Bevrotte v. Caesars Entertainment Corporation
Filing
8
ORDER & REASONS re dft's 6 Motion to Dismiss or Strike Class Allegations: for reasons stated, dft's Motion to strike class allegations under Rule 23(d)(1)(D) is GRANTED; request in alternative to dismiss class allegations under Rule 12 is thus rendered moot. Signed by Chief Judge Sarah S. Vance on 10/4/2011. (rll, ) Modified on 10/4/2011 to edit text (rll, ).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DENISE BEVROTTE, on behalf of
her son MACEO BEVROTTE, JR.,
deceased, and on behalf of
all others similarly situated
CIVIL ACTION
VERSUS
NO: 11-543
CAESARS ENTERTAINMENT
CORPORATION d/b/a HARRAH’S
NEW ORLEANS HOTEL AND CASINO
SECTION: R
ORDER AND REASONS
Before the Court is defendant Caesars Entertainment
Corporation’s ("Caesars") motion to dismiss or strike class
allegations. Because the Court finds that plaintiff Denise
Bevrotte cannot meet the standard set by Federal Rule of Civil
Procedure 23 to maintain this action on behalf of the proposed
class, the Court grants Caesars's motion to strike class
allegations.
I.
BACKGROUND
Plaintiff Denise Bevrotte brings this action on behalf of
her deceased son, Maceo Bevrotte, Jr. She contends that her son,
a non-smoker, was “continuously exposed to second-hand smoke”
during his fifteen years of employment as a poker dealer at
Harrah’s Casino.1 Ms. Bevrotte alleges that as a result of this
exposure, her son suffered deleterious health effects, including:
“contracting cancer through ingestion of cancer-causing chemicals
and toxins; coughing and sore throat; shortness of breath;
dizziness; wheezing or tightness in the chest; and headache.”2
Ms. Bevrotte attempts to bring this action on behalf of a
class, which she defines in her complaint as:
All former, current, and future nonsmoking employees of
CAESARS ENTERTAINMENT CORPORATION d/b/a HARRAH’S NEW ORLEANS
HOTEL AND CASINO who were, are or in the future will be
exposed to unsafe levels of second-hand smoke.3
She seeks certification pursuant to Federal Rule of Civil
Procedure 23(b)(3).4
Caesars now asks the Court to dismiss plaintiff’s class
allegations under Federal Rule of Civil Procedure 12, or in the
alternative, to strike plaintiff’s allegations under Rule 23.5
1
R. Doc. 1 at 9.
2
Id.
3
Id. at 9-10. Plaintiff excludes from the class: “(1)
Any Judge or Magistrate presiding over this action and members of
their families; (2) Defendant, Defendant’s subsidiaries, parents,
successors, predecessors, and any entity in which the Defendant
or their parents have a controlling interest and their current or
former officers and directors; (3) persons who properly execute
and file a timely request for exclusion from the class; and (4)
the legal representatives, successors or assigns of any such
excluded persons.” Id. at 10.
4
Id. at 9.
5
R. Doc. 6.
2
Caesars contends that Ms. Bevrotte cannot meet Rule 23's
requirements to maintain the class. Bevrotte has not opposed the
motion.
II.
STANDARD
The Court has authority to strike class allegations on the
face of the complaint when “a complaint fails to plead the
minimum facts necessary to establish the existence of a class
satisfying Rule 23's mandate.” See Aguilar v. Allstate Fire &
Cas. Ins. Co., 2007 WL 734809, at *2 (E.D. La. 2007); Fed. R.
Civ. P. 23(d)(1)(D) (“[T]he court may issue orders that ...
require that the pleadings be amended to eliminate allegations
about representation of absent persons and that the action
proceed accordingly[.]”); cf. John v. Nat'l Sec. Fire & Cas. Co.,
501 F.3d 443, 445 (5th Cir. 2007) ("Where it is facially apparent
from the pleadings that there is no ascertainable class, a
district court may dismiss the class allegation on the
pleadings.").
Class actions are governed by Rule 23 of the Federal Rules
of Civil Procedure. To be certified, the class must first satisfy
the threshold requirements of Rule 23(a): (1) numerosity (a
“class [so large] that joinder of all members is impracticable”);
(2) commonality (“questions of law or fact common to the class”);
(3) typicality (“named parties' claims or defenses are typical
3
... of the class”); and (4) adequacy of representation
(representatives “will fairly and adequately protect the interest
of the class”). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613
(1997); Fed. R. Civ. P. 23(a).
Additionally, the class must satisfy one of the three
subsections of Rule 23(b). See Amchem Prods., 521 U.S. at 614.
Plaintiff seeks certification under Rule 23(b)(3),6 which imposes
two prerequisites: predominance and superiority. The Court must
find both that “questions of law or fact common to class members
predominate over any questions affecting only individual members”
(the predominance requirement), and that “a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy” (the superiority requirement). Fed.
R. Civ. P. 23(b)(3). See also Amchem Prods., 521 U.S. at 615;
Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th Cir. 2005).
III. DISCUSSION
Certification in this case requires that the class satisfy
the threshold requirements of Rule 23(a), and then Rule
23(b)(3)'s predominance and superiority requirements. This Court
will take up the Rule 23(b)(3) prerequisites first. See Steering
Comm. v. Exxon Mobil Corp., 461 F.3d 598, 601 (5th Cir. 2006)
(declining to address Rule 23(a) requirements when plaintiffs
6
R. Doc. 1 at 9.
4
failed to satisfy those set by 23(b)); Nguyen v. St. Paul
Travelers Ins. Co., 2008 WL 4691685, at *8 (E.D. La. 2008)
(same).
Plaintiff proposes the following class definition:
All former, current, and future nonsmoking employees of
CAESARS ENTERTAINMENT CORPORATION d/b/a HARRAH’S NEW ORLEANS
HOTEL AND CASINO who were, are or in the future will be
exposed to unsafe levels of second-hand smoke.7
In her complaint, she argues that common questions of law and
fact exist as to all members of the putative class, that such
questions predominate over those affecting individual class
members only, and that a class format is therefore the superior
method of adjudication in this case. In support of her position,
she proposes the following common questions:
(a) Whether Defendant has a duty to provide a safe workplace;
(b) Whether, as part of its duty ... to provide a safe
workplace, Defendant had to mitigate the dangers posed by
second-hand smoke;
(c) Whether Defendant took adequate steps to curtail the
danger of second-hand smoke; and
(d) Whether the Plaintiff and the Class are entitled to
relief, and the nature of such relief.8
Yet plaintiff’s pleadings fall short of the mark set by Rule 23.
Plaintiff’s claim sounds in negligence. She alleges that
defendant breached its statutory duty under La. R.S. 23:13 to
7
R. Doc. 1 at 9-10.
8
R. Doc. 1 at 10.
5
provide a safe place to work, as a proximate result of which
plaintiff and the other class members suffered damages. See La.
R.S. 23:13 (“Every employer shall furnish employment which shall
be reasonably safe for the employees therein.”). Louisiana courts
employ a duty/risk analysis in adjudicating negligence claims,
requiring a plaintiff to prove each of five separate elements:
(1) that the defendant had a duty to conform his conduct to a
specific standard; (2) that the defendant's conduct failed to
conform to the appropriate standard; (3) that defendant's conduct
was a cause-in-fact of the plaintiff's injures; (4) that the risk
of harm to plaintiff was within the scope of protection that the
duty afforded; and (5) that the plaintiff was in fact damaged.
Rando v. ANCO Insulations Inc., 16 So. 3d 1065, 1086 (La. 2009);
Hanks v. Entergy Corp., 944 So. 2d 564, 579 (La. 2006). See also
Guidry v. Coregis Ins. Co., 896 So. 2d 164, 178 (La. App. 3d Cir.
2004) (using the statutory duty set by Louisiana’s Workers’
Compensation Law, La. R.S. 23:13, in the court’s duty/risk
analysis to determine whether the employer was negligent).
Predominance
To predominate, “common issues must constitute a significant
part of the individual cases.” Mullen v. Treasure Chest Casino,
LLC, 186 F.3d 620, 626 (5th. Cir. 1999). Predominance is judged
6
by considering “the cause of action as a whole,” rather than any
individual element in isolation. Steering Comm., 461 F.3d at 601
(emphasis added). Thus, the predominance requirement, “although
reminiscent of the commonality requirement of Rule 23(a), is ‘far
more demanding’ because it ‘tests whether proposed classes are
sufficiently cohesive to warrant adjudication by
representation.’” Unger, 401 F.3d at 320 (quoting Amchem Prods.,
521 U.S. at 623-24).
Determination of whether class certification is appropriate
requires the Court to identify the substantive issues that will
control the outcome of the case, assess which issues will
predominate, and then determine whether the issues are common to
the class. O'Sullivan v. Countrywide Home Loans, Inc., 319 F.3d
732, 738 (5th Cir. 2003); Nguyen, 2008 WL 4691685, at *3. The
Court is to look beyond the pleadings to “understand the claims,
defenses, relevant facts and applicable substantive law.”
O'Sullivan, 319 F.3d at 738 (quoting Castano v. American Tobacco
Co., 84 F.3d 734, 744 (5th Cir. 1996)). See also In re Ford Motor
Co., 182 F.R.D. at 219 (“The issues of predominance and
superiority cannot be analyzed in a vacuum.”).
Notably, the "common questions" that plaintiff offers
concern only the first two elements of negligence – duty and
breach. It is true that Louisiana's Workers' Compensation Law
itself imposes a duty standard that is common to the class in
7
that it requires employers to provide a "reasonably safe"
workplace. But the question of whether defendant breached that
duty involves conduct that changed over a period of time.
Plaintiffs allege that in recent years Harrah's took some
measures to minimize smoke on the gaming floors.9 As plaintiff's
class definition has no temporal limitation, proof of a breach of
duty will require plaintiffs to challenge different species of
conduct, depending on when the class members worked for Harrah's.
Furthermore, plaintiffs do not even address the issues of
causation and damages. By their very nature, these claims raise
individualized and fact-intensive issues of causation and damages
that cannot be adjudicated in a class action format.
In Steering Committee, the Fifth Circuit affirmed the
district court’s finding that the 23(b)(3) predominance
requirement was not met, despite the alleged injuries all having
resulted from smoke exposure following a fire at a chemical
plant. Because the district court had concluded that “individual
issues surrounding exposure, dose, health effects, and damages
will dominate at the trial,” the Fifth Circuit agreed that common
issues did not predominate, and that a class would likely devolve
into “a series of individual mini-trials which the predominance
9
R. Doc. 1 at 2-3.
8
requirement is intended to prevent.” 461 F.3d at 602.10 The court
continued:
[A]lthough the alleged cause of the injuries is also a single
accident - a refinery fire - the causal mechanism for
plaintiff's injuries - alleged exposure or fear of exposure
to toxic substances - is not so straightforward. While it is
certainly true that the cause of the fire itself is an issue
common to the class, each individual plaintiff must meet his
or her own burden of medical causation, which in turn will
depend on any number of the factors enumerated by the experts
who testified at the class certification hearing.
Id.
In this case, as in Steering Committee, such minitrials to
determine causation are all but inevitable. Plaintiff claims that
the exposure caused her son’s cancer,11 coughing and sore throat,
10
Among the only Fifth Circuit cases supporting class
certification despite difficult questions of causation is Mullen
v. Treasure Chest Casino, LLC, 186 F.3d 620 (5th Cir. 1999).
There, the court distinguished contrary precedent by noting that
“the putative class members are all symptomatic by definition and
claim injury from the same defective ventilation system over the
same general period of time.” Id. at 627. Here, in contrast,
there are no similar allegations. Class membership does not
require a medical injury of any sort; no fact-intensive claims
about the adequacy of Harrah’s facilities have been raised; and
class membership is not restricted by dates of employment: all
“former, current, and future nonsmoking employees” who “were, are
or in the future will be exposed” are candidates for inclusion.
R. Doc. 1 at 9-10. Further, now more than a decade old, Mullen
“appear[s] to represent a more hospitable view towards mass tort
class certification that is now in the past.” In re Katrina Canal
Breaches Consol. Litig., 258 F.R.D. 128, 138 (E.D. La. 2009),
rev’d on other grounds, 628 F.3d 185 (5th Cir. 2010). Since
Steering Committee, 461 F.3d 598 (5th Cir. 2006), and Corley v.
Orangefield Indep. Sch. Dist., 152 Fed. Appx. 350 (5th Cir.
2005), the Fifth Circuit has “demanded a stricter application of
the predominance principles[.]” In re Katrina, 258 F.R.D at 138.
11
Though plaintiff’s complaint omits reference to the
type of cancer, defendant alleges that Caesars’s records indicate
9
shortness of breath,
dizziness, wheezing or tightness in the
chest, and headache.12 These are not conditions the origins of
which are easily ascertainable, nor does plaintiff allege as
much. And unlike Steering Committee, the alleged injuries of
putative class members stem not from a single accident, but from
patterns of exposure over a period of time, rendering the
causation inquiries even more particularized to each plaintiff.
Each would bear the burden of proving that exposure to secondhand
smoke during employment at Harrah’s Casino was responsible for
his or her injuries. The result would be an endless series of
time-intensive factual inquiries about each plaintiff, including
each’s discrete medical history and risk factors; dates, times,
and durations of exposure to secondhand smoke at Harrah’s, home,
and previous places of employment; and concentrations of exposure
at Harrah’s, home, and previous places of employment. These
complicated questions of causation would certainly predominate at
trial.13
that Mr. Bevrotte died of Leukemia. R. Doc. 4-3 at 3 n.3.
12
R. Doc. 1 at 9.
13
This determination is in accord with the majority of
federal courts that have addressed similar claims. See, e.g.,
Badillo v. Am. Tobacco Co., 202 F.R.D. 261, 265 (D. Nev. 2001)
(holding that a proposed class of Nevada casino workers exposed
to secondhand smoke on the job failed to satisfy the predominance
requirement, as individual issues of causation, comparative
fault, assumption of risk, and damages predominated over common
questions); Duncan v. Nw. Airlines, Inc., 203 F.R.D. 601, 612-13
(W.D. Wash. 2001) (finding that a putative class of flight
10
Even if causation could be tried collectively, the unique
damages claims of each plaintiff would make this case a poor
candidate for class treatment. The Fifth Circuit has held that
“where individual damages cannot be determined by reference to a
mathematical or formulaic calculation, the damages issue may
predominate over any common issues shared by the class.” Steering
Comm., 461 F.3d at 602; Corley, 152 Fed. Appx. 350 at 355; Bell
Atl. Corp. v. AT&T Corp., 339 F.3d 294, 307 (5th Cir. 2003)
(“[W]here the plaintiffs' damage claims focus almost entirely on
facts and issues specific to individuals rather than the class as
a whole, the potential that the class action may degenerate in
practice into multiple lawsuits separately tried renders class
treatment inappropriate.”).
In this case, damages claims are not subject to formulaic
calculation. Indeed, the class definition is not limited to any
particular type of injury or damages. Mere “exposure” is all that
is required to become a member of the class.14 Even among those
who could allege medical injuries, the damages would vary widely
from basic respiratory problems to, as with Ms. Bevrotte’s son,
serious illness and eventual death. See Terrebonne v. Allstate
attendants exposed to secondhand smoke on international flights
was not maintainable since questions regarding each attendant's
duration of employment, smoking history, family members who
smoked, and medical background overwhelmed common questions).
14
R. Doc. 1 at 9-10.
11
Ins. Co., 251 F.R.D. 208, 211 (E.D. La. 2007) (finding
predominance of common questions lacking when the nature and
extent of owners’ property damage, resulting from the common
cause of Hurricane Katrina, varied greatly in their particulars).
There is no way for the Court to assess individual damages
without experts, medical reports, and personal testimony from
each plaintiff. Class certification would thus do little to spare
judicial resources and much to threaten class cohesion. Cf.
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 413 (5th Cir.
1998) (recognizing the deleterious “effect of monetary claims on
class cohesiveness” and noting that classes seeking primarily
monetary damages “will more likely consist of members with
divergent interests”).
Superiority
The 23(b)(3) predominance and superiority requirements are
intertwined. See Steering Comm., 461 F.3d 598 at 604 (noting the
"interrelationship between predominance and superiority");
Castano, 84 F.3d at 745 n.19 (noting that the court's
predominance finding "also implicates the court's superiority
analysis"). Like the predominance inquiry, “the superiority
analysis is fact-specific and will vary depending on the
circumstances of any given case.” Robertson v. Monsanto Co., 287
12
Fed. Appx. 354, 361 (5th Cir. 2008) (citing 7AA Wright, Miller, &
Kane, Federal Practice & Procedure § 1783, at 322 (3d ed. 2005)).
When the “issues of causation and damages are highly
individualized,” superiority is wanting. Robertson, 287 Fed.
Appx. at 362; In re FEMA Trailer Formaldehyde Prods. Liab.
Litig., 2008 WL 5423488, at *15 (E.D. La. 2008) ("[T]he
predominance of the individual issues present ... detract from
the superiority of the class action device[.]"). Here, whatever
advantages might follow from class treatment on the duty issue
would surely be overwhelmed by the confusion, time and expense
resulting from the countless minitrials on breach, causation and
damages. See In re FEMA Trailer, 2008 WL 5423488, at *15;
Castano, 84 F.3d at 745 n.19 ("The greater the number of
individual issues, the less likely superiority can be
established.").
Further, this is not a case in which meritorious claims will
go unasserted out of concern that litigation costs will wipe out
the anticipated recovery. Cf. Castano, 84 F.3d at 748 (noting
that negative value suits provide a compelling rationale for
finding superiority in a class action); In re Ford Motor Co., 182
F.R.D. at 225 (same). Plaintiffs like Ms. Bevrotte who allege
serious injuries stand to recover substantial amounts. This
provides ample incentive for them to proceed on an individual
basis. See Ronald J. Rychlak, Cards and Dice in Smoky Rooms:
13
Tobacco Bans and Modern Casinos, 57 DRAKE L. REV. 467, 504-14
(2009) (discussing the strategies and successes of casino
employees seeking compensation from their employers for injuries
resulting from workplace exposure to secondhand smoke).
IV.
CONCLUSION
For the foregoing reasons, the Court finds that plaintiff
has failed to satisfy her burden under Rule 23(b)(3), as common
issues do not predominate over individual ones, and a class
action is not a superior method for adjudicating this matter.
Therefore, the court need not address the threshold requirements
of Rule 23(a). Defendant’s motion to strike class allegations
under Rule 23(d)(1)(D) is GRANTED. Its request in the alternative
that the Court dismiss class allegations under Rule 12 is thus
rendered moot.
4th
New Orleans, Louisiana, this __ day of October, 2011.
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
14
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