Long v. Trans World Airlines, Inc., 86 C 7521.

• Decision Date: 12 March 1991
• Docket Number: No. 86 C 7521.,86 C 7521.
• Citation: 761 F. Supp. 1320
• Court: U.S. District Court — Northern District of Illinois
• Parties: Kaphy LONG, Lisa Sharring, Barbara Smith and Velma Metoyer, individually and on behalf of a class of persons similarly situated, Plaintiffs, v. TRANS WORLD AIRLINES, INC., a corporation, Defendant.

761 F. Supp. 1320

Kaphy LONG, Lisa Sharring, Barbara Smith and Velma Metoyer, individually and on behalf of a class of persons similarly situated, Plaintiffs, v. TRANS WORLD AIRLINES, INC., a corporation, Defendant.

No. 86 C 7521.

United States District Court, N.D. Illinois, E.D.

March 12, 1991.

COPYRIGHT MATERIAL OMITTED

Samuel W. Witwer Jr., Richard F. Sarna, Witwer, Moran, Burlage & Witwer, Wayne B. Giampietro, Thomas R. Meites, Lynn Sara Frackman, Julia E. Getzels, Meites, Frackman & Mulder, Chicago, Ill., for plaintiffs.

Gordon B. Nash, Jr., Laurence A. Carton, Mark E. Furlane, Gardner, Carton & Douglas, Chicago, Ill., Michael A. Katz, Trans World Airlines, New York City, for defendants.

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

I. INTRODUCTION

This is a class action lawsuit brought by approximately 3,000 flight attendants against their employer, Trans World Airlines, Inc. ("TWA"), challenging the company's refusal to provide them with designated rights letters pursuant to the Airline Deregulation Act, 49 U.S.C.App. § 1552, and its applicable regulations, 29 C.F.R. Pt. 220, after plaintiffs went on strike and were not re-hired. On August 18, 1988, the Court granted plaintiffs' motion for class certification pursuant to Fed.R.Civ.P. 23(b)(3), rejecting defendant's argument that an abundance of individual issues with respect to damages made a class action unwieldy. The Court stated that a number of methods were available to manage these issues, but it deferred consideration of which method should be adopted.

On January 26, 1989, the Court granted plaintiffs' motion for summary judgment as to liability. Long v. Trans World Airlines, Inc., 704 F.Supp. 847 (N.D.Ill.1989). That decision has been affirmed on appeal. Long v. Trans World Airlines, Inc., 913 F.2d 1262 (7th Cir.1990). The Court must now determine how litigation of the damages issues shall proceed.

Relevant background facts may be found in the earlier opinions of this Court and the Seventh Circuit. An additional development is the completion of questionnaires by over 2,000 of the class members for use in another case in which they are also plaintiffs, Independent Federation of Flight Attendants v. Trans World Airlines, Inc., No. 86-6084-CV-SJ-6 (W.D.Mo.).¹ Those "IFFA questionnaires" consist of six forms which request the following information:

1. Form A seeks 23 types of personnel information, such as name, address and marital status.

2. Form B seeks information concerning earnings and expenses during the period for which damages are sought in this case, information concerning other employment during that period, information relating to job search and employment expenses, information relating to job search activity, and information concerning any periods of inability to work.

3. Form C seeks information concerning pre-strike employment and use of child care services during the year preceding the strike.

4. Form D seeks information concerning medical and dental expenses.

5. Form E seeks information concerning quarterly travel pass usage.

6. Form F seeks information concerning insurance expenses.

The parties have submitted a number of briefs on the damages issues, addressing such issues as discovery, proximate cause, mitigation, manner of computing lost wages, and availability of compensatory damages.

Of foremost importance at this stage of the litigation are determinations regarding how discovery on the damages issue should proceed and whether defendant should be permitted to pursue a defense that plaintiffs failed to mitigate their damages.

II. DISCOVERY

A. Scope of Class Discovery

Defendant seeks permission to serve interrogatories and discovery requests on all class members.² Defendant suggests that it report to the Court after it has reviewed the responses to this discovery in order to discuss the necessity of additional discovery.

Plaintiffs request that discovery proceed on a "sampling" basis, with the initial step being the selection of a random sample of class members. Defendants would then be allowed to serve discovery only on the sample. Plaintiffs also suggest using affidavits from all class members to prove only incidental and consequential damages.³

The parties do not dispute the appropriateness of discovery on the damages issues, and they do not dispute the necessity of an eventual hearing. They differ, however, as to the propriety of using a sampling method to limit discovery. This appears to be an issue of first impression in this context. Plaintiffs primarily argue that full-blown discovery is unnecessary and unduly burdensome, but they have provided no authority squarely authorizing sampling in this situation. Defendants argue that the presence of individual issues entitles them to discovery from each plaintiff, but they have provided no authority which prohibits using sampling to limit discovery. After reviewing the law concerning discovery and the law governing class actions, the Court agrees with plaintiffs that a sampling method should be used.

The issue may be broken down into two questions. First, is sampling ever appropriate over a party's objection? Second, if sampling is appropriate in some instances, is this case such an instance?

The Court finds initially that sampling is a permissible procedure. If sampling were universally prohibited, it could only be because a party had an absolute right to obtain discovery from each adverse party or to introduce evidence concerning each such party. Defendants have not identified any source for such a right. Fed.R.Civ.P. 26(c) provides district courts broad discretion to limit discovery when "justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." See Seattle Times v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17 (1984). In other class actions, courts have not required absolute precision as to damages and have allowed damages to be proven by reference to a class as a whole, rather than by reference to each individual class member. In Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir.1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995, 53 L.Ed.2d 1105 (1977), the defendant was found to have committed discriminatory hiring and promotion practices in violation of Title VII of the Civil Rights Act of 1964. The court of appeals outlined the approach to be taken in determining the amount of backpay to be awarded. It "set down three general rules:"

(1) unrealistic exactitude is not required; (2) ambiguities in what an employee or group of employees would have earned but for discrimination should be resolved against the discriminating employer; (3) the district court, far closer to the facts of the case than we can ever be, must be granted wide discretion in resolving ambiguities.

542 F.2d at 452. In applying these principles to the Stewart case, the court recognized that the first issue:

is whether backpay should be awarded on an individualized basis to particular employees or on a classwide basis to be divided among the entire group which plaintiffs represent. Where possible, an individualized remedy should be utilized because it will best compensate the victims of discrimination without unfairly penalizing the employer.

Id. With respect to individuals who had been unfairly denied promotions, the court determined that damages should be computed on a classwide basis, even though that might create a windfall for some class members and undercompensate others. Id. The court then noted that a number of techniques are available for approximating damages in class actions. Id. at 453. Of these techniques, the court determined that a "test period" approach was preferable in the specific case before it:

The district court should trace over a period of time the history of a group of white hourly employees which is comparable to the group of black employees constituting the class receiving the backpay award. By determining which members of the control group achieved salaried status, how high within the salaried ranks they rose, and what their increases in salary were, it will be possible on remand to estimate for that period the increment in salary which the black hourly employees as a group would have earned had they been permitted to advance to salaried positions. This figure will serve as a benchmark for computation of the actual award.

Id. See also Liberles v. County of Cook, 709 F.2d 1122 (7th Cir.1983) (Stewart "does not stand for the proposition that individualized hearings are necessary;" affirming classwide determinations of relief in Title VII case); Bowe v. Colgate, Palmolive Co., 489 F.2d 896, 902-04 (7th Cir.1973) (using "test period" approach).

Commentator Herbert Newberg has discussed at length the propriety of aggregate proof of damages. "In appropriate circumstances, various individual issues can be eliminated by use of classwide proof of aggregate damages and by the employment of methods for distribution of aggregate recoveries by means other than individual proofs of damages suffered." 2 Newberg, Class Actions 332 (1985).

The use of proofs of aggregate class recoveries, when feasible, eliminates the need for individual damage proofs at trial. Aggregate class recovery proofs are becoming a recognized means of proceeding in class adjudications, provided such means of proof are able to be developed in the particular circumstances and otherwise comply with applicable evidentiary rules.

Id. at 336. In determining what method to use,

the court must be careful to balance two basic yet opposing interests. The defendants must be given fair opportunity to contest the validity of individual claims and to present defenses unique to particular claims. At the same time, consistent with the judicial economy and access to judicial relief objectives of class actions, `class members should be able to secure the relief to which they are entitled without expending more money and

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