Opinion
No. 97-CC-0800
April 8, 1997
IN RE: Plaintiffs' Liaison Comm.; — Plaintiff(s); Applying for Writ of Mandamus, Supervisory and/or Remedial Writ; to the Court of Appeal, First Circuit, Number CW96 1958, CW96 2029, CW96 2049; Parish of Washington 22nd Judicial District Court Div. "C" Number 73,341, 73,353, 74,062, 73,355
Writ denied.
WFM
PFC
CDK
BJJ
JPV
CDT
JTK
LEMMON, J. not on panel; recused. CALOGERO, C.J., concuring in the denial of writs.
I join the majority i denying the conslidated writ applications because the court of appeal has made a call I would not upset: Namely, that the district has not sufficiently tested the adequacy of plaintiff class representatives through an evidentiary hearing "prior to her certification of the class."
I specifically do not agree, however, and I surmise that the majority does not necessarily agree with the court of appeal decision that, in a class action, the use of claim and/or proof of claim forms can only be used after the determination of liability.
Of course, the denial of a writ does not make law. McClendon v. State, Dept. of TRans. Dev., 94-111, p. 2 n. 1 (La. 9/6/94), 642 So.2d 157, 158 n. 1. Thus, the Court's denial here does not create binding precedent as to the coourt of appeal's resolution of any of the issues raised in the application.
That denial does, however, have a signigicant practical effect in this litigation. Even as to this litigation alone, however, in my view, this Court, indenying the writ regarding adequacy of class representation, has not necessarily spoken to the correctness of the court of appeal's holding that the use notice of claim and/or proof of claim forms is prohibited until after a determination of liability.
In my view, it is imperative that parties be permitted to engage in the early assembly of proog of claim forms for the ultimate use and benefit of the district court, the defendants, the plaintiffs lawyer committee, the other attorneys representing plaintiffs, and the plaintiffs themselves, as some of the most fundamental purposes of the class action device are to achieve economies of time, effort, and expense. Greater New Orleans Car Dealers Ass'n Louisiana Tax Comm'n 95-308 (La.App. 5th Cir. 10/18/95), 663 So.2d 797; Lailhengue v. Mobile Oil Co., 94-2114 (La.App. 4th Cir. 6/7/95), 657 So.2d 542. Such purposes cannot be advanced by requiring that a determination of liability precede discovery or the gathering of information needed to further the parties' preparation for trial or settlement negotiations.
I note that in the instant case, the defendant, Dow Chemical Co., was a co-relator, along with the plaintiffs lawyer committee, in challenging the correctness of the court of appeal's decision.
It is for this reason that I concur to point out what I perceive to be the limited import of the court's denial of writs in this case.