Baker v. Lvovskiy

21 Mass. L. Rptr. 406
CourtMassachusetts Superior Court
DecidedAugust 31, 2006
DocketNo. 043046
StatusPublished

This text of 21 Mass. L. Rptr. 406 (Baker v. Lvovskiy) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Lvovskiy, 21 Mass. L. Rptr. 406 (Mass. Ct. App. 2006).

Opinion

Troy, Paul E., J.

This matter arises from a health alert issued by the Boston Public Health Commission (“Health Commission”) regarding a local Quizno’s restaurant, located at 74 Summer Street in Boston. The plaintiff, Ron Baker,2 allegedly consumed food at the Quizno’s restaurant during the time referenced in the health alert. Defendants, Boris Lvovskiy and Sonya Litvinenko, individually and d/b/a Quizno’s Subshop #4688, owned and operated the Quizno’s restaurant. Defendant, Quizno’s Master LLC, is alleged to be the principal or ostensible principal of defendants, Boris Lvovskiy and Sonya Litvinenko. The plaintiff has brought claims, on behalf of himself and all those similarly situated, alleging breaches of warranty and negligence by the defendants. The plaintiff now moves for class certification. For the reasons stated herein, the Plaintiffs’ Motion to Certify Class is ALLOWED.

BACKGROUND

On June 27, 2004, the Health Commission issued a warning to those who had eaten at the Boston Quizno’s restaurant on June 17, 18, or 19 that they may have been exposed to the Hepatitis A Virus (“HAV”). An employee of the Quizno’s restaurant, who had helped to prepare uncooked and cold food, had received a diagnosis of HAV, which precipitated the health warning.

The Health Commission recommended that “(p)ersons who ate food prepared” at the Quizno’s restaurant on June 17, 18 or 19, 2004 receive a shot of Immune Globulin (“IG”), which temporarily protects against HAV. The Health Commission recommended that those exposed receive an IG shot by July 1, 2004. The Health Commission offered a free IG clinic at St. Anthony’s Shrine, in Boston on June 29 and 30 from 11:00 AM to 7:00 PM. One thousand four hundred seventy people attended the free clinic and received an IG shot.

The parties estimate that between 600 and 800 people ate at Quizno’s during the relevant period. A frequently asked questions pamphlet, attached to the Health Commission’s warning, indicated that HAV “is not typically transmitted by blood, semen or saliva... Only people who ate food prepared at Quiznos — such as sandwiches and salads (not bottled drinks) would be at risk of Hepatitis A.”

Once a person has been infected with HAV, that person becomes immune to further infection. HAV does not have long-term effects. However, fifteen percent of those infected have continuing symptoms for six to nine months.

In July 2004, there was only one reported case of HAV in the Boston area. That infected individual was out of town when the alert was issued and, therefore, did not receive notice of the potential exposure or the free clinic. This individual falls outside the contemplated class as he did not receive an IG shot.

During the hearing on this motion, the plaintiffs attorneys identified the class of plaintiffs seeking certification as “those persons who were required for [407]*407public and personal safety reasons to obtain a vaccination with immune-globulin because of . . . their consumption of food that was manufactured and sold by the defendants at their Quizno’s restaurant.”3

STANDARD

Mass.RCiv.P. 23 governs class actions. As a prerequisite to class certification, a parly seeking such certification must demonstrate that “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class.” Mass.R.Civ.P. 23(a). In addition to the prerequisite requirements, a party seeking class certification must also demonstrate that the “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that class certification is superior to other available methods for the fair and efficient adjudication of the controversy.” Mass.R.Civ.P. 23(b).

The parly seeking certification bears the burden of proving that all six of the foregoing requirements have been met. Weld v. Glaxo Wellcome, Inc., 434 Mass. 81, 86-87 (2001). The certification of a class is not a matter of mathematical precision. Id. at 85. Therefore, the decision to certify a class is within the broad discretion of the trial judge. Id. at 84-85; Coggins v. New England Patriots Football Club, Inc., 397 Mass. 525, 537 (1986). A plaintiff must provide “information sufficient to enable a judge to form a reasonable judgment that the class meets” the certification requirements. Weld, 434 Mass, at 87. Plaintiffs “do not bear the burden of providing evidence sufficient to prove that the requirements have been met.” Id., citing Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975) (maintaining that neither the possibility that the plaintiffs’ claims will ultimately fail nor the possibility that a decision to certify a class may unforeseeabfy turn out incorrect, is a proper basis to decline certification).

Notably, the predominance requirement is satisfied by a “sufficient constellation of common issues [that] bind class members together.” Weld, 434 Mass. at 92, paraphrasing in parenthetical Waste Mgt Holdings Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000). A trial judge’s discretion is “particularly extensive when dealing with the ‘superiority’ requirement of rule 23(b).” Berry v. Town of Danvers, 34 Mass.App.Ct. 507, 515, citing Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 601 (1985).

DISCUSSION

The Defendants do not dispute that the plaintiffs have met the preliminary prerequisites for a class action: numerosity, commonality, typicality, and adequacy. Mass.R.Civ.P. 23(a). The defendants focus their challenge upon Mass.R.Civ.P. 23(b).

I. MassRCiv.P. 23(b)(1): Predominance of Common Factual and Legal Issues

The defendants contend that issues unique to individual potential class members predominate over common issues. Contrary to the defendant’s contention, issues common to all class members clearly predominate in this action.

The predominant issues to be sorted out during discovery and at trial relate to the defendants’ alleged negligence and breaches of warranty. The central focus of this action will likely be upon the liability of the defendants rather than the distinctive features of the individual plaintiffs. During discovery and at trial, the parties will identify the defendants’ duties owed to their patrons, whether the defendants breached those duties, and finally, if a breach occurred, whether that breach caused the health alert. See Weld, 434 Mass. at 92. The limitation of the class to those that actually ate at Quizno’s during the relevant time period largely mitigates potential concerns regarding each individual plaintiffs distinct claims.4

The contemplated plaintiffs also share a number of common concerns related to damages, including, but not limited to: the discomfort in receiving the IG shot; the mental distress experienced as a result of each individual’s potential exposure; and, the inconvenience arising from the necessity to receive the IG shot. These potential damages are real and, therefore, compensable.

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Related

Amchem Products, Inc. v. Windsor
521 U.S. 591 (Supreme Court, 1997)
Waste Management Holdings, Inc. v. Mowbray
208 F.3d 288 (First Circuit, 2000)
Berry v. Town of Danvers
613 N.E.2d 108 (Massachusetts Appeals Court, 1993)
Fletcher v. Cape Cod Gas Co.
477 N.E.2d 116 (Massachusetts Supreme Judicial Court, 1985)
Coggins v. New England Patriots Football Club, Inc.
492 N.E.2d 1112 (Massachusetts Supreme Judicial Court, 1986)
Weld v. Glaxo Wellcome Inc.
434 Mass. 81 (Massachusetts Supreme Judicial Court, 2001)
Aspinall v. Philip Morris Companies, Inc.
442 Mass. 381 (Massachusetts Supreme Judicial Court, 2004)
Blackie v. Barrack
524 F.2d 891 (Ninth Circuit, 1975)

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Bluebook (online)
21 Mass. L. Rptr. 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-lvovskiy-masssuperct-2006.