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Theresa Kinney, Katherine Moir v. Siouxland Urology Associates P.C.

February 28, 2011

THERESA KINNEY, KATHERINE MOIR, GLORIA TODD, JAMES PETERS, WILLIAM P. COLLINS, RAY NELSON, AND THOMAS CALVILLO, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED INDIVIDUALS,
PLAINTIFFS,
v.
SIOUXLAND UROLOGY ASSOCIATES P.C., SIOUXLAND UROLOGY CENTER, L.L.C., JOHN A. WOLPERT, M.D., INDIVIDUALLY; DAVID D. HOWARD, M.D., INDIVIDUALLY; PATRICK M. WALSH, M.D., INDIVIDUALLY; KENNETH E. MCCALLA, M.D., INDIVIDUALLY; TIMOTHY G. KNEIB, M.D., INDIVIDUALLY; CRAIG A. BLOCK, M.D., INDIVIDUALLY, AND THOMAS W. HEPPERLEN, M.D., INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

MOTION FOR CLASS CERTIFICATION AND DENYING DEFENDANTS' MOTIONS TODISMISS AND TO STRIKE ORDER DENYING PLAINTIFFS'CLASS ALLEGATIONS AS MOOT

Defendants, Siouxland Urology Associates, Siouxland Urology Center, Dr. Wolpert, Dr. Howard, Dr. Walsh, Dr. McCalla, Dr. Kneib, Dr. Block, andDr. Hepperlen, move to dismiss the amended complaint under Rule 12(b)(6) and to dismiss the claims against Dr. Walsh under Rule 12(b)(1). In the alternative, defendants move to strike the class allegations from the amended complaint. Plaintiffs, Theresa Kinney, Katherine Moir, Gloria Todd, James Peters, William P. Collins, Ray Nelson, and Thomas Calvillo, on behalf of themselves and all other similarly situated individuals, oppose defendants' motions and move to certify the class.

BACKGROUND

The original complaint was filed on April 17, 2009. Docket 1. On June 19, 2009, defendants moved to dismiss the complaint under Rule 12(b)(6) and Rule 12(b)(1) and, in the alternative, to strike the class allegations. Docket 28; Docket 30. On July 31, 2009, plaintiffs moved for joinder of parties and filed an amended complaint. Docket 39; Docket 47. The amended complaint was filed "as a matter of course" pursuant to Rule 15(a)(1). Docket 47. The court then granted plaintiffs' motion for joinder of parties because defendants did not oppose the motion. Docket 60. As a result, Ray Nelson and Thomas Calvillo were added as class representatives, and Siouxland Urology Center and Dr. Hepperlen were added as defendants. Docket 60. The court then ordered a second amended complaint to be filed that identified the newly joined parties and any additional facts pertaining to those individuals. Docket 63. The second amended complaint was filed on April 8, 2010. Docket 64.

The second amended complaint alleges that from March 23, 2002, to January 23, 2009, defendants repeatedly used the same bags of irrigation fluid and plastic tubing on multiple patients that were designated for single-patient use only. It also alleges that other medical equipment was not properly disinfected. The second amended complaint specifically identifies seven plaintiffs who were exposed to the previously used medical equipment and improperly disinfected equipment while they were defendants' patients. It also alleges that 6,347 patients were exposed to previously used and improperly disinfected medical equipment.

As indicated above, there are three motions presently before the court. Defendants' motion to dismiss under Rule 12(b)(1)*fn1 and (6) and the motion to strike the class allegations would ordinarily be addressed first because doing so would potentially be more efficient. See Federal Judicial Center, Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A Pocket Guide for Judges 8 (2d ed. 2009) ("[T]he most efficient practice is to rule on motions to dismiss or for summary judgment before addressing class certification."). Many of the arguments surrounding the motion to dismiss and the motion to strike, however, appear to center on the issue of whether this case is appropriate for class certification.*fn2 Thus, the court's analysis will focus on plaintiffs' motion to certify the class while considering the relevant arguments associated with defendants' motions.

ANALYSIS "In order to obtain class certification, a plaintiff has the burden of showing that the class should be certified and that the requirements of Rule 23 are met." Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994) (citation omitted). Whether class certification is appropriate is subject to the court's sound discretion. In re St. Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005) (hereinafter St. Jude I) ("We review a district court's ruling granting or denying class certification for abuse of discretion." (quotations and citation omitted)).

I. Rule 23(a) Requirements

Rule 23(a) establishes four requirements for class certification:

(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 defense 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 interests of the class.

These requirements, which are generally referred to as the numerosity, commonality, typicality, and adequacy requirements, must all be satisfied. St. Jude I, 425 F.3d at 1119 ("To be certified as a class, plaintiffs must meet all of the requirements of Rule 23(a)[.]" (citations omitted)).

A. Numerosity

Plaintiffs allege in the second amended complaint that there are at least 6,347 potential claimants. Docket 64 at 10. Defendants do not dispute that this number satisfies the numerosity requirement. Defendants argue, however, that one of the identified possible subclasses that would represent those who have tested positive for contracting a disease would not satisfy the numerosity requirement because the subclass would only consist of 29 members. Because the issue before the court is whether the class as a whole should be ...


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