Sometimes, although it seems like not very often, California courts do find that consumer fraud cases are not appropriate for class certification. Take, for example, the decision that came down last week out of the Southern District of California.
In Mezzadri v. Drive Medical, plaintiff claimed that defendant misrepresented the quality and the materials used to make its full body patient slings (used to transport patients who are unable to walk). Plaintiff claimed he purchased a medical sling based on false statements seen while conducting online research, and that these statements led him to purchase a sling that was not durable and would fail when washed according to the instructions. He sought to represent a class of all California residents who purchased the slings.
On class certification briefing, defendant presented facts showing that the vast majority of patients do not directly make any decision about the type of slings to purchase. Rather, the slings are selected for them by healthcare provides who are, essentially, filling a doctor’s prescription. These providers carry various types of medical devices and, to them, the medical slings are commodity items that are not selected based on any representations by the manufacturers as to quality, material or washing instructions.
These facts proved fatal to the class certification bid. While finding that the Rule 23(a) factors of numerosity, adequacy of counsel, commonality, and typicality were met, the court found that common issues did not predominate. Relying on supplier declarations, the court stated that plaintiff could not commonly show reliance (necessary in some form for UCL, FAL, CLRA and implied warranty claims) on the challenged statements because the statements were neither material to consumers, nor were the majority of consumers exposed to the statements (since they never actually research or select slings).
Plaintiff’s argument that the healthcare providers were, in effect, proxies for the consumers was also rejected by the court, because the providers said they also did not consider the challenged statements when making sling selections for patients.
Damages also posed a problem for plaintiff’s class certification bid. Citing Comcast, the court reiterated “a plaintiff who seeks to represent a putative class must present a damages model that ties the defendant’s conduct at issue to a method of measurement that is consistent with his liability case.” The court rejected plaintiff’s claim that a full refund of the purchase price was the appropriate damages measure, based on the fact that plaintiff could not show that the slings were “completely valueless.”
Plaintiff’s attempt to assert an alternative price premium damages theory was also quickly dismissed. The court faulted plaintiff for not detailing how price premiums could be determined via consumer surveys, and failing to support his theory of recovery with an expert declaration.
Although it seems that classes are certified more often than not in California courts, this case is an excellent example of a court looking to the facts (as mandated by Wal-Mart) to find that a plaintiff’s case theory is simply not susceptible to class treatment.
