Opinion
CIVIL ACTION NO. 3:99CV0311-P
July 12, 2001
MEMORANDUM OPINION AND ORDER
Now before the Court are:
1. Plaintiffs' Amended Motion for Class Certification with Supporting Brief, filed November 30, 2000;
2. Defendants' Response to Plaintiffs' Amended Motion for Class Certification and Supporting Brief, filed December 20, 2000;
3. Defendants' Motion to Strike "Evidence" in Connection with Amended Motion for Class Certification, and Brief in Support Thereof, filed December 20, 2000;
4. Plaintiffs' Response to Defendants' Motion to Strike Evidence with Supporting Brief, filed January 17, 2001;
5. Defendants' Reply to Plaintiffs' Response to Motion to Strike "Evidence" in Connection with Amended Motion for Class Certification, and Brief in Support Thereof, filed January 19, 2001;
6. Appendix to Defendants' Reply to Plaintiffs' Response to Motion to Strike "Evidence" in Connection with Amended Motion for Class Certification, and Brief in Support Thereof, filed January 19, 2001.
Having considered the arguments and authorities presented, and the papers on file in the instant action, the Court is of the opinion that Plaintiffs' Amended Motion for Class Certification should be DENIED and Defendants' Motion to Strike Evidence should be GRANTED.
MOTION TO STRIKE EVIDENCE
Defendants object to the evidence plaintiff introduces in support of his motion for class certification on the grounds that the evidence is either unauthenticated, unsubstantiated, hearsay, or requires expert testimony. Plaintiff's only response to this motion to strike is that plaintiff did not intend for this "evidence" to be used as "evidence" for purposes of the class certification motion, but only for purposes of giving defendants "notice" of the proposed witnesses should a hearing on class certification be held.
The Court has reviewed the "evidence" and defendants' objections thereto and agrees that the evidence is inadmissible on the grounds objected to by defendants. Therefore, to the extent plaintiff relies on any of the attached exhibits as evidence for his motion for class certification, the Court hereby GRANTS the defendants' motion to strike the evidence.
FACTUAL BACKGROUND
Plaintiff Tuon B. Van, M.D. (hereinafter "Van") is an invasive cardiologist practicing medicine in Dallas County, Texas. Van is of Vietnamese descent and the majority of his patients, according to Van, are of Asian descent and apparently do not speak English well or at all. These patients' inability to communicate in English creates a language barrier when they are admitted to defendant hospital, Medical City Dallas. Nurses from Medical City, unable to communicate with these patients, had the practice of calling Van and asking him to serve as translator. Van subsequently requested that the hospital hire a translator because his schedule did not allow him to serve as a translator for these patients. The hospital did not hire a translator and the nurses continued to call Van to translate for his patients.
The nurses complained to Defendant Allan Anderson, M.D., chief of cardiology at Medical City, about the translation problems surrounding Van's patients. Anderson allegedly warned Van that unless he "did something" about his "oriental" patients, he would be subject to peer review. Van claims that Anderson, in collusion with Defendant Jack Schwade, M.D., persuaded the credentials committee at Medical City not to renew Van's privileges. Van claims the reason for the non-renewal of privileges was racially motivated, i.e., defendants did not want Van on the medical staff because he was Vietnamese and defendants did not want to admit patients of Asian descent.
Van seeks to certify himself and his patients as a class. He has divided these patients into three groups: 1) Group 1: four of Van's patients who allegedly received disparate or discriminatory treatment because of their ethnicity or origin. Van alleges the discrimination they suffered, (which took a different form for each patient), resulted from a failure to provide adequate translation services; 2) Group 2: six patients who Van referred to other physicians because of the alleged racially based threat Anderson made to Van (i.e., that Van "do something" about his "oriental" patients); and 3) Group 3: potential Vietnamese patients in Dallas County who would have required the services of Van as well as any Asian patients Van treated at Medical City who may have been discriminated against by the hospital's failure to provide them adequate translation services.
DISCUSSION
Federal Rule of Civil Procedure 23(a) provides the following:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The party moving for class certification bears the burden of showing compliance with the requirements of Rule 23(a). Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996); Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 573 (5th Cir. 1995). Plaintiffs allegations are taken as true and the Court does not consider the merits of the case. Abrams v. Kelsey-SeyboldMedical Group, Inc., 178F.R.D. 116, 128 (S.D. Tex. 1997).
a. Numerosity
The first requirement of Rule 23(a) is that of numerosity, which requires plaintiff to show that joinder of all the class members is impracticable because the class is too numerous. F.R.C.P. 23(a)(1). Impracticality of joinder is considered the core issue in the numerosity analysis. Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir. 1980). Whether joinder is practical or not depends on the class size, the ease of identifying its members, the ease of determining their addresses and affecting service on them, as well as their geographic dispersion. Id.
The class that Van alleges consists of one physician (Van), four patients who allegedly were discriminated against by the hospital's alleged failure/refusal to translate, six patients Van claims he referred because of fear of retaliation and unknown potential patients who may have required Van's services, as well as existing patients who may have been discriminated against. Plaintiff does not know, however, if these potential or existing patients were actually discriminated against. Van alleges: "Dr. Van does not have personal knowledge that any of these Asian patients suffered any actual discrimination based upon failure to provide translation services. . . ." See Plaintiffs Amended Motion for Class Certification at 2.
For numerosity to exist, there must be a specific estimate of the class size. "The mere allegation that the class is too numerous to make joinder practicable, by itself, is not sufficient to meet [the numerosity] prerequisite." Fleming v. Travenol Labs., Inc., 707 F.2d 829, 833 (5th Cir. 1983). A plaintiff cannot speculate that a class is numerous, which is exactly what Van has done here. The proposed Group 3 class members cannot qualify as potential class members: their existence is dependent on sheer speculation that they suffered discrimination. Moreover, the estimated number of Group 3 lacks specificity.
The only evidence plaintiff offers of a specific estimate of the class size of Group 3 is Exhibit D, which is a population estimate of Asian and Pacific Islanders in Dallas, Texas. This exhibit is unauthenticated, inadmissible and requires expert testimony, which plaintiff fails to provide. The Court does not consider a "population estimate" of Pacific Islanders and Asians as evidence of the class size.
For class certification purposes, then, the only potential class members are those found in Groups 1 and 2, as well as Van. Certainly a class consisting of Van, four patients allegedly discriminated against and six patients referred to other physicians because of fear of retaliation does not constitute numerosity. General Tel Co. v. EEOC, 446 U.S. 318, 331 (1980) (class of fifteen insufficient to prove numerosity); National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 716 (5th Cir. 1994) (class of eleven insufficient to prove numerosity). Van has failed to meet the first requirement of Rule 23(a).
b. Commonality
Commonality requires at least one question of law or fact to be common to the proposed class. Fed.R.Civ.P. 23(a)(2). Under these requirements, plaintiff must identify a class that has been subject to the same or similar acts as the class representatives. Abrams, 178 F.R.D. at 128. The claims Van brings are for alleged violations of 42 U.S.C.A. § 1981, breach of contract, defamation and interference with contractual relations. The claims alleged on behalf of Group One allegedly arise from the hospital's failure to provide a translator. The claims alleged on behalf of Group Two arise from Van having referred the Group Two patients to other physicians. It is unclear at this point what the actual damages were that these patients suffered other than having been referred out to other physicians. The claims alleged on behalf of Group Three, were the Court to allow their joinder, are the most problematic. These patients are unknown potential patients who would have required Van's services or patients who Van does not know actually suffered any discrimination. Van's injuries do not parallel those of either of the three groups. Moreover, the three different groups' injuries do not parallel each other. Van fails to meet the commonality requirement.
C. Typicality
Rule 23(a) also requires that the claims or defense of the representative plaintiff to be typical of the claims of the remainder of the class. F.R.C.P. 23(a). Typicality requires the movant to show that his claims "arise from the same event, practice, or course of conduct" that gives rise to the claims of other class members. Ford v. NYLcare Health Plans, 190 F.R.D. 422, 426 (S.D. Tex. 1999). Moreover, the movant must have the same interest and must have suffered the same injuries as those of the proposed class. Zachery v. Texaco Exploration Prod., Inc., 185 F.R.D. 230, 240 (W.D. Tex. 1999). Again, the facts as alleged do not support the typicality requirement. Van's claims are for monetary damages arising from an alleged discriminatory peer review. Van cannot join his claims with Groups 1, 2, or 3 since they are not seeking money damages arising from a discriminatory peer review. Simply alleging a blanket race discrimination claim does not satisfy the "typicality" requirement. "The mere fact that an aggrieved plaintiff is a member of an identifiable class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf of all possible claims of discrimination" General Tel. Co. v. Falcon, 457 U.S. 147, 159 n. 15 (1982).
d. Fair and Adequate Representation
The movant must also show that "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). Van's interests, however, appear to be divergent to those of the patients he seeks to represent. Defendants' peer review was allegedly initiated because of concerns regarding substandard patient care. It is foreseeable that Van, as a class representative, may at some point develop interests that are adverse to that of the proposed class and this is impermissible. Munoz v. On, 200 F.3d 291, 306 (5th Cir. 2000). For example, if the hospital introduces evidence of poor care by Van, such evidence may controvert Group 2's claim that being referred to other physicians actually caused them harm. "[T]he adequate representative requirement is typically construed to foreclose the class action where there is a conflict of interest between the named plaintiff and the members of the potential class." General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980).
e. Rule 23(b) Requirements
Once the proposed class satisfies all four of the Rule 23(a) requirements, the Court will then consider those described under Rule 23(b). Plaintiffs, however, have failed to show the proposed class complies with Rule 23(a) requirements; therefore, it is not necessary for this Court to address the elements of Rule 23(b).
CONCLUSION
For the foregoing reasons, the Defendants' motion to strike evidence is hereby GRANTED and Plaintiffs' motion for class certification is hereby DENIED.
So Ordered.