23(c)(4) Certification Granted in Costco Hepatitis A Lawsuit

Judge David O. Carter of the Central District of California recently certified a liability-only class in a case alleging defendants’ conduct created a “risk of exposure to the hepatitis A virus” through the sale of defective food products. See Petersen v. Costco Wholesale Co., 2016 WL 304299 (C.D. Cal. Jan. 25, 2016).

Ruling on the existence and predominance of common questions, the court explained:

Given that Plaintiffs allege that a single product sold only at Costco was defective, there is a common core of salient facts. See Valentino v. Carter-Wallace, Inc., 97 F. 3d 1227, 1229 (9th Cir. 1996).

Thus, the court overruled defendants’ arguments that proving the existence of a defect on a classwide basis would be impossible:

The Ninth Circuit, however, has made clear that “proof of the manifestation of a defect is not a prerequisite to class certification.”  Baker v. Microsoft Corp., 797 F.3d 607, 611 (9th Cir. 2015) (citation omitted).

Indeed, there are several significant common issues here, including Plaintiffs’ contention that a single, specific lot of allegedly defective organic pomegranate seed has given rise to Plaintiffs’ claims. … Put differently, determining whether Defendants sold a defective product in this case will not require a searching individualized inquiry; rather, there will be significant common proof at issue in resolving Defendants’ liability. Thus, there is “glue holding together” the proposed class. Wal-Mart, 131 S. Ct. at 2545.  Further, there are significant common facts related to Defendants’ recall of the allegedly defective product, Defendants’ communications to Plaintiffs concerning the allegedly defective product, and the class members’ subsequent receipt of preventative medical care.

(Citations omitted.)

Defendants also contested plaintiffs’ adequacy to serve as class representatives on the grounds that they had abandoned meritorious claims.  The court rejected that argument too:

By abandoning their negligence and breach of warranty claims, Plaintiffs are not foregoing damages “likely to exceed by many times” the damages they are seeking; rather, as they state, Plaintiffs are still seeking the full range of “non-economic and economic damages.”  As a court in this Circuit found, “[t]here is no rule that requires class certification of every conceivable cause of action. In some instances, opting not to assert certain claims may be an essential part of adequate representation.” Facciola v. Greenberg Traurig LLP, 281 F.R.D. 363, 370 (D. Ariz. 2012).

Finally, defendants argued damages would require individualized proof.  The court noted, however, that even post-Comcast, “in this circuit . . . damage calculations alone cannot defeat certification.” Yokoyama v. Midland Nat. Life. Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010). And in any event no damages analysis was needed since plaintiffs had asked “to certify a liability-only case, reserving for a second phase of trial the issue of damages,” and “several courts [had likewise] recently bifurcated liability questions from damages.”