Roy Hobbs returned to baseball after 16 years; Grover Cleveland returned to the White House after a four year hiatus, and Gen. MacArthur returned to the Philippines in 1944.  Perhaps with less drama and certainly less fanfare, your humble blogger returns with today’s post on MassTortDefense.

A California federal judge recently denied the motion by customers of a San Francisco fertility clinic seeking class certification of their claims alleging that a defective storage tank damaged their embryos.  The case, In Re Pacific Fertility Center Litigation, No. 3:18-cv-01586, 2020 WL 3432689 (N.D. Cal. June 23, 2020), is interesting for the court’s treatment of superiority and damages issues in the class context.

Pacific Fertility provides fertility services including egg and embryo cryopreservation. Cryopreservation involves preservation of tissue using cooling techniques. In 2018, there was an apparent incident where one of the storage tanks lost coolant for a period of time. At the time of the incident, the tank contained eggs and embryos from 600+Pacific Fertility customers. All these eggs and embryos were exposed to the temperature increase. Plaintiffs were notified, and eventually sued.

We will skip the procedural history up to the point where Plaintiffs sought certification of a class of: All individuals, and their reproductive partners, whose eggs or embryos were in Tank 4 at Pacific Fertility Center in San Francisco, California on the date of the incident.

The primary issue with Plaintiffs’ motion, according to the court, was superiority, and the related question “whether the adjudication of the certified issues would significantly advance the resolution of the underlying case, thereby achieving judicial economy and efficiency.” The purpose of the superiority requirement is to assure that the class action is the most efficient and effective means of resolving the controversy. The court was not persuaded that certifying a class would result in judicial economy and efficiency. First, much of the evidence presented in a general causation trial (plaintiffs had proposed a (c)(4) focus on this allegedly common issue) would have to be presented again in the later individual trials on the specific causation questions. There was evidence of  earlier incidents and other circumstances that could have harmed the reproductive material, so the individual trial juries would have to hear testimony as to how the tank worked, how the material was stored, what happens if and when the temperature rises, and the like—duplicating the evidence presented to the first jury.

Second, much of the evidence presented in the proposed general causation trial would have to be presented again in the individual trials on the punitive damages question. The defendant had the right to present the evidence (again) in connection with the entitlement and amount of punitive damages; indeed,  the court observed, plaintiffs themselves no doubt would want the individual trial juries to hear evidence as to such conduct in determining punitive damages.  A defendant doesn’t have to agree to a truncated presentation just for “efficiency” sake — especially given the potential amount of money at stake. Thus, there would be little efficiency gained in certifying the general causation question.

The lack of a significant efficiency gain from the proposed issue certification in this case was coupled with a serious question as to whether a general causation class action trial was superior in other respects to individual trials on all issues. Given the potential amount of damages at stake, as well as the personal and private nature of the claims, each absent class member had a strong interest in individually prosecuting an action, should the member so choose.  More than 70 of the proposed class members had already filed their own actions in state court and at least 125 initiated arbitration proceedings against Pacific Fertility. See Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1191 (9th Cir. 2001) (“if the court finds that several other actions already are pending and that a clear threat of multiplicity and a risk of inconsistent adjudications actually exist, a class action may not be appropriate”), opinion amended on denial of reh’g, 273 F.3d 1266 (9th Cir. 2001).

Finally, the court noted that given the privacy implications of the claims, many absent class members would prefer to wait until the first trial to decide whether to subject themselves to the invasion of their privacy that coming forward would require. And that same result can be obtained even if the first trial is an individual bellwether trial rather than a trial of certified issues.

It is gratifying to see a court not succumb to the unstated yet real impetus for the (c)(4) trial of one allegedly common issue — that defendants, if they lose that issue ,will be pressured to settle, so we will never have to confront the individual trials.  That is not the way the rule is supposed to work, and is patently unfair to class action defendants.