1988 WL 52098 Page 1
(Cite as: 1988 WL 52098 (E.D.Pa.))
I·I have suffered dental injuries as a result of nursing
Only the Westlaw citation is currently available. bottle syndrome." Complaint 1] 12. Defendants
Evenflo Products Company and Gerber Products
Company oppose plaintiffs' request for class
certification.
United States District Court, E.D. Pennsylvania.
Initial discovery was limited to the class
Timothy B. DAVENPORT, Jr., aminor by his certification issue. During the course of this
parent and natural guardian Trayce discovery defendants filed a motion to compel
FOWLKES, and Trayce Fowlkes on her own discovery. More specifically defendants sought
behalf, et al. "the identities of unnamed members of the
v. purported class who have retained plaintiffs'
GERBER PRODUCTS COMPANY, et al. counsel to represent them in comiection with this
class action in order to take their depositions."
CIV. A. No. 87-3198. Defendants' Motion to Compel Discovery at 1] 17.
Defendants sought this discovery "to determine the
May20, 1988. adequacy of representation and typicality of
unnamed class members." Id. at 1] 8. This
Albert J. Slap, Lorraine J. Zwolak, Slap, Williams motion was granted. Plaintiffs then tiled a motion
& Cuker, Philadelphia, Pa., Carl J. Valore, Stephen for a protective order to prohibit the deposition of
C. Rubino, Pro Hac Vice, Valore, Westmoreland, any unnamed class member or in the alternative to
Gould, Vesper & Schwartz, Northfield, N.J., for allow the deposition of only five unnamed class
plaintiffs. members. For the following reasons this motion
was denied.
Louis E. Bricklin, Philadelphia, Pa., for Gerber
Products Company. A class action may be maintained only if:
Francis J. Deasey, Deasey, Mahoney & Bender, (1) the class is so numerous that joinder of all
Ltd., Philadelphia, Pa., for Evenflow Products members is impracticable, (2) there are questions of
Company. 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
MEMORANDUM representative parties will fairly and adequately
protect the interests of the class. Fed.R.Civ.P. 23
JAMES McGIRR KELLY, District Judge.
(emphasis added).
*1 This memorandum setting forth this court's
reasons for the denial of plaintiffs motion for a To detemnne whether these requirements have
protective order is written pursuant to 3d Cir.R. been met defendants argued that they had the right
8(4). to depose approximately thirty-five (35) unnamed
plaintiffs represented by named plaintiffs' counsel.
Named plaintiffs, Timothy Davenport, Trayce More specifically, defendants argue that they need
Fowlkes, Anna Mae Stocklin, Warren Stocklin and to take these depositions in order to show "that the
Anna Stocklin brought this action "as a class action non common individual issues far outweigh the
, pursuant to F.R.C.P. 23, on behalf of themselves 'comm0n' issues presented by this action .... " and
and all injured children and parents of injured that named plaintiffs' claims are not typical of the
children or persons in loco parentis residing in the claims of the class. Memorandum of Law In
Commonwealth of Pennsylvania whose children Support of Defendant‘s Motion to Compel
Copr. © West 2004 No Claim to Orig. U.S. Govt. Works
"
Discovery at 5. determine the validity of a statewide class action.
Named plaintiffs, however, argue that the taking of
` these depositions would be an impermissable FNl. The thirty—tive (35) depositions
inquiry into the merits of the claims of these being sought are of persons who have
unnamed claimants. Furthermore, the taking of already retained plaintiffs' counsel for
"[e]xhaustive depodtions of thirty non-parties for representation in this action. If class
class ismes would result in a tenfold cer@•a§¤¤ is granted certain arnmmts of
increase in time, cost and paper without discoveryas to each of these persons will
benefit for the court" Plaintiffs be required In the event class
Response to Defendant's Motion to Compel certification is not granted, discovery in
Discovery at 10. the form of these depositions will be
necessary in the individual lawsuits.
Named plaintiffs have brought this class action on
behalf of (1) all parents throughout Pennsylvania 1988 WL 52098, 1988 WL 52098 (E.D.Pa.)
whose children have suffered tooth decay caused by
nursing bottle syndrome and (2) on behalf of all END OF DOCUMENT
children throughout Pennsylvania who have
suffered tooth decay caused by nursing bottle
syndrome. This class, could potentially include
thousands of claimants asserting millions of dollars
in damages. In fact plaintiffs averred that "[t]he
class is so numerous that joinder of all members is
impractical." Complaint 1I 13. In light of the
potential number of claimants and the potential
lieb·ilitypresentedbytheirclain1s,Idonottindit
unreaeomble or unduly burdensome for defendants
to depose a group of thirty-tive (35)
claimants for chu ceniheatien purposes.
*2 Furthermore, named plaintiffs are seeking
monetary damages for physical injuries caused by
the defendants. Plaintifik argue thatbased on the
depedtius of just imc ph this court can
conclude that: (1) there are questions of law or fact L
common to claimants allegations and (2) the claims
of these three plaintiffs are typical of the claims of ‘
the class. I do not End this position reasonable.
An action for physical injury presents a causation
element. To determine if the chu representatives
claims-- including the causation hsue-are typical of
thechmmerdefemesef-thcrestoftheclassmore
thnnthreeclaimantsneedtobedepeeed.There is
nowaytotelle¤mctlywhtnumber¤t`d•p••itions
is needed in order to make this determination.
However, in this case, thirty-five (35) ckpcsitions
appenstotbiscounclosermdrenmrkthanthree.
[FN!] t
For the above discussed reasons I fmd that the
taking of thirty-five (35) depositions to determine
issues of commonality, typicality and adequacy of
representation is not unduly burdensome to
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