Day on Torts
Where plaintiffs tried to certify a class in a food poisoning case that included all persons who ate at defendant restaurant during a certain time period that became sick due to either ingesting contaminated well water and/or coming into contact with sick employees, as well as these customers “spouses parents children or guardians” who also became infected, the Court of Appeals affirmed the denial of class certification based on the failure to prove commonality, typicality, and adequacy of representation.
In Rogers v. Adventure House LLC, No. E2019-01422-COA-R3-CV (Tenn. Ct. App. Aug. 24, 2020), plaintiffs became sick after eating at defendant restaurant. Plaintiffs then brought this suit, which “arose form approximately 102 events of food poisoning or illness purportedly related to numerous patrons who dined at or visited [defendant restaurant].” The restaurant, the restaurant owners, and the owner of the property on which the restaurant and well were located were named as defendants. Plaintiffs alleged that patrons became sick after consuming contaminated well water and/or interacting with infected restaurant employees. Plaintiffs also alleged that family members of people who visited the restaurant were infected.
Plaintiffs sought to certify a class that included both the restaurant patrons who became sick due to the well water and/or exposure to restaurant employees who were ill as well as the patrons’ family members who became ill (the definition in their second amended complaint). The trial court held a hearing on the motion for class certification and asked for post-hearing briefs from the parties. On July 11, 2019, the trial court orally announced in a hearing its finding that three of the four elements for class certification required by Tennessee Rule of Civil Procedure 23.01 were not met. Plaintiffs subsequently filed a motion to amend their second amended complaint, and the proposed complaint included an amended class definition that removed family members of people who had dined at defendant restaurant from the group. Six days later, the trial court entered a written order denying class certification, and the order “expressly adopted Plaintiffs’ class definition as defined in the second amended complaint.”
In this interlocutory appeal, plaintiffs appealed the trial court’s denial of class certification as well as the trial court’s use of the class definition in plaintiffs’ second amended complaint. The Court of Appeals affirmed the trial court on both issues.
The Court of Appeals first looked at whether the trial court erred by using the class definition in plaintiffs’ second amended complaint instead of the narrowed definition plaintiffs first raised in their post-hearing brief. The difference in these two definitions was that the one used by the trial court included people who became ill due to exposure to family members who visited defendant restaurant, while the proposed modified class definition excluded these people who did not actually visit the restaurant. Plaintiffs argued that at the hearing on class certification, the trial court asked plaintiffs to “identify the common course of wrongful conduct,” and that the submission of this more narrow class definition was their attempt to do so. The Court found, though, that the trial court “did not abuse its discretion by declining to adopt Plaintiffs’ proposed class definition provided post hearing.” The Court noted that “the trial court conducted a ‘rigorous analysis’ of the issue concerning the appropriate class definition,” and that the class definition used in the second amended complaint and adopted by the trial court was “the only class definition that was pleaded by the Plaintiffs.”
Having determined that the trial court did not err in using the class definition from the second amended complaint, the Court moved on to analyzing whether the proposed class met the requirements of Tennessee Rule of Civil Procedure 23.01. This rule requires plaintiffs attempting to certify a class to show four elements: commonality, typicality, numerosity, and adequacy of representation. While numerosity was deemed satisfied here, the trial court ruled that the plaintiffs did not meet their burden as to the other three elements, and the Court of Appeals agreed.
Regarding commonality, the Court noted that “for the certification of a class, there must be common questions of law or fact to the entire class.” (internal citation omitted). “[I]n order for the class to drive litigation, common answers, not just common questions, must be possible.” (internal citation omitted). Plaintiffs argued that this case met the commonality requirement because “Defendants had a duty to perform water quality tests, as well as a duty to require employees to inform them of illnesses and exclude them from the premises in those instances.” In denying class certification, the trial court ruled that “Plaintiffs’ definition describes two diverging courses: one of the restaurant and premises attendee contrasted with one of contact with an afflicted individual.” The trial court noted that “plausible unique questions of legal cause would arise” from the difference in infection due to E. coli and/or norovirus, which were both found to be factors in the illnesses, and from the “broad range of dates” over which the infections occurred. The trial court also pointed out that notice issues would be different for different members of the class, as a patron who became sick on July 31st might have different legal hurdles to face than a patron who became sick on August 12th, as the later patron could possibly argue that the defendants had constructive or actual notice of the issues.
The Court of Appeals agreed with these concerns regarding commonality. The Court of Appeals relied partially on a report from the health department that found “various modes of transmission in this outbreak” and both E. coli and norovirus in affected individuals, some suffering from only one and some suffering from both. The Court agreed with the trial court hat “by reason of multiple variables, Plaintiffs [could not] establish that ‘common questions will elicit common answers leading to classwide relief.’”
Turning next to typicality, the trial court found that “the same difficulties Plaintiffs face in establishing commonality predominate here,” and the Court of Appeals agreed. Plaintiffs, as class representatives, needed to show that their claims or defenses were typical of the class claims or defenses, which the Court of Appeals ruled they failed to do. The Court explained:
Plaintiffs’ claims lack typicality for many of the same reasons that their claims lacked commonality. …Plaintiffs’ claims amount to two separate courses of conduct. The first occurred when several plaintiffs became ill by consuming water form the private well, which was determined…to be contaminated. The other course of conduct occurred when several plaintiffs came into contact with a contagious employee. …[B]ecause of these two separate courses of conduct, the modes of transmissions are different, the causation proof is different, and the facts that surround the alleged negligence will be different. The purpose of typicality is thereby thwarted because the ‘legal or factual position of’ Ms. Rogers is markedly different from that of the other members of the class, even though common issues of law or fact may also be present.
(internal citations and quotations omitted). The Court also stated that a finding of typicality was “further complicated” by the fact that it was unclear how the named plaintiffs became ill, and because persons who became ill through different means and at different times would possibly have different claims and defenses. The Court thus affirmed the finding that plaintiffs failed to meet their burden regarding typicality.
Finally, the Court looked at adequacy of representation. This requirement means that “the proposed class representative must have common interests with the unnamed class members and it must appear that the class representatives will vigorously prosecute the case and protect the interests of the class through qualified counsel.” (internal citation omitted). Here, the Court of Appeals agreed with the trial court that “multiple pathogens, multiples dates of transmission, multiple methods of transmission, multiple patrons, multiple duties, and multiple defendants preclude representative plaintiffs from protecting the interests of every member in the proposed class.”
Because plaintiffs did not satisfy their burden as to commonality, typicality, and adequacy of representation, denial of class certification was affirmed.
As this case shows, the definition you choose when trying to certify a class is extremely important. Here, the class was defined in a way to include plaintiffs who became sick in multiple ways over a string of dates, and the variety within the class was ultimately fatal to its certification.
NOTE: this opinion in this case was released nine weeks after oral argument.