Monique Russell v. Educational Commission for For

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 20-2128

__________

MONIQUE RUSSELL; JASMINE RIGGINS;

ELSA M. POWELL; and DESIRE EVANS,

v.

EDUCATIONAL COMMISSION FOR FOREIGN

MEDICAL GRADUATES,

Appellant

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2:18-cv-05629)

District Judge: Honorable Joshua D. Wolson

__________

Argued February 11, 2021

Before: RESTREPO, BIBAS, and PORTER, Circuit Judges

(Filed: September 24, 2021)

__________

William R. Peterson [ARGUED]

Morgan, Lewis & Bockius

1000 Louisiana Street, Suite 4000

Houston, TX 77002

Matthew D. Klayman

Brian W. Shaffer

Morgan Lewis & Bockius

1701 Market Street

Philadelphia, PA 19103

Counsel for Appellant

Nicholas M. Centrella

Robin S. Weiss

Conrad O’Brien

1500 Market Street

West Tower, Suite 3900

Philadelphia, PA 19102

Brent P. Ceryes

Schochor Federico & Staton

1211 Saint Paul Street

Baltimore, MD 21202

Brenda Harkavy

Patrick A. Thronson [ARGUED]

Janet Janet & Suggs

4 Reservoir Circle, Suite 200

Baltimore, MD 21208

Scott L. Nelson

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

2

Paul M. Vettori

Law Offices of Peter G. Angelos

100 North Charles Street

One Charles Center, 22nd Floor

Baltimore, MD 21201

Cory L. Zajdel

Z Law

2345 York Road, Suite B-13

Timonium, MD 21093

Counsel for Appellee

Diana Huang

American Medical Association

25 Massachusetts Avenue, N.W., Suite 600

Washington, DC 20001

Leonard A. Nelson

American Medical Association

330 North Wabash Avenue, Suite 39300

Chicago, IL 60611

Counsel for Amicus American Medical Association, As-

sociation of American Medical Colleges, and Pennsyl-

vania Medical Society in support of Appellant

Gilbert Dickey

McGuireWoods

201 North Tryon Street, Suite 3000

Charlotte, NC 28202

Matthew A. Fitzgerald

McGuireWoods

800 East Canal Street

3

Gateway Plaza

Richmond, VA 23219

Counsel for Amicus Chamber of Commerce in support

of Appellant

__________

OPINION OF THE COURT

__________

RESTREPO, Circuit Judge.

This case presents the question whether the District

Court abused its discretion when it certified an “issue class”

pursuant to Rule 23(c)(4) of the Federal Rules of Civil Proce-

dure. We hold that it did. According to Rule 23(c)(4), “[w]hen

appropriate, an action may be brought or maintained as a class

action with respect to particular issues.” For “an action” to be

“brought or maintained as a class action,” the party seeking

class status must satisfy Rule 23 and all its requirements. Com-

cast Corp. v. Behrend, 569 U.S. 27, 33 (2013). Further, in

Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011), we

enumerated a “non-exclusive list of factors” relevant to as-

sessing whether the certification of an issue class under Rule

23(c)(4) is “appropriate.” Id. at 272 (quoting Chiang v. Vene-

man, 385 F.3d 256, 267 (3d Cir. 2004)). So when a party seeks

to certify “particular issues” for class treatment, the district

court must ask three questions. First, does the proposed issue

class satisfy Rule 23(a)’s requirements? Second, does the pro-

posed issue class fit within one of Rule 23(b)’s categories?

Third, if it does, is it “appropriate” to certify this as an issue

class? Fed. R. Civ. P. 23(c)(4). Here, lacking clear guidance,

the District Court failed to determine whether the issues iden-

tified for class treatment fit within one of Rule 23(b)’s catego-

ries and then failed to explicitly consider a few of the Gates

4

factors. Accordingly, for the reasons that follow, we will va-

cate the District Court’s issue-class certification and remand

for further proceedings.

I. FACTUAL BACKGROUND

A. The Educational Commission for Foreign Medi-

cal Graduates

Graduates of foreign medical schools who wish to be

accepted to a United States medical-residency program must

have graduated from a recognized foreign institution, demon-

strated English-language proficiency, and passed the first two

steps of the United States Medical Licensing Examination.

Defendant-Appellant Educational Commission for Foreign

Medical Graduates (“the Commission”) is a Philadelphia-

based nonprofit that certifies that such graduates have satisfied

those requirements. The Commission carries out this function

in two ways. First, it administers the English-language and

medical examinations the foreign medical school graduates

must pass. Second, the Commission verifies, using primary

sources, that the applicant received a medical degree from a

qualifying institution.

As the central certification agency for graduates of for-

eign medical schools, the Commission also investigates what

it calls “irregular behavior.” According to internal policies, the

Commission may investigate “all actions or attempted actions

on the part of applicants . . . that would or could subvert the

examination, certification or other processes, programs, or ser-

vices of [the Commission].” J.A. 254. The Commission’s in-

vestigation of such behavior proceeds as follows. When the

Commission receives an allegation that an applicant commit-

ted irregular behavior, it reviews the allegation and determines

whether sufficient evidence supports the charge. If sufficient

5

evidence supports the charge, the Commission notifies the ap-

plicant of the allegation and invites him to submit a written ex-

planation or present any other relevant information. The appli-

cant may also request a hearing and hire legal counsel. After

the applicant is heard, the Commission then determines

whether, by a preponderance of the evidence, the applicant en-

gaged in the irregular behavior that was charged. The Commis-

sion may take various disciplinary actions, up to and including

permanent revocation of a certification. The charged individual

has a right of appeal, but petitions to reconsider decisions are

granted “only in extraordinary cases.” Id. And whatever the

case, if the Commission “determines that an individual en-

gaged in irregular behavior, a permanent annotation to that ef-

fect will be included in the individual’s [Commission] record.”

Id.

B. A Foreign Doctor Named Charles Igberase

In early 1992, a man named Oluwafemi Charles Ig-

berase applied to the Commission for certification. He eventu-

ally passed the medical-licensing and English-language exam-

inations and was issued the Commission’s certification. But no

residency program accepted him. So, in March 1994, Igberase

submitted a second application for certification to the Commis-

sion. In that application, however, Igberase rearranged his

name (“Igberase Oluwafemi Charles” instead of “Oluwafemi

Charles Igberase”); used a different date of birth (April 17,

1961 instead of April 17, 1962); and responded “No” to the

question of whether he had ever previously submitted an appli-

cation to the Commission. Igberase passed each required ex-

amination and was certified by the Commission for a second

time. But in June 1995, the Commission learned that Igberase

had obtained two of its certifications under different names and

6

dates of birth, and had lied on his second application about not

seeking certification previously. So it invalidated Igberase’s

second certification and revoked the first, and informed the

United States Medical Licensing Examination Committee of

his deception. J.A. 237.

In 1996, Igberase applied to the Commission for certifi-

cation for yet a third time. In this application, Igberase ditched

his first two names and invented another one: “John Nosa

Akoda.” J.A. 263. As he had twice before, Igberase (as Akoda)

eventually passed the medical-licensing and English-language

examinations and received the Commission’s certification.

After receiving the certification as “Akoda,” Igberase applied

for and was admitted to a residency program in New Jersey.

But in August 2000, the residency program learned that the so-

cial security number Akoda used in his application belonged to

Igberase. The residency program informed the Commission of

the inconsistency, provisionally suspended the doctor it knew

as Akoda, and, after an internal investigation, in November

2000, dismissed him.

Once it learned of Akoda’s possible misuse of Ig-

berase’s social security number, the Commission launched its

own investigation. Based on the information it had received

from the residency program, the Commission sent Akoda a

“charge letter.” In it, the Commission told Akoda that it had

“received information alleging that you may have engaged in

irregular behavior,” specifically that he had twice before ap-

plied for certification using the name “Igberase.” J.A. 284. The

Commission told Akoda that the allegations “require[] an ex-

planation,” and granted him fifteen days to submit a written

response. J.A. 285.

A week later, as Akoda, Igberase responded. He denied

the allegations, telling the Commission that “[t]he identifica-

tion numbers listed in your letter apparently belong to my

7

cousin Dr. Igberase Oluwafemi Charles, who left the country

to practice, I believe, in South Africa.” J.A. 287. Akoda admit-

ted using Igberase’s social security number but insisted that

they were “two different persons who attended two different

Colleges of Medicine.” Id. He reiterated that he had “only

taken the examination once in my name, John NOSA Akoda,”

and offered to provide the Commission with his passport if it

requested it. J.A. 287.

The Commission official overseeing Akoda’s case ap-

parently did not buy the explanation. In a December 2000

memorandum intentionally not made part of Akoda’s official

file, the official wrote that he and others believed Igberase and

Akoda were one in the same. J.A. 293. But the official con-

cluded that he did not have enough evidence to recommend

Akoda’s case to the Commission’s credentialling committee.

So Akoda’s credential remained active.

In October 2006, Igberase, again as “Akoda,” applied to

a residency program at Howard University Medical Center. As

part of his application, he submitted to the Commission three

letters of recommendation. But the Commission was suspi-

cious of Akoda, so one of its officials attempted to verify the

authenticity of these three letters of reference. The official sent

each reference the recommendation letter submitted by Akoda

and asked each whether the letter was authentic. The record

does not reflect whether the official received a response from

any of the references.

Despite the official’s reservations, Igberase (as Akoda)

was admitted to Howard’s residency program. He successfully

completed the program in 2011. After completing the program,

he applied for and received a Maryland medical license using

fake identification documents. That same year, he became a

member of the medical staff at Prince George’s Hospital Cen-

ter and began seeing patients there.

8

In June 2016, law enforcement officials executed search

warrants at Igberase’s residence, medical office, and vehicle.

They found fraudulent or altered immigration documents,

medical diplomas, medical transcripts, letters of recommenda-

tion, and birth certificates. On November 15, 2016, Igberase

signed a plea agreement. In it, he pleaded guilty to misuse of a

social security account number to fraudulently obtain a Mary-

land medical license and admitted that “Akoda” was a pseudo-

nym. Id.

The Commission subsequently invalidated Akoda’s for-

eign-doctor certification, and the Maryland Board of Physi-

cians revoked his medical license.

C. Patients of Igberase sue the Commission

The named Plaintiffs are Monique Russell, Jasmine

Riggins, Elsa Powell, and Desire Evans. Each received medical

treatment from the doctor known as “Akoda,” who was certi-

fied by the Commission in 1997. Igberase performed un-

planned emergency cesarean-section surgery on Russell and

Riggins and delivered Evans’s and Powell’s children. These

Plaintiffs also seek to represent a class of similarly situated in-

dividuals who likewise received medical treatment from

“Akoda.” But the Plaintiffs (appellees here) did not sue Ig-

berase. Instead, they sued the Commission, and asserted claims

of negligent infliction of emotional distress arising out of the

Commission’s certification of Igberase as “Akoda.”

Eventually, the district court certified a class of “All pa-

tients examined or treated in any manner by Oluwafemi

Charles Igberase (a/ka [sic] Charles J. Akoda) beginning with

his enrollment in a postgraduate medical education program at

Howard University in 2007.” J.A. 63-64. But the district court

did not certify the class under any subsection of Rule 23(b).

9

Instead, the court certified the class as an “issue class” pursuant

to Rule 23(c)(4). The court certified the class with respect to

these issues:

(1) whether the Commission undertook or otherwise

owed a duty to class members.

(2) whether the Commission breached any duty that

it owed to class members.

(3) whether the Commission undertook or otherwise

owed a duty to hospitals and state medical boards,

such that it may be held liable to class members pur-

suant to the Restatement (Second) of Torts § 324A.

(4) whether the defendant breached any duty that it

owed to hospitals and state medical boards.

In short, the particular issues the district court certified

for class treatment concern only the duty and breach elements

of Plaintiffs’ claim. The district court therefore left for individ-

ualized proceedings whether each Plaintiff was injured;

whether the Commission’s breach of the relevant duty (if it had

a duty that was breached) actually and proximately caused

those injuries; whether those injuries are due a particular

amount of damages; and whether the Commission could raise

any affirmative defense, including, presumably, whether each

Plaintiff’s consent to medical treatment by Igberase breaks the

causal chain. In the wake of the Rule 23(c)(4) certification, the

Commission successfully petitioned for leave to appeal under

Rule 23(f). We must decide whether that certification was

proper.

10

II. THE LEGAL FRAMEWORK OF ISSUE-CLASS CERTIFICA-

TION

A. Rule 23 outlines one procedure for pursuing ag-

gregate litigation

The class action is “an exception to the usual rule that

litigation is conducted by and on behalf of the individual

named parties only.” In re Hydrogen Peroxide Antitrust Litig.,

552 F.3d 305, 309 n.6 (3d Cir. 2009) (quoting Gen. Tel. Co. of

Sw. v. Falcon, 457 U.S. 147, 155 (1982)). One reason the class

action is an exceptional form of litigation is because final judg-

ments in such actions may implicate the procedural and sub-

stantive rights of absent persons.

The Supreme Court recently reiterated the principle that

absent persons may not be bound by federal-court judgments

unless one of a limited number of historically recognized ex-

ceptions is satisfied. See Taylor v. Sturgell, 553 U.S. 880, 893

(2008). A “properly conducted” class action is one such excep-

tion. Id. at 894-95. A properly conducted class action requires

that (1) “[t]he interests of the nonparty and her representative

are aligned”; (2) “either the party understood herself to be act-

ing in a representative capacity or the original court took care

to protect the interests of the nonparty”; and (3) there was “no-

tice of the original suit to the persons alleged to have been rep-

resented.” Id. at 900.

In the class context, “these limitations are implemented

by the procedural safeguards in Federal Rule of Civil Proce-

dure 23.” Id. at 900-01. The procedural safeguards of Rule 23,

in turn, are constitutionally mandated and “grounded in due

process.” Id. at 901. Rule 23 thus provides a constitutional safe

harbor for litigants to pursue class treatment on behalf of ab-

sent persons. But the party seeking to certify a class “bears the

burden of affirmatively demonstrating by a preponderance of

11

the evidence her compliance with the requirements of Rule

23.” Byrd v. Aaron’s Inc., 784 F.3d 154, 163 (3d Cir. 2015);

see also Reyes v. Netdeposit, LLC, 802 F.3d 469, 485 (3d Cir.

2015) (discussing and clarifying preponderance of evidence

standard in class certification determinations).

The requirements of Rule 23 are these. The party seek-

ing class certification must demonstrate, first, that the require-

ments of Rule 23(a) are met. Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 345 (2011). To satisfy Rule 23(a), a plaintiff

must “prove that there are in fact sufficiently numerous parties,

common questions of law or fact, typicality of claims or de-

fenses, and adequacy of representation.” Comcast Corp. v.

Behrend, 569 U.S. 27, 33 (2013) (internal quotation marks

omitted).

Once beyond Rule 23(a)’s four prerequisites, plaintiffs

then must seek to certify a class of one of three “types,” each

with additional requirements. See Fed. R. Civ. P. 23(b). For

instance, Rule 23(b)(3), a provision at issue here, states that a

class may be maintained where “questions of law or fact com-

mon to class members predominate over any questions affect-

ing only individual members,” and a class action would be “su-

perior to other available methods for fairly and efficiently ad-

judicating the controversy.”1

1

There are two additional “types” of class actions maintainable

under Rule 23(b). Rule 23(b)(1) allows a class to be maintained

where “prosecuting separate actions by or against individual

class members would create a risk of” either “(A) inconsistent

or varying adjudications,” or “(B) adjudications . . . that, as a

practical matter, would be dispositive of the interests of the

other members not parties to the individual adjudications or

would substantially impair or impede their ability to protect

their interests.” Rule 23(b)(2), by contrast, applies when “the

12

Rule 23(c) provides two additional pathways to a form

of class certification. Rule 23(c)(5) permits a district court,

“[w]hen appropriate,” to “divide[]” a class “into subclasses that

are each treated as a class under [Rule 23].” So if a district court

detects dissimilarities of interests between the putative class

representative and absent class members, it may divide the full

class into subclasses to isolate atypical issues or claims, or re-

solve conflicts of interest that otherwise would preclude full

class certification. See, e.g., In re Nat’l Football League Play-

ers Concussion Injury Litig., 821 F.3d 410, 432 (3d Cir. 2016);

see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999)

(“[A] class divided between holders of present and future

claims . . . requires division into homogenous subclasses . . .

with separate representation to eliminate conflicting interests

of counsel.”). And Rule 23(c)(4), the provision center stage

here, states that “[w]hen appropriate, an action may be brought

or maintained as a class action with respect to particular is-

sues.” Pursuant to that provision, we have previously held that

a district court may certify for class treatment issues that

would, upon their resolution, determine a defendant’s course

of conduct. See Chiang v. Veneman, 385 F.3d 256 (3d Cir.

2004). In what follows, we examine the scope of issue-class

certification under Rule 23(c)(4).

party opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive relief

or corresponding declaratory relief is appropriate respecting

the class as a whole.”

13

B. Issue-class certification under Rule 23(c)(4)

grants district courts broad but well-defined dis-

cretion to certify particular issues for class treat-

ment

Let us restate the text of Rule 23(c)(4). It says that

“[w]hen appropriate, an action may be brought or maintained

as a class action with respect to particular issues.” The Rule,

therefore, permits an issue class to be brought or maintained

“as a class action.” But with that permission comes restrictions.

To be a “class action,” a party must satisfy Rule 23 and all its

requirements. Comcast Corp. v. Behrend, 569 U.S. 27, 33

(2013); In re Hydrogen Peroxide Antitrust Lit., 552 F.3d 305,

310 (3d Cir. 2008) (“[A] class may not be certified without a

finding that each Rule 23 requirement is met.”). In other words,

“[i]n addition to satisfying Rule 23(a)’s prerequisites, parties

seeking class certification must show that the action is main-

tainable under Rule 23(b)(1), (2), or (3).” Amchem Prods., Inc.

v. Windsor, 521 U.S. 591, 614 (1997). A party seeking to cer-

tify “particular issues” for class treatment must show the same.

That party must show that those issues “satisfy[] Rule 23(a)’s

prerequisites” and that those issues are “maintainable under

Rule 23(b)(1), (2), or (3).” See id.

But neither Rule 23(c)(4) nor its commentary outlines

the “appropriate[ness]” inquiry, or discusses which types of

“issues” might be suitable for class treatment and which may

not be. At the provision’s adoption, the Rules Committee, in

its commentary, suggested that the issue-class device may be

used to bifurcate the “adjudication of liability to the class” from

follow-on proceedings needed to “prove the amounts of [class

members’] respective claims.” Fed. R. Civ. P. 23(c)(4) advi-

sory committee’s note to 1966 amendment. That commentary

14

does not illuminate much. In a typical Rule 23(b)(3) class ac-

tion, for example, individualized damages determinations of-

ten remain after common questions have been decided. See,

e.g., Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 452-60

(2016); Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S.

455, 465-70 (2013). Further, Rule 23(c)(4) talks about “is-

sues,” not “liability” (or “claims” or “causes of action”), so

there is no obvious textual basis to limit issue-class certifica-

tion to issues that, upon their resolution, necessarily establish

a defendant’s liability as to all claimants.

We explained Rule 23(c)(4)’s “appropriate[ness]” in-

quiry in Gates v. Rohm & Haas, 655 F.3d 255 (3d Cir. 2011).

In Gates, we considered the appropriateness of issue-class cer-

tification for property owners who alleged that a chemical

company’s pollution decreased their property values. In 2005,

Rohm & Haas acquired a chemical-processing plant in Ring-

wood, Illinois. Id. at 258. For the half-century or so prior to

Rohm & Haas’s acquisition, the Ringwood facility was owned

and operated by a company called Morton International. Id.

During at least some of that time, Morton dumped wastewater

produced by its chemical processing into an on-site lagoon. Id.

The wastewater contained vinylidene chloride, a molecule

used in the production of vinyl chloride, which is important in

the production of plastics and a known carcinogen. “In 1978,

Morton ceased using the on-site lagoon and covered it.” Id. But

environmental testing in the 1970s and 1980s suggested that

Morton’s dumping of vinylidene chloride was polluting the

surrounding environment. In 1973, for example, “tests of a

shallow aquifer under the Ringwood facility showed elevated

levels of ammonia and chloride.” Id. And in 1984, water sam-

ples from wells that Morton had installed at Ringwood showed

elevated levels of vinylidene chloride and vinyl chloride. Id.

15

In 2006, residents of a nearby residential village filed a

class-action complaint alleging, among other things, that Mor-

ton’s dumping of the vinylidene chloride caused their residen-

tial community to become less attractive and their property val-

ues to decrease.2 Id. at 259, 271. Before the district court, with

respect to their property damage claim, the plaintiffs moved to

certify two classes—a Rule 23(b)(3) class of property owners

who allegedly suffered loss in property values due to the de-

fendants’ contamination and an “issue only” class that would

decide defendants’ liability but leave damages for individual

trials. Id. at 272.

The district court declined to certify either class. As to

the plaintiffs’ proposed Rule 23(b)(3) class, the district court

found that common questions did not predominate over indi-

vidual ones. The court observed “that resolution of [common]

questions leaves significant and complex questions unan-

swered, including questions relating to causation of contami-

nation, extent of contamination, fact of damages, and amount

of damages.” Gates v. Rohm and Haas Co., 265 F.R.D. 208,

233-34 (E.D. Pa. 2010). The district court likewise rejected

plaintiffs’ attempt to certify a Rule 23(c)(4) issue class. The

2

The plaintiffs’ complaint asserted several claims for relief,

including medical monitoring, property damage claims, relief

under the Comprehensive Environmental Response, Compen-

sation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.,

the Illinois Environmental Protection Act, 415 Ill. Comp. Stat.

§ 5/1 et seq., and state-law fraudulent misrepresentation and

willful and wanton misconduct claims. But they chose to pro-

ceed on a class basis only on the medical monitoring and prop-

erty damage claims and, as noted, solely with regard to vinyl

chloride exposure. Gates, 655 F.3d at 259.

16

court found that an issue class “would not advance the resolu-

tion of class members’ claims” because, like in the Rule

23(b)(3) context, “the fact of damages and the amount of dam-

ages would remain following the class-wide determination of

any common issues, and further that causation and extent of

contamination would need to be determined at follow-up pro-

ceedings.” Gates, 655 F.3d at 272 (quotation marks omitted).

We affirmed.

In affirming the district court’s decision not to certify a

Rule 23(c)(4) issue class, we adopted a “non-exclusive list of

factors [to] guide courts” faced with motions to certify partic-

ular issues. Gates, 655 F.3d at 273. Id. The factors, which num-

ber nine, are these:

1. the type of claim(s) and issue(s) in question;

2. the overall complexity of the case;

3. the efficiencies to be gained by granting partial cer-

tification in light of realistic procedural alternatives;

4. the substantive law underlying the claim(s), includ-

ing any choice-of-law questions it may present and

whether the substantive law separates the issue(s)

from other issues concerning liability or remedy;

5. the impact partial certification will have on the con-

stitutional and statutory rights of both the class

members and the defendant(s);

6. the potential preclusive effect or lack thereof that

resolution of the proposed issue class will have;

17

7. the repercussions certification of an issue(s) class

will have on the effectiveness and fairness of reso-

lution of remaining issues;

8. the impact individual proceedings may have upon

one another, including whether remedies are indi-

visible such that granting or not granting relief to

any claimant as a practical matter determines the

claims of others;

9. and the kind of evidence presented on the issue(s)

certified and potentially presented on the remaining

issues, including the risk subsequent triers of fact

will need to reexamine evidence and findings from

resolution of the common issue(s).

When assembled, the Gates factors construct a func-

tional framework to aid the district courts tasked with resolving

issue-class certification questions.3 But Gates did not define

which “issues” would be appropriate for class treatment or,

3

The Gates factors grew out of our opinion in Hohider v.

United Parcel Serv., Inc., 574 F.3d 169 (3d Cir. 2009). In

Hohider, we provided relevant considerations on when a dis-

trict court may wish “to carve at the joints to form issue clas-

ses.” Gates, 655 F.3d at 273. As source for the factors, the

Hohider court cited the American Law Institute’s “Proposed

Final Draft of the Principles of the Law of Aggregate Litiga-

tion.” Hohider, 574 F.3d at 200-02. By the time Gates issued,

the ALI had finalized the Principles, and we incorporated many

of them as the factors district courts should consider in as-

sessing whether to certify an issue class. Gates, 655 F.3d at

273.

18

more importantly, which would not. Specifically, Gates did not

answer whether the term “particular issues” in Rule 23(c)(4)

could encompass claim elements (like duty or breach, or cau-

sation or reliance) and defenses (like consent or intervening

cause), or if the “particular issues” that the district court could

certify “when appropriate” must be limited to questions that

would resolve a defendant’s liability.

At several points, Gates appears to suggest that the cer-

tified “issues” should (perhaps except in exceptional circum-

stances) be able to resolve a defendant’s liability. See, e.g., id.

at 272 (“[T]he [district] court declined to certify a liability-only

class.”); id. at 273 (“The trial court here did not abuse its dis-

cretion by declining to certify a liability-only issue class when

it found liability inseverable from other issues that would be

left for follow-up proceedings.”); id. (“Nor did the court err in

finding no marked division between damages and liability.”);

id. at 274 (“Plaintiffs have neither defined the scope of the lia-

bility-only trial nor proposed what common proof would be

presented.”); id. (“A trial on whether the [issues proposed] is

unlikely to substantially aid resolution of the substantial issues

on liability and causation.”).

Reading “issues” in Rule 23(c)(4) to exclude claim ele-

ments is supported by later cases from our Court. In Gonzalez

v. Corning, 885 F.3d 186 (3d Cir. 2018), for example, the only

published opinion from this Court to apply Gates, we reiterated

that issue-class certification “might be appropriate” if “liability

is capable of classwide treatment but damages are not[.]” Id. at

202-03 (emphasis added). Said another way, issue-class certi-

fication is not appropriate if class-wide resolution of the “is-

sues” does not resolve liability. See id. (noting that declining

issue-class certification was appropriate because plaintiffs of-

fered “no theories of liability for which classwide treatment is

apt”) (emphasis added).

19

But at various other points, Gates suggests that claim

elements may be appropriate for issue-class treatment in cer-

tain circumstances. For example, the Gates Court “agreed”

with the district court’s finding that an issue class was not fea-

sible and would not advance the resolution of class members’

claims because “both the fact of damages and the amount of

damages would remain following the class-wide determination

of any common issues, and further that causation and extent of

contamination would need to be determined at follow-up pro-

ceedings.” Gates, 655 F.3d at 272 (quoting district court). In

other words, for the district court, the fact that claim elements

(like causation) would remain after resolution of the class is-

sues was a reason for the inappropriateness of certifying an is-

sue class. But neither the district court nor the court of appeals

concluded that claim elements remaining after resolution of

class issues barred issue-class certification.

Viewing Gates to permit the certification of issues that

do not resolve liability comports with our pre-Gates caselaw.

In Chiang v. Veneman, 385 F.3d 256 (3d Cir. 2004), we noted

“that courts commonly use Rule 23(c)(4) to certify some ele-

ments of liability for class determination, while leaving other

elements to individual adjudication—or, perhaps more realis-

tically, settlement.” Id. at 267 (emphasis added). So there, we

affirmed the district court’s certification of an issue class lim-

ited to determining the defendant’s course of conduct (whether

a federal agency placed “thousands of Virgin Islanders, almost

all of whom were Black, Hispanic, or female,” on a “phony,

illegal waiting list” when those individuals sought to apply to

a “loan program[] intended to help low income rural families

obtain homes and make repairs to existing homes,” id. at 259-

60, 263), but left for subsequent individual adjudication the is-

sue of whether those individuals were eligible for the loans in

the first place. Id. at 267.

20

Other courts of appeals have permitted the certification

of non-liability issue classes in analogous circumstances. The

Seventh Circuit, for example, has affirmed the certification of

an issue class where the issues, once resolved, stopped short of

establishing a defendant’s liability to any claimant. See, e.g.,

McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

672 F.3d 482, 491 (7th Cir. 2012) (in employment case, en-

dorsing the use of a Rule 23(c)(4) issue class to determine the

disparate impact of a challenged corporate policy, with “sepa-

rate trials . . . to determine which class members were actually

adversely affected . . . and if so what loss each class member

sustained”); cf. Pella Corp. v. Saltzman, 606 F.3d 391, 393-94

(7th Cir. 2010) (in consumer fraud case, upholding certifica-

tion of Rule 23(b)(3) class when common issues left compo-

nents of causation for individualized determination).

Moreover, the text of Rule 23(c)(4) supports the reading

that the “issues” a district court may certify for class treatment

need not be limited to those that decide a party’s liability. The

Rule permits an action to be brought or maintained as a class

action “with respect to particular issues,” not just those that de-

cide liability. We therefore hold that district courts may certify

“particular issues” for class treatment even if those issues, once

resolved, do not resolve a defendant’s liability, provided that

such certification substantially facilitates the resolution of the

civil dispute, preserves the parties’ procedural and substantive

rights and responsibilities, and respects the constitutional and

statutory rights of all class member and defendants.

*****

In sum, district courts tasked with resolving motions to

certify issue classes must make three determinations. First,

21

does the proposed issue class satisfy Rule 23(a)’s require-

ments? Second, does the proposed issue class fit within one of

Rule 23(b)’s categories? Third, if the proposed issue class does

both those things, is it “appropriate” to certify these issues as a

class? Fed. R. Civ. P. 23(c)(4). The first two steps will be in-

formed by general class-action doctrine. The third step will be

informed by Gates. See Hohider v. United Parcel Serv., Inc.,

574 F.3d 169, 201 (3d Cir. 2009). In other words, Rule 23(a)

and Rule 23(b) decide if the proposed issues can be brought or

maintained as class action, while the Gates factors determine

whether they should.

III. DISCUSSION

Guided by Rule 23(c)(4) and Gates, in this case, we

must determine whether the District Court appropriately certi-

fied for class treatment whether the Commission owed a rele-

vant legal duty to the Plaintiffs that it subsequently breached,

but left for individual proceedings whether Plaintiffs were in-

jured; whether the Commission’s breach of the relevant duty

actually and proximately caused those injuries; whether those

injuries are due a particular amount of damages; and whether

the Commission’s affirmative defenses (including, presuma-

bly, that each Plaintiff consented to medical treatment by Ig-

berase) can refute Plaintiffs’ claim.

We review the District Court’s decision to certify the

duty and breach issues of Plaintiffs’ negligent infliction of

emotion distress claim for abuse of discretion. Gates, 655 F.3d

at 262. A district court abuses its discretion if its “decision rests

upon a clearly erroneous finding of fact, an errant conclusion

of law or an improper application of law to fact.” Id. (quoting

In re Hydrogen Peroxide, 552 F.3d 305, 320 (3d Cir. 2009)).

Whether the district court employed the correct legal standard

22

is reviewed de novo. In re Hydrogen Peroxide, 471 F.3d at 312

(citing In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 32

(2d Cir. 2006)). Conducting that review, we conclude that the

District Court abused its discretion.

A. The District Court erred in certifying this issue

class

Two reasons, each independently sufficient, support the

conclusion that the District Court misapplied Gates when it

certified for class treatment the duty and breach elements of

Plaintiffs’ negligent infliction of emotional distress claim.

First, the District Court did not determine whether the

duty and breach elements of Plaintiffs’ claim satisfied Rule

23(b)(3). The Court correctly observed that Gates does not re-

quire Plaintiffs seeking issue-class certification to prove that

their cause of action as a whole satisfies Rule 23(b)(3). J.A. 42-

43 (“[The Commission]’s argument that the Court should re-

quire Plaintiffs to satisfy Rule 23(b)(3)’s predominance re-

quirement before turning to these factors parrots one of the

camps that the Third Circuit acknowledged but refused to join

in Gates. Because the Third Circuit rejected that view, this

Court must do the same.”); see also J.A. 56 (“Having deter-

mined that Plaintiffs can satisfy the Rule 23(a) factors, the

Court turns to the question of whether to certify an issues class

under Rule 23(c)(4).”). But while Gates does not require Plain-

tiffs seeking issue-class certification to prove that their cause

of action as a whole satisfies a subsection of Rule 23(b), for

reasons we have explained, Rule 23(c)(4) does require that the

Plaintiffs demonstrate that the issues they seek to certify satisfy

one of Rule 23(b)’s subsections. On remand, the Plaintiffs may

23

be able to make such a showing, but we will leave that inquiry

to the District Court to consider in the first instance.4

Second, separate and apart from the District Court’s

failure to determine whether the duty and breach elements of

Plaintiffs’ claim satisfied any subsection of Rule 23(b), the

Court also failed to rigorously consider several Gates factors.

4

The Commission also insists that the District Court erred in

finding that Plaintiffs’ satisfied Rule 23(a)’s typicality and ad-

equacy requirements. Appellant Br. 18-19. It argues the Plain-

tiffs are atypical and inadequate class representatives because

they propose to inflict emotional distress on absent class mem-

bers currently ignorant of the underlying allegations, and that

Plaintiffs’ decision to seek relief only for their emotional dis-

tress makes them inadequate representatives of absent class

members who have suffered physical injuries. Neither argu-

ment is persuasive. For one, we find no support for the propo-

sition that absent class members ignorant of their potential le-

gal injury might cause named plaintiffs (who are aware of their

injury) to be inadequate or atypical class representatives. For

another, if the District Court determines that some cognizable

subset of absent class members may also have live legal claims

for physical injuries, then it has ample tools at its disposal to

manage those divergences, including by creating subclasses

pursuant to Rule 23(c)(5) or the notice requirements of Rule

23(c)(4).We have “set a low threshold for typicality.” In re

Nat’l Football League Players Concussion Injury Litig., 821

F.3d 410, 428 (3d Cir. 2016) (internal quotations omitted). And

“[e]ven relatively pronounced factual differences will gener-

ally not preclude a finding of typicality where there is a strong

similarity of legal theories or where the claim arises from the

same practice or course of conduct.” Id.

24

For example, the Court does not explicitly discuss whether the

effect certification of the issue class will have on the effective-

ness and fairness of resolution of remaining issues. Many other

actors played a role in Igberase’s fraud, including the residency

programs that admitted and trained him, the state medical

boards that licensed him, the hospitals that gave him privileges,

the specialty board that certified him, and the law enforcement

officers (state and federal) who investigated him. If an issue-

class jury finds that the Commission owed Plaintiffs a legal

duty that it subsequently breached, the Commission may face

undue pressure to settle, even if their breach did not cause

Plaintiffs’ harm.

Relatedly, the District Court did not rigorously consider

what efficiencies would be gained by resolution of the certified

issues. To be sure, the District Court briefly discussed the effi-

ciencies of a single trial and broached other options with the

parties. J.A. 60-61. But more was needed. To prove their claim

that the Commission negligently inflicted emotional distress,

Plaintiffs will need to show (as with all causes of action arising

under state tort law) duty, breach, cause, and harm. But the

District Court certified an issue class with respect to the duty

and breach elements only. So even if the District Court finds

that the Commission owed a relevant legal duty to the Plaintiffs

that it subsequently breached, each Plaintiff, in individual pro-

ceedings, will have to prove that they were injured; that the

Commission’s breach of the relevant duty actually and proxi-

mately caused those injuries; that those injuries are due a par-

ticular amount of damages; and that the Commission’s affirm-

ative defenses (including, presumably, each Plaintiff’s consent

to medical treatment by Igberase) are not decisive.

The District Court may also wish to consider whether

the duty and breach elements of Plaintiffs’ negligent infliction

25

of emotional distress claim are suitable for issue-class treat-

ment. Under Pennsylvania law, for example, to determine

whether the Commission owed the Plaintiffs a relevant legal

duty, the class jury will have to weigh several factors, includ-

ing the “foreseeability of the harm incurred.” Althaus ex rel.

Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000) (citations

omitted). And once beyond the class trial, to determine and

measure emotional damages, each individual jury will have to

assess the degree of the Commission’s negligence as to each

Plaintiff. See Spence v. Bd. of Educ. of the Christina Sch. Dist.,

806 F.2d 1198, 1202 (3d Cir. 1986) (finding no abuse of dis-

cretion where the District Court joined for trial the issues of

liability and damages for emotional distress, explaining that

“emotional distress damages must be evaluated in light of all

the circumstances surrounding the alleged misconduct”). So

the issue-class jury, like each individual jury, may need to con-

sider evidence regarding the harm the Commission allegedly

caused. And each individual jury, like the issue-class jury, may

need to consider evidence regarding the Commission’s overall

conduct, which likely will include the nature of the legal duty

it owed Plaintiffs (if any) and the extent to which it breached

that duty. Gates disfavors this. See 655 F.3d at 273 (holding

that “the risk subsequent triers of fact will need to reexamine

evidence and findings from resolution of the common issue(s)”

counsels against certification of those common issues).

Of course, the District Court may very well be correct

that “there are efficiencies to be gained by certifying a class on

these issues because it will allow for a single trial with a single,

preclusive determination about [the Commission]’s conduct,

rather than the presentation of the same evidence about [the

Commission] again, and again, and again to separate juries.”

J.A. 60. Duty is an issue of law. Therefore, it must be decided

separately from breach, causation, and damages. See Sharpe v.

26

St. Luke’s Hosp., 821 A.2d 1215, 1219 (Pa. 2003). It is true that

deciding if the Commission had a duty to investigate requires

balancing several factors. Id. But none of that requires individ-

ual evidence, for each patient shared the same distanced rela-

tionship of trust with the Commission. Likewise, breach would

require only common evidence: How much investigating did

the Commission do? Did it know or should it have known that

Igberase was a fraud? Did it take enough steps to investigate

him based on warnings received from various parties, includ-

ing the New Jersey residency program? Should it have fol-

lowed up in later years once Igberase was admitted to another

residency program? No absent class member would have any-

thing special to add in her individual trial. There will be plenty

left for individual proceedings, but these major issues could be

resolved on a class-wide basis.5

5

These two reasons are sufficient to support our decision to

vacate the District Court’s certification for class treatment the

duty and breach elements of Plaintiffs’ negligent infliction of

emotional distress claim. But there may yet be other problems

with the issue class, including the possibility that Plaintiffs’ le-

gal claim implicates multiple states’ laws. Under Gates, a dis-

trict court, tasked with resolving a motion to certify an issue

class, must assess the “substantive law underlying the claim(s),

including any choice-of-law questions [that law] may present.”

655 F.3d at 273. Here, the District Court concluded that the

various state laws that may be implicated do not meaningfully

differ and that Pennsylvania law would govern anyway. Rus-

sell v. Educational Comm’n for Foreign Med. Graduates, 2020

WL 1330699, at *4-5 (E.D. Pa. Mar. 23, 2020). That seems

like a close question. It may well be true that Pennsylvania has

the greatest interest in this case (the Commission’s alleged tor-

tious conduct occurred here, after all), but various other states

27

B. The Commission’s remaining arguments for re-

versal are unavailing or inapposite

The Commission and its amicus offer two additional ba-

ses on which to reverse the District Court. The Commission

first argues that “the plain text of Rule 23 and the cases inter-

preting it” demand that “the party seeking to certify a class

must satisfy one of the prongs of Rule 23(b)” and, “[b]ecause

the district court failed to find that Named Plaintiffs satisfied

Rule 23(b)(3) or any other prong of Rule 23(b), the class certi-

fication must be reversed.” Appellant’s Br. 39; see also Brief

for U.S. Chamber of Commerce as Amici Curiae Supporting

Appellant 5-16.

That is not accurate. A majority of the courts of appeals

have concluded that in appropriate cases Rule 23(c)(4) can be

used even though full Rule 23(b)(3) certification is not possible

due to the predominance infirmities. That view, the so-called

“broad view,” has been adopted or supported by the Second,

Fourth, Sixth, Seventh, and Ninth Circuits.6 Under the broad

have a substantial interest in the resolution of the claims, too.

But because the conflict-of-law question was briefed before the

District Court in the context of a motion for class certification,

we will leave it to the District Court to determine which state’s

law applies to each Plaintiff’s claim, if the question of which

state’s law applies becomes relevant in future proceedings.

6

For discussions of the broad view from these courts of ap-

peals, see, In re Nassau Cty. Strip Search Cases, 461 F.3d 219,

227 (2d Cir. 2006) (permitting issue certification “regardless

of whether the claim as a whole satisfies Rule 23(b)(3)’s pre-

dominance requirement’’); Gunnells v. Healthplan Servs., Inc.,

348 F.3d 417, 439-45 (4th Cir. 2003) (holding that courts may

employ Rule 23(c)(4) to certify a class as to one claim even

28

view, courts apply the Rule 23(b)(3) predominance and supe-

riority prongs after common issues have been identified for

class treatment under Rule 23(c)(4). The broad view permits

though all of the plaintiffs’ claims, taken together, do not sat-

isfy the predominance requirement); Martin v. Behr Dayton

Thermal Prods., 896 F.3d 405 (6th Cir. 2018) (noting that

“Rule 23(c)(4) contemplates using issue certification . . . where

common questions predominate within certain issues and

where class treatment of those issues is the superior method of

resolution”); McReynolds v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 672 F.3d 482, 491 (7th Cir. 2012) (“Rule 23(c)(4)

provides that ‘when appropriate, an action may be brought or

maintained as a class action with respect to particular issues.’

The practices challenged in this case present a pair of issues

that can most efficiently be determined on a class-wide basis,

consistent with the rule just quoted.”), abrogated on other

grounds by Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 559

(7th Cir.), reh’g and suggestion for reh’g en banc denied, (7th

Cir. Aug. 3, 2016); Pella Corp. v. Saltzman, 606 F.3d 391, 394

(7th Cir. 2010) (“A district court has the discretion to split a

case by certifying a class for some issues, but not others, or by

certifying a class for liability alone where damages or causa-

tion may require individualized assessments.”); Valentino v.

Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996)

(“Even if the common questions do not predominate over the

individual questions so that class certification of the entire ac-

tion is warranted, Rule 23 authorizes the district court in ap-

propriate cases to isolate the common issues under Rule

23(c)(4)[] and proceed with class treatment of these particular

issues.”).

29

utilizing Rule 23(c)(4) even where predominance has not been

(or cannot be) satisfied for the cause of action as a whole.

The Fifth Circuit, however, in a footnote adopted what

is known as “the narrow view,” which prohibits issue-class cer-

tification if Rule 23(b)(3) predominance has not been satisfied

for the cause of action as a whole. Castano v. Am. Tobacco Co.,

84 F.3d 734, 745 n.21 (5th Cir. 1996) (“A district court cannot

manufacture predominance through the nimble use of subdivi-

sion (c)(4). The proper interpretation of the interaction between

subdivisions (b)(3) and (c)(4) is that a cause of action, as a

whole, must satisfy the predominance requirement of (b)(3)

and that (c)(4) is a housekeeping rule that allows courts to sever

the common issues for a class trial.”). But Castano’s approach

has not been adopted by any other circuit, and subsequent

caselaw from the Fifth Circuit suggests that any potency the

narrow view once held has dwindled. See Steering Comm. v.

Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006) (noting

that bifurcation might serve “as a remedy for the obstacles pre-

venting a finding of predominance” but that the plaintiffs had

not made such a proposal to the district court).7

7

Further, the Advisory Committee on Civil Rules appears to

agree that issues can be certified for class treatment even if pre-

dominance cannot be satisfied for the action as a whole. At

their April 2015 meeting, the Committee noted that “[a] major

reason for considering possible rule amendments to deal with

issue classes is that there has seemed to be a split in the circuits

about whether they can only be allowed if (b)(3) predominance

is established.” See Rule 23 Subcommittee Report, in Advisory

Committee on Civil Rules 243-99 (Apr. 9-10, 2015). But the

Committee went on to note that “recent reports suggest that all

the circuits are coming into relative agreement that in appro-

priate cases Rule 23(c)(4) can be used even though full Rule

30

The Commission’s attempts to avoid the majority view

by arguing not so much that full-class Rule 23(b)(3) certifica-

tion must precede Rule 23(c)(4) certification, but that the Dis-

trict Court here failed to consider Rule 23(b)(3) at all. But “cer-

tifying a Rule 23(c)(4) class is analytically independent from

the predominance inquiry under Rule 23(b)(3),” though pre-

dominance concerns may be relevant to both. See Gonzalez v.

Corning, 885 F.3d 186, 202 (3d Cir. 2018) (“While Plaintiffs

are correct to point out that the appropriateness of certifying a

Rule 23(c)(4) class is analytically independent from the pre-

dominance inquiry under Rule 23(b)(3), a case may present

concerns relevant to both.”).

Amicus Chamber of Commerce offers yet another rea-

son to reverse the District Court: that the District Court’s Rule

23(c)(4) ruling, if adopted, “will permit a flood of abusive class

actions, with troubling and far-reaching consequences for busi-

nesses, shareholders, employees, customers, and the judicial

system.” Brief for U.S. Chamber of Commerce as Amici Cu-

riae Supporting Appellant 16-18. The Chamber’s concerns

seem overblown. Even capacious rules for issue-class certifi-

cation (which we do not purport to advance in this holding)

likely will not encourage “a flood of abusive class actions” be-

cause few lawyers will have an incentive to file them. Any lu-

crative potential payday for class action lawyers arises from

securing a damages award, not from obtaining an order on a

particular issue. That order, which can be thought of as a type

of declaratory judgment, may eventually transform into a judg-

ment awarding damages, but even then it is not clear that the

future individualized proceedings would be controlled by the

23(b)(3) certification is not possible due to the predominance

requirement.” Id. at 280 (emphasis added).

31

lawyers that won the issue-class order. In any case, even if a

lawyer could obtain a quasi-declaratory ruling on a subset of

common issues, the transformation of the case from a proposed

class action to a set of individualized proceedings would spoil

any settlement leverage that the lawyer had. Of course, the law-

yer representing the class would prefer a favorable issue-class

order to no order at all, but the defendant, once facing just in-

dividualized proceedings, could return to the very tactics that

may have given it an advantage in the first place. From the de-

fense perspective, such tactics could have the added benefit of

deterring other class-action lawyers from attempting similar bi-

furcated class actions in the future.

*****

Because the District Court failed to determine whether

the proposed issues satisfied a subsection of Rule 23(b), and

because it failed to rigorously analyze several Gates factors,

we will vacate the District Court’s issue-class certification and

remand for further proceedings consistent with this opinion.

IV. CONCLUSION

For these reasons, we vacate the District Court’s Order

certifying for aggregate treatment the duty and breach elements

of Plaintiffs’ negligent infliction of emotional distress claim,

and remand for further proceedings consistent with this opin-

ion.

32