Opinion
No. X08 CV03 0193798
November 29, 2004
MEMORANDUM OF DECISION RE MOTION TO CERTIFY A CLASS (130.00)
I. Background
The plaintiff, Christopher Parker, has alleged a claim against Colgate Palmolive Co. (Colgate) that the latter's sale of its tooth whitening gel product, Simply White, violated the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a (CUTPA) because the outside of the Simply White package failed to indicate that the product did not whiten dental work such as caps, crowns, and veneers.
Parker alleges that in January 2003 he purchased, in Connecticut, a packaged bottle of Simply White for about $15.00. Later, at home, he alleges he opened the package, read the insert therein, and for the first time learned that Simply White would not whiten the fixed porcelain partial bridge that had replaced three upper front teeth in his mouth in the 1970s. He subsequently brought this lawsuit as a putative class action.
The Colgate tooth whitening gel, Simply White, is sold in a bottle with a brush applicator. At retail the bottle and application are packaged in a box. Between August 2002, and until some time after April 2003, all Simply White packages sold at retail stated on the outside that the product provides "the easy way to sparkling white teeth whitens in 14 days." Each package contained an insert within which stated that "Simply White only whitens natural teeth, not dental work such as crowns, caps, fillings and veneers." The insert also stated that Simply White would not harm such dental work. On the outside of the package it is stated "Money Back Guarantee" to the effect that if a customer is not satisfied with results one should send proof of purchase from the package and original cash register receipt to Colgate.
Simply White first went on the market in August 2002. All packages manufactured since April 1, 2003 have noted that Simply White whitens teeth but not dental restorations. The plaintiff has submitted an affidavit to the effect that as late as November 2003 a person could buy a pre-April 2003 package. Cirko Affidavit. Colgate concedes that it did not recall the earlier packages after the new ones went on sale. Hernandez Affidavit.
Parker alleges in his revised complaint that he brings this putative class action individually and on behalf of all persons who do not have all natural teeth, who purchased Simply White, and who suffered ascertainable loss. He alleges that Colgate's failure to disclose on the outside of its package that Simply White does not whiten artificial dental work is an unfair trade practice. The revised complaint alleges that the proposed class is in the thousands. It is alleged there are questions of law and fact common to all class members involving whether Colgate's failure to state that Simply White did not whiten nonnatural teeth on its package violated CUTPA. Plaintiff also alleges he sustained an ascertainable loss of approximately $15.00. This court previously ordered stricken two common-law causes of action alleging fraud and unjust enrichment and two statutory claims alleging violation of the Connecticut Product Liability Act and a violation of CUTPA. See Memorandum of Decision dated August 8, 2003. The remaining CUTPA count limits the potential class to those who had transactions in Connecticut, since CUTPA's definition of trade or commerce is limited to such transactions. General Statutes § 42-110a(4).
During class certification discovery certain additional facts were developed. Parker was aware at the time he purchased Simply White that his porcelain bridge did not contain real teeth and the porcelain teeth were different than real teeth. Parker Deposition, 52-54. He first sought to use Simply White about one week after purchase. At that time he reviewed the package insert and testified that he discovered the product did not work on nonnatural teeth Id., 56. Although he had the package, the plastic bottle of product and the insert in his possession he chose not to call Colgate even though he was aware both the insert and package contained a 800 number to call. He was aware he could call Colgate to request a refund, but did not do so because he had discarded the receipt. Id., 56-57. He testified that he believed he would not get a refund since he had no receipt, and believed that even though he had proof of purchase, the "functionaries" in the refund department are "not thinkers. If one of the ingredients is missing from a refund request, it doesn't get made, it doesn't get negotiated." Id., 62.
Colgate received numerous inquiries and complaints about Simply White. The bulk of the communications which have been presented to the court are inquires about whether the product can be used on dentures, caps and fillings and these appear to be roughly split between questions about whether such use is safe (yes) and questions about whether it is effective in whitening (no). Bronson Affidavit, Ex. Q; Colgate Memorandum, Ex. R. The plaintiff estimates that Colgate produced records documenting 54 such inquiries or complaints from Connecticut residents and made refunds of the purchase price to eight Connecticut customers who complained that Simply White did not work on artificial teeth. Bronson Aff. ¶ 19. Colgate made at least two other refunds to Connecticut residents who complained that the product did not work because they compared the whitening results, or lack thereof, using their artificial teeth as a bench-mark. Colgate Memorandum, Ex. H. While it is hard to gauge the implementation thereof, there is evidence that Colgate's policy on refunds was flexible. Proof of purchase could be established by information on the package or bottle (including product code, universal price code) or even by a customer stating the price paid. Guifarro Affidavit; Colgate Memorandum, Ex. E; Ex. M. In most cases, except where a person called repeatedly, or allegedly on behalf of many friends, a refund check was to be sent without waiting for proof of purchase. Id.
The record is not entirely clear and the parties appear to disagree somewhat, but it appears that Colgate produced records for about 80 communications from Connecticut customers about Simply White.
Parker now moves, pursuant to Practice Book §§ 9-7 and 9-8, for an order certifying a class of plaintiffs consisting of all persons:
(1) who do not have all natural teeth; (2) that purchased Colgate Palmolive Company's Simply White Clear Whitening Gel ("Simply White"); (3) either reside in or purchased Simply White in the State of Connecticut; and (4) incurred damages . . .
Parker also seeks to be appointed representative of the class.
II. Class Action Standards
The Practice Book sets forth the elements required for a court to certify a class. Practice Book § 9-7 states that one or more members of a class may sue or be sued as representatives of the class only if (1) the class is so numerous as to make joinder of all members impracticable; (2) there are questions or issues of fact or law common to the class; (3) the claims or defenses of the proposed class representative are typical of the claims or defenses of the class as a whole, and (4) the representative parties will fairly and adequately represent the class. Practice Book § 9-8 adds two additional requirements: (1) that the common questions predominate over questions that affect individual members, and (2) that a class action be superior to other means for fairly and efficiently adjudicating the controversy. These requirements are often referred to as "numerosity," "commonality" "typicality," "adequacy," "predominance" and "superiority."
CUTPA specifically allows for class actions "pursuant to rules established by judges of the superior court." General Statutes § 42-110g.
In determining a class certification motion, the trial court is bound to take the substantive allegations of the complaint as true. Collins v. Anthem Health Plans, 266 Conn. 12, 24 (2003) [quoting Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 743 (2003).] Doubts about the propriety of certifying a class should be resolved " in favor of certification." Rivera v. Veterans Memorial, supra, 262 Conn. 743. [Quoting Slaven v. BP America, Inc, 190 F.R.D. 649, 652 (C.D.Cal. 2000) emphasis added by Rivera court.] However, it is appropriate for a court in considering a class certification motion to probe behind the pleadings, not to determine the merits of the claims, but to ascertain whether the class action requirements are met. Id. [Quoting General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982).]
The Connecticut Superior Court has stated that class actions serve several and distinct purposes: (1) promoting judicial economy, (2) protecting defendants from inconsistent decisions or obligations, (3) protecting the interests of absentee parties, and (4) providing access to judicial relief for small claimants. Grimes v. Housing Authority, 242 Conn. 236, 244 (1997).
A trial court must undertake a "rigorous analysis" to determine whether a plaintiff has established that class certification is appropriate, and it has broad discretion in determining whether a law suit should proceed as a class action. Marr v. WMX Technologies, Inc., 244 Conn. 676, 680 (1998) [quoting from Arduini v. Automobile Insurance Co. of Hartford, 23 Conn.App. 585 (1990)]. The moving party has the "heavy burden" to establish the prerequisites for certification. Arduini v. Automobile Insurance Co. of Hartford, supra, 23 Conn.App. 589.
In interpreting the class action provisions of the Practice Book Connecticut courts regularly look to the somewhat similar provisions in Rule 23 of the Federal Rules of Civil Procedure and federal court interpretations thereof. See e.g. Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 738.
III. Discussion
The court now turns to an examination of whether the prerequisites of a class action under Practice Book §§ 9-7 and 9-8 have been met.
A. Numerosity
The plaintiff claims that approximately 106,104 units of Simply White were sold to consumers in Connecticut between September 2002 and February 2003. This figure is not contested and is derived from information provided by Colgate. Using national statistical data the plaintiff extrapolates various scenarios of class sizes ranging from several hundred to several thousand. For instance, the plaintiff applies a national statistic that about 75% of the American population is over 18 years old to Connecticut's 3.4 million population to reach a figure of 2.56 million Connecticut residents over 18. Using a United States Surgeon General's report that ten percent of all U.S. citizens over eighteen have no natural teeth, the plaintiff suggests that about 256,000 of those are in Connecticut, and that a great majority of these have dentures or other artificial teeth. Assuming that each of the 106,104 packages of Simply White sold in Connecticut were brought by different individuals the plaintiff again proposes that 75% (79,500) of these were buyers over 18 and 10% of these adults (7,950) have only dentures or artificial teeth and suggest a potential class of at least that size.
Using another set of assumptions characterized as "more conservative," i.e. each Connecticut consumer purchased two packages of Simply White and only one percent of the state population over eighteen has no natural teeth, Parker suggests a potential class of 530 persons.
Colgate disputes that the numerosity requirement has been met contending that Parker has offered no hard evidence that there are any members of the proposed class except the plaintiff himself and pointing out that speculation and assumptions may not be substituted for proof. Among other points, Colgate contends that purchasers of Simply White who, like Parker, did not have all natural teeth either knew that it did not whiten artificial teeth, or did not care because they had natural teeth to use it on or could have easily sought a refund. Therefore, Colgate argues the statistical arguments of Parker are erroneous or meaningless.
In Arduini v. Automobile Insurance Co. of Hartford, supra, the Appellate Court stated there is no `magic number' of class members that automatically meets the numerosity requirement because that requirement is predicated on the impracticability of joinder under the circumstances of the case. Id., 23 Conn.App. 590. The Appellate Court also pointed out that conclusory allegations that joinder is impracticable and speculation about the size of the class is not sufficient to meet the numerosity requirement. Id. While there are cases that use statistics to support a finding of numerosity, in general these cases also either had evidence of specific individuals who qualified for the class, or other strong and reliable indicia of numerosity. In Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (D.Colo. 1999) the plaintiffs, in addition to using census data, specifically identified 27 people who used wheelchairs or scooters and were harmed by the defendant's queue lines alleged to be not in compliance with the Americans With Disabilities Act guidelines. In two cases cited by plaintiff, Carr v. Wilson-Coker, 203 F.R.D. 66 (D.Conn. 2001), and Karen L. v. Physicians Health Services, 202 F.R.D. 94 (D.Conn. 2001) the actions involved Medicaid dental care and health care programs, and courts have generally not required detailed proof of numerosity in government benefit class actions when the challenged government action applies to a specific class of benefit recipients and the classes are inherently large. 5 Conte Newberg, Newberg on Class Actions, (4th ed.) 23.2
In this case, Parker has not identified any specific persons who would be eligible to join the class. When asked at his deposition whether he knew of anyone in Connecticut who did not call Colgate with a complaint simply because they had lost or discarded the receipt, Parker said "How could I possibly know that?" Parker Deposition, 62. That accurate answer may be the crux of the problem. It is impossible to tell how many potential class members there might be; more importantly, it is impossible to tell whether the number is large or small. Furthermore, there has been no evidence, or even indications, presented to the court of any other persons interested in pursuing a claim against Colgate, either individually or as a class member or representative. Thus, there is a paucity of evidence that joinder of other plaintiffs would be impracticable. See Maltagliati v. Wilson, Superior Court, judicial district of Hartford, CV97 0575612 (October 7, 1999, Mulcahy, J.) (discussing federal cases which consider evidence of interest of class members in participating and finding that lack of evidence of class size made assessment of feasibility of joinder impossible without resorting to speculation).
In his reply brief Parker points to four individuals he contends should have gotten a refund after calling Colgate about using Simply White on artificial teeth. Parker Reply Memorandum, 14-15. While it is not entirely clear that each of these individuals were even complaining, or sought a refund, assuming they qualify for class membership, they hardly constitute a number so great that joinder is impracticable.
The touchstone of the numerosity requirement is its link to the concept of impracticability of joinder. The court finds that the plaintiff has not carried the heavy burden of establishing that the potential class members are so numerous that joining them as parties is impracticable. The court recognizes that impracticable does not mean impossible. See Robideaux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Nevertheless, the plaintiff's almost total reliance on statistical extrapolations based on various assumed percentages of people with no natural teeth comes too close to speculation to be relied on in the face of a lack of any other evidence of the size of the proposed class.
Another consideration is the geographic location of the potential class members. In Maltagliati v. Wilson, supra, the court found a claim of impracticability to be undercut when all potential class members were in Connecticut with most in the greater Hartford area. Similarly, in Villano v. Constantino, Superior Court, judicial district of Tolland, complex litigation docket, X07 CV 01 0077486 (May 2, 2003) in denying certification on finding a lack of numerosity noted that all possible members were Connecticut residents with a vast majority living in the eastern half of the state. The geographic dispersion of individuals may be slightly greater in this case, but all potential claimants reside in Connecticut, a relatively small state, and this factor weighs against a finding of impractability.
The court finds that while it is a close question the burden of demonstrating numerosity has not been met.
It should also be noted that this court's determination is influenced by two other factors which bear on the issue: lack of identifiability of the class, and problems with the proposed class definition. These issues are discussed later in this memorandum in connection with the predominance analysis
B. Commonality; Typicality
In General Telephone Co. of the Southwest v. Falcon, supra, 457 U.S. 157 n. 13 the United States Supreme Court noted that the requirements of commonality and typicality "tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether [the class members' claims] are . . . interrelated . . ."
Commonality is present when the class claims share a common question of law or fact. Typicality is present when the claims of the class representative are typical of the class members' claims and arise from the same course of events and each class member makes similar legal arguments to establish the defendant's liability. Collins v. Anthem Health Plans, supra, 226 Conn. 34. In this case, the plaintiff posits that the most significant common question is whether Colgate violated CUTPA when it failed to disclose on the outside of the Simply White package that the product would only whiten natural teeth. A violation of CUTPA, of course, involves certain subsidiary questions. The plaintiff's remaining CUTPA account alleges that Colgate's actions not to divulge that Simply White will only whiten natural teeth on the outside of the package, i.e. prior to purchase, was unfair. In determining what qualifies as an unfair practice, Connecticut courts have regularly used a definition initially formulated by the United States Federal Trade Commission in 1964, to wit: (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfaimess; (2) whether it is immoral, unethical, oppressive or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). See Associated Investment Co. Limited Partnership v. Williams Associates IV, 230 Conn. 148, 155 and n. 11 (1994). Depending on the circumstances, it is not necessary that all three elements be present. Id., 156.
The court finds that there is at least one critical question common to all potential class members: whether the sale of Simply White in a package which does not explicitly state that the product will not whiten artificial teeth is an unfair practice.
The question of typicality raises somewhat different issues. Parker argues that since he and the potential class members bought the same package with the alleged same omitted information about the product's efficacy on artificial teeth, his claim is typical of potential class member. Colgate responds that Parker's circumstances are not typical of the class he seeks to represent in at least two ways. Parker's artificial teeth were in the top and front of his mouth, precisely the teeth the vast majority of persons who want to whiten their teeth would most want the product to be effective on. However, there are many people — and this is evident in the inquiry records of Colgate presented by the parties to the court — who have artificial teeth or fillings which they understand will not be whitened by Simply White but unlike Parker, still want to use it, or at least try it, on their natural teeth. Second, there are likely those in the same situation who like Parker did not understand Simply White was not effective on artificial teeth but, unlike Parker, called Colgate to make inquiry or complaint and determined to ask for, or not ask for, a refund.
The Connecticut Supreme Court has stated that:
The typicality "criterion does not require that the factual background of each named plaintiff's claim be identical to that of all class members; rather, it requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class."
Collins v. Anthem Health Plans, supra, 226 Conn. 34 [quoting Caridad v. Metro-North Commuter R., 193 F.3d 283, 293 (2d Cir. 1999), cert. denied, 529 U.S. 1107 (2000)]. In this case, while the fact situation giving rise to Parker's claim might differ from those of other potential class members, the issue presented by his claim and Colgate's packaging of Simply White remain the same. The court finds that they play the same role as claims by other potential class members, and the typicality requirement is met.
C. Adequacy of Representation
The requirement of Practice Book § 9-7(4) that Parker fairly and adequately represent the interests of the class involves a focus on both Parker, as the representative party, and his counsel. The tests for the adequacy of representation requirement are primarily (1) whether the representative party has any interests antagonistic to or in conflict with the interests of the class he seeks to represent and (2) the competency of counsel to vigorously prosecute the action. See Robichaud v. Hewlett-Packard Co., 48 Conn.Sup. 429 (2003), aff'd. 82 Conn.App. 848 (2004); Eisen v. Carlisle Jacquelin, 391 F.22 55d, 562 (2d Cir. 1968); 1 Conte Newberg, Newberg on Class Actions (4th ed. 2002) § 3:22.
Colgate argues that the different fact situations of the various potential class members precludes Parker's ability to effectively represent them. However, because Parker shares common issues with the class and no apparent conflict of interest appears, this argument is rejected. While there were certain off-putting remarks made by Parker at his deposition there is no reason to conclude he would not be an adequate representative.
Colgate has not contested the competence of Parker's counsel to pursue this action. This court's contact with, and a review of the background and experience of, both plaintiff's Connecticut counsel and New York counsel, admitted pro hoc vice confirms Colgate's reluctance. The adequacy of representation requirement is met.
D. Predominance
Practice Book § 9-8 requires the trial judge, in considering a class certification motion, to determine whether "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members." The predominance criterion is "far more demanding" than the requirement of commonality. Collins v. Anthem Health Plans, supra, 266 Conn. 48 [ quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 624 (1997)]. Moreover, a common course of conduct by a defendant is not enough to show predominance because a common course of conduct is not sufficient to establish liability to any particular plaintiff. Moore v. PaineWebber, Inc., 306 F.3d 1247, 1255 (2d Cir. 2003).
In Collins the Connecticut Supreme Court noted that the predominance requirement tests whether the proposed class is sufficiently cohesive to warrant adjudication by a representative party. 226 Conn. 12, 48. The Collins court referred to Rule 23(b)(3) of the Federal Rules of Civil Procedure as setting forth four factors to consider in assessing whether predominance exists and quoted those factors.
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Collins v. Anthem Health Plans, supra, 226 Conn. 48-49.
The Practice Book has no provision comparable to Rule 23(b)(3) of the Federal Rules. The Federal Rules make the four factors applicable to both the predominance and the superiority criteria. The Collins referred to the above four factors in the context of determining the superiority criterion as well. Id., 56-57.
Considering the above four factors the court finds that the first factor — the interest of class members in controlling their own case — weighs slightly in favor of class certification. The minimum amount of each individual claim would appear to dampen enthusiasm on the part of individual class members to expend much time, effort or money on controlling their own case. The weight given to this factor, in the context of considering predominance however, is minimal because the factor by its very terms appears to be more relevant to the superiority criterion.
The second factor weighs in favor of not certifying a class. As noted above, there has been no other litigation involving the subject matter of this suit. The third factor — the desirability or undesirability of concentrating the litigation of claims in this forum — does not appear to weigh any more on one side than the other. There are no other similar litigations to concentrate, and if there were, there is no geographical nexus to this case making one forum more desirable than other.
The final factor set forth in Rule 23(b)(3) requires the court to assess the future, i.e. what difficulties are likely to be encountered in the management of a class action. Several such difficulties, albeit not unique in class actions, appear likely. The first goes directly to the heart of the predominance criterion in that resolution of the common issues may not materially advance the disposition of many of the class members' claims. If the representative plaintiff Parker proves that the packaging of Simply White was unfair and led him to believe that it would whiten his permanent bridge, that does not prove whether other members of the putative class were so affected, and if other members were not led to believe the product would whiten artificial teeth, they may not be entitled to recover. On the other side of the coin, if Parker fails to prove that the Simply White package unfairly led him into thinking the product would whiten his bridge, that does not mean that others, perhaps less educated or less trained than he, might have been led to believe erroneously that Simply White would help their artificial teeth. Thus, one is hard pressed to see how an individualized trial, or at least a hearing would not be required on this critical issue for each class member. As pointed out in Moore v. PaineWebber, Inc., supra, the packaging of Simply White alone does not establish liability to any specific buyer.
Likewise, there are issues involving those who have one or more artificial teeth, but because of the location of the dental work or for other reasons, it might be proven (or they might concede) that they wanted to try it on their natural teeth so that they suffered no damage. In other words, to these persons it is not material whether Simply White whitens non-natural teeth. Finally, there are those in the proposed class who, unlike Parker, followed up their purchase of Simply White with inquiries or complaints to Colgate and determined either that their inquiries were answered or that they did not wish to seek a refund.
In Spann v. AOL Time Warner, 219 F.R.D. 307 (SD.N.Y. 2003) the court denied certification of a class for, among other reasons, a lack of predominance in a case where pension beneficiaries were suing their employer and their ERISA pension plans for improperly computing their benefits. Many of the putative class had signed releases which could provide a defense to their claims. The court found that the fact specific inquiry into each individual's release presented an insurmountable barrier to class-wide adjudication of the claims, and these individual inquiries would predominate over the issues common to the class. Id., 319, 323.
To prevail on the predominance requirement, a plaintiff must demonstrate that "the issues in the class action that are subject to generalized proof and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof." In Re VisaCheck/Mastermoney Antitrust Litigation, 280 F.3d 124, 136 (2d Cir. 2001) cert. denied, 536 U.S. 917 (2002). The plaintiff has not met the burden of demonstrating this.
The court notes that Parker's revised complaint prays for an injunction requiring Colgate to disclose on the Simply White packaging that it does not whiten dental work. As to this claim alone, there might be a stronger argument that common issues predominate. However, no injunction has been sought, and the claim seems to be moot. See note 1.
In addition, although not explicitly set forth as a class action requirement in the Practice Book, there is the critical element of properly defining a class. Class definition is critical because it identifies those who may be entitled to notice of the pendency of the class action as well as those who may be bound by a final judgment herein. While Parker has contended that the class may range from hundreds to tens of thousands there is no way to identify the membership. The only people readily identified are those who communicated with Colgate and provided their names and addresses, and these appear to be considerably less than one hundred individuals and almost certainly they do not represent a large proportion of the class as proposed by Parker.
The inability to define a class with some degree of accuracy or by some reasonable objective standard and without the necessity of individualized inquiries has been held repeatedly to be grounds to deny certification. In Crosby v. Social Security Administration, 796 F.2d 576 (1st Cir. 1986), the court held that plaintiff's proposed class definition as persons who had not had a decision or hearing on their disability claim "within a reasonable time" made it impossible to identify class members prior to individualized fact-finding or a hearing. Id., 580 see also Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993); Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994).
Finally, the court determines that the class proposed by the plaintiff is unworkable. The inclusion of all Simply White purchasers "who do not have all natural teeth" is far too broad as it includes persons who have a crown or crowns in the back of their mouth (e.g. resulting from a root canal procedure) but natural teeth in front and upon whom the lack of information about the product's effect on artificial teeth would have no real relevance. The definition also includes those who understood that Colgate's claim of "whitens teeth" meant the plural of "tooth" which, as noted in this court's earlier decision, is defined in most major dictionaries as a natural bonelike structure attached to the jaw consisting a core of soft pulp surrounded by a layer of hard dentine and coated with cementation and enamel. See Memorandum of Decision, August 8, 2003 n. 1. Neither of these groups of people have a claim against Colgate similar to Parker's.
The class definition proposed by Parker includes a requirement that a class member "incurred damages." While this requirement might eliminate the groups of people identified above, it would require a highly individualized inquiry of each potential claimant, a process going to the subjective reaction of each potential class member and directly to the merits of the case. Among other things, one would have to determine whether a buyer of Simply White with some dental work in his mouth reasonably understood the whitening teeth claim on the package to include artificial as well as natural teeth to determine whether that buyer had "incurred damages."
Parker cites two cases in which a class defined similarly was certified. Hastedt v. Remodeling Contractors Association, Superior Court, judicial district of Waterbury at Waterbury, complex litigation docket, X06 CV99 0156058 (April 13, 2000, McWeeny, J.) contains no discussion of class definition and is not helpful in the analysis. In Moye v. Credit Acceptance Corp., Superior Court, judicial district of Waterbury, complex litigation docket, X01 CV99 0157073, (May 15, 2001, Hodgson, J.) the court certified two subclasses both of which had very objective criteria which could be ascertained from the defendant's records, i.e. persons whose cars were repossessed and were notified that to redeem the car they would have to pay certain charges or whose cars were repossessed, disposed of and who were not sent an accounting of the proceeds.
Courts have been reluctant to certify classes where the determination of who is a member of the class requires a hearing or some investigation into the merits of the case. See e.g. Spann v. AOL Time Warner, supra; Forman v. Data Transfer, Inc., 164 F.R.D. 400 (E.D.Pa. 1995); Metcalf v. Edelman, 64 F.R.D. 407 (N.D.Ill. 1974). The proposed class definition involves both a subjective element (i.e. what did people think Simply White would whiten) and a merits-based criterion. As pointed out by a well respected commentary "[s]uch definitions frustrate efforts to identify class members, contravene the policy against considering the merits of a claim in deciding whether to certify a class, and create potential problems of manageability." Manual For Complex Litigation, 3d § 30.14, pp. 239-40 (2003).
After considering and weighing the four factors of Rule 23(b)(3) set forth in Collins v. Anthem Health Plans, and the other issues discussed above, the court concludes that the plaintiff has not established that the predominance requirement of Practice Book § 9-8 is satisfied. Implicit in the concept of predominance is the belief that adjudication of the common issues will help to achieve judicial economy. Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996) [citing Conte and Newberg, Newberg on Class Actions (3rd ed.)]. That will not occur in this case.
E. Superiority
Practice Book § 9-8 also requires the trial court to consider whether a proposed class action would be "superior to other methods available for the fair and efficient adjudication of the controversy." The Collins case identified the same four factors discussed above and drawn from Rule 23(b)(3) of the Federal Rules of Civil Procedure as being pertinent to the superiority analysis. 266 Conn. at 56-57. In this analysis the court gives substantially more weight to the first factor — the individual's interest in controlling the prosecution of his or her action — because of the likelihood of small individual claims being involved. As noted above, the Connecticut Supreme Court has emphasized that one of the distinct purposes of class actions is to provide access to judicial relief for individuals with small claims. Grimes v. Housing Authority, supra, 242 Conn. 244. Where claims are small, so may be the incentive to seek legal redress. A class action provides a superior means for claimants of small amounts to prosecute their cases.
The remaining three factors have been discussed in connection with the predominance criterion and, for the reasons stated, two of those factors counsel against class certification while one is neutral. Therefore, even while giving greater weight to the consideration of allowing small claimants access to the courts, the balance tips against finding a class action superior to other forms of adjudication.
IV. Conclusion
While this court is mindful of the several benefits that often can be achieved through class actions, it cannot find that the plaintiff has established the prerequisites for class certification. The motion to certify is denied for the reasons stated herein.
TAGGART D. ADAMS SUPERIOR COURT JUDGE