Now don't go all wobbly. Sure, in a negligence case, the trial court denied plaintiffs' motion to certify a class, finding that no community of interest existed and that the class action vehicle was not a superior method of resolving the claims of putative class members. But that doesn't mean that California is suddenly a hotbed of negligence class actions. Negligence claims are still notoriously difficult to certify. Despite all that, this decision is worth a read.
In Bomersheim v. Los Angeles Gay And Lesbian Center (May 26, 2010), the Court of Appeal (Second Appellate District, Division One) reviewed a trial court order denying class certification. Concluding that the order was based on improper criteria and was not supported by substantial evidence, the Court reversed and directed the trial court to grant the motion.
The facts precipitating the case are succinctly summarized as follows:
From January 1999 to March 2004 defendant treated with Bicillin C-R more than 600 patients presenting with confirmed syphilis infection or reported sexual contact with someone who was known or suspected to be infected with syphilis. Bicillin C-R is not recommended for such use. The proper formulation would have been Bicillin L-A. Though both medications contain the same amount of penicillin, Bicillin C-R is a mixture of short- and long-acting penicillin, while Bicillin L-A is composed wholly of long-acting penicillin. Robert Bolan, M.D., the Center‟s medical director, admitted in deposition that Bicillin C-R “was incorrect for the condition . . . treated.”
Slip op., at 2.
The plaintiffs sought to represent a class defined as follows: "All California residents who, from 1999 to 2004, received from CENTER an improper dosage of penicillin for the treatment of syphilis, specifically Bicillin C-R, rather than Bicillin L-A, and who therefore underwent the retreatment process, whether at [the Center] or elsewhere." (Slip op., at 3, emphasis added.) That pesky "therefore" caused a bit of trouble and received quite a bit of attention from the Court.
Because commonality was the only prerequisite to certification that was found lacking, and no party to the appeal contested other findings, the Court turned to an analysis of the plaintiffs' only claim, negligence, to determine whether it was susceptible to common proof. On the issue of duty and breach of duty, the Court said:
Whether defendant owed a duty of care to putative class members is a question of law for the court. Whether it breached that duty is a question of fact. Defendant proffers no reason why individualized analysis is required to answer either question. As it is undisputed that all putative class members were defendant's patients, all sought treatment for syphilis, and all underwent similar treatment, retesting and retreatment regimens, the trial court rationally concluded the duty and breach elements will be susceptible to common proof.
Slip op., at 9. That left causation, which led immediately to the "therefore" problem:
Before we consider whether causation is susceptible to common proof we must disentangle it from the class definition. According to the definition, plaintiffs seek to represent individuals who received the nonrecommended medication “and who therefore underwent the retreatment process, whether at [the Center] or elsewhere.” (Italics added.) Plaintiffs argue “[t]he word 'therefore' in the class definition is the causation link, and thus the proposed class definition specifically identifies only those individuals who received retesting and retreatment as a result of the original mistreatment with Bicillin C-R.”
Slip op., at 10. The Court criticized the plaintiffs for creating confusion, rather than eliminating it:
Causation is neither an objective characteristic nor a common transactional fact, it is a subjective, ultimate fact. Its inclusion in the definition created a circular designation that interfered with the trial court's commonality analysis, where, focusing on the word “therefore,” the court concluded that “[u]nder the proposed class definition, . . . .” an “individual-by-individual inquiry” into causation would be necessary to determine “whether any individual actually is a member of the class.” This analysis conflated issues of the merits and class membership and strayed from the pertinent inquiry—whether causation is susceptible to common proof.
The class definition continues to muddy the predominance analysis on appeal, where plaintiffs argue no causation issue exists because only those individuals whose injuries were caused by mistreatment with Bicillin C-R are members of the class, by definition. The argument is meritless. As in any negligence case, proof of causation will require examination of defendant‟s actions and evaluation of the reasonably certain consequences of those actions. The issue cannot be waved away in a class definition.
The word “therefore” must be stricken from the definition.
Slip op., at 11.
Then, after criticizing, the plaintiffs for making a mess of the class definition and leading the trial court down a rabbit hole about causation, the Court then offered this interesting conclusion:
Plaintiffs implicitly argue causation can be established without individual testimony. Though their briefs are unclear, they appear to argue that the chronology of events itself tends to prove, on a classwide basis, that class members received retreatment as a direct result of having initially been mistreated. If this is plaintiffs' argument, we agree with it.
It is not necessary to show an individual‟s motivation by direct evidence. Whether one party‟s conduct induced another party‟s response can often be inferred from the circumstances attending the transaction. For example, in other contexts it is well established that “[w]here representations have been made in regard to a material matter and action has been taken, in the absence of evidence showing the contrary, it will be presumed that the representations were relied on.” (27 Williston on Contracts (4th ed. 1990) § 69.32, p. 12; Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 363 [fraud; an inference of reliance arises from a showing that representations were “made to persons whose acts thereafter were consistent with reliance upon the representation”]; Vasquez v. Superior Court (1971) 4 Cal.3d 800, 814 [fraud; “if the trial court finds material misrepresentations were made to the class members, at least an inference of reliance would arise as to the entire class.”]; Massachusetts Mutual Life Ins. Co. v. Superior Court (2002) 97 Cal.App.4th 1282, 1292 [consumer action]; see also People v. Matson (1974) 13 Cal.3d 35, 41 [“intent must usually be inferred from all of the facts and circumstances disclosed by the evidence, rarely being directly provable.”].)
Slip op., at 12. That was a life preserver. The defendant argued valiantly against the result, but the Court disagreed:
Defendant further argues that proving causation will require individual-by-individual analysis of the reasons why approximately 200 individuals who never returned to the Center for retreatment and why “many who did return to the Center declined retreatment . . . .” We disagree. Because those individuals are not members of the putative class, their actions and motivations are irrelevant.
Slip op., at 13.
Then, after noting that the plaintiffs conceded the need for individualized proof of damages, the Court turned to its predominance analysis:
We concluded above that common issues exist as to duty, breach and causation but not as to damages. The next question is whether common issues predominate over individual ones. Common issues predominate when they would be “the principal issues in any individual action, both in terms of time to be expended in their proof and of their importance.” (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 810.)
Slip op., at 14. After explaining that predominance is a comparative concept, and concluding that the proof of causation would not be an impossible undertaking the Court concluded that the litigation of the case as a class action appeared manageable:
Plaintiffs propose a number of ways to streamline the determination of damages, including making exemplar findings to establish a range of recovery, utilizing a proof of claim questionnaire, and establishing a special arbitration forum. Defendant offers no response to the proposals, and the trial court made no comment on them other than to note that they may require defendant to waive its right to a jury trial. Plaintiff‟s proposals suggest that damages can be determined fairly and expediently. Nothing suggests otherwise. If, after reasonable discovery, it appears that damages in this matter cannot be handled efficiently class wide, the court can divide the class into subclasses or decertify it altogether. (See Vasquez v. Superior Court, supra, 4 Cal.3d at p. 821.)
Slip op., at 16.
So, two major lessons. First, predominance analysis appears to be having something of a renaissance after Jaimez and this decision. Second, Bicillin L-A for syphilis.