Robert Gatzke v. City of West Bend, Wisconsin

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 26, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP140 Cir. Ct. No. 2022CV303

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

ROBERT GATZKE, THERESA DEUEL, BRYAN SCHOFIELD AND GEOFFREY
RICKABY,

PLAINTIFFS-RESPONDENTS,

V.

CITY OF WEST BEND, WISCONSIN, MANITOU AMERICA HOLDING, INC.
AND PREMARK INTERNATIONAL, LLC,

DEFENDANTS-APPELLANTS,

US MOTOR AND POWER, INC,

DEFENDANT.

APPEAL from an order of the circuit court for Washington County:
MICHAEL S. KENITZ, Judge. Reversed and cause remanded.

Before Gundrum, P.J., Grogan and Lazar, JJ.
No. 2024AP140

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. In this environmental class action case, the City of
West Bend, Wisconsin, Manitou America Holding, Inc., and Premark
International, LLC, (collectively, “the appellants”) appeal from a circuit court
order certifying a class against them. For the reasons that follow, we reverse the
order and remand the matter for further proceedings consistent with this opinion.

¶2 The City of West Bend (“the City”) is the owner and former operator
of the Schuster Drive landfill (“the landfill”). The City operated the landfill from
1964 to 1984. Because of its age, the landfill does not have an engineered liner
designed to prevent hazardous liquids from reaching the groundwater beneath it.

¶3 Manitou America Holding, Inc. and Premark International, LLC, are
successors in interest to Gehl Company and the West Bend Company. Gehl
Company and the West Bend Company were accused of dumping hazardous
liquids into the landfill during its years of operation. They later reached settlement
agreements with the City.

¶4 Since the early 1980s, the City has taken steps to address
groundwater issues caused by hazardous liquids leaking from the landfill. For
example, the City has extended municipal water to residents in the area. It has
also installed wells for monitoring and extracting contaminated groundwater.

¶5 In 2018, the Wisconsin Department of Natural Resources (DNR)
recommended studying the risk of vapor intrusion, i.e., the risk of vapors from
contaminated groundwater migrating into overlying residences. A subsequent
study confirmed evidence of vapor intrusion in certain residences near the landfill.

2
No. 2024AP140

The City worked with the DNR to install mitigation systems where needed and
informed the public about its efforts. On October 16, 2019, the City held a public
meeting on the subject, which was attended by approximately 200 people.

¶6 Robert Gatzke, Theresa Deuel, Bryan Schofield, and Geoffrey
Rickaby (collectively, “the respondents”) are property owners in the Villa Park
neighborhood, which is a residential subdivision near the landfill. On June 10,
2022, they filed this class action lawsuit against the appellants, alleging
contamination and property value diminution.1 After limited discovery, they
moved to certify a class consisting of the owners of more than 300 Villa Park
properties.

¶7 The respondents’ motion for class certification included a report on
damages from Dr. Kevin Boyle, a college professor. Dr. Boyle used a hedonic
regression model to conclude that all properties in the proposed class area were
diminished in value by a uniform 9.2% due to groundwater contamination from
the landfill. The respondents also submitted a declaration from geologist Mark
Kram, who opined that all properties in the proposed class area are at risk for
vapor intrusion. Kram’s opinion was supported by a report from hydrogeologist
Frank Anastasi.

¶8 The appellants filed a response opposing the respondents’ motion.
The appellants’ response included a report from Dominic Landretti, a certified real
estate appraiser. Landretti used data from actual home sales in the Villa Park

1
Prior to filing their lawsuit in this case, the respondents filed lawsuits in both the Dane
County circuit court and the federal district court in the Eastern District of Wisconsin. Those
lawsuits were later dismissed.

3
No. 2024AP140

neighborhood to conclude, among other things, that groundwater contamination
from the landfill had no negative impact on property values.2 The appellants’
response also included an affidavit from hydrogeologist Leo Linnemanstons.
Linnemanstons explained that test data from the Villa Park neighborhood showed
that the majority of residences are not at risk for vapor intrusion. This is due, in
part, to significant differences in the depth of groundwater across the
neighborhood.

¶9 Ultimately, the circuit court granted the respondents’ motion and
certified “all triable issues” as to the parties. In doing so, the court acknowledged
disputes between the parties’ experts; however, it made no attempt to resolve
them, concluding that the matter was best left for the jury. The court’s order
included language stating that it was “reserving the right and ability for individual
hearings on damages as/if appropriate and if needed pertaining to property
value/damage to a specific member or specific property.” Finally, one of the
certified issues was a claim for injunctive relief (i.e., remediation of landfill
contaminants) that did not apply to all of the class members.3 This interlocutory
appeal follows.

¶10 Class actions and the circuit court’s decision to certify a class are
governed by WIS. STAT. § 803.08 (2023-24).4 “The statute requires the [moving

2
The data consisted of 46 home sales between October 16, 2019 and the end of 2022. In
every case, the property sold for more than Dr. Boyle opined to be its diminished value.
3
The class members included those who had sold their homes after October 16, 2019
and therefore had no interest in the injunctive relief.
4
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

4
No. 2024AP140

party] to first establish three facts about the proposed class and the
representative—referred to as numerosity, commonality, and typicality—and one
fact about the [party’s] ability to represent the class.” Harwood v. Wheaton
Franciscan Servs., Inc., 2019 WI App 53, ¶23, 388 Wis. 2d 546, 933 N.W.2d
654; § 803.08(1)(a)-(d). In a case such as this, the moving party must also show
that “questions of law or fact common to class members predominate over any
questions affecting only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy.”
Sec. 803.08(2)(c). These requirements are referred to as predominancy and
superiority. Harwood, 388 Wis. 2d 546, ¶24.

¶11 The decision to grant or deny a motion for class certification is
committed to the circuit court’s discretion. Hermanson v. Wal Mart Stores, Inc.,
2006 WI App 36, ¶3, 290 Wis. 2d 225, 711 N.W.2d 694. A court properly
exercises its discretion when “it examines the relevant facts, applies a proper legal
standard and, in a rational process, reaches a conclusion that a reasonable judge
could reach.” Cruz v. All Saints Healthcare Sys., Inc., 2001 WI App 67, ¶11, 242
Wis. 2d 432, 625 N.W.2d 344.

¶12 Wisconsin courts “look to federal case law for guidance” when
reviewing class certification decisions.5 Harwood, 388 Wis. 2d 546, ¶5. That
case law requires courts to conduct a “rigorous analysis” before certifying a class.
See General Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). Such
rigorous analysis will often “entail some overlap with the merits of the [moving

5
WISCONSIN STAT. § 803.08 was revised to harmonize Wisconsin law with federal class
certification standards, see S. CT. ORDER 17-03, 2017 WI 108, 378 Wis. 2d xxi (eff. July 1,
2018); 2017 Wis. Act 235, § 8.

5
No. 2024AP140

party’s] underlying claim.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351
(2011).

¶13 On appeal, the appellants contend that the circuit court committed
multiple errors in certifying the class against them. They argue that the court
failed to resolve material factual disputes between the parties’ experts and thereby
failed to conduct a rigorous analysis. They further maintain that the court’s
language reserving the right to hold individual hearings on damages is at odds
with its decision to certify “all triable issues” and without legal support. Also,
they cite the claim for injunctive relief as evidence of an overbroad class.

¶14 The respondents, meanwhile, insist that the circuit court resolved all
facts necessary for class certification. Additionally, they note that the court had
authority to split the case by certifying a class for some issues but requiring
individualized assessments for other issues. Likewise, they note that the court has
the ability to revise the class definition if necessary to correct a problem with class
size.6

¶15 Reviewing the circuit court’s decision, we cannot say that it engaged
in a rigorous analysis before certifying the class in this case. Again, there were
significant disputes between the parties’ experts regarding the fact/amount of
damages and what residences in the Villa Park neighborhood are at risk for vapor
intrusion. The court acknowledged these disputes but made no attempt to resolve

6
The respondents also assert that the appellants have waived their challenge to class
size. Waiver is a rule of judicial administration, and a reviewing court may disregard a waiver
and address the merits of an unpreserved issue in an appropriate case. State ex rel. Universal
Processing Servs. of Wis., LLC v. Circuit Ct. of Milwaukee Cnty., 2017 WI 26, ¶53, 374 Wis. 2d
26, 892 N.W.2d 267. We elect to do so here so that the issue will not reoccur on remand.

6
No. 2024AP140

them, even though they related to requirements of commonality, predominancy,
and superiority. Instead, the court determined that the matter was best left for the
jury.

¶16 The rigorous analysis that must be undertaken in the class
certification context applies to experts. See Howard v. Cook Cnty. Sheriff’s Off.,
989 F.3d 587, 601 (7th Cir. 2021). Thus, a “judge may not duck hard questions by
observing that each side has some [expert] support…. Tough questions must be
faced and squarely decided, if necessary by holding evidentiary hearings and
choosing between competing perspectives.” West v. Prudential Sec., Inc., 282
F.3d 935, 938 (7th Cir. 2002). See also In re Hydrogen Peroxide Antitrust Litig.,
552 F.3d 305, 324 (3d. Cir. 2008) (“Resolving expert disputes in order to
determine whether a class certification requirement has been met is always a task
for the court—no matter whether a dispute might appear to implicate the
‘credibility’ of one or more experts, a matter resembling those usually reserved for
a trier of fact.”).7

¶17 Because the circuit court failed to conduct a rigorous analysis of the
parties’ experts in this case, we conclude that it erroneously exercised its
discretion in certifying the class. See Santiago v. City of Chicago, 19 F.4th 1010,
1019 (7th Cir. 2021). For that reason alone, we must reverse.

¶18 Even if the circuit court had conducted a rigorous analysis of the
parties’ experts, there are other problems with its decision. As noted, the court

7
“Rigorous analysis need not be hampered by a concern for avoiding credibility issues
[because] findings with respect to class certification do not bind the ultimate fact-finder on the
merits.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 324 (3d. Cir. 2008).

7
No. 2024AP140

certified “all triable issues” but included language reserving the right to hold
individual hearings on one of those certified issues (i.e., damages).8 Also, one of
the certified issues was a claim for injunctive relief that did not apply to all of the
class members.

¶19 It is true that a court can split a case by certifying a class for some
issues but requiring individualized assessments for other issues not certified. See
Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911-12 (7th Cir. 2003) (certifying
a class for issues of causation but requiring individual hearings for other issues
such as damages, which were not certified). Likewise, it is true that a court can
revise a class definition to remedy an overbroad class. See Bruzek v. Husky Oil
Operations Ltd., 520 F.Supp.3d 1079, 1093 (W.D. Wis. 2021). However, the
circuit court did neither of those here.

¶20 On remand, the circuit court shall conduct a rigorous analysis of the
parties’ experts and make whatever factual and legal inquiries are necessary to
ensure that the requirements for class certification are met, even if those
considerations overlap with the merits of the respondents’ underlying claims. See
American Honda Motor Co. v. Allen, 600 F.3d 813, 815 (7th Cir. 2010). If the
court finds that the requirements for class certification are met, it must also ensure
that any division of issues is proper and that the class is representative of the
claims.9

8
It is unclear when the circuit court would invoke this right or how the appellants could
properly prepare for such hearings without individualized discovery. The court’s qualified
reservation of a certified issue appears unworkable and without precedent.
9
If necessary, the circuit court can create a subclass under WIS. STAT. § 803.08(7) to
remedy an overbroad class.

8
No. 2024AP140

By the Court.—Order reversed and cause remanded.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

9