Davenport v. Gerber Products Co.

125 F.R.D. 116, 1989 U.S. Dist. LEXIS 3276, 1989 WL 34308
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 31, 1989
DocketCiv. A. No. 87-3198
StatusPublished
Cited by5 cases

This text of 125 F.R.D. 116 (Davenport v. Gerber Products Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davenport v. Gerber Products Co., 125 F.R.D. 116, 1989 U.S. Dist. LEXIS 3276, 1989 WL 34308 (E.D. Pa. 1989).

Opinion

MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before the court is the motion of plaintiffs, Timothy D. Davenport, Jr., his mother, Trayce Fowlkes, Anna Mae Stocklin, and her parents, Warren and Anna Stocklin for class certification. Plaintiffs are seeking the certification of a voluntary class, pursuant to Fed.R.Civ.P. 23(b)(3) for their claims for damages, and a mandatory class, pursuant to Fed.R.Civ.P. 23(b)(1)(A) and 23(b)(2) for their claims for injunctive relief.

[117]*117BACKGROUND

The named plaintiffs seek to maintain this action as a class action on behalf of the following defined class:

All minor children suffering from or who have been injured by Nursing Bottle Syndrome and the parents of such injured children, or persons in loco parentis, who presently reside in the Commonwealth of Pennsylvania.

Plaintiffs’ Motion Memorandum at 1.

Plaintiffs seek damages arising from personal injuries allegedly caused by defendants’ infant-feeding bottles and to compel the defendants to issue warnings on such bottles. Specifically, plaintiffs seek class certification only on the issue of defendants’ “duty to warn” of the condition known as “Nursing Mouth Syndrome.” 1 I will address the problems that are presented by class certification.

DISCUSSION

I. The Requirements of Rule 28

A. Rule 23(a)

1. Numerosity

Rule 23(a)(1) mandates that the proposed class be “so numerous that joinder of all members is impracticable.” Counsel for plaintiffs generally aver that the proposed class is estimated to contain at least one thousand members. On the other hand, excluding the named plaintiffs, plaintiffs’ counsel do not identify by name and address any other claimants. In re Tetracycline Cases, 107 F.R.D. 719, 728 (W.D.Mo. 1985). Certainly to the extent that the affidavit of expert Dr. Nelson attests to the fact that each year more than one thousand children are treated at Children’s Hospital of Pennsylvania for Nursing Mouth Syndrome, can this court find that the “numerosity” requirement is met. For the moment, I will conclude that the numerosity prerequisite has been established.

2. Commonality

Rule 23(a)(2) mandates that “questions of law or fact common to the class” be present. Plaintiffs, correctly assert that a single common question might be sufficient to satisfy Rule 23(a)(2). See e.g., In re “Agent Orange Product” Liability Litigation, 818 F.2d 145, 166-67 (2d Cir.1987) (citing Port Authority Police Benevolent Ass’n. v. Port Authority of New York & New Jersey, 698 F.2d 150, 154 (2d Cir.1983) (“Since plaintiff has satisfied the requirement of a common question of law or fact, Rule 23(a)(2), the denial of class certification must be reversed.”)), cert. denied, — U.S. -, 108 S.Ct. 695, 98 L.Ed.2d 647, — U.S.-, 108 S.Ct. 2899, 101 L.Ed.2d 932 (1988). Plaintiffs contend that there are various common questions of law and fact in this action. Common questions of fact asserted by plaintiffs are:

(1) when the defendant knew or had reason to know of [Nursing Mouth Syndrome];
(2) whether the defendants’ products were dangerous as marketed, without warnings, and caused plaintiffs’ and [118]*118class members’ injuries; and (3) whether these products could have been safely distributed with appropriate warnings.

Plaintiffs' Motion Memorandum at 9.

Common questions of law asserted by plaintiffs are:

(1) whether the defendants had a duty to warn parents or infant caretakers about
[Nursing Mouth Syndrome];
(2) whether the defendants breached this duty; and
(3) whether the failure of a parent or caretaker to practice optimal dental practices can be imputed to their child and undermine the child’s ability to gain full compensation from the defendants herein.

Id. I note that the Third Circuit has liberally applied the Rule 23(a)(2) commonality requirement. The Court of Appeals in In re School Asbestos Litigation, 789 F.2d 996, 1010 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117, 479 U.S. 915, 107 S.Ct. 318, 93 L.Ed.2d 291 (1986) has stated:

We find ourselves in substantial agreement with the reasoning of the Court of Appeals for the Fifth Circuit which, in upholding a (b)(3) class action of 893 asbestos personal injury claims, noted that the ‘threshold of commonality is not high.’

(citing Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th Cir.1986)). I accept that there are common questions of law and fact running through this action. The primary legal question presented is whether defendants, if any, had a duty to warn of the potential harm of Nursing Mouth Syndrome. Moreover, it must be conceded that use of the feeding bottle is a fact common to all of the plaintiffs’ claims. Therefore, it could be reasonably argued, and plaintiffs not surprisingly do argue, that commonality, within a permissive application of Rule 23(a)(1), is present.

3. Typicality

The third Rule 23(a) prerequisite mandates that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” “[C]laims [are considered] typical when the ‘essence’ of the allegations concerning liability, and not the particularities, suggest adequate representation of the interests of the proposed class members.” Peil v. Speiser, 97 F.R.D. 657, 659 (E.D.Pa.1983) (quoting Peil v. National Semiconductor Corp., 86 F.R. D. 357, 371 (E.D.Pa.1980)).

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Bluebook (online)
125 F.R.D. 116, 1989 U.S. Dist. LEXIS 3276, 1989 WL 34308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davenport-v-gerber-products-co-paed-1989.