2022 Ohio 4101
Ohio Ct. App.2022Background
- Brooke Smith, an out-of-state undergraduate at The Ohio State University (Columbus), paid tuition and multiple fees for Spring 2020 and was completing an in-person student-teaching internship and seminar.
- In mid-March 2020 OSU closed campus and moved instruction remote due to COVID-19; OSU refunded only prorated room/board and a recreational fee, not tuition or other fees; Smith graduated on time.
- Smith sued OSU (breach of contract and unjust enrichment) as a putative class action for students who paid tuition/fees for Spring 2020 but lost in-person instruction and campus access.
- For class certification Smith proffered expert methodology (a conjoint market-survey and a damages model) to show a classwide reduction in market value and to compute damages; the survey had not yet been conducted at certification.
- The Court of Claims certified a broad class, treating campus closure and loss of in-person instruction as dispositive of classwide injury and accepting the proposed methodology as sufficient to proceed.
- On appeal the Tenth District reversed, holding the trial court abused its discretion by failing to conduct the required rigorous Civ.R. 23 analysis—particularly as to common evidence of economic injury and predominance; discretionary-immunity jurisdictional argument was rejected as waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court performed the rigorous Civ.R. 23 analysis required for class certification | Smith argued certification needs a methodology for classwide injury/damages (her experts), not completed quantification | OSU argued the court must examine the sufficiency of common proof and the experts’ methods (survey unperformed/unreliable); methodology alone is insufficient | Reversed: trial court abused discretion by treating closure as per se injury and failing to rigorously analyze common proof and predominance |
| Whether commonality/predominance of injury exists (all class members suffered economic injury) | Smith: all paid for in-person access they did not receive, so all were injured; proposed survey will show market reduction | OSU: no common evidence of injury; expert could not opine because survey unperformed and methodology ignored pandemic-driven preferences and built-in remote instruction | Held that plaintiff failed to present common evidence of economic injury; trial court erred in assuming injury from closure alone |
| Reliability and sufficiency of proposed expert methodology to measure classwide damages | Smith: conjoint survey and damages model can measure market-value reduction and provide classwide damages calculations | OSU: methodology untested for tuition pricing, survey unperformed, excludes pandemic context, and cannot presently show classwide injury | Court faulted trial court for accepting methodology at certification without rigorous review; methodology insufficient as presented at that stage |
| Whether discretionary immunity deprived the Court of Claims of jurisdiction | Smith: OSU waived immunity by not raising it below and immunity does not bar contract claims here | OSU: its campus-closure decision was a discretionary policy decision entitling it to immunity | Appellate court: discretionary immunity is an affirmative defense (not jurisdictional); because OSU did not preserve it below, the court declined to address immunity on appeal (assignment H overruled) |
Key Cases Cited
- Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200 (1987) (discusses appellate review of class certification)
- Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67 (1998) (Civ.R. 23 prerequisites for class certification)
- Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329 (2015) (Civ.R. 23 requires rigorous, merits-informed analysis at certification)
- Cullen v. State Farm Mut. Auto Ins. Co., 137 Ohio St.3d 373 (2013) (rigorous review of expert proof at class-certification stage)
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (class certification is not a mere pleading standard)
- Rikos v. Proctor & Gamble Co., 799 F.3d 497 (6th Cir. 2015) (methodology must show classwide injury, not just theory)
- Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231 (2013) (Courts may examine merits where necessary to resolve Civ.R. 23 issues)
- Metro. Life Ins. Co. v. Triskett Illinois, Inc., 97 Ohio App.3d 228 (1994) (damages require proof of injury resulting from breach)