MEMORANDUM AND ORDER RE: MOTION FOR CLASS CERTIFICATION
I. INTRODUCTION
Plaintiffs bring this lawsuit on behalf of owners of homes in New England heated by radiant floor heating systems created and marketed by a now-defunct company called Heatway that include defendant Goodyear’s “Entran II” rubber hose. The complaint alleges that the hose is defective as designed — resulting in oxidation, hardening, cracks, and eventually leaks that cause property damage — and that Goodyear failed to adequately warn customers of known risks associated with its use.
The named plaintiffs have moved for certification of a plaintiff class consisting of:
all persons, corporations, trusts, associations, partnerships, and/or entities who presently own, or have owned, real property or improvements located in Massachusetts, New Hampshire, Maine, Vermont, Connecticut, and Rhode Island, in which hose known as “Entran II,” manufactured and sold by Defendant Goodyear Tire & Rubber Company (“Goodyear”), was or is used аs a conduit for fluid for hydronic heating.
While Goodyear formally contests each and every one of the Fed.R.Civ.P. 23 criteria for class certification, the parties’ essential dispute over this motion boils down to an assessment of whether differences in governing law among the New England states and/or individualized issues of causation and damages make a class action unworkable and inappropriate. Based on the limited record at this point in the litigation, hоwever, Goodyear’s arguments appear to be little more than hypothetical “straw men.” Notably, moreover, courts already have certified single state-class actions on the same facts in Colorado and New Mexico. As explained
II. FACTUAL ALLEGATIONS
A decision on class certification does not involve an examination of the merits of the underlying dispute, but rather serves the limited purpose of determining whether a class action is the most appropriate mode of adjudication. See Eisen v. Carlisle & Jacquelin,
In 1989, Goodyear and Heatway consummated a joint venture in which Goodyear would design and produce specialized rubber hose (which it called “Entran II”) for use in Heatway’s radiant floor heating systems.
Despite a commitment to Heatway that it would fashion a custom product to those specifications, Goodyear elected to use an “off the shelf’ rubber tubing for the interior liner of Entran II which previously had been used in truck water heater hoses. Internal memoranda reflect that some Goodyear employees expressed concern whether the hose selected could withstand years of exposure to heat and oxygen. Nevertheless, Goodyear began producing Entran II for Heatway at significant profit; for every dollar of Entran II hose that Heatway sold, it paid Goodyear 60 cents. Despite internal concerns and lack of test data, Goodyear assured Heatway that its product had been tested and was suitable for use in radiant heating systems.
Several years later, Heatway began receiving customer complaints about leaks. When Goodyear refused to support Heatway’s inquiry into the problem, Heatway retained Dr. C.M. Roland, a chemist at the Naval Research Laboratory in Washington, D.C., who has to date performed more than 600 hours of tests on Entran II hose. Among other things, he found that wall thickness began to degrade at every tested temperature after just 9 weeks and that hardening occurred under a variety of conditions. He also concluded that these effects were predictable and known by Goodyear at the time it designed Entran II, and that a variety of superior materials were available that Goodyear could have used. Goodyear’s own early test results support Dr. Roland’s findings.
After refusing to cooperate with Heatway in addressing leak complaints, Goodyear sued Heatway over a trade debt relating to nonpayment for shipments of new-generation Entran III hose. Heatway counterclaimed that Goodyear sold Entran II hose in a non-merchantable condition. Goodyear successfully defended, asserting that any problems with the hose resulted from improper design, installation, operation, and/or maintenance. Goodyear also waged a public campaign, posting on its website a “protocol” for “proper” installation, operation, and maintenance of Entran II heating systems, and blaming Heatway for failing to alert customers to that information. Heatway eventually filed for bankruptcy protection.
Subsequent expert analysis has shown that even in what Goodyear purports to be an “ideal” environment, the hose fails. In contrast, other types of hose in radiant heating systems throughout the country have not exhibited Entran II-type defects. Goodyear provided no warnings of these problems and concealed its knowledge of defects. Plaintiffs allege that leaking Entran II systems have caused property damage and that the mere fact' of having an Entran II system in a house tends to diminish the market value of the property and make it less attractive to prospective buyers.
III. LEGAL ANALYSIS
In order prevail on a motion for class certification, plaintiffs must show that thе
A. Rule 23(a) Threshold Criteria
To meet the threshold requirements of Rulе 23(a), plaintiffs must establish that the proposed class has the following qualities:
(1) numerosity (a class so large that “join-der of all members is impracticable”);
(2) commonality (“question of law or fact common to the class”);
(3) typicality (named parties’ claims or defenses “are typical ... of the class”); and
(4) adequacy of representation (representatives will “fairly and adequately protect the interests of the class”).
Amchem Products, Inc. v. Windsor,
1. Numerosity
The numerosity requirement hinges on the impracticability of joining all class members in the action. See Mack,
Goodyear objects that the specter of 2000 class members is unfounded because, for еxample, some of the hose sold in New England may have been shipped across the country. While this could theoretically be true, a court may infer numerosity where underlying facts so warrant. See In re New England Mut. Life Ins. Co. Sales Practices Litig.,
2. Commonality
The “commonality” requirement is satisfied if “common questions of law or fact exist” and “class members’ claims are not in conflict with one another.” Mack,
The plaintiffs here allege a common nucleus of facts and legal basis for their claims: Goodyear’s hose was defective and the company failed to warn customers of known problems. There does not appear to be any inherent conflict among clаss members’ claims.
The “typicality” requirement goes hand in hand with “commonality” and is focused on the congruence between particular claims of the named class representatives and the generalized claims that are common to the class. See Mack,
Goodyear argues that the named plaintiffs’ claims, which involve interior home heating applications, are not typical of consumers who have Entran II hose for snow-melting applications — e.g., exterior installations in driveways, sidewalks, and roofs.
4. Adequacy of Representation
The “adequacy of representation” element “requires that Plaintiff demonstrate that her interests will not conflict with those of the class members and that her counsel is qualified, experienced, and able to vigorously conduct the proposed litigation.” Mack,
B. Rule 23(b) Requirements
Plaintiffs specifically seek to certify the class under Rule 23(b)(3), which requires that 1) “questions of law or fact common to the members of the class predominate over any questions affecting only individual members” and that 2) “a class action is superior to other available means for the fair and efficient adjudiсation of the controversy.” Notably, “Rule 23(b)(3) is intended to be a less stringent requirement than Rule 23(b)(1) or (b)(2),” and is designed for the specific purpose of enabling consumers to pursue, inter alia, defective product claims. Smilow v. Southwestern Bell Mobile Systems, Inc.,
1. Predominance of Common Questions
While the “predominance” element is “far more demanding” than the “commonality” test of Rule 23(a), it does not require uniformity of claims across the entire class. Amchem,
Plaintiffs argue here that the core of their case will turn on common proof of Goodyear’s action and inaction with respect to the entire class: whether the hose was defective, whether Goodyear breached implied warranties, whether Goodyear should have foreseen the problems, and whether Goodyear engaged in deceptive trade practices. Plaintiffs expect that the lion’s share of litigation resources are likely to be invested in competing expert testimony on thе issue of defect.
Goodyear nevertheless focuses its class certification attack on this “predominance” prong, arguing that individual issues of law and fact will overwhelm common issues and make the class unworkable.
a. Possible Conflicts of Law
Goodyear argues generally that potential conflicts of law among the New England states would interfere with class adjudication. In an appendix to its brief, Goodyear lists a number of legal issues on which it expects conflicts to arise, inсluding:
• the test for determining whether a product is “unreasonably dangerous”;
• admissibility of “state of the art” evidence;
• statute of limitations;
• defense of industry practice/regulatory compliance;
• effects of comparative negligence;
• burden of proof on “misuse”
• requirement for plaintiff to prove alternative feasible design”
Goodyear then cites a number of class action cases where conflicts of law were found to “swamp” common issues.
Plaintiffs counter with their own state law compendium and argue that many of Goodyear’s purported “conflicts” are distinctions without a difference. For example, if the plaintiffs successfully prove that the hose hardens and cracks under normal or foreseeable conditions, a jury is likely to find it defective whether one formally uses a “risk utility” test or “consumer expectations” test.
Plaintiffs also assert that the defendant bears the burden to prove that conflicts of law predominate over common issues, while acknowledging that the law in this district is split. Compare Gorsey v. I.M. Simon & Co.,
Under the First Circuit’s standard approach to conflicts questions, the notion that defendants bear the burden to show that conflicts would defeat the class makes the most sense. Ordinarily, the court need not even undertake a choice-of-law inquiry unless an actual conflict is demonstrated. See Mil-lipore Corp. v. Travelers Indem. Corp.,
If there is a conflict, the forum’s lie., Massachusetts’) choice-of-law rules would govern. See Millipore,
On the existing record, I lack any basis to conclude that conflicts of law will present an insurmountable problem, particularly since only six jurisdictions are implicated by this case. To the extent they exist, I expect that they can be handled by, for example, carefully crafted jury instructions and verdict forms, etc.
b. Individual Causation and Comparative Fault
Goodyear also argues that proximate causation and comparative fault must be proven with respect to each class member, which will be unmanageable given varying circumstances of product installation and use which might have caused particular leaks in a particular instance. While Goodyear’s argument has some merit in principle, this objection would only implicate one narrow strand of the plaintiffs’ theory — that which is predicated on liability for actual property damage caused by leaking Entran II hоse. In other words, before a plaintiff could obtain recovery for property damage caused by leaking water, he or she would have to prove individual causation: the water came from the leaky Entran II hose, which leaked because of a defect and not for some other reason {e.g., because a carpenter accidentally drove a nail through it). Presumably, Goodyear also would be entitled to present individualized contributory and/or comparative negligence defenses.
It appears, however, that the plaintiffs’ primary theory of the case is rather different and more susceptible to class determination. Plaintiffs allege, and intend to prove by expert testimony, that Goodyear’s hose is defective and fails both under ordinary, foreseeable conditions and even “ideal” conditions as defined by Goodyear. Goodyear’s defense suggests, also based on expert tеstimony, that the product is not defective and that it only fails when misused in any number of ways. The Colorado court’s reasoning in rejecting a similar individual causation argument is persuasive:
This argument ignores the nature of the claims against Goodyear. Plaintiffs claim that the Entran II hose was defective for the purpose for which it was designed and manufactured when it left Goodyear’s manufacturing plant. Plaintiffs will by calling the same expert witnesses for each case, attempt to prove that it was this manufacturing defect, combined with foreseeable misuse, which caused the failure. Defendants will, by calling the same expert witnesses for each case, attempt to prove that there was no manufacturing defect and unforeseen misuse caused the failures. There is no reason for this issue to be rehashed twenty-five times, or even seven times. The jury verdict form may be carefully crafted to allow the jury to consider whether the Entran II hose was defective for its proposed use from the start and suffered foreseeable misuse, or instead leaked as a result of unforeseen misuse.
Loughridge v. Goodyear Tire & Rubber Co., C.A. No. 98-B-1302, Slip. Op. at 5 (D.Colo., Dec. 5, 2000).
Moreover, while the parties have not yet fully briefed the issue, plaintiffs suggest that there could be a class-wide determination of liability based on the res judicata effect of a jury verdict against Goodyear in the Colorado case, Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., Dist Ct., Arapahoe County, Colorado, C.A. No. 98-CV-2772. Whatever the merits of this argument, it seems beyond dispute that it would be most appropriate to resolve this type of legal issue with respect to the entire class so as not to risk contradictory decisions in individual plaintiff cases.
c. Individual Damages
Goodyear also argues that individualized damages determinations would thwart the class. However, the “individuation of
d. Conclusion
I cannot presently conclude that potential individual determinations would overwhelm the common issues in this case. As the First Circuit has admonished, “[c]lasses ... that are made up of consumers are especially likely to satisfy the predominance requirement.” Smilow,
2. Superiority of Class Mechanism
The final hurdle that plaintiffs must clear under Rule 23 is the requirement to demonstrate that “a class action is a fair and efficient method of adjudicating the controversy and would be superior to other methods.” Mack,
Even if, as plaintiffs insist, some individual adjudication of causation, damages, or other issues is required, the class action would remain a superior method to adjudicate those questions that are common. The mere fact of a need for individualized inquiries does not automatically preclude certification. See Mack,
Moreover, a class action would best serve the underlying purposes of Rule 23(b) by assuring aggrieved consumers their day in court. “The core purpose of Rule 23(b)(3) is to vindicate the claims of consumers and other groups of people whose individual claims would be too small to warrant litigation.” Smilow,
IV. CONCLUSION
On the record presently before me, class certification appears appropriate. If it later turns out that individual issues of law or fact interfere with effective adjudication, the parties can propose any of the procedural devices available — e.g., subclasses, specific jury questions, or even decertification — to address such problems. The plaintiffs’ Motion for Class Certification [document # 65] is therefore ALLOWED prоvisionally pursuant to Fed.R.Civ.P. 23(c)(1).
SO ORDERED.
Notes
. In such systems, heated fluid is circulated through hose affixed underneath or embedded within the floor.
. Goodyear argues that issues of individual causation lack commonality, but that is really an attack on the "predominance” prong under Rule 23(b)(3) and does not deny the mere existence of some common questions of fact and law in the case as framed by the plaintiffs in their complaint.
. Goodyear frames this argument as an objection to "adequacy of representation,” but it more logically fits under the "typicality” rubric.
. Even if it affected a more central strand of the case, the possibility of individual affirmative defense determinations would not necessarily undermine the "predominance” requirement. "Courts traditionally have been reluctant to deny class action status under Rule 23(b)(3) simply because affirmative defenses may be available against individual members.” Smilow,