Donald W. Abshire, Gesele Adams, James & Alice Alexander, Loffie Allen, Larry Amberg, Alfred Anderson, Wesley Anderson, Glen Arnold, James Ashworth, William Atwell, Lucy Mae Auzenne, Morna Jean Awtry, Maydean Ayond, Mildred Ayond, Nadine Bailey, Bright Mo VS State of Louisiana, Through the Department of Insurance, The Department of Insurance, The State of Louisiana Through the Office of Financial Institutions, The Office of Financial Institutions, The Louisiana Insurance Guaranty Association and Standard Anal

Annotate this Case

Download PDF

NOT DESIGNATED FOR PUBLICATION STATE QF L JUISIANA COlJRT F APPEAL FIRST TRCpJIT N0. 201 CA O. CI DONALD W. ABSHIRE AND THE OTHER RE7ITIONERS NAMED HEREIN VERSUS THE STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF INSURANCE OF THE STATE OF LOUISIANA; THE DEPARTMENT OF INSURANCE OF THE STATE OF LOUISIANA; THE STATE OF LOUISIANA, THROUGH THE OFFICE OF FINANCIAL INSTITUTIONS OF THE STATE OF LOUISIANA; THE OFFICE OF FINANCIAL INSTITUTIONS OF THE STATE OF LOUISIANA; THE LOUISIANA INSURANCE GUARANTY ASSOCIATION; AND STANDARD ANALYTICAL SERVICE, INC. 7udgmentRendered iDE 1$ 2 3 Appealed from the 1 / 19th Judicial District Court in and for the Parish of East Baton Rouge, State of Louisiana Trial Court No. 377, 713 c/ w No. 412, 265 Honorable Doug Moreau, Judge Ad Hoc DAVID P. SMITH, DAVID C. RAPHAEL, ] R., AND GOuNSEL FfiR PLAINTIFFS/ APPELLAfVTS BRIAN D. BROOKS OF ALEXANDRIA, LA; JOHN DONALD V'v. , BSHIRE, ET AL GREGORY ODOM OF NEW ORLEANS, A; AN DAN B. McKAY, JR. OF BUNKIE, LA LAURENCE E. LARMANN, MICHAEL]. COUNSEL FOR DEFENDANT/ APPELLEE VONDENSTEIN, AND JOSEPH L. SPI MAN III OF ADMIRAL dNSURANCE COMPANY MEfAIRIE, LA; AND DAVID C. BACH OF BATON ROUGE, LA TIMOTHY G. SCHAFER, AND RACHEL S. KELLOGG COUNSEL FOR DEFENDANT/ APPELLEE OF NEW ORLEANS, LA LDQNGTON INSURANCE COMPANY JOHN B. DUNLAP, III, SUSAN ECCLES, AND COUNSEL FOR DEFENDANTS/ APPELLEES ENNIFER A. FIORE OF BATON ROUCiE, LA LOUISIANA DEPARTMENT OF INSURANCE AND OFFICE OF RISK MANAGEMENT DAVID M. LATHAM, KEARY L. EVERITT, AND MARIE CJUNSEL FQR DEFENDANT( APPELLEE G. EVERITT OF NEW ORLEANS, LA LOUISIANA OFFICE OF FINANQAL INSTITlffIONS CJUNSEL FOit DEFENDANT/ APPELLEE WESTCHESTER FIRE INSURANCE PAUL D. PALERMO OF METAIRIE, LA CJMPANY COUNSEL FOR DEFENDANT/ APPELLEE C. MICHAEL PFISTER OF METAIRIE, LA COfJT'INENTAL INSURANCE COMPANY COUNSEL FOR DEFENDANT/ APPELLEE NATIONAL UNION FIRE INSURANCE ROBERT I. SIEGEL OF NEW ORLEANS, LA COMPANY OF PITTSBURGH, PA CHARLES ZIMMER, AND RALPH S. HUBBARD, III, COUNSEL FOR DEFENDANT/ APPELLEE OF NEW ORLEANS, LA AMERICAN IXPRESS INSURANCE ASSOCIATION BEFORE: PETTIGREW, McDONALD, AND McCLENDON, J7. 2 PETTIGREW, L The plaintiffs herein appeal a judgment denying their motion for class certification. For the following reasons, we reverse the judgment and remand this matter for further proceedings. FACTS Over 1, 000 individual owners of annuities, life insurance policies, and corporate plaintiffs' notes (" instituted actions in 1991 and 1992 against the State of Louisiana, through the Department of Insurance (" DOI' Plaintiffs OFI'. Public Investors PICO', and purchased Life and the Office of Financial Institutions their instruments from three Louisiana companies namely, Insurance Company (' PILICO', Midwest Life Insurance Company (" Public MidwesY.' Investors Incorporated In 2003, plaintiffs added additional defendants, including the State of Louisiana Office of Risk Management ORM' and numerous insurers who provided excess insurance coverage to the State of Louisiana during the period of 1987 to 1991. Z OFI, DOI, ORM, Admiral Insurance Company (' Admiral', Lexington Insurance Company, National Union Fire Insurance Company, and Westchester Fire Insurance Company are collectively referred to herein as the" appellees." Plaintiffs allege that during the period of 1987 through 1991, the State of Louisiana, by and through OFI and DOI, either negligently, recklessly, maliciously, flagrantly, or intentionally acquiesced in the various company owners' criminal plans to transfer funds out of the companies in which plaintiffs invested and use those funds to support afFliated, failing companies in which plaintiffs had no interest. Specifically, plaintiffs contend that OFI and DOI gave regulatory approval to these transactions in Each company was an affiliate in the Southshore Holding Company financial and insurance group. 2 The Eighth Amended Petition, filed in March 2003, named the following as additional defendants: International Insurance Company, Admirel Insurance Company, Lexington Insurance Company, National Union Fire Insurance Company of Pittsburgh, PA, Aetna Casualty Surety Company, American Home Assurance Company, Insurance Company, Company, Company, Continental Casualty Company, Federal Insurance Company, Continental Insurance United States Fire Insurance Company, General Star National Insurance Company, The Home Company, Insurance Company of North America, Maryland Casualty Company, NAC Reinsurance Royal Insurance Company of America, The Travelers Indemnity Company, Zurich Insurance American Excess Insurance Association, and the State of Louisiana Office of Risk Management Self Insurance Fund. Westchester Fire Insurance Company is also a defendant in this action. 3 order to protect the Louisiana Fnsuran e Gu ranty Association (" LIGA' fund, which served as guarantor of the insurance compar ies t at benefited from the illegal PICO, ar+ Mtl lwest I t? eeiia sPd, and plai tl Fs' losses were not d r PILIC, transactions. protected by LIGA. Although there was a iarge gr up of claimanis, lass action status was not sought at the time this case was filed. It instead proceeded as a consolidated matter with at least several hundred individually named plaintiffs who were joined in the litigation and represented by the same counsel. In order to manage so many clients' claims, shortly after this case was filed, plaintiffs' counsel sought to create a, committee of plaintiffs who would direct corporation the named litigation. Thus, the plaintiffs formed a Louisiana not-for- profit PICO/ Midwest Action Group (" PMAG. PMAG was a representative body created to legally act on behalf of all plainti fs, to simplify management, contact, and representation. PMAG' s members, officers, and directors were all plaintiffs in this action, and PMAG' s Board of Directors was elected by the plaintiffs, Each plaintiff was a member of PMAG, and the PMAG Board was given a power of attorney to manage each individual This arrangement with PMAG was embodied in every engagement letter with claim. counsel. For years, plaintiffs' counsel maintained contact with their clients through PMAG and proceeded by using PMAG as a vehicle to manage the litigation. However, at the time this litigation began, many of the plaintiffs were elderly, and over the subsequent years, numerous plaintiffs i ave died or become incapacitated. Plaintiffs' counsel maintains that, even witf PMAG, eomnnunication with and management of their clients became increasingiy difficult due to the advanced age of many plaintiffs, their disabilities, relocation, and other factors that come with the passage of time. The record reflects that there have been approximat ly seventy ex- parte motions to substitute filed on behalf of heirs of deceased plaintiffs. Some of these substitutions have been contested; and as this litigation continues, the communication and substitution issues have only become more challenging and present obstacles to an efFicient and speedy resolution of this case. 4 The continuing likigation over substitutians is onfy ane issue among many that the parties have differed supervisory writs t ver the mears, this court Ihas considered at least fifteen over. in this matker. lai in 2, iffs appeaied an arder of the trial court that dismissed hundreds of plaintiffs far theFr fail re to submit te a deposition before a court- imposed On Navembe deadilne, 1Q06, + l is 3 ourt reversed the trial court's decision and remanded for proceeair ys cor;soste t the e vith. 3 , Following this court's decision, the parties engaged in settlement discussions. Plaintiffs' counsel' s stated belief is that, up until that point, utilizing PMAG was a more effective way to manage the litigation thart seeking class ac ion status. However, the settlement discussions stalled due to questions about plaintiffs' counsel' s ability to settle the case through PMAG, in light of a change in the Louisiana Rules of Professional Conduct, Rule 1. 8( G) 4 Plaintiffs' counsel then sought an ethics advisory opinion. The December 18, 2006 letter from the Ethics Advisory Service Committee advised that it was not possible to settle claims through the PMAG management committee, and that the only way to obtain authority to settle the case was to convert it to a class action.s However, instead of seekiny class ce kification, in April 2007, plaintiffs' counsel filed a motion to withdraw as counsei for the Z27 cl ents that counsel had lost contact with, explaining that, in preparing for trial, it developed that some of the plaintiffs could not be found or were unable or unwilling to August 6, 2007, the trial court oraliy om nura cate with denied the motion counset. After a hearing on to withdraw. Thereafter, on Abshire v. State ex rel. Dept. of Ins., 2i106- 0005, 20Q6- 000fi ( La. App. 1st Cir. il/3/ 06), 2006 WL 3110244 ( Unpublished Opinion). In our analysis of whether the triai court erred in dismissing the nondeposed plaintiffs, we noted that it was apparent that those plaintiffs did not willfully disregard the terms of the consent order which set the deposition deadline. There ras no evidence in the record Yhat the non- deposed plaintiffs were even made aware of the consent order or received notices of deposition served on their counsel. Further, we observed that at a 2Q02 hearing on the makter, plaintiffs' counsel stated that he was unable to locate a number of the deponents to notify them of the depositions, and he analogized attempts to communicate with his clients to" herding cats." Id. at* 6. 4 Louisiana Rules of Professional Conduct, Rule 1. 8( G) states, in pertinent part: " A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients ... unless each ciient gives dnformed consent, in a writi g signed by the client, or a court approves a settlement in a certified class action." 5 Advisory Serrlce Committee letter advised: " Rule 1. 8( g) recognizes the logisfical efifficulties hat mi.ght be encountered by a lawyer simultaneously representing a large number of clients whe faced with the prospect of obtaining informed consent to settle and, as a result, creates a limited special exceptior+ allovv nG he lawyer to obtain court approvai of an Specifically, the Louisiana State Bar A, sociation Ethics aggregaYe settlement of the clients' claims bui onlv in a certifsed cfass action." { 5 Emphasis in original.) September 20, 2007, plaintiffs' sought to amend theic petition, for th ninth time, in order to assert claims for class cer ificat Qn. In grantirig the motion to amend the petition to assert claims for class certification th trial c aa commented: " By seeking leave to amend the petition ta aad allegations s eking class r lief, plaintiffs` counsel are taking the only action available to prevent the s ma` y disr' sssal of absent clients." After the motion to amend the petition was granted, the plaintiffs filed their Ninth Amended and Supplemental Petition. The proposed ciass is defined as follows: All persons or entities in the United States who filed suit against the State of Louisiana and/ or its Department of Insurance or OfFce of Financial Institutions for damages caused by the State's conduct in connection with the failure of Public Investors Life Insurance Company, Inc., and whose claim was consolidated into Civil Action No. 377, 713 or No. 412, 265 captioned Donald W. Abshire, et al. vs The State ofLouisiana, et al.); All persons or entities in the United States who filed suit against the State of Louisiana and/ or its Department of Insurance or O ce of Financial Institutions for damages caused by the State's conduct in connection with the failure of Public Investors, Inc., and whose claim was consolidated into Civil Action No. 377, 713 or No. 412, 265 ( captioned Donald W. Abshi e, et al. us: The State ofLouisiana, etal.) All persons or entities in the llnited States wl o filed suit against the State of Louisiana and/ or its Department of Insurance or Office of Financial Institutions for damages caused by the State's conduct in connection with the failure of Midwest Life Insurance Company and whose claim was consolidated into Civil Action No. 377, 713 or Na 412,265 ( captioned Donald W. Abshire, et a/. s The State ofLoulsiana, et a/.); Excluded from the Class are any persons or entities whose claims in Civil Action No. 377, 713 or No. 412, 265 have been reso ved by a final, unappealable judgment. Plaintiffs concede that this definition does not expand the class beyond those claimants who were already plaintiffs. Plaintiffs argue that upon final judgment, all that will have to be done is to take ±he original list of plaintiffs stated in the petitions, take out all plaintiffs dismissed by final judgment, and the resuiting group constitutes the total class. Immediately after the Ninth Amended Petition was filed, Admiral, OFI, and the ORM sought to remove the case to federai court, arguing that under the Class Action Fairness Act of 2005, federal subject-matter jurisdictiAn existed over the putative class 6 action. The federal district court remand d the case to state court, the United States Fifth Circuit affirmed, and the United States Supreme Court denied certiorari. b pCTION OF THE TRIAL COURT Upon remand, the C.ou`ssiana 5upr r E Caurt; appointed a judge to sit ad hoc to assist n Decem the trial court, irrJune 201Q. r 20; 014, the trial court held a hearing on khe plaintifFs' motion for class certifieation, At the conclusion of the hearing, the court indicated that it was particularly interested in the meaning of the word " impracticable," as it is used in the Louisiana dass action article, La. Code Civ. P. art. 591( A)( 1), and the court invited post-hearing briefs. On February 10, 2011, the trial court heard arguments again and then orally denied the plaintiffs`. motion for class certification. In its oral reasons for judgment, after discussing the subjective nature of the words found in La. Code. Civ. P. art. 591, the trial court stated: In the one that is to me, although written in a subjective way, ( A)( 1), class is so numerous that joinder of all members is impracticable. In this case, it is not subjective. It is very objective, because, in fact, alf of the members of the class are plaintiffs in this lawsuit. I mean, they are. So, it is not a matter of discretion. I do not think in this case that the court has any discretion whatsoever becavse of the objective nature of the evidence in this case in relation to that subsection, that article subsection, that there is under no circumstances ..., Tn this case, it cannot in any way ever be said that it is impracticable to join the members of the class because they are already plaintiffs. They are in the lawsuit already. So, it cannot meet that criteria, and it has got to meet al's five of those in order just to get to the second IeveL On March 11, 2011, plamtiffs filed a motion for a suspensive appeal from the judgment denying class certificatior: On March 30, 2011, a judgment was signed, and the trial court granted the motion for appeal. ASSIGNMENTS OF ERROR On appeal, plaintiffs raise the following assignments of error for consideration by this Court: 1) The district court erred as a matter of law in finding that where the claims of all class members have once been previously joined in an 6 Abshire v. Louisiana, 2009 WL 50178 ( M. D. La,), judament affirmed, Admiral Ins. Co. v. llbshire, 574 F. 3d 267 ( Sth Cir.), cert denied, Louisiana v. Abshire, 558 U. S. 1050, 130 S. Ct, 756, 175 L. Ed. 2d 517 2009). 7 action, Plaintiffs can never meet the numerosiiy requirement of La. C. C. P. art. 591 because the term " impracticability of joinder" is synonymous with " impossibility of joinder." 2) The district court erred in appl ri g lncorrect evidentiary standards at the class certification hearing, r suating 4n the improper exclusion of documents affer d for the purpose Uf dernonstrating the existence of the requisite elements for class certifi atior. 3) To the extent the district court did ar soder any of the additional elements required for class certificat aro outside of the impracticability issue, and there is no evidence that it did, the court erred in not finding that Plaintiffs satisfied all of those requirements. 4) The district court erred in failing to exercise its discretion as directed by the Supreme Court, and in failing to perform a rigorous analysis to determine whether this action meets class certification requirements. STANDARD OF REVIEW The trial court' s decision to certify a class action is a two-step process. Therefore, appellate review of such decisions must also follow a two-step analysis. The trial court must first determine whether a factual basis exists for certifying the matter as a class action. These factual findings are subject to review by the appellate court pursuant to the manifest error standard. Stewart v. Rhodia lnc., 2011- 0434, 2011- 0435, 2011- 0436, 2011- 0437 ( La. App. lst Cir. 3/ 14/ 2012), 96 So. 3d 482, 487; Singleton v. Northfield Insurance Company, 2001- 0447 ( La. App. lst Cir. 5/ 15/ 2002), 826 So. 2d 55, 60- 61, writ denied, 2002- 1660 ( La. 9/ 30/ 2002), 825 So. 2d 1200. If the trial court finds that a factual basis exists for certifying the action as a class action, it then exercises its discretion in deciding whether to certify the class. This aspect of the judgment is subject to review pursuant to the abuse of discretion standard. In reviewing such decisions, wide latitude must be given to the triai court in considerations involving policy matters and requiring an analysis of the facts under guidelines helpful to a determination of the appropriateness of a class accion. Unless the trial court committed manifest error in its factual findings or abused its discretion in deciding that class certification 826 So. 2d is appropriate, we must affirm the trial court's determination. at 61. Singleton, Implicit in this deferential standard is recognition of the essentially factual basis of the certification inquiry and of the district court's inherent power to 8 manage and control pending litigat'son. Dupree vm Lafayette Ins. Co., 2009- 2602 ( La. 11/ 30/ 10), 51 So. 3d 673, 680. Whether the trial court applied the corre t legal standard in determining whether to certify the class is reviewed de novo. Doe v. Southern Gyms, LLC, 2012- 1566 ( l.a. 3/ 19/ 13), 112 So3d 822, 830. LEGAL PRECEPTS The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue, on behalf of a class of similarly situated persons, when the question is of common or general interest to persons so numerous as to make it impracticable to bring them all before the court. The purpose of the procedure is to adjudicate and obtain res judicata effeet on all common issues applicable not only to the representatives who bring the action, but to all others who are " similarly situated,° provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion from the class action. Doe v. Southern Gyms, LLC, 112 So.3d at 827- 28 ( citin Ford v. Murphy Oil U. S.A., Inc., 96-2913, 96-2917, 962929 ( La. 9/ 9/ 97), 703 So. 2d 542, 544); Paradise v. AI Copeland Investments, Inc., 2009-0315 ( La. App. lst Cir. 9/ 14/ 09), 22 So. 3d 1018, 1021. The procedure for class certification is provided in Title II, Chapter 5, Section 1, of the Louisiana amended those Code of articles Civil by Procedure, articles 591- 597. 1997 La. Acts No. 839, §!, In 1997, the Legislature to closely track the language of the 1966 amendments to Federal Rule of Civil Pr cedure 23. The current form of Article 591 applies only to actions filed on or after 7uly 1, 1997. Brooks v. Union Pacific Railroad Co., 2008- 2035 ( La. 5/ 22/ 09), 13 So.3d 546, 555, n. 8; Doe v. Jo Ellen Smith Medical Foundation, 2012-0966 ( La. App. 4th Cir. 4J24/ 13), lI5 So. 3d 655, 659, writ denied, 2013- 1197 ( La. 9/ 13/ 13, -- So. 3d --. Accordingly, the pre- 1997 Louisiana Class Action articles apply to this case. They provided, in pertinent part: Article 591. Prerequisites A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined 9 as parties, and the character af the right sought to be enforced for or against the members of the class is 1) Common to all members cf the cfass; or 2) Secondary, in the sense that the awner of a primary right refuses to enforce iz, and a member of kk e ciass hereby becomes entitled to enforce the right. Article 592. Representation One or more members of a class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of all members. However, the 1997 amendments did not result in a substantive change to Louisiana class action law, as the changes had already been incorporated into class action jurisprudence. Thomas v. Mobil Oil Corp., 2008- 0541 ( La. App. 4th Cir. 3/ 31/ 09), 14 So.3d 7, 14, writ denied, 2009- 1359 ( La. 9/ 25/ 09), 18 So. 3d 68; Singleton, 826 So. 2d at 61. Louisiana courts have used the factors set forth in Federal Rule 23 as guidelines to determine whether to allow a class action under former articles 591- 597, even though these code articles did not contain these federal factors. Brooks, 13 So.3d at 556, citin Banks v. New York Life Ins. Co., 98- 0551 ( La. 7/ 2/ 99), 737 So.2d 1275, 1280; Singleton, 826 So. 2d at 61. For that reason, in an analysis of certification under the pre- 1997 statute, the Louisiana Supreme Court has required, among other factors, that there be questions of law or fact common to the class and that those questions predominate over questions affecting only individual members. Brooks, 13 So.3d at 556. Currently, Louisiana Code of Civil Procedure article 591(A) provides that a class action is a proper procedural device when: 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. 4) The representative parties will fairly and adequately protect the interests of the class. 5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. lo The five prerequisites for class certification in Article 591( A) are generally calied numerosity, commonality, typicality, adequate representation, and an objectively definable class. Display South, Inc. v. Graphics House Sports Promotions, Inc., 2007- 0925 ( La. App. ist Cir. 6/ 6/ 08), 992 So. 2d 510, 518, writ not considered, 20081562 ( La. 10/ 10/ 08), 993 So.2d 1274. Under current La. Code Civ. P. art. 591( B), each of these requirements must be met for an action to be maintained as a class action.' The initial burden to establish these elements is on the party seeking to maintain the class action. Conclusory allegations of the pleadings alone are insufFicient to establish La. Code Civ. P. art. 591( B) provides that an action may be maintained as a class adion only if all of the prerequisites of Paragraph A are satisfied and, in addition: 1) The prosecution of separate adions by or against individual members of the class would create a risk of: a) Inconsistent or varying adjudicatio s with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or 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; or 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 controversy. The matters pertinent to these findings include: a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions; b) The extent and nature of any litigation conceming the controversy already commenced by or against members of the class; c) The desirability or undesirability of concentrating the litigation in the particular forum; d) The difficulties likely to be encountered in the management of a class adion; e) The practical ability of individual class members to pursue their claims without class certification; The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or 4) The parties to a settlement request certification under Subparagraph B( 3) for purposes of settlement, even though the requirements of Subparagraph B( 3) might not othervvise be met. 11 the existence of a class. In determining whether trese elements have been established, the court may consider the pieadi gs, effidaviits, epositions, briefs, exhibits, and testimony presented at a certifcation hearing, Singleton, 826 So-2d at 62; Cotton v. Gaylord Container, 96- 1958, 96" 760, 768, writ L, ° 6- 104 { d. App. lst Gir. 3/ 27; 97), 691 So. 2d 7, 93 So. 2d i47: Going beyond the denied, 97- 0800; 97- 0 30 ( La. 4F,' pleadings is necessary, as a court mast 4nd rstar d the claims, defenses, relevant facts, and applicable substantive law in or er to make a meaningful determination of the certification issues. Dupree v. Lafayette Ins. Co 51 So. 3d at 680, citin Castano v. American Tobacco Co., 84 F. 3d 734, 744 ( 5th Cir. 1996). A " rigorous analysis" must be used to determine whether a class action meets the requirements imposed by law, since this procedural device is an exception to the rule that litigation be conducted by and on behalf of the individually named parties only. Doe v. Southern Gyms, LLC, 112 So. 3d at 829; Dupree, 51 So.3d at 679- 80; Brooks, 13 So.3d at 554. Frequently, the ' rigorous analysis' required to make the class certifcation determination will entail some overiap with the merits f the plaintiff's underlying claim. Doe v. Southern Gyms, LLC, 112 Soo3d at 829, citin Dukes, -- U. S. --, 131 S. Ct. 2541 2551 Wal- Mart Stores, Inc. v. 180 L. Ed Zd 374 ( 2011). Such an analysis requires the trial court "to evaivate, quantify and weigh the relevant factors to determine to what e ent the class action vvould, in each insk r ce, promote or detract from the goals of effectuating substantive iaw, judicial efficiency, and individual faimess. Dupree, 51 So. 3d at 679- 80. However, the only, issue to be considered 'by the trial.court in ruiing on certification, and by this court on review, is whether .the case at bar- is one in which the procedural device of a class action is appropriate. In determining the propriety of a class. action, the court is not concerned with whether the. piaintiffs have stated a cause of ackion or the likelihood that they ultimately will prevail on the merits. Robichaux v. State ex rel. Dept. of Health and Hospitals, 2006- 0437 ( La. App, lst Cir. 12/ 28/ 06), 952 So.2d 27, 34, writs denied, 2047- 0567, 2007- 0580, 200i-Q583 ( La. 6/ 22/ 07j, 959 So. 2d 503- 504. 12 ANALYSIS Whether plaintiffs meet the numerositv reauirement of La Code Civ P art 591 (Assianment of Error No. il Demonstrating " numerosity," he first prerequisite for class ertiflcation under the pre- 1997 and current Article 591, requiresthe pfa ¬nfiiffs to demonstrate that the class is so numerous as to make joinder impracticable. " Although referred to as the °numerosity' requirement, it is important to note that this prerequisite is not based on the number of class members alone. considered with, the The requirement of numerosity is followed by, and must be core condition of this requirement that Doe v. Southern Gyms, LLC, 112 So.3d at 830, citin Conte, Herbert B. Newberg, Newberg on joinder be impracticable." 1 William B. Rubenstein, Aiba ClassActions, §3: 11, p. 186 ( 5th ed. 2011). The numerosity qualification also requires that the proposed class is a " definable group of aggrieved persons." Doe v. Southern Gyms, LLCs 112 So. 3d at 831; Robichaux, 952 So. 2d at 33; Cotton, 691 So. 2d at 768. Numerosity is determined based upon the facts and circumstances of each individual case, and there is no set number above which a class is automatically considered so numerous as to make joinder impractical as a matter of law. Generally, a class action is appropriate whenever interested parties appear to be so numerous that separate suits would unduly burden the courts, and a class action would clearly be more useful and judicially expedient than the other a ailable procedures. Stewart, 96 So. 3d at 488; Crooks v. LCS Corrections Services, Inc., 2007- 1901 and 2007- 5902 ( La, App. lst Cir. 8/ 21/ 08), 994 So. 2d 101, 108- 09, wri s denied, 2008- 2560 and 2008- 2561 ( La. 1/ 9/ 09), 998 So. 2d 725 and 726. While a specific number is not required, khe c4ass must entail more than mere allegations of a ' 9arge number of potential claimants.".. Doe v. Southern Gyms, LLC, 112 So. 3d at 831; Robichaux, 952 So. 2d at 33. This Court has declined to adopt a rule or pcesumption that a minimum number of plaintiffs makes joinder impracticable. e. c., See Boudreaux v. State, Dept. of Transp. and Development, 96- 0137 ( La. App. lst Cir. 2/ 14/ 97), 690 So. 2d 114, 123, nJ. 3 Nevertheless, in cases involving severaf hundred plaintiffs, this Court has typically fqund that joinder is impracticable. See e. ., Display South, Inc., 992 So. 2d at 2003- 1841, 2003- 12 42, 2003- 1£ 43 ( La. A So. denied, 2Q 5- 4191 ( La. 4/ 1 05,, ? oyd v: Allied Signal, Inc., 2003- 1840, 518; p: '_st 4: i, fiGf; Sir I2// 04), 898 gieton, 826 S«. a2d SQ, 463, writ C at 63. This court has also requirec hat p a'entif s s eking certification meet a threshold burden of plausibility as a component element af a prima facie showing of numerosity. The burden of plausibility requires some evidence of a causal link between the incident and the injuries or damages claimed by sufficiently numerous class members. The prirr?a facie showing need not rise to the level of proof by a preponderance of the evidence, as would be necessary to prevail on the merits. Stewart, 96 So. 3d at 488- 89; Boyd, 898 So. 2d at 457. In this case, the exact number of plaintiffs is unclear and disputed, but there are, at a minimum, several hundred At the hearings on the motion for class plaintiffs. certification, plaintifFs' counsel represented to the trial court that the number of plaintiffs was somewhere between 826 and 1, 346 8 How ver, whether khis case meets th numerosity requirement of La. Code Giv. P. a!t, S91 is not determined solely by the number of plaintiffs, but requir s ana6yzir g the impracticability of joining these particular plaintiffs. Appellees do not dispute that there ar a large number of plaintiffs in this case, but they assert that plaintiffs have r t m t th ir qurden on showing numerosity because all of the proposed class members were joined as piainti fs approximately tvventy years ago. Accordongly, appellees argue, joinder objeckively is and was not imprackicable. In its oral reasons for judgment, the triaf court agreed with this logica Finding that ail potential class members were already plaintiffs in this iawsuit, the trial court concluded the numerosity analysis and did not consider any other ciass certification factors under La. Code Civ P. art. 5 1. e At the December 20, 2C10 class certifcation hearing, plaintiffs` counsel admitted tfiat they did not hno the precise number of plaintir°s, but put the n amber at826. At the February 10, 20? 1 hearing, pfaintiffs' counsel F stated that, not considering substitutions, there are 1, 346 in vidualiy- named plaintiffs. If the plaintiffs dismissed by various state and federal order5 are consdcierep, counsel indicated. that the number of plaintiffs could drop to 943. fl4 Plaintiffs complain that the t iai. eo rk 5mpr+ eriy equated " impractieability of joinder" with " impo sibility joi c v thus le;" ffec'tively stablishing a non- rebuttabie presumption. that the u mbe of cE i rr a ar caf a ev r be. so n merous as to make joinder impracticable, Pl i tiff argue that t ae aro a m nqus y es abaut the e'ffects Q` oinder; such as, whether the claerns can b mara ed, n ex 2r: s ssaciat d w h joinirag so many plaintiffs, and judicial economy. At the conclusion of the Decembec 20, 2Q10 hearing on the motion for class certification, the trial court told the parties that it had done definition reading from many sources to try to understand The court then said that the meaning of impracticable. impracticable is a word that in the generai sense means not practical, not sensible, or The unrealistic. impossible ta do." court speceficall, y said: Impraeti abie means a specific thing is " As an example of an impracticabie ta; k, the court cited widening Fiftn Avenue in New York City, which can be don, but as a practical matter. is Impossible. In its oral reasons for judgment on February 10 2011, he trial court seemed to rely upon its original understandi g of impracticabie as close t: impossib[e, as it said: " It cannot fn any way ever be said that it is impracticab e co j. in the members of the class because `they are o already plaintiffs. They are in the awsuik al eadyr."' Plaintiffs' counsel_ argued that there are cases saying that impracticabl does not rr ear, mpossible. The triai court responded that it was not talking about cases, but was referring to the statute. ' The jurisprudence impossibility. indicate v. mpraczieab6lity is not synonymous with It must only be sfhouvra to be impracticable to join all of the persons involved; the plaintiff need not atfege Verdin that r pr ve' that the joinder of all parties is impossibie Thomas, 191 So. 2d 646, 650 ( La, A. lst Cer, 1966). Joinder can stilf be impracticable even though it is notimpossible, S e Grooks 994 So.2d at 109. The key is " finp acticab/ity; and not impossibiiityof joinder." Flusband v. Tenet HealthSystems Memorial Medical Center, Inc., 7_ 008- 1527, 2009-0 02 ( La. App. 4th Gir. 8/ 12/ 09}, 16 So.3d 1220, 1229, writ denied, 2009- 2163 ( La. 12/ 1/ 09) F 23 So. 3d 949. Federal cour s interpreting Federal Rule 23( a)( 1) impracticable does not mean impossibfe. See e a ¢, 15 have also recognizsd that Shields v. Walt Disney Parks and Resorts US, Inc., 279 52.;. F R. p. 43 , f. C a., 2 11) ("' impracticability' does not mean ' impossibility," but onl r the di iG ¬ Aty r in o y niance of joining all members of the Casale class'; vo Kelly, 257 F.. D. 396, 405.( S. G: N. Y., .7.J09) (" Im^ ractirabie does not mean impossibleA jc inder may be m re6y diffcaawt c s ea+ reni nt, renderiny use f a class action the a r sc most efficient method Pennsylvania l?re plabnta' 9aims'; Jackson:. Southeastern Transp. Authority, 250 F R. R.. 16f, Y86 ( E, D. Pa. 2009) ` Impracticability is a ' subjective determination based on number, vfpQdiency, and inconv nience of trying individual suits.` ... impossible, Williams but v. Thus,.'[ t] his requorement does not, demand that joinder wnuid be rather that joinder Humble Oil & vouid Refining be Co., remely difFicult ar pncon.venient" f 234 F:,$r pp. , 985; 987 ( E. D. La. 1964) impracticability' does not mear ' impos ibility' but only the difficulty orinconvenience of joining all members ofthe class". Accordingly, the trial court errec to the extent that it equated ' impracticability" with " impossibility" of joinder. By dismissing the pfairatiffs' numerosity arg ment based upon a finding that joinder had already occurredr 'ti e '[ rial court fafled to consider the jurisprudence explaining what impra ticable mea s, as vell as the cases that set forth factors for a complete numerosity anafys6s. AlEhough it is obviously possibleta join a! i the plaintiffs in this litigation, that fact alcne dc es whether legai joinder is impracticabie. Be: standard when considering a s whek ca*. adeq ately ans rver t he question cf we fin * hat ti 2 trial court app9aed an +;: er the ' plaantiffs met th orrec# requirement far numerosity, we reviewr F e tr'sal ceurt"s decisiQ on h s issue e navU. In Livingston Parish Police ury v, Acadiana Shipyards, Inc., S98 So.2d 1177, 1181 ( Ls. App., lst Cir; ] 992), writ der i, 60 So.2d 1122 ( La, 1992j, thls court considered an argument simiiar to that adva cpci by appellees here. In that case, xhe defendants argued that joinder was not impractieable because thirteen separate actions had already bean joined and inciuded 12Q0 plaintiffs. The trial Pourt determined that although consolidation was possible, the ciass actlon was the better method by which to proceed, This courk affirmed chat holding and obs rr d: The- class action was devi ed to sulve prohiems ass ciated vuith adjudicating lawsuits in cases involving a a ur+ wieldy number or arties who 16 In lawsuits r volv ng numerous plaintiffs there is a be joined. should likelihood that the membership f tl- e gro.ip wiU continually change through death or otherwise, # hus a. csing recurrir c ir te ruptions of the action. Additionally, with such a large group of parties there is the likelihood that one or more of the members will be beyor d the reach of the courCs process. Giv rs that all pres eq isikes are met, the class action is the best methad to resolve the problE¢ns assacaated r vith trying this case, e.y., the arragement plan to manage tne trial court has the authority to ad pt a on fass actio binds all class ecree litigation; and a judgme t ar members, representative or absent, [ Traterna Li ingston Parish Police 7ury, 598 So. 2d at itatoo Omitked. l, 1181; See Stevens v. Board of Trustees of the Police Pension Fund of City of Shreveport, 309 So;2d 144, 148 La. 1975); See also Lewis v. Texaco Exploration and Production Co., Inc., 96- 1458 ( La. App. lst Cir. 7/ 30/ 97), 698 So. 2d 1001, 1012 Similarly, in Crooks, 994 So. 2d at 109; the defendants argued that although there were over 800 claimants in consolidated suits, the plaintiffs did not establish that joinder was impracticable, since there were approximately 495 individual claimants already joined in the suit, and they had demonstrated their abilityF to pursue their individuai claims. Defendants also argued that joinder was possible because the identitie5 of the class members were easily ascertainable because they were ali inmates or employees of LCS Corrections Services, Inc. This court noted that while joinder of ali the individuals with potential claims was not impossible, it was not practicable, and their claims would be more expeditiously handled in the.c!ass action. Crooks at 109. The Fourth Circuit considered a similar situation in Lailhengue v. Mobil Oil Co., 94-2114, 94-2115, 94-2116 ( L. a. App. 4th Cor. 6/ 7{ 95), 657 So. 2d 542, 546. The plaintiffs offered into evidence the petitions of over 1200 individuals. who had filed suit, as well as evidence showing that approximately 1000 other indiyiduals had come forward seeking to assert claims. The defentlants argued thaC. aithough the proposed ciass members were numerous, joinder was not impracticable, as evidenced by the fact that thousands of individuals had been joined in severai suits and al Suits had been consolidated. However, citing Livingston Parish Police 7ury, the Fourth ircuit concluded that the trial court did not manifestly err in certifying the case as a Glass action. Although the matter had proceeded by ordinary joinder and consolidation for several years, the trial court had 17 found that a class so large that contin a s to increase or change made joinder impracticable. Lailhengue, 657 So. 2 1 at .546. Some of the principles articulated in Stewart and Livingston Parish Police Jury, and subsequently reaffirmed, are applic ble to the instant matter. Most significantly, the membership of the pfaintiffs has been continually changing, through death or otherwise, which has caused recurring interruptions of the action by virtue of the litigation concerning substitution of heirs. One reason class certification is sought is because it is purportedly difficult communicating with and managing the unwieldy number of plaintiffs in this case. Plaintiffs' other reasons for impracticability of joinder at this point in time are that a trial of cumulated actions would require many geographically diverse and elderly claimants to appear at trial to provide unnecessary and repetitive testimony, and a cumulated direct adion of this magnitude makes settlement effectively impossible. We have recognized that a class action is appropriate whenever interested parties appear to be so numerous that separate suits would unduly burden the courts, and a class action would clearly be more useful and judicially expedient than the other available procedures. Stewart, 96 So. 3d at 488. Still, this case presents a unique set of circumstances. It is highly unusual for a case to proceed for such a long time before class certification is requested. In addition, this case is unusual because the class definition does not expand the group of potential claimants beyond those already joined as plaintiffs. Further, practically speaking, plaintiffs' counsel has treated this case as a pseuda class action by managing the iitigation via PMAG. 9 Counsel recognized at the beginning of this lawsuit that communication and case management problems were inevitaJil"e with a. l rge. group of pla ntiffs. However, PMAG addressed. some of the issues that class action' atatus might have ameliorated. Plaintiffs' counsel maintains that PMAG was an effective tool for managing the litigation so that even though the case was set for trial on more than one occasion, counsel did not believe that it was necessary or preferable to seek class certification. However, questions 9 For example, some of the proposed class representatives served on PMAG's board of directors. 18 eventually arose about PMAG' s auth rity tc s i l Louisiana Professional Rule Qf Cond ek 1, 8( g9. thz ase, purportedly in light of PYaintiffs" counsel received an opinion from the Louisiana State Bar Association Ekh rs A vi orr' Service Committee, in December 2006, statdny khat the clients' a la claims thr ryer couid o ugh a cert3* i bkai fiv art ap praval f an a greg te settlement of cl ss. a k{ r. [ n a attempt t resolue the case without converting the matter to a ciass acti n; plainti Fs` counsel filed a motion to withdraw as counsel for the clients that ounsel could no longer communicate with. When the motion to withdraw was denied, plaint'iffs finally sought class eertification. Appellees contend that plaintiffs' argume ts for impracticability are undermined by the fact that they have proceeded for such a long time as a mass joinder. The parties have conducted discovery of individual plaintiffs including taking hundreds of depositions, which was the subject of a former appeal to this courk. This case has been set for trial more than once. However, the history of this litigation and the current state of the case demonstrates that the number of plaintiffs is so .numerous that joinder is impracticable, and we find that plaintiffs meet th numerosity r quiremenfi of La. Code Ciu. P. art. 591. The class action was devised to solve problems associated with adjudicating iaursuits such as this one involving an unwieldy umber of plaint ffs who should be joined and whose membership is constantly changing, where the courts w uld be unduly burdened by joinder, and where class action would clearly be re useful and judicially expedient than continuing as a cumulated mass joinder, Moreover, in a recent case, Doe v. Southern Gyms, LLC, the Louisiana Supreme Court identified factors that, although not as well- developed or relied upon, have developed in the jurisprudence for determ= ning rack cality of joinder of a large numb r of potential elass members. An analysis of thos factcrs aiso leads to the conclusion that joinder in this ease is impractieable. IPJe recognaze that Doe v Southern Gyms, LLC was decided after the trial court's denial of the mr tion for class certification in February 2011, but the parties have presented arguments regar ing these factors a nd we consider khem here. Those factors are: ( 1) he geogra hic dispersion of the classo { 2) the ease I9 with d: which class mernb rs may the individua! 6) financial S) jud ial e c8aim, ( resaurces of class merr determination vrrhether the joinder is impracticabfe. r fifiPd : onorry < b the a ure of the aeti n ( 4} the size oP voiding a multi licl4y caf lawsuits; and hese act rs rr ay alsc; inform a district court's rs, pro; osed ciass has sufficiee t numt r of rreE nbers so that Doe v. 5oruthern Gyms, LLC, 112 So.3d at 831- 32, citina Galjour v. Bank One Equity Investors- Bidco, Tnc., 2005- 1360 ( La. App. 4th Cir. 6/ 21/ 06), 935 So. 2d 716, 724. Geographic dispersion ofthe c/ass 1Nide geographic dispersian ¬ fi class nempers supports a finding of impracticabllity of joinder and, therefore, a conclusior that tne numerosity requirement is satisfied.° Galjour, 935 So. 2d at 725, citin Moore` Federai Practice, § 23. 22[ 1][ d]. s In Galjour, the fact that the class members were g ograpr icaliy eancentraked in Soe.athern Louisia a supported a finding that the n merosety r equirer ent uuas not met. The plaintiffs` ori,ginal Petitio+ througf t e F+t Amendment to khe Pe ition fists petitioners and their<addresses. According to these documents, which we may examine as evidence of geographic dispersion, and of numerosity in general, the plaintiffs are dispersed across Louisiana and other parts of the country. Unquestionably, those (psts are no longer accurate as some pfair tiffs t a re r e4ed. How ver those fists of p etittloners sufficiently demanstrate thatthe plaintiffs are geograpnicai y dispersed. Ease with which c/ass members ma be identi ed The class defnition sn the Ninth Amended Petitpon indudes all persons or entities who filed suit against PILICQ, PICQ or Mi vuest ancf vuhose claims were consolidated into the instant action and have not been resplved by a finai, unappealable judgment. Appeilees argue fhat because alE ciass members are atready plaintiffs in this litigation, identification is of no concerm. Fiowever, while the class definitior does not contempiate additional plaintiffs besides those named in the lawsuit, the actual rumber of claimants in this case is increasing due to the substitutions of heirs of the plaintiffs who have died since this litigation commenced. Difficeelty in identifying the claimants is one of the fackors which makes joinder mpractica6le and a ciass action appropriate. McCastle 20 v. Rollins 1984). will Environmental o isianaa tnc., 456 So.2d 612, 620 ( La. Appellees expeck each plaintifif t app r at trial. or else risk that his or her claim T`heref rE, tti r be dismissed. appear ac claim, ces of Se tr; l, a!* l c ue h. tfne litigatior; or th s ;: are ! ikEly fi tlaiijtef the tr a". R a y kae pfai tiffs d srroi s t f r failure to e a ¬ s d and the r hPirs ar? ware of the iw a:er 9f a; rhe c ss epresEntataves will ia represenc all of the claims irre pective of who kr erited a cieceased lain iff's claim. I addition, certifying the class wou ld preclude the interruptions . in tlhe litigation fo substitutions. Considering the ages and ankna;wn Iqeat ans of many_plaintifFs, and the history of substitutions, we find that th s fa fo ieor s n avor of imprectieabilify Qf join er. Nature of the action Appellees argue that the nature of this cas makes it unsuitable for class action status because allegations of fraud have been pled, requirir g an individUal examination of the facts and defenses. A fraud cfass a ion cannot be certified when:individual reliance will be an issue. Banks v. New York Life Ins, Co., 98- 551 ( La. 7/ 2/ 99), 737 So. 2d Y275, 1281, cert, 116$, 245 LEd.2d 1 78 ( 2 0). denied, 528 U. S. 115$, 12Q S. t. . In Banks, the essence. of plai tiffs` daims was fraud and neyBigent. misrepresentatior ommitted by an nsurance company an its agenis, By ccntrast, in this case there are no ciaims of fraud on the induce nent er ; radav duah reliance. Even Ff raised, it ss riot Ehe dominating issue. 7hus, we do not f d that the nat r Qf the ackiorz precfud s a fi dir G of impracticability f joinder.° Size of the individua/ c/aims The greater the claim, the greater the intecest of its owner ir pr secuting it in a separate action. McCastle, 456 So. d at 62Y. At the cfass certification hearing, six proposeal class representatives testified and described their Ipss. plaintiffs who Jimmie Nelfe ewis,. a prvposed class representative for thase rere annuiry and iife insuranc nwners of PILICG, estlfied tnat she invested and lost approximately $ 11FOQ0: R ber S arics IQSt about $ 220,000 in a PI TCQ i0 While we find "ehat the nature f tne acticrs dces not rreclude a irding of numernsity, we decline to consfder h w the nature of the action affec+- a decisior rsyarding t s of fi a. Code Civ. F. ar 59fl. 21 other class certification requirements annuity. had Robert Wagner estimated that ih rnves ed " shared with his mother and sister. Pa rACia Dale little over $ 200, 000." fiy-something tnousand total," eivltt testified that she lost " probably a Sylvia Lemaene t2stified 'that krPr Midwest annuity was w rth almost 16, 000. Narce9fe D. Lacombe fost a qroxir at fy 5 A00, In addition to the testimony of ks e propa s d c9ass representatives, at the class certification hearing, plaintiffs introduced into evidence PILICO and Midwest liquidation lists ofi claimants. There are thousands more claims listed on those liquidation lists than there are actual plaintiffs. However, a review of the lists shows that while some policyholders, including the class representatives, lost a substantial amount of money, many of the claims were for less than $ 10, 000. At the hearing, plaintifFs also attempted to introduce into evidence a report from. their expert, Harold A. Asher, CPA, LLC., that included a calculation of the amounts PILICO and. Midwest owed to the plaintiffs. The trial court excluded this report and thus did not consitler it in its numerosity analysis. A review of the Asher report, however, indicates that many of the plaintiffs had claims for less than $ 10, 000. While the proposed class representatives sustained relatively high losses, we do not find that the sizes of he individual cfaims overall are so great that every owner would have an interest in pursuing it; Judicia/ economy in avoiding a mu/tip/icity of/awsuits One fundamenfal objective of a class action is to achieve economy of time, effort, and expense. Singleton, 826 So. 2d at 69. ' vVhile there is no risk of a multiplicity of lawsuits in this situation; because all of the proposed class members are already plaintiffs in this litigation and the prescriptive period on other clairnants has run, a trial of this case will entail each plaintiff coming to trial and' t stifying. ; As this court noted in our November 3, 2006 decision, the plairitiffs are rrerely the owners of dnstruments purchased from PILICO, PICO, and Mid vest and, as such, their testimony is likely to be repetitive and wilf contribute little to provin 9, or dis P rovin 9 the materiai claims n ad defenses in this case. The time required for several hundred plaintiffs t testify at trial, especially when. their testimony wouid not materially' contribute to the c se, wouid unduly burden the trial courk and unnecessarily consume judiciai resources. 22 I Financia/ resources ofc/ass members The evidence in the record is inconclusive regarding whether the plaintiffs possess sufficient financial resourc s to pursue their own claims. Proposetl class representative Jimmie Nelle Lewis testified at the class certificatson hearing that when PNIAG was created, plaintiffs would apply t become a member and would agree to pay a portion of their losses to PMAG. That payment was given to the attorneys and put into a bank account where it was used to pay legal fees, but also expenses like stamps for mail- outs to PMAG members. There is no further specific evidenee regarding the financial status of cfass members. Nonetheless, a Jack of evidence on this factor is not dispositive of whether plaintiffs have met their burden to demonstrate numerosity. In conclusion, based upon our review of the evidence in the record and the law interpreting impracticability of joinder, we find that the plaintiffs have established that the proposed class is so numerous as to make it impracticable for all of them to be joined. Accordingly, we reverse the trial court's judgment that plaintiffs did not meet the numerosity requirement for class certification. With the eacception of the issue of excluded evidence, discussed below, we decline to consider the plaintiffs' remaining assignments of error. We do not undertake a de novo review of the trial court's ultimate decision not to certify the class, but instead remand this case for proceedings in conformity with our rulings herein. Whether the trial court roperlv excluded certain evidence Assianment of Error No. 2 In their second assignment. of error, plaintiffs argue that the triai. court applied incorrect evidentiary standards at the,class certification hearing, resulting in the improper exclusion of documents offered for the purpose .of demonstrating the existence of the requisite elements for class certification. In particular, plaintiffs contest the trial court's two exclusion of OIG Report', However, at expert reports a report by the Office of State Inspector General ( the and a deposition of the former Insp ctor General. 11 the conclusion of the February 10, 2011 hearing, the trial court stated: " I will II you also that what I did after I reviewed the depositions and my notes and the transcript in regard to the evidence that was taken the other day, I went ahead and looked at the proffered evidence that I had ruled inadmissible, and it does not make any difference to my view of it in maki.ng this ruling." 23. , The relevant law, La. C de Evid, art. lifdl(A), states, in pertinent part, that: Except as otherw:se provided by ?egislati n, the applicable ta ± he Arti le 1101( B) dings." proce f eterminati provid principles underlying tne Evideg cH f f: et in aiE contradictory judicial questio+ s; ir, pe lr r isions of this Code shall be es that ir cert+ t , c ae shal serv p; ceedings, the as guides to the admissibility of evidence, but the specific exclusionary rules and other provisions shall be applied only to the extent that theq tend to promote the purposes of the proceedings. Relevant to the instant case is Article 1101( B)( 8): " Hearings on motions and other summary proceedings involving questions of fact not dispositive of or central to. the disposition of the case on the merits, or to the dismissal of the case..,." Articl 1101( C) lists six proceedings in which the Code of Evidence does not apply. Class certification hearings are not listed among those proceedings. Plaintiffs argue that under Article 1101, the evidentiary standards f r class certification hearings are less Appellees contend that class certification stringent. hearings are contradictory judicial proc edings and thus, pursuant to Article 1101( A), the Code of Evidence applies, including the rules of hearsay. The purpose of the class certification h earing is not to determine whether the plaintiffs will be successful on the merits of their claims, but to determine whether the class action is procedurally preferable. Stewartp 96 So. 3d at 491, n. 2. As noted previously, going beyond the pleadings is necessary in a class certification hearing, because a court must understand the clainns, defienses, relevant facts, and applicabl substantive law in order to make a meaningful c e erm¢nat on of the certifcation issues. Dupree, 51 So. 3d at 680. In determining whether the elements of class certification have been established, the eourt may consider the plead ngs, affidavits, depositions, briefs, exhibiEs, and testimony presented at a certification hearing. Boyd, 89£t So.2d at 457. 24 Expert Reports ofHaro/d Asher and lames Se iacht Plaintiffs first sought to intr duce the 2 02 expert eport of Hal Asher. analyzed and caiculat the time d the a neUnts that of each plaintiffs at prepared tv ro documents detaifiri the amount of money that he P L L(, orr3pany' s ; fiq am thos or she i PiCO and Midwest owed to individual andjor bankr optcy date, and he sdiia ¬ ur,>. owed. Asher Th documents list e ch plaintiff and Piae+ tiffs sought co introduce these documents as evidence of numerosity, and not for tne truth of the vafues stated in the report. The trial court ruled that the_report was inadmissible because Asher was not present to testify at the class eertification hi aring and t9iere was no opporfiunity for crossexamination; and further, if the report was nox offered for the truth asserted therein, it was irrelevant. Plaintiffs then sought to introduce the Ma y 1,. 2006 expert report of James W. Schacht. Schacht, a regulatory expert, was retained_to opine on the plaintiffs' contentions regarding the mismanagement and ilfegal re ulation by OFI and DOI in carrying out their statutory responsibility to regulate insurance companies for the benefit and protection of consumers and the general pubiic. Schacfht`s report was offered as evidence af a common issue. Schacfit was nak ares nt at he certaficakion hearing either, and the trial court ruled that Schacht's r port was kherefore i admissib e hearsay: In Stewart, the plairstifFs ntrod ced a n expert report at the: class certifieation hearing but not the expert's Nve estfm r y, a a the xr¢al co art, as welA as this courts considered that report in the numerosity ar+ alysis. Further, the plaintiffs vere aliowed to introduce thousands of claimant informatior form detailing, among ather things, the individual claimants' locations at the t'sme Qf a chemicaY release and tt eir alleged injuries. Even though the affidavits were considered nearsay under the Code of Evidence, we interpreted La. Code Evid. Art. 1101 to allow such evidence. We held that the signed and notarized forms efficiently demonscrated tl e amages that each individuaf plaintiff was claiming, and importantly, have been recognized as an acceptable practice by ti is court. Stewart, supra; Crooks, 99 So, 2 at 109- 111; Boyd, 898 So. 2d at 457` and 463; 25 Singleton, 826 So. 2d at La, App. 1st Cir, 1989, In the instarak 62; Eilis writ ase, ttae v. Geo gia° Paci c Cor o, 5S! S. d 1310, 1313- 14 nie;, 55 Sp. 2d, 7 t ; La. . J90). ri c w dicJ r at a ma the Asher d Sehacht expert reports inta evi eroce b cause the re cc s vere h a s y and. the experts rere nut paesent at the certification h ring a d utje# t cross-ex a; nat vn. Z We re ogniza that the trlal caurt is grante broad discretion ir i s ev;derrci ry i u dnysb and its determie atiens uvil! ncai be disturbed on appeal absent a cVear abuse of that discretion. Rideau v. State Farm Mutual Automobile.Insurance Company, 2006-0894 ( La. App. ist Cir. 8/ 29/ 07), 970 So. 2d 564, 572, writ denied, 2007- 2228 La. / 11/ 08), 972 So. 2d 1168. However, applying the logic of Stewart to the instant case; .we find that the plaintiffs' rivo expert reports are admissible for the limited purpose, of determining whethe plainitiffs aneet the requir ments for class certificat on. WE also note t at tl oese. expert reports ar from 2002 and 2006, and the appellees have had considerable tir e to take the depositlons of t aese experts, as well as examine the reports. Appellee vere also allowed to introduce their owr expert at the hearing. Under these partic alar ; i cumstances, we fnd tha k the triai court erred in excluding the Asher and Schacht ea;p r re qr. Report ofthe Offce oflnspector Gen iaf antf Bi//Lynch's Deposition Piaintiffs also sought tc ir tr duc ntc evidenee a report, ated December 11, 1991, prepared by B II Lynch af #he Qf ice of the Tnspeetar General. The OIG Report co ntains preliminary findings regarding the sequence of events leading up to the collapse of PILICO, PICO, and Midwest and expresses oponions as to the fault and degree of culpability of the vario s entities invofved. ` Pfai iffs offered the OIG Re ort at the certification hearing to demonstrate': ommanality, to shvw that the State of ouisiana nas kreated the claimants as damaged by a corii!Xior ; r pactr and to show that ccm non issues predominate in the ease, Alohg with the OYG Feep? rY plaintiffs sou ht to introduce the deposltioro of Bill Lynchr the former. Inspe tor er raE a d uthor af#he QiG Repor, who lZ Appeiiees were allowed o introa1uce intc evidence the flve, tesiimony of J y Littie, a t ertified Public Acrnuntant and Certified Financial Examiner, offered as an xpert in the field of statutory accountir g principles. She testified that certain piaintoffs made contributiar s to iheir PILiCO or Midwest anr uities or life insurance policies between October 31, i989 and May 15, 1491. the tria ccaurt rwlecf her tesCimony admissible because she was present a t. the certification he ring and avaiiable for cross-examlrration. 26 is deceased. now impact, Plaintiffs of ered the aep s taor; to show commonaliry and common as typicality. well as Yn addition, pla rkifFs arg ed that the OIG Report and deposition werE proper to consider i the class c rtificatic n hearing because the triaf court had previously ruled that the OIG Re ort was admissiaie evidence in this case, 13 We expressly do not render an opinion today on whetherthe OIG Report or Lynch deposition is admissible evidence at a trial on the merits. However, considering the analysis of La. Code Evid. art. 1101, su ra, we aiso find that the OIG Report and Lynch deposition are admissible for the limited purpose of the class certification hearing. We have held that in determining whether the class action is procedurally preferable, it is necessary for the trial court to go beyond the pleadings in order to make a meaningful determination of the certification issues. This ca5e is unusual because e ensive discovery has already taken place and there are undoubtedly copious amounts of documents for the trial court to potentially consider. However, to the extent that the OIG Report and Lynch deposition al ow the trial court to make a meaningful determination as to whether there are questions of law or fact common to the ciass and that those questions predominate over questions affecting only individual members, then they are admissible for the limited purpose of the cfass certification hearing. Accordingly, the trial court erred in excluding them. CONCLUSION For the foregoing reasons, the judgment of the tria! court is reversed. This case is remanded for further proceedings in light of this opinio. Appeal costs in the amount of 22, 898.00 are asse5sed equally against the appellees. REVERSED; REMANDED, 13 DOI's Motion in Limine seeking to exclude the OIG Report as hearsay was denied after a hearing on February28, 2005. DOI sought review of that ecision in a writ to this court in 2005- CW-0626, and the writ was denied as we decliFled to exercise our supervisory jurisdict on. The Louisiana Supreme Court denied the writ as welL 27

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.