Opinion
Nos. 2008-CA-1527, 2009-CA-0002.
August 12, 2009.
Appeal from the Civil District Court, Orleans Parish, Nos. 2006-10210 and 2005-11709, Rosemary Ledet, J.
Tammie Holley, Stephen P. Bruno, David S. Scalia, Bruno Bruno, LLP, Mark P. Glago, Glago Law Firm, L.L.C., Roderick "Rico" Alvendia, Alvendia, Kelly Demarest, L.L.C., Anthony D. Irpino, Irpino Law Firm, L.L.C., New Orleans, LA, Todd R. Slack, Gauthier Houghtaling Williams, Metairie, LA, for Plaintiffs/Appellees.
Kurt S. Blankenship, Robert I. Baudouin, Richard E. Gruner, Jr., Blue Williams, L.L.P., Metairie, LA, Harry T. Lemmon, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
In this consolidated action, Defendants, Tenet Healthcare Systems and Tenet HealthSystems Memorial Medical Center, Inc. D/B/A Memorial Medical Center, appeal from the judgment of the trial court certifying the matter as a class action. For the reasons fully set forth below, we find that the elements necessary for class certification are present and affirm the judgment of the trial court certifying the class.
Relevant Facts
For the purposes of class certification in this case, the following facts are relevant and undisputed. On Sunday, August 28, 2005, the population of Memorial Medical Center ("Memorial") consisted of approximately 2000 people, including: 182 adult patients, 16 Neonatal Intensive Care Unit ("NICU") babies, 600 Memorial employees, 850 family members of patients and employees, 20 physicians, approximately 10 New Orleans Police Officers, approximately 15 Louisiana National Guardsmen, and other evacuees.
In the early morning of Monday, August 29, 2005, Hurricane Katrina struck the New Orleans area. During the storm, Memorial lost electrical power and was subsequently powered by its back-up generators. After the storm subsided, some people were evacuated. In the early morning of Tuesday, August 30, 2005, the New Orleans levee system was breached. Upon learning of the breach, the CEO of Memorial ordered an evacuation of the facility. By mid-evening, all 16 NICU babies, a small number of other NICU staff, 1 physician, 18 adult Intensive Care Unit ("ICU") patients, all babies from the nursery, 6 women with high-risk pregnancies, and 10 to 12 dialysis and medical/surgical patients were evacuated. In the early morning of Wednesday, August 31, 2005, Memorial lost all power. Evacuations continued throughout the day. Approximately 110 patients and numerous family members were evacuated. During the day of Thursday, September 1, 2005, the majority of the remaining patients, family members, staff, visitors, and physicians were evacuated. In the early hours of Friday, September 2, 2005, the remaining Memorial staff and family members (approximately 40 to 50 people) were evacuated.
Two similar, but separate, class action petitions were filed against Memorial arising out of events at Memorial during and shortly after Hurricane Katrina. The first, entitled Leon Preston, et al. v. Tenet HealthSystem Memorial Medical Center, et al. was filed on October 6, 2005, in the Civil District Court for the Parish of Orleans. The second such action, entitled Darlene Husband, et al v. Tenet Health-System Memorial Medical Center, et al., was filed on August 2, 2006, in the Civil District Court for the Parish of Orleans.
The Preston and Husband plaintiffs consist of patients, family members, visitors, staff and employees of Defendants, who were present at Memorial Medical Center during and after August 29, 2005 — the date that Hurricane Katrina struck New Orleans, Louisiana. In their Petitions, Plaintiffs complain of damages including wrongful death, emotional distress, and property damage allegedly caused by Defendants' failure to have an emergency protocol in place before, during, and after the hurricane, failure to evacuate, failure to provide emergency backup power, design and/or construction defects, failure to warn, and premises liability.
By joint motion of the plaintiffs and defendants involved, the class certification discovery and class certification hearings in both cases were consolidated before the trial court on June 26, 2008. In a ruling dated September 17, 2008, the trial court granted the motions for class certification and ordered that the plaintiffs' claims against Defendants proceed as a class action. This consolidated appeal followed.
Class Certification Order
The Class Certification Order sets out the following definition of the class:
All patients of Memorial Medical Center, and visitors on the premises, who sustained injuries including death or personal injury as a result of the insufficient design, inspection and/or maintenance of Memorial's backup electrical system, failure of Memorial and/or Tenet HealthSystem (THC) to implement their evacuation plans and/or emergency preparedness plans, and/or the failure of Memorial and/or THC to have a plan which would have facilitated the safe transfer of patients and visitors out of harm's way, and the failure of Memorial and/or THC to have a plan of care for patients and visitors in the event of a power outage in the wake of Hurricane Katrina within the property owned by Memorial on or about the time period of August 26th through and including August 29th and thereafter; and
All persons who sustained personal injury as a result of the deaths or personal injuries to patients of Memorial and visitors on the premises as a result of the insufficient design, inspection and/or maintenance of Memorials backup electrical system, the failure of Memorial and/or THC to implement their evacuation plans and/or emergency preparedness plans, and/or the failure of Memorial to have plan which would have facilitated the safe transfer of patients and visitors out of harm's way, and the failure of Memorial and/or THC to have a plan of care for patients and visitors in the vent of a power outage in the wake of Hurricane Katrina within the property owned by Memorial on or about the time period of August 26th through and including August 29th, 2005 and thereafter.
All persons at or in the Memorial Medical Center facility who were not Memorial employees, who sustained injury and/or damage, including but not limited to, personal injury or wrongful death, as a result of: unreasonably dangerous conditions and/or defects in and/or on the premises of Memorial Medical Center, insufficient design, inspection and/or maintenance of Memorial's backup electrical system, the failure of Memorial and/or Tenet HealthSystem (THC) to implement their evacuation plans and/or emergency preparedness plans, and/or the failure of Memorial and/or THC to have a plan of care for patients, visitors and invitees in the event of a prolonged power outage in the wake of Hurricane Katrina within the property owned by Memorial on or about the time period of August 26, 2005 through and including August 29, 2005 and thereafter; and
All persons who sustained injury as a result of the death or personal injury to any person at or in the Memorial Medical Center facility (who was not a Memorial employee who sustained injury and/or damage, including but not limited to personal injury or wrongful death, as a result of: unreasonably dangerous conditions and/or defects in and/or on the premises of Memorial Medical Center, insufficient design, inspection and/or maintenance of Memorials' backup electrical system, the failure of Memorial and/or THC to implement their evacuation plans and/or emergency preparedness plans, and/or the failure of Memorial and/or THC to have a plan which would have facilitated the safe transfer of patients, visitors and invitees out of harms' way, and the failure of Memorial and/or THC to have a plan of care for patients, visitors and invitees in the vent of a prolonged power outage in the wake of Hurricane Katrina within the property owned by Memorial on or about the time period of August 26, 2005 through and including August 29th, 205 and thereafter.
Law and Discussion Class Actions Generally
The issue in this case is whether the trial court properly granted the Plaintiffs' motions to certify the matter as a class action. A class action is a nontraditional litigation procedure permitting representatives with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when a question of law or fact is of common or general interest to persons so numerous as to make it impracticable to bring them all before the court. Ford v. Murphy Oil U.S.A., Inc., 96-2913, p. 4 (La.9/9/97), 703 So.2d 542, 544.
In general, the fundamental objective of the class action procedural device is the achievement of economies of time, effort, and expense. Lewis v. Texaco Exploration and Production Co., Inc., 96-1458, p. 19 (La.App. 4 Cir. 7/30/97), 698 So.2d 1001, 1014. With respect to the parties, the purpose and intent of the class action is to adjudicate and obtain res judicata effect on all common issues applicable not only to the class representatives who bring the action, but also to all others who are similarly situated. Banks v. New York Life Ins. Co., 98-0551, p. 5 (La.12/7/98), 722 So.2d 990, 993 (citing Ford supra, 703 So.2d 542). A class action is a procedural device only and does not confer substantive rights. Andry v. Murphy Oil, U.S.A. Inc., 97-0793-97-800, p. 2 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1128-29. Moreover, a class certification hearing does not determine liability and is not the correct venue to decide the merits of the case or the defenses the defense may allege. Chalona v. Louisiana Citizens Property Ins. Corp., 08-0257, p. 10-11 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 503. However, the determination of whether a class action meets the requirements imposed by law involves a rigorous analysis. Brooks v. Union Pacific Railroad Company, 08-2035, p. 6 (La.5/22/09), 13 So.3d 546. The trial court must actively inquire into every aspect of the case and should not hesitate to require showings beyond the pleadings. Stevens v. Board of Trustees of Police Pension Fund of City of Shreveport, 309 So.2d 144, 152 (La. 1975).
Standard of Review
The customary standard of review for a trial court's ruling on a motion for class certification is tri-parte. Factual findings are subject to the manifest error standard, but the trial court's ultimate decision of whether or not to certify the class is reviewed by the abuse of discretion standard. Brooks, 08-2035, p. 6, 13 So.3d at 551. The question of whether the district court applied the correct legal standards in determining whether to certify the class is reviewed de novo. Id.
Defendants contend that, because the trial court made no findings to which the manifest error/clearly wrong standard would apply, this Court should undertake a de novo review of the proceedings below. In support of this argument, Defendants cite Ambrose v. New Orleans Police Dep't. Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216, for the proposition that "[b]ecause the court of appeal has a constitutional function to perform, it has every right to determine whether the trial court verdict was clearly wrong based on the evidence, or clearly without evidentiary support." Id. at 221.
The trial court entered a judgment and reasons for judgment articulating the facts upon which the decision to certify was based. Defendants would have us make innovation in an area of the law that neither needs nor merits such innovation. We decline to do so and hold instead that the traditional tripartite standard of review is the correct standard of review to be applied to this case. Class Certification Procedure: La. Code Civ. Proc. art. 591
This standard of review was recently reaffirmed by the Louisiana Supreme Court in Brooks.
In the State of Louisiana, the procedure for class certification is governed by Article 591 of the Louisiana Code of Civil Procedure. Article 591 is divided into two subsections: 591(A) and 591(B). Article 591(A) provides that a civil action must first meet five prerequisites to qualify for class certification. Those prerequisites are as follows:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of law and fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interest of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court, may determine the constituency of the class for purposes of conclusiveness of any judgment that may be rendered in the case.La. Code Civ. Proc. art. 591. These five prerequisites are commonly referred to as numerosity, commonality, typicality, adequacy, and identifiability.
In addition to these five prerequisites, Subsection 591(B) lists three additional criteria, only one of which need be satisfied to certify a class. Under 591(B), a trial court must find that:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications that would establish incompatible standards of conduct for the party opposing the class, or
(b) Adjudications with respect to individual members of the class would, as a practical matter, be dispositive of the interests of other class members not parties to those adjudications or would substantially impair/impede their ability to protect those interests, or
(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole, or
(3) The court finds 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 is superior to other methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the 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 in the particular forum,
(d) The difficulties likely to be encountered in the management of a class action,
(e) The practical ability of individual class members to pursue their claims without class certification,
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation [.]
With these principles in mind, we now turn to an examination of the pleadings and evidence submitted with the motions to certify the classes, in light of the relevant law, to determine whether the motions were properly granted.
La. Code Civ. Proc. art. 591(A) Numerosity
The first prerequisite to class certification is that the class must be so numerous that joinder of all members is impracticable. La. Code Civ. Proc. art. 591(A)(1). The determination of numerosity is based in part upon the number of putative class members, but is also based upon considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claims. Chalona, 08-0257, p. 6, 3 So.3d at 500-01. The numerosity requirement for class certification is not established by mere allegations of a large number of potential claimants. Johnson v. Orleans Parish School Bd., 00-0825-00-0828, p. 7 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, 741. Rather, the burden is on the plaintiff/movant to make a prima facie showing that a definable group of aggrieved persons exists and that the class is so numerous that joinder is impractical. Id. at 7-8, 790 So.2d at 740-41. However, the key is impracticality, and not impossibility of joinder. Gudo v. Admin, of Tulane Educ. Fund, 06-1515, p. 7 (La.App. 4 Cir. 9/5/07), 966 So.2d 1069, 1075. No set number has been established that automatically makes joinder impractical, rather, the determination is based on the facts and circumstances of each case. Chiarella v. Sprint Spectrum LP, 04-1433, p. 18 (La.App. 4 Cir. 11/17/05), 921 So.2d 106, 119. This Court has held, however, that a presumption arises that joinder is impractical, for purposes of class certification, if more than 40 class members exist. Vela v. Plaquemines Parish Government, 658 So.2d 46, 48 (La.App. 4 Cir. 6/29/95). We have also held that the certification of a class containing between 150 and 600 members would not be manifestly erroneous on grounds that the class was not so numerous that joinder was impractical. Id.
Here, the trial court found that the class, as defined, might include as many as two thousand plaintiffs who were on the premises of Memorial Medical Center during the time period defined in the class certification order and that joinder of so many separate plaintiffs would be impractical. Because there is evidence to support such a finding, we cannot say that this finding was manifestly erroneous.
Commonality
The second prerequisite to class certification is that there are questions of law or fact common to the class. La. Code Civ. Proc. art. 591(A)(2). The test of commonality is not a demanding one. Rapp v. Iberia Parish School Bd., 05-833, p. 9 (La.App. 3 Cir. 3/1/06), 926 So.2d 30, 37. It requires only that there be at least one issue of law or fact, the resolution of which will affect all or a significant number of putative class members. Id. (citing Duhe v. Texaco, Inc., 99-2002, p. 12 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078).
Appellants argue that the commonality requirement is not met in this case since liability will be different for each individual class member. Plaintiffs, on the other hand, cite two issues, Defendants' alleged failure to maintain an adequate evacuation plan and Defendants' alleged negligence in the design, inspection and maintenance of the backup electrical system as examples of two issues that they argue are common to the class and whose resolution will affect all or a significant number of class members.
The trial court found that all of the Plaintiff-Appellees' claims are based on the same legal tort theories (i.e., negligence), arise from the same event (i.e., Hurricane Katrina and its aftermath) which occurred over the same period of time (i.e., August 26th, 2005 through August 29th, 2005). Acknowledging individual differences in the quantum of injury among Plaintiff-Appellees, the trial court also properly found that commonality was not defeated on that basis and that certification was not therefore improper. Plaintiffs have identified two examples of common issues whose resolution will affect all or a significant number of putative plaintiffs. Thus, because there is evidence to support such findings, we do not find the trial court's findings on this issue to be manifestly erroneous.
Typicality
The third prerequisite to class certification is that the claims or defenses of the representative parties must be typical of the claims or defenses of the class. La. Code Civ. Proc. art. 591(A)(3). The requirement of typicality is satisfied if the claims of the class representatives arise out of the same event, practice, or course of conduct that gives rise to the claims of other class members and those claims are based on the same legal theory. Gudo, 06-1515, p. 12, 966 So.2d at 1078. Moreover, plaintiffs seeking certification of a class action are not required to produce two, or even one, of every kind of claim or of every person included in the class, in order to satisfy the prerequisite of typicality for class certification. Davis v. Jazz Casino Co., L.L.C., 03-0005, p. 10 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 889.
The trial court found that all of the Plaintiff-Appellees' claims were based on the same legal tort theories (i.e., negligence), arise from the same event (i.e., Hurricane Katrina and its aftermath), over the same period of time (i.e., August 26th, 2005 through August 29th, 2005). The Court reasoned that, because these issues were common to all of Plaintiff-Appellees' claims, the claims of the representative plaintiffs were also typical of the class as a whole. Because there is evidence to support such a finding, we cannot say that these findings were manifestly erroneous.
Adequacy
The fourth prerequisite to class certification is that the representative parties must fairly and adequately protect the interests of the class. La. Code Civ. Proc art. 591(A)(4). Adequacy of representation for class certification requires that the claims of the proposed class representatives be a cross-section of, or typical of, the claims of all class members. Andry, 97-0793, p. 6, 710 So.2d at 1130. Class representatives can adequately represent absent class members, even though claims by a particular class representative with regard to the exact damages claimed may not be typical, as long as the class of damages asserted by each representative is. Id. at 1131.
The trial court found that although the exact damages claimed by a putative class representative may not be typical, the class of damages is typical of that of the members of the class. Accordingly, the trial court held that the plaintiffs had satisfied the adequacy prerequisite. The affidavits of the class representatives submitted as evidence at the Class Certification hearing support Plaintiffs' assertions that the representatives will fairly and adequately provide protection for the interests of the class, that the basis of each claim is typical, and that each is willing to diligently prosecute this action on behalf of the class. Because there is evidence in the record to support the trial court's finding of adequacy, that finding is not manifestly erroneous.
Objective Definition of the Class
The final prerequisite under 591(A) is that the class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. Chalona, 08-0257, p. 9, 3 So.3d at 502. The purpose of the class definition requirement for class certification is to ensure that the class