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Friday, May 28, 2010

Court of Appeal Reverses Order Denying Class Certification

In Bomersheim v. Los Angeles Gay and Lesbian Center (May 26, 2010) --- Cal.App.4th ---, 2010 WL 2089653, the Second District Court of Appeal held that the trial court abused its discretion in denying class certification in an action by patients alleging that a health care provider negligently treated them with a drug that had not been approved for that purpose.

The trial court denied the plaintiffs' motion for class certification, finding that no community of interest existed among the putative class members "because individual issues of causation and damages predominated over common issues of duty and breach." Slip op. at 3. It also found that "proof of damages for pain and suffering would require the personal testimony of each class member," that "class treatment of putative members' claims would not be superior to individual treatment because the amount of damages potentially available-from $8,000 to $18,000, by one estimate-made individual action feasible, especially if more plaintiffs joined the action," and that the "individual issues in this case necessarily overwhelm the common issues." Slip op. at 4.

The Court held that causation could be inferred on a class-wide basis and need not require individual proof:

An inference of causation arises when a material event impacts an individual whose subsequent actions constitute a reasonable response. In the class context, where individuals are uniformly subjected to a material stimulus and thereafter uniformly act in a manner consistent with a reasonable response, a classwide inference is raised that the stimulus caused the response.

Here, putative class members all came to the Center seeking treatment for syphilis, a potentially life-threatening disease. They were given the wrong medication. After being informed that the treatment may have been ineffective, they sought retreatment. A reasonable inference as to the entire class is that the initial mistreatment caused members to seek retreatment. Causation can therefore be presumed on common proof.

After finding that the action would require individual proof of damages, the Court concluded that common issues still predominated:
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.


As discussed above, issues subject to common proof include those of duty, breach and causation. Though damages are not subject to common proof, they are susceptible to streamlined determination. We therefore conclude class treatment would be a superior method of resolving the claims.

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