LHO Indianapolis One Lessee, LLC v. Esther Bowman, Individually and on Behalf of Other Similarly Situated Individuals , 2015 Ind. App. LEXIS 561 ( 2015 )

Aug 11 2015, 8:06 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jill M. Felkins Robert A. Garelick
Segal McCambridge Singer & Mahoney Steven M. Crell
Chicago, Illinois John B. Bishop
Cohen Garelick & Glazier
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LHO Indianapolis One Lessee, August 11, 2015
LLC, Court of Appeals Case No.
49A02-1411-CT-811
Appellant-Defendant,
Appeal from the Marion Superior
v. Court.
The Honorable Theodore Sosin,
Judge.
Esther Bowman, Individually and
on Behalf of Other Similarly Cause No. 49D02-1310-CT-39975
Situated Individuals,
Appellee-Plaintiff
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, LHO Indianapolis One Lessee, LLC d/b/a Indianapolis
Marriott Downtown (Marriott), appeals the trial court’s certification of a class
defined by Appellee-Plaintiff, Ester Bowman (Bowman).
[2] We reverse and remand.
ISSUES
[3] Marriott raises three issues on appeal, which we consolidate and restate as the
following two issues:
(1) Whether the trial court erred in entering judgment on the merits in favor of
Bowman; and
(2) Whether the trial court abused its discretion in granting class certification
pursuant to Indiana Trial Rule 23.
FACTS AND PROCEDURAL HISTORY
[4] Alpha Kappa Alpha Sorority, Inc. (AKA) is a District of Columbia not-for-
profit corporation consisting of various undergraduate and graduate chapters
throughout the United States, whose principal business is managing all the
regional chapters of AKA. The Central Region of AKA is comprised of the
undergraduate and graduate chapters within Illinois, Indiana, Kentucky,
Wisconsin, Minnesota, North Dakota, South Dakota, and the southeastern
portion of Missouri. Each year, the AKA holds an annual conference for all
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chapter members within a specific region. In April 2013, the 79th Annual AKA
Central Regional Conference was held in Indiana at the Marriott in downtown
Indianapolis. Approximately 1,900 members of the Central Region attended
the conference.
[5] On Saturday, April 7, 2013, the Marriott catered a Luncheon which was
attended by approximately 800 sorority members. The Luncheon included a
choice of breaded, pan-seared chicken served with angel hair pasta and a
mandarin orange cream sauce or a vegetarian option. During the meal, about
12 chicken dishes were returned to the kitchen after guests complained that the
chicken appeared to be “pink.” (Appellant’s App. p. 181). At the conclusion of
the Luncheon, the 75 leftover chicken meals were consumed by Marriott staff.
Due to the number of complaints, Marriott’s Executive Chef performed a visual
inspection of the chicken and concluded that the chicken “was slightly pink
from the marinade and the orange sauce.” (Appellant’s App. p. 182). That
same evening, the Central Region organized a Gala event at the Marriott, at
which a chicken meal was also served.
[6] Bowman, an attendee at the conference, opted for and consumed the chicken
meal at the Luncheon. She attended the Gala later that evening. During the
early morning hours of Sunday, April 8, 2013, Bowman became violently ill,
experiencing bouts of severe diarrhea and vomiting for which she was
ultimately hospitalized. No samples were collected of the diarrhea or vomit to
test for the presence of food-borne pathogens, bacteria, or other contaminants.
Sorority Liaison, Gisele Casanova, compiled a list of 59 attendees who became
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sick that weekend and their corresponding symptoms. This list includes the
member’s name, chapter, symptoms, and address, as well as the place where
the attendee consumed food. The list omits the type of food eaten or the time
of the onset of symptoms. Moreover, the symptoms identified range from
diarrhea and vomiting to “cold like illness” and the generalized “sick.”
(Appellant’s Conf. App. pp. 203-04). Of all those attendees, there is no single,
consistent place of dining: some members ate at a separate undergraduate
luncheon, some ate at local restaurants, some ate at the Gala, and some ate at
multiple places. Of the 59 people reporting illness, only 24 ate at the Luncheon.
Predominately, most members who ate at the Luncheon and Gala and reported
food poisoning like symptoms reside in Indiana.
[7] On October 31, 2013, Bowman filed a Class Action Complaint alleging that she
and “61 others suffered personal injury and sustained economic loss as a result
of consuming tainted food at the Downtown Marriott.” (Appellant’s App. p.
18). On January 9, 2014, she filed her motion to certify the class. On January
27, 2014, Marriott filed its objection to class certification. Bowman
subsequently amended her motion. Following the necessary discovery, the trial
court conducted an evidentiary class certification hearing on October 7, 2014.
Thereafter, on October 28, 2014, the trial court concluded that Bowman
satisfied the requirements of Indiana Trial Rule 23(A) and 23(B)(3) and entered
its findings of fact and conclusions of law and judgment, granting Bowman
class certification.
[8] Marriott now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Judgment on the Merits
[9] Prior to turning to the class action certification, Marriott presents this court
with a procedural question. Specifically, Marriott contends that the trial court
erroneously rendered a final adjudication on the merits in favor of Bowman. In
its judgment, the trial court
ORDERED, ADJUDGED AND DECREED [] that judgment is
rendered in favor of [Bowman], individually and on behalf of other
similarly situated individuals and [Bowman’s] Amended Motion to
Certify Class Action should be and is hereby GRANTED and
[Marriott’s] Objection to [Bowman’s] Motion to Certify Class Action
should be and is hereby DENIED.
(Appellant’s App. p. 16). Focusing on the trial court’s entry and the trial court’s
use of “and,” Marriott identifies the existence of three separate rulings: “1)
judgment is rendered in favor of Bowman and 2) Bowman’s motion to certify
the class is granted and 3) Marriott’s objection is denied.” (Appellant’s Br. pp.
4-5).
[10] “Class certification is essentially a procedural order and carries no implication
about the merits of the case.” NIPSCO v. Bolka, 693 N.E.2d 613, 617 (Ind. Ct.
App. 1998), trans. denied. Thus, “in making a determination regarding class
certification, a trial court may not conduct a preliminary inquiry into the merits
of the suit.” Rene ex rel. Rene v. Reed, 726 N.E.2d 808, 816 (Ind. Ct. App. 2000).
As a “certification hearing is not intended to be a trial on the merits,” “Trial
Rule 23 does not require a potential class representative to show a likelihood of
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success on the merits in order to have his claim certified as a class action.”
Bolka, 693 N.E.2d at 617. Instead, assuming the merits of an action, a trial
court must determine whether the plaintiff has satisfied the requirements for
class certification under Trial Rule 23. Eggleston v. Chicago Journeymen Plumbers,
657 F.2d 890, 895 (7th Cir. 1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1710, 72
L. Ed. 2d 134 (1982).
[11] Although the trial court issued a “judgment,” considering the trial court’s entry
in totality, we cannot agree with Marriott that this pronouncement necessarily
correlates with a ruling on the merits of the cause. Statutorily, “[j]udgment”
means “all final orders, decrees, and determinations in an action and all orders
upon which executions may issue.” I.C. § 1-1-4-5. Contextually, it is clear that
the trial court merely evaluated Bowman’s compliance with the requirements of
T.R. 23 to reach its conclusion that class certification was warranted. In this
light, the trial court’s “judgment” should not be considered a decision on the
merits of Bowman’s action but rather an intermediate adjudication in this cause
upon which further action can be taken.
II. Class Certification
A. Standard of Review
[12] “The principal purpose of the class action certification is ‘promotion of
efficiency and economy of litigation.’” Gomez v. St. Vincent Health, Inc., 622
F. Supp. 2d 710, 717 (S.D. Ind. 2008). The plaintiff has the burden of
establishing that the class certification requirements of Trial Rule 23 have been
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met. Bolka, 693 N.E.2d at 615. Failure to meet any one of the requirements
results in the denial of class status. Rene, 726 N.E.2d at 816. Whether these
prerequisites have been met is a factual determination to be made by the trial
court. Ind. Bus. Coll. v. Hollowell, 818 N.E.2d 943, 949 (Ind. Ct. App. 2004).
[13] The trial court has broad discretion in determining whether an action is
maintainable as a class action, and thus we review its class certification for an
abuse of discretion. Associated Med. Networks, Ltd. v. Lewis, 824 N.E.2d 679, 682
(Ind. 2005). An abuse of discretion occurs when the trial court’s decision rests
upon a clearly erroneous finding of fact, an errant conclusion of law, or an
improper application of law and fact. Rene, 726 N.E.2d at 817. The trial
court’s certification determination will be affirmed if supported by substantial
evidence. Id. We neither reweigh the evidence nor judge the credibility of
witnesses and affirm if the evidence most favorable to the judgment and all
reasonable inferences drawn therefrom support the trial court’s decisions.
Hollowell, 818 N.E.2d at 949. Because Indiana Trial Rule 23 is based on Rule
23 of the Federal Rules of Civil Procedure, it is appropriate to consider federal
court interpretations when applying the Indiana Rule. Chicago Title Ins. Co. v.
Gresh, 888 N.E.2d 779, 782 (Ind. Ct. App. 2008).
B. Indiana Trial Rule 23
[14] Indiana Trial Rule 23 governs class action certifications. A party requesting
class certification must prove that the proposed class meets all of the
requirements of Ind. T.R. 23(A) and at least one of the requirements of T.R.
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23(B). Wal-Mart Stores, Inc. v. Bailey, 808 N.E.2d 1198, 1201 (Ind. Ct. App.
2004), reh’g denied, trans. denied. In addition to the express requirements for
class certification, there is an implicit “definiteness” requirement. Id. A
properly defined class is necessary at the onset because a judgment in a class
action has a res judicata effect on absent class members. Id.
1. Class Definition
[15] Reviewing the boundaries of the class, we note that “the class definition must
be specific enough for the court to determine whether or not an individual is a
member.” Id. In her Complaint, Bowman defined the proposed class as:
Individuals who attended a [L]uncheon on April 6, 2013, at the
Downtown Marriott and who all suffered gastrointestinal illnesses and
other injuries arising from the food they consumed at the [L]uncheon.
(Appellant’s App. p. 19). In its Judgment granting the certification, the trial
court omitted to include a specific definition. Despite this omission and
unrequested by the parties, the trial court sua sponte appeared to enlarge the
proposed group of class members in its conclusions. Specifically, focusing on
both the Luncheon and the Gala, the trial court concluded that “all class
members consumed the meal which was served at that Luncheon, Gala, or
both.” (Appellant’s App. p. 15). As the trial court “can redefine a class in
order to sustain the lawsuit,” we will evaluate the trial court’s enlarged class
definition in light of the certification requirements of T.R. 23. Id. at 1202.
2. Indiana Trial Rule 23(A)
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[16] Indiana Trial Rule 23(A) provides that a plaintiff may sue as a representative on
behalf of a class if the following four requirements are met:
(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; and
(4) The representative parties will fairly and adequately protect the
interests of the class.
[17] Marriott places all four requirements squarely at issue here. 1
i. Numerosity
[18] With respect to the numerosity prerequisite of T.R. 23(A)(1), Marriott contends
that applying a strict class certification as defined in the Complaint yields a
class membership of a mere 24 members who became ill following participation
at the Luncheon, rather than the 59 members resulting from the trial court’s
enlarged class membership. As a result, Marriott maintains that the trial court
abused its discretion by concluding that numerosity was satisfied upon finding
nothing more than conclusory allegations of impractable joinder and
speculation about the potential class size.
1
Marriott commences its analysis with a claim that several of the trial court’s findings of fact are not
supported by the evidence. However, each of these allegations refer to a specific requirement of TR 23(A)
and therefore will be discussed within the appropriate subsection.
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[19] Whether the actual number of persons affected is 24 or 59, the numerosity
prerequisite is not simply a test of numbers. McCart v. Chief Executive Officer in
Charge, Indep. Fed. Credit Union , 652 N.E.2d 80, 83 (Ind. Ct. App. 1995), reh’g
denied, trans. denied. The real inquiry under the rule is whether joinder would be
impracticable. See T.R. 23(A)(1). In discussing the numerosity requirement,
we have previously stated that this analysis
requires an examination of the specific facts and circumstances of each
case. Proponents of the class are not required to specify the identities
or exact number of persons included in the proposed class, but they
may not rely on conclusory allegations that joinder is impracticable or
upon speculation as to the size of the class. Instead, they must supply
facts or demonstrate circumstances which provide support for a
reasonable estimate of the number of class members. A finding of
numerosity may be supported by common sense assumptions. Courts
interpreting the identical provision of the federal rule have recognized
that while numerosity analysis does not rest on a “magic” number,
permissive joinder has been deemed impracticable where class
members number forty or more. The numerosity inquiry requires the
court to consider judicial economy and the ability of the class members
to institute individual suits.
Bolka, 693 N.E.2d at 616 (internal citations omitted).
[20] Here, the trial court found that:
Bowman has, at this time, satisfied the requirements of T.R. 23(A)(1).
At the class certification hearing Bowman presented evidence that she,
along with fifty-eight (58) other self-reporting conference attendees, all
experienced highly similar symptoms of illness upon eating at the
hotel. This list is not inclusive; it only accounts for those [c]onference
members who voluntarily reported their complaints to Marriott. []
Allowing at least fifty-nine (59) individuals to pursue their claims
against Marriott via separate lawsuits would not only be impracticable
for the parties, but it would also be impracticable for this [c]ourt to
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adjudicate all of these claims individually. As such, the class is too
numerous for joinder of all of the class members to be practicable.
(Appellant’s App. p. 13).
[21] While Marriott repeatedly suggests that Bowman must establish the class
boundaries before the class can be certified and cannot rely on the inclusion of
possible potential class members, Bowman is “not required to specify the
identities or exact number of persons included in the proposed class, and the
fact that the number of class members cannot be determined with precision
does not defeat certification.” 7-Eleven, Inc. v. Bowens, 857 N.E.2d 382, 392
(Ind. Ct. App. 2006). Although a party moving for class certification may not
rely on conclusory allegations that joinder is impractical or upon speculation as
to the size of the class, plaintiffs must supply facts or demonstrate
circumstances that provide support for a reasonable estimate of the number of
class members. Id.
[22] We find that Bowman satisfied the numerosity prerequisite of T.R. 23(A).
Bowman presented sufficient evidence to define the class boundaries as
members attending and consuming a meal at the Luncheon and/or Gala and
suffering gastrointestinal illnesses and other injuries thereafter. Besides the self-
reporting attendees, Bowman also submitted proof as to the total number of
possible attendees at either event. Paring down the list of attendees to fit within
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the class’ boundaries 2 and given the number projected by the trial court, it was
within the trial court’s discretion to determine that joinder of this reasonable
estimate was impracticable.
ii. Commonality
[23] The Marriott also takes issue with the trial court’s determination that the
commonality requirement of T.R. 23(A)(2) was met and asserts that “[i]n food
liability cases such as this, similarity of symptoms is not always indicative of
commonality.” (Appellant’s Br. p. 14).
[24] The commonality prerequisite focuses on the characteristics of the class.
Connerwood Healthcare, Inc. v. Estate of Herron, 683 N.E.2d 1322, 1327 (Ind. Ct
App. 1997). This requirement is satisfied if the individual plaintiff’s claims are
derived from a common nucleus of operative fact, which is described as a
“common course of conduct.” Id. See also Hollowell, 818 N.E.2d at 950.
[25] In concluding that commonality was satisfied, the trial court found:
Bowman presented evidence that she and all members exhibited nearly
identical symptoms, all of their symptoms are consistent with those
typical of food contamination, including diarrhea; vomiting;
gastrointestinal cramping; and chills, and the onset of symptoms for all
class members occurred roughly within twelve hours after eating at the
Luncheon. Thus, all of the class members present questions of law
2
The names on the list also include individuals who did not dine at either the Luncheon or the Gala and
consequently cannot participate in the class.
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and fact which are common to the class as a whole to make class
certification proper.
(Appellant’s App. pp. 13-14).
[26] Focusing on the nature and severity of the members’ symptoms, Marriott
disputes their commonality because there is no evidence classifying the list of
symptoms as typical of food contamination. Rather, Marriott argues that “[a]s
the list of symptoms illustrates, some individuals experienced ‘cold like
symptoms,’ ‘congestion,’ or general ‘illness.’” (Appellant’s Br. p. 14).
[27] The fact that members have a different degree of symptoms or damages does
not negate the commonality component. To this effect, we found in
Connerwood that “the negligent use and preparation of nonpasteurized egg
products [which] caused the food poisoning” constituted a common course of
conduct even though “70 persons developed one or more symptoms of food
poisoning” while only some class members tested positive for salmonella.
Connerwood, 683 N.E.2d at 1327, 1325. As such, individual questions do not
prevent a class action on common questions. Bank One, Indianapolis, N.A. v.
Norton, 557 N.E.2d 1038, 1042 (Ind. Ct. App. 1990). As one treatise explains,
“even if only one common issue can be identified as appropriate for class action
treatment, that is enough to justify the application of the provision as long as
the other Rule 23 requirements have been met.” 7B Charles Alan Wright,
Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 1790 (2d
ed. 1986) (footnotes omitted).
[28] While we agree with Marriott that there is no evidence conclusively establishing
that the “onset of the symptoms [] occurred roughly within twelve hours” of
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consuming the allegedly contaminated meal, we find that sufficient facts exists
which portray a common nucleus of operative facts. Specifically, the claim that
contaminated meals were served during the Luncheon and Gala on April 6,
2013, at the Marriott which gave rise to the guests’ complaints of one or more
symptoms of food poisoning amounts to a “common course of conduct.”
Connerwood, 683 N.E.2d at 1327. Therefore, the trial court did not abuse its
discretion in finding the commonality prerequisite satisfied.
iii. Typicality 3
[29] Next, Marriott contends that the typicality requirement is not established
because “there are substantial differences among the putative class members in
terms of what they ate, where they ate, and what they were exposed to, when
they became ill, what their symptoms were, and how they were damaged.”
(Appellant’s Br. p. 15). We disagree.
[30] The typicality requirement does not mandate Bowman to show that all claims
are identical. 7-Eleven, Inc., 857 N.E.2d at 392. Instead, this requirement is
satisfied if the representative plaintiff’s claim is neither in conflict nor
antagonistic to the class as a whole. Id.
[31] With respect to typicality, the trial court concluded that:
3
Marriott’s typicality argument includes an expose on the distinction between general liability and proximate
cause. As we find this contention more appropriately related to the requirements of T.R. 23(B)(3), we shall
not address Marriott’s claim with respect to liability at this time.
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Bowman has, at this time, satisfied the requirements of T.R. 23(A)(3).
[] All members of the class not only have the same claims, but
Bowman’s claims as class representative are also “neither in conflict
with nor antagonistic to the class as a whole.” It is not uncommon for
individuals that have been afflicted with the same illness to not show
perfectly identical symptoms and of the same severity. As these
factual distinctions in the class do not defeat satisfaction of the
requirements of T.R. 23(A)(3), Bowman has satisfied this requirement.
(Appellant’s App. p. 14) (internal citations omitted).
[32] As noted by the trial court, all plaintiffs complained that their injuries were
instigated by the contaminated food served by Marriott during the Luncheon
and/or Gala on April 6, 2013. As Bowman presents a claim which does not
differ dramatically from the other plaintiffs’ claims, her contentions are neither
in conflict nor antagonistic to the class as a whole. We affirm the trial court
with respect to typicality.
iv. Adequacy
[33] Marriott represents that the instant action was improperly certified as a class
action because Bowman cannot fairly and adequately represent the class.
Indiana’s Trial Rule 23(A)(4) adequacy requirement has three components: 1)
the chosen class representative cannot have antagonistic or conflicting claims
with other members of the class; 2) the named representative must have a
sufficient interest in the outcome to ensure vigorous adequacy; and 3) counsel
for the named plaintiff must be competent, experienced, qualified, and generally
able to conduct the proposed litigation vigorously. Bolka, 693 N.E.2d at 618.
[34] In this respect, the trial court held that:
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In satisfying prong one of T.R. 23(A)(4), and as previously discussed,
Bowman, as the chosen class representative, does not have
antagonistic or conflicting claims with the other members of the class.
Secondly, Bowman, as class representative, has more than sufficient
interest in the outcome of the cause of action in order to ensure
vigorous advocacy. Bowman was not only stricken with the terrible
symptoms that all class members experienced, she also spent several
days in the hospital as a result. Bowman’s experiences as a result of
her illness caused her to have not only sufficient but also a significant
interest in the outcome to ensure vigorous advocacy. Lastly, lead
counsel for Bowman has forty-eight (48) years of legal experience
primarily focused in litigation, and has previously handled a food
poisoning case. Likewise, counsel and counsel’s firm have handled
class actions previously such that both are qualified and experienced to
adequately and professionally conduct the litigation on behalf of
Bowman and [] all of the class members.
(Appellant’s App. pp. 14-15).
[35] Focusing on the adequacy of Bowman’s representation, Marriott contends that
Bowman neither possesses the same interest nor suffered the same injury as the
class and therefore class certification should be defeated. Specifically, Marriott
argues that Bowman has no evidence linking her illness to any particular food
she consumed at the hotel, nor were her physicians able to make a
determinative diagnosis as to whether her illness was caused by food poisoning.
Rather, Marriott claims that the record established that Bowman, unlike any
other class member, “developed an irregular heartbeat as a result of the
occurrence.” (Appellant’s Br. p. 19).
[36] At the moment, Bowman is a suitable representative of the class. Bowman has
the same interest and suffered similar injures as the other class members. She
attended and consumed food at both the Luncheon and Gala. She became
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violently ill thereafter, experiencing bouts of severe diarrhea and vomiting for
which she was ultimately hospitalized. It should be remembered that a class
action certification is not a decision on the merits. See, e.g., id. Thus, the
availability of potential individualized defenses to Marriott against Bowman’s
claim is not a bar to class certification. Indiana Trial Rule 23(D)(2)
contemplates that a representative might have to be replaced, since it provides
for the appointment by the trial court of new representatives should such
appointment become necessary. See, e.g., Bolka, 693 N.E.2d at 618 (we rejected
NIPSCO’s argument that plaintiff’s claim was statutorily barred and therefore
plaintiff was an inadequate representative of the class.) Once the issue of
liability is determined, Marriott has the right to present its defense which may
or may not be applicable to all members, including Bowman. Even if
Marriott’s defense proves to be a bar to recovery for Bowman personally, it is
within a trial court’s power to—at that point—decertify the action for damages
or appoint a new representative. However, until adjudication is made on the
common issue and Marriott presents a defense to Bowman’s claim, Bowman is
an adequate representative.
3. Indiana Trial Rule 23(B)
[37] Of the three listed, additional prerequisites, any one of which is sufficient to
support class certification, the trial court concluded that T.R. 23(B)(3) was
satisfied. Indiana Trial Rule 23(B)(3) requires the trial court to “find 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
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superior to other available methods for the fair and efficient adjudication of the
controversy.” The matters pertinent to this finding include:
(a) The interest of 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;
(c) The desirability or undesirability of concentrating the litigation of
the claims in the particular forum;
(d) The difficulties likely to be encountered in the management of a
class action.
T.R. 23(B)(3).
[38] Marriott disputes that Bowman has met the requirements of Indiana Trial Rule
23(B)(3), which mandates not only the existence of questions of law or fact
common to the members of the class but also requires these questions to
predominate over any questions affecting only individual members. See
Associated Med. Networks, Ltd., 824 N.E.2d at 684. There is no precise test for
determining whether common questions of fact or law predominate; instead,
Indiana Trial Rule 23(B)(3) requires a pragmatic assessment of the entire action
and all the issues involved. Id. at 686.
i. Predominance - Legal Standard of Analysis
[39] Initially, prior to turning to the merits of its T.R. 23(B)(3) argument, Marriott
contends that the trial court analyzed predominance under an incorrect legal
standard. To posit its claim of error, Marriott relies on the trial court’s
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statement that “[t]he requirements of T.R. 23(B)(3) mirror those of T.R.
23(A)(2) and are ‘satisfied if the claims of the individual plaintiffs are derived
from a common nucleus of operative facts.’” (Appellant’s App. p. 15) (internal
citation omitted). Because the analytic evaluation for each statutory subsection
of T.R 23(B) is distinct from those of T.R. 23(A), Marriott maintains that a
reversal of the trial court’s decision is warranted.
[40] We have stated before that while there is a certain overlap between T.R.
23(A)(2) and T.R. 23(B)(3), the “requirement of commonality is [] augmented
by the predominance requirement of T.R. 23(B)(3), which requires not only the
existence of ‘questions of law or fact common to the members of the class,’ but
also that these questions must ‘predominate over any questions affecting only
individual members.’” Associated Med. Networks, Ltd., 824 N.E.2d at 684. As
such, we have held that “there must be more than a mere nucleus of facts in
common with the plaintiff class.” Id. at 685. Thus, predominance requires
more than commonality. Id.
[41] The trial court concluded that because “Bowman and the class members’ claims
all derive from a common nucleus,” the predominance requirement was
satisfied. (Appellant’s App. p. 15). Although “the claims may arise from ‘a
common nucleus of operative facts,’ [this] does not mean that the common
claims necessarily predominate.” Associated Med. Networks, Ltd., 824 N.E.2d at
685 (citing Wal-Mart Stores Inc., 808 N.E.2d at 1204). We find this to be the case
here.
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ii. Predominance – Characteristics
[42] As noted before, there is no precise test for determining whether common
questions of law or fact predominate; instead, Indiana Trial Rule 23(B)(3)
requires a pragmatic assessment of the entire action and all the issues involved.
7-Eleven, Inc., 857 N.E.2d at 393.
In making this decision, we consider whether the substantive elements
of class members’ claims require the same proof for each class
member; whether the proposed class is bound together by a mutual
interest in resolving common questions more than it is divided by
individual interests; whether the resolution of an issue common to the
class would significantly advance the litigation; whether one or more
common issues constitute significant parts of each class member’s
individuals cases; whether the common questions are central to all of
the members’ claims; and whether the same theory of liability is
asserted by or against all class members, and all defendants raise the
same basic defenses.
Associated Med. Networks, Ltd., 824 N.E.2d at 686.
[43] Marriott contends that the case is dominated by the individual issues of
causation and damages. It specifies that “even if a jury found that food served
at the Marriott was contaminated or defective, each claimant would still need to
prove that his or her injuries were proximately caused by consumption of
Marriott food, including a diagnosis linking their alleged illness with food
service associated with the Marriott.” (Appellant’s Br. pp. 21-22). As such,
Marriott maintains that “[t]his individualized process would predominate over
any issues common to the class such that class treatment would be ineffective
and inappropriate.” (Appellant’s Br. p. 22).
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[44] Causation is typically discussed in terms of generic and specific causation. 7-
Eleven, Inc., 857 N.E.2d at 389. General or generic causation has been defined
by courts to mean whether the substance at issue had the capacity to cause the
harm alleged, while individual causation refers to whether a particular
individual suffers from a particular ailment as a result of exposure to a
substance. Id. To prevail on a claim, the class will have to establish both
generic and individual causation. Id. Similarly, here, this means that Bowman
must establish not only that the food was contaminated by Mariott and was
capable of causing the symptoms and injuries complained of, but in addition,
that the contaminated food was the cause-in-fact of each class member’s specific
ailments.
[45] To account for the distinction in proof between generic and proximate
causation, this court affirmed the trial court’s limited class certification as to the
issues of liability and causation in 7-Eleven, Inc. See 7-Eleven, Inc., 857 N.E.2d at
389. Requesting a class action certification after a neighborhood’s groundwater
was contaminated by a release of gasoline and plaintiffs incurred health risks
associated with exposure to the chemicals, plaintiffs advocated for a class
definition limited to “the issue of general liability in which an expert would
testify that exposure to the contamination would ‘cause certain health
symptoms in a general way.’” Id. at 388 (internal reference omitted). The
plaintiffs proposed that after general causation was determined, “there would be
a series of individual trials for the class members whose injuries fell within those
established as a matter of general causation.” Id. Concluding that this limited
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class certification would reduce repetitious litigation as “those class members
who cannot establish the issues of general liability would not be entitled to
recover, effectively limiting the scope of the class,” we affirmed the trial court’s
decision. Id. at 399.
[46] However, prior to our decision in 7-Eleven, Inc., this court stated:
In the typical mass tort situation, such as an airplane crash or a cruise
ship food poisoning, proximate cause can be determined on a class-wide
basis because the cause of the common disaster is the same for each of
the plaintiffs.
Connerwood, 683 N.E.2d at 1327 (quoting In re Northern Dist. of Cal., Dalkon
Shield IUD Prod. Liab. Litig. v. A.H. Robbins Co., 693 F.2d 847, 853 (9th Cir.
1982), cert. denied, 459 U.S. 1171 (1983)) (emphasis in original). In Connerwood,
the estate of a deceased nursing home resident sought certification for a class
action arising out of the food poisoning of approximately seventy residents and
employees after developing one or more symptoms of food poisoning. Id. at
1325. We affirmed the trial court’s certification because “[t]he potential class
members are elderly and medically compromised and may be incapable of
exercising their own rights. This action originates from common operative facts
and both state and federal courts have determined that class action treatment is
appropriate for a mass tort such as food poisoning.” 4 Id. at 1329.
4
We decided Connerwood several years prior to our opinion in 7-Eleven, Inc. which elaborately explained the
predominance requirements of T.R. 23(B)(3). Without having had the benefit of this detailed analysis,
Connerwood appears to equate the requirements of the common facts in T.R. 23(A)(2) with the predominance
requirements of T.R. 23(B)(3).
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[47] The class action certification of an airplane crash or a cruise line food poisoning
case, and even Connerwood, must be distinguished from the instant cause at
Marriot. While in the former, proximate cause exists in a controlled and
limited environment and can be determined on a class-wide basis because the
cause and consequences of the common disaster are identical for all the
members, causation in the case at bar is more wide-ranging. Not only is there
no consistency among the individual member’s dining options and locations—
some members attended the Luncheon or the Gala, and some attended both—
there are differences in the food consumed—as Bowman has not yet
conclusively established the exact cause of the alleged food contamination—
and there is a distinction in injuries—some members complained of vomiting
while others incurred “illness” or “congestion.” (Appellant’s Conf. App. pp.
203-04).
[48] By applying the procedural device of a class action certification, the court can
initially assess Marriott’s potential liability for its conduct without regard to the
individual components of each class member’s injuries, i.e., whether
contaminated food was served during the Luncheon and/or Gala. However,
after Marriott’s general liability is established, it becomes the responsibility of
each individual member to show that the member ingested the contaminated
food and that his or her specific injuries or damages were proximately caused
thereby. We cannot emphasize this point strongly enough because generalized
proof will not suffice to prove individual damages. The main problem this
appellate court has on review stems from a failure to differentiate between the
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general and the particular. Although many common issues of fact and law will
be capable of resolution on a group basis, customized and particularized
damages must be established at an individual level.
[49] Thus, the practical reality of a class certification in this case reveals that while it
will be relatively easy to establish Marriott’s generic liability, the case will
become inevitably dominated by the individual issues of extent and nature of
the injuries, and the degree of exposure. As such, there would be inextricable
entanglement with the individualized issues of proximate cause that will no
doubt subsume any common questions that may be present. Accordingly, we
cannot conclude that the class, as certified by the trial court, would contribute
to the economies of time, effort, and expense that a class certification is
intended to achieve. See Gomez, 622 F. Supp. 2d at 717. Finding that the
questions of law and fact common to the members of the class do not
predominate over the issues affecting the individual members, we reverse the
trial court’s certification. See T.R. 23(B)(3).
iii. Option on Remand
[50] Even though we have determined that the class as defined is not properly
maintainable, the class may be redefined in order to sustain the lawsuit. See
T.R. 23(C)(1). Indiana Trial Rule 23(C)(4)(a) provides that when appropriate,
“an action may be brought or maintained as a class action with respect to
particular issues[.]” As we have recognized:
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The theory of Rule 23(C)(4)(A) is that the advantages and economies
of adjudicating issues that are common to the entire class on a
representative basis should be secured even though other issues in the
case may have to be litigated separately by each class member.
Accordingly, even if only one common issue can be identified as
appropriate for class action treatment that is enough to justify the
application of the provision as long as the other Rule 23 requirements
have been met. As a result, cases have applied subdivision (C)(4)(A)
to allow a partial class action to go forward and have left questions of
reliance, damages, and other issues to be adjudicated on an individual
basis.
Bank One Indianapolis, N.A. v. Norton, 557 N.E.2d 1038, 1041 (Ind. Ct. App.
1990) (quoting 7B C. Wright, A. Miller & M. Kane, Federal Practice and
Procedure: Civil 2d § 1790, 271-74 (1986) (footnotes omitted)).
[51] In light of the possibility that Bowman wishes to proceed with certification
under T.R. 23(B)(3), we recommend the trial court to follow the lead of the 7-
Eleven, Inc. court and certify the class with respect to Marriott’s general liability
only, with proximate cause of the members to be determined in a series of
individual hearings. As to generic causation, we believe the substantive
elements of the claims require the same proof for each class member, the class is
bound together by a mutual interest in resolving this common question more
than it is divided by individual interests, that the resolution of this common
issue will significantly advance the litigation, and that a common question
central to all of the members’ claims exists. See Associated Med. Networks, Ltd.,
824 N.E.2d at 685. As our supreme court has explained:
The predominance test really involved an attempt to achieve a balance
between the value of allowing individual actions to be instituted so
that each person can protect his own interests and the economy that
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can be achieved by allowing a multiple party dispute to be resolved on
a class action basis.
Id. at 685. We believe that by certifying only the general causation issue, this
balance between the individual’s values and the judicial economy of jointly
adjudicating common issues will be achieved. We remand to the trial court.
CONCLUSION
[52] Based on the foregoing, we conclude that the trial court entered a judgment in
favor of Bowman solely with respect to her class certification request and did
not enter a judgment on the merits. Furthermore, because we conclude that
Bowman did not satisfy the predominance requirement of T.R. 23(B)(3), we
reverse the trial court’s certification of the class and remand the cause for
further proceedings consistent with this opinion.
[53] Reversed and remanded.
[54] Bailey, J. and Barnes, J. concur
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