A recurrent question under Rule 23 is whether and when individual issues pertaining to damages can engulf otherwise common questions and make class litigation unwieldy. The dilemma is clear: On the one hand, doesn’t it make sense to try the common liability issue once rather than over and over again? On the other hand, trying a bunch of individual damages issues, that differ from plaintiff to plaintiff, doesn’t sound either like class litigation or a model of efficiency. The United States Supreme Court, in Comcast Corp. v. Behrend, has emphasized that lack of commonality in establishing damages can defeat class certification, and we have discussed here previously the North Carolina Supreme Court’s treatment of the issue in Beroth Oil Co. v. NC DOT.
Earlier this month in Sanders v. State Personnel Commission, a plain vanilla affirmance from the panel majority of a trial court’s ruling not to certify a class provoked a strong dissent from Judge Robert N. Hunter. Judge Hunter, citing Beroth, thought the majority had confused the predominance inquiry. Judge Hunter viewed the damages and liability issues separately and thought that the majority muffed the “predominance” inquiry because the “individual issues” related only to damages. He cited Newberg on Class Actions (without mentioning Comcast) for the proposition that “Rule 23(b)(3) predominance . . . is satisfied despite the need to make individualized damage determinations”).
This will likely go up to the North Carolina Supreme Court, so we’ll be watching for any clarification of Beroth.