By John W. Scanlan, J.D.
A federal court in California conditionally denied decertification of a class of customers who had purchased from Costco a frozen berry and pomegranate mix that was later linked to a hepatitis A outbreak. Although the court turned back the defendants’ arguments that the class representatives were not typical of the class, it could not determine at this time whether individualized proof of contamination would be required (Petersen v. Costco Wholesale Co., Inc. , November 15, 2016, Carter, D.).
After an outbreak of hepatitis A that the CDC and the FDA linked to berries contained in Townsend Farms Organic Anti-Oxidant Blend, ten consumers in nine states who alleged they had consumed some of the product brought a putative class action against Costco Wholesale Co., Inc., Townsend Farms, Inc., Purely Pomegranate, Inc., Fallon Trading Co. Inc., and United Juice Corp. The consumers alleged that they received a hepatitis A vaccination or an immune-globulin shot after being notified of the contamination, as advised by Costco in a notification to its members. The court certified nine single-state subclasses for the purpose of determining liability [see Products Liability Law Daily’s January 27, 2016 analysis]. The defendants then moved for decertification, arguing that the class members no longer met the typicality requirement and that individual issues predominated.
Typicality. The class representatives remained typical representatives of the class. Although the defendants argued that none of the class representatives could establish all of the economic damages that the class was seeking as a whole, it was only necessary that their claims be reasonably co-extensive; the same showing of liability that would entitle the named plaintiffs to recover also would entitle the other class members to recover for any economic damages they sustained. The court declined to consider the defendants’ argument that the class representatives would not be able to recover any damages under a strict liability theory unless they established some type of economic damages because this argument was raised for the first time on their reply brief. The defendants’ argument that the class representatives could not prove their exposure to a contaminated product was not an argument against typicality but rather a claim that the whole class’ claims were without merit.
Challenges to typicality of individual representatives. The defendants asserted that two representatives were not typical because they stated in their depositions that they were not seeking emotional distress damages, but their lawyers clarified that they were, in fact, seeking these damages. The court observed that the consumers could not be expected to have memorized every claim that their lawyers were bringing on their behalf.
The fact that one of the class representatives had cooked her berries before eating them, which the defendants asserted would have killed any hepatitis A virus, did not make her atypical. A class representative does not have to show that she is immune to any defense. The potential defense against her also may be raised against other consumers in the class. Furthermore, it was unclear at this time whether she had only consumed the berries in a way that there was no possibility of hepatitis A contamination.
A class representative who received a tetanus shot at the same time as he received the hepatitis A shot was nevertheless still a typical class representative because he sustained the same damages as the other representatives. Although he was the only representative reporting side effects from the vaccination, this goes to the weight that should be given to this report, and the defendants may argue that this reaction was not the result of the hepatitis A vaccine.
Finally, the consumers conceded that two of the class representatives could not represent the Washington subclass because the events giving rise to their claims occurred in California. The court gave the consumers until December 1 to find appropriate substitutes.
Predominance. The court declined to rule on the issue of predominance because the question of whether each plaintiff would need to offer individualized proof of the contamination of his or her berry mix had not been sufficiently developed. The court noted that it expected this issue would be briefed more fully for a motion on summary judgment.
The case is No. SA CV 13-1292-DOC (JCGx).
Attorneys: Adam T. Kent (Daymark Realty Advisors Inc.) for Jacob Petersen. Eric A. Kuwana (Katten Muchin Rosenman LLP) for Townsend Farms Inc. and Fallon Trading Co., Inc. Cary L. Wood (Lewis Brisbois Bisgaard and Smith LLP) for United Juice Corp. Eric A. Kuwana (Katten Muchin Rosenman LLP) and Gina E. Och (Murchison and Cumming LLP) for Costco Wholesale Co., Inc.
Companies: Townsend Farms Inc.; Fallon Trading Co., Inc.; United Juice Corp.; Costco Wholesale Co., Inc.
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