*3 GARZA, M. Before EMILIO DENNIS, Circuit BENAVIDES Judges.
BENAVIDES, Judge: Circuit (“Treasure Casino, LLC interlocutory or- Chest”) an appeals under certifying der 23(b)(3) a Procedure Rule of Civil Federal Trea- injured consisting of plaintiff dis- affirm We employees. sure Chest certification. trict court’s I. BACKGROUND will be tried together in an initial trial phase. Those common issues include The appellees, Mullen, Dennis Sheila whether the employees the Casino are Bachemin, (collec- and Margaret Phipps seamen within the meaning the Jones tively, the Plaintiffs”), “Named are former Act, whether the Casino ais vessel within employees of the Treasure Chest Ca- M/V the meaning of Act, the Jones whether the (the “Casino”), sino floating casino owned Casino was rendered unseaworthy by the operated Kenner, out of Louisiana by air quality aboard, and whether Treasure appellant Treasure Chest. Mullen was an Chest was negligent in relation to the Ca- boss, assistant pit Bachemin dealer, was a *4 sino’s ventilation system. If the class pre- Phipps and employed was aas slot-floor vails on the common liability in person and dealer. one, phase the issues affecting only indi- Each Named Plaintiff has suffered res- vidual class members will be tried in a piratory illness allegedly caused by the phase second in waves of approximately defective Casino’s improperly main- and/or five class at a members time. These limit- tained air-conditioning and ventilating sys- ed issues causation, include damages, and tem. Each diagnosed with asthma comparative negligence. and bronchitis employed while aboard the Casino. Mullen Treasure Bachemin, sought and Chest to appeal while Casino, order, aboard the certification suffered respiratory and the district at- tacks requiring certified hospitalization. the issue for interlocutory Kathleen McNamara, appeal 1292(b). under § 28 U.S.C. Named Plaintiffs’ physi- We cian, granted in a deposition testified permission that Treasure Chest many as to ap- peal. as half of the 300 employees Casino that
she had treated suffered from similar res- problems. piratory She attributed the II. DISCUSSION Named Plaintiffs’ and other crew mem- bers’ maladies to extremely smoky A condi- class may be certified under Rule in tions the Casino. 23(b)(3) only if it meets the four prerequi 23(a) sites found in Rule and two addi 1996, In January the Named Plaintiffs requirements tional 23(b)(3). found in Rule filed against suit Chest, making 23(a) The four prerequisites include Act, Jones unseaworthiness, and mainte- nance and cure claims. They sought Rule (1) (a numerosity large so that 23 certification of a class consisting of joinder of all impracticable); members is (2)
all of members the crew of the (questions commonality or law fact M/V Treasure Chest class); (3) Casino who common have been typicality (named stricken with occupational parties’ respiratory claims or defenses are caused by illness typical class); (4) exacerbated of the and adequacy of defective system representation in place (representatives will fair- aboard vessel. ly and adequately protect the interests class). of the The parties pre-certification conducted dis- covery that included deposing Named Products, Windsor, Amchem Inc. v. Plaintiffs, McNamara, Dr. and two other 591, 2231, U.S. 2245, 138 117 S.Ct. L.Ed.2d physicians. The parties then briefed the (1997). 23(b) The two requirements court, which arguments heard in are “predominance” and “superiority”: July 1997. questions “Common must ‘predominate August On ’the district court over any questions affecting only individu certified proposed class under members’; Rule al resolution must be 23(b)(3). Under the court’s plan, the ‘superior lia- to other available methods for bility issues common to all class members the fair and adjudication efficient of ” that It asserts three reasons. (quot- court’s at 2246 117 S.Ct. Id. controversy.’ class members that court’s claim 23(b)(3)). Fed.R.Civ.P.
ing un- dispersed was geographically would be appeal argues on They reference by evidence. supported any finding court erred the district that the “plaintiff own comment the court’s satisfied.1 requirements Rule 23 of the evidence any specific introduced has not se requirements evaluating six Before class members potential are there the district riatim, we note area.” out moved that have certifying great maintains Montel a class action. managing of discretion no abuse findWe (5th 1341, 1351 Meese, 803 F.2d v. ongo numerosity. court’s a district reverse will We in a members the number Although only upon certify a decision class is determinative proposed discre its abused the court showing Zeid see impracticable, joinder whether Industries, Raymark tion, see Jenkins F.2d & Ray v. J. McDermott man Cir.1986), or that 468, 471-72 Cir.1981), the size 1030, 1038 *5 standards legal incorrect applied it to 150 members —is this case—100 class in v. J.C. decision, Forbush see reaching its generally that satisfies the range within (5th Co., 1104-05 F.2d 994 Penney 1 New- numerosity requirement. the Cir.1993). (3d 3.05, § at 3-25 Actions berg on Class ed.1992) any that class consist (suggesting Numerosity A. “should forty members of more than ing class is that “the found imprac is joinder that presumption raise a is of all members joinder numerous so Georgia-Pacific ticable”); Boykin cf. 23(a)(1), re Fed.R.Civ.P. impracticable,” Cir.1983) F.2d 1386 706 Corp., First, the class three factors. ferring to requirement numerosity (finding 100 and of between likely consist would mem with 20 by class not be met would Second, tran owing the members. class with by a was met bers but gam in the employment nature of sient members). of business, some likely that it was bling factors Furthermore, additional geo were class members putative, support its by the mentioned for and unavailable dispersed graphically Zeidman, 651 numerosity. See of Third, class members putative joinder. factors (discussing relevant at might be Casino employed still geographical “the example, for including, fear of individually for to file reluctant class, with which ease of the dispersion Chest retaliation. workplace identified, the na- may be members class of the only the second challenges by the class defined membership in the was argues appeal that on Chest 1. Treasure class members’ require- of the improper reduction an additional 23 is implicit in Rule objec- benefits, issue in capable of ultimate was also the any must be which ment certified. can be it found that before We identification Id. 1105. tive It contends at case. being and, of a member that because if argument was "meritless defendant's upon contingent ulti- case is class in this just of preclude certification would accepted, i.e., causation, whether of mate alleging injury persons any about exacer- "caused or was illness class member’s persons are action. These particular system," by the defective bated complaint, by this common linked being forced prejudiced is Chest prevail on may fail some possibility may not end who against claimants to defend not defeat claims will their individual same class. This being members up Here, the class membership.” Id. because by this Court already rejected argument was complaint, the by a common similarly linked Penney F.2d 1101 v. J.C. Forbush with reference defined class is fact that There, a defen- considered we pre- does of causation an ultimate issue pension bene- that a class dant's contention ” certification. vent because "hopelessly 'circular' ficiaries action, ture of the and the size of each C. Typicality claim”). Notwithstanding the The district found the “the claims or evidence, lack of any direct parties defenses are typical of the court reasonably inferred from the nature claims or class,” defenses of the Fed. of the putative class employ- members’ 23(a)(3), R.Civ.P. because the Named ment that some them would be geo- Plaintiffs and the members, by defi- graphically dispersed. It also reasonably nition, all allege to have occupa- suffered presumed potential that those class mem- tion-related respiratory illness. Treasure bers still employed by Treasure Chest contends that the Named Plaintiffs’ might be claims are unwilling typical to sue individually because a wide join array of a suit claims for fear of could fall retaliation under at their “respiratory illness” jobs. category. upon considerations, Based those it was within the district court’s discretion to We find no abuse in the district joinder find that of all 100 to 150 class court’s finding of typicality. Like com members would be impracticable. monality, the test typicality is not de
manding. It “focuses the similarity between the named legal B.Commonality remedial theories and the theories of those The district court found that “there they whom purport to represent.” Lightbo questions are of law or fact common to the urn, 118 F.3d at case, 426. In this class,” 23(a)(2), Fed.R.Civ.P. on the basis Named Plaintiffs’ and the proposed class *6 of the class members’ identical of theories members’ legal and remedial ap theories liability, their common claims under the pear be exactly the same. The class Act, Jones and their uniform allegations of complaint indicates they prem will all suffering injury from second-hand smoke. liability ise for the Casino’s defective air Treasure Chest challenges the district system under the Jones Act plaintiffs’ assertion that all claims and the doctrine of Any seaworthiness. relate to second-hand variety smoke. in the illnesses the Plain Named
tiffs and the class members will suffered The not district court legal did affect their or theories, not abuse remedial its and thus discretion in does defeat typicality. commonality. The test for commonality is not demanding and D. Adequacy Representation of
is met “where there is issue, at least one the resolution of which will affect all or a The district court stated that “the significant number putative representative parties fairly will and ade members.” Lightbourn quately protect County class,” v. the El interests of the Paso, 23(a)(4), Fed.R.Civ.P. F.3d because Named the case, Plaintiffs’ interests this are identical putative to the in class members will terests of proposed assert and their claims negligence for under attorneys have experience extensive liti Jones Act and for operating an unseawor gating class actions and Jones Act cases. thy vessel. The common issues pertaining argues Chest on the appeal that to these liability i.e., theories of the class — the district court’s finding was erroneous members’ status as Jones seamen, Act because Named Plaintiffs and the class negligence Chest, of Treasure and the un members have suffered from varied ill seaworthiness indepen Casino—-are nesses and have varying susceptibilities to dently sufficient to establish commonality. respiratory ailments. It is therefore irrelevant whether the class members uniformly allege damages from We find no abuse of in second-hand smoke. the district court’s finding. Differences there lengthy, was not inquiry minance mem- and class plaintiffs named
between its limited the court indication no inade- plaintiffs the named render bers instead counting issues inquiry to if those differ- only representatives quate in the Second, explicit them. weighing named between create conflicts ences finding that is a decision district court’s members’ and the class interests that will be issue unique ais causation Indus- Raymark Jenkins interests. second-phase Cir.1986) plan’s trial in the resolved 468, 472 Inc., tries, trials. individual have named (considering whether the outcome stake “an insufficient pre- district court’s examining the Even unnamed to the antagonistic interests we find closely, more analysis dominance repre- evaluating adequate case, members” in this common The no abuse. differences requirement). seaworthiness, sentation and especially create may Chest by Treasure described pivotal. but only significant are Named ways that in the variances parties require the undoubtedly will They prove will members and class Plaintiffs regarding evidence extensive produce member A class damages. and causation system, as well air ventilation the Casino’s may smoked, example, never who has Treasure Chest’s concerning testimony as difficulty proving less have to, Casino of, response knowledge her caused the Casino inside conditions com- problems respiratory employees’ Bachemin, has a who than will asthma jury will have phase-one plaints. The may claim smoking and whose history of determining whether task difficult contributory to a defense subject be resulted the Casino aboard quality air however, difference, Such negligence. of Treasure breach negligent in- of their alignment not affect does or rendered duty employees to its Chest’s Nothing indicates terests. If unseaworthy. the Casino represented inadequately will be members alone, those two issues prevails counsel. and their Plaintiffs the Named in the case. they will prevail *7 involve Moreover, does not this case E. Predominance in the that have issues of individuated type the district no abuse in seeWe lack predominance to find past led courts law questions “the of. finding that court’s Products, example, in Amchem For ing. to the members common or fact 591, Windsor, 117 S.Ct. 521 U.S. Inc. af any questions over predominate (1997), Supreme 2231, 689 138 L.Ed.2d Fed. only members.” fecting individual did issues that common found Court 23(b)(3). ‘predomi “In order R.Civ.P. of the the members where predominate a must constitute nate,’ common issues exposed to asbestos- were plaintiff class cases.” the individual part of significant sources from different products containing Jenkins, 472. The district F.2d at 782 of the periods, time some over different com to be tried issues held that the while asymptomatic were class members status, status, negli vessel monly illnesses, and the developed —seamen others had signifi and seaworthiness —were gence, variety of were from class members the individual relation to cant in a multi the application states requiring contributory neg causation, damages, and id. legal standards. of different tude appeal argues on ligence. Am Georgine v. (citing at 2250 117 S.Ct. abused its district court that the (3d 610, Inc., 626 Products, 83 F.3d chem against the common failing weigh by Amer Cir.1996)). Similarly, Castano v. finding by improperly issues and individual (5th Cir. F.3d 734 ican Tobacco issue. to be common causation putative that a 1996), found this Court not meet did smokers class of addicted are without arguments Chest’s there because requirement predominance predo- First, although the merit. were complex choice-of-law issues and the We find no merit in Treasure Chest’s case involved novel addiction-as-injury argument. First, Treasure Chest over- claims with no track record from which a importance states the Plain- Named court could determine which issues were conjecture tiffs’ regarding their own ill- “significant.” Here, See id. at 741-45. by that, nesses. It is true in addition to contrast, putative class members are making second-hand smoke complaints, all symptomatic by definition and claim Dennis Mullen has complained about the injury from the same defective ventilation temperature Casino, aboard the Sheila system over the same general period Bachemin has described one incident time. all Because of the claims are under paint where fumes on the Casino “kicked law, federal there are no individual choice- in” asthma, her and Margaret Phipps has And, of-law issues. because negligence stated that her asthma might have been and doctrine-of-seaworthiness claims are by caused dust on the germs air vents or bases liability, time-tested radios used by multiple casino em- reasonably could evaluate signifi- ployees. witnesses, layAs however, the cance of the common issues without first Named opinions Plaintiffs’ about possi- establishing a track record. ble causes of their own respiratory condi- tions are of negligible evidentiary weight F. Superiority probably would not be admissible at We also find no abuse of discre trial. See Fed.R.Evid. (limiting admis- tion the district court’s that “a sibility of nonexpert opinion testimony); superior action is to other available USA, Doddy Inc., v. Oxy 101 F.3d methods for the fair and adjudica efficient (5th Cir.1996) (“[A] person may testify as a tion of the controversy.” Fed.R.Civ.P. lay witness only if opinions his or infer- 23(b)(3). The district court based supe its ences do require any specialized riority finding on the fact that knowledge and could be reached any litigation in this case present would not ordinary person.”); Henry Ocean, v. A/S degree of managerial complexities that (2d Cir.1975) (finding prompted this Court decertify the puta the plaintiff in a Jones Act suit was tive class in Castaño. Specifically, the dis properly prevented from testifying to his trict court mentioned the lack of any com opinion that persistent his colds and skin plex choice-of-law or problems, Erie rash had been caused an accident that the class would consist of only hun overboard). which he was knocked dreds, millions, instead of of members. *8 medical experts already deposed in this plan, bifurcated-trial found, the court case have unwaveringly cited excessive “promote would judicial economy and second-hand smoke as likely the most Ca- wasteful, avoid the duplicative litigation sino-related factor to have exacerbated or which would inevitably if result these cases caused the putative respi- class members’ were tried individually.” Treasure Chest ratory problems. It likely is thus that argues the the district court abused its trial will focus on excessive second-hand by failing adequately to consider as smoke the how a both effect of on the trial the defective merits would be con system and ducted. It the cause of contends the that because the putative Named Plaintiffs class members’ prob- describe respiratory dif somewhat ferent lems. ailments, causes their phase- a judgment
one of negligence or unseawor Furthermore, thiness solely related to if tobacco smoke even would inadequate be insofar does claim trial as it would at that the Casino’s venti preclude plaintiffs system from for ail lation recovering was in defective relation to ments that were by smoke, caused sources other more than tobacco we are confident than tobacco smoke in phase-two the trials. the district court can ably manage
628 action class a bifurcated certification Our precedent action. aas this case the “state producers’ asbestos inju- to liability where party’s negligent a limits product identifica well as as condition art defense” by same the are caused ries that defectiveness, negligence, tion, See negligent. product party that rendered be resolved States, damages F.2d would punitive 955 and v. United Gavagan damages, causation, eas- can actual (5th The court commonly and 1020-21 instructing tried individ would fault precedent comparative by this and ily abide Sky verdicts Vessel special v. Motor jury ually); to answer Hernandez negligent, (S.D.Fla.1973), aff'd, was Chest ward, F.R.D. whether each unseaworthy, Cir.1975) as (unpub Casino was or the 1278-79 smoke, i.e., tobacco action agent, lished) alleged causal (certifying bifurcated fumes, cetera. et mites, fungi, paint fed dust who were passengers of 350 behalf on inju- limit properly ship can then The court cruise aboard food contaminated juries could phase-two which ries for tried common would be negligence where Thus, if the liable. Chest find Treasure be damages would causation ly and that Treasure to find jury were phase-one individually). tried smoke as to tobacco negligent Chest a con Castano, expressed this Court In fumes, any mem- paint toas but not jury consider one having cern that by phase- found injuries were ber whose and another consider conduct defendant’s fumes by paint caused jury be two could comparative though Even to recover. unable would be problems. Amendment Seventh create would verdicts special rendering multiple In (citing Castano, at 750-51 F.3d jury phase-one task for the complicate Inc., F.3d Rorer re Rhone-Poulenc in abuse court, see no would we and the Cir.1995)). not This does 1293, 1303 process finding such a court’s the district of the our view change individu- conducting duplicative superior did finding. Treasure superiority al trials. nor to the district court this raise issue agree with alsoWe areWe appeal. argued it been has concerns superiority none abused to find reluctant requires in Castano by our decision raised an is failing to consider its discretion There, many of the result. a different parties. by the raised was not sue that stemmed problems manageability membership, the million-person ease, find the any we would In issues, ad the novel choice-of-law complex parties’ Seventh upon infringing risk action, cause of diction-as-injury case. this significant rights Amendment As subclassing requirements. extensive prohibit does not Amendment The Seventh discussed, problems none of those already “ ‘the long as the as of trials bifurcation fact, unlike this case. exist sep between not divide issues judge [does] in Casta monster” feared “Frankenstein’s same way that the such arate trials is akin n. this class no, at 745 ” *9 juries.’ by different is reexamined issue Court actions this bifurcated to other Industries, Inc., 151 Raymark v. Cimino v. Oil Shell See Watson approved. has Cir.1998) (5th (quoting 297, n. 50 320 F.3d Cir.1992) (5th (finding Co., F.2d 1014 979 1303); Ala Rhone-Poulenc, see F.3d at certifica district court’s in the no abuse Inc., Body Bird v. Blue bama arising action a bifurcated tion of Castano, 309, 318 liabil refinery explosion where an oil allowing second that concerned we were re would be damages ity punitive and comparative plaintiffs’ to consider causation, jury injury, commonly and solved jury to recon invite that would in would be resolved damages and actual concerning findings jury’s first sider the Jenkins, (finding F.2d 468 dividually); that We believe conduct. defendants’ in no abuse such a risk has been by avoided here
leaving all issues of causation for the Mullen, I Plaintiffs Dennis Sheila Bache- phase-two jury. jury When a considers min, and Margaret Phipps are crew mem- comparative negligence of a plaintiff, bers of the Treasure Chest M/V Casino “the focus is upon causation. It is inevit- (“Casino”), a vessel owned and operated by that a comparison able of the conduct of Treasure Kenner, Louisiana. plaintiffs They ultimately allege defendants be in they suffered respiratory Timco, as a Inc., terms of illnesses causation.” result Lewis inadequate ventila- tion aboard vessel. Cir.1983) (en According court, the plaintiffs attribute their banc); see id. (permitting the use of com- illnesses to second-hand smoke aboard the parative negligence in strict liability However, Casino. the record indicates claims). Thus, in considering comparative plaintiffs allege other causes as negligence, phase-two jury would not well. deposition, In her Phipps complains reconsidering be jury’s first findings of of dust on air vents germs on the whether Treasure Chest’s conduct was radios, employee and does not attribute negligent or the Casino unseaworthy, but her illness to Mullen, second-hand smoke. only degree to which those conditions who complain does of excessive smoke were the sole or contributing cause of the Casino, aboard the also states in depo- his injury. class member’s Because the first sition that his may illness have stemmed jury will not considering any be issues of from the temperature Casino’s being too causation, no Seventh implica- Amendment hot or too cold. Bachemin complains of tions affect our review of the district smoke, second-hand but she testifies about court’s superiority finding. excessive paint fumes as well.
These Chest, sued Treasure III. CONCLUSION behalf of and persons themselves similarly situated, for negligence under the Jones reasons, For the foregoing we find that Act, 46 U.S.C.App. § for operating an did not abuse its discre- unseaworthy vessel, and for failing pro- 23(b)(3) tion certifying under Rule a vide Maintenance They and Cure. moved class of all employees Casino stricken with to certify a action under Rule occupation-related respiratory illnesses. 23(b)(3).1 The district court certified a AFFIRMED. class consisting of “all members
crew of the Treasure Chest Casino M/V who have been stricken with occupational GARZA, EMILIO M. Circuit Judge, respiratory illness caused or exacerbat- dissenting: ed ventilation system defective Casino, (“Trea- Treasure Chest L.L.C. place aboard the vessel.” Treasure Chest Chest”) sure appeals the district court’s now appeals. order granting class certification under II
Federal Rule of 23(b)(3). Civil Procedure majority affirms, finding that the dis- 23(a) Federal Rule of Civil Procedure trict court did not abuse its discretion in sets forth four prerequisites for all class concluding class satis- actions: the requirements
fies (1) Rule 23. I (a re- numerosity large so *10 spectfully dissent. joinder all of impracticable); members is plaintiffs 1. The requested that the district it for reply raised the time first their brief. 23(b)(1). certify court a class under Rule The appeal, plaintiffs On the do not raise Rule district court declined to address Rule 23(b)(1) as a basis class for certification. 23(b)(1), grounds on plaintiffs the that the It harm. members protect or fact lawof
(2) commonality (questions dam- contributory negligence, (3) class); classified typicality the to common issues. individual as and causation ages, are defenses or (named claims parties’ that a class ruled court Finally, the district (4) of adequacy class); and of the typical available to other superior was action will fair- (representatives representation class proposed the adjudicating of methods interests the protect adequately and ly ,so, the district doing claims. members’ class). the of trial proposed plaintiffs’ on the relied 591, Windsor, 521 U.S. Prods. v. Amchem action “The class provided: which plan, 2231, 2245, 138 L.Ed.2d 613, 117 S.Ct. the in which phase initial an would include omitted). Once (1997) marks (quotation plaintiffs all common to issues liability 23(a) met, party a are Rule of criteria the plaintiffs Later if together. tried would be appro treatment that class show must liability, unique the prevailed categories the three one of priate under (and if neces- causation damages as such 614, 23(b). id. at See in Rule enumerated approxi- in waves of be tried sary), would 23(b)(3), under Rule 2245. at 117 S.Ct. The dis- at a time.” mately five certified, demands class was which this approach “this that court reasoned trict common or of law fact questions “that the and avoid economy judicial promote will predominate the of to the members which wasteful, litigation duplicative the only individu affecting any questions over were if these cases inevitably result would action is members, that and al individually.” tried for methods to other available superior the con of adjudication fair efficient and Ill 23(b)(3). These P. R. Crv. troversy.” Fed. wide court “has A district to as commonly referred are requirements certify proposed deciding whether to Am superiority. and predominance Paso, El County Lightbourn class.” 2246. at ehem, 117 S.Ct. at of 521 U.S. may We which “a 23(b)(3) for to cases applies Rule dis of only for abuse decision reverse its would achieve economies class action contends id. cretion. See uni promote and time, effort, expense, and its discretion abused that the district similarly persons as to formity of decision satisfied proposed procedural sacrificing situated, without Chest, to According 23. Rule undesir about other bringing fairness numerosity, com plaintiffs’ lacks omitted). Id. (quotations able results.” rep adequacy and monality, typicality, court concluded The Rule satisfy resentation, and fails 23(a)’s re- Rule class satisfied re 23(b)(3)’s superiority predominance commonality, numerosity, quirements these majority examines quirements. representation. adequacy typicality, and concludes requirements six lawof common issues It also found its discretion. not abuse did district court is- over individual predominated and fact however, circuit, law of our Under com- as court identified sues. The in find its discretion abused district court (1) employees Casino whether mon issues “superior that a class action ing meaning of the are within seamen fair and methods other available (2) is a Act, whether Casino Jones controversy.” adjudication efficient meaning of the Jones vessel within 23(b)(3).2 P. Fed. R. Civ. (3) unseawor- Act, Casino was whether “re- superiority into inquiry A court’s (4) ventila- the Casino’s whether thy, and relevant understanding of the an quires suited unreasonably system was tion i.e., nu- opinion, majority's in. addressed plaintiffs’ class that the I believe 2. Because adequacy commonality, typicality, merosity, of Rule requirement superiority fails the predominance. representation, and 23(b)(3), other issues reach the I would not
631
claims, defenses, facts, and substantive law allowed a district court to try the issue of
presented in
Citgo
the case.” Allison v.
negligence separately from the issue of
402,
(5th
Petroleum Corp., 151 F.3d
419
proximate cause. See Watson v. Shell Oil
Cir.1998);
23(b)(3)
see
R.
P.
Fed.
Civ.
Co.,
(5th
979
Cir.1992);3
F.2d 1014
Jen
(requiring that in assessing whether class
Raymark Industries,
kins v.
Inc., 782 F.2d
superior,
treatment is
a court must consid
(5th Cir.1986);
468
Hernandez v. Motor
er “the
likely
difficulties
to be encountered
Skyward,
(5th
Vessel
In upholding
omitted)
F.2d at
(emphasis
court’s bifur-
(quoting 3
Gray
approach
cated
issues,
655).
HaRper,
to these two
18.2,
§
at
James &
majority
cases,
relies on
words,
three
in which we
other
a defendant is
negli-
liable for
opinion
3. Our
longer
in Watson is
binding
no
clude
They argue
class certification.
precedent on our circuit. As we have ex
magistrate judge’s ruling prevented them
plained: “While
hearing en
awaiting
was
[Wafsow]
re
discovering
precise
nature of the
banc,
According
it settled.
to the
system.
defects
magis-
The
Internal Operating
accompanying
Procedure
discovery ruling
trate's
before
us on
35,
5th Cir. R.
granting
effect of
a rehear
appeal. Even if it could be shown that dis-
ing en banc
previous
is to vacate the
opinion
insufficient,
covery was
it
does
follow that
judgment
stay
the Court and to
approve
we must
a class that fails to meet the
Castano,
mandate.”
juries, whereas the negligence WILLIAMS, Casino’s Sir Plaintiff-Appellant, will be considered jury. closely These two issues are too related to allow bifurcated treatment. “Comparative BRAMER; Jay Michael L. Angelino; C. definition, negligence, by requires com City Dept., of Dallas Police
parison between the
defendant’s
Defendants-Appellees.
Castano,
plaintiffs conduct.”
negligent conduct of the Casino with the
negligent conduct plaintiff, of each the in juries
dividual may “impermissibly recon jury’s
sider[ ]” determination as
to the negligence, Casino’s in violation of Id.;
the Seventh Amendment. see also
Rhone-Poulenc,
ingly, hardly “class treatment can be said superior
to be to adjudication.” individual
Castano,
bifurcated action Rule failed
23(b)(3)’s superiority requirement where planned district court try the issues
of negligence comparative separate juries).
IV court in this case failed to
consider “the likely difficulties be en management
countered a class 23(b)(3).
action.” Fed. R. Crv.P. Specifi
cally, it did not disparate address how the alleged
hazards by each plaintiff impact
whether bifurcated class treatment is feas
ible. This failure to adequately examine
“how a alleged trial on the causes of action would tried” be constitutes an abuse of Hughey, William Todd Law Offices and requires that we vacate the Dallas, TX, William T. Hughey, for Plain- Castano, class certification order. tiff-Appellant. at 752. Accordingly, I dissent.
Tafia R. Randolph, Mark E. Goldstuek- er, Dallas, TX, for Defendants-Appellees.