OHIO

LAWYERS WEEKLY
January 1, 2001

THE MOST IMPORTANT OPINIONS OF 2000

NOTABLE COURT OF APPEALS DECISION CIVIL PRACTICE

Food Poisoned Diners Certified As Class

FARRENHOLZ V. MAD CRAB, INC., ET AL.

(Lawyers Weekly No. 108-754-00) (28 pages) (Spellacy, J.) Appealed from the Cuyahoga County Court of Common Pleas. Alec Berezin and Patrick J. Perotti for the plaintiffs-appellees; Kevin Alexandersen and John T. Murphy for the defendants-appellants. (No. 76456) (Sept. 28, 2000).

 

Plaintiffs were entitled to class certification even though they alleged merely that they had contracted food poisoning from dining at the defendant's restaurant, the 8th District Court of Appeals has ruled in a case of first impression.

The defendant argued that the trial court abused its discretion in certifying the lass because no Ohio court had ever done so in a food-poisoning case.

But the 8th District responded that such a stance said little about the defendant's confidence in the judiciary's ability to dispense justice.

"As long as the requirements necessary for certification are present, the fact that no food poisoning case has gone forward in Ohio is inapposite," wrote Judge Leo M. Spellacy.

Defense counsel Kevin Alexandersen, of Cleveland, predicted that the Farrenholz decision could result in a significant rise in the total number of class actions litigated because motions to certify will now be more liberally construed.

Alexandersen said the decision was especially troubling because it takes class actions out of the area of complex litigation

"A food poisoning case isn't the type of litigation that was contemplated for class actions," said Alexandersen.

He hinted that the decision might be worthy of review by the Supreme Court of Ohio.

The trial court had concluded that the proposed class met the requirements for certification under Civ.R. 23 on the issue of liability. But the court bifurcated the certification to allow for the development of subclasses in order to assess damages.

'Hamilton' Criteria

Spellacy began by addressing the defendant's contention that the lower court abused its discretion by certifying the class.

In its 1998 decision in Hamilton v. Ohio Savings Bank, the Ohio Supreme Court set forth seven requirements that must be met in order for a class action to be certified, said Spellacy.

Those criteria, he continued, are:

"(1) an identifiable class must exist and the definition of the class must be unambiguous;

"(2) the named representatives must be members of the class;

"(3) the class must be so numerous that joinder of all members is impracticable;

"(4) there must be questions of law or fact common to the class;

"(5) the claims or defenses of the representative parties must be typical of the claims or defenses of the class;

"(6)the representative parties must fairly and adequately protect the interests of the class;

"(7) one of the three Civ.R. 23(B) requirements must be met."

Spellacy observed that the defendant did not raise arguments regarding the second, third or fourth requirements.

Identifiable Class

Spellacy stated that the definition of the class must be unambiguous.

"The description of the class must be precise enough to permit the trial court to determine whether a particular individual is a member of the class," said Spellacy.

The identity of the class in this case, the judge suggested, is defined as all persons who dined at the defendant's restaurant during the period of April 11-13, 1998, and thereafter became ill from food poisoning.

This definition, Spellacy concluded, is precise enough for the court to determine whether or not a purported class member belongs in the class.

"A claim will be deemed typical ... if it arises from the same event that gave rise to the claims of other class members," wrote Spellacy. "Varying amounts of damages among the class or the need for an individual determination of damages does not preclude class certification."

Since there was evidence that the plaintiff suffered food poisoning after dining at the restaurant during the period in question, Spellacy found no express conflict between the plaintiff's claim and those of other class members.

Adequate Representation

Spellacy next considered whether the plaintiff was representative of the class or if her interest was antagonistic to that of the other class members.

The defendant contended that the manner in which the plaintiff's attorney contracted the purported class members was improper - claiming that he violated DR 2-104 - and should have resulted in his disqualification, said Spellacy. Specifically, the defendant argued that the plaintiff could not adequately represent the class because her attorney acted unethically.

Spellacy explained that adequacy of representation is comprised of two parts: adequacy of the representative and adequacy of counsel.

"[T]he trial court noted that courts rarely deny class certification because of any alleged ethical conduct by the class counsel," wrote Spellacy. "Rather, courts tend to employ corrective measures such substitution of counsel or remedial notice."

Spellacy noted that, although the trial court acknowledged that class certification may be denied due to unethical conduct o the part of the proposed class counsel, this result is not automatic.

In this case, the trial court reviewed the letters sent by the plaintiff's attorney and concluded it did not violate the disciplinary rules, Spellacy said.

Rule 23

Next, Spellacy analyzed whether the action was proper under Civ.R. 23(B)(3), the rule applied when a class is seeking damages.

According to Spellacy, two findings must be made under this section.

"First, the court must find that common questions predominate over questions affecting only individual members," wrote Spellacy. "Second, a class action must be superior to other available methods for a fair and efficient adjudication of the controversy."

Spellacy noted that a mass tort involving a single disastrous event is amenable to class certification because the incident causes similar types of physical harm or property damage. "Also, proximate cause can be determined on a class-wide basis because it is the same for each of the plaintiffs," said Spellacy.

In the absence of certification, Spellacy suggested that each plaintiff would have to prove that the cause of their illness was food poisoning traceable to the defendant's restaurant.

"The common question here is causation, which has to be proved on a class-wide basis," wrote Spellacy. "Whether damages may differ among claimants is not a reason to deny class certification. Therefore, the element of predominance under Civ.R. 23(B)(3) has been met in the instant case." Spellacy then turned to the question of whether the class action was a superior method to settle the controversy.

The judge noted that there is some indication the defendant was settling claims for much less than they were worth, and had little incentive to discover whether there were others that may have suffered from the food-borne virus, while it was in the plaintiff's interest to find additional members of the class.

"Unlike directly settling with [the defendant], the interest of the class representatives would be to maximize the number of claimants and resolve the issue of causation, "concluded Spellacy. "Therefore, at this point in the litigation, a class action is the best utilization of judicial resources."

-DAVID M. BENSON