Despite the conventional wisdom that hundreds of plaintiffs suing for the same-type of injury are, by definition, entitled to a class action, the Louisiana Fourth Circuit Court of Appeal recently denied class certification to 366 individuals who claimed a hospital exposed them to HIV and hepatitis. See Doe v. University Healthcare Systems, L.L.C., Nos. 2013-1457-1466, 2014 WL 3360817 (La. App. 4 Cir. July 9, 2014).
In 2010, a Frilot client, Tulane Medical Center, determined its endoscopes were not cleaned and disinfected to the recommended standards for their reuse. An endoscope is a fiber-optic medical instrument used for diagnostic or therapeutic purposes in human organs. Because endoscopes enter body cavities and are repeatedly reused, the United States Center for Disease Control (“CDC”) mandates that they be subjected to high-level disinfection using chemical disinfectants.
Tulane Medical Center discovered that 366 patients underwent some type of endoscopic test in which the endoscope had not been sterilized in accordance with CDC standards. Tulane then notified each of these patients that the potential risk of infection was “minimal to nonexistent” and offered free screening for hepatitis and HIV, along with counseling.
Shortly after this notification was made, multiple class actions against Tulane and others were filed in Civil District Court for Orleans Parish, seeking certification of a class of the individuals (a) who underwent the endoscopic procedures, and sustained emotional distress from notification of potential exposure to infectious disease, but who did not actually contract an infectious disease, and (b) individuals with whom the class members had sexual relations. Plaintiffs’ Class counsel conceded that it was unnecessary to have a subclass of individuals who had actually contracted an infectious disease from the endoscopic procedures (presumably because few, if any, of the 366 persons exposed to the endoscopes contracted any infectious disease).
On July 9, 2014, the Louisiana Fourth Circuit Court of Appeal affirmed the trial court’s denial of class certification for the 366 individuals that received notice of the endoscope problems. Relying on Louisiana principles for class certification (based upon F.R.C.P. 23), the Court affirmed denial of class certification on two fundamental grounds:
• Plaintiffs failed to present sufficient evidence of numerosity. To satisfy the numerosity requirement for a class action, plaintiffs must establish that the members of the class are so numerous that joinder of individual plaintiffs in a single suit is impractical. Plaintiffs argued that the numerosity requirement was met and that joinder was impractical, solely on the basis that the proposed class was comprised of 366 litigants. The appellate court found that there was no presumption of numerosity, and that the undisputed evidence presented at the class certification hearing showed that only 20 of the 366 potential class members had actually filed lawsuits to assert their emotional distress claims.
• The plaintiffs failed to satisfy the predominance requirement, i.e., identifying a question common to the class―one where “the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 374 (2011)). The court held that the common questions involving proof of causation and emotional distress damages could only be answered on a highly individualized basis, requiring individual “mini-trials” about each plaintiff’s medical, mental, and sexual history, and other possible media for exposure to sexually transmitted diseases. Because causation could not be determined on a class-wide basis, but instead required “mini-trials” based upon plaintiff-specific inquiries, a class action was inappropriate, and plaintiffs failed to meet the “predominance” requirement under class action law.
Louisiana Courts are required to perform a “rigorous analysis” of the mandatory requirements for class certification, and arguably did just that in denying class certification in this case.