The sole question is whether the common pleas court abused its discretion in denying certification of a class action pursuant to
A trial judge has broad discretion in determining whether a class action may be maintained and that determination will not be disturbed absent a showing of an abuse of discretion. (Disallowance upheld, Schmidt v. Avco Carp. [1984],
Furthermore, while a trial court’s determination concerning class certification is subject to appellate review on an abuse-of-discretion standard, due deference must be given to the trial court’s decision. A trial court which routinely handles case-management problems is in the best position to analyze the difficulties which can be anticipated in litigation of class actions. It is at the trial level that decisions as to class definition and the scope of questions to be treated as class issues should be made. A finding of abusе of discretion, particularly if the trial court has refused to certify, should be made cautiously. Even if the appellate court does find an abuse of discretion, it should not proceed to formulate the class or issue itself. The case should be remanded so that the trial court, which will have responsibility for conducting the trial оn a class basis, can provide guidance in the formation of the class and of the issues to be addressed on a class basis. Ojalvo, supra. The trial court, with the aid of counsel within the adversarial process, is best equipped to do this.
In denying the Markses’ request for class certification, the trial judge found that:
“* * * [C]lass certification is inapprоpriate as there are differing factual and legal issues as to prospective class members. Also, there is no commonality toward the personal injuries and property damages involved.”
“In order to maintain a class action, the requirements of Civ. R. 23(A) and 23(B) must be met.” Schmidt, supra, at 313,15 OBR at 441,473 N.E. 2d at 824 . Civ R. 23(A) sets forth four prerequisites which must be satisfied before a сlass action can be maintained and failure to satisfy any one of the four will result in denial of certification. Id. “In addition, it must also be shown [that] the action comes within the purview of at least one of three types of class actions described in Civ. R. 23(B).” Id.
The threshold requirements of Civ. R. 23(A) have been met.
Civ. R. 23(A)(1) requires plaintiffs to demonstrate that “the class is so numerous that joinder of all mеmbers is impracticable.” In construing this requirement, courts have not specified numerical limits, but subclasses have been certified with as few as twenty-three members. Basile v. Merrill, Lynch, Pierce, Fenner & Smith, Inc. (S.D. Ohio 1985),
Commonality
Civ. R. 23(A)(2) requires the presence of “questions of law or fact common to the class.” Courts generally have given this requirement a permissive application. 7A Wright, Miller & Kane, Federal Practice & Procedure (2 Ed. 1986) 169-228, Section 1763. Furthermore, courts are accorded broad discretion in making this determination. See Vinci, supra. It is important to note that this provision does not demand that all the questions of law or fact raised in the dispute be common to all the parties. 3B Moore’s Federal Practice (1987) 23-159, Paragraph 23.06-1; see, e.g., Like v. Carter (C.A. 8, 1971),
In Miles v. N.J. Motors (1972),
Typicality
Under Civ. R. 23(A)(3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class. The purpose of this provision is to protect absent class members. 3B Moore's Federal Practice, supra, at 23-178, Paragraph 23.06-2. The requirement is met where there is no express conflict betwеen the representative party and the class. Caruso v. Celsius Insulation Resources, Inc. (M.D. Pa. 1984),
Finally, Civ. R. 23(A)(4) requires that the representative parties must “fairly and adequately protect the interests of the class.” Federal courts have rеferred to this requirement as being of crucial importance in terms of ensuring due process to members of the proposed class who will not have their individual day in court. Augusta v. Marshall Motor Co. (N.D. Ohio 1977),
Once it has been ascertained that the threshold requirements have been met, it is necessary to review the three types of class actions described in Civ. R. 23(B) to determine if this aсtion can be maintained under one of those provisions. Plaintiffs here sought to have the class certified under Civ. R. 23(B)(1), (B)(2), and (B)(3).
Civ. R. 23(B)(1)(b) permits class certification if prosecution of individual actions would create a risk of adjudication which would either be dispositive of the interests of others not party to the suit or would substantially impair or imрede their ability to protect their interests. This section has been interpreted as protection for later litigants who may be deprived of recovery due to the success of earlier litigants. The scenario painted by plaintiffs is one in which potential claims could exceed $15 million; it is asserted that early litigants would deplete the fund available to pay successful claimants. Plaintiffs failed, however, to produce evidence of the likely insolvency of the defendants. Abed v. A.H. Robins Co. (C.A. 9,1982),
Civ. R. 23(B)(2) permits class certification when:
“[T]he party opposing the class has acted or refused to act on grounds generally аpplicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole * *
Plaintiffs argue that a class action was maintainable under this provision to provide for future diagnostic testing for every class member. Courts have rulеd, however, that this provision is inapplicable where the primary relief requested is damages. Eisen v. Carlisle & Jacquelin (C.A. 2, 1968),
Civ. R. 23(B)(3) provides that a class action may be maintained if two requirements are met: (1) that questions of law or fact common to members of the clаss predominate over individual questions, and (2) that a class action is superior to other methods of resolving the controversy. This court discussed these two requirements in Schmidt, supra. For common questions of law or fact to predominate, it is not sufficient that such questions merely exist; rather, they must represent a significant aspect of the case. Furthermore, they must be capable of resolution for all members in a single adjudication. Id. at 313, 15 OBR at 442,
The Advisory Committee Notes to the comparable Fed. R. Civ. P. 23(b)(3) provision state that a “mass accident” causing injuries to numerous persons is generally not appropriate for class action treatment because “significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in differеnt ways.” The notes express the fear that such an action conducted as a class action “would degenerate in practice into multiple lawsuits separately tried.” A number of cases denying class certification point to this statement in support of their reluctance to apply class action proсedures to mass torts.
The Staff Notes to the Ohio rule, however, suggest subdivision (B)(3) of Rule 23 may be appropriate for maintenance of class actions in mass accident situations. A fact pattern involving an airplane crash, for example, posing the same liability questions for each passenger even though damages wоuld differ, might present a suitable candidate for class action. Repetitious adjudication of liability, utilizing the same evidence over and over, could be avoided, although separate suits on individual damages would still be necessary.
Subdivision (C)(4) of Rule 23 enables courts to refine the issues even further. Courts are beginning to explore thе options made available to them through subdivision (C)(4) in the mass tort area. See, e.g., School Dist. of Lancaster, supra. It is necessary at this point to discuss the import of Civ. R. 23(C)(4) in a court’s consideration of a request for class certification.
Subdivision (C)(4)(a) of the rule authorizes the court to allow a class action to be maintained with respect to particular issuеs. It was upon this provision that the appellate court here based its reversal, finding that the trial court had abused its discretion in failing to consider the possibility of limiting the class issues. The appellate court then determined that two issues could be procedurally severed and tried separately as a class action.
Civ. R. 23(C)(4) was designed to give trial courts maximum flexibility in handling class actions. It enables courts to restructure complex cases to meet the other requirements for maintaining a class action. See, generally, 7B Wright, Miller & Kane, supra, at 268-285, Section 1790. Thus, the advantages and economies of adjudicating issues that are common to the entire class on a representative basis can be secured even though other issues may have to be litigated separately by individual class members. Id. at 271. The effect of applying subdivision (C)(4) may be to make the common issues in the recast class action predominate for purposes of Civ. R. 23(B)(3). 7A Wright, Miller & Kane, supra, at 546, Section 1778.
The relationship between the federal Rule 23(c)(4) provision and the predominance requirement of federal Rule 23(b) was disсussed in In re Tetracycline Cases (W.D. Mo. 1985),
The determination of whether or not to certify particular issues pursuant to Civ. R. 23(C)(4) is still discretionary with the court. A court may find the noncommon issues are inextricably entangled with the common issues (Caruso, supra), or that the noncommon issues are too unwieldy or predominant to be handled adequately on a class action basis (Eisen, supra). The Caruso case, which involved urea formaldehyde foam insulation (“UFFI”), is particularly instructive.
The facts of Caruso are very similar to the case at bar. Class certification was sought for both property damage and personal injuries as a result of the emission of toxic formaldehyde gas from the insulation. The court rejected plaintiff’s request to sever сertain issues pursuant to federal Rule 23(c)(4), noting that “* * *[e]ven if the harmful nature of defendant’s product were shown, a multitude of separate trials would be required.” Caruso, supra, at 538.
Some of the same problems exist here. The insulation is mixed on the jobsite. Two of the three components have a limited shelf life and must be stored under specified temperature conditions. They must be mixed in carefully prescribed ratios, at precise pressure and temperature levels. Ventilation in the structure to be insulated must be good. Heat and moisture could affect the product. Structural defects may cause the insulation to deteriorate because of exposure to high tempеrature and humidity. As was noted in the Caruso case, the product that is the source of the litigation here may not be a single, readily identifiable product. Consequently, a class determination that a particular substance emits formaldehyde may not advance the overall litigation, because the substances involved in individual cases will diffеr.
A class determination of what was represented by defendants through advertising and brochures as to the presence or absence of formaldehyde in the insulation is similarly unhelpful. The plaintiff here acknowledged that his decision was based on a salesman’s oral representations, not on the printed materials he was givеn. Regardless of what was printed in advertising or brochures, an individual determination would have to be made in every case as to what the purchaser read or was told concerning the content of the product, as well as the individual's reliance on those representations when making the decision to buy. There is nothing to be gained by ascertaining on a class basis what the advertising and brochures said.
Thus it can be seen that neither of the two issues the court of appeals identified as appropriate for class treatment represents a significant aspect of the case. Therefore, they do not meet the Civ. R. 23(B)(3) predominance requirement set forth by this court in Schmidt, supra, at 313, 15 OBR at 441,
The judgment of the court of appeals is reversed and the judgment of the trial court is reinstated.
Judgment accordingly.