Connerwood Healthcare, Inc. v. Estate of Herron

• Decision Date: 31 July 1997
• Docket Number: No. 82A01-9701-CV-34,82A01-9701-CV-34
• Citation: 683 N.E.2d 1322
• Parties: CONNERWOOD HEALTHCARE, INC., d/b/a Washington Manor, Appellant-Defendant, v. ESTATE OF Carrie L. HERRON, Deceased; Wilma M. Karch and Geneva Wright, Co-Personal Representatives, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 1322

683 N.E.2d 1322

CONNERWOOD HEALTHCARE, INC., d/b/a Washington Manor, Appellant-Defendant, v. ESTATE OF Carrie L. HERRON, Deceased; Wilma M. Karch and Geneva Wright, Co-Personal Representatives,

Appellees-Plaintiffs.

No. 82A01-9701-CV-34.

Court of Appeals of Indiana.

July 31, 1997.

William H. Mullis, Fine & Hatfield, Evansville, for appellant-defendant.

Wayne S. Trockman, Newman, Trockman, Lloyd, Flynn & Rheinlander, Evansville, for appellees-plaintiffs.

OPINION

NAJAM, Judge.

FACTS AND STATEMENT OF THE CASE

Connerwood Healthcare, Inc., d/b/a Washington Manor ("Connerwood"), is a residential nursing facility in Evansville. In June of 1995, approximately 150 elderly or infirm residents lived at the facility. During that month, some 70 persons developed one or more symptoms of food poisoning, including nausea, vomiting and diarrhea. Thirty-four residents tested positive for salmonella enteritides, three of whom died during the outbreak.

Carrie L. Herron, one of Connerwood's residents, died on July 15, 1995, allegedly from "deficiencies of care" associated with the salmonella infection. The Estate of Carrie L. Herron, with Wilma M. Karch and Geneva Wright serving as joint personal representatives of their mother's estate (collectively "Herron"), filed suit against Connerwood and requested that the case be maintained as a class action. The complaint for "personal injuries and wrongful death" alleged that Connerwood's negligence caused injury to Herron and other residents. In addition, Karch and Wright sought recovery for "stress, anguish and personal pain and suffering."

The trial court heard argument on November 14, 1996, and issued its order with the following findings:

1. That in June 1995 there occurred an outbreak of salmonella poisoning at Washington Manor Nursing Home as evidenced by the Indiana State Health Report attached to Plaintiffs' response to Defendant's Motion to Dismiss.

2. That as a result of said salmonella poisoning, up to 70 residents and employees of Washington Manor were affected.

3. That the salmonella poisoning resulted in physical illness as well as several deaths at Washington Manor.

4. That given the age and physical condition of many of the residents at Washington Manor who were affected by said salmonella poisoning, certification of this cause as a class action would be appropriate in order to fairly and adequately protect the interests of this class.

The court then concluded that the plaintiffs had satisfied Indiana Trial Rule 23 and conditionally certified the matter as a class action. Connerwood filed a Motion to Correct Error and argued that the claim failed to meet the requirements of class action certification. The trial court denied Connerwood's motion. Connerwood now appeals. ¹

We affirm in part and reverse in part.

ISSUE

The sole issue raised by Connerwood is whether the trial court abused its discretion when it conditionally certified the case as a class action.

DISCUSSION AND DECISION

Standard of Review

The determination of whether an action is maintainable as a class action is committed to the sound discretion of the trial court. See CSX Transp., Inc. v. Clark, 646 N.E.2d 1003, 1006 (Ind.Ct.App.1995). We review the trial court's ruling on a motion for class certification by employing an abuse of discretion standard. Heritage House of Salem, Inc. v. Bailey, 652 N.E.2d 69, 75 (Ind.Ct.App.1995), trans. denied. ² We neither reweigh evidence nor judge witness credibility. McCart v. Chief Exec. Officer in Charge, Independent Fed. Credit Union, 652 N.E.2d 80, 83 (Ind.Ct.App.1995), trans. denied. If we find there is substantial evidence to support the trial court's ruling, we will affirm. Edward D. Jones & Co. v. Cole, 643 N.E.2d 402, 405 (Ind.Ct.App.1994), trans. denied. Indiana Trial Rule 23 is based upon Federal Rule of Civil Procedure 23. Hefty v. All Other Members of Certified Settlement Class 680 N.E.2d 843, 848 (Ind. 1997). ³ Thus, it is appropriate for us to look at federal court interpretations of the federal rule when we apply the Indiana rule. Id.

Class Action Certification

Connerwood asserts that the trial court abused its discretion when it certified this case as a class action. In determining the propriety of class action certification, a trial court must first determine whether the class meets the four prerequisites of Indiana Trial Rule 23(A), generally known as numerosity, commonality, typicality and adequacy of representation. If these are met, the court must then assess whether the action also satisfies at least one of the three subsections of Indiana Trial Rule 23(B). We consider each in turn.

I. Indiana Trial Rule 23(A)

The trial court specifically found that Herron satisfied the prerequisites to class certification pursuant to Trial Rule 23(A) which provides:

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.

Connerwood does not challenge the adequacy of the representation requirement. ⁴ Rather, Connerwood argues that there is insufficient evidence of numerosity, commonality and typicality. ⁵

A. Numerosity

Connerwood first argues that Herron has failed to demonstrate that the class is so numerous that joinder of all members is impracticable. In particular, Connerwood insists that "[l]ess than 40 potential class members does not satisfy the numerosity requirement."

We observe that the Indiana State Department of Health conducted an investigation of the food poisoning incident. The Department's report indicates that 70 residents became ill after having been served scrambled eggs. At the time of the report, 34 residents were culture positive for salmonella enteritidis. Whether the actual number of persons affected is 34 or 70, the numerosity prerequisite is not simply a test of numbers. McCart, 652 N.E.2d at 83. The real inquiry under the rule is whether joinder would be impractical. T.R. 23(A)(1); see Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D.Ill.1995) (numerosity analysis does not rest on magic number but permissive joinder is usually deemed impracticable where class members number 40 or more). That inquiry requires the court to consider judicial economy and the ability of the class members to institute individual suits. CSX Transp., 646 N.E.2d at 1007.

Here, the trial court found, "[G]iven the age and physical condition of many of [Connerwood's] residents" affected by the food poisoning, certification was appropriate in order to "fairly and adequately protect the interests of this class." The Executive Director of Connerwood's facility testified that most of the residents are elderly and infirm. Some are unable to handle their own affairs. The evidence supports the conclusion that potential class members would be unable to protect their interests and pursue remedies on an individual basis. This favors class certification even where the number of class members is relatively small. We conclude that there is sufficient evidence that joinder of all members of the proposed class would be impracticable.

B. Commonality and Typicality

The trial rule also requires that there be questions of law or fact common to the class, T.R. 23(A)(2), and that the claims or defenses of the representative parties are typical of the claims or defenses of the class. T.R. 23(A)(3). The commonality prerequisite focuses on the characteristics of the class. Matter of Tina T., 579 N.E.2d 48, 54 (Ind.1991). This requirement is satisfied if the individual plaintiffs' claims are derived from a common nucleus of operative fact, described as a common course of conduct. Edward D. Jones, 643 N.E.2d at 405. Here, Herron claims that the negligent use and preparation of nonpasteurized egg products caused the food poisoning. This constitutes a common course of conduct and satisfies the commonality requirement.

In contrast, typicality focuses on the desired characteristics of the class representative. Matter of Tina T., 579 N.E.2d at 54. The gravamen of Connerwood's argument is that Herron's claim for wrongful death is shared by only two other residents while the claims of the other residents are based on common law negligence. Connerwood also argues that the derivative claims of Herron's surviving adult daughters are different in kind and degree from those of other class members.

Subdivision (A)(3) does not require a showing that all plaintiffs' claims be identical. Edward D. Jones, 643 N.E.2d at 407. The element is satisfied if the representative plaintiffs' claims are neither in conflict with nor antagonistic to the class as a whole. Id. The cause of action in this case rests on a single course of conduct from which all damages flow, that is, Connerwood's allegedly negligent behavior. The factual and legal issues of Connerwood's liability do not differ dramatically from one plaintiff to another. As the Ninth Circuit stated:

In the typical mass tort situation, such as an airplane crash or a cruise ship food poisoning, proximate cause can be determined on a class-wide basis because the cause of the common disaster is the same for each of the plaintiffs.

In re Northern Dist. of Cal., Dalkon Shield IUD Prod. Liab. Litig., 693 F.2d 847, 853 (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983) (emphasis added). The wrongful death claims, based upon statute, and the personal injury claims, based upon the common law, are not incompatible. In the words of the United States Supreme Court, "Death is the supreme personal injury." American Stevedores, Inc. v. Porello, 330 U.S. 446, 460, 67 S.Ct. 847, 854, 91 L.Ed. 1011, 1022 (1946); see, e.g., In re Joint Eastern and Southern Dists. Asbestos Litig., 78 F.3d 764 (2nd Cir.1996) (...