Indiana state law claims for private nuisance, public nuisance, and negligence, and seek to represent a class of all owner-occupants and renters of residential property within two and a half miles of the refinery's property boundary.
BP moved to strike those class allegations under Rule 23(d)(1)(D), pointing to class certification denials in similar noxious-odor cases around the country — including a Northern District of Indiana decision in Brown v. WellPet LLC, where a court denied certification in part because the plaintiff failed to conduct air quality dispersion modeling, known as AERMOD analysis, to objectively connect the facility's emissions to the proposed class area. BP argued the same fate awaited Baines and her co-plaintiffs.
Judge Simon was unpersuaded. He acknowledged that WellPet LLC was instructive, but turned BP's own authority against it: the WellPet plaintiff had at least conducted class discovery and retained an expert before the certification motion was decided. The Baines plaintiffs have had neither. Motions to strike class allegations, Simon noted, are generally regarded as premature because the shape and form of the class is to be given time to evolve through discovery, and should be granted only when class allegations are facially and inherently deficient. BP, he held, bears the burden of proving that standard is met — and it failed to carry it.
On the specific Rule 23 requirements, Simon found the numerosity, commonality, and typicality allegations easily sufficient to survive. On ascertainability and the Rule 23(b)(3) requirements of predominance and superiority — the harder questions that sank the WellPet plaintiff — he acknowledged the proposed class is likely overbroad in its current form and that plaintiffs' subjective beliefs about odor might not carry the day at certification. But he framed the operative question narrowly: is it plausible that BP is the sole or contributing source of the noxious odors? If so, common questions could predominate. Only discovery, he wrote, can answer that.
Simon was candid about the road ahead. He noted that if he were evaluating the class on a certification motion today, it would likely fail on the current record and proposed class definition. BP's cited cases, he added, involved plaintiffs who at least had the opportunity to take some discovery before seeking class certification — a procedural advantage the Baines plaintiffs have not yet had.
The WellPet court had suggested that the plaintiff could potentially cure the identified deficiencies in class certification by submitting AERMOD simulations, or some other preliminary testing, based on the class area. That same path remains open here — and Simon noted it applies doubly so, given that the Baines plaintiffs have not yet had the benefit of class discovery to develop the scientific evidence that proved decisive in WellPet. Whether they can produce it will be the real fight.