Conventional wisdom says that classes involving personal injuries or emotional distress damages cannot be certified because individual issues predominate those types of claims. As Law360 reported on Tuesday, that conventional wisdom was confirmed by a recent decision in the litigation involving Similac powdered infant formula, which the manufacturer had recalled based on reports of beetle larvae contamination that allegedly caused some infants to suffer gastrointestinal problems. See Brandner v. Abbott Labs., Inc., Civ. A. No. 10-3242, Slip op. (E.D. La. Jan. 23, 2012).
Plaintiff sought certification of a Louisiana-only Rule 23(b)(3) class of purchasers of Similac products bearing recall lot numbers that were purchased during the recall purchase period. She asserted claims for personal injury and emotional distress damages under Louisiana's Product Liability Act, and she asserted economic loss under a theory of redhibition.
The court described its job as identifying the substantive issues that would control the outcome of the case, assessing which issues would predominate and whether they were common to the class, and then determining whether there is a way to try the case that would prevent "'the class from degenerating into a series of individual trials.'" Slip op. at 6 (quoting Madison v. Chalmette Refining LLC, 637 F.3d 551, 555 (5th Cir. 2011)).
The court examined the elements of an LPLA claim, and quickly concluded that it needed to go no further than holding that the elements of predominance and superiority were not met:
The Court finds that the individual issues predominate over issues common to the class. First, despite Brandner's argument to the contrary, the LPLA requires a plaintiff to demonstrate that the product was unreasonably dangerous when it left the manufacturer's control. Courts routinely deny claims when the plaintiff cannot establish this element of an LPLA cause of action. Whether each class member purchased contaminated Similac is subject to individualized, not collective, proof.
Second, each putative class member must establish that Abbott's actions were a proximate cause of his or her injury. . . . The court need not determine predominance with respect to general causation, because proving specific causation would require a determination of "an individual's family and medical history; age; gender; diet; . . . the timing of ingestion of the product; . . . whether that individual suffered an injury, when the injury occurred, the type of injury suffered, and the number of occurrences of the injury; the likelihood of injury; and/or the foundation as to whether a justifiable fear of injury exists." . . . This highly individualized inquiry leads the court to conclude that issues common to the class do not predominate.
Third, all plaintiffs who claim emotional distress . . . would have to establish not only the distress but also the attendant damages. . . . The damages issue requires a determination of whether plaintiffs sought medical treatment, psychiatric treatment, the degree to which plaintiffs manifested generalized fear, and the severity of plaintiffs' emotional distress. Because the determination of whether each member suffered emotional distress turns on a highly individualized assessment, questions of fact regarding individual members predominated over common issues of fact.
. . . Establishing emotional [distress] damages would entail the exact type of 'mini-trials' the Fifth Circuit has cautioned against.
Slip op. at 9-13 (citations omitted).
The court also denied certification of the redhibition claim, which required claimants to establish that the product had a physical imperfection or deformity at the time it was purchased in order for the claimants to recover the purchase price, as well as any interest. Plaintiff argued that the fact of the recall made the redhibition claim subject to common proof. The court held otherwise. Because the defendant's testing had not found contamination in every batch, and because many of the lots that were included within the recall simply were not tested at all, there was no way to know on a class-member-by-class-member basis whether the product actually was contaminated. If it was not, there was no claim under Louisiana redhibition law. Moreover, the recall was voluntary and did not admit contamination of each of the recalled lot numbers; in fact, the recall notice had said the possibility of contamination was remote. Accordingly, the court held that common issues did not predominate for this cause of action as well.
Because the court was able to decide the class certification motion on the issues of predominance and superiority, it did not engage in an analysis of Rule 23(a) factors or have to construe the Supreme Court's Wal-Mart v. Dukes decision.
Although the result in Brandner is hardly surprising, it is a good reminder why class actions for personal injuries and emotional distress simply are not suited for class action treatment.