Opinion
NO. 1:01-CV-00566
April 1, 2004
ORDER
The Parties met before the Court, on March 31, 2004, fora status conference in this matter. The Court held such conferencein order to address Plaintiffs' Motion for Approval of Class Notice, and For Trial Scheduling Order, Bellwether Trial, Summary Jury Trial, and Status Conference (doc. 138), Hamilton County Defendants' Cross Motion and Response (doc. 158), Defendant Dr.Parrott's Response (doc. 159), Defendant Thomas Condon's Response (doc. 160), and Defendant Dr. Tobias' Response (doc. 161). The Court GRANTS in part Plaintiffs' Motion (doc. 138) to the extent that it approves class notice as indicated herein and sets a trial and summary jury trial schedule. The Court DENIES Plaintiffs' Motion (doc. 138) to the extent that it declines at this time to conduct the trial using bellwether plaintiffs. The Court's opinion and scheduling order follows.
Plaintiff's Motion (doc. 138)
Pursuant to Rule 23(b)(3), Plaintiffs seek an order providing for approval of proposed class notice, and 1) requiring Defendants to divulge the names and addresses of all next-of-kin of every person whose body was in the morgue during the period of August 2000 to January 2001; 2) requiring that at least five copies of the notice be mailed to each such person, for distribution to the decedent's relatives; and 3) requiring that abbreviated notice be published once in the Cincinnati Enquirer and in the Cincinnati Post.
Plaintiffs also seek a trial and summary jury trial plan, using the "bellwether" method to try representative compensatory damage claims. Plaintiffs posit that such a method could be used to more efficiently manage the trial process. Plaintiffs propose that the claims in this case could be resolved by combining such method with an extrapolation of the average of the compensatory damage verdicts to all similar cases, or the referral of liability and damage verdicts to a special master.
Hamilton County Defendants' Cross Motion and Response (doc. 158)
The Hamilton County Defendants posit that Plaintiffs' request for an order on trial structure and organization is premature, as the discovery cut-off has not been set in the case, and the Court would be in a better posture to handle such questions after ruling on all dispositive motions. Defendants argue that full discovery will show that there is not evidence that more than fourteen corpses were "accessed, viewed, manipulated, or photographed" so that the class certified by the Court will be unable to survive a summary judgment motion. Next, Defendants argue that they will raise the issue of qualified immunity, which is immediately appeal able to the Sixth Circuit, so that this case cannot proceed to trial until the Sixth Circuit rules on the issue of qualified immunity. Defendants further argue that their motions for summary judgment will show that Plaintiffs' calculation of class size is based on pure speculation. For these reasons, Defendants argue that choosing bellwether plaintiffs will not be necessary for the resolution of this matter. Finally, Defendants indicate that as they have petitioned the Sixth Circuit for a writ of mandamus to compel this Court to vacate its order permitting Plaintiffs to take the depositions of the non-party prosecuting attorneys, the case cannot proceed to trial until such question is resolved.
Defendants specifically attack Plaintiffs' proposal for the use of bellwether plaintiffs. Defendants argue that 1) this case is not akin to a massive toxic tort exposure which is suited for such a device, rather this case involves differing degrees of individual harm; and 2) Plaintiffs' method for selecting bellwethers is unfair as it would allow them to choose their "best plaintiffs" to represent the entire class, and the use of non-representative bellwether plaintiffs would usurp the very purpose of the bellwether trial.
Defendants argue that the need for a summary jury trial should be determined after discovery is completed and the Court has ruled on dispositive motions.
Finally, Defendants argue that the proposed class notice is inappropriate and expands the class beyond those enumerated in the Order granting class certification. Defendants argue that the class of those "accessed, viewed, manipulated, or photographed" does not include all individuals whose family members' corpses were in the morgue during the defined period. Defendants posit that notifying individuals for whom there is no evidence that they could be a part of the class is negligent and potentially harmful. Defendants argue that the resolution of dispositive motions would help the determination of what individuals could be appropriately notified.
Dr. Parrott's Response (doc. 159)
Dr. Parrott incorporates by reference the Hamilton County Defendants' Cross Motion and Response, while adding that he has filed a Motion for Summary Judgment. Dr. Parrott indicates that with reference to claims against him in his individual capacity, he is entitled to judgment in his favor on the basis of qualified immunity.
Defendant Condon's Response (doc. 160)
Condon argues that under Rule 23(c)(2)(B), individual notice should be provided to all members "who can be identified" through a reasonable effort. Condon posits that there is no allegation that every body in the custody of the Coroner's office between August of 2000 and January of 2001 was accessed, viewed, manipulated, or photographed, such that the proposed notice is overinclusive. Condon avers that the only existing evidence shows that he was in the morgue on only five days, and the families of the known bodies have already been notified. Sending out notice therefore is in appropriate and premature, argues Condon. Finally, Condon indicates that the proposed class notice is defective for failing to indicate that Defendants deny Plaintiffs' claims and that such claims will be decided in a jury trial, for failing to include an exclusion form, and for proposing that Defendants bear costs of sending the notice.
Defendant Tobias' Response (doc. 161)
Tobias argues that discovery subsequent to the class certification decision shows that the class is small and its members are easily identifiable. As such, Tobias posits that sending out notice to potentially thousands of people is unwise and irresponsible, as it could cause significant psychological trauma to those receiving notice, most of whom are not class members. Tobias reiterates Condon's argument that Rule 23 requires that notice be sent to those class members who can be identified through reasonable effort, and not to an overbroad group of people that happens to include class members. Tobias argues that courts have delayed sending notice until after the consideration of dispositive motions because if such motions were successful, the members of the class would not be disturbed by such notice. (Citing Wooten v. Hamilton County, 94 F.R.D. 176 (S.D. Ohio 1982).
Discussion
At the March 30, 2004 conference, the Court determined that the time is ripe for class notice to be sent to class members under Fed.R.Civ.P. 23(c). Although the Defendants argued that such notice risks to cause harm to members receiving it, the Court finds that Defendants should have considered such potential harm before permitting the actions to take place that gave rise to this matter. Plaintiffs correctly argued that such position disregards the mechanics of Rule 23.
After discussion with the Court, the parties agreed to amend the notice, adding "allegedly," so as to state that the class action is brought on behalf of all family members of all the deceased whose bodies were allegedly accessed, viewed, manipulated, or photographed by Thomas Condon, by Jonathan Tobias, or by one of their agents between August 2000 and January 2001, while such bodies were in custody of the Hamilton County Coroner's Officer, without permission from the legal representatives of the deceased. The parties further agreed to indicate in the notice that Defendants deny liability. Counsel for the County further agreed to provide Plaintiffs with a list of addresses of next-of-kin for each of the decedents in the morgue during the class period. The Court found well-taken Plaintiffs' proposal that such notice be published in the Cincinnati Enquirer and the Cincinnati Post.
The Court denies Plaintiffs' request for a bellwethertrial at this time. This matter will be managed with a standardsummary jury trial and then a trial on the merits. Finally, theCourt established the following trial schedule:
I PROCEEDINGS FOR TRIAL
This matter will proceed to trial as follows:
(A) Any further dispositive motions will be filed by September 1, 2004. Motions must be filed by this date, and any motions filed after this date may be subject to a motion to strike.
This motion deadline does not apply to motions on qualified immunity nor on the issue of liability, which shall be filed on an expedited basis as follows: All motions on qualified immunity must be filed by April 2, 2004, Plaintiffs must respond to such motions by April 9, 2004, and Moving parties must reply by April 19, 2004. The parties must file cross motions for summary judgment on the issue of liability by May 1, 2004.
Parties are referred to Local Rule 7.2, which restricts letters to the Court. Correspondence with the Court should be by motion, except as expressly permitted by the Rule.
(B) Discovery will be completed by August 1, 2004.All matters relating to discovery will be referred to the United States Magistrate Judge to whom the case has been assigned.
(C) A final pretrial conference has been tentatively scheduled for October 7, 2004, at2:00 P.M.
(D) A charging conference for the summary jury trial is tentatively scheduled for December 1, 2004, at 2:00 p.m.
(E) A summary jury trial is scheduled to commence on December 7, 2004.
(F) Trial has been tentatively scheduled for January 4, 2004, on an on-deck basis. On-deck trials will be released late Thursday afternoon the week before the scheduled trial date.
(G) This is expected to be a two-week jury trial.
(H) Proposed jury instructions are to be submitted three business days before the trial date.
(I) Exhibits are to be submitted ten days prior to trial.
(J) Any motions or entries for extensions of time must recite the final pretrial date and trial date.
II ORDERING OF TRANSCRIPTS
Any request for daily copy of a trial should be made to Mary Ann Ranz, the Judge's Court Reporter, at the time of the final pretrial conference. Under no circumstances will the Judge allow a daily transcript or an over-night transcript if daily copy is not arranged in advance of trial.III STATUS REPORTS
It will not be necessary for counsel to advise the Court in writing on the status of this case.
IV ADDITIONAL CONFERENCES
If the need for the Court's assistance arises, counsel may make a joint appointment for additional conferences.
V TRANSFERRAL
In accordance with Western Division Rule No. 1 and Rule 53, Federal Rules of Civil Procedure, this matter may be transferred to the United States Magistrate Judge for disposition or for him to serve as Master.
VI SUMMARY JURY TRIAL
The Summary Jury Trial in this case is scheduled to begin December 7, 2004, at 9:30 am.
(A) This Summary Jury Trial is set pursuant to Rule 16 of the Federal Rules of Civil Procedure.
(B) If the parties jointly request that a detailed jury questionnaire be sent to prospective jurors and the results made available to counsel prior to the summary jury trial, they shall submit to the Court for its review and approval at the final pretrial conference at2:00 p.m. on October 7, 2004, an agreed-upon proposed jury questionnaire.
(C) Unless excused by the Court, the parties shall submit proposed voir dire questions, jury instructions, special interrogatories, and briefs on any issues of law by November 15, 2004.
(D) Prior to trial, counsel shall confer concerning physical exhibits, including documents and reports, and reach such agreement as is possible as to the use of such exhibits.
(E) Two weeks prior to trial, plaintiff's counsel will provide defense counsel with itemization of the documents, witness depositions, interrogatories, requests for admissions, and affidavits they intend to refer to in the summary jury proceedings. One week before trial, defense counsel will provide plaintiff's counsel with like itemization. The parties shall identify specifically the portions of such evidence upon which they plan to rely.
(F) This action shall be heard before a six-member jury. Counsel for plaintiffs and counsel for defendants will be permitted two challenges each to the venire (two for plaintiffs and two for all defendants), and will be assisted in the exercise of such challenges by a brief voir dire examination to be conducted by the Court and by juror profile forms. There will be no alternate jurors.
(G) Unless excused by Order of the Court, individual clients shall be in attendance at the summary jury trial. Corporate clients shall be represented at the summary jury trial by a top echelon officer or by someone with immediate access to the corporate decision-making mechanism.
(H) Counsel will make brief opening statements indicating what they expect the evidence will show.
(I) Following opening statements, all evidence shall be presented through attorneys for the parties. Both plaintiff's counsel and defense counsel will be afforded an opportunity to present an entirely descriptive summary of the evidence. During such descriptive summaries, counsel may summarize and present the evidence and may summarize or quote directly from depositions, interrogatories, requests for admissions, documentary evidence, and sworn statements of potential witnesses. However, no witness' testimony may be mentioned unless the reference is based upon one of the products of the various discovery procedures, or upon a written, sworn statement of the witness, or upon sworn affidavit of counsel that the witness would be called at trial and will not sign an affidavit, and that counsel has been told the substance of the witness' proposed testimony by the witness. Furthermore, it should be understood that counsel will not be permitted to characterize or interpret the evidence during this phase of the summary jury trial proceedings.
(J) Following the descriptive summaries of the evidence by both sides, each side will have the opportunity to present closing arguments. At this point counsel may characterize the evidence and proffer inferences that they feel flow from the evidence.
(K) Objections will be entertained if, in the course of a presentation, counsel exceeds the limits of propriety in presenting statements as to the evidence.
(L) After counsel's closing arguments, the jury will be given an abbreviated charge on the applicable law.
(M) The jury may return either a consensus verdict or a special verdict consisting of an anonymous statement of each juror's findings on liability and damages (each known as the jury's advisory opinion). The jury will be asked to consider the issue of damages regardless of its findings on liability. The jury will be encouraged to return a consensus verdict. The jury findings will not be admissible as evidence should this case proceed to trial.
(N) No statements of counsel or of any parties during the course of the summary jury trial will be construed as judicial admissions.
(O) Unless specifically ordered by the Court, the proceedings will not be recorded. Counsel may, if so desired, arrange for a court reporter.
(P) Counsel may stipulate that a consensus verdict by the jury will be deemed a final determination on the merits and that judgment be entered thereon by the Court, or may stipulate to any other use of the verdict that will aid in the resolution of the case.
(Q) This Order shall be construed to secure the just, speedy, and inexpensive conclusion of the summary jury trial procedure.
SO ORDERED.