Waitt v. Kent State Univ.

[Cite as Waitt v. Kent State Univ., 2022-Ohio-4781.]
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Caitlyn Waitt et al., :

Plaintiffs-Appellees, : No. 22AP-167
(Ct. of Cl. No. 2020-00392JD)
v. :
(REGULAR CALENDAR)
Kent State University, :

Defendant-Appellant. :

D E C I S I O N

Rendered on December 29, 2022

On brief: Lynch Carpenter, LLP, and Jae K. Kim; The Law
Offices of Simon & Simon, and James L. Simon; Bursor &
Fisher, P.A., and Josh Arisohn; Climaco Wilcox PECA &
Garofoli Co., LPA, and Scott D. Simpkins, pro hac vice for
appellees. Argued: Jae K. Kim.

On brief: Dave Yost, Attorney General, Randall Knutti,
Peter Demarco, Jeanna Jacobus, and Lindsey Grant, for
appellant. Argued: Peter Demarco.

APPEAL from the Court of Claims of Ohio

McGRATH, J.
{¶ 1} This is an appeal by defendant-appellant, Kent State University ("KSU"),
from a judgment of the Court of Claims of Ohio granting the motion for class certification
filed by plaintiffs-appellees Caitlyn Waitt (individually "appellee Waitt") and Jordan
Worrell (individually "appellee Worrell").
{¶ 2} Appellee Waitt is a Pennsylvania resident and student enrolled at KSU and
she "paid to attend the Spring 2020 Semester at [KSU] as an undergraduate student."
Appellee Waitt "paid out-of-state tuition for the Spring 2020 Semester." Appellee Worrell
is an Ohio resident, who paid tuition and fees to attend KSU for the 2020 spring semester
"through loans and payments on her behalf." (Second Am. Compl. at 3.)
No. 22AP-167 2

{¶ 3} This case involves a "class action lawsuit on behalf of all persons who paid
tuition and/or fees to attend [KSU] for an on-campus program for Spring 2020 Semester
and had their access to campus and on-campus experiences and services interrupted
and/or their course work moved to remote learning due to the novel Coronavirus Disease
2019" ("Covid-19"). Students at KSU "paid all or part of the tuition, or 'Instructional Fee,'
for each semester * * * and mandatory fees for each semester including, but not limited to,
a 'General Fee,' 'Legal Services Fee,' [']Career Services Fee,' 'Non-Ohio Resident Surcharge,'
and 'Arts Fee.' " (Second Am. Compl. at 1.)
{¶ 4} In response to Covid-19, KSU cancelled "all face-to-face classes as well as all
campus events on March 10, 2020, implementing remote instruction starting on March 16,
2020." Further, KSU "also stopped providing access to campus and many of the services
or facilities the tuition and/or Mandatory Fees were intended to cover." (Second Am.
Compl. at 2.)
{¶ 5} Appellees alleged that KSU's "failure to provide the services which tuition and
the Mandatory Fees were intended to cover since approximately March 10, 2020 is a breach
of the express and/or implied contract between [KSU] and [appellees] and the Class * * *
and is unjust." Appellees further contend they "do not challenge [KSU's] compliance with
the Covid-19 orders that were in place in the state of Ohio nor the quality of [KSU's] remote
learning program"; rather, appellees "challenge [KSU's] decision to retain monies paid by
[appellees] and the Class while refusing to offer any refunds, provide any discounts, or
apply any credit to the accounts of [appellees] and the Class when [KSU] failed to provide
the on-campus educational experiences and services that it promised." (Second Am.
Compl. at 2.)
{¶ 6} On June 17, 2020, appellee Waitt filed a complaint in the Court of Claims
against KSU. On August 14, 2020, appellee Waitt filed an amended complaint against KSU.
On May 24, 2021, appellee Waitt and appellee Worrell (collectively "appellees") filed a
second amended class action complaint against KSU. Appellees' complaint asserted causes
of action for breach of contract (express or implied), and unjust enrichment (as an
alternative to the breach of contract claim).
{¶ 7} On October 22, 2021, KSU filed a memorandum in opposition to appellees'
motion for class certification. On December 22, 2021, the Court of Claims held an oral,
non-evidentiary hearing on the motion.
No. 22AP-167 3

{¶ 8} In a decision filed February 11, 2022, the Court of Claims held that appellees'
proposed class, as stated at the class-certification hearing, satisfied the requirements for
class certification by a preponderance of the evidence. The proposed class was defined as:
"All undergraduate students who paid an instructional fee, general fee, or non-resident fee
for the Spring 2020 semester at [KSU] when classes were moved to remote learning.
Excluded from the class are those undergraduate students who did not pay any fees."
(Decision at 2.)
{¶ 9} On appeal, KSU sets forth the following three assignments of error for this
court's review:
A. The trial court erred by certifying three separate classes,
each of which contains numerous members who have
sustained no injury at all.

B. The trial court erred by refusing to reject the plaintiffs' expert
reports—which contain the plaintiffs' only "common
methodology" for determining which members of the classes
have suffered an "injury in fact" and which members of the
classes have not—because those reports are meaningless in the
absence of the "survey" they have proposed but never
conducted. The trial court also erred by refusing to consider
[KSU's] expert reports, which fully rebut the "conjoint analysis"
hypothesis the plaintiffs' experts attempt to make.

C. The trial court erred by holding that common issues
predominate over individual issues and that a class action is
superior to individual actions.

{¶ 10} KSU's assignments of error are interrelated and will be considered together.
Under these assignments of error, KSU generally challenges the decision of the Court of
Claims to grant appellees' motion for class certification, including arguments regarding the
methodology employed by appellees' experts, and the court's analysis of the issues of
commonality and superiority.
{¶ 11} In general, "[a] trial court has broad discretion in deciding whether a class
action may be maintained, and that conclusion will not be disturbed absent a showing of
an abuse of discretion." Egbert v. Shamrock Towing, Inc., 10th Dist. No. 20AP-266, 2022-
Ohio-474, ¶ 14, citing Marks v. C.P. Chem. Co., 31 Ohio St.3d 200 (1987), syllabus. An abuse
of discretion connotes "more than an error of law or judgment; it implies an attitude on the
part of the trial court that is unreasonable, arbitrary, or unconscionable." Marks at 201.
No. 22AP-167 4

However, the trial court's discretion in deciding whether to certify a class action "is not
without limits and must be exercised within the framework of Civ.R. 23." Egbert at ¶ 15,
citing Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 70 (1998). As a trial court "does not
have discretion to apply the law incorrectly[,] * * * courts apply a de novo standard when
reviewing issues of law." Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, ¶ 38.
See also Lenoir v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 19AP-94, 2020-Ohio-387,
¶ 10 (Citations omitted.) ("Even under an abuse of discretion standard, * * * 'no court has
the authority, within its discretion, to commit an error of law.' ").
{¶ 12} The Supreme Court of Ohio has observed that "class-action suits are the
exception to the usual rule that litigation is conducted by and on behalf of only the
individually named parties." Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 2015-
Ohio-3430, ¶ 25. In order "[t]o fall within that exception, the party bringing the class action
must affirmatively demonstrate compliance with the procedural rules governing class
actions." Id. Accordingly, "a party seeking certification pursuant to Civ.R. 23 bears the
burden of demonstrating by a preponderance of the evidence that the proposed class meets
each of the requirements set forth in the rule." Cullen v. State Farm Mut. Auto. Ins. Co.,
137 Ohio St.3d 373, 2013-Ohio-4733, ¶ 15. In this respect, "[a] preponderance of the
evidence is defined as that measure of proof that convinces the judge or jury that the
existence of the fact sought to be proved is more likely than its nonexistence." State ex rel.
Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 54. Correspondingly, "[t]he trial
court must carefully apply the requirements of Civ.R. 23 and conduct a rigorous analysis
into whether those requirements have been satisfied." Egbert at ¶ 15, citing Hamilton at
70. See also Madyda v. Ohio Dept. of Pub. Safety, 10th Dist. No. 20AP-217, 2021-Ohio-
956, ¶ 10; Felix at ¶ 26; Cullen at ¶ 17.
{¶ 13} Ohio courts have held that "[a] 'rigorous analysis' often requires the trial
court to 'look * * * into the enmeshed legal and factual issues that are part of the merits of
the plaintiff's underlying claims' * * * and 'consider what will have to be proved at trial and
whether those matters can be presented by common proof.' " Madyda at ¶ 10, quoting Felix
at ¶ 26, and Cullen at ¶ 17, citing 7AA Wright, Miller & Kane, Federal Practice and
Procedure, Section 1785 (3d Ed.2005). The trial court, however, "may consider the
underlying merits of plaintiff's claims only to the extent necessary to determine whether
the plaintiff has satisfied the requirements for class certification." Weiman v. Miami Univ.,
No. 22AP-167 5

10th Dist. No. 22AP-36, 2022-Ohio-4294, ¶ 9, citing Felix at ¶ 26; Stammco, L.L.C. v.
United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, ¶ 44. Further, "[i]n explaining
a trial court's duty to conduct a rigorous analysis prior to certifying a class for litigation, the
Supreme Court of Ohio has emphasized that the requirements are not ' "a mere pleading
standard." ' " Weiman at ¶ 9, quoting Felix at ¶ 26, quoting Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011).
{¶ 14} In Ohio, "[t]he procedural aspects of class-action litigation * * * are controlled
by Fed.R.Civ.P. 23 and Civ.R. 23, depending on whether the matter proceeds in a federal or
state court in Ohio." Felix at ¶ 24. Thus, "[t]he Supreme Court of Ohio has endorsed
consulting 'federal law interpreting the federal rule' as 'appropriate and persuasive
authority in interpreting' Civ.R. 23." Weiman at ¶ 10, quoting Felix at ¶ 24.
{¶ 15} Civ.R. 23(A) sets forth the following four prerequisites for certification of a
class:
One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:

(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, and class.

(4) the representative parties will fairly and adequately protect
the interests of the class.

{¶ 16} Additionally, "it must also be shown the action comes within the purview of
at least one of three types of class actions described in Civ.R. 23(B)." Schmidt v. Avco Corp.,
15 Ohio St.3d 310, 313 (1984). In the instant case, appellees sought certification of their
proposed class under Civ.R. 23(B)(3), which provides in part that a class action may be
maintained if "the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action
is superior to other available methods for fairly and efficiently adjudicating the
controversy." Civ.R. 23(B)(3) further provides:
No. 22AP-167 6

The matters pertinent to these findings include:

(a) the class members' interests in individually controlling the
prosecution or defense of separate actions;

(b) the extent and nature of any litigation concerning the
controversy already begun by or against class members;

(c) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and

(d) the likely difficulties in managing a class action.

{¶ 17} Although Civ.R. 23(B)(3) "sets forth a list of factors 'pertinent' to both the
predominance and superiority findings," the list "is not exhaustive, and other relevant
factors may also be considered." Madyda at ¶ 17, citing State ex rel. Davis v. Pub. Emps.
Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, ¶ 28, citing 7AA Wright, Miller &
Kane, Federal Practice and Procedure, Section 1777, 118 (3d Ed.2005).
{¶ 18} In Madyda, this court cited the seven prerequisites that must be met under
Ohio law before a class may be properly certified:
(1) an identifiable class must exist and the definition of the class
must be unambiguous; (2) the named plaintiff representatives
must be members of the class; (3) the class must be so
numerous that joinder of all the members is impracticable; (4)
there must be questions of law or fact common to the class; (5)
the claims or defenses of the representatives must be typical of
the claims or defenses of the class; (6) the representative
parties must fairly and adequately protect the interests of the
class; and (7) one of the three requirements for certification set
forth in Civ.R. 23(B) must be met.

Id. at ¶ 11, citing Hamilton at 71, citing Warner v. Waste Mgt., Inc., 36 Ohio St.3d 91, 96
(1988); Civ.R. 23.
{¶ 19} Further, "[t]he first two of the foregoing prerequisites 'are implicitly required
by Civ.R. 23, while [the] five others are specifically set forth therein.' " Id., quoting Warner
at 94.
{¶ 20} KSU has contested the first prerequisite (i.e., arguing the proposed class is
unidentifiable and overly broad), and further contends the Court of Claims did not
rigorously analyze whether the damages alleged by appellees are ascertainable on a class-
wide basis. Lastly, KSU argues appellees failed to meet their burden on the question of
No. 22AP-167 7

commonality (Civ.R. 23(A)(2)), as well as the predominance and superiority requirements
contained in Civ.R. 23(B)(3). For the following reasons, we find KSU has demonstrated the
Court of Claims abused its discretion in failing to conduct a rigorous analysis as required
for class certification.
{¶ 21} Under Ohio law, "[c]ertification pursuant to Civ.R. 23(B)(3) requires the trial
court to make two findings: first, 'that the questions of law or fact common to the members
of the class predominate over any questions affecting only individual members' and,
second, 'that a class action is superior to other available methods for the fair and efficient
adjudication of the controversy.' " Cullen at ¶ 29. Such inquiry "requires a court to balance
questions common among class members with any dissimilarities between them, and if the
court is satisfied that common questions predominate, it then should 'consider whether any
alternative methods exist for resolving the controversy and whether the class action method
is in fact superior.' " Id., quoting Ealy v. Pinkerton Govt. Servs., Inc., 514 Fed.Appx. 299
(4th Cir.2013).
{¶ 22} In order " '[f]or common questions of law or fact to predominate, it is not
sufficient that such questions merely exist; rather, they must present a significant aspect of
the case. Furthermore, they must be capable of resolution for all members in a single
adjudication.' " Id. at ¶ 30, quoting Marks at 204. Accordingly, " ' "[t]o meet the
predominance requirement, a plaintiff must establish that issues subject to generalized
proof and applicable to the class as a whole predominate over those issues that are subject
to only individualized proof." ' " Id., quoting Young v. Nationwide Mut. Ins. Co., 693 F.3d
532, 544 (6th Cir.2012), quoting Randleman v. Fidelity Natl. Title Ins. Co., 646 F.3d 347,
352-53 (6th Cir.2011), citing Beattie v. CenturyTel., Inc., 511 F.3d 554, 564 (6th Cir.2007).
Further, "in determining whether a class action is a superior method of adjudication, the
court must make a comparative evaluation of the other procedures available to determine
whether a class action is sufficiently effective to justify the expenditure of judicial time and
energy involved therein." Schmidt at 313, citing Wright & Miller, Federal Practice and
Procedure, Section 1779, 59 (1972).
{¶ 23} On appeal, KSU contends courts are required, at the certification stage, to
assess whether a plaintiff's "alleged 'common methodology' is a 'just and reasonable
inference' or simply 'speculative.' " (KSU Brief at 22.) KSU further argues trial courts have
discretion in choosing how to analyze whether a proposed common methodology is just,
No. 22AP-167 8

reasonable, and non-speculative, but that a court must conduct such analysis "before they
certify any class that hinges on it." (Emphasis sic.) (KSU Brief at 24.)
{¶ 24} In a recent decision by this court, involving the same plaintiffs' experts and
same methodology as presented in the instant case, we found that "the appellees' market-
based damage theory and their experts' proposed analysis raises significant questions with
respect to the commonality and predominance requirements for class certification."
Weiman at ¶ 18. We find the same "significant questions" at issue in this case.
{¶ 25} In Weiman, we noted that " ' "[p]erhaps the most basic requirement to
bringing a lawsuit is that the plaintiff suffer some injury." ' " Id., quoting Felix at ¶ 36,
quoting Schwartz & Silverman, Common Sense Construction of Consumer Protection Acts,
54 U.Kan.L.Rev. 1, 50 (2005). On this point, " '[a]lthough plaintiffs at the class-certification
stage need not demonstrate through common evidence the precise amount of damages
incurred by each class member, * * * they must adduce common evidence that shows all
class members suffered some injury.' " Id., quoting Felix at ¶ 33. Thus, " '[i]f the class
plaintiff fails to establish that all of the class members were damaged (notwithstanding
questions regarding the individual damage calculations for each class member), there is no
showing of preponderance under Civ.R. 23(B)(3).' " Id., quoting Felix at ¶ 35.
{¶ 26} In the present case, as in Weiman, KSU "contested whether appellees
presented sufficient proof of actual injury amenable to resolution on a class-wide basis,"
and thus "it was incumbent on the trial court to rigorously analyze at the class certification
stage the validity of appellees' theory of damage and their experts' proposed analysis, even
though that analysis would overlap in part with the merits of appellees' claims." Id. at ¶ 19.
Here, a review of the transcript of the non-evidentiary oral hearing reflects the Court of
Claims, similar to the circumstances in Weiman, "did not conduct the required rigorous
analysis of appellees' theory of damages to determine if all class members suffered some
injury." Id.
{¶ 27} During the non-evidentiary hearing in this case, counsel for appellees argued
there were "really only about two issues that are truly in dispute here with respect to class
certification, and that is whether Plaintiffs have shown a common injury and whether
Plaintiffs have shown a method for calculated class-wide damages." (Tr. at 6.) Counsel for
appellees asserted the common injury was that when appellees and the class paid for the
spring 2020 semester, "what they paid for in part was access to [KSU] and access to in-
No. 22AP-167 9

person and on-campus services and classes," and that the "inability to access those things
is the common injury here." (Tr. at 6-7.) According to counsel, "[w]hat we're saying is that
there's a market value difference between paying for access to campus and on-campus
services and classes and an online class program with no access to campus." (Tr. at 7.)
{¶ 28} The court, in addressing the issue of expert testimony regarding the issue of
damages, noted: "I don't know at this point in time, and it's not necessary for me to
understand that for purposes of class certification, the issue of damages, even though it can
be considered somewhat for purposes of class certification analysis, it's really left to a later
point in time, and I'm trying to get to that later point in time." (Tr. at 12.)
{¶ 29} In responding to appellees' arguments, counsel for KSU asserted that "if there
are injuries in fact, it is impossible to quantify * * * in one fell stroke, * * * in a common
methodology, that is nonspeculative, and that after a rigorous analysis proves to be just and
reasonable." (Tr. at 17.) Counsel for KSU argued during the hearing that appellees' "entire
methodology for proving that in this case rests on experts who have yet to testify and yet to
conduct the survey that forms the meat and the bones of their argument. So I'm not sure
how you analyze an expert who hasn't even done the job." (Tr. at 18.) Counsel also argued
the type of analysis proposed by appellees, "conjoint analysis," is "mainly used for
consumer goods." (Tr. at 20.) Further, counsel maintained, "the Court can't certify a class
until the methodology is before it, and the methodology isn't before it." (Tr. at 22.) Counsel
for KSU also suggested "[t]his Court has all the right in the world to delay certifying this
class until these surveys of whoever is being surveyed come in." (Tr. at 22-23.)
{¶ 30} In addressing this latter suggestion, the court stated:
You know, I could do that, and that's what everybody wants me
to do, is, well, let's just delay this process until 2022, 2023, and,
as you know, I've told everybody, I want to keep this thing
moving. I don't want to delay the process. We're going to go to
the Ohio Supreme Court on the issue of class certification.
We're going to go on to the Ohio Supreme Court on the issue of
whether there was an implied contract, and we can't get there
until we move these things along. Class certification doesn't
have to be delayed for discovery, it doesn't. It doesn't have to be
delayed for purposes of finding, you know, an expert to go out.

(Tr. at 23.)
No. 22AP-167 10

{¶ 31} Counsel for KSU also made clear that "we challenge commonality, we
challenge predominance and we challenge superiority." (Tr. at 25.) In addressing
appellees' argument about "the on-campus experience," counsel for KSU asserted that such
theory was based on "[m]arketing materials," and that appellees were in essence making "a
promissory estoppel argument" for which "very few reliance-based cases * * * have been
certified." (Tr. at 26.)
{¶ 32} Following the above arguments by counsel, the court then stated on the
record:
Now, you know, you talked a lot about damages and as the
gatekeeper on scientific evaluations, I don't know the answer to
whether the scientific evaluation is appropriate. That's why I've
said let me hear it and I'll exercise my gatekeeper
responsibility.

The Plaintiffs have a very high burden in this particular case,
and the high burden is to quantify the damages involved in this
case. I don't know if they can do that, but my feelings at this
point in time and have been throughout this entire process, I
want to give them that opportunity and I want to get on with it.
These students, probably by the time we try the merits of the
case aren't going to be on campus anymore. They're going to be
off somewhere.

***

But my concern is everybody keeps talking about the merits of
the case. This is as simple a class action as I can find.

(Tr. at 31-32.)

{¶ 33} The court further observed: "I don't know how many more hearings of these
-- I think I have 11 cases. I don't know how many more hearings we're going to have on this
issue, but, quite frankly, you can read my decision from the other cases and my decision in
this case isn't going to read a lot differently and the decision that's going to be released today
isn't going to read substantially different from the ones I issued two weeks ago or three
weeks ago." (Tr. at 33-34.)
{¶ 34} Following the above comments by the court, counsel for KSU again argued
"[i]t does require a rigorous analysis of the scientific methodology, which isn't even in
existence here, and that has to happen beforehand." (Tr. at 44.)
No. 22AP-167 11

{¶ 35} In another class certification case involving analogous claims against a state
university and involving the same market-based methodology, this court held that
statements similar to the ones made by the court in the instant case (and quoted above)
"indicate that the trial court believed all the university cases were the same and that it was
not going to rule any differently on class certification in this case than it would in the other
cases." Weiman at ¶ 22.
{¶ 36} Also similar to the circumstances in Weiman, the court in this case
"relegated" the issue of damages "to its future merits ruling and expressly refused to
consider it in determining whether to certify the class." Weiman at ¶ 24. As noted by KSU,
the Court of Claims informed the parties during the hearing that it would certify the case
before inquiring about the issue of "institutional fee" and "general fee." Specifically, after
stating it was "going to certify the class in this particular case," the court inquired "does
[KSU] have an instructional fee, a general fee?" (Tr. at 46-47.) Counsel for appellees
responded: "As far as we understand it, it's an instructional fee, a general fee and a
nonresident fee." (Tr. at 47.)
{¶ 37} We note that, in response to the proposed market-based survey methodology
evidence (i.e., conjoint analysis) submitted by appellees' experts (Steven P. Gaskin and
Colin B. Weir), KSU submitted an affidavit and report of Greg M. Allenby, Ph.D., the
Helen C. Kurt Chair in Marketing at The Ohio State University's Fisher College of Business,
who opined that the arguments advanced by Gaskin and Weir were unreliable. However,
as in Weiman, the Court of Claims "refused to evaluate appellees' damage theory" despite
KSU's argument that the methodology was flawed. Weiman at ¶ 24. See also Keba v.
Bowling Green State Univ., 10th Dist. No. 22AP-226, 2022-Ohio-4592, ¶ 23 (where
university "argued that Keba's proposed damage theory (conjoint analysis) was
fundamentally flawed because it ignored a number of important factors that could impact
the market value of a collegiate educational experience * * * it was incumbent on the trial
court to rigorously analyze at the class certification stage the validity of Keba's theory of
damage and his expert's proposed analysis, even though that analysis would overlap in part
with the merits of Keba's claims").
{¶ 38} In Smith v. Ohio State Univ., 10th Dist. No. 22AP-125, 2022-Ohio-4101, this
court also recently addressed a class action complaint against a university in which the
plaintiff submitted a market research survey methodology, i.e., " 'conjoint analysis,' "
No. 22AP-167 12

prepared by Gaskin and Weir. Id at ¶ 10. As in the instant case, "Gaskin had not conducted
the survey since he had not been asked to do so; he proposed the conjoint analysis survey
'will be' pretested at some point." Id. at ¶ 13. In response to the report of the plaintiff's
expert, the university submitted an expert report challenging the assumptions made by that
methodology. In finding that the trial court erred in granting class certification, we held in
part that the trial court, "in assuming an injury from the fact of closure and termination of
in-person classes, did not assess these complicated and difficult considerations, particularly
as they relate to whether [the plaintiff] presented any common evidence—or even a method
to possibly determine—that class members suffered an economic injury considering the
effect of the pandemic." (Emphasis sic.) Id. at ¶ 46. We further found, "[a]s demonstrated
by statements during the oral hearing, the trial court did not believe that issues of merit
should be considered at the class certification stage and sought to expediate defining a class
in order to examine those merit[] issues at the next stage of litigation." Id. This court
concluded, under such circumstances, "the trial court did not undertake a rigorous analysis
with respect to the number and nature of individualized inquiries that might be necessary
to establish liability with respect to both tuition and fees." Id.
{¶ 39} In the instant case, we find applicable language in Weiman that "even though
the trial court's decision expressly found that appellees satisfied all the Civ.R. 23
requirements, the transcript of the hearing demonstrates that the trial court did not
conduct a rigorous analysis of the commonality and predominance factors," and the court
"failed to rigorously analyze whether appellees' theory of damages established that all
members of the proposed class suffered some injury as required by Felix, and whether
common issues predominate over individual issues." Weiman at ¶ 24. See also Keba at
¶ 25.
{¶ 40} Accordingly, we find merit with KSU's second and third assignments of error
(designated in KSU's brief as assignments of error "B" and "C," respectively) challenging
the Court of Claims' rigorous analysis of the Civ.R. 23 requirements, and we sustain those
assignments of error. Further, because the error "permeated the trial court's reasoning
throughout its decision," and in light of our disposition of the second and third assignments
of error, we find the issues raised under the first assignment of error (designated in KSU's
brief as assignment of error "A") to be "moot at this juncture." Smith at ¶ 48.
No. 22AP-167 13

{¶ 41} Based upon the foregoing, KSU's assignments of error B and C are sustained,
assignment of error A is rendered moot, the judgment of the Court of Claims of Ohio is
reversed, and this matter is remanded to that court for further proceedings consistent with
this decision and in accordance with law.
Judgment reversed and cause remanded.

LUPER SCHUSTER, P.J., and KLATT, J., concur.

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