                                                                   Aug 11 2015, 8:06 am




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Jill M. Felkins                                             Robert A. Garelick
Segal McCambridge Singer & Mahoney                          Steven M. Crell
Chicago, Illinois                                           John B. Bishop
                                                            Cohen Garelick & Glazier
                                                            Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

LHO Indianapolis One Lessee,                               August 11, 2015
LLC,                                                       Court of Appeals Case No.
                                                           49A02-1411-CT-811
Appellant-Defendant,
                                                           Appeal from the Marion Superior
        v.                                                 Court.
                                                           The Honorable Theodore Sosin,
                                                           Judge.
Esther Bowman, Individually and
on Behalf of Other Similarly                               Cause No. 49D02-1310-CT-39975
Situated Individuals,
Appellee-Plaintiff




Riley, Judge.




Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015               Page 1 of 26
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, LHO Indianapolis One Lessee, LLC d/b/a Indianapolis

      Marriott Downtown (Marriott), appeals the trial court’s certification of a class

      defined by Appellee-Plaintiff, Ester Bowman (Bowman).


[2]   We reverse and remand.


                                                     ISSUES

[3]   Marriott raises three issues on appeal, which we consolidate and restate as the

      following two issues:


      (1) Whether the trial court erred in entering judgment on the merits in favor of

      Bowman; and


      (2) Whether the trial court abused its discretion in granting class certification

      pursuant to Indiana Trial Rule 23.


                            FACTS AND PROCEDURAL HISTORY

[4]   Alpha Kappa Alpha Sorority, Inc. (AKA) is a District of Columbia not-for-

      profit corporation consisting of various undergraduate and graduate chapters

      throughout the United States, whose principal business is managing all the

      regional chapters of AKA. The Central Region of AKA is comprised of the

      undergraduate and graduate chapters within Illinois, Indiana, Kentucky,

      Wisconsin, Minnesota, North Dakota, South Dakota, and the southeastern

      portion of Missouri. Each year, the AKA holds an annual conference for all


      Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 2 of 26
      chapter members within a specific region. In April 2013, the 79th Annual AKA

      Central Regional Conference was held in Indiana at the Marriott in downtown

      Indianapolis. Approximately 1,900 members of the Central Region attended

      the conference.


[5]   On Saturday, April 7, 2013, the Marriott catered a Luncheon which was

      attended by approximately 800 sorority members. The Luncheon included a

      choice of breaded, pan-seared chicken served with angel hair pasta and a

      mandarin orange cream sauce or a vegetarian option. During the meal, about

      12 chicken dishes were returned to the kitchen after guests complained that the

      chicken appeared to be “pink.” (Appellant’s App. p. 181). At the conclusion of

      the Luncheon, the 75 leftover chicken meals were consumed by Marriott staff.

      Due to the number of complaints, Marriott’s Executive Chef performed a visual

      inspection of the chicken and concluded that the chicken “was slightly pink

      from the marinade and the orange sauce.” (Appellant’s App. p. 182). That

      same evening, the Central Region organized a Gala event at the Marriott, at

      which a chicken meal was also served.


[6]   Bowman, an attendee at the conference, opted for and consumed the chicken

      meal at the Luncheon. She attended the Gala later that evening. During the

      early morning hours of Sunday, April 8, 2013, Bowman became violently ill,

      experiencing bouts of severe diarrhea and vomiting for which she was

      ultimately hospitalized. No samples were collected of the diarrhea or vomit to

      test for the presence of food-borne pathogens, bacteria, or other contaminants.

      Sorority Liaison, Gisele Casanova, compiled a list of 59 attendees who became

      Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 3 of 26
      sick that weekend and their corresponding symptoms. This list includes the

      member’s name, chapter, symptoms, and address, as well as the place where

      the attendee consumed food. The list omits the type of food eaten or the time

      of the onset of symptoms. Moreover, the symptoms identified range from

      diarrhea and vomiting to “cold like illness” and the generalized “sick.”

      (Appellant’s Conf. App. pp. 203-04). Of all those attendees, there is no single,

      consistent place of dining: some members ate at a separate undergraduate

      luncheon, some ate at local restaurants, some ate at the Gala, and some ate at

      multiple places. Of the 59 people reporting illness, only 24 ate at the Luncheon.

      Predominately, most members who ate at the Luncheon and Gala and reported

      food poisoning like symptoms reside in Indiana.


[7]   On October 31, 2013, Bowman filed a Class Action Complaint alleging that she

      and “61 others suffered personal injury and sustained economic loss as a result

      of consuming tainted food at the Downtown Marriott.” (Appellant’s App. p.

      18). On January 9, 2014, she filed her motion to certify the class. On January

      27, 2014, Marriott filed its objection to class certification. Bowman

      subsequently amended her motion. Following the necessary discovery, the trial

      court conducted an evidentiary class certification hearing on October 7, 2014.

      Thereafter, on October 28, 2014, the trial court concluded that Bowman

      satisfied the requirements of Indiana Trial Rule 23(A) and 23(B)(3) and entered

      its findings of fact and conclusions of law and judgment, granting Bowman

      class certification.


[8]   Marriott now appeals. Additional facts will be provided as necessary.

      Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 4 of 26
                                    DISCUSSION AND DECISION

                                            I. Judgment on the Merits


[9]    Prior to turning to the class action certification, Marriott presents this court

       with a procedural question. Specifically, Marriott contends that the trial court

       erroneously rendered a final adjudication on the merits in favor of Bowman. In

       its judgment, the trial court

               ORDERED, ADJUDGED AND DECREED [] that judgment is
               rendered in favor of [Bowman], individually and on behalf of other
               similarly situated individuals and [Bowman’s] Amended Motion to
               Certify Class Action should be and is hereby GRANTED and
               [Marriott’s] Objection to [Bowman’s] Motion to Certify Class Action
               should be and is hereby DENIED.
       (Appellant’s App. p. 16). Focusing on the trial court’s entry and the trial court’s

       use of “and,” Marriott identifies the existence of three separate rulings: “1)

       judgment is rendered in favor of Bowman and 2) Bowman’s motion to certify

       the class is granted and 3) Marriott’s objection is denied.” (Appellant’s Br. pp.

       4-5).


[10]   “Class certification is essentially a procedural order and carries no implication

       about the merits of the case.” NIPSCO v. Bolka, 693 N.E.2d 613, 617 (Ind. Ct.

       App. 1998), trans. denied. Thus, “in making a determination regarding class

       certification, a trial court may not conduct a preliminary inquiry into the merits

       of the suit.” Rene ex rel. Rene v. Reed, 726 N.E.2d 808, 816 (Ind. Ct. App. 2000).

       As a “certification hearing is not intended to be a trial on the merits,” “Trial

       Rule 23 does not require a potential class representative to show a likelihood of


       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 5 of 26
       success on the merits in order to have his claim certified as a class action.”

       Bolka, 693 N.E.2d at 617. Instead, assuming the merits of an action, a trial

       court must determine whether the plaintiff has satisfied the requirements for

       class certification under Trial Rule 23. Eggleston v. Chicago Journeymen Plumbers,

       657 F.2d 890, 895 (7th Cir. 1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72

       L.Ed.2d 134 (1982).


[11]   Although the trial court issued a “judgment,” considering the trial court’s entry

       in totality, we cannot agree with Marriott that this pronouncement necessarily

       correlates with a ruling on the merits of the cause. Statutorily, “[j]udgment”

       means “all final orders, decrees, and determinations in an action and all orders

       upon which executions may issue.” I.C. § 1-1-4-5. Contextually, it is clear that

       the trial court merely evaluated Bowman’s compliance with the requirements of

       T.R. 23 to reach its conclusion that class certification was warranted. In this

       light, the trial court’s “judgment” should not be considered a decision on the

       merits of Bowman’s action but rather an intermediate adjudication in this cause

       upon which further action can be taken.


                                               II. Class Certification


                                              A. Standard of Review


[12]   “The principal purpose of the class action certification is ‘promotion of

       efficiency and economy of litigation.’” Gomez v. St. Vincent Health, Inc., 622

       F.Supp.2d 710, 717 (S.D. Ind. 2008). The plaintiff has the burden of

       establishing that the class certification requirements of Trial Rule 23 have been

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 6 of 26
       met. Bolka, 693 N.E.2d at 615. Failure to meet any one of the requirements

       results in the denial of class status. Rene, 726 N.E.2d at 816. Whether these

       prerequisites have been met is a factual determination to be made by the trial

       court. Ind. Bus. Coll. v. Hollowell, 818 N.E.2d 943, 949 (Ind. Ct. App. 2004).


[13]   The trial court has broad discretion in determining whether an action is

       maintainable as a class action, and thus we review its class certification for an

       abuse of discretion. Associated Med. Networks, Ltd. v. Lewis, 824 N.E.2d 679, 682

       (Ind. 2005). An abuse of discretion occurs when the trial court’s decision rests

       upon a clearly erroneous finding of fact, an errant conclusion of law, or an

       improper application of law and fact. Rene, 726 N.E.2d at 817. The trial

       court’s certification determination will be affirmed if supported by substantial

       evidence. Id. We neither reweigh the evidence nor judge the credibility of

       witnesses and affirm if the evidence most favorable to the judgment and all

       reasonable inferences drawn therefrom support the trial court’s decisions.

       Hollowell, 818 N.E.2d at 949. Because Indiana Trial Rule 23 is based on Rule

       23 of the Federal Rules of Civil Procedure, it is appropriate to consider federal

       court interpretations when applying the Indiana Rule. Chicago Title Ins. Co. v.

       Gresh, 888 N.E.2d 779, 782 (Ind. Ct. App. 2008).


                                            B. Indiana Trial Rule 23


[14]   Indiana Trial Rule 23 governs class action certifications. A party requesting

       class certification must prove that the proposed class meets all of the

       requirements of Ind. T.R. 23(A) and at least one of the requirements of T.R.


       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 7 of 26
       23(B). Wal-Mart Stores, Inc. v. Bailey, 808 N.E.2d 1198, 1201 (Ind. Ct. App.

       2004), reh’g denied, trans. denied. In addition to the express requirements for

       class certification, there is an implicit “definiteness” requirement. Id. A

       properly defined class is necessary at the onset because a judgment in a class

       action has a res judicata effect on absent class members. Id.


                                               1. Class Definition


[15]   Reviewing the boundaries of the class, we note that “the class definition must

       be specific enough for the court to determine whether or not an individual is a

       member.” Id. In her Complaint, Bowman defined the proposed class as:

               Individuals who attended a [L]uncheon on April 6, 2013, at the
               Downtown Marriott and who all suffered gastrointestinal illnesses and
               other injuries arising from the food they consumed at the [L]uncheon.
       (Appellant’s App. p. 19). In its Judgment granting the certification, the trial

       court omitted to include a specific definition. Despite this omission and

       unrequested by the parties, the trial court sua sponte appeared to enlarge the

       proposed group of class members in its conclusions. Specifically, focusing on

       both the Luncheon and the Gala, the trial court concluded that “all class

       members consumed the meal which was served at that Luncheon, Gala, or

       both.” (Appellant’s App. p. 15). As the trial court “can redefine a class in

       order to sustain the lawsuit,” we will evaluate the trial court’s enlarged class

       definition in light of the certification requirements of T.R. 23. Id. at 1202.


                                         2. Indiana Trial Rule 23(A)



       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 8 of 26
[16]   Indiana Trial Rule 23(A) provides that a plaintiff may sue as a representative on

       behalf of a class if the following four requirements are met:

               (1) The class is so numerous that joinder of all members is
                   impracticable;
               (2) There are questions of law or fact common to the class;
               (3) The claims or defenses of the representative parties are typical of
                   the claims or defenses of the class; and
               (4) The representative parties will fairly and adequately protect the
                   interests of the class.
[17]   Marriott places all four requirements squarely at issue here. 1


                                                    i. Numerosity


[18]   With respect to the numerosity prerequisite of T.R. 23(A)(1), Marriott contends

       that applying a strict class certification as defined in the Complaint yields a

       class membership of a mere 24 members who became ill following participation

       at the Luncheon, rather than the 59 members resulting from the trial court’s

       enlarged class membership. As a result, Marriott maintains that the trial court

       abused its discretion by concluding that numerosity was satisfied upon finding

       nothing more than conclusory allegations of impractable joinder and

       speculation about the potential class size.




       1
        Marriott commences its analysis with a claim that several of the trial court’s findings of fact are not
       supported by the evidence. However, each of these allegations refer to a specific requirement of TR 23(A)
       and therefore will be discussed within the appropriate subsection.

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015                      Page 9 of 26
[19]   Whether the actual number of persons affected is 24 or 59, the numerosity

       prerequisite is not simply a test of numbers. McCart v. Chief Executive Officer in

       Charge, Indep. Fed. Credit Union , 652 N.E.2d 80, 83 (Ind. Ct. App. 1995), reh’g

       denied, trans. denied. The real inquiry under the rule is whether joinder would be

       impracticable. See T.R. 23(A)(1). In discussing the numerosity requirement,

       we have previously stated that this analysis

               requires an examination of the specific facts and circumstances of each
               case. Proponents of the class are not required to specify the identities
               or exact number of persons included in the proposed class, but they
               may not rely on conclusory allegations that joinder is impracticable or
               upon speculation as to the size of the class. Instead, they must supply
               facts or demonstrate circumstances which provide support for a
               reasonable estimate of the number of class members. A finding of
               numerosity may be supported by common sense assumptions. Courts
               interpreting the identical provision of the federal rule have recognized
               that while numerosity analysis does not rest on a “magic” number,
               permissive joinder has been deemed impracticable where class
               members number forty or more. The numerosity inquiry requires the
               court to consider judicial economy and the ability of the class members
               to institute individual suits.
       Bolka, 693 N.E.2d at 616 (internal citations omitted).


[20]   Here, the trial court found that:

               Bowman has, at this time, satisfied the requirements of T.R. 23(A)(1).
               At the class certification hearing Bowman presented evidence that she,
               along with fifty-eight (58) other self-reporting conference attendees, all
               experienced highly similar symptoms of illness upon eating at the
               hotel. This list is not inclusive; it only accounts for those [c]onference
               members who voluntarily reported their complaints to Marriott. []
               Allowing at least fifty-nine (59) individuals to pursue their claims
               against Marriott via separate lawsuits would not only be impracticable
               for the parties, but it would also be impracticable for this [c]ourt to


       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015     Page 10 of 26
               adjudicate all of these claims individually. As such, the class is too
               numerous for joinder of all of the class members to be practicable.
       (Appellant’s App. p. 13).


[21]   While Marriott repeatedly suggests that Bowman must establish the class

       boundaries before the class can be certified and cannot rely on the inclusion of

       possible potential class members, Bowman is “not required to specify the

       identities or exact number of persons included in the proposed class, and the

       fact that the number of class members cannot be determined with precision

       does not defeat certification.” 7-Eleven, Inc. v. Bowens, 857 N.E.2d 382, 392

       (Ind. Ct. App. 2006). Although a party moving for class certification may not

       rely on conclusory allegations that joinder is impractical or upon speculation as

       to the size of the class, plaintiffs must supply facts or demonstrate

       circumstances that provide support for a reasonable estimate of the number of

       class members. Id.


[22]   We find that Bowman satisfied the numerosity prerequisite of T.R. 23(A).

       Bowman presented sufficient evidence to define the class boundaries as

       members attending and consuming a meal at the Luncheon and/or Gala and

       suffering gastrointestinal illnesses and other injuries thereafter. Besides the self-

       reporting attendees, Bowman also submitted proof as to the total number of

       possible attendees at either event. Paring down the list of attendees to fit within




       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015      Page 11 of 26
       the class’ boundaries 2 and given the number projected by the trial court, it was

       within the trial court’s discretion to determine that joinder of this reasonable

       estimate was impracticable.


                                                  ii. Commonality


[23]   The Marriott also takes issue with the trial court’s determination that the

       commonality requirement of T.R. 23(A)(2) was met and asserts that “[i]n food

       liability cases such as this, similarity of symptoms is not always indicative of

       commonality.” (Appellant’s Br. p. 14).


[24]   The commonality prerequisite focuses on the characteristics of the class.

       Connerwood Healthcare, Inc. v. Estate of Herron, 683 N.E.2d 1322, 1327 (Ind. Ct

       App. 1997). This requirement is satisfied if the individual plaintiff’s claims are

       derived from a common nucleus of operative fact, which is described as a

       “common course of conduct.” Id. See also Hollowell, 818 N.E.2d at 950.


[25]   In concluding that commonality was satisfied, the trial court found:

               Bowman presented evidence that she and all members exhibited nearly
               identical symptoms, all of their symptoms are consistent with those
               typical of food contamination, including diarrhea; vomiting;
               gastrointestinal cramping; and chills, and the onset of symptoms for all
               class members occurred roughly within twelve hours after eating at the
               Luncheon. Thus, all of the class members present questions of law




       2
        The names on the list also include individuals who did not dine at either the Luncheon or the Gala and
       consequently cannot participate in the class.

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015                    Page 12 of 26
               and fact which are common to the class as a whole to make class
               certification proper.
               (Appellant’s App. pp. 13-14).
[26]   Focusing on the nature and severity of the members’ symptoms, Marriott

       disputes their commonality because there is no evidence classifying the list of

       symptoms as typical of food contamination. Rather, Marriott argues that “[a]s

       the list of symptoms illustrates, some individuals experienced ‘cold like

       symptoms,’ ‘congestion,’ or general ‘illness.’” (Appellant’s Br. p. 14).


[27]   The fact that members have a different degree of symptoms or damages does

       not negate the commonality component. To this effect, we found in

       Connerwood that “the negligent use and preparation of nonpasteurized egg

       products [which] caused the food poisoning” constituted a common course of

       conduct even though “70 persons developed one or more symptoms of food

       poisoning” while only some class members tested positive for salmonella.

       Connerwood, 683 N.E.2d at 1327, 1325. As such, individual questions do not

       prevent a class action on common questions. Bank One, Indianapolis, N.A. v.

       Norton, 557 N.E.2d 1038, 1042 (Ind. Ct. App. 1990). As one treatise explains,

       “even if only one common issue can be identified as appropriate for class action

       treatment, that is enough to justify the application of the provision as long as

       the other Rule 23 requirements have been met.” 7B Charles Alan Wright,

       Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 1790 (2d

       ed. 1986) (footnotes omitted).


[28]   While we agree with Marriott that there is no evidence conclusively establishing

       that the “onset of the symptoms [] occurred roughly within twelve hours” of
       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 13 of 26
       consuming the allegedly contaminated meal, we find that sufficient facts exists

       which portray a common nucleus of operative facts. Specifically, the claim that

       contaminated meals were served during the Luncheon and Gala on April 6,

       2013, at the Marriott which gave rise to the guests’ complaints of one or more

       symptoms of food poisoning amounts to a “common course of conduct.”

       Connerwood, 683 N.E.2d at 1327. Therefore, the trial court did not abuse its

       discretion in finding the commonality prerequisite satisfied.


                                                    iii. Typicality 3


[29]   Next, Marriott contends that the typicality requirement is not established

       because “there are substantial differences among the putative class members in

       terms of what they ate, where they ate, and what they were exposed to, when

       they became ill, what their symptoms were, and how they were damaged.”

       (Appellant’s Br. p. 15). We disagree.


[30]   The typicality requirement does not mandate Bowman to show that all claims

       are identical. 7-Eleven, Inc., 857 N.E.2d at 392. Instead, this requirement is

       satisfied if the representative plaintiff’s claim is neither in conflict nor

       antagonistic to the class as a whole. Id.


[31]   With respect to typicality, the trial court concluded that:




       3
        Marriott’s typicality argument includes an expose on the distinction between general liability and proximate
       cause. As we find this contention more appropriately related to the requirements of T.R. 23(B)(3), we shall
       not address Marriott’s claim with respect to liability at this time.

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015                     Page 14 of 26
               Bowman has, at this time, satisfied the requirements of T.R. 23(A)(3).
               [] All members of the class not only have the same claims, but
               Bowman’s claims as class representative are also “neither in conflict
               with nor antagonistic to the class as a whole.” It is not uncommon for
               individuals that have been afflicted with the same illness to not show
               perfectly identical symptoms and of the same severity. As these
               factual distinctions in the class do not defeat satisfaction of the
               requirements of T.R. 23(A)(3), Bowman has satisfied this requirement.
       (Appellant’s App. p. 14) (internal citations omitted).


[32]   As noted by the trial court, all plaintiffs complained that their injuries were

       instigated by the contaminated food served by Marriott during the Luncheon

       and/or Gala on April 6, 2013. As Bowman presents a claim which does not

       differ dramatically from the other plaintiffs’ claims, her contentions are neither

       in conflict nor antagonistic to the class as a whole. We affirm the trial court

       with respect to typicality.


                                                    iv. Adequacy


[33]   Marriott represents that the instant action was improperly certified as a class

       action because Bowman cannot fairly and adequately represent the class.

       Indiana’s Trial Rule 23(A)(4) adequacy requirement has three components: 1)

       the chosen class representative cannot have antagonistic or conflicting claims

       with other members of the class; 2) the named representative must have a

       sufficient interest in the outcome to ensure vigorous adequacy; and 3) counsel

       for the named plaintiff must be competent, experienced, qualified, and generally

       able to conduct the proposed litigation vigorously. Bolka, 693 N.E.2d at 618.


[34]   In this respect, the trial court held that:

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 15 of 26
               In satisfying prong one of T.R. 23(A)(4), and as previously discussed,
               Bowman, as the chosen class representative, does not have
               antagonistic or conflicting claims with the other members of the class.
               Secondly, Bowman, as class representative, has more than sufficient
               interest in the outcome of the cause of action in order to ensure
               vigorous advocacy. Bowman was not only stricken with the terrible
               symptoms that all class members experienced, she also spent several
               days in the hospital as a result. Bowman’s experiences as a result of
               her illness caused her to have not only sufficient but also a significant
               interest in the outcome to ensure vigorous advocacy. Lastly, lead
               counsel for Bowman has forty-eight (48) years of legal experience
               primarily focused in litigation, and has previously handled a food
               poisoning case. Likewise, counsel and counsel’s firm have handled
               class actions previously such that both are qualified and experienced to
               adequately and professionally conduct the litigation on behalf of
               Bowman and [] all of the class members.
       (Appellant’s App. pp. 14-15).


[35]   Focusing on the adequacy of Bowman’s representation, Marriott contends that

       Bowman neither possesses the same interest nor suffered the same injury as the

       class and therefore class certification should be defeated. Specifically, Marriott

       argues that Bowman has no evidence linking her illness to any particular food

       she consumed at the hotel, nor were her physicians able to make a

       determinative diagnosis as to whether her illness was caused by food poisoning.

       Rather, Marriott claims that the record established that Bowman, unlike any

       other class member, “developed an irregular heartbeat as a result of the

       occurrence.” (Appellant’s Br. p. 19).


[36]   At the moment, Bowman is a suitable representative of the class. Bowman has

       the same interest and suffered similar injures as the other class members. She

       attended and consumed food at both the Luncheon and Gala. She became

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015    Page 16 of 26
       violently ill thereafter, experiencing bouts of severe diarrhea and vomiting for

       which she was ultimately hospitalized. It should be remembered that a class

       action certification is not a decision on the merits. See, e.g., id. Thus, the

       availability of potential individualized defenses to Marriott against Bowman’s

       claim is not a bar to class certification. Indiana Trial Rule 23(D)(2)

       contemplates that a representative might have to be replaced, since it provides

       for the appointment by the trial court of new representatives should such

       appointment become necessary. See, e.g., Bolka, 693 N.E.2d at 618 (we rejected

       NIPSCO’s argument that plaintiff’s claim was statutorily barred and therefore

       plaintiff was an inadequate representative of the class.) Once the issue of

       liability is determined, Marriott has the right to present its defense which may

       or may not be applicable to all members, including Bowman. Even if

       Marriott’s defense proves to be a bar to recovery for Bowman personally, it is

       within a trial court’s power to—at that point—decertify the action for damages

       or appoint a new representative. However, until adjudication is made on the

       common issue and Marriott presents a defense to Bowman’s claim, Bowman is

       an adequate representative.


                                          3. Indiana Trial Rule 23(B)


[37]   Of the three listed, additional prerequisites, any one of which is sufficient to

       support class certification, the trial court concluded that T.R. 23(B)(3) was

       satisfied. Indiana Trial Rule 23(B)(3) requires the trial court to “find that the

       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

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 17 of 26
       superior to other available methods for the fair and efficient adjudication of the

       controversy.” The matters pertinent to this finding include:

               (a) The interest of members of the class in individually controlling the
                   prosecution or defense of separate actions;
               (b) The extent and nature of any litigation concerning the controversy
                   already commenced by or against members of the class;
               (c) The desirability or undesirability of concentrating the litigation of
                   the claims in the particular forum;
               (d) The difficulties likely to be encountered in the management of a
                   class action.
       T.R. 23(B)(3).


[38]   Marriott disputes that Bowman has met the requirements of Indiana Trial Rule

       23(B)(3), which mandates not only the existence of questions of law or fact

       common to the members of the class but also requires these questions to

       predominate over any questions affecting only individual members. See

       Associated Med. Networks, Ltd., 824 N.E.2d at 684. There is no precise test for

       determining whether common questions of fact or law predominate; instead,

       Indiana Trial Rule 23(B)(3) requires a pragmatic assessment of the entire action

       and all the issues involved. Id. at 686.




                                i. Predominance - Legal Standard of Analysis


[39]   Initially, prior to turning to the merits of its T.R. 23(B)(3) argument, Marriott

       contends that the trial court analyzed predominance under an incorrect legal

       standard. To posit its claim of error, Marriott relies on the trial court’s

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015         Page 18 of 26
       statement that “[t]he requirements of T.R. 23(B)(3) mirror those of T.R.

       23(A)(2) and are ‘satisfied if the claims of the individual plaintiffs are derived

       from a common nucleus of operative facts.’” (Appellant’s App. p. 15) (internal

       citation omitted). Because the analytic evaluation for each statutory subsection

       of T.R 23(B) is distinct from those of T.R. 23(A), Marriott maintains that a

       reversal of the trial court’s decision is warranted.


[40]   We have stated before that while there is a certain overlap between T.R.

       23(A)(2) and T.R. 23(B)(3), the “requirement of commonality is [] augmented

       by the predominance requirement of T.R. 23(B)(3), which requires not only the

       existence of ‘questions of law or fact common to the members of the class,’ but

       also that these questions must ‘predominate over any questions affecting only

       individual members.’” Associated Med. Networks, Ltd., 824 N.E.2d at 684. As

       such, we have held that “there must be more than a mere nucleus of facts in

       common with the plaintiff class.” Id. at 685. Thus, predominance requires

       more than commonality. Id.


[41]   The trial court concluded that because “Bowman and the class members’ claims

       all derive from a common nucleus,” the predominance requirement was

       satisfied. (Appellant’s App. p. 15). Although “the claims may arise from ‘a

       common nucleus of operative facts,’ [this] does not mean that the common

       claims necessarily predominate.” Associated Med. Networks, Ltd., 824 N.E.2d at

       685 (citing Wal-Mart Stores Inc., 808 N.E.2d at 1204). We find this to be the case

       here.



       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 19 of 26
                                       ii. Predominance – Characteristics


[42]   As noted before, there is no precise test for determining whether common

       questions of law or fact predominate; instead, Indiana Trial Rule 23(B)(3)

       requires a pragmatic assessment of the entire action and all the issues involved.

       7-Eleven, Inc., 857 N.E.2d at 393.

               In making this decision, we consider whether the substantive elements
               of class members’ claims require the same proof for each class
               member; whether the proposed class is bound together by a mutual
               interest in resolving common questions more than it is divided by
               individual interests; whether the resolution of an issue common to the
               class would significantly advance the litigation; whether one or more
               common issues constitute significant parts of each class member’s
               individuals cases; whether the common questions are central to all of
               the members’ claims; and whether the same theory of liability is
               asserted by or against all class members, and all defendants raise the
               same basic defenses.
       Associated Med. Networks, Ltd., 824 N.E.2d at 686.


[43]   Marriott contends that the case is dominated by the individual issues of

       causation and damages. It specifies that “even if a jury found that food served

       at the Marriott was contaminated or defective, each claimant would still need to

       prove that his or her injuries were proximately caused by consumption of

       Marriott food, including a diagnosis linking their alleged illness with food

       service associated with the Marriott.” (Appellant’s Br. pp. 21-22). As such,

       Marriott maintains that “[t]his individualized process would predominate over

       any issues common to the class such that class treatment would be ineffective

       and inappropriate.” (Appellant’s Br. p. 22).


       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 20 of 26
[44]   Causation is typically discussed in terms of generic and specific causation. 7-

       Eleven, Inc., 857 N.E.2d at 389. General or generic causation has been defined

       by courts to mean whether the substance at issue had the capacity to cause the

       harm alleged, while individual causation refers to whether a particular

       individual suffers from a particular ailment as a result of exposure to a

       substance. Id. To prevail on a claim, the class will have to establish both

       generic and individual causation. Id. Similarly, here, this means that Bowman

       must establish not only that the food was contaminated by Mariott and was

       capable of causing the symptoms and injuries complained of, but in addition,

       that the contaminated food was the cause-in-fact of each class member’s specific

       ailments.


[45]   To account for the distinction in proof between generic and proximate

       causation, this court affirmed the trial court’s limited class certification as to the

       issues of liability and causation in 7-Eleven, Inc. See 7-Eleven, Inc., 857 N.E.2d at

       389. Requesting a class action certification after a neighborhood’s groundwater

       was contaminated by a release of gasoline and plaintiffs incurred health risks

       associated with exposure to the chemicals, plaintiffs advocated for a class

       definition limited to “the issue of general liability in which an expert would

       testify that exposure to the contamination would ‘cause certain health

       symptoms in a general way.’” Id. at 388 (internal reference omitted). The

       plaintiffs proposed that after general causation was determined, “there would be

       a series of individual trials for the class members whose injuries fell within those

       established as a matter of general causation.” Id. Concluding that this limited


       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 21 of 26
       class certification would reduce repetitious litigation as “those class members

       who cannot establish the issues of general liability would not be entitled to

       recover, effectively limiting the scope of the class,” we affirmed the trial court’s

       decision. Id. at 399.


[46]   However, prior to our decision in 7-Eleven, Inc., this court stated:

               In the typical mass tort situation, such as an airplane crash or a cruise
               ship food poisoning, proximate cause can be determined on a class-wide
               basis because the cause of the common disaster is the same for each of
               the plaintiffs.
       Connerwood, 683 N.E.2d at 1327 (quoting In re Northern Dist. of Cal., Dalkon

       Shield IUD Prod. Liab. Litig. v. A.H. Robbins Co., 693 F.2d 847, 853 (9th Cir.

       1982), cert. denied, 459 U.S. 1171 (1983)) (emphasis in original). In Connerwood,

       the estate of a deceased nursing home resident sought certification for a class

       action arising out of the food poisoning of approximately seventy residents and

       employees after developing one or more symptoms of food poisoning. Id. at

       1325. We affirmed the trial court’s certification because “[t]he potential class

       members are elderly and medically compromised and may be incapable of

       exercising their own rights. This action originates from common operative facts

       and both state and federal courts have determined that class action treatment is

       appropriate for a mass tort such as food poisoning.” 4 Id. at 1329.




       4
         We decided Connerwood several years prior to our opinion in 7-Eleven, Inc. which elaborately explained the
       predominance requirements of T.R. 23(B)(3). Without having had the benefit of this detailed analysis,
       Connerwood appears to equate the requirements of the common facts in T.R. 23(A)(2) with the predominance
       requirements of T.R. 23(B)(3).

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015                     Page 22 of 26
[47]   The class action certification of an airplane crash or a cruise line food poisoning

       case, and even Connerwood, must be distinguished from the instant cause at

       Marriot. While in the former, proximate cause exists in a controlled and

       limited environment and can be determined on a class-wide basis because the

       cause and consequences of the common disaster are identical for all the

       members, causation in the case at bar is more wide-ranging. Not only is there

       no consistency among the individual member’s dining options and locations—

       some members attended the Luncheon or the Gala, and some attended both—

       there are differences in the food consumed—as Bowman has not yet

       conclusively established the exact cause of the alleged food contamination—

       and there is a distinction in injuries—some members complained of vomiting

       while others incurred “illness” or “congestion.” (Appellant’s Conf. App. pp.

       203-04).


[48]   By applying the procedural device of a class action certification, the court can

       initially assess Marriott’s potential liability for its conduct without regard to the

       individual components of each class member’s injuries, i.e., whether

       contaminated food was served during the Luncheon and/or Gala. However,

       after Marriott’s general liability is established, it becomes the responsibility of

       each individual member to show that the member ingested the contaminated

       food and that his or her specific injuries or damages were proximately caused

       thereby. We cannot emphasize this point strongly enough because generalized

       proof will not suffice to prove individual damages. The main problem this

       appellate court has on review stems from a failure to differentiate between the


       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 23 of 26
       general and the particular. Although many common issues of fact and law will

       be capable of resolution on a group basis, customized and particularized

       damages must be established at an individual level.


[49]   Thus, the practical reality of a class certification in this case reveals that while it

       will be relatively easy to establish Marriott’s generic liability, the case will

       become inevitably dominated by the individual issues of extent and nature of

       the injuries, and the degree of exposure. As such, there would be inextricable

       entanglement with the individualized issues of proximate cause that will no

       doubt subsume any common questions that may be present. Accordingly, we

       cannot conclude that the class, as certified by the trial court, would contribute

       to the economies of time, effort, and expense that a class certification is

       intended to achieve. See Gomez, 622 F. Supp. 2d at 717. Finding that the

       questions of law and fact common to the members of the class do not

       predominate over the issues affecting the individual members, we reverse the

       trial court’s certification. See T.R. 23(B)(3).


                                              iii. Option on Remand


[50]   Even though we have determined that the class as defined is not properly

       maintainable, the class may be redefined in order to sustain the lawsuit. See

       T.R. 23(C)(1). Indiana Trial Rule 23(C)(4)(a) provides that when appropriate,

       “an action may be brought or maintained as a class action with respect to

       particular issues[.]” As we have recognized:




       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 24 of 26
               The theory of Rule 23(C)(4)(A) is that the advantages and economies
               of adjudicating issues that are common to the entire class on a
               representative basis should be secured even though other issues in the
               case may have to be litigated separately by each class member.
               Accordingly, even if only one common issue can be identified as
               appropriate for class action treatment that is enough to justify the
               application of the provision as long as the other Rule 23 requirements
               have been met. As a result, cases have applied subdivision (C)(4)(A)
               to allow a partial class action to go forward and have left questions of
               reliance, damages, and other issues to be adjudicated on an individual
               basis.
       Bank One Indianapolis, N.A. v. Norton, 557 N.E.2d 1038, 1041 (Ind. Ct. App.

       1990) (quoting 7B C. Wright, A. Miller & M. Kane, Federal Practice and

       Procedure: Civil 2d § 1790, 271-74 (1986) (footnotes omitted)).


[51]   In light of the possibility that Bowman wishes to proceed with certification

       under T.R. 23(B)(3), we recommend the trial court to follow the lead of the 7-

       Eleven, Inc. court and certify the class with respect to Marriott’s general liability

       only, with proximate cause of the members to be determined in a series of

       individual hearings. As to generic causation, we believe the substantive

       elements of the claims require the same proof for each class member, the class is

       bound together by a mutual interest in resolving this common question more

       than it is divided by individual interests, that the resolution of this common

       issue will significantly advance the litigation, and that a common question

       central to all of the members’ claims exists. See Associated Med. Networks, Ltd.,

       824 N.E.2d at 685. As our supreme court has explained:

               The predominance test really involved an attempt to achieve a balance
               between the value of allowing individual actions to be instituted so
               that each person can protect his own interests and the economy that

       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015    Page 25 of 26
               can be achieved by allowing a multiple party dispute to be resolved on
               a class action basis.
       Id. at 685. We believe that by certifying only the general causation issue, this

       balance between the individual’s values and the judicial economy of jointly

       adjudicating common issues will be achieved. We remand to the trial court.


                                                CONCLUSION

[52]   Based on the foregoing, we conclude that the trial court entered a judgment in

       favor of Bowman solely with respect to her class certification request and did

       not enter a judgment on the merits. Furthermore, because we conclude that

       Bowman did not satisfy the predominance requirement of T.R. 23(B)(3), we

       reverse the trial court’s certification of the class and remand the cause for

       further proceedings consistent with this opinion.


[53]   Reversed and remanded.


[54]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Opinion | 49A02-1411-CT-811 | August 11, 2015   Page 26 of 26
