stating individual questions relating to potential defenses are irrelevant to class certification and therefore do not impact whether a common course of conduct exists
How later courts described this case
- stating individual questions relating to potential defenses are irrelevant to class certification and therefore do not impact whether a common course of conduct exists
- we rejected NIPSCO’s argument that plaintiffs claim was statutorily barred and therefore plaintiff was an inadequate representative of the class.
Written by the judges who cited it.
The opinion
SULLIVAN, Judge,
concurring.
I fully concur as to Parts I, II, and III of the majority opinion. I further concur with respect to the discussion and treatment of Trial Rule 23(B)(3). I write separately in order to state my rationale for concluding *621 that certification under Rule 23(B)(1)(a) was not appropriate.
The majority, correctly I believe, notes that Rule 23(B)(1)(a) “must require more than the potential for different outcomes.” Op. at 620. At first blush, the reasoning of the court in Hernandez v. The Motor Vessel Skyward, (1973) S.D.Fla., 61 F.R.D. 558 , affirmed (1975) 5th Cir., 507 F.2d 1278 , seemed applicable to the ease before us. In Hernandez , the court, in part, premised its class certification in a mass tort claim upon the following:
“The Court also finds that the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the parties opposing the class. It is conceivable that the defendants would be taken to task by one passenger after another until a judgment against the defendants was obtained. At that point, future plaintiffs could call the doctrine of collateral estoppel into play to bind the defendants on the issue of negligence in the preparation of food and water.” Id. at 561 . (Footnotes omitted).
Indiana has eliminated the requirements for identity of parties and mutuality of estop-pel as a condition for employment of the doctrine of collateral estoppel as to issue preclusion. Accordingly, Indiana case law has recognized and approved the use of both defensive and offensive collateral estoppel. Tofany v. NBS Imaging Systems, Inc. (1993) Ind., 616 N.E.2d 1034 . The application of offensive collateral estoppel has been viewed as appropriate if “[tjhe party against whom the judgment is pled had a full and fair opportunity to litigate the issue”, and if it is not “otherwise unfair under the circumstances of the particular case to apply collateral estoppel.” Hayworth v. Schilli Leasing, Inc. (1996) Ind., 669 N.E.2d 165, 167 ; In The Matter of C.M. (1997) Ind.App., 675 N.E.2d 1134, 1137 .
Given the circumstances of our case, in light of the concerns expressed in Hernandez, supra, 61 F.R.D. at 561 , it would seem that if individual claims were to be required against NIPSCO, a single successful negligence claim would result in employment of offensive collateral estoppel by any and all subsequent plaintiffs. In such instance, NIPSCO would be estopped to deny its negligence in producing harmful emissions. If the analysis were to terminate at this point, I would hold that the requirements for class certification under Rule 23(B)(1)(a) have been met.
However, the analysis does not end at this point. It is imperative to note that in adopting the use of collateral estoppel without regard to concerns of privity and mutuality, our Supreme Court clearly subjects employment of the doctrine to the requirements of the United States Supreme Court in Park-lane Hosiery Co., Inc. v. Shore (1979) 439 U.S. 322 , 99 S.Ct. 645 , 58 L.Ed.2d 552 . In Parklane, Justice Stewart, speaking for the court, unmistakably expressed the view that offensive collateral estoppel is particularly inappropriate for use in mass tort litigation. He did so by resort to an example as follows:
“In Professor Currie’s familiar example, a railroad collision injures 50 passengers all of whom bring separate actions against the railroad. After the railroad wins the first 25 suits, a plaintiff wins in suit 26. Professor Currie argues that offensive use of collateral estoppel should not be applied so as to allow plaintiffs 27 through 50 automatically to recover.” Id. at 331 , 99 S.Ct. at 651 . (Citations omitted).
It may be readily seen that Professor Cur-rie’s example demonstrates the concerns expressed by the court in Hernandez, supra, 61 F.R.D. at 561 . In this context, therefore, I would observe that collateral estoppel is not a genuine concern if multiple claims were required to be brought by each plaintiff against NIPSCO. Nevertheless, because Bolka has satisfied the requirements of Rule 23(B)(3), failure to satisfy 23(B)(1) is not fatal to the class certification.
Upon this basis, I concur.