THE HONORABLE JIM ROGERS TRIAL DATE: April 24, 2023 DATE OF HEARING: October 28, 2022 at 11:00 a.m.
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
PATRICK WILLS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF AIDEN WILLS; COLEEN WHITE, a single person; WHITNEY STETTLER, a single person; WHITNEY LaROSE, a single person; CHRISTOPHER GUNNELL, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF IAN GUNNELL; LISA FAIRCLOTH, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHRISTOPHER D. HUNSUCKER; LISA HELMS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WYNN DEE NIEMI; LAURIE SCHULTZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JENNIFER ROSE LANKTREE; JANET R. SINGLE-SCHWALL, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HANNAH A. SINGLESCHWALL; ANNA DESHANE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BLAKE R. VAILLANCOURT; JILL SAHLSTROM, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JONATHAN T. SAHLSTROM; MEGAN BAKER, Guardian for L.B., minor child and SHAWN BAKER and MEGAN
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 1
No. 19-2-31648-9 SEA
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
BAKER, husband and wife, individually and on behalf of their marital community; M.F., a single person; ALAN FRANCIS and CHARLOTTE FRANCIS, husband and wife, individually and on behalf of their marital community; A.P., a single person; STEFAN PENTCHOLOV and IVANKA PENTCHOLOV, husband and wife, individually and on behalf of their marital community; MARCUS FELLOWS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JORDAN I. FELLOWS; SHANNON NOGGLES, a single person; C.D., a single person; AL DUNLAP and RACHELLE R. JASPER DUNLAP, husband and wife, individually and on behalf of their marital community; PARMINDER KAUR, Guardian for S.K., minor child and HAVINDER SINGH and PARMINDER KAUR, husband and wife, individually and on behalf of their marital community; TIM RHODEN, Guardian for C.R., minor child and TIM RHODEN and TIFFANY RHODEN, husband and wife, individually and on behalf of their marital community; DRU KERR, Guardian for L.K., minor child and individually; KYLA HAILSTONE, Guardian for T.H., minor child and individually; DEBRA MORRIS, Guardian for KYLE MORRIS, an incapacitated individual and SCOTT J. MORRIS and DEBRA MORRIS, husband and wife, individually and on behalf of their marital community; MARGARET WALDROP, a single person; RHONDA MITTBY, a single person; SAMUEL TRUETT WALDROP, a single person; JOHN P. ALBRECHT, Guardian for V.A., a minor and JOHN P. ALBRECHT and CELMA MARIA BARRETO, husband and wife, individually and on behalf of their marital community; KATIE RAE WHITMORE, Guardian for F.F., minor child and individually; PAT FOSTER, a single person; STEPHANIE McCOY, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF TROY ROEDER II; MALLORY FISHER, Guardian for C.F., a minor and
STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
MALLORY FISHER and CRAIG FISHER, husband and wife, individually and on behalf of their marital community; CINDY GOULDING, Guardian for V.G., a minor and CINDY GOULDING and MICHAEL GOULDING, husband and wife, indiviually and on behalf of their marital community, Plaintiffs, v.
SEATTLE CHILDREN’S HOSPITAL, a nonprofit Washington Corporation, Defendant.
I. RELIEF REQUESTED
In November 2019, Seattle Children’s Hospital (“SCH” or “Defendant”) CEO Jeff Sperring announced at a press conference that between 2001 and 2019, 14 total patients were infected with Aspergillus at the hospital, killing six. When asked why the hospital had not disclosed this information before, he said:
At the time we believed that these were isolated incidents, we now believe that these infections were likely caused by the air handling system that served our operating rooms…Looking back, we should have made the connection sooner. Simply put, we failed."
Discovery has revealed that Defendant continues to conceal from the public that there are dozens of known hospital-acquired Aspergillus infections.
As part of its decades-long failure to maintain its air handling system, Defendant has notified several thousand families of their child patient’s potential exposure to Aspergillus, treating at least 87 of them with harsh prophylactic anti-fungal medications. These families entrusted Defendant with the lives of their sick children. In turn Defendant breached its position of trust and responsibility. The Defendant committed admitted failures in exposing the immunocompromised
STRITMATTER KESSLER KOEHLER MOORE
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and otherwise ill children to additional preventable dangers. As a result the Plaintiffs have suffered general and special damages.
Pursuant to CR 23(b)(3), the Plaintiffs ask this Court to certify two Classes defined as follows:
Notice Class
All of Defendant’s child patients and their parents, who received notice of potential Aspergillus exposure at Seattle Children’s Hospital between December 2, 2016 and the Present, and suffered special and/or general damages as a result of the notice and/or potential exposure to Aspergillus.
Prophylaxis Class
All Defendant’s child patients and their parents where the children were treated prophylactically for Aspergillus due to exposure on Defendant’s premises between December 2, 2016 and the Present, and suffered special and/or general damages as a result.
Excluded from these Classes are Defendant’s officers and employees and their children, if any, the Judge assigned to this case and his or her staff, all counsel, and the immediate family members of the same.
Finally, Plaintiffs Stephanie McCoy, Cindy Goulding and Michael Goulding, ask this Court to appoint them as Notice Class Representatives and their counsel as Class Counsel. Plaintiffs Dru Kerr, Kyla Hailstone, John Albrecht and Celma Maria Barretto, and Mallory Fisher and Craig Fisher, ask this Court to appoint them as Prophylaxis Class Representatives and their counsel as Class Counsel. 1
II. STATEMENT OF FACTS
A.
Factual Background on Aspergillus Outbreak at
SCH.
By at least August of 2000, SCH knew or should have known of its Aspergillus problem given internal communication outlining ongoing and systemic problems with the maintenance of 1 Plaintiffs will submit a motion regarding notice to the class separate from this motion.
STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
the air-handling system at SCH. 2 During 2002 and 2003, internal communication and concerns raised by a professional engineering consultant prove that SCH knew of numerous problems with its air-handling system and the serious risk to its patient population 3 The list of identified problems at SCH included lack of a formal maintenance program, water leaks, plugged drains, standing water, plugged intake screens, live and dead birds in fan shafts, leaking coils, overall filthy condition of all air handling units, lack of organized blue prints of HVAC system, underqualified and under-staffed Building and Engineering Department, misallocation of monies from the Building and Engineering Department and failure to test air handling units to determine if operating as designed. 4
Prior litigation was initiated in 2005 by co-Plaintiff counsel John Layman here, on behalf of his then clients, the Patnodes. As a result of that heavily litigated case, SCH was well-aware of the direct link between inadequate maintenance of SCH’s air-handling system and transmission of Aspergillus mold into SCH. 5 In 2008, SCH settled Patnode on A condition of confidentiality. 6 By invoking secrecy and in other ways, SCH took active steps to hide from the public the existence of Aspergillus mold having spread throughout SCH’s air-handling system. Even worse, SCH did not internally share or otherwise implement the recommendations of the experts, its own employees, and consultants, who laid out the critical failures and dangerous environment caused by the HVAC failures. 7
Not until November of 2019 did Defendant notify the public, its doctors, nurses, or its patients or their parents that there were problems with the maintenance of its air-handling system,
2 Plaintiff’s Sixth Amended Complaint, Dkt. # 484, par. 3.6. 3 Id. at par. 3.3. 4 Id. 5 Id. at par. 3.4. 6 Id. at par. 3.5. 7 Id. at par. 3.7.
STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
conceding finally that it should have made the connection sooner. Even when hospitalized child patients became sickened by Aspergillus, SCH concealed its culpability until the outbreak would become public through other less flattering means than a mea culpa speech the media and government oversight. 8
B. Procedural Background.
Plaintiffs initially filed suit seeking class certification for those patients infected with Aspergillus on Defendant’s premises between 2001 and 2019. On January 14, 2022, Judge Dean Lum denied that version of class certification, reasoning that too many individual questions of fact exist as to whether the hospital caused each infection, considering the nature of underlying conditions, locations of treatment, statute of limitations issues, and types of personal injury and wrongful death damages involved. However, Judge Lum provided a roadmap for continuation of a better framed cause of action, stating:
The Court leaves open the possibility that plaintiffs could move to certify a narrower class under CR 23(b)(3) that is not overbroad and does not implicate individualized case specific inquiry, understanding that a narrower class logically runs in to numerosity issues and that plaintiffs’ premises liability claims are inherently case specific. 9
Based on this ruling, Plaintiffs amended their complaint to assert (1) a Mass Tort case of those individuals infected with Aspergillus at the hospital, (2) a Notice Class of patients who were deemed at risk of hospital-acquired infection and received notice of exposure and steps to take, and (3) a Prophylaxis Class of patients who received anti-fungal treatment based on their exposure and high risk of infection.
8 Id. at par. 3.8. 9 Declaration of Karen Koehler, Ex. 1, p. 7
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C. Notice and Prophylaxis Classes.
Patient Notifications and Harms
In 2018, Defendant notified at least 136 patients in writing that they might have been exposed to Aspergillus on the premises. In 2019, Defendant notified at least 3,500 patients. 10
These notices were in standard form letters to “patients who had surgery in the affected operating rooms.” They contained the notification of exposure to Aspergillus. A “what does this mean” section, a list of symptoms. And a “what should I do next” section. 11
Defendant employed standardized scripts for telephone and in-person discussions: 12
The hospital provided staff with “Talking Points for Patient & Family Calls,” containing bullet points and a Frequently Asked Questions section. 13
Defendant also used monitoring follow-up care instruction handouts to patients and families:
10 Declaration of Karen Koehler, Ex. 2, p. 13 (Morray Dep. p. 149).
11 Declaration of Karen Koehler, Ex. 3, 4, pp. 15-17 (2018 and 2019 notices).
12 Declaration of Karen Koehler, Ex. 5, p. 18.
13 Declaration of Karen Koehler, Ex. 6, pp. 19-20
STRITMATTER KESSLER KOEHLER MOORE
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Defendant recognized and advised staff that the simple fact of providing the notifications would cause harm:
Defendant trained staff on how to deal with anticipated reactions: 15 14 Declaration of Karen Koehler, Ex. 7, p.21. 15 Declaration of Karen Koehler, Ex. 8, pp. 23-25
STRITMATTER KESSLER KOEHLER MOORE
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Over 3,600 families received identical notifications for identical reasons, and (just as Defendant anticipated) were similarly harmed.
Prophylaxis and Harms
Plaintiffs propounded discovery regarding patients treated prophylactically for Aspergillus exposure – those Defendant deemed at high risk of infection. Due to medical privacy, Plaintiffs only have access to anonymized data and are reliant on Defendant to provide accurate information. Initially, Defendant identified 29 patients. 16 After a CR 26(i) to ask if Defendant was sure this represented all prophylactic patients, Defendant then identified 76 patients treated prophylactically due to Aspergillus exposure on the hospital premises. Then Defendant supplemented again with a total of 87 patients. These treatments involved the anti-fungal medications Posaconazole and Voriconazole. Defendant employed these medications between May and November of 2019. 17
As Plaintiffs’ pediatric infectious disease expert Dr. Rishi Desai explains, and as Defendant’s discovery responses illustrate, anti-fungal medications cause harsh side effects such as nausea, vomiting, skin rashes, headaches, skin toxicity, lip sores, and seizures. 18 Dr. Desai also describes other categories of harm to prophylactic patients. First, testing along with prophylactic care “is not a benign process.” “It usually requires taking blood or CT scans, each of which involves a dose of radiation, and patients often undergo multiple scans to check for infection or improvement. A spinal tap may also be required, which for young children requires anesthesia and the associated risks. Another test for Aspergillus is pulmonary washing, where liquid is
16 Declaration of Karen Koehler, Ex. 9, pp. 43-46 (Defendant’s Responses to First Class Discovery – see Stipulation and Motion to Seal/Redact for unredacted version).
17 Declaration of Karen Koehler, Ex. 10, pp. 55-61 (Defendant’s Second Supplemental Responses to First Class Discovery – see Stipulation and Motion to Seal/Redact for unredacted version).
18 See id., Declaration of Rishi Desai, M.D., par 15-17. Note: Dr. Desai did not have the opportunity to review Defendant’s second supplemental discovery responses identifying prophylaxis patients, thus his materials refer to 76 patients (identified in Defendant’s first supplemental responses) instead of 87. Most of the additional 11 children had side effects from anti-fungal medication, thus the rate of children experiencing side effects is higher than summarized in Dr. Desai’s declaration.
STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
squirted into the child patient’s lungs, and then sucked back out. This is an invasive procedure.” 19
Second, “administration of medications usually requires that the child patient return to the hospital. Medications may be administered by IV or orally. Usually, these types of medications start with IV, because it works faster and more reliably, and then the child is transitioned to oral medication.” 20
Third, “it is often necessary to modify the patient’s underlying treatment when giving prophylactic anti-fungal medication. This is usually due to interactions between the anti-fungal medication and other treatment the anti-fungal medications are contraindicated with underlying medications or compound their effects.” 21
Fourth, “when a hospital then treats patients prophylactically because they are at high risk of a dangerous infection, it is common for patients and their families to experience an even greater psychological impact, such as fear, distress, anger, mistrust, or other trauma.” 22
These categories of harms are common to the class. However, due to the nature and scope of this case, many of these claims may not be economical to pursue without class status. 23
IV. STATEMENT OF THE ISSUE
Whether a class should be certified, taking into account (1) the impracticality of joinder of all members of the class, (2) common questions of law or fact, (3) typical or common defenses, and (4) the representativeness of the individuals suing. See Wash. Educ. Assn. v. Shelton Sch. Dist., 93 Wn.2d 783, 789 (1980), interpreting CR 23(a) and CR 23(b).
19 Declaration of Rishi Desai, M.D., par. 18.
20 Desai Declaration par. 19. 21 Desai Declaration par. 20. 22 Desai Declaration par. 21. 23 See Declaration of Karen Koehler.
STRITMATTER KESSLER KOEHLER MOORE
3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
V. EVIDENCE RELIED UPON
This motion relies upon the following new declarations:
(1) the Declaration of Karen K. Koehler, with exhibits; and (2) the Declaration of Rishi Desai, M.D.
To the extent relevant to class certification issues, this motion relies upon the case record including the following declarations from prior motions:
(1) the Declaration of Wayne Hansen, PE, REA, CEM Dkt. #213;
(2) the Declaration of Michael W. Buck Dkt. #212;
(3) the Declaration of Raymond E. Petrisek, M.S., ASCP (MT), SM, HEM Dkt. #215; (4) the Declaration of Daniel Koenigshofer, PE, MSPH Dkt. #214;
(5) the Declaration of Andrew J. Streifel Dkt. #216; and (6) the Declaration of John Layman and the exhibits attached thereto, Dkt. #236.
VI. ARGUMENT
A. Plaintiffs Satisfy the Requirements of CR 23(a)
“CR 23 is liberally interpreted because the rule avoids multiplicity of litigation, saves members of the class the cost and trouble of filing individual suits, and also frees the defendant from the harassment of identical future litigation.” Moeller v. Farmers Ins. Co. of Wash., 173 Wn.2d 264, 278 (2011). “A primary function of the class suit is to provide a procedure for vindicating claims which, taken individually, are too small to justify individual legal action but which are of significant size and importance if taken as a group.” Smith v. Behr Process Corp., 113 Wn. App. 306, 318-19 (2d Div. 2002). And since a class is subject to later modification or decertification, “the trial court should err in favor of certifying the class,” and such a decision should not be reversed except for an abuse of discretion. Moeller at 278, 280.
STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
A CR 23(b)(3) class action is superior to other available methods for the fair and efficient adjudication of this case. Absent a class action, many Notice Class and Prophylaxis Class members would likely find the cost of litigating their individual claims prohibitively high and would therefore have no effective remedy at law. Some Class Members’ claims may be small compared to the cost of litigation. As a result, Plaintiffs fear that some, if not many, class members who are entitled to money damages given Defendant’s egregious conduct will forego meritorious legal redress. Absent a certified CR 23(b)(3) class action, Class Members will not realize justice and SCH will get a “pass” for its misconduct.
Class treatment of common questions of law and fact is superior to other available procedures, such as multiple individual actions or piecemeal litigation because class treatment will conserve the resources of the courts and the litigants and will promote consistency and efficiency of adjudication.
B. The Class is so Numerous that Joinder of all Members is Impracticable Plaintiffs need not show that it would be impossible to join all proposed class members, but that it would be “extremely difficult or inconvenient.” See Miller v. Farmer Bros. Co., 115 Wn. App. 815, 821, 64 P.3d 49 (Div. 1 2003). As a general rule, classes of 40 or more create a rebuttable presumption that joinder is impracticable. Id. And “Other sources have stated that a class having between 25-30 members raises a presumption of impracticability of joinder.” Id. (citing EEOC v. Printing Indus. of Metro. Washington, D.C., Inc., 92 F.R.D. 51, 53 (1981)).
However, there is “no converse presumption that classes under a certain size should not be certified.” Id. at 822. The size of a smaller class should be considered in conjunction with other factors, “including ‘judicial economy arising from the avoidance of multiplicity of actions, geographic dispersement of class members, size of individual claims, financial resources of class
STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
members, the ability of claimants to institute individual suits, and request for prospective injunctive relief which would involve future class members.’” Id. (quoting 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3.06 at 3–27, 3–28. (3d ed.1992).
Notice Class:
Defendant has identified over 3,600 individuals who received notice of exposure to Aspergillus on Defendant’s premises, along with warnings and instructions. It stands to reason based on the standardized notices that thousands of patients sustained special damages through monitoring, testing, travel, and medical delays and precautions. It also stands to reason that medically-vulnerable child patients and their families would suffer emotional distress upon learning the hospital to which they entrusted children’s lives, endangered them further. It would clearly be “extremely difficult or inconvenient,” if not impossible, to join these thousands of patients and families as individual plaintiffs in an action.
Prophylaxis Class:
Defendant has identified 87 child patients treated prophylactically for high risk of infection due to Aspergillus exposure, and there could be more given that Defendant started with 29. This is more than double the number of presumptive numerosity (40) In addition, this factor is weighed in relation to other factors:
1. Judicial economy arising from the avoidance of multiplicity of actions: 87 or more independent lawsuits on almost identical facts would waste time and judicial resources.
2. Geographic dispersal of class members: Defendant is a regional hospital and serves patients throughout the west coast. 24 Defendant explains on its website: “Together, 24 https://www.seattlechildrens.org/about/
STRITMATTER KESSLER KOEHLER MOORE
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we deliver superior patient care, advance new discoveries and treatments through pediatric research and serve as the pediatric and adolescent academic medical center for Washington, Alaska, Montana and Idaho – the largest region of any children’s hospital in the country.” For example, the Hailstone family resides in Billings, Montana, and the Kerrs reside in Spokane.
3. Size of individual claims: Compared to infection and particularly wrongful death claims, the Prophylaxis Class and Notice Class claims are much smaller.
4. Financial resources of class members and the ability of claimants to institute individual suits: Due to the smaller size of these individual claims, they may not be economically viable as individual suits. The cost of eight to ten liability and damages experts, like those cited above, reaches several hundred thousand dollars. 25 As a result, most of these claimants may not even be able to retain a lawyer.
All of these factors weigh heavily in favor of a class action.
C. There is a Question of Law or Fact Common to all Class Members “[T]here is a low threshold to satisfy” the test of commonality, which “is qualitative rather than quantitative, that is, there need be only a single issue common to all class members.” Smith, 113 Wn. App. at 320. A common question is a “contention” that is “of such a nature that it is capable of class-wide resolution which means that 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… What matters is … the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2451, 2550 (2011). 25 See Declaration of Karen Koehler.
STRITMATTER KESSLER KOEHLER MOORE
3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
There are multiple questions of law and fact common to the Plaintiff class representatives and each class member:
1. Defendant failed to reasonably inspect its air-handling system;
2. Defendant failed to reasonably maintain its air-handling system;
3. Defendant failed to reasonably repair or replace components of its air-handling system including, but not limited to, HVAC, filtration, plenum, gasketing, and sealing;
4. Defendant failed to reasonably maintain air pressurization for business invitee safety;
5. Defendant increased the risk of harm and failed to reasonably protect against it through construction activities;
6. Defendant failed to reasonably protect business invitees against infection vectors such as dust, pollen, insects, and rodents;
7. Defendant failed to ensure adequate communication between hospital departments critical to preventing airborne infections, including the Infection Prevention Department and the Building & Engineering Department.
8. Defendant failed to reasonably warn and inform child patients and their families about the risk of Aspergillus exposure on the premises.
9. Defendant concealed the existence of chronic Aspergillus contamination in its hospital from the public;
10. Defendant engaged in unfair and deceptive practices by holding itself out and soliciting business as the safest and best children’s hospital in the region, when the
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air quality of its patients’ private residences was safer than Defendant’s premises;
11. For Notice Class Plaintiffs, as a direct result of the above failures, Defendant issued standardized written and oral notifications, warnings, and instructions to patients concerning their Aspergillus exposure in 2018 and 2019; and
12. For Prophylaxis Class Plaintiffs, as a direct result of the above failures, Defendant deployed the same or similar harsh anti-fungal medications to at least 87 child patients over a three to five-month span, causing the same or similar categories of harm such as medication side effects, treatment delays, diagnostic testing, and trauma.
Due to numerous common questions of law and fact, these claims are most efficiently brought as class action claims.
D. The Claims of the Representative Plaintiffs are Typical of the Claims of the Class Members
“Typicality is satisfied if the claim arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if [the representatives’] claims are based on the same legal theory.” Pellino v. Brink’s, Inc., 164 Wn. App. 668, 684 (Div. 1 2011). Claims in both the Notice Class and Prophylaxis Class are based on the same course of conduct and legal theories referenced above. These classes are factually identical except for the precise amount of damages.
Plaintiffs Stephanie McCoy, Cindy Goulding and Michael Goulding received standardized notice from Defendant that their children were exposed to Aspergillus at the hospital. By nature of the standardized notices and the instructions in them, their claims are typical of the class. 26 26 See supra; see also Plaintiffs’ Sixth Amended Complaint.
STRITMATTER KESSLER KOEHLER MOORE
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Plaintiffs Dru Kerr, Kyla Hailstone, John Albrecht and Celma Maria Barretto, and Mallory Fisher and Craig Fisher, are the parents of patients Defendant treated prophylactically with antifungal medication due to exposure at the hospital. As illustrated above and in Defendant’s summary of prophylactic patients, their medication and side effects such as nausea, vomiting and treatment delays are typical of all prophylaxis patients. 27
E. The Representative Plaintiffs Will Adequately Represent the Interests of the Class 28
Where a proposed class representative possesses the same interest as the class and has suffered the same injury as class members, he or she meets the adequacy requirement. Cf. Beattie v. CenturyTel, Inc., 511 F.3d 554, 562 (6th Cir. 2007). Indeed, where there is no conflict of interest and the plaintiffs are poised to vigorously prosecute on behalf of the class through the retention of experienced counsel, he or she may serve as the class representative. Id. Plaintiffs here are members of the classes and they have the same interests as other class members holding SCH accountable for its tortious conduct even when it does not result in death or serious injury Plaintiffs affirm their commitment to the vigorous prosecution of this case through discovery and trial and have retained experienced counsel.
F. Predominance of Common Issues
As Section C above illustrates, there are numerous questions of law and fact common to each class member that predominate over any question affecting only individual class members
27 See supra; see also Plaintiffs’ Sixth Amended Complaint. 28 SCH cannot legitimately challenge the adequacy of the class representatives because each class representative earnestly desires that every member of the class recovers full compensation resulting from SCH’s tortious conduct and are not in competition with or adverse to one another. See, e.g., DeFunis v. Odegaard, 84 Wn.2d 617, 529 P.2d 438 (1974).
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION - 17 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
(e.g., individual damages), the answers to which will advance resolution of the litigation as to all Class Members. These common legal and factual issues include:
1. Defendant’s duty to use reasonable care to prevent exposure of immunocompromised child patients to Aspergillus on Defendant’s premises, and to not increase the risk of exposure;
2. Defendant’s failure to inspect and maintain its HVAC system;
3. Defendant’s failure to remediate Aspergillus contamination on its premises;
4. Defendant’s concealment from each Plaintiff and each Class Member (and the public at large) of Aspergillus contamination in the hospital;
5. Notice, warnings, instructions, and diagnostics for Notice Class Plaintiffs; and
6. Anti-fungal medications, side effects, diagnostic testing, and treatment delays of Prophylaxis Class Plaintiffs.
The only individual questions are the amount of damages. However, “That class members may eventually have to make an individual showing of damages does not preclude class certification.” Smith v. Behr Process Corp., 113 Wn. App. 306, 323 (citations omitted). The Behr Court held: Here, the putative class members' claims arose from a common nucleus of operative facts involving the formulation, manufacture, and sale of Behr's allegedly defective products. Thus, given this state's liberal interpretation of CR 23, the trial court did not abuse its considerable discretion by finding that the putative class had satisfied the CR 23(b)(3) predominance requirements and by certifying this class under that provision.
Id. Similarly the court in Sitton v. State Farm, 116 Wn. App. 245, 254, 63 P.3d 198 (Div. 1 2003) explains:
STRITMATTER KESSLER KOEHLER MOORE
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The predominance requirement is not a demand that common issues be dispositive, or even determinative; it is not a comparison of court time needed to adjudicate common issues versus individual issues; nor is it a balancing of the number of issues suitable for either common or individual treatment. Rather, [a] single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions.
Sitton v. State Farm, 116 Wn. App. 245, 254, 63 P.3d 198 (Div. 1 2003) (quotations omitted). Courts have a variety of methods for dealing with individual damages issues that do not affect the decision of whether or not to certify a class, such as subclasses and test cases. Id. at 255.
Here, individual damages issues have no impact on class certification because of the “common nucleus of operative facts” surrounding Defendant’s conduct and methods of dealing with its conduct, by notice or prophylaxis. And as illustrated above, the types of harms are readily identifiable.
G. Superiority
The CR 23(b)(3) requirement “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy” “focuses upon a comparison of available alternatives.” Sitton, 116 Wn. App. 245, 256.
Absent a class action, many Class Members would likely find the cost of litigating their individual claims prohibitively high and would therefore have no effective remedy at law. Some Class Members’ claims (in terms of damages) are relatively smaller than other claims (compared to the exorbitant cost of litigation). As a result, many class members who are entitled to money damages given Defendant’s egregious conduct will forego legal redress. Absent a certified 23(b)(3) class action, Class Members will not realize justice and Defendant will get a “pass” for its misconduct.
STRITMATTER KESSLER KOEHLER MOORE
3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
Class treatment of common questions of law and fact is superior to other available procedures, such as multiple individual actions or piecemeal litigation because class treatment will conserve the resources of the courts and the litigants and will promote consistency and efficiency of adjudication.
VII. CONCLUSION
This Court should grant Plaintiffs’ Motion for Class Certification pursuant to CR 23(b)(3), certify the Classes, appoint Plaintiffs as Class Representatives, and appoint their counsel as Class Counsel.
VIII. PROPOSED ORDER
A proposed order accompanies this motion.
DATED this 30th day of September, 2022.
I certify that this memorandum contains 2,747 words, in compliance with the Local Civil Rules.
STRITMATTER KESSLER KOEHLER MOORE
/s/ Karen K. Koehler Karen K. Koehler, WSBA #15325 Andrew Ackley, WSBA #41752 Ruby Aliment, WSBA# 51242 Co-Counsel for Plaintiffs and Class
LAYMAN LAW FIRM
/s/ John R. Layman
John R. Layman, WSBA #13823 Co-counsel for Plaintiffs and Class
STRITMATTER KESSLER KOEHLER MOORE
3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777
CERTIFICATE OF SERVICE
I certify that I served a copy of the foregoing document as follows:
Jake Winfrey
Todd Reichert
Fain Anderson VanDerhoef Rosendahl O’Halloran Spillane, PLLC 701 Fifth Avenue, Suite 4750 Seattle, WA 98104 (206)749-0094 jake@favros.com todd@favros.com aleena@favros.com danielle@favros.com
Stephen M. Rummage
Brad Fisher
Rachel Herd Davis Wright Tremaine LLP 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 (206)622-3150 steverummage@dwt.com bradfisher@dwt.com rachelherd@dwt.com barbaramcadams@dwt.com erickamitterndorfer@dwt.com crystalmoore@dwt.com ross.siler@dwt.com
DATED this 30th day of September, 2022.
U.S. Mail Fax Legal Messenger Electronic Delivery
/s/ Patti Sims Patti Sims Paralegal
U.S. Mail Fax Legal Messenger Electronic Delivery
STRITMATTER KESSLER KOEHLER MOORE
3600 15th Ave West, Suite 300 | Seattle, WA 98119 Tel: 206-448-1777