The Honorable Jim Rogers
Noted for Hearing: October 28, 2022 at 11 am
SUPERIOR COURT OF THE STATE OF WASHINGTON KING COUNTY
PATRICK WILLS, et al., Plaintiffs, v. SEATTLE CHILDREN’S HOSPITAL, a nonprofit Washington corporation, Defendant.
No. 19-2-31648-9 SEA SEATTLE CHILDREN’S HOSPITAL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
I. INTRODUCTION AND RELIEF REQUESTED
Plaintiffs filed this case more than two-and-a-half years ago. In January of this year, the Honorable Dean Lum denied Plaintiffs’ motion for class certification in a comprehensive opinion, finding that Plaintiffs failed to satisfy every prerequisite to class certification under Rule 23. Dkt. 413. Now, Plaintiffs return with a second motion, apparently intended to correct some of the problems Judge Lum identified. Ultimately, however, the motion fares no better. Plaintiffs ask the Court to certify two classes consisting of patients who have been “injured” by Seattle Children’s alleged negligence. As with the first failed motion, counsel fail to propose an identifiable class, since they suggest no way for the Court to identify which proposed class members have actually suffered injury caused by Seattle Children’s alleged conduct, absent individual fact-finding that’s inconsistent with the class device. For that reason,
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they cannot show numerosity, since they can’t identify how many proposed class members actually satisfy the definitional requirement of injury—an issue that requires individual trials incompatible with class certification. Further, they proffer class representatives who are not members of the classes they seek to represent, making the class representatives both atypical and inadequate. And finally, if these claims went to trial, common questions would not predominate, as CR 23(b)(3) requires; instead, trial would focus on individual testimony about each proposed class member’s personal circumstances, as required for Plaintiffs to prove their case.
The named Plaintiffs have failed to meet their burden of proving the requirements for class certification under CR 23. Based on the heavy weight of authority, in Washington and around the country, the Court should once again deny Plaintiffs’ class certification motion.
II. STATEMENT OF FACTS
A. Seattle Children’s Operating Rooms in 2018-2019.
In April and May of 2018, Seattle Children’s identified three Aspergillus surgical site infections (“SSI”)1 in patients who had undergone surgeries in one of the operating rooms at its Laurelhurst campus.2 Zerr Decl. ¶ 3. The cluster of infections was an anomaly that prompted an extensive investigation, with assistance from King County Public Health and the Centers for Disease Control. Id. The investigation suggested several possible causes of the infections. Id. Seattle Children’s remediated the issues identified, conducted extensive air testing, and believed it had solved any problems. Id.
Out of an abundance of caution, Seattle Children’s notified 136 patients that they possibly had been exposed to Aspergillus in a Seattle Children’s operating room. Morray Decl. ¶ 2. The notices explained that “low levels of an environmental mold called aspergillus … may have been present in [its] operating room” and that, although the “level [] found in the operating room is considered safe by many health care organizations,” in order “to be extra careful, we are
1 A surgical site infection is an infection that occurs after surgery, but in the part of the body where the surgery took place. See https://www.cdc.gov/hai/ssi/ssi.html
2 None of these 2018 surgical site infections is at issue in this litigation. Fisher Decl. ¶ 2.
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contacting the patients who had surgery in the affected operating rooms.” Id. Ex. A. The letter advised that, while the risk of infection was “very low,” patients should watch for a handful of symptoms. Id. Finally, the letter told patients that if they were “concerned about an infection,” they could come in for an appointment “at no cost.” Id.
From July 2018 through March 2019, there were no additional Aspergillus SSIs at Seattle Children’s. Zerr Decl ¶ 4. In the spring of 2019, however, Seattle Children’s learned of a new cluster of Aspergillus SSIs, and immediately began a second investigation, again with assistance from King County Public Health and the Centers for Disease Control. Id. ¶ 5. By May 24, 2019, Seattle Children’s had closed all of its operating rooms. Id. ¶ 6. During this investigation, Seattle Children’s attention turned to the two air handling systems serving its operating rooms. Id. ¶ 7. Although Seattle Children’s could not definitively say these air handlers had been the source of the problem, it made the decision to replace both. Id. Contrary to the narrative
Plaintiffs have advanced in virtually every filing, no evidence suggested systemic or ongoing issues with these (or any other) air handling systems. See Price Decl. ¶ 2; Zerr Decl. ¶ 2.
Nothing supports Plaintiffs’ blanket assertion that there was a “decades-long failure to maintain [Children’s] air handling system.” Pl. Mtn. at 3.3 In fact, between 2006 and 2018, Seattle Children’s was aware of only two isolated possible Aspergillus SSIs at its facilities—one in 2010 and one in 2014.4 Zerr Decl. ¶ 2. And the extensive records Seattle Children’s has produced and testimony from its witnesses establish diligence and attention to detail in
3 Although not relevant for this motion, as a point of reference, Seattle Children’s has more than 35 air handling units on its campus. Dkt. 154 (“Hansen Decl.”) ¶ 5. Some are less than a few years old, others have been in use for more than a decade. Id. ¶ 6. To date, Plaintiffs have not identified where they claim they were exposed to Aspergillus at Seattle Children’s, much less which air handling unit(s) was allegedly poorly maintained. Instead, Plaintiffs rely on rhetoric from a lawsuit two decades ago, Patnode. See Pl. Mtn. at 5. Plaintiffs attempt to rewrite history, suggesting that Patnode made clear there was “inadequate maintenance of SCH’s air-handling system,” citing a laundry list of “deficiencies” supported only by the allegations in their complaint. Id. Again, not so. In Patnode, the plaintiffs had numerous theories of liability, alleging the plaintiff’s injury could have been caused by many things: the implant in the patient, a third party contractor who had been performing construction at Seattle Children’s, the arrival and departure of helicopters at Seattle Children’s campus, the presence of Aspergillus on the scrubs of the medical team that performed the surgery, and so on. See, e.g., Fisher Decl. Ex. B (“Patnode Am. Compl.”). Plaintiffs have no support for their allegations of systemic and ongoing deficiencies.
4 The 2010 infection arose from an organ transplant; in transplant cases, the infection can originate in the transplanted organ itself, not as a result of the procedure. Zerr Decl. ¶ 2.
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maintaining its air handling units. See, e.g., Price Decl. Ex. A. Rather than years of neglect (as Plaintiffs argue), compelling evidence suggests the clusters of infections in the spring of 2018 and spring of 2019 correlate to the activation of a long dormant humidifier that had been locked out and inoperable since 2003, a potential cause identified by the Centers for Disease Control after its 2019 investigation. Zerr Decl. ¶ 7. After identifying and neutralizing that source, Seattle Children’s reopened the operating rooms in July of 2019, with the CDC’s approval. After learning of the new SSIs, in May 2019 Seattle Children’s sent notice of possible Aspergillus exposure to 3,000 patients. Morray Decl. ¶ 3. The substance of the notice varied based on the recipient’s underlying condition. Id. But generally, the notice informed the patients that, while the risk of infection was low, the patients should be on alert for signs of infection. See, e.g., id. Ex. B. It also provided the patients with contact information for individuals at Seattle Children’s who could answer questions or help schedule follow up appointments. Id. During this same time period, care teams at Seattle Children’s contacted patients who were considered higher risk for surgical site infections regarding the option to take antifungal prophylaxis treatment. Morray Decl. ¶ 5. In total, approximately 87 patients made the decision to take antifungal prophylaxis as the result of potential exposure at Seattle Children’s. Dkt. 502 (Sealed Interrogatory Responses). The majority of these patients took either Voriconazole or Posaconazole, both effective antifungals. Id. Although these drugs can cause side effects, most patients tolerate the medications well and are able to continue therapy without disruption.5 Zerr Decl. ¶ 8. Of the 87 patients who took antifungal prophylaxis, 51 reported no side effects. Dkt. 502. The remaining 36 reported possible side effects ranging widely in severity, from cracked lips to seizures—but neither Seattle Children’s nor anyone else has determined than the antifungal actually caused the reported symptom. Id. It is often difficult to determine whether a
5 Plaintiffs devote two full pages of their brief to a long list of side effects that the prophylactic medications may cause in some people. Pl. Br. at 9-10. But Plaintiffs offer nothing to suggest any members of the class experienced any of the listed side effects—much less any of the more serious ones—nor do they explain how they could prove which patients suffered what side effects without individual evidence. The long list of side effects simply raises more individual questions that preclude class certification.
specific drug caused a particular side effect as there are many different causes of side effects experienced by patients on multiple drugs with various underlying conditions. Zerr Decl. ¶ 8.
B. Procedural History.
After Seattle Children’s identified an additional infection in November 2019 and closed the operating rooms again, Seattle Children’s CEO Jeff Sperring held a press conference apologizing for the SSIs. Fisher Decl. Ex. A.6 Several months later, Plaintiffs filed their Complaint, alleging a proposed class of patients asserting claims arising from alleged exposure to Aspergillus at unidentified locations at Seattle Children’s over two decades. Dkt. 1. Plaintiffs’ claims had nothing in common, demonstrating the absurdity of seeking class treatment: Plaintiffs were treated in various different areas of the hospital over a 24-year period and alleged vastly different injuries. As a result, as Judge Lum found, “individual causation, liability, and damages issues for the [] named Plaintiffs” were “the dominant, central, or overriding issues.” Dkt. 413 at 5. After twice hearing argument on class certification, Judge Lum denied Plaintiffs’ request for class certification, holding that “Plaintiffs have not carried their burden on” any of the factors under CR 23(a) or 23(b) and ruling that “plaintiffs’ lawsuits are separate at this time while operating under one case schedule.” See Dkt. 413.
Rather than proceeding to trial, Plaintiffs amended their Complaint for a sixth time, adding two new purported classes: (1) Notice Class and (2) Prophylaxis Class. Dkt. 484 (“SAC”).
C.
Plaintiffs’ Proposed Notice and Prophylaxis Classes.
Plaintiffs have made clear that their proposed classes will include only patients who suffered actual injury caused by notice or prophylaxis—not injury caused by Aspergillus exposure or infection. Specifically, Plaintiffs define their classes as consisting only of members
6 None of the surgical site infections referenced by Dr. Sperring are at issue in this litigation. Fisher Decl ¶ 2. Plaintiffs attempt to conflate two separate categories of Aspergillus infections to suggest that Seattle Children’s has somehow mislead the public. See Pl. Mtn. at 3. Not so. Dr. Sperring’s statements were clearly limited to surgical site Aspergillus infections. Moreover, despite the presence of Aspergillus (and hospital-acquired Aspergillosis) at all hospitals in the Pacific Northwest (and across the country), Seattle Children’s is the only health care institution who has made public statements on the issue. If anything, Seattle Children’s has been the most transparent on the topic.
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who “suffered special and/or general damages as a result of” either (1) receiving “notice of potential Aspergillus exposure at Seattle Children’s” after December 2016 or (2) being “treated prophylactically for Aspergillus due to exposure” at Seattle Children’s after December 2016. SAC ¶¶ 5.1.1 – 5.1.2. Plaintiffs’ complaint identifies proposed Notice Class representatives bringing claims in their individual capacity and on behalf of minor patients Troy Roeder II and V.G. Id. ¶¶ 2.43, 2.46. In fact, however, one of the minor patients did not even receive either the 2018 or 2019 written notice sent by Seattle Children’s. Morray Decl. ¶ 7. To the extent they claim to have received notice, the dispute would need to be resolved on an individual basis.
Plaintiffs also identify proposed Prophylaxis Class representatives bringing claims in their individual capacity and on behalf of minor patients L.K., T.H., V.A., and C.F. SAC ¶¶ 2.30-2.33, 2.38, 2.39, 2.44, 2.45. According to Seattle Children’s records, two of the four minor patients do not fit within the proposed class because they did not take prophylactic antifungals as the result of potential exposure to Aspergillus at Seattle Children’s. Morray Decl. ¶¶ 8-9. One of the other named proposed Prophylaxis Class minor patients did take prophylaxis antifungals, but they did not report any side effects or other injury. Id. ¶ 10.
III. STATEMENT OF ISSUES
Whether the Court should deny class certification where (a) Plaintiffs cannot satisfy the four class action prerequisites set forth in CR 23(a), and (b) each member of the proposed class would have to litigate numerous individual issues to establish a right to recover, making a class action inappropriate under CR 23(b)(3).
IV. EVIDENCE RELIED UPON
Seattle Children’s relies on the Declarations of Brad Fisher, Caitlin Morray, Danielle Zerr, and Bruce Price, as well as the files and records of this case.
V. AUTHORITY
“Because class actions are a specialized proceeding available in limited circumstances, the trial court must conduct a ‘rigorous analysis’ of the CR 23 requirements to determine
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whether a class action is appropriate in a particular case.” Miller v. Farmer Bros. Co., 115 Wn. App. 815, 820 (2003). Rule 23 “imposes stringent requirements for certification that in practice excludes most claims.” Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 234 (2013).7 A plaintiff seeking class certification must meet all four prerequisites under CR 23(a)—numerosity, commonality, typicality, and adequacy of representation—plus satisfy at least one subsection of CR 23(b). Admasu v. Port of Seattle, 185 Wn. App. 23, 30-31 (2014). In this case, Plaintiffs seek certification of their two proposed classes under CR 23(b)(3). Accordingly, Seattle Children’s will confine its CR 23(b) analysis to that subsection.
A. Plaintiffs Cannot Satisfy CR 23(a)’s Requirements.
Plaintiffs Cannot Establish Numerosity.
Under CR 23(a)(1), Plaintiffs must show the proposed “class is so numerous that joinder of all members is impracticable.” Although Plaintiffs need not prove “it would be impossible to join all of the members of the proposed class, they must show that it would be extremely difficult or inconvenient.” Miller, 115 Wn. App. at 821 (internal quotation marks omitted). Plaintiffs cannot satisfy this prerequisite because no one knows who—or how many individuals—are part of each class. As Plaintiffs define the Notice Class, membership depends on an individual factual showing that a proposed class member (1) received some form of notice of potential Aspergillus exposure, (2) at Seattle Children’s after December 2, 2016, and (3) suffered “special and/or general damages as a result” of the “notice and/or potential exposure.” SAC ¶ 5.1.1. Likewise, Plaintiffs’ Prophylaxis Class requires an individual factual showing that the proposed class member (1) was treated prophylactically for Aspergillus, (2) due to exposure at Seattle Children’s after December 2, 2016, and (3) suffered “special and/or general damages as a result.” Id. ¶ 5.1.2. Both proposed classes suffer from the same fatal defect: without individual litigation over injury and causation, Plaintiffs cannot prove which prospective class
7 “[C]ases interpreting the analogous federal [Rule 23] are highly persuasive.” Schnall v. AT&T Wireless Servs. Inc., 171 Wn.2d 260, 271 (2011) (internal quotation marks omitted).
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members actually fall within the class definition—and so cannot say how many. For those reasons, they cannot show class members are too numerous to be joined.
Plaintiffs’ inability to prove numerosity flows directly from inherent flaws in their class definition: it would take individual fact-finding to determine which patients had special and/or general damages caused by notice of possible exposure or prophylaxis treatment at Seattle Children’s and fall within the class definition. Accomplishing this fact-finding will be a difficult (if not impossible) task—and not one that can be accomplished on a class basis. Although Seattle Children’s can identify the individuals who received letter notice in 2018 and 2019, it has no way of tracking individuals who may have participated in a conversation with a health care provider about Aspergillus or read news articles about Aspergillus at Seattle Children’s, either of which could conceivably constitute “notice” under Plaintiffs’ broad definition.
More important, even if Seattle Children’s could identify the complete universe of patients who received “notice,” the Court would need to engage in extensive individual fact finding to determine which individuals suffered “general or special damages” as a result.8 Seattle Children’s tracks complaints and grievances it receives from patient’s families. According to its internal records, no families contacted Seattle Children’s with a complaint or grievance in response either the 2018 or 2019 notice letters. Morray Decl. ¶ 4. As Plaintiffs have acknowledged, families may well have been appreciative of Seattle Children’s transparency. See Pl. Mtn. at 8 (Seattle Children’s internal documents quoted by Plaintiffs make clear “families will have a range of emotions,” including “appreciation.”); see also Diaz, 2017 WL 960792, at *5 (“While receipt of such a notice may have caused some patients to be concerned about their potential exposure and take advantage of the free testing, other patients may have felt grateful for the notice or felt no concern whatsoever.”). To determine which
8 Although this motion does not involve the merits, Plaintiffs’ notice claim also has no merit. Seattle Children’s cannot be held liable for making an accurate, voluntary disclosure to its patients. “Imposing liability on a health care provider for providing ... voluntary disclosure, as opposed to imposing liability for any underlying medical negligence, is counterproductive to the salutary policy goals of promoting patient safety and furthering patient autonomy in making health care decisions.” Diaz v. Griffin Health Servs. Corp., 2017 WL 960792, at *5 (Conn. Super. Ct. Jan. 31, 2017) (internal quotation marks omitted).
families allegedly suffered some sort of compensable injury as a result of notice (as distinct from those who experienced appreciation or gratitude) would be labor-intensive inquiry that could be accomplished (if at all) only on an individual (not class) basis.9
The same issue exists for the Prophylaxis Class. Medical records of the 87 patients who opted for prophylaxis treatment show that only 36 reported possible side effects, and many of those side effects could equally be attributable to other medications prescribed to the patient— or even to an unknown cause. Dkt. 502. Further, contrary to Dr. Desai’s assertion, many of these 87 patients took oral prophylaxis treatment at home, belying any notion that prophylaxis necessarily involved some physical invasion. Morray Decl. ¶ 6.
In short, Plaintiffs’ class definitions are “inadequate,” as they “require[] extensive factfinding just to identify members.” Cashatt v. Ford Motor Co., 2020 WL 1987077, at *4-5 (W.D. Wash. Apr. 27, 2020) (“common sense does not suggest, that every single” proposed member of the class suffered injury); Dkt. 413 at 3 (denying Plaintiffs’ first motion for class certification holding Plaintiffs failed to “explain[] how the Court could find numerosity without engaging in individual fact-finding”). If Plaintiffs tried to cure this problem by modifying the definition to eliminate the need to prove injury and causation, they would be left with an improper class, as it would “include[] individuals who sustained no injury and therefore lack standing to sue.” Cashatt, 2020 WL 1987077, at *4.
Plaintiffs Cannot Establish Typicality or Adequacy.
CR 23(a)(3) and (4) require that proposed class representatives have claims “typical” of class members’ claims, and that they can “fairly and adequately” represent the class. “The premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class. Where the premise does not hold true, class treatment is
9 Plaintiffs support their numerosity argument with the conclusory assertion that “[i]t … stands to reason that medically-vulnerable child patients and their families would suffer emotional distress upon” receiving notice from Seattle Children’s. Pl. Mtn. at 13. No authority supports the proposition that a class can be certified based on such an unsupported assumption—especially in the face of evidence that patients could be expected to express “appreciation” for receiving notice. Plaintiffs must do more than assume common answers to the core questions in a case; they must prove that the litigation is likely to drive common answers for the class as a whole. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). They have not done so here.
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inappropriate.” O’Connor v. Boeing N. Am., Inc., 197 F.R.D. 404, 412 (C.D. Cal. 2000) (citation and internal quotation marks omitted). Typicality is lacking “where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation.” Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation marks omitted). A proposed representative cannot satisfy adequacy if she will be preoccupied with issues essential to individual recovery that do not advance class interests. Gary Plastic Packaging Corp. v. Merrill Lynch, Inc., 903 F.2d 176, 180 (2d Cir. 1990) (abrogated on other grounds).
Plaintiffs’ claims are not even typical of one another, much less of the proposed class. For example, Seattle Children’s records show that one of the proposed Prophylaxis Class representatives10 never even took Aspergillus antifungal prophylaxis. Morray Decl. ¶ 9. Another of the class representatives proposed for the Prophylaxis Class received prophylaxis treatment beginning in January 2020 as the result of concerns the patient had developed fungal pneumonia as an outpatient, not as a result of potential exposure to Aspergillus at Seattle Children’s. Id. ¶ 8. And yet another of the other prophylaxis class representatives did not report any negative side effects or alleged injury as a result of their prophylaxis treatment. Id. ¶ 10. In other words, these proposed class representatives do not even appear to fit within Plaintiffs’ own class definition, much less share characteristics with those patients (if any) who actually suffered injury from prophylactic treatment.
The same issues exist for the proposed Notice Class representatives. One of the two proposed representatives did not receive either the 2018 or 2019 notice Seattle Children’s sent regarding potential exposure. Id. ¶ 7. This Plaintiff apparently does not claim to have received the notice alleged in the Complaint; instead, Plaintiff now claims the notice took the form of an individualized “bedside conversation”—of which there is no record, whose contents are unknown, and which no other member of the proposed class is alleged to have received. Fisher
10 Plaintiffs’ proposed class representatives assert claims on behalf of minor patients who are unable to serve as class representatives due to their status as minors. For simplicity, Seattle Children’s refers to these minor patients (not those individuals asserting claims on their behalf) as proposed class representatives.
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Decl. Ex. C. Moreover, neither of the Notice Class Plaintiffs has asserted any legally cognizable damages or injury. To the contrary, one of the proposed Notice Class representatives conceded they were “not claiming injury” as a result of the notice; instead, they were “seeking accountability.” Fisher Decl. Ex. D at 34:19-22. But the Notice Class for which Plaintiffs seek certification is claiming injury, not just seeking accountability: Plaintiffs have made “claiming injury” (and proving it) the sine qua non of class membership. And C.G. disclaims any intent of satisfying that condition.
These Plaintiffs thus face unique causation and liability defenses. They can address those defenses only through individual proof, which will shed no light on any class members’ claims. And each proposed class representative would still have to prove Seattle Children’s fault as to that Plaintiff, that they suffered injury as the result of receiving notice or prophylaxis treatment, and that Children’s negligence caused that injury. These considerations defeat typicality, as courts commonly find in notice and exposure cases. For example, in Kinney v. Siouxland Urology Associates, 2011 WL 796237 (D.S.D. Feb. 28, 2011), the plaintiffs alleged claims for “negligence; medical malpractice; … negligent infliction of emotional distress; … fraudulent concealment; [and] failure to obtain informed consent” stemming from notice of alleged exposure to improperly disinfected medical equipment. In denying class certification, the court explained that these claims “will likely require individualized scrutiny” and, as a result, require a “case-by-case determination as to whether any patient is entitled to relief. Thus, plaintiffs have failed to establish the typicality requirement for class certification.” Id. at *4 (citation and internal quotation marks omitted). So too here. Plaintiffs allege claims for medical negligence, informed consent, fraud, “negligent misrepresentation” and negligent infliction of emotional distress. SAC ¶¶ 7.1-7.7, 10.1-10.4, 11.1-11.14. To resolve any of these claims, the Court will need to engage in a plaintiff-byplaintiff analysis and determine whether a party is entitled to relief. Courts have commonly (and properly) found typicality lacking in these circumstances. See, e.g., see also In re Fosamax Prods. Liab. Litig.¸ 248 F.R.D. 389, 400 & n.11 (S.D.N.Y. 2008) (no typicality; “inherently
For the same reasons, Plaintiffs fail adequacy. When causation requires an individualized inquiry (as here), “there is a danger that absent class members will suffer if their representative is preoccupied with defenses unique to it,” defeating adequacy. Patton, 2010 WL 9432381, at *5 (quoting Gary Plastic, 903 F.2d at 180).
B. Plaintiffs Cannot Satisfy CR 23(b)(3). Plaintiffs’ failure to satisfy all four prerequisites of CR 23(a) defeats their motion, without more. But Plaintiffs also cannot satisfy CR 23(b)(3), which requires Plaintiffs to show “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” (Emphasis added). Plaintiffs fail both requirements.
Plaintiffs Cannot Show Common Issues Predominate. The “predominance requirement is more exacting and stringent than [CR 23(a)’s] commonality requirement.”11 Schwendeman v. USAA Cas. Ins. Co., 116 Wn. App. 9, 20 (2003); Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013) (same). “Simply stating the existence of commonalities does not prove predominance”; rather, common issues must predominate over individual issues to permit class certification under CR 23(b)(3). Schnall v. AT&T Wireless Servs. Inc., 171 Wn.2d 260, 270 (2011). “[T]he relevant inquiry is whether the issue shared by
11 Because predominance is more stringent than commonality, and Plaintiffs must satisfy predominance to obtain CR 23(b)(3) class certification, Seattle Children’s has elected not to address commonality in discussing CR 23(a).
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the class members is the dominant, central, or overriding issue.” Miller, 115 Wn. App. at 825; Admasu, 185 Wn. App. at 31 (quoting Miller).
Division I has recognized that a common generic causation issue cannot satisfy predominance. Admasu, 185 Wn. App. at 27-28, 31-33 (although defendant’s “general actions may be common to all,” no predominance because “property-specific” evidence necessary to establish liability). Courts across the country apply similar principles in cases involving allegations arising from widespread exposures to allegedly hazardous substances, finding no predominance based on the need for individual proof on causation, liability, and damages.
The relevant question … is not whether [the substance] has the capacity to cause harm, the generic causation issue, but whether it did cause harm and to whom. That determination is highly individualistic, and depends upon the characteristics of individual plaintiffs … and the nature of their exposure[.]
In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 145, 165 (2d Cir. 1987). Many cases find the need for “individual inquiries into injury and causation” defeats predominance in prophylaxis/notice cases. Kinney, 2011 WL 796237, at *1, 4 (finding no predominance for proposed class of patients who received notice they were exposed to “previously used and improperly disinfected medical equipment”); Houston Cnty. Health Care Auth. v. Williams, 961 So. 2d 795, 810-11 (Ala. 2006) (finding no predominance for proposed class of patients who received notice of exposure to mold in surgical environment); Diaz, 2017 WL 960792, at *5 (finding no predominance for proposed class of patients who received notice letter regarding potential exposure to disease through a used insulin pen); Doe v. Univ. Healthcare Sys., L.L.C., 145 So. 3d 557, 573 (La. Ct. App. 2014) (finding no predominance for proposed class of patients who received notice of potential exposure to disease due to inadequate sterilization of medical equipment).
Plaintiffs’ proposed classes have the same defects. For both the Notice and Prophylaxis Classes, Plaintiffs will have to prove each class member individually “suffered special and/or general damages” caused by either a notice Seattle Children’s sent or prophylactic treatment prescribed as a result of exposure to Aspergillus at Seattle Children’s, and then prove Children’s
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And potential members of the Prophylaxis Class were prescribed different types of medication, have different underlying conditions, were on the medications for different durations, and had substantially different experiences. Morray Decl. ¶ 6. Their claims will “vary from Plaintiff to Plaintiff because … any harm suffered by Plaintiffs may be due to a number of factors, including, dosage, use and manner of administration of the drug, individual and family medical [] histories, level of personal awareness regarding the purported risks and medical reasons for use,” the patient’s underlying condition, the type of prophylaxis prescribed, etc. Foister v. Purdue Pharma L.P., 2002 WL 1008608, at *8 (E.D. Ky. Feb. 26, 2002) (denying class certification, holding no commonality). There could be many different causes of side effects experienced by patients on multiple drugs with various underlying conditions, Zerr Decl. ¶ 8, so each patient will face enormous challenges in presenting individual proof to eliminate
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competing sources of injury. As a result, and as in most similar cases, “individual questions … overwhelm questions common to the class,” defeating predominance. See Amgen Inc. v. Conn. Ret. Plans and Tr. Funds, 568 U.S. 455, 468 (2013).
Further, predominance requires an ability to determine damages on a class-wide basis. Admasu, 185 Wn. App. at 32-33 (no predominance when plaintiffs could not provide a “useful” methodology for determining class-wide diminution of property values caused by runway operations). Plaintiffs have made no effort to suggest how they could possibly present a classwide method of proving the fact, much less the amount, of class damages in these highly individual personal injury cases. As courts have recognized, some patients who received notice of potential exposure may have been grateful, while others may have been concerned or angry. Houston Cnty. Health Care Auth., 961 So. 2d at 810-11; Diaz, 2017 WL 960792, at *5. Plaintiffs could not possibly prove class-wide damages, given the personalized nature of the alleged harm. Likewise, some patients had no side effects from antifungal prophylaxis, while others may have had noticeable side effects. Dkt. 502. When it comes to damages (in addition to liability), these groups have nothing in common—and Plaintiffs do not argue to the contrary. Plaintiffs’ inability to provide a class-wide methodology for computing damages defeats predominance. Admasu, 185 Wn. App. at 31-33
Plaintiffs Cannot Establish Superiority. Under CR 23(b)(3), Plaintiffs must also show “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” “The superiority requirement focuses on a comparison of available alternatives and a determination that a class action is superior to, not just as good as, other available methods.” Chavez v. Our Lady of Lourdes Hosp., 190 Wn.2d 507, 520 (2018). “[M]any courts that find common predominance lacking, also hold that the prevalence of individual issues renders the case unmanageable for superiority purposes.” Admasu, 185 Wn. App. at 34 n.23 (alteration in original) (internal quotation marks omitted). The same concerns in proving individual causation, liability, and damages that defeat predominance also cause the class to fail superiority. Smith-Williams v. United States, 2019 WL
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1866316, at *5 (W.D. Wis. Apr. 25, 2019) (individual inquiries into causation and damages for proposed patient class “would create serious manageability problems”; no superiority). “If each class member has to litigate numerous and substantial separate issues to establish his or her right to recover individually, a class action is not ‘superior.’” Zinser v. Accufix Rsch. Inst., Inc., 253 F.3d 1180, 1192 (9th Cir. 2001). Further, “when the complexities of class action treatment outweigh the benefits of considering common issues in one trial, class action treatment is not the ‘superior’ method of adjudication.” Id. Here, each member of the Notice Class or the Prophylaxis Class will need to litigate “numerous and substantial issues” to establish a right to recover, including individual proof as to injury and damages. A class action will not resolve those issues, and it is therefore not a superior method of adjudicating the claims of the members of these two proposed classes.
VI. CONCLUSION
For these reasons, Seattle Children’s asks the Court to deny class certification. Plaintiffs have not satisfied the numerosity, typicality, and adequacy requirements of CR 23(a), and they likewise fall woefully short on the predominance and superiority requirements of CR 23(b)(3). / / / / / /
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Seattle Children’s has submitted a proposed order addressing each of the CR 23 factors, as required by settled Washington law.
DATED this 17th day of October, 2022.
Davis Wright Tremaine LLP Attorneys for Seattle Children’s Hospital
By s/ Brad Fisher
Stephen M. Rummage, WSBA #11168 Brad Fisher, WSBA #19895 Rachel Herd, WSBA #50339 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 Email: stephenrummage@dwt.com Email: bradfisher@dwt.com Email: rachelherd@dwt.com
The undersigned counsel certifies that this memorandum contains 5747 words, in compliance with the Local Civil Rules.
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CERTIFICATE OF SERVICE
I hereby certify that I caused the document to which this certificate is attached to be delivered to the following via court e-service and email:
STRITMATTER KESSLER KOEHLER MOORE
Karen K. Koehler: karenk@stritmatter.com
Andrew Ackley: andrew@stritmatter.com
Ruby Aliment: ruby@stritmatter.com
Cheryl Baldwin: cherylb@stritmatter.com
Debra M. Watt: debbie@stritmatter.com
Co-Counsel for Plaintiffs and Class
LAYMAN LAW FIRM, PLLP
John R. Layman: jrlayman@laymanlawfirm.com
Jennifer Schmitz: jschmitz@laymanlawfirm.com
Taylor Burkett: tburkett@laymanlawfirm.com
Wendy Ahonen: wahonen@laymanlawfirm.com
Co-Counsel for Plaintiffs and Class
Jack Winfrey: jake@favros.com
Todd Reichert: todd@favros.com
Caitlyn Spencer: caitlyn@favros.com
Aleena Hodges: aleena@favros.com
Danielle Noune: danielle@favros.com
Co-counsel for Defendant
Declared under penalty of perjury under the laws of the state of Washington this 17th day of October, 2022.
s/ Brad Fisher
Brad Fisher, WSBA #19895
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