Petition for Writ of Certiorari — Treasure Chest Casino v. Mullen

Supreme Court brief2000

Ask Donna

What actually matters in this document.

Text

( \ Supreme Court, 0,5

FILED

99 1036 DEC 1 6 1999"

ee ee kc

iclE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

TREASURE CHEST CASINO, et al.,

Petitioners,

¥.

DENNIS MULLEN, et al.,

Respondents.

On PETITION For Writ OF CERTIORARI

To Tue UNITED STATES CourRT OF APPEALS

For THe Firta Circuit

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. KELLy III *

ADAMS AND REESE LLP

4500 ONE SHELL SQUARE

New Or.eans, LA 70139

(504) 581-3234

Counsel for Petitioners

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTION PRESENTED

Do the Seventh Amendment and Federal Rule of Civil

Procedure 23(b)(3) permit a district court to certify a class

that will necessarily require different juries to adjudicate

separately the inextricably intertwined issues of negligence,

proximate cause, and comparative negligence, where various

class representatives attribute their purported injury to various

and discreet causes?

PARTIES TO THE PROCEEDING

Petitioner

The Petitioner in this case is defendant, Treasure

Chest Casino, LLC (“Casino”).

Respondents

The Respondents are Dennis Mullen, Sheila Bachemin

and Margaret Phipps, the plaintiff class representatives.

TABLE OF CONTENTS

FUSER SMIEU WEEN NGS ki ee ee a kh ee eee i

PAR Tipo 00) See PRUCEEUING 2.0.60. ees ii

po Aa ee na, yee ee arr ere ill

Pe PAA APRA ok os ke ewe en es Vv

NN 2 gay cra pnd a4 a ok 0 we ew Oe l

EE 4. oy 4 3-4 REA SP RT A A ]

CONSTITUTIONAL PROVISIONS, STATUTES

pee ee NU UINE ee eb eer ss ]

RTM MERRITT ST REE GO ee ]

REASONS FOR GRANTING THE WRIT ......... 4

I. THIS COURT SHOULD GRANT

CERTIORARI BECAUSE THE

CASINO’S SEVENTH

AMENDMENT RIGHTS HAVE

MEY VEMREED Se ie ia 4

ill

II. THIS COURT SHOULD GRANT

CERTIORARI TO PRECLUDE

CIRCUIT COURTS FROM

SPLITTING NEGLIGENCE FROM

CAUSATION AND COMPARATIVE

NEGLIGENCE INTO SEPARATE

TRIAL PHASES TO CIRCUMVENT

THE REQUIREMENTS OF

PURE a 6a eR rae ae ei 15

Il. THE JUDGMENT DEFIES THE

CLEAR HOLDINGS OF AMCHEM

AND ORTIZ WITH REGARD TO

TRE APVEQUACT § GF

ig ee yt nara ee 24

LAMAN 6 ks ck Mee eR eRe eee 26

APPENDIX

Appendix A

Court of Appeal's Opinion - 8/19/99 ........ la

Appendix B

District Court Order & Reasons - 8/29/97 .... 29a

Appendix C

Court of Appeal's Order on Petition for

URN =~ EP OE eee ee eo 44a

eu hs 6a ONS SUA ARN Peed NDA LNG lt

TABLE OF AUTHORITIES

Cases

Allison v. Citgo Petroleum Corp.

is Foe Wee CG AOD 6k bk ok ce 19

Amchem Products, Inc. et al. v. Windsor et al.

521 U.S. 591, 117 S.Ct. 2231,

OF 3).3.. 0: COs CD) ok Se passim

Atlantic and Gulf Stevedores, Inc. v.

Ellerman Lines, Ltd.

oon U.S. 355, C2 S.Ct. TE CGR)... os we 7

Baltimore & Carolina Line, Inc. v. Redman

295 U.S. 654, 55 S.Ct. 890 (1935) ......... 6

Barnes v. The American Tobacco Co.

176 F.R.D. 479 (E.D. Pa. 1997)

aff'd, 161 F.3d 127 (3d Cir. 1998),

cert. denied, 119 S.Ct. 1760, 143

LiMn OPE CINE ks oo een Cee 21, 2

Beacon Theatres, Inc. v. Westover

359 U.S. 500, 79 S.Ct. 948 (1959) ......... &

Castano v. American Tobacco Co.

547.30 704 (a CH OD ok eS. 4,19

Chauffeurs, Teamsters and Helpers,

Local No. 391 v. Terry

494 U.S. 558, 110 S.Ct. 1339 (1990),

quoting Parsons v. Bedford, 3 Pet. 433,

OF i, Ta Tae CO Oo ek VE ek 7

Cimino v. Raymark Industries, Inc.

bie F.sh> Lo Sp. Re ee 13

Curtis v. Loether

415 U.S. 189, 94 S.Ct. 1005 (1974) ........ 9)

Dairy Queen, Inc. v. Wood

369 U.S. 469, 82 S.Ct. 894 (1962) ......... 8

Dimick v. Schiedt

253 US: $74, 33: SG Bees ee) he bee ccs 8,9

Gavagan v. United States

955 F.2d 1016 (Sth Cir. 1992) ......... 19, 22

Gen. Tel. Co. of the Southwest v. Falcon

457 U.S. 147, 102 S.Ct. 2364 (1982)........ 24

Granfinanciera, S.A. v. Nordberg

492 U.S. 33, 109 S.Ct. 2782 (1989) ........ 9

In re Fibreboard

$93: F.28 TOG GO" Ck, Pe a bt te ee 18

In re Hotel Tel. Charges

500 F.2d GS at. APs wo ate 18

In re Joint E.& S. Dist. Asbestos Litigation

962 F.2d 721 Gee CR, TRRR as ee ie a 24

In the Matter of Rhone-Poulenc Rorer Inc.

$1 F.3d 1293 C7 U.. Boe) a cs eee 11, 13

LN ihn Gh aa Rt li,

RASS Mlle hae abel eave 8 Di! Re gl Ll dd aca” ve

~ 2 Neer (ah eons

Kline v. Coldwell Banker

508 F.2d 226 (9th Cir.)

cert. denied,421 U.S. 963 (1974) .......... 18

National Super Spuds v. New YorkMercantile Exchange

COP ree Pee: TO) 24

Ortiz v. Fibreboard Corp.

119 S.Ct. 2295,

So Re bs 24, 25

Schulz v. Pennsylvania R.R. Co.

350 U.S. 523, 76 S.Ct. 608 (1956) ......... 7

Statutes

Federal Rule of Civil Procedure 23(a)(4) .......... 24

Federal Rule of Civil Procedure 23(b)(3) ....... passim

tae. 6 ee, eee As os Se Se le 7

Be Ren PI no kc Be RR ee ek l

Se rn ek i es Se 2, 15

gf | SESE ana ierner a Sette ee caer 15, 23

Uo Oe oe Sa ee PE |

Other Authorities

Harper, Jones & Gray, The Law of Torts

I ats ieee ie 22

Leslie W. O’Leary, “Mass Tort Class Actions:

Wil Amchem Spawn Creative Solutions?”

6S Def. Couns. J. 469 (1998)... 6 oes 15

Nicolas P. Terry, “Collapsing Torts,”

ao Oe 2 Rv. FET ID) wee 21

Vii

OPINIONS BELOW

The opinion of the Court of Appeal (Appendix A) is

reported at 186 F.3d 620. The memorandum “Order and

Reasons” of the district court approving class certification

(Appendix B) is not reported.

JURISDICTION

The judgment of the Court of Appeal denying

Petitioner’s application for Rehearing En Banc and “[t]reating

the Petition for Rehearing En Banc as a Petition for Panel

Rehearing,” (Appendix C) was entered on September 17,

1999. This Petition for Writ of Certiorari is filed within

ninety (90) days of the denial of the Application for Rehearing

En Banc, which was treated as a Petition for Panel Rehearing.

This Court’s jurisdiction is therefore invoked pursuant to 28

U.S.C. § 1254(1) and 2106.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

Pertinent provisions of the Seventh Amendment, the

Rules Enabling Act, and Fed. R. Civ. P. 23 are set forth in

the text of the Petition.

STATEMENT OF THE CASE

Treasure Chest Casino (“Casino”) appealed an order

certifying a class of its current and former employees who

suffer some form of “occupational respiratory illness” as a

result of an allegedly defective ventilation system on board

the M/V TREASURE CHEST CASINO. Plaintiffs allege that

the ventilation system renders the vessel unseaworthy under

the general maritime law and sue for maintenance and cure

]

SBMA i Ha pst tic aR EN BOR Aa) Sie ad

under the Jones Act. However, each of the three class

representatives has widely varying complaints about what has

caused their various ailments. Mullen and Bachemin

complain of second hand smoke. (App. A, p. 26a). Phipps

complains of dust on air vents, garbage and debris, and germs

on employee radios. Ibid. Mullen points to the Casino’s

temperature. Ibid. Bachemin complains of paint fumes. Ibid.

No two complaints are alike.

Moreover, it is beyond dispute that the respiratory

illnesses of which plaintiffs complain are not uniquely caused

by a casino environment, a riverboat environment, a vessel,

or any other condition which might connect a “respiratory

illness” to the Casino or its ventilation system. Evidence in

the record shows that virtually every American has

experienced bronchitis, allergies, a common cold, a runny

nose, hay fever, asthma, and every other condition

complained of in this case. (Petitioner’s Original Brief, p.

17; Reply Brief p. 1.) This is not surprising, as the potential

sources of those conditions are unlimited and can be caused

by anything and everything in any environment, anywhere in

the world. Ibid. Thus, there is no allegation in this case that

the diseases alleged have any sort of “medical footprint” (or

causal connection) that can uniquely tie the class member’s

specific complaint to the air aboard the Casino.

On June 25, 1997, the district court conducted its

hearing on class certification. On September 2, 1997, the

district court issued its “Order and Reasons” (“Order”)

certifying this matter as a class action. (App. B, p. 28a).

The Casino appealed pursuant to 28 U.S.C. § 1292(b) and on

August 19, 1999, a Panel of the Fifth Circuit Court of Appeal

affirmed class certification in a 2-1 decision, opining that a

Phase I jury could adjudicate the “common” issue of the

Casino’s negligence by determining whether the ventilation

system was defective. (App. A, p. 12 a- 14a). The Court of

Appeal contemplated that different juries could then in Phase

II separately adjudicate proximate cause, comparative

negligence, and damages for each of the approximately 100

to 200 class members.' Id.

Under the trial procedure contemplated by the Court

of Appeal,’ assuming that the Phase I jury found the

ventilation system to be defective, approximately 30

successive juries would have to determine in Phase II whether

each of the class members’ widely varying ailments were

proximately caused by the defect in the ventilation system.°

Moreover, because the 30 successive juries could not know

the precise basis upon which the Phase I jury found the

ventilation system to be defective, each of these juries would

necessarily have to hear this evidence again in order to

determine proximate cause. For example, if the ventilation

system was found to be defective because it did not

' See also Order, App B, pp. 33a-34a, in which the District Court

notes that Plaintiffs claim that there are 200 potential class

members, but that Plaintiffs have presented evidence that the

number of potential claimants will be between 100 to 150 persons.

* The District Court did not adopt a specific trial plan beyond

noting its “option” to bifurcate common issues from individual ones

if necessary. (App. B, pp. 38a-39a). The Casino argued on appeal

this was itself a reason that class certification was improper. The

Court of Appeal rejected this argument without discussion, instead

itself suggesting its own trial plan (which the Casino shows here is

unconstitutional). See p.5, infra.

> Assuming a median number of 150 plaintiffs and trials of five

plaintiffs at a time, there would be 30 trials in Phase II, each with

a separate jury.

adequately filter dust or germs, the successive juries would

have to hear this evidence in order to determine whether this

could have proximately caused a class member’s ailment

allegedly related only to second-hand smoke.

_ Ina dissenting opinion, Judge Emilio Garza cited the

Seventh Amendment and Castano v. American Tobacco Co.,

84 F.3d 734 (Sth Cir. 1996) to explain that the “ superiority”

requirement of class certification was not satisfied because

Phase II juries would necessarily have to reconsider the

Casino’s negligence, notwithstanding the Phase I jury’s prior

adjudication of this same issue. (App. A, pp. 26a-27a).

Judge Garza explained that this reconsideration of issues by

separate juries not only prevents a class action from being

superior, it also violates the Casino’s Seventh Amendment

right to have a single jury consider a common factual issue.

Ibid.

On September 2, 1999, the Casino filed its Petition for

Rehearing En Banc in the Court of Appeal. On September

17, 1999, the Court, treating the Petition for Rehearing En

Banc as a Petition for Panel Rehearing, denied the Petition.

(App. C, p. 44a).

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE CASINO’S SEVENTH

AMENDMENT RIGHTS HAVE BEEN

VIOLATED.

Defendant appealed the Rule 23(b)(3) certification

based, in part, on the district court's lack of any specific trial

plan in its Order and Reasons. (App. B, p. 39a). In its

decision, the district court found that superiority was met

because the Court “has the option of bifurcating the legal and

factual questions common to the proposed class from the

questions unique to the individual members.” Ibid. It did not

order bifurcation, however, and it did not identify what issues

might be tried in which phases. Ibid. On appeal, the Casino

argued:

In the absence of any trial plan, articulated

theory of recovery, or other indication of how

this case will proceed on issues of liability for

each class member, there can be no

determination of whether the class action is a

superior procedural device.

(Casino’s Original Brief for Appellant p. 8).* Rather than

reversing the decision due to the lack of any trial plan,

however, the Court of Appeal affirmed certification and

ordered a bifurcated trial before separate juries in separate

phases. (App. A, p. 15a). The Court then asserted that it had

avoided any prohibited Seventh Amendment deprivation “by

leaving all issues of causation for the phase-two jury.” (App.

A, p. 16a). It held that when a jury considers comparative

negligence, “the focus is upon causation” and therefore,

according to the Court’s logic, the separate juries will not be

considering overlapping issues of fact and law. (App. A, p.

16a). But as its name suggests, the doctrine of comparative

negligence in this type of case mandates that the plaintiff's

own negligence be compared to the conduct of the defendant.

Ordering separate juries to consider such inextricably

See, also, App. A, p. 12a, in which the Court of Appeal’s

decision acknowledges this argument: “Treasure Chest argues that

the district court abused its discretion by failing to adequately

consider how a trial on the merits would be conducted.”

intertwined issues of fact is a violation of the Seventh

Amendment.

A. The Seventh Amendment guarantees the

right to a trial by jury.

The Seventh Amendment to the United States

Constitution guarantees litigants the right to a trial by jury in

most types of cases. It provides:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by jury shall be preserved, and no

fact tried by a jury shall be otherwise

reexamined in any Court of the United States,

than according to the rules of the common

law.

The Seventh Amendment explicitly guarantees not

only the basic right to have a case tried by a jury, but also the

equally important parallel right that the determinations of one

jury will not be undermined by reexamination by another

jury. As this Court has explained, “the amendment not only

preserves that right but discloses a studied purpose to protect

it from indirect impairment through possible enlargements of

the power of reexamination existing under the common law

” Baltimore & Carolina Line, Inc. v. Redman, 295

U. S. 654, 657, 55 S.Ct. 890, 891 (1935). Accordingly, once

a jury in a case issues a finding of fact, it is generally

unconstitutional for a subsequent jury in the same case to

reconsider the same issues that have already been tried by the

first jury.

The Seventh Amendment right to a trial by jury

squarely applies to the case at hand. The phrase “Suits at

common law” has been frequently interpreted by this Court

to mean suits in which legal rights are to be ascertained and

determined. In other words, “the amendment then may well

be construed to embrace all suits which are not of equity and

admiralty jurisdiction, whatever may be the peculiar form

which they may assume to settle legal rights.” Chauffeurs,

Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S.

558, 564, 110 S.Ct. 1339, 1344 (1990), quoting Parsons v.

Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830). Moreover,

the “right extends to causes of action created by Congress.”

Terry at 565, 110 S.Ct. at 1344. For example, there is a

Seventh Amendment right to a jury trial on any claim brought

pursuant to the Jones Act, 46 U.S.C. § 688, such as the

claims in the instant case. Schulz v. Pennsylvania R.R. Co.,

350 U.S. 523, 523, 76 S.Ct. 608, 609 (1956); Atlantic and

Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355,

360, 82 S.Ct. 780, 784 (1962).

Accordingly, in a case such as this one a litigant has

a constitutional right to a trial by jury, and it is

unconstitutional to indirectly impair that right by allowing a

subsequent jury to reexamine an issue that has already been

decided by a previous jury.

B. This Court will grant certiorari when a

Seventh Amendment right to a jury trial is

in jeopardy.

The right to a trial by jury is a cornerstone of our

judicial system. Accordingly, this Court has expressed -- in

the strongest of terms -- the importance of safeguarding this

right: “Maintenance of the jury as a fact-finding body is of

such imporiance and occupies so firm a place in our history

ee eee

ouktasegmeshs titled

BERRI Sia iantnbita vey

ee en ee aS

Eel SRR Big heS LARA AS AB Oe

and jurisprudence that any seeming curtailment of the right

to a jury trial should be scrutinized with the utmost care.”

Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301

(1935) (emphasis added).

Because this right is so fundamental, this Court has

frequently emphasized that courts should go out of their way

to safeguard this right. For courts of appeal, this means that

they are instructed to exercise the extraordinary remedy of

mandamus to remedy any potential curtailment of the right to

a jury trial. As this Court has stated, “whatever differences

of opinion there may be in other types of cases, we think that

the right to grant mandamus to require jury trial when it has

been improperly denied is settled.” Beacon Theatres. Inc. v.

Westover, 359 U.S. 500, 511, 79 S.Ct. 948, 957 (1959).

And this Court subsequently stated that Beacon Theatres

“emphasizes the responsibility of the Federal Courts of

Appeal to grant mandamus where necessary to protect the

constitutional right to trial by jury... .” Dairy Queen, Inc.

v. Wood, 369 U.S. 469, 472, 82 S.Ct. 894, 897 (1962)

(emphasis added).

For this Court, the fundamental nature of the right to

a jury tria! means that this Court should grant certiorari to

remedy the curtailment of that right. For example, this Court

granted certiorari in Beacon Theatres because “any seeming

curtailment of the right to a jury trial should be scrutinized

with utmost care.” 359 U.S. at 501, 79 S.Ct. at 952, quoting

Dimick, supra. Likewise, in Dair ueen, this Court

“granted certiorari because the action of the Court of Appeal

seemed inconsistent with protections already clearly

recognized for the important constitutional right to trial by

jury in our previous decisions.” 369 U.S. at 470, 82 S.Ct. at

896.

This Court similarly decided -- “[iJn view of the

importance of the jury trial issue” in Civil Rights Act of 1968

cases -- to grant certiorari in Curtis v. Loether, 415 U.S. 189,

191, 94 S.Ct. 1005, 1007 (1974). And even when the right

to a jury trial was somewhat unclear, this Court has “granted

certiorari to decide whether petitioners were entitled to a jury

trial... .” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,

38, 109 S.Ct. 2782, 2788 (1989).

Considering that this Court has “emphasized the

responsibility” of courts of appeal to use the extraordinary

remedy of mandamus to protect the right to a jury trial, and

considering that this Court has itself not hesitated to grant

certiorari On numerous occasions when there was any

“seeming curtailment” of the right to a jury trial, the need for

this Court to grant certiorari is unquestionable in cases in

which the Seventh Amendment right to a jury trial is

endangered.

This is one of those cases.

c The trial plan adopted by the Court of

Appeal violates the Casino’s Seventh

Amendment rights, and thus this Court

should grant certiorari.

This is a case in which there has been at least a

“seeming curtailment” of the Casino’s Seventh Amendment

right to a jury trial. Dimick, 293 U.S. at 486, 55 S.Ct. at

301. In an attempt to justify the fairness of class certification,

the Court of Appeal adopted a trial plan in this case that had

not been adopted by the trial court -- a trial plan that

unconstitutionally calls for the reexamination of the verdict of

a Phase I jury by a Phase II jury. (App. A, pp. 14a-17a).

For this reason, this Court should grant certiorari.

ibid ich Yee (GAR aight Leones:

Ph is ei aay

RDA Dade: Tam Agha

When the District Court in this case granted class

certification, it decided not to adopt any specific trial plan,

instead simply noting that it had “the option” to decide in the

future to bifurcate common issues from individual issues if

necessary. (App. B, p. 39a). Indeed, the Casino argued in

its appeal to the Court of Appeal that the absence of a trial

plan was itself a fatal flaw with the District Court’s approach

and thus a reason to reverse class certification. (See, p. 5,

supra).

But instead of acknowledging this flaw in the trial

court’s opinion, the Court of Appeal decided to adopt a trial

plan itself. In Phase I, a jury would decide whether the

Casino was negligent and/or whether the Casino was

unseaworthy because of a faulty ventilation system. Phase I

would not include any finding that the conditions on the

Casino did cause any injury, but instead only that they could

potentially cause injury for one or more class members. In

Phase II, different juries would decide whether this negligence

and/or unseaworthiness actually did cause any injuries to

specific class members, and the degree to which the

negligence and/or unseaworthiness was the cause of the class

member’s injury as opposed to some other contributing cause

including the comparative negligence of the class member

himself. See Mullen, (describing trial plan), (App. A, 14a-

17a), 186 F.3d at 628-29.°

Equally problematic is the means by which the Court of Appeal

reached its decision as to the Seventh Amendment. Even if a

doctrinal distinction between negligence and comparative negligence

does exist, such does not alone end the inquiry of whether factual

issues are so intertwined as to prevent their separate consideration

under the Seventh Amendment. The decision may be used by

future courts as a license to evade Seventh Amendment scrutiny.

For example, under the Court of Appeal’s trial plan,

a Phase I jury might decide that the Casino was negligent

and/or unseaworthy because the ventilation system failed to

adequately ventilate tobacco smoke, because of the presence

of dust on the air vents, and because of the temperature being

too hot, and the jury might further decide that there was no

negligence or unseaworthiness with regards to the other

complaints of the named plaintiffs (e.g., paint fumes, cold

temperature and germs on radios). In Phase II, an individual

class member whose claim is being tried by a separate jury

could then try to show that he suffered injuries as a result of

tobacco smoke and/or dust on air vents. The Casino might

then rebut these claims by showing, among other things, that

the class member’s injuries were primarily the result of

exposure to tobacco smoke, dust or any of millions of other

air contaminants at places other than the Casino, places at

which others were responsible for the air quality (maybe the

plaintiff himself). After all, there is no dispute that the

respiratory illnesses of which plaintiffs complain are not

unique to riverboat casinos -- evidence in the record shows

that virtually every American has experienced bronchitis,

allergies, a common cold, a runny nose, hay fever, asthma,

and every other condition complained of in this case as a

result of a multitude of causes. (App. A, 23a).

Because the same facts regarding the Casino’s conduct

would be examined by both the Phase I jury (in deciding

negligence) and the Phase II juries (in deciding proportional

fault and comparative negligence), the Court of Appeal’s trial

plan violates the Seventh Amendment. The Seventh Circuit

explained this problem with absolute clarity in a case in which

it granted a writ of mandamus and instructed a district court

judge to decertify a class because of Seventh Amendment

problems. In the Matter of Rhone-Poulenc Rorer Inc., 51

F.3d 1293 (7th Cir. 1995). The trial plan at issue in Rhone-

ie CRAP MN) see

Poulenc was similar to the trial plan embraced by the Court

of Appeal in this case. As the Seventh Circuit explained, “the

first jury will not determine liability. It will determine merely

whether one or more of the defendants was negligent under

one of the two theories.” Id. at 1303. Afterwards, “a second

(and third, and fourth, and hundrecth, and conceivably

thousandth) jury will have to decide, in individual follow-on

litigation by class members . . . such issues as comparative

negligence -- did any class members knowingly continue to

use unsafe blood solids after they learned or should have

learned of the risk of contamination with HIV? -- and

proximate causation.” Id. Such a plan, the Seventh Circuit

held, “is inconsistent with the principle that the findings of

one jury are not to be reexamined by a second, or third, or

nth jury.” Id. The Court explained:

Both issues overlap the issue of the defendants’

negligence. Comparative negligence entails,

as the name implies, a comparison of the

degree of negligence of plaintiff and

defendant. Proximate causation is found by

determining whether the harm to the plaintiff

followed in some sense naturally,

uninterruptedly, and with reasonable

probability from the negligent act of the

defendant. It overlaps the issue of the

defendants’ negligence even when the state's

law does not (as many states do) make the

foreseeability of the risk to which the

defendant subjected the plaintiff an explicit

ingredient of negligence. A second or

subsequent jury might find that the defendants’

failure to take precautions against infection

with Hepatitis B could not be thought the

proximate cause of the plaintiffs’ infection

with HIV>a different and unknown blood-

borne virus. How the resulting inconsistency

between juries could be prevented escapes us.

Rhone-Poulenc, 51 F.3d at 1303 (citations omitted).

The Seventh Circuit’s analysis and holding in Rhone-

Poulnec was correct, and it cannot be reconciled with the

holding of the Court of Appeal in the instant case. The Court

of Appeal simply did not grasp the problem noted by the

Seventh Circuit. The court mistakenly thought that the Phase

II jury would not reexamine the findings of the Phase I jury

merely because the element of the cause of action that the

Phase I jury would decide was only “whether Treasure

Chest’s conduct was negligent or the Casino unseaworthy”

whereas the cause of action element that the Phase II jury

would decide was “only the degree to which those conditions

were the sole or contributing cause of the class member's

injury.” (App. A, p. 16a). Based on this purported

distinction, the court erroneously concluded that “no Seventh

Amendment implications affect our review of the district

court’s superiority finding.” Id. Indeed, the decision of the

Court violates its own well-known precedent in Cimino v.

Raymark Industries, Inc., 151 F.3d 297, 321 (Sth Cir. 1998).

But the Seventh Amendment does not say that it

merely bars the re-trial of an element of a cause of action.

Instead, it prohibits the retrial of facts: “no fact tried by a jury

shall be otherwise reexamined” by another jury. U.S. Const.

Amend. VII. A Phase I jury will have to consider facts

relating to the Casino’s conduct to determine whether that

conduct rose to the level of negligence. Likewise, to

determine unseaworthiness, the Phase I jury will have to

consider facts concerning the conditions on the ship to decide

whether those conditions were sufficiently bad to rise to the

level of unseaworthiness. In Phase II, these exact same facts

would have to be reexamined and reanalyzed. To determine

comparative negligence, a Phase II jury will have to decide

once again how bad the conduct of or conditions on board the

Casino were in order to compare it to other conduct or

conditions, including the plaintiff's own conduct in the case

of contributory negligence. The Court of Appeal was wrong

to conclude that because one jury is told to decide

“negligence” and another jury is told to decide “contributory

and comparative negligence,” this means that no fact tried by

one jury would be reexamined by a second jury. This was

fully recognized by the Seventh Circuit, and the split between

the Seventh and Fifth Circuits on this critical issue supports

the granting of certiorari.

In addition to conducting a flawed Seventh

Amendment analysis, the Court of Appeal incorrectly

Suggested that it might be unnecessary to worry about the

Seventh Amendment because the right to a jury trial had not

been argued on appeal. (App. A, pp. 15a-16a).° The Court

of Appeal’s majority opinion ignores that the Seventh

Amendment could not be a ripe issue on appeal to that court

when a trial plan had yet to be adopted. Indeed, the Casino

urged the district court to adopt a trial plan, and the Casino

argued on appeal that the very lack of a trial plan was a basis

to any Class certification. (See, p. 5, supra).

Further, because of the very language in the Court of

Appeal’s majority opinion regarding the Seventh Amendment,

the Casino has, at least up to this point, been deprived of its

fundamental Seventh Amendment rights without even having

* Despite the suggestion, the Court of Appeals held that its trial

plan did not violate the Seventh Amendment.

had a full and fair hearing on these rights. This is because the

Seventh Amendment was not even at issue until the Court of

Appeal issued its opinion, and yet in this same opinion the

Court of Appeal suggests that the Casino somehow waived

any Seventh Amendment argument. This simply cannot be.

Given that the Seventh Amendment right is a fundamental

right, this in and of itself supports the granting of certiorari.

Il. THIS COURT SHOULD GRANT CERTIORARI

TO PRECLUDE CIRCUIT COURTS FROM

SPLITTING NEGLIGENCE FROM CAUSATION

AND COMPARATIVE NEGLIGENCE INTO

SEPARATE TRIAL PHASES TO CIRCUMVENT

THE REQUIREMENTS OF RULE 23(b)(3).

A. The class members in this class were

undisputedly exposed to different conditions

for different amounts of time in different

ways, yet the Court of Appeal found this

irrelevant to the Rule 23(b)(3) analysis.

There are those who commend “creative solutions” to

this Court’s holding in Amchem Products, Inc. et al. _v.

Windsor etal., 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed. 2d

689, 65 U.S.L.W. 4635 (1997). See, Leslie W. O'Leary,

“Mass Tort Class Actions: Will Amchem Spawn Creative

Solutions?” 65 Def. Couns. J. 469 (1998). Indeed, this

Court warned of a tendency for courts to be “ever more

‘adventuresome’” in applying Rule 23 and reminded courts

that the Rules Enabling Act instructs that rules of procedure

“shall not abridge, enlarge or modify any substantive right.”

28 U.S.C. § 2072(b); Amchem, 117 S.Ct. at 2244.

The Court of Appeal’s decision at issue represents a

creative solution to the clear holding of Amchem. It

EEE

Te ee OR ne ge ee

dismisses the varying degrees of exposure, the lack of any

causal connection or “medical footprint” that might support

a finding of liability between the actions of the defendant and

the purported injury of the plaintiff, and the lack of any

particular complaint by which to test the superiority,

predominance or adequacy of representation of the class. To

remedy those problems, the Court of Appeal created a plan

for bifurcated trials. But such a plan reaps a host of new and

irrefutable difficulties, not the least of which are the

deprivation of the Casino’s Seventh Amendment rights and

the risk of illegitimate, contradictory, and myriad verdicts.

In Amchem, this Court clarified plaintiff's burden of

proving that common issues predominate over the individual

issues in a Federal Rule of Civil Procedure 23(b)(3) mass tort

Class action. 117 S.Ct. at 2250-51. In decertifying the

Amchem class, this Court noted the following “disparate

questions undermining class certification:”

Class members were exposed to different

asbestos-containing products, for different

amounts of time, in different ways, and over

different periods. Some class members suffer

no physical injury or have only asymptotic

pleural changes, while others suffer from lung

cancer, disabling asbestos, or from

mesothelioma. . . . Each has a different

history of cigarette smoking, a factor that

complicates the causation inquiry. . . .

Amchem, 117 S.Ct. at 2250 (citing 83 F.3d 610, 626). These

factors were highlighted by the Third Circuit “[i]n contrast to

mass torts involving a single accident.” Id. It is on these

factors that this Court decertified the class.

Amchem thus makes clear that class cohesion in a

mass tort setting may be undermined by disparities in

exposure, the extent of injuries and other conditions causing

or contributing to the complaint. Amchem, 117 S.Ct. at 2250.

Despite Amchem, the Court of Appeal found that disparities

in various degrees of exposure and disparities among the

various complaints of the class representatives were not

relevant to the Rule 23 inquiry:

Here, by contrast [to Amchem], the putative

class members are all symptomatic by

definition and claim injury from the same

defective ventilation system over the same

general periods of time.

(App. A, p. 12a).

There is no dispute that this is a class involving

exposure to the Casino’s ambient air during different shifts

and times, at different levels of concentration, among

individuals of varying life experiences. There is no dispute

that there is no single accident involved in this case. And the

variance in class members’ life experiences is exponentially

important in this case, because the causes of a “respiratory

illness” are undisputedly universal -- pollen, dust and smoke

exist, in infinitely varying concentrations, in homes,

automobiles, shopping malls, schools, neighborhoods and

churches, as well as in workplaces. The pollutants are

indoors and out, on water and land. Unlike an asbestos

product that can be connected to a situs through proof of

probable or actual exposure, the Casino does not have a

monopoly on pollen, dust or smoke.

Coinmon issues simply cannot predominate in the

absence of any single thread (or “medical footprint”)

connecting the conduct of the defendant to the injury of the

plaintiff: a class of persons who have had a common cold.

Therefore, this is precisely the type of class this Court warned

against certifying under 23(b)(3) as having predominantly

common issues. Amchem. 521 U.S at 615, 117 S.Ct. at

2245-46. In In re Fibreboard, 893 F.2d 706, 712 (5" Cir.

1990) the circuit court reasoned that, in a mass exposure

personal injury action:

There are too many disparities among the

various plaintiffs for their common concerns to

predominate. The plaintiffs suffer different

diseases, some of which are more likely to

have been caused by [the product] than others.

The plaintiffs were exposed to [the product] in

various manners and to varying degrees. The

plaintiffs’ lifestyles differed in material

respects.

Id. at 712. As in Fibreboard, variations of fact in this matter

make it clear that common issues do not “predominate over

questions affecting only individual members.” Id. at 712.

Plaintiffs’ allegations “raise such individualized questions of

law and fact as to overwhelm whatever kernel of common

issues migiit be involved.” In re Hotel Tel. Charges, 500

F.2d 86, 88 (9th Cir. 1974); see also, Kline v. Coldwell

Banker, 508 F.2d 226, 236 (9th Cir.) cert. denied, 421 U.S.

963 (1974).

B. The Court of Appeal’s “superiority”

analysis is fatally flawed because the

Casino’s negligence cannot be determined

separately from comparative negligence and

proximate cause. Juries will be rendering

illegitimate and potentially contradictory

verdicts

The bifurcated trial plan not only violates the Casino's

Seventh Amendment rights and the Rules Enabling Act, it

jeopardizes the “superiority” requirement of Rule 23(b)(3) by

creating substantial risk of inconsistent and invalid verdicts.

An examination of the “superiority” requirement of Fed. R.

Civ. P. 23(b)(3) “requires an understanding of the relevant

claims, defenses, facts, and substantive law presented in the

case.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 419

(Sth Cir. 1998). Accordingly, as Judge Garza notes in his

dissent, it is an abuse of discretion to certify a class action

without adequately considering “how a trial on the alleged

causes of action would be tried.” Castano, 84 F.3d at 752.

An examination of how this case might be tried under the

Panel opinion’s proposed bifurcation reveals that the Phase |

and Phase II issues are too intertwined to be considered

separately. Certiorari should be granted to prevent Circuit

Courts from circumventing Amchem and, simultaneously,

using adventuresome bifurcation schemes to reach

certification where substantive rights are implicated.

As Judge Garza notes in his dissent, “a defendant is

liable for negligence only when the plaintiff's injuries are

caused by the same conditions that render the defendant's

conduct negligent.” (App. A, p. 24a), citing Gavagan v.

United States, 955 F.2d 1016, 1020 (Sth Cir. 1992). Thus,

any determination in Phase II of whether a plaintiff was

injured by the same conditions that render the Casino's

conduct negligent necessarily involves reconsideration of the

same conditions considered in Phase I. The plaintiffs must

therefore do more than point to a common issue (namely,

whether there was any defect in the ventilation system at the

Casino) to support a Rule 23(b)(3) class.

Thus, the most that a Phase | judgment could

accomplish is a finding that the ventilation system could cause

injuries in hypothetical Circumstances. This is no

accomplishment because it does nothing to reduce the issues

to be tried in Phase II.’ In Phase II, the jury would look at

each individual class member and decide, in light of the

multiple possible exposures unique to that person, whether

any problem with the ventilation system was the proximate

cause of coughing, having a cold, getting asthma, or any

other ailments alleged. Any Phase I determination of

negligence in a vacuum would be of no assistance. Even if a

ventilation system could cause injuries for some people, this

conclusion does not reduce the work that must be done in

Phase II to determine whether the conditions at the Casino to

which a particular class member was exposed were a

proximate cause of his or her damages. As one court

explained when rejecting certification of a proposed class of

smokers for similar reasons:

Unless it is proven that cigarettes always cause

or never Cause addiction, “the resolution of the

general causation question accomplishes

nothing for any individual plaintiff.”

Compounding both the Seventh Amendment and _ the

“Superiority” problems inherent in this case is the fact that there are

likely to be numerous phase-two juries, not one, as apparently

contemplated by the Court of Appeal in its consideration of the

issues.

Indeed, the jury would still be required to

determine for each class member whether he

or she is addicted to cigarettes, and if so,

whether defendants (and which defendant)

caused that addiction.

Barnes v. The American Tobacco Co., 176 F.R.D. 479, 501

(E.D. Pa. 1997) (citations omitted), aff'd, 161 F.3d 127 (3d

Cir. 1998), cert. denied, 119 S.Ct. 1760, 143 L.Ed.2d 791

(1999).

The court cannot determine what risk of injury the

Casino unreasonably failed to prevent in the face of varying

and seemingly limitless causal agents and complaints. And

unless the ventilation system always caused a particular

injury, which is not and cannot be alleged, a finding of

“general causation” accomplishes nothing to advance the

adjudication of common claims. Barnes, 176 F.R.D. at 501.

Judge Garza properly noted in his dissent that if these

juries were not to consider the same facts, then there is even

a greater risk -- the risk of illegitimate jury verdicts. App. A,

p. 24a). As Judge Garza explained, this is because such an

approach would not even properly adjudicate the issue of the

Casino’s negligence. (App. A, p. 26a D 27a). The hazards

found by the Phase I jury to constitute negligence might not

be the same hazards upon which the Phase II juries would

determine proximate cause. Id.°

* The extent to which each plaintiff actually knew of the risk of

contact with tobacco smoke or other contaminants in a casino and

voluntarily confronted that risk is an issue individual to each

plaintiff. See, e.g., Nicolas P. Terry, Collapsing Torts, 25 Conn.

L. Rev. 717, 732-33 (1993) (and numerous articles cited

therein)(defining “assumption of risk” and questioning whether the

The suggestion that a Phase | jury can make a

determination of negligence without making a consideration

of “those risks or hazards whose likelihood made the conduct

unreasonably dangerous” (i.e. the alleged causal agent,

agents, Or multiple combinations of various different agents)

does violence to Rule 23 and negligence law.

The determination of whether a plaintiff “ unreasonably

ran a foreseeable risk of injury” turns upon both the conduct

of the defendant and the nature of the precise risk of harm

alleged. Harper, Jones & Gray, The Law of Torts (2d ed.

1986.) Vol. 3 18.2 at 655. The scope of the Casino's duty,

Which is likewise necessary to determine negligence, is

determined by consideration of injury itself. Gavagan, 955

F.2d at 1020; Harper, supra, at Vol. 3, § 18.2 at 655.

The Panel decision implicitly Suggests that the Casino

may be held “negligent as a matter of law” or “legally

negligent” without regard for the extent to which the various

claims as to the “risks or hazards” at issue will render a phase

I verdict as to “negligence” futile and invalid. The dissenting

opinion (App. A, p. 18a) highlighted the difficulties inherent

in attempting to make a determination as to “negligence”

without considering the risks or harm alleged, particularly in

light of the various claims asserted:

. . . [IJf the class jury finds the ventilation

system negligent because of excessive smoke,

a plaintiff should not be able to recover for

injuries caused by dust or germs. If it finds

the ventilation system negligent solely because

doctrine is subsumed by comparative negligence). This factor

further complicates both the bifurcation scheme and the superiority

finding.

of high levels of dust or germs, plaintiff should

not be able to recover for injuries caused by

smoke, temperature, or paint fumes. . . . Put

simply, an individual jury might award

damages caused by smoke, even though the

class jury found Treasure Chest liable only as

to excessive dust or germs. This sort of “mix-

and-match” verdict simply does not satisfy the

elements of negligence, because it would hold

Treasure Chest liable for hazards that were

never found to constitute a negligent breach of

duty.

(App. A, pp. 24a-25a). This is no accomplishment; it is an

attempt to find negligence in a vacuum. Barnes v. The

American Tobacco Co., 176 F.R.D. at 501.

If the Court of Appeal’s decision is allowed to stand,

then the federal judiciary, and the Circuit Courts, will have

inconsistent precedents as to when class certification 1s

appropriate. This is the very circumstance in which certiorari

consideration 1s most suitable. By using Rule 23 in an

adventuresome way to attain certification, the Court of Appeal

has violated the Rules Enabling Act by utilizing a procedural

rule to abridge and modify the substantive rights of the

litigants. 28 U.S.C. § 2072(b). The fiction invoked by the

Court that bifurcation cures all ills not only violates

Substantive rights, it creates precedent which threatens

Amchem and Rule 23(b)(3)'s attempted safeguards against

undue prejudice.

fil. THE JUDGMENT DEFIES THE CLEAR

HOLDINGS OF AMCHEM AND ORTIZ WITH

REGARD TO THE ADEQUACY OF

REPRESENTATION.

Amchem demands vigorous and tenacious commitment

to class interests on the part of class representatives and

counsel. 521 U.S. at 625-26, 117 S.Ct. at 2250-51. Rule

23(a)(4) requires that a representative's supposed “common

interest” be based upon an alignment of interests in disputes

of fact and law, and that there be a similar “factual predicate”

underlying the claims. National Super Spuds v. New York

Mercantile Exchange, 660 F.2d 9, 18-19 & n.7 (2nd Cir.

1981). A class representative must be part of the class and

suffer the same injury. Gen. Tel. Co. of the Southwest v.

Falcon, 457 U.S. 147, 159, 102 S.Ct. 2364, 2371 (1982).

In this way, Rule 23(2)(4) offers “structural assurance of fair

and adequate representation of diverse groups and individuals

effected.” Amchem, 117 S.Ct. at 2251; In re Joint E.& S.

Dist. Asbestos Litigation, 982 F.2d 721, 721-43 (2nd Cir.

1992).

The class representatives in this case attribute their

various ailments to different causes. They thus represent a

“separate constituency” and adequacy of representation is not

met. Amchem, 117 S.Ct. at 2251. Mullen and Bachemin

complain of second hand smoke: Phipps complains only of

dust on air vents and germs on the employee radios; Mullen

also complains about the temperature; Bachemin also

complains about paint fumes. The Court of Appeal found

these variances irrelevant. ( App. A, p. 12a).

The disregard for the various allegations among the

representatives presents a square and irreconcilable conflict

which, if not addressed by this court, will erode the import of

the holdings in Amchem, 1175 S. Ct at 2251 and Ortiz v.

Fibreboard Corp.119 S.Ct. 2295, 144 L.Ed. 2d 715 (1999),

The claims of the three purported class representatives

themselves highlight the lack of adequate representation.

Mullen’s claim that he suffers an occupational related

respiratory illness is inextricably intertwined with his

conditions of long term morbid obesity, sleep apnea,

depression and anxiety, high blood pressure, degenerative

disc disease, asthma, osteoarthritis, “hypersensitivity” to

cologne or other fumes, and a history of smoking and drug

use.

Sheila Bachemin’s medical history is also engrained in

her occupational respiratory illness claim. Her history

consists of a 20 year smoking career, hay fever, allergies,

sinus infections and shortness of breath. Margaret Phipps, on

the other hand, has her own history of allergies, hayfever,

sensitivity to chemicals and sunlight. Each distinct history

will play a pivotal role in any causation or liability

determination. The differences in medical histories is but one

factor outlining the highly individualized nature of the claims.

Because the plaintiffs’ experts and treating physicians all

testify that hay fever, allergies and other respiratory

conditions may come from virtually any source, the plaintiffs’

various life experiences, employment histories, hobbies, and

genetics will also necessarily affect a liability determination

in this action.

Of course, not only are the conditions leading to the

claims various and divergent, but the very complaints

themselves are dissimilar. Mr. Mullen complains that the

vessel was either too hot or too cold for him. Ms. Phipps

claims it was dust hanging from the air vents and germs on

employee radios that made her ill, Ms. Bachemin thinks it

was the smoke.

Given this broad array of claims and histories, no

judgment as to one representative can be binding on any other

individual. The nature of the plaintiffs’ proposed class thus

precludes compliance with Rule 23.

CONCLUSION

The decision of the Court of Appeal violates the

United States Constitution, Fed.R.Civ.P. 23(b)(3), and the

Rules Enabling Act. The decision creates precedent which,

if allowed to stand, will vitiate the fundamental Seventh

Amendment right to a trial by jury in cases where factually

interwined issues of negligence and comparative negligence

are posited for bifurcation before separate juries. This Court

should issue a writ of certiorari now to prevent lower courts

from denying or abridging this fundamental constitutional

right.

Further, if allowed to stand, this decision erodes the

predominance and superiority elements of Rule 23(b)(3). As

Judge Garza properly recognized, the outcome of this case

may create an avenue for future courts to certify actions

where predominance of common issues is in question, merely

by selecting common issues to be adjudicated in one common

trial and by disregarding the myriad and potentially

overwhelming individual issues of causation and comparative

negligence. The current trial plan created and endorsed by

the Court of Appeal will necessarily create a labyrinth of

“mix and match verdicts” which will accomplish nothing to

advance the resolution of these claims. There can be little

doubt that the order, if allowed to stand, will not only cause

this case to disintegrate into a series of individual suits tried

separately, it will create a license for future courts to certify

cases improperly under Fed.R.Civ.P. 23(b)(3) in similar

circumstances, A writ of certiorari should issue now.

Respectfully Submitted,

ADAMS AND REESE LLP

William J. Kelly UI

4500 One Shell Square

New Orleans, LA 70139

Telephone: (504) 581-3234

Facsimile: (504) 566-0210

Appeal Counsel for Petitioner,

TREASURE CHEST CASINO, L.L.C.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[Filed August 19, 1999 ]

No. 97-31189

DENNIS MULLEN,

Plaintiff- Appellee,

¥.

TREASURE CHEST CASINO,

LLC; ET AL,

Defendants,

TREASURE CHEST CASINO,

LLC,

DENNIS MULLEN;

SHEILA BACHEMIN;

MARGARET PHIPPS,

Plaintiffs - Appellees,

¥,

TREASURE CHEST CASINO,

LLC; ET AL,

)

Defendant - Appellant. )

)

Defendants, )

Court of Appeals Opinion - 8/19/99

TREASURE CHEST CASINO, )

FE ae )

Defendant - Appellant. )

)

Appeal from the United States District Court for the

Eastern District of Louisiana

Before EMILIO M. GARZA, BENAVIDES, and DENNIS,

Circuit Judges.

BENAVIDES, Circuit Judge:

Treasure Chest Casino, LLC (“Treasure Chest”)

appeals from an interlocutory order of the district court

certifying under Federal Rule of Civil Procedure 23(b)(3) a

plaintiff class consisting of injured Treasure Chest employees.

We affirm the district court’s class certification.

I. BACKGROUND

The appellees, Dennis Mullen, Sheila Bachemin, and

Margaret Phipps (collectively, the “Named Plaintiffs”), are

former employees of the M/V Treasure Chest Casino (the

“Casino”), a floating casino owned and operated out of

Kenner, Louisiana by appellant Treasure Chest. Mullen was

an assistant pit boss, Bachemin was a dealer, and Phipps was

employed as a slot-floor person and dealer.

Each Named Plaintiff has suffered respiratory illness

allegedly caused by the Casino’s defective and/or improperly

maintained air-conditioning and ventilating system. Each was

diagnosed with asthma and bronchitis while employed aboard

Court of Appeals Opinion - 8/19/99

the Casino. Mullen and Bachemin, while aboard the Casino,

suffered respiratory attacks requiring hospitalization.

Kathleen McNamara, the Named Plaintiffs’ physician,

testified in a deposition that as many as half of the 300 Casino

employees that she had treated suffered from similar

respiratory problems. She attributed the Named Plaintiffs’

and other crew members’ maladies to extremely smoky

conditions in the Casino.

In January 1996, the Named Plaintiffs filed suit against

Treasure Chest, making Jones Act, unseaworthiness, and

maintenance and cure claims. They sought Rule 23

certification of a class consisting of

all members of the crew of the M/V Treasure

Chest Casino who have been stricken with

occupational respiratory illness caused by or

exacerbated by the defective ventilation system

in place aboard the vessel.

The parties conducted pre-certification discovery that included

deposing the Named Plaintiffs, Dr. McNamara, and two other

physicians. The parties then briefed the district court, which

heard arguments in July 1997.

On August 29, i997, the district court certified the

proposed class under Rule 23(b)(3). Under the court’s plan,

the liability issues common to all class members will be tried

together in an initial trial phase. Those common issues

include whether the employees of the Casino are seamen

within the meaning of the Jones Act, whether the Casino is a

vessel within the meaning of the Jones Act, whether the

Casino was rendered unseaworthy by the air quality aboard,

Court of Appeals Opinion - 8/19/99

and whether Treasure Chest was negligent in relation to the

Casino’s ventilation system. If the class prevails on the

common liability issues in phase one, the issues affecting only

individual class members will be tried in a second phase in

waves of approximately five class members at a time. These

limited issues include causation, damages, and comparative

negligence.

Treasure Chest sought to appeal the class certification

order, and the district court certified the issue for

interlocutory appeal under 28 U.S.C. § 1292 (b) . We

granted

Treasure Chest permission to appeal.

Il. DISCUSSION

A class may be certified under Rule 23(b)(3) only if it

meets the four prerequisites found in Rule 23(a) and the two

additional requirements found in Rule 23(b)(3). The four

23(a) prerequisites include

(1) numerosity (a class so large that joinder of

all members is impracticable); (2)

commonality (questions 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, 117 S. Ct. 2231, 2245

(1997). The two 23(b) requirements are “predominance” and

“superiority”: “Common questions must ‘predominate over

cesarean re Ti wh ee rT en crags

Court of Appeals Opinion - 8/19/99

any questions affecting only individual members’; and class

resolution must be ‘superior to other available methods for the

fair and efficient adjudication of the controversy.’” /d. at

2246 (quoting Fed. R. Civ. P. 23(b) (3)).

Treasure Chest argues on appeal that the district court

erred in finding any of the Rule 23 requirements satisfied. '

Before evaiuating the six requirements seriatim, we note that

the district court maintains great discretion in certifying and

managing a class action. See Montelongo v. Meese, 803 F.2d

' Treasure Chest also argues on appeal that implicit in

Rule 23 is an additional requirement that any class must be capable

of objective identification before it can be certified. It contends

that because being a member of the class in this Case is contingent

upon ultimate issues of causation, i.e., whether the class member’s

illness was “caused or exacerbated by the defective ventilation

system,” Treasure Chest is prejudiced by being forced to defend

against claimants who may not end up being members of the class.

This same argument was already rejected by this Court in Forbush

v. J.C. Penney Co., 994 F.2d 1101 (Sth Cir. 1993). There, we

considered a defendant's contention that a Class of pension

beneficiaries was “hopelessly ‘circular’” because membership in

the class was defined by the improper reduction of the class

members’ benefits, which was also the ultimate issue in the case.

fd at 1105. We found that the defendant’s argument was “meritless

and, if accepted, would preclude certification of just about any

class of persons alleging injury from a particular action. These

persons are linked by this common complaint, and the possibility

that some may fail to prevail on their individual claims will not

defeat class membership.” /d. Here, because the class is similarly

linked by a common complaint, the fact that the class is defined

with reference to an ultimate issue of Causation does not prevent

certification.

Court of Appeals Opinion - 8/19/99

1341, 1351 (Sth Cir. 1986). We will reverse a district court’s

decision to certify a class only upon a showing that the court

abused its discretion, see Jenkins v. Raymark Industries, 782

F.2d 468, 471-72 (Sth Cir. 1986), or that it applied incorrect

legal standards in reaching its decision, see Forbush v. J.C.

Penney Co., 994 F.2d 1101, 1104-05 (5th Cir. 1993).

A. Numerosity

The court found that “the class is so numerous that

joinder of all members is impracticable,” Fed. R. Civ. P.

23(a) (1), referring to three factors. First, the class would

likely consist of between 100 and 150 members. Second,

Owing to the transient nature of employment in the gambling

business, it was likely that some of the putative class members

were geographically dispersed and unavailable for joinder.

Third, putative class members still employed by the Casino

might be reluctant to file individually for fear of workplace

retaliation. Treasure Chest challenges only the second of the

district court’s three reasons. It asserts that the district

court’s claim that class members would be geographically

dispersed was unsupported by evidence. They reference the

court’s own comment that the “plaintiff has not introduced

any specific evidence that there are potential class members

that have moved out of the area.”

We find no abuse of discretion in the district court’s

finding of numerosity. Although the number of members in

a proposed class is not determinative of whether joinder is

impracticable, see Zeidman vy. J. Ray McDermott & Co., 651

F.2d 1030, 1038 (5th Cir. 1981), the size of the class in this

case--100 to 150 members--is within the range that generally

satisfies the numerosity requirement. See 1 Newberg on

Court of Appeals Opinion - 8/19/99

Class Actions § 3.05, at 3-25 (3d ed. 1992) (suggesting that

any Class consisting of more than forty members “should raise

a presumption that joinder is impracticable”); cf. Boykin vy.

Georgia-Pacific Corp., 706 F.2d 1384, 1386 (Sth Cir. 1983)

(finding that numerosity requirement would not be met by a

class with 20 members but was met by a class with 317

members),

Furthermore, the additional factors mentioned by the

district court support its finding of numerosity. See Zeidman,

651 F.2d at 1038 (discussing relevant factors including, for

example, “the geographical dispersion of the class, the ease

with which class members may be identified, the nature of the

action, and the size of each plaintiff's claim"). Not-

withstanding the lack of any direct evidence, the district court

reasonably inferred from the nature of the putative class

members’ employment that some of them would be

geographically dispersed. It also reasonably presumed that

those potential class members still employed by Treasure

Chest might be unwilling to sue individually or join a suit for

fear of retaliation at their jobs. Based upon those

considerations, it was within the district court's discretion to

find that joinder of all 100 to 150 class members would be

impracticable.

B. Commonality

The district court found that “there are questions of

law or fact common to the class,” Fed. R. Civ. P. 23(a) (2),

on the basis of the class members’ identical theories of

liability, their common claims under the Jones Act, and their

uniform allegations of suffering injury from second-hand

smoke. ‘Treasure Chest challenges the district’ court's

Court of Appeals Opinion - 8/19/99

assertion that all plaintiffs’ claims relate to second-hand

smoke,

The district court did not abuse its discretion in finding

commonality. The test for commonality is not demanding and

is met “where there is at least one issue, the resolution of

Which will affect all or a significant number of the putative

class members.” Lightbourn y. County of El Paso, 118 F.3d

421, 426 (Sth Cir. 1997), In this case, the putative class

members will assert claims for negligence under the Jones Act

and for operating an unseaworthy vessel. The common issues

pertaining to these theories of liability--i.e., the class~

members’ status as Jones Act seamen, the negligence of

Treasure Chest, and the unseaworthiness of the Casino--are

independently sufficient to establish commonality. It is

therefore irrelevant whether the class members uniformly

allege damages from second-hand smoke.

C. Typicality

The district found the “the claims or defenses of the

parties are typical of the claims or defenses of the Class,” Fed.

R. Civ. P. 23(a) (3), because the Named P'aintiffs and the

class members, by definition, all allege to have suffered

occupation-related respiratory illness. Treasure Chest

contends that the Named Plaintiffs’ claims are not typical of

the class because a wide array of claims could fall under the

“respiratory illness” category.

We find no abuse in the district court's finding of

typicality, Like commonality, the test for typicality is not

demanding. It “focuses on the similarity between the named

plaintiffs’ legal and remedial theories and the theories of those

Law af. 4ypaals Opinion - 8/19/99

whom they purport to represent.” Lightbourn, 118 F.3d at

426. In this case, the Named Plaintiffs’ and the proposed

class members’ legal and remedial theories appear to be

exactly the same. The class complaint indicates that they will

all premise liability for the Casino's defective air ventilation

system under the Jones Act and the doctrine of seaworthiness.

Any variety in the illnesses the Named Plaintiffs and the class

members suffered will not affect their legal or remedial

theories, and thus does not defeat typicality.

D. Adequacy of Representation

The district court stated that “the representative parties

will fairly and adequately protect the interests of the class,”

Fed. R. Civ. P. 23(a) (4), because the Named Plaintiffs’

interests are identical to the interests of the proposed class and

their attorneys have extensive experience litigating class

actions and Jones Act cases. Treasure Chest argues on the

appeal that the district court's finding was erroneous because

the Named Plaintiffs and the class members have suffered

from varied illnesses and have varying susceptibilities to

respiratory ailments.

We find no abuse of discretion in the district court's

finding. Differences between mamed plaintiffs and class

members render the named plaintiffs inadequate

represeniatives only if those differences create conflicts

between the named plaintiffs’ interests and the class members’

interests. See Jenkins v. Raymark Industries, Inc., 782 F.2d

408, 472 (Sth Cir. 1986) (considering whether named

plaintiffs have “an insufficient stake in the outcome or

interests antagonistic to the unnamed members” in evaluating

adequate representation requirement). The differences

Court of Appeals Opinion - 8/19/99

described by Treasure Chest may Create variances in the ways

that the Named Plaintiffs and class members will prove

causation and damages. A class member who has never

smoked, for example, may have less difficulty in proving that

the conditions inside the Casino caused her asthma than will

Bachemin, who has a history of smoking and whose claim

may be subject to a defense of contributory negligence. Such

a difference, however, does not affect the alignment of their

interests. Nothing indicates that the class members will be

inadequately represented by the Named Plaintiffs and their

counsel.

E. Predominance

We see no abuse in the district court’s finding that

“the questions of law or fact common to the members of the

class predominate over any questions affecting only individual

members.” Fed. R. Civ. P. 23(b) (3). “In order to

‘predominate,’ common issues must constitute a significant

part of the individual cases.” Jenkins, 782 F.2d at 472. The

district court held that the issues to be tried commonly --

seamen status, vessel status, negligence, and seaworthiness--

Were significant in relation to the individual issues of

Causation, damages, and contributory negligence. Treasure

Chest argues on appeal that the district court abused its

discretion by failing to Weigh the common against the

individual issues and by improperly finding causation to be a

common issue,

Treasure Chest’s arguments are without merit. First,

although the court's predominance inquiry was not lengthy,

there is no indication that the court limited its inquiry to

counting issues instead of weighing them. Second, explicit in

10a

Court of Appeals Opinion - 8/19/99

the district court's decision is a finding that causation is a

unique issue that will be resolved in the trial plan’s second-

phase individual trials.

Even examining the district court’s predominance

analysis more closely, we find no abuse. The common issues

in this case, especially negligence and seaworthiness, are not

only significant but also pivotal. They will undoubtedly

require the parties to produce extensive evidence regarding

the Casino’s air ventilation system, as well as testimony

concerning Treasure Chest’s knowledge of, and response to,

the Casino employees’ respiratory problems and complaints.

The phase-one jury will have the difficult task of determining

whether the air quality aboard the Casino resulted from a

negligent breach of Treasure Chest’s duty to its employees or

rendered the Casino unseaworthy. If Treasure Chest prevails

on those two issues alone, they will prevail in the case.

Moreover, this case does not involve the type of

individuated issues that have in the past led courts to find

predominance lacking. For example, in Amchem Products,

Inc, v. Windsor, 117 8. Ct. 2231 (1997), the Supreme Court

found that common issues did not predominate where the

members of the plaintiff class were exposed to asbestos-

containing products from different sources over different time

periods, some of the class members were asymptomatic while

others had developed illnesses, and the class members were

from a variety of states requiring the application of a

multitude of different legal standards. See id. at 2250 (citing

Georgine v. Amchem Products, Inc., 83 F.3d 610, 626 (3d

Cir. 1996)). Similarly, in Castano v. American Tobacco Co.,

84 F.3d 734 (Sth Cir. 1996), this Court found that a putative

class of addicted smokers did not meet the predominance

lla

peta pile

EAs. allan

Court of Appeals Opinion - 8/19/99

requirement because there were complex choice-of-law issues

and the case involved novel addiction-as-injury claims with no

track record from which a court could determine which issues

were “significant.” See id. at 741-45. Here, by contrast, the

putative class members are all symptomatic by definition and

claim injury from the same defective ventilation system over

the same general period of time. Because all of the claims are

under federal law, there are no individual choice-of-law

issues. And, because negligence and doctrine-of-sea-

worthiness claims are time-tested bases for liability, the

district court could reasonably evaluate the significance of the

common issues without first establishing a track record.

F. Superiority

We also find no abuse of discretion in the district

court’s finding that “a class action is superior to other

available methods for the fair and efficient adjudication of the

controversy.” Fed. R. Civ. P. 23(b) (3). The district court

based its superiority finding on the fact that the class litigation

in this case would not present the degree of managerial

complexities that prompted this Court to decertify the putative

class in Castano, Specifically, the district court mentioned

the lack of any complex choice-of-law or Erie problems, and

that the class would consist of only hundreds, instead of

millions, of members. The bifurcated-trial plan, the court

found, would “promote judicial economy and avoid the

wasteful, duplicative litigation which would inevitably result

if these cases were tried individually.” Treasure Chest argues

that the district court abused its discretion by failing

adequately to consider how a trial on the merits would be

conducted. It contends that because the Named Plaintiffs

describe somewhat different causes for their ailments, a

12a

Court of Appeals Opinion - 8/19/99 ~

phase-one judgment of negligence or unseaworthiness related

sutery wo wbdaccu simoakenowld be inadequate insofar as it

would preclude plaintiffs from recovering for ailments that

were caused by sources other than tobacco smoke in the

phase-two trials.

We find no merit in Treasure Chest’s argument. First,

Treasure Chest overstates the importance of the Named

Plaintiffs’ conjecture regarding their own illnesses. It is true

that, in addition to making second-hand smoke complaints,

Dennis Mullen has complained about the temperature aboard

the Casino, Sheila Bachemin has described one incident where

paint fumes on the Casino “kicked in” her asthma, and

Margaret Phipps has stated that her asthma might have been

caused by dust on the air vents or germs on the radios used by

multiple casino employees. As lay witnesses, however, the

Named Plaintiffs’ opinions about the possible causes of their

Own respiratory conditions are of negligible evidentiary

weight and probably would not be admissible at trial. See

Fed. R. Evid. 701 (limiting admissibility of nonexpert opinion

testimony); Doddy v. Oxy USA, Inc., 101 F.3d 448, 460 (Sth

Cir. 1996) (“[A] person may testify as a lay witness only if

his opinions or inferences do not require any specialized

knowledge and could be reached by any ordinary person.”);

Henry v. A/S Ocean, 512 F.2d 401, 408 (2d Cir. 1975)

(finding that the plaintiff in a Jones Act suit was properly

prevented from testifying to his opinion that his persistent

colds and skin rash had been caused by an accident in which

he was knocked overboard). The medical experts already

deposed in this case have unwaveringly cited excessive

secondhand smoke as the most likely Casino-related factor to

have exacerbated or caused the putative class members’

respiratory problems. It is thus likely that the trial will focus

l3a

LO en OMe oY

ee ery

Court of Appeals Opinion - 8/19/99

on excessive second-hand smoke as both the effect of the

defective ventilation system and the cause of the putative class

members’ respiratory problems.

Furthermore, even if the class does claim at trial that

the Casino’s ventilation system was defective in relation to

more than tobacco smoke, we are confident that the district

court can ably manage this case as a class action. Our

precedent limits a negligent party’s liability to injuries that are

caused by the same condition that rendered the party

negligent. See Gavagan v. United States, 955 F.2d 1016,

1020-21 (Sth Cir. 1992). The court can easily abide by this

precedent by instructing the jury to answer special verdicts

finding whether the Treasure Chest was negligent, or the

Casino was unseaworthy, as to each alleged causal agent, i.e.,

tobacco smoke, dust mites, fungi, paint fumes, et cetera. The

court can then properly limit the injuries for which the phase-

two juries could find Treasure Chest liable. Thus, if the

phase-one jury were to find that Treasure Chest was negligent

as to tobacco smoke but not as to paint fumes, any class

member whose injuries were found by a phase-two jury to be

caused by paint fumes would be unable to recover. Even

though rendering multiple special verdicts would complicate

the task for the phase-one jury and the court, we would see no

abuse in the district court’s finding such a process superior to

conducting duplicative individual trials.

We also agree with the district court that none of the

superiority concerns raised by our decision in Castano

requires a different result. There, many of the manageability

problems stemmed from the million-person class membership,

the complex choice-of-law issues, the novel addiction-as-

injury cause of action, and the extensive subclassing

l4a

Court of Appeals Opinion - 8/19/99

requirements. As already discussed, none of those problems

exist in this case. In fact, unlike the “Frankenstein’s

monster” feared in Castano, 84 F.3d at 745 n.19, this class

is akin to other bifurcated class actions this Court has

approved. See Watson v. Shell Oil Co., 979 F.2d 1014 (Sth

Cir. 1992) (finding no abuse in the district court’s

certification of a bifurcated class action arising from an oil

refinery explosion where liability and punitive damages would

be resolved commonly and injury, causation, and actual

damages would be resolved individually); Jenkins, 782 F.2d

468 (finding no abuse of discretion in district court’s

certification of a bifurcated class action where asbestos

producers’ “state of the art defense” as well as product

identification, product defectiveness, negligence, and punitive

damages would be resolved commonly and causation, actual

damages, and comparative fault would tried individually);

Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558 (S.D.

Fla. 1973), aff'd, 507 F.2d 1278-79 (Sth Cir. 1975)

(unpublished) (certifying bifurcated class action on behalf of

350 passengers who were fed contaminated food aboard cruise

ship where negligence would be tried commonly and causation

and damages would be tried individually).

In Castano, this Court expressed a concern that having

one jury consider the defendant’s conduct and another

consider the plaintiffs’ comparative negligence could create

Seventh Amendment problems. See Castano, 84 F.3d at 750-

51 (citing /n re Rhone-Poulenc Rorer Inc., 51 F.3d 1293,

1303 (7th Cir. 1995)). This does not change our view of the

district court’s superiority finding. Treasure Chest did not

raise this issue to the district court nor has it been argued on

appeal. We are reluctant to find that the district abused its

15a

Behr $i Gat assis hs Galina as ANI

Court of Appeals Opinion - 8/19/99

discretion by failing to consider an issue that was not raised

by the parties.

In any case, we would not find the risk of infringing

upon the parties’ Seventh Amendment rights significant in this

case. The Seventh Amendment does not prohibit bifurcation

of trials as long as the “‘the judge [does] not divide issues

between separate trials in such a way that the same issue is

reexamined by different juries.’” Cimino vy. Raymark

Industries, Inc., 151 F.3d 297, 320 n.50 (Sth Cir. 1998)

(quoting Rhone-Poulenc, 51 F.3d at 1303); see Alabama_v.

Blue Bird Body Co., Inc., 573 F.2d 309, 318 (Sth Cir. 1978).

In Castano, we were concerned that allowing a second jury to

consider the plaintiffs’ comparative negligence would invite

that jury to reconsider the first jury's findings concerning the

defendants’ conduct. We believe that such a risk has been

avoided here by leaving all issues of causation for the phase-

two jury. When a jury considers the comparative negligence

of a plaintiff, “the focus is upon Causation. It is inevitable

that a comparison of the conduct of plaintiffs and defendants

ultimately be in terms of causation.” Lewis y. Timco, Inc.,

716 F.2d 1425, 1431 (Sth Cir. 1983) (en banc); see id.

(permitting the use of comparative negligence in strict liability

claims). Thus, in considering comparative negligence, the

phase-two jury would not be reconsidering the first jury’s

findings of whether Treasure Chest’s conduct was negligent

or the Casino unseaworthy, but only the degree to which those

conditions were the sole or contributing cause of the class

memiber’s injury. Because the first jury will not be

considering any issues of causation, no Seventh Amendment

implications affect our review of the district court’s

superiority finding.

Court of Appeals Opinion-.- 8/19/99

Ill. CONCLUSION

For the foregoing reasons, we find that the district

court did not abuse its discretion in certifying under Rule

23(b) (3) a class of all Casino employees stricken with

occupation-related respiratory illnesses. AFFIRMED.

17a

CM ae i ae ames '..

BS el Fo A pee ee ee

Court of Appeals Opinion - 8/19/99

EMILIO M. GARZA, dissenting:

Treasure Chest Casino, L.L.C. (“Treasure Chest”)

appeals the district court’s order granting class certification

under Federal Rule of Civil Procedure 23(b)(3). The majority

affirms, finding that the district court did not abuse its

discretion in concluding that the plaintiffs’ class satisfies the

requirements of Rule 23. | respectfully dissent.

Plaintiffs Dennis Mullen, Sheila Bachemin, and

Margaret Phipps are crew members of the M/V Treasure

Chest Casino (“Casino”), a vessel owned and operated by

Treasure Chest in Kenner, Louisiana. They allege that they

suffered respiratory illnesses as a result of inadequate

ventilation aboard the vessel. According to the district court,

the plaintiffs attribute their illnesses to second-hand smoke

aboard the Casino. However, the record indicates that the

plaintiffs ailege other causes as well. In her deposition,

Phipps complains of dust on the air vents and germs on the

employee radios, and does not attribute her illness to second-

hand smoke. Mullen, who does complain of excessive smoke

aboard the Casino, also states in his deposition that his illness

may have stemmed from the Casino’s temperature being too

hot or too cold. Bachemin complains of second-hand smoke,

but she testifies about excessive paint fumes as well.

These plaintiffs sued Treasure Chest, on behalf of

themselves and persons similarly situated, for negligence

under the Jones Act, 46 U.S.C. § 688, for operating an

unseaworthy vessel, and for failing to provide Maintenance

and Cure. They moved to certify a class action under Rule

18a

Court of Appeals Opinion - 8/19/99

23(b)(3).' The district court certified a class consisting of “all

members of the crew of the M/V Treasure Chest Casino who

have been stricken with occupational respiratory illness

caused by or exacerbated by the defective ventilation system

in place aboard the vessel.” Treasure Chest now appeals.

Federal Rule of Civil Procedure 23(a) sets forth four

prerequisites for all class actions:

(1) numerosity (a class so large that joinder of

all members is impracticable); (2)

commonality (questions 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 Prods. v. Windsor, 521 U.S. 591, 613, 117 S. Ct.

2231, 2245, 138 L. Ed. 2d 689 (1997) (quotation marks

omitted). Once the criteria of Rule 23(a) are met, a party

must show that class treatment is appropriate under one of the

three categories enumerated in Rule 23(b). See id. at 614,

117 S. Ct. at 2245. Rule 23(b)(3), under which this class was

certified, demands “that the questions of law or fact common

' The plaintiffs also requested that the district court certify

a class under Rule 23(b)(1). The district court declined to address

Rule 23(b)(1), on the grounds that the plaintiffs raised it for the

first time their reply brief. On appeal, the plaintiff's do not raise

Rule 23(b)(1) as a basis for class certification.

19a

ee Re Ryne ar cme -, «|

tlh oO tle wt

eae te ak ee 0d _ ee Oe ch dim ae) ee

Court of Appeals Opinion - 8/19/99

to the members of the class predominate over any questions

affecting only individual members, and that a class action is

superior to other available methods for the fair and efficient

adjudication of the controversy.” FED. R. CIV. P. 23(b)(3).

These requirements are commonly referred to as

predominance and superiority. See Amchern, 521 U.S. at

615, 117 S. Ct. at 2246. Rule 23(b)(3) applies to cases for

which “a class action would achieve economies of time,

effort, and expense, and promote uniformity of decision as to

persons similarly situated, without sacrificing procedural

fairness or bringing about other undesirable results.” Id.

(quotations omitted).

The district court concluded that the plaintiffs’ class

satisfied Rule 23(a)’s requirements of numerosity,

commonality, typicality, and adequacy of representation. It

also found that common issues of law and fact predominated

over individual issues. The district court identified as

common issues (1) whether Casino employees are seamen

within the meaning of the Jones Act, (2) whether the Casino

is a vessel within the meaning of the Jones Act, (3) whether

the Casino was unseaworthy, and (4) whether the Casino’s

ventilation system was unreasonably suited to protect the class

members from harm. It classified contributory negligence,

damages, and causation as individual issues. Finally, the

district court ruled that a class action was superior to other

available methods of adjudicating the proposed class

members’ claims. In doing so, the district court relied on the

plaintiffs’ proposed trial plan, which provided: “The class

action would include an initial phase in which the liability

issues Common to all plaintiffs would be tried together. Later

if plaintiffs prevailed on liability, the unique issues such as

damages (and causation if necessary), would be tried in waves

20a

Court of Appeals Opinion - 8/19/99

of approximately five plaintiffs at a time.” The district court

reasoned that “this approach will promote judicial economy

and avoid the wasteful, duplicative litigation which would

inevitably result if these cases were tried individually.”

Ill

A district court “has wide discretion in deciding

whether to certify a proposed class.” Lightbourn v. County

of El Paso, 118 F.3d 421, 425 (Sth Cir. 1997). We may

reverse its decision only for abuse of discretion. See id.

Treasure Chest contends that the district court abused its

discretion in finding that the proposed class satisfied Rule 23.

According to Treasure Chest, the plaintiffs’ class lacks

numerosity, commonality, typicality, and adequacy of

representation, and fails to satisfy Rule 23(b)(3)’s

predominance and superiority requirements. The majority

examines these six requirements and concludes that the district

court did not abuse its discretion. Under the law of our

circuit, however, the district court abused its discretion in

finding that a class action was “superior to other available

methods for the fair and efficient adjudication of the

controversy.” FED. R. CIV. P. 23(b)(3).’

A court’s inquiry into superiority “requires an

understanding of the relevant claims, defenses, facts, and

substantive law presented in the case.” Allison v. Citgo

Because I believe that the plaintiffs’ class fails the

superiority requirement of Rule 23(b)(3), I would not reach the

other issues addressed in the majority’s opinion, i.e., numerosity,

commonality, typicality, adequacy of representation, and

predominance.

2la

Court of Appeals Opinion - 8/19/99

Petroleum Corp., 151 F.3d 402, 419 (Sth Cir. 1998); see also

FED. R. CIV. P. 23(b)(3) (requiring that in assessing whether

Class treatment is superior, a court must consider “the

difficulties likely to be encountered in the management of a

Class action”). It is an abuse of discretion to certify a class

without adequately considering “how a trial on the alleged

Causes of action would be tried.” Castano v. American

Tobacco Co., 84 F.3d 734, 75] (Sth Cir. 1996); of. Kentucky

Fried Chicken Corp. v. Diversified Packaging Corp., 552

F.2d 601, 603 (5th Cir. 1977) (“The district court’s failure to

consider the appropriate factors constitutes an abuse of

discretion. ”).

The district court certified a Class of all Casino

employees who were “stricken with occupational respiratory

illness caused by or exacerbated by the defective ventilation

system.” To prevail, these plaintiffs must prove both

hegligent breach of duty and proximate cause. See Gavagan

v. United States, 955 F.2d 1016, 1019 n.6 (Sth Cir. 1992).

Under the trial plan, the issue of “whether the ventilation

system of the M/V Treasure Chest Casino was unreasonably

suited to protect the proposed class members from harm” will

be tried as a common issue to a Class jury. However, the

issue of proximate cause will be tried as an individual issue to

individual juries.

In upholding the district court’s bifurcated approach to

these two issues, the majority relies on three Cases, in which

we allowed a district court to try the issue of negligence

separately from the issue of proximate cause. See Watson vy.

Court of Appeals Opinion - 8/19/99

Shell Oil Co., 979 F.2d 1014 (5" Cir. 1992);° Jenkins v.

Raymark Industries, Inc., 782 F.2d 468 (Sth Cir. 1986);

Hernandez v. Motor Vessel Skyward, 507 F.2d 1278 (Sth Cir.

1975) (unpublished). In general, of course, district courts

have the authority to bifurcate a trial, trying some issues on

a class basis and others individually. See FED. R. CIV. P.

23(c)(4)(A) (authorizing class treatment with respect to

particular issues); FED. R. CIV. P. 42(b) (authorizing separate

trials for separate issues). However, in all of the cases cited

by the majority, the class members’ injuries stemmed from a

single hazard. In the instant case, the class members attribute

their various ailments to different aspects of the air aboard

the Casino. Mullen and Bachemin complain of second-hand

smoke, whereas Phipps complains only of dust on air vents

and germs on employee radios. Mullen, additionally, points

to the Casino’s temperature. Bachemin complains of paint

fumes.

The district court abused its discretion by failing to

consider the difficulties posed by the plaintiffs’ divers

allegations.* In a negligence case, a defendant owes a duty

> Our opinion in Watson is no longer binding precedent on

our circuit. As we have explained: “While [Watson] was awaiting

rehearing en banc, it settled. According to the Internal Operating

Procedure accompanying STH CIR. R. 35, the effect of granting a

rehearing en banc is to vacate the previous opinion and judgment

of the Court and to stay the mandate.” Castano, 84 F.3d at 740

n.12 (quotation marks and citations omitted); see Watson v. Shell

Oil Co., 53 F.3d 663, 664 (Sth Cir 1994) (en banc).

* The plaintiffs suggest in a footnote that we should

“disregard” the fact that the disparate sources of illness they allege

23a

eaisaa | Svbitetine Sh areOS etintns 5 oy

Sis SR Mali haat 6 sie SWRA CHA GAOT DN, OR ACTS WR uy

ne eas ee

GRE SSNS ieee ae ud

Court of Appeals Opinion - 8/19/99

“only with respect to those risks or hazards whose likelihood

made the conduct unreasonably dangerous.” Gavagan, 955

F.2d at 1020 (emphasis omitted) (quoting 3 HARPER, JAMES &

GRAY § 18.2, at 655). In other words, a defendant is liable

for negligence only when the plaintiff's injuries are caused by

the same conditions that render the defendant’s conduct

negligent. This principle is important to consider, because in

this case, different plaintiffs allege different “risks or

hazards.” /d. For example, if the class jury finds the

ventilation system negligent because of excessive smoke, a

plaintiff should not be able to recover for injuries caused by

dust or germs. If it finds the ventilation system negligent

solely because of high levels of dust or germs, plaintiffs

should not be able to recover for injuries caused by smoke,

temperature, or paint fumes.

The district court’s trial plan fails to account for the

fact that the plaintiffs allege a variety of different “risks or

hazards.” There is nothing in the trial plan to ensure that the

hazards found by the class jury to constitute negligence are

the same hazards based on which the individual juries would

(e.g., smoke, temperature, germs, dust, fumes) might preclude

Class certification. They argue that a magistrate judge’s ruling

prevented them from discovering the precise nature of the defects

in the ventilation system. The magistrate’s discovery ruling is not

before us on appeal. Even if it could be shown that discovery was

insufficient, it does not follow that we must approve a class that

fails to meet the requirements of Rule 23. Rather, we must

decertify such a class, even if further discovery may eventually

justify class treatment. See Alabama v. Blue Bird Body Co., 573

F.2d 309, 323 (Sth Cir. 1978) (decertifying class where discovery

was insufficient to determine whether common issues existed).

24a

Court of Appeals Opinion - 8/19/99

determine proximate cause. Put simply, an individual jury

might award damages caused by smoke, even though the class

jury found Treasure Chest liable only as to excessive dust or

germs. This sort of “mix-and-match” verdict simply does not

‘satisfy the elements of negligence, because it would hold

Treasure Chest liable for hazards that were never found to

constitute a negligent breach of duty. The district court failed

to consider the potential for its bifurcated approach to yield

such illegitimate verdicts.°

Of course, the risk of unjustified verdicts could be

avoided if the individual juries determined for themselves

whether a given plaintiffs’ injuries were caused by “those

risks or hazards whose likelihood made the conduct

unreasonably dangerous.” /d. To do so, however, the

individual juries would be required to make essentially the

same inquiry made by the class jury, that is, whether the

hazards posed by the Casino’s ventilation system

unreasonably failed to protect the plaintiffs from harm. This

overlap between the issues decided by the class jury and the

individual juries impacts a court’s superiority inquiry for two

reasons. First, it may eviscerate one of the primary rationales

for class treatment--judicial efficiency. See Castano, 84 F.3d

at 749. Where the class jury and the individual juries must

consider similar issues, it is likely that evidence presented at

the class trial will be repeated during the individual trials.

> The majority suggests that the district court can avert

this problem by instructing the class jury to answer special verdicts

as to each hazard alleged by the plaintiffs. However, such special

verdicts are not included in the district court’s trial plan.

25a

Court of Appeals Opinion - 8/19/99

See id. As we have noted, “[t]he net result may be a waste,

not a savings, in judicial resources.” Jd.

Second, having separate juries consider essentially the

same issue may run afoul of the Seventh Amendment.

“[I]nherent in the Seventh Amendment guarantee of a trial by

jury is the general right of a litigant to have only one jury

pass On a common issue of fact.” Alabama v. Blue Bird Body

Co., 573 F.2d 309, 318 (Sth Cir. 1978); see U.S. CONST.

amend. VII (“no fact tried by a jury shall be otherwise

reexamined in any Court of the United States”). Therefore,

a court may try a certain issue to a different jury only when

that issue is “distinct and separable from the others.” Blue

Bird Body, 573 F.2d at 318. “Such a rule is dictated for the

very practical reason that if separate juries are allowed to pass

on issues involving overlapping legal and factual questions the

verdicts rendered by each jury could be inconsistent.” /d.

When the bifurcation of class and individual issues risks

improper reconsideration of issues assigned to the class-wide

jury, appellate courts have not hesitated to decertify the class.

See Castano, 84 F.3d at 751: In re Rhone-Poulenc Rorer Inc..,

51 F.3d 1293, 1302-03 (7th Cir. 1995).

These same concerns--judicial efficiency and the

Seventh Amendment--are also implicated by the district

court’s plan to handle the issue of comparative negligence.

Under the trial plan, comparative negligence will be

considered by the individual juries, whereas the Casino’s

negligence will be considered by the class jury. These two

issues are too closely related to allow bifurcated treatment.

“Comparative negligence, by definition, requires a

comparison between the defendant’s and the plaintiff’ s

conduct.” Castano, 84 F.3d at 751: see also Rhone-Poulenc,

26a

Court of Appeals Opinion - 8/19/99

51 F.3d at 1303. Therefore, to properly try the issue of

comparative negligence, the parties may need to repeat

evidence concerning the Casino’s conduct that was already

presented to the class jury. See Castano, 84 F.3d at 751.

Furthermore, in comparing the negligent conduct of the

Casino with the negligent conduct of each plaintiff, the

individual juries may “impermissibly reconsider[]” the class

jury’s determination as to the Casino’s negligence, in

violation of the Seventh Amendment. /d.; see also Rhone-

Poulenc, 51 F.3d at 1303. Accordingly, “class treatment can

hardly be said to be superior to individual adjudication.”

Castano, 84 F.3d at 751 (finding that a bifurcated class action

failed Rule 23(b)(3)’s superiority requirement where the

district court planned to try the issues of negligence and

comparative negligence to separate juries).

The district court in this case failed to consider “the

difficulties likely to be encountered in the management of a

Class action.” FED. R. CIV. P. 23(b)(3). Specifically, it dia not

address how the disparate hazards alleged by each plaintiff

impact whether bifurcated class treatment is feasible. This

failure to adequately examine “how a trial on the alleged

causes of action would be tried” constitutes an abuse of

discretion and requires that we vacate the class certification

order. Castano, 84 F.3d at 752. Accordingly, I dissent.

27a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

[Filed August 29, 1997 ]

No. 96-0052

DENNIS MULLEN, ET AL.

Plaintiff,

¥.

TREASURE CHEST CASINO,

L.L.C. & BOYD GAMING

CORPORATION,

Defendant.

ORDER AND REASONS

Entered: September 2, 1997

Considering the memoranda and arguments of counsel

and the applicable law, IT IS ORDERED that plaintiffs’

Motion to Certify Class Action be and hereby is GRANTED

for the following reasons.

I. BACKGROUND

Plaintiffs Dennis Mullen, an Assistant Pitt Boss, Sheila

28a

District Court Order & Reasons - 8/29/97

Bachemin, a Dealer, and Margaret Phipps, a Slot-Floor

Person and Dealer, filed a complaint against Treasure Chest

Casino, L.L.C. (“Treasure Chest”), and Boyd Gaming

Corporation (“Boyd”), on behalf of themselves and persons

similarly situated, alleging that they suffer from illnesses

caused by and/or exacerbated by their exposure to second-

hand smoke while employed by the defendants. Defendants

operate a vessel used as a casino. Plaintiffs claim that the

gamblers who use defendants’ casino are incessant smokers

and that the ventilation system of the defendant’s vessel is

inadequate.' Plaintiffs claim that defendants are liable to them

for negligence under the Jones Act, 48 U.S.C. § 688, for

operating an unseaworthy vessel, and for failing to provide

Maintenance and Cure to the plaintiffs.

_ Il. MOTION TO CERTIFY CLASS ACTION

Plaintiffs filed a Motion to Certify Class Action, in

which plaintiffs seek to certify a class consisting of:

all members of the crew of the M/V Treasure

Chest Casino who have been stricken with

occupational respiratory illness caused by or

exacerbated by the defective ventilation system

in place aboard the vessel.

Certification of a case as a class action is governed by Rule 23

of the Federal Rules of Civil Procedure, which provides:

' Plaintiffs contend that encapsulation psychologically

induces gambling, thus suggesting that to some extent the exposure

is deliberate.

29a

District Court Order & Reasons - 8/29/97

(a) Prerequisites to a Class Action. One or

more members of a class may sue or be sued

as representative parties on behalf of all only

(b)

(1)

(2)

(3)

(4)

the class is so numerous that

joinder of all members is

impraticable,

there are questions of law or

fact common to the class,

the claims or defenses of the

representative parties are

typical of the claims or

defenses of the class, and

the representative parties will

fairly and adequately protect

the interests of the class.

Class Actions Maintainable. An action

may be maintained as a class action if

the prerequisites of subdivision (a) are

satisfied, and in addition:

(1)

the prosecution of separate

actions by or against individual

members of the class would

create a risk of

(A) inconsistent or varying

adjudications with

respect to individual

members of the class

which would establish

incompatible standards

of conduct for the party

Opposing the class, or

30a

District Court Order & Reasons - 8/29/97

(B) adjudications with

respect to individual

members of the class

which would as a

practical matter be

dispositive of the

interests of the other

members not parties to

the adjudications or

substantially impair or

impede their ability to

protect their interests;

(2) the party opposing the class has

acted or refused to act on

grounds generally applicable to

the class, thereby making

appropriate final injunctive

relief or corresponding

declaratory relief with respect

to the class as a whole, or

(3) the court finds that the

questions of law or fact

common to the members of the

class predominate over any

questions affecting only

individual members, and that a

class action is superior to other

available methods for the fair

and efficient adjudication of the

ete

controversy. The matters

pertinent to the findings

include:

3la

District Court Order & Reasons - 8/29/97

(A) the interest, of members

of the class in

individually controlling

the prosecution or

defense of separate

actions;

(B) the extent and nature of

any litigation concern-

ing the controversy

already commenced by

Or against members of

the class;

undesirability of

concentrating the

litigation of the claims

in the particular forum:

(D) _ the difficulties likely to

be encountered in the

management of a class

action.

A. RULE 23(a)

1. NUMEROSITY

Plaintiffs argue that joinder of all of the potential

parties to this suit would be impracticable. In considering

whether the requirements of Rule 23(a)(1) are met, courts

consider the practicability of joinder in light of the particular

circumstances before it. Generally, courts look to the number

of the potential claimants, their geographic disparity, their

financial ability to bring individual suits and the potential fear

32a

District Court Order & Reasons - 8/29/97

of retaliation for their bringing individual suits. See |

NEWBERG ON CLASS ACTIONS §3.06 (3rd ed. 1992).

(a) Number

Plaintiffs claim that the potential number of the

proposed class is approximately 200 persons. Plaintiffs base

this estimate on the testimony of Dr. Kate McNamara, who

treated employees of the M/V Treasure Chest Casino through

their health insurance policies which were provided by the

vessel as part of their employment. Dr. McNamara indicates

that she has treated approximately 100 to 150 of the

defendants’ employees for upper respiratory sinusitis and

bronchitis and exacerbated asthma conditions related to

inhalation of second-hand smoke. See Deposition of Dr.

McNamara at p. 143-44.

There is no particular number of potential claimants

which makes joinder impracticable for purposes of Rule

23(a)(1). Courts have certified classes of as few as 15

plaintiffs’ and have denied class certification for as many as

300 plaintiffs. The number of potential claimants is only

relevant to the extent that it indicates that joinder would be

impracticable. However, a sufficiently large number of

potential claimants alone may indicate that the numerosity

requirement is met. See 1 NEWBERG ON CLASS ACTIONS

* See Manning v. Princeton Consumer Discount Company,

Inc., 390 F. Supp. 320, 324 (E.D.Pa. 1975), aff'd, 533 F.2d 102

(3 Cir. 1976).

* See Minersville. Coal Co. v. Anthracite Export Ass'n, 55

F.R.D. 426, 428 (M.D.Pa. 1971).

33a

District Court Order & Reasons - 8/29/97

§3.05, at 3-25 (3rd ed. 1992). Plaintiffs have presented

evidence that the number of potential claimants in this case

will be between 100 to 150 persons.

(b) Geographic Disparity

Plaintiffs claim that many of the potential class

members may have moved due to the transient nature of

employment in the gambling business. The fact that potential

claimants may be geographically dispersed or difficult to track

indicates that it would be impracticable to join all of the

potential claimants. Although plaintiff has not introduced any

specific evidence that there are potential class members that

have moved out of the area, the court notes that the likelihood

that some of the potential class members are geographically

dispersed indicates that it would be impracticable to join these

members.

(c). Retaliation

Plaintiffs claim that some of the potential class

members may still be employed with the defendants and that

fear of retaliation might discourage potential plaintiffs from

becoming joined parties in this suit. Plaintiffs have presented

evidence through the testimony of plaintiff Sheila Bachemin

that some employees failed to complain about the ventilation

conditions aboard the vessel for fear of retaliation. See

Deposition Testimony of Sheila Bachemin at p. 92.

Accordingly, plaintiffs have presented evidence that fear of

retaliation may dissuade potential class members from filing

suit individually.

34a

District Court Order & Reasons - 8/29/97

(d) Conclusion - Numerosity

Plaintiffs have presented evidence that the number of

the potential class of plaintiffs will be between 100 to 150

persons, that this number includes members who may be

geographically dispersed and that the fear of retaliation may

dissuade potential class members from filing suits

individually. Therefore, plaintiffs have presented evidence

that joinder of all these potential class members is

impracticable within the meaning of Rule 23 (a) (1).

2. COMMON QUESTIONS OF LAW OR FACT

Plaintiffs argue that there are common questions of law

and fact underlying the proposed class members’ potential

claims. The proposed class of plaintiffs all seek to recover

under the same theories of liability, they all seek the benefits

of being Jones Act seamen and although their damages may

vary in degree, their alleged damages are similar in kind. The

proposed class of plaintiffs all allege that they suffered

damage as a result of inhaling second-hand smoke aboard the

defendants’ vessel. Accordingly, plaintiffs have presented

evidence that there are common questions of law and fact

underlying their claims.

3. TYPICALITY

Plaintiffs argue that the claims of the representative

parties are typical of the claims of the proposed class. The

class representatives in this case are the named plaintiffs,

Dennis Mullen, Sheila Bachemin, and Margaret Phipps, all of

whom claim to have fallen ill with occupational-related

respiratory problems while working aboard the M/V Treasure

35a

District Court Order & Reasons - 8/29/97

Chest Casino. The proposed class consists of coworkers of

the representative plaintiffs who have been stricken with

occupational respiratory illness caused by or exacerbated by

the alleged defective ventilation system aboard the M/V

Treasure Chest Casino. Accordingly, plaintiffs have

presented evidence that the claims of the representative parties

are typical of the claims of the proposed class.

4. ADEQUACY OF REPRESENTATION

Plaintiffs argue that the representative parties will

fairly and adequately protect the interests of the class.

Plaintiffs note that the representative plaintiffs have identical

interests with the proposed members of the class. In Horton

v. Goose Creek Ind. Sch. Dist., 690 F.2d 470 (Sth Cir.),

reh'g denied, 693 F.2d 524 (1982), and cert denied, 103

S.Ct. 3536 (1983), the Fifth circuit noted that “the adequacy

requirement [of Rule 23(a)(4)] mandates an inquiry into the

zeal and competence of the representative’s counsel” as well

as “into the willingness and ability of the representative to

take an active role in and control the litigation and to protect

the interests of the absentees.” Horton, 690 F.2d at 484.

Plaintiffs’ attorneys, Scott Bickford and John Martzell, certify

that they have represented hundreds of occupational-

respiratory Jones Act cases over the past twelve years and

have participated in numerous state and federal class-action

suits. Accordingly, plaintiffs have presented evidence that the

representative parties will fairly and adequately protect the

interests of the class.

36a

District Court Order & Reasons - 8/29/97

B. RULE 23(b) (3)°

Plaintiffs argue that the questions of law or fact

common to the members of the proposed class predominate

over any questions affecting only individual members and that

a class action is superior to other available methods for the

fair and efficient adjudication of the proposed class members’

claims.

1. Predominance

The issues of law and fact common to all of the

members of the proposed class will be the question of whether

the employees of the M/V Treasure Chest Casino are seamen

within the meaning of the Jones Act, whether the M/V

Treasure Chest Casino is a vessel within the meaning of the

Jones Act, whether the M/V Treasure Chest Casino was

unseaworthy, and whether the ventilation system of the M/V

Treasure Chest Casino was unreasonably suited to protect the

proposed class members from harm. The questions of law

* Plaintiffs also claim that in addition to Rule 23(b)(3),

Rule 23(b)(1) provides a basis for certification of the proposed

class in this case. However, plaintiffs raise this issue for the first

time in their reply memorandum. Issues raised for the first time in

a reply memorandum deprive a non-moving party of a meaningful

opportunity to respond. See Springs Indus., Inc. v. American

Motorists Ins., Co., 137 F.R.D. 238, 229 (N.D.Tex. 1991).

Therefore, pursuant to the principal that the basis upon which a

movant requests relief must be presented in his memorandum in

support of that request, this court does not express any opinion on

whether the plaintiffs would be entitled to certification under Rule

23 (b) (1).

37a

District Court Order & Reasons - 8/29/97

affecting only individual members will be whether the

members were contributorily negligent, the particular severity

of the damages allegedly suffered by the members, and extent

to which those damages were caused by the action or inaction

of the defendants. In mass tort litigation, the Fifth Circuit has

held that for purposes of Rule 23 (b) (3). “a class issue

predominates if it constitutes a significant part of the

individual cases.” Watson v. Shell Oil Co., 979 F.24 1014,

1022 (5" Cir. 1992). In the present case, the issues ofseaman

Status, vessel status, seaworthiness, and negligence constitute

a significant part of the individual cases of the proposed class

members. Accordingly, the questions of law or fact common

to the members of the proposed class predominate over any

questions affecting only individual members.

a Superiority

In Castano v. American Tobacco Co. , 84 F.3d 734 og

Cir. 1996), the Fifth Circuit reversed a lower court’s class

certification, noting that the lower court’s finding that a class

action was superior to other available methods for the fair and

efficient adjudication of the proposed class members’ claims

was erroneous in light of the managerial problems associated

with the claims of the class. Castano, 84 F.3d at 746-52. In

Castano, a district court certified a class consisting of all

nicotine-dependent cigarette smokers, their estates, and their

relatives. In reversing, the Fifth Circuit noted that the district

court failed to adequately consider the managerial problems

associated with such a class, such as the “difficult choice of

law determinations, Subclassing of eight claims. with

variations in state law, Erie guesses, notice to millions of

class members, further subclassing to take account of transient

plaintiffs, and the difficult procedure for determining who is

38a

District Court Order & Reasons - 8/29/97

nicotine-dependent.” /d. at 747. The court went on to note

that “[c]ases with far fewer manageability problems have

given courts pause.” Jd.

in the present case, all of the proposed class members’

claims arise under federal maritime law and therefore the

difficult choice of law and Erie problems present in Castano

do not exist in this case. Moreover, the proposed class

consists of hundreds, rather than millions, of members and

therefore the problems associated with notice which were

present in Castano, do not exist in this case. Plaintiffs

propose the following trial plan:

The class action would include an initial phase

in which the liability issues common to all

plaintiffs would be tried together. Later if

plaintiffs prevailed on liability, the unique

issues such as damages (and causation if

necessary), would be tried in waves of

approximately five plaintiffs at a time.

Because this court has the option of bifurcating the legal and

factual questions common to the proposed class from the

questions unique to the individual members, this court holds

that a class action is superior to other available methods for

the fair and efficient adjudication of the proposed class

members’ claims and that this approach will promote judicial

economy ard avoid the wasteful, duplicative litigation which

would inevitably result if these cases were tried individually.

39a

District Court Order & Reasons - 8/29/97

New Orleans, Louisiana, this 29th day of August,

1997.

/s/

MARY ANN VIAL LEMMON

UNITED STATES DISTRICT JUDGE

40a

District Court Order & Reasons - 8/29/97

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

[Filed September 19, 1997 ]

No. 96-0052

DENNIS MULLEN, ET AL.

Plaintiff,

TREASURE CHEST CASINO,

L.L.C. & BOYD GAMING

CORPORATION,

Defendant.

ee i ee a a ee a a

ORDER

Considering the memoranda of counsel and the

applicable law, IT IS ORDERED that defendants’ Motion to

Certify Order of August 29, 1997 Granting Class Certification

for Interlocutory Appeal and for Stay of Proceedings Pursuant

to 28 U.S.C. § 1292(b) be and hereby is GRANTED in part

and DENIED in part. To the extent that the defendant’s

request that this court certify its order for interlocutory

appeal, this court finds, in accordance with 28 U.S.C.

§ 1292(b), that its order certifying a class in this case

“involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the

ultimate termination of the litigation.” Accordingly,

4la

District Court Order & Reasons - 8/29/97

defendants’ motion is granted to the extent that it requests an

interlocutory appeal. However, to the extent that defendants

seek a stay of discovery in this case, defendants’ Motion is

DENIED.

New Orleans, Louisiana, this 19th day of September,

1997.

/s/

MARY ANN VIAL LEMMON

UNITED STATES DISTRICT JUDGE

42a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

[Filed September 17, 1999 ]

No. 97-31189

DENNIS MULLEN,

Plaintiff- Appellee,

¥.

TREASURE CHEST CASINO,

LLC; ET AL,

Defendants,

TREASURE CHEST CASINO,

LLC,

Defendant - Appellant.

DENNIS MULLEN;

SHEILA BACHEMIN;

MARGARET PHIPPS,

Plaintiffs - Appellees,

TREASURE CHEST CASINO,

LLC; ET AL,

~ Defendants,

mee eee eee eee ees" ee”

43a

Court of Appeals Order on Petition for Rehearing - 9/17/99

TREASURE CHEST CASINO, )

LLC, )

Defendant - Appellant. )

)

Appeal from the United States District Court for the

Eastern District of Louisiana, New Orleans

ON PETITION FOR REHEARING EN BANC

(Opinion 8/19/99, 5 Cir., P F.3d)

Before EMILIO M. GARZA, BENAVIDES, and DENNIS,

Circuit Judges.

PER CURIAM:

( X ) Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is

DENIED. No member of the panel nor judge in regular

active service of the court having requested that the court be

polled on Rehearing En Banc (FED. R. APP. P. and STH CIR. R.

35), the Petition for Rehearing En Banc is DENIED.

( ) Treating the Petition for Rehearing En Banc as a Petition

for Panel Rehearing, the Petition for Panel Rehearing is

DENIED. The court having been polled at the request of one

of the members of the court and a majority of the judges who

are in regular active service not having voted in favor (FED. R.

APP. P. and STH CIR. R. 35), the Petition for Rehearing En Banc

is DENIED.

Court of Appeals Order on Petition for Rehearing - 9/17/99

ENTERED FOR THE COURT:

/s/

United States Circuit Judge

REHG-6a :

45a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.