author: MINGE, Judge.

text:
    Brian ROBINS, Appellant, v. CONSECO FINANCE LOAN COMPANY, Respondent.
    No. C8-02-1017.
    Court of Appeals of Minnesota.
    Feb. 4, 2003.

      Thomas J. Lyons, Jr., Consumer Justice Center, P.A., Thomas J. Lyons, Thomas Lyons & Associates, Little Canada, MN, for appellant.
    Shari L. Jerde, Dorsey & Whitney, LLP, Minneapolis, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge, LANSING, Judge, and MINGE, Judge.
   OPINION

MINGE, Judge.

Brian Robins seeks review of summary judgment in favor of Conseco Finance Loan Company dismissing his action for invasion of privacy by publication of private facts. Because Conseco’s dissemination of information was limited to one person and Robins played a role in the dissemination, there was not an actionable publication of private facts. We affirm.

FACTS

In July 1999, appellant Brian Robins and his wife, Margaret Robins, applied to respondent Conseco Finance Loan Company to finance the purchase of a manufactured home from Robins’ co-worker, Tammy Williams. After approximately one week, Robins had not heard from Conseco about the status of his loan. Robins and Williams discussed Conseco’s unresponsiveness; Robins gave Williams permission to call Conseco to ask if any additional information was needed. Williams testified that she spoke with Nancy Jacobson, a loan processor for Conseco. Williams told Jacobson that she was the seller of the property that Robins wished to purchase. Jacobson informed Williams that Robins’ loan had been denied because of a judgment and “something else out against” Robins. Robins was present when Williams made the call. When Williams told him the results of the call, he told her more about his credit history. This discussion occurred within earshot of other employees.

Conseco had a policy that prohibited giving confidential information about loan applicants, including credit histories over the telephone, even to the loan applicant. Jacobson stated she was aware of that policy and that she did not recall ever receiving a phone call from Williams, did not remember Robins’ application, and did not believe that she would have given out confidential information to Williams or anyone else.

Robins stated that he was stunned that Conseco would release information regarding his credit history to Williams. Williams stated Robins appeared nonchalant, rather than shocked or mortified, about the disclosure. Williams also stated that at that time Robins gave her additional information that explained his poor credit history.

Williams admits that she told others about Conseco’s denial of Robins’ loan and Robins’ explanation. In addition to telling several other employees at work, Williams also told her husband, parents, and two sisters. Except for one of her sisters, everyone that she told lived or worked in the same community.

Robins contends that his relationships with Williams, with his supervisor, and with other employees became strained following the disclosure of the denial of his mortgage application. Robins asserted that he never again felt the same level of respect from his co-workers or those he personally supervised. In addition, Robins stated that he has run into members of Williams’ family in the community and has felt uncomfortable.

On December 1, 2000, Robins started this action against Conseco, alleging that Conseco violated his right of privacy by publication of private facts. Conseco moved to dismiss for failure to state a claim. Conseco alleged that publicity cannot be established when the communication is only to one person and the communication was not “highly offensive.” The district court denied the motion because

[t]he facts indicate, at least on a threshold level, that a sufficient basis exists upon which to base a claim for the tort alleged. The facts indicate that a representative of Conseco communicated [Robins’] financial information to a third person who perhaps should not have been privy to this information.

On June 5, 2001, Conseco petitioned this court for discretionary review. This court denied the petition, stating “appellate review may benefit from the development of a more complete record.” Conseco then petitioned the district court under Minn. R. Civ.App. P. 103.03(i) for certification of certain questions. Following the court’s denial of that petition, discovery continued. Conseco moved for summary judgment, which the district court granted. The district court determined that a single alleged communication was, as a matter of law, insufficient to establish the publicity element of the Robins’ claim. The court also determined that there was no indication that Robins suffered any damages from the alleged communication. This appeal followed.

ISSUE

Did the district court err in granting summary judgment on Robins’ claim of invasion of privacy where Robins’ claim was based on communication of credit information to a single person?

ANALYSIS

On an appeal from summary judgment, this court asks whether: (1) there are any genuine issues of material fact, and (2) the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). A genuine issue for trial must be established by substantial evidence. Id. at 69-70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)). A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom [summary] judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted).

Minnesota first recognized a tort action for invasion of privacy in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn.1998). In recognizing the right of privacy, the court stated

[t]he right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close.

Id. at 235. The court relied on the Restatement (Second) of Torts and found three causes of action comprising the tort invasion of privacy: intrusion upon seclusion, appropriation, and publication of private facts but declined to accept false light publicity as a fourth cause of action. Id. at 233, 235 (citing Restatement (Second) of Torts § 652D (1977)).

The right of privacy at issue in the instant case is publication of private facts. Again relying on the Restatement, the Lake court defined publication of private facts as

givfing] publicity to a matter concerning the private life of another * * * if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.

Lake, 582 N.W.2d at 233 (quoting Restatement (Second) of Torts § 652D (1977)). While recognizing the right of privacy in the publication of private facts, the Lake court did not define “publicity” or determine what matters would be highly offensive to a reasonable person or not of legitimate concern to the public.

Our initial analysis hinges on the meaning of the word “publicity.” WTiile we recognize that the Restatement has not been redrafted since 1977, our supreme court focused on an application of the Restatement in determining an invasion of privacy; and thus we also do so here. The Restatement defines “publicity” as follows:

“Publicity,” as it is used in this Section, differs from “publication,” * * *. “Publication,” * ⅜ * is a word of art, which includes any communication by the defendant to a third person. “Publicity,” on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. * * * Thus, it is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiffs private life to a single person or even to a small group of persons.

Restatement (Second) of Torts § 652D cmt. a (1977).

Illustrations of publicity are also included in the Restatement. The illustrations include:

1. A, a creditor, writes a letter to the employer of B, his debtor, informing him that B owes the debt and will not pay it. This is not an invasion of privacy under this Section.
2. A, a creditor, posts in the window of his shop, where it is read by those passing by on the street, a statement that B owes a debt to him and has not paid it. This is an invasion of B’s privacy.

Id.

Although neither of these examples is the same as the instant case, the first is close. The disclosure in the Restatement example is made to the employer. In the instant case, Conseco disclosed the information to a fellow employee of Robins who was planning to sell Robins a manufactured home. The disclosure was only made to a single person and this single person passed the information on to other people. It was not communicated “to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Id. Thus, under the Restatement definition of publicity, the disclosure of the Robins’ credit report to one person does not constitute publicity.

Because an analysis of the meaning of publicity is difficult to ascertain, we also look to sources other than the Restatement in determining whether disclosure to one person is sufficient to constitute publicity. The Oklahoma Supreme Court held “a statement to a single individual is not enough publicity to make one’s claim actionable * * * for harm from public disclosure of private facts.” Hadnot v. Shaw, 826 P.2d 978, 985-86 (Okla.1992).

Minnesota federal courts have also addressed the issue of publicity. In C.L.D. v. Wal-Mart Stores, Inc., an employee asked a store manager for time off for medical reasons, later disclosing that she was planning on obtaining an abortion. C.L.D. v. Wal-Mart Stores, Inc., 79 F.Supp.2d 1080, 1082 (D.Minn.1999). The manager shared this information with three other store managers. Id. The court held this was not sufficient publicity to warrant an actionable invasion of privacy. Id. at 1083-84. Other federal courts have also held disclosure to one person is not sufficient to constitute publicity. Wood v. Nat’l Computer Sys., Inc., 814 F.2d 544, 545 (8th Cir.1987) (disclosure of private information to one person was not sufficient for a claim of publication of private facts); Jones v. U.S. Child Support Recovery, 961 F.Supp. 1518, 1521 (D.Utah 1997) (disclosure of private facts to the plaintiffs employer, mother, and two siblings was insufficient publicity); Kuhn v. Account Control Tech., Inc., 865 F.Supp. 1443, 1448 (D.Nev.1994) (creditor’s phone calls to six co-workers of a debtor was not sufficient to constitute publicity).

In contrast, in McSurely v. McClellan, the court held disclosure to one person could be actionable when government officials disclosed information about the plaintiffs pre-marital affair to the plaintiffs spouse. McSurely v. McClellan, 753 F.2d 88, 112 (D.C.Cir.1985). The court held that because of the delicacy of the situation, disclosure to the husband was actionable. Id.

Here, the dissemination of information by Conseco was only to one fellow employee, not multiple employees. Unlike McSurely where the disclosure to one person was potentially destructive of a marriage, in this case Robins was hoping to make a major purchase from Williams and had referred Williams to Conseco. Conse-co’s communication to one person was responsive to that referral. It would be an expansion of the concept of publicity to find publicity has occurred when Williams repeats the information to yet other parties. While decisions from other states and federal courts are not precedential, other states’ decisions clarify the Restatement definition and examples and further support our determination that the communication to a single person as occurred in this case does not satisfy a publicity requirement.

Robins urges that this court’s recent decision on the right of privacy supports his claim for relief. See Bodah v. Lakeville Motor Express, 649 N.W.2d 859 (Minn.App.2002) (holding it was premature for district court to dismiss invasion of privacy complaint for failure to state a claim). In Bodah, Social Security numbers of 204 employees were disseminated to 16 managers of affiliated businesses in six states. Id. at 860. That is a substantially greater dissemination than what occurred in this case. Also, the Bodah case had been dismissed by the trial court pursuant to Rule 12.02(e) for failure to state a claim on which relief could be granted. Id. at 861. The claimants had no opportunity to engage in discovery. Id. Here Robins had a full opportunity for discovery before the ruling of the district court. Finally, Bodah presented the risk of identity theft where Social Security numbers, seemingly bland information, may be misused to serious detriment if they fall into the wrong hands. Id. at 866. Here the information creates awkwardness and possibly embarrassment. Both the nature of the information and the extent of the dissemination are important to the claim. Robins’ reliance on Bodah is inappropriate.

Other facts in this case are also pertinent to the merits of Robins’ claim. Robins played an active role in Williams’ acquiring and disseminating the information. Robins assisted Williams m contacting Conseco and was present when she made the call. At the conclusion of the call, Robins shared with Williams additional information about his credit history and did so in a location where other employees could potentially overhear their conversation. While Robins stated he felt awkward and embarrassed around fellow employees, he contributed to the dissemination of information concerning his credit history.

We acknowledge that Conseco had a policy prohibiting the dissemination of any credit information over the phone in connection with a loan application. On appeal from summary judgment, we assume Con-seco disregarded its own policy. Robins does not claim that policy was part of the contractual obligation to him, and its violation is not an independent basis for Robins’ claim for relief.

We hold that the disclosure of Robins’ credit information to Williams by Conseco was not sufficient publicity to establish an action for publication of private facts. Because we conclude the disclosure of the information did not rise to the level of publicity, we do not reach the issue of whether the credit information in this case is a private fact.

DECISION

The district court properly determined that there was no publicity and granted summary judgment to respondent Conse-co.

Affirmed.


source: Caselaw Access Project

author: WRIGHT, Judge.

license: Public Domain

text:
    In the Matter of the Welfare of D.L.R.D., a/k/a D.L.R.H., Child.
    No. C3-02-972.
    Court of Appeals of Minnesota.
    Feb. 4, 2003.

      Timothy Aldrich, Grand Rapids, MN, for appellant.
    John J. Muhar, Itasca County Attorney, Mary J. Evenhouse, Assistant County Attorney, Grand Rapids, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, MINGE, Judge, and WRIGHT, Judge.
   OPINION

WRIGHT, Judge.

Appellant challenges the termination of her parental rights, arguing that (1) she rebutted the statutory presumption that she is palpably unfit, (2) the county failed to develop a case plan and make reasonable attempts to reunite appellant with her child, and (3) the record does not show that it is in the child’s best interests to terminate appellant’s parental rights. We affirm.

FACTS

While this case concerns the termination of appellant D.D.’s parental rights to D.L.R.D., her fourth child, D.D.’s actions regarding the first three children born to her are relevant. In 1995, D.D.’s parental rights to her first two children were involuntarily terminated based on the determination that she was palpably unfit to parent these children. After having a third child, W.H., in 2000, D.D. applied for economic assistance from Itasca County. As a result, Itasca County Health and Human Services (ICHHS), aware of the prior terminations, twice contacted D.D. to offer her parenting assistance. D.D. refused this assistance. Instead, she took W.H. to New Jersey, where she placed him in the care of one of her sisters. Because W.H. was abused while in his aunt’s home, a second sister removed W.H. from the abusive home and, in 2001, successfully petitioned a New York court for legal custody of W.H. D.D. has neither visited W.H. nor provided him with any financial support since she left him in New Jersey in 2000.

When D.D. became pregnant with her fourth child, D.L.R.D., ICHHS again attempted to offer services to D.D. On August 10, 2001, an Itasca County social worker sent D.D. a letter requesting that she contact ICHHS, which she declined to do. The Occupational Development Center, an agency to which D.D. had been referred, offered her services to help her obtain a driver’s license, job-seeking skills, and housing assistance. D.D. failed to use any of these services.

D.L.R.D. was born on December 22, 2001. After D.L.R.D.’s birth, an Itasca County social worker stopped by D.D.’s home to speak with her about social services. Finding no one at home, the social worker left a note on D.D.’s door. D.D. later alleged falsely that the social worker unlawfully entered her home, stole baby formula, and turned off the heat. On January 18, 2002, based on the involuntary termination of D.D.’s parental rights to her first two children, ICHHS removed D.L.R.D. from D.D.’s home.

On February 28, 2002, ICHHS and the Itasca County Attorney petitioned the district court to terminate D.D.’s parental rights to D.L.R.D. Because of the prior involuntary termination, ICHHS moved the district court to be relieved of its duty to make reasonable efforts to reunify D.D. with D.L.R.D. The district court granted this motion, finding that D.D. was presumed to be palpably unfit as a parent because her parental rights to her first two children had been involuntarily terminated.

A hearing on the termination petition was held in April 2002. The evidence established that D.D. attended all but two supervised visits with D.L.R.D. and attended half of the parenting classes in which she had enrolled with the assistance of her attorney. D.D. had two psychological evaluations and was diagnosed with an unspecified personality disorder, presenting prominent antisocial and paranoid features and possible schizotypal features. D.D. was taking prescribed medication daily to address the personality disorder. On the last day of trial, despite denying the use of illegal drugs, D.D. tested positive for marijuana.

The district court terminated D.D.’s parental rights to D.L.R.D. on May 17, 2002, concluding that D.D. is palpably unfit to parent D.L.R.D. and that it is in D.L.R.D.’s best interests that D.D.’s parental rights be terminated. This appeal followed.

ISSUES

I. Did the district court err when it determined that appellant failed to rebut the statutory presumption that she is palpably unfit to be a party to the parent-child relationship?

II. Are reasonable efforts for rehabilitation and reunification required when the parent’s parental rights to another child have been involuntarily terminated?

III. Did the district court err in determining that termination of appellant’s parental rights is in the best interests of D.L.R.D.?

ANALYSIS

An appellate court reviews a termination of parental rights to determine “whether the district court’s findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous.” In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn.2001) (citation omitted). We examine the record “to determine whether the evidence is clear and convincing.” Id. (citing In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn.1980)). Parental rights may be terminated only for grave and weighty reasons. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn.1990). In a termination-of-parental-rights proceeding, the best interests of the child are paramount. Minn.Stat. § 260C.301, subd. 7 (Supp.2001). If a parent is found to be palpably unfit to be a party to the parent-child relationship, parental rights may be terminated. Id., subd. 1(b)(4) (Supp.2001).

I.

Because D.D.’s parental rights to her first two children have been terminated involuntarily, the legal analysis in this case is different from one involving no prior termination. Typically, the natural parent is presumed to be fit and suitable to be entrusted with the care of his or her child. In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn.1995). The party petitioning to terminate parental rights has the burden of rebutting this presumption. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn.1980); see also In re Klugman, 256 Minn. 113, 118, 97 N.W.2d 425, 428-29 (1959) (stating that “the presumption is that the parent is a fit and suitable person to be entrusted with the care of his child, and the burden is upon him who asserts the contrary to prove it by satisfactory evidence.”). Each child in need of protection or services (CHIPS) intervention requires a case plan that reflects the reasonable efforts of a social services agency to facilitate reunification of the parent and child. Minn.Stat. § 260.012 (Supp.2001) (outlining reasonable efforts for rehabilitation and reunification); Minn.Stat. § 260C.201, subd. 6 (Supp.2001) (requiring case plans with CHIPS dispositions). If implementation of the case plan is not successful, a party may petition for termination of parental rights. See Minn.Stat. § 260C.301 (Supp.2001) (outlining termination of parental rights). The party petitioning to terminate parental rights must prove one or more of the statutory grounds by clear and convincing evidence. In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn.App.1991), review denied (Minn. July 24, 1991); Minn.Stat. § 260C.317, subd. 1 (2000).

But upon a district court’s determination that a person’s parental rights to another child previously have been terminated involuntarily, reasonable efforts for rehabilitation and reunification are not required. Minn.Stat. § 260.012(a)(1)(ii). Further,

[i]t is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated * * *.

Minn.Stat. § 260C.301, subd. 1(b)(4) (emphasis added). Under these circumstances, the parent has the burden of rebutting the presumption of palpable unfitness. Thus, having had her parental rights to her first two children terminated, D.D. is statutorily presumed to be palpably unfit to parent D.L.R.D., and, therefore, bears the burden of rebutting that presumption. Minn.Stat. § 260C.301, subd. 1(b)(4).

D.D. argues that she is not palpably unfit because, aside from the prior terminations, no other independent factors justify the termination of her parental rights to D.L.R.D. Because of the presumption of D.D.’s unfitness, however, the district court need not establish independent reasons for termination. Rather, it is D.D.’s burden to establish the existence of conditions that show her fitness to parent D.L.R.D. The mere absence of other reasons to terminate parental rights is not sufficient to overcome the presumption of unfitness resulting from a prior involuntary termination of parental rights.

D.D. also argues that she rebutted the statutory presumption of unfitness when she showed “the ability to engage in services” offered by ICHHS. D.D. asserts that she (1) “indicated her willingness to attend therapy or do whatever child protection set up for her to do,” (2) attended all but two supervised visitation sessions, (3) attended parenting classes, (4) had a psychological examination, and (5) met with a physician who treated her depression with medication.

But the evidence demonstrates that she has not rebutted the presumption. Unre-butted evidence establishes that, although ICHHS offered services to D.D. while she was caring for her third child, after becoming pregnant with D.L.R.D., and again after giving birth, D.D. refused services each time. She also falsely alleged that a social worker unlawfully entered her home. These facts do not demonstrate an ability to engage in the services offered by ICHHS. D.D.’s sporadic attendance at parenting classes is insufficient to demonstrate that she has succeeded in improving her parenting skills. Moreover, D.D.’s claim that she no longer used street drugs was proven false when she tested positive for marijuana on the last day of trial. After reviewing the evidence presented to rebut the presumption of D.D.’s unfitness, we conclude that the district court’s findings are supported by substantial evidence and are not clearly erroneous.

D.D. impliedly argues that caselaw conflicts with the statutory presumption because courts should

rel[y] not primarily on past history, but to a great extent upon the projected permanency of the parent’s inability to care for his or her child.

A.D., 535 N.W.2d at 649 (citation and quotation omitted). D.D.’s reliance on A.D. is misplaced, because A.D. did not involve a parent whose parental rights to another child had been terminated. The “past history” in AD. was the parent’s sporadic visitation of the child, not a prior adjudication that the parent was unfit to be a party to the parent-child relationship. Id. While the presumption based on past unfitness 'is retrospective, it is also rebuttable with evidence establishing that the prior condition of unfitness no longer exists.

Wdien the presumption of unfitness applies, a parent must affirmatively and actively demonstrate her or his ability to successfully parent a child. We recognize this is a particularly onerous task when, because of the prior termination of parental rights, the statute has relieved the county of the obligation to develop a case plan and make reasonable efforts to reunite the parent and child.' To shoulder this burden, the parent, with the assistance of counsel, is inevitably required to marshal any available community resources to develop a plan and accomplish results that demonstrate the parent’s fitness. When it concluded that D.D. failed to rebut the presumption that she is palpably unfit to parent D.L.R.D., the district court did not err.

II.

D.D. next argues that her parental rights should not have been terminated because ICHHS did not develop a case plan and it failed to make reasonable efforts to reunite her and D.L.R.D. D.D.’s argument ignores the relevant provisions of the parental-termination statutes. As addressed above, the termination statutes clearly provide that when a parent has had parental rights to one or more children involuntarily terminated, the agency is not required to make reasonable efforts to develop a case plan and reunite the parent and child. Minn.Stat. § 260.012(a)(1)(ii). Based on the clear statutory mandate, we conclude that the district court correctly applied the statute when it granted ICHHS’s motion to be relieved of its duty to make reasonable efforts to reunite D.D. and D.L.R.D.

III.

D.D. finally argues that termination is not in the best interests of D.L.R.D. because D.D.’s passivity in interacting with ICHHS is not adequate to support such a finding. The district court made extensive findings supported by substantial evidence regarding D.D.’s conduct and concluded that termination was in the best interests of D.L.R.D. D.D.’s continuing problems with improving her parenting skills, her mental health and drug abuse, and her other substantial personal issues show that it is not in D:L.R.D.’s best interests to remain with D.D. The district court’s detailed and thorough findings, which are supported by substantial evidence, are not clearly erroneous. See P.R.L., 622 N.W.2d at 543. We, therefore, conclude that the district court did not err in finding termination of D.D.’s parental rights to be in the best interests of D.L.R.D.

DECISION

Because we conclude that D.D. failed to rebut the presumption of unfitness, because the district court’s findings are supported by substantial evidence, and because the record establishes that termination of D.D.’s parental rights is in D.L.R.D.’s best interests, we affirm.

Affirmed.


author: KAPSNER, Justice.

text:
    2003 ND 12
    Henry H. HOWE and Michael Simonson, individually and on behalf of all others similarly situated, Plaintiffs and Appellees, v. MICROSOFT CORPORATION, Defendant and Appellant, and Does 1 through 100, inclusive, Defendants.
    No. 20020075.
    Supreme Court of North Dakota.
    Jan. 28, 2003.

      Vincent J. Esades (argued), Daniel E. Gustafson (on brief), and Jason Kilene (on brief), Heins Mills & Olson, PLC, Minneapolis, MN, and Robert J. Gralewski, Jr. (appeared), Dennis Stewart (on brief), and Leonard B. Simon (on brief), Milberg Weiss Bershad Hynes & Lerach, LLP, San Diego, for plaintiffs and appellees.
    Patrick J. Ward (appeared), Zuger Kir-mis & Smith, Bismarck, David B. Tulchin (argued) and Joseph E. Neuhaus (on brief), Sullivan & Cromwell, LLP, New York, NY, Thomas W. Burt (on brief), Richard Wallis (on brief), Steven J. Aesch-bacher (on brief), Microsoft Corporation, Redmond, WA, Charles B. Casper (on brief), Montgomery, McCracken, Walker & Rhoads, LLP, Philadelphia, PA, and Steve W. Berman (on brief), Hagens Berman, Seattle, WA, for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] Microsoft Corporation has appealed from an order granting class certification in an action against Microsoft for violations of the North Dakota Antitrust Act and the Unfair Trade Practices Law. We affirm, concluding the district court did not abuse its discretion in certifying the class action.

I

[¶ 2] Microsoft manufactures, markets, and licenses computer software, including operating systems. Most of Microsoft’s operating system software is distributed to personal computer (“PC”) manufacturers, known in the industry as original equipment manufacturers (“OEMs”). OEMs incorporate the operating system software into PCs which pass through various chains of distribution and are eventually sold to end users. Some Microsoft operating system software is also sold in “shrink wrap” form, without being pre-loaded into a PC. Microsoft does not charge uniform prices for its operating system software; rather, the price varies widely among the first purchasers in the distribution chain.

[¶ 3] Henry Howe and Michael Simon-son (collectively “Howe”) are North Dakota residents who were indirect purchasers of Microsoft operating system software. They brought this action in March 2000, on behalf of themselves and others similarly situated, alleging Microsoft has established a monopoly in the marketplace for operating system software through anti-competitive acts and has maintained this monopoly for more than a decade. They further allege Microsoft has used its monopoly power to stifle innovation, reduce and eliminate competition, and overcharge consumers, in violation of the North Dakota Antitrust Act and the Unfair Trade Practices Law.

[¶ 4] Howe moved for class certification under N.D.R.Civ.P. 23. After considering the pleadings, the record, and the arguments and submissions of the parties, the trial court issued a written order certifying the following class:

All persons who acquired for their own use, and not for further selling, leasing or licensing, a license in North Dakota from Microsoft, an agent of Microsoft or an entity under Microsoft’s control, for an Intel-compatible PC version of MS-DOS, Windows 95, upgrades to higher MS-DOS versions, upgrades to or of Windows 95, Windows 98, upgrades to or of Windows 98, or other software products in which MS-DOS or Windows have been incorporated in full or part (“Microsoft operating systems software”) at any time during the class period.

The class period was established as May 18,1994 and thereafter.

[¶ 5] Microsoft appealed from the written order granting class certification.

II

[¶ 6] An order certifying a class action under N.D.R.Civ.P. 23 is appealable. Rose v. United Equitable Ins. Co., 2002 ND 148, ¶ 5, 651 N.W.2d 683; Ritter, Laber & Assocs., Inc. v. Koch Oil, Inc., 2000 ND 15, ¶ 3, 605 N.W.2d 153 (“Ritter I”). We recently summarized our standard of review of such orders:

The trial court has broad discretion in determining whether to certify a class action under N.D.R.Civ.P. 23. The trial court’s decision to certify a class action will not be overturned on appeal unless the court has abused its discretion. A trial court abuses its discretion only when it acts in an unreasonable, arbitrary, or unconscionable manner, when its decision is not the product of a rational mental process leading to a reasoned decision, or when it misinterprets or misapplies the law.

Rose, at ¶ 5 (citations omitted).

[¶ 7] We have consistently construed N.D.R.Civ.P. 23 to provide an open and receptive attitude toward class actions. Rose, 2002 ND 148, ¶ 6, 651 N.W.2d 683; Ritter, Laber & Assocs., Inc. v. Koch Oil, Inc., 2001 ND 56, ¶ 5, 623 N.W.2d 424 (“Ritter II”); Ritter I, 2000 ND 15, ¶ 3, 605 N.W.2d 153; Werlinger v. Champion Healthcare Corp., 1999 ND 173, ¶ 6, 598 N.W.2d 820. In reviewing an order granting certification, we are guided by the broad and liberal public policy in favor of class actions in this state:

Decisions as to whether class action status should be allowed seem to rest, more than many other judicial determinations, on judicial philosophy, rather than on precedent or statutory language. ...
We will interpret Rule 23 so as to provide an open and receptive attitude toward class actions.
We believe that Rule 23 is a remedial rule which “continues to have as its objectives the efficient resolution of the claims or liabilities of many individuals in a single action, the elimination of repetitious litigation and possibly inconsistent adjudications involving common questions, related events, or requests for similar relief, and the establishment of an effective procedure for those whose economic position is such that it is unrealistic to expect them to seek to vindicate their rights in separate lawsuits.” 7A Wright & Miller, Federal Practice and Procedure: Civil § 1754.

Peterson v. Dougherty Dawkins, Inc., 1998 ND 159, ¶ 10, 583 N.W.2d 626 (quoting Rogelstad v. Farmers Union Grain Terminal Ass’n, Inc., 226 N.W.2d 370, 376 (N.D.1975)).

[¶ 8] Under N.D.R.Civ.P. 23, the trial court may certify a class action if the following four requirements are satisfied:

1. The class is so numerous or so constituted that joinder of all members, whether or not otherwise required or permitted, is impracticable;
2. There is a question of law or fact common to the class;
3. A class action should be permitted for the fair and efficient adjudication of the controversy; and
4. The representative parties fairly and adequately will protect the interests of the class.

Rose, 2002 ND 148, ¶ 7, 651 N.W.2d 683; Klagues v. Maintenance Eng’g, 2002 ND 59, ¶ 7, 643 N.W.2d 45. Microsoft has not challenged the trial court’s determination that factors (1), (2), and (4) are satisfied in this case. The sole dispute on appeal focuses on whether a class action will provide a fair and efficient adjudication of the controversy in this case.

Ill

[¶ 9] Rule 23(c)(1), N.D.R.Civ. P., lists thirteen factors to guide the trial court’s determination whether a class action will provide a fair and efficient adjudication of the controversy. Rose, 2002 ND 148, ¶ 9, 651 N.W.2d 683; Klagues, 2002 ND 59, ¶ 8, 643 N.W.2d 45; Ritter I, 2000 ND 15, ¶ 10, 605 N.W.2d 153. The trial court must weigh the competing factors, and no one factor predominates over the others. Rose, at ¶ 9; Klagues, at ¶ 8; Ritter I, at ¶ 10. The court is not required to specifically address each of the thirteen factors. Rose, at ¶ 9; Werlinger, 1999 ND 173, ¶ 56, 598 N.W.2d 820; Peterson, 1998 ND 159, ¶ 14, 583 N.W.2d 626. We explained in Peterson, at ¶ 15:

In most cases some of the thirteen factors will weigh against certification and some will weigh in favor. It is for the trial court, employing its broad discretion, to weigh the competing factors and determine whether a class action will provide a fair and efficient adjudication of the controversy. Thus, even if Dougherty is correct in its assertion four of the factors weigh against certification, that does not preclude the court from certifying the class action if, in its opinion, those factors are outweighed by other factors supporting certification.

A

[¶ 10] Microsoft’s argument focuses on two of the thirteen factors: whether common questions of law and fact predominate over individual questions and whether management of the class action poses unusual difficulties. N.D.R.Civ.P. 23(c)(1)(E) and (K). Microsoft argues the trial court abused its discretion in concluding that common questions of law and fact predominate over individual issues and that there are no unusually difficult management problems.

[¶ 11] Microsoft contends that, in order to demonstrate liability under the Antitrust Act and the Unfair Trade Practices Act, Howe must prove: (1) that Microsoft violated the statute; (2) that the violation “impacted” each member of the class, causing injury to business or property; and (3) damages for each class member. Microsoft alleges that, unless Howe can establish the “impact” and “damage” elements by proof common to the entire class, a class action is barred. At oral argument, Microsoft’s counsel argued that certification is prohibited unless Howe can show by common proof that any overcharge Microsoft made to direct purchasers “was passed on in a uniform method, and to the same exact extent, to members of the class.”

[¶ 12] Neither Rule 23 nor our caselaw requires such a showing as a prerequisite to class certification. We have never suggested a class plaintiff must show there will be common proof on each element of the claim. Rather, we have repeatedly noted that the existence of individual issues is not necessarily fatal to class certification.

[¶ 13] We rejected markedly similar arguments in Rose, 2002 ND 148, 651 N.W.2d 683. In Rose, a class action against insurance companies for alleged fraud in the sale of nursing home policies, the insurers claimed certification was inappropriate because resolution of the common questions would leave unresolved significant individual questions of proximate cause and damages. We concluded the presence of such individual questions did not preclude class certification:

The trial court may conclude that common questions predominate even if there are significant individual questions to be resolved:
There is no precise test governing the determination of whether common questions predominate over individual claims. Rather, a pragmatic assessment of the entire action and all of the issues is involved in making the determination. For common questions to predominate, it is not necessary the individual claims be carbon copies of each other. “Predominate” should not be automatically associated with “determinative” or “significant,” and consequently when one or more central issues to the action are common and can be said to predominate, the class action will be proper. Class certification is not to be refused merely because individual issues will remain even after disposition of common issues. The common issues need not dispose of the case, and the presence of individual issues is of no obstacle to proceeding as a class action.
Werlinger, 1999 ND 173, ¶ 33, 598 N.W.2d 820 (citations omitted); see also Klagues, 2002 ND 59, ¶ 19, 643 N.W.2d 45; Ritter I, 2000 ND 15, ¶ 22, 605 N.W.2d 153; Peterson, 1998 ND 159, ¶¶ 21-22, 583 N.W.2d 626.
The insurers argue there will be numerous individual issues remaining after the common issues have been determined. Our prior cases, however, make it clear class certification need not be refused on that basis alone. Class certification is not automatically precluded by the existence of individual issues which will remain after the common questions of law and fact have been resolved.

Rose, at ¶¶ 14-15 (citations omitted).

[¶ 14] In determining class certification, the trial court must weigh the thirteen factors, and no one factor predominates over the others. Rose, 2002 ND 148, ¶ 9, 651 N.W.2d 683; Klagues, 2002 ND 59, ¶ 8, 643 N.W.2d 45. Even if Microsoft is correct that the trial court abused its discretion in determining common issues predominate over individual ones and there are no unusual management difficulties under N.D.R.Civ.P. 23(c)(1)(E) and (K), the remedy is not denial of certification as a matter of law. If the trial court has relied on an incorrect analysis of those two factors, the remedy would be a remand to the trial court for proper reconsideration of certification under all thirteen factors. See Klagues, at ¶ 22; Werlinger, 1999 ND 173, ¶ 56, 598 N.W.2d 820. We analyze Microsoft’s arguments within that context.

B

[¶ 15] Microsoft alleges Howe failed to demonstrate the class can establish the “impact” and “damages” elements of its claims by proof common to all members of the class. Microsoft argues that, without such common proof, individual questions predominate over common questions. The trial court, relying on affidavits of Howe’s expert witness, found Howe had set forth a methodology for establishing damages by common proof and concluded that common questions predominated over individual issues.

[¶ 16] The arguments on appeal center on the opinions of Howe’s expert, Dr. Keith B. Leffler, a professor of economics at the University of Washington. In affidavits submitted to the trial court, Professor Leffler set out economic theories and methods he believed would establish the “pass-through” of Microsoft’s overcharges through the various chains of distribution of Microsoft’s operating system software and would quantify the damages incurred by the class members. Microsoft has attacked Leffler’s analysis, theories, and methodology, claiming Leffler’s economic methodology will not produce an accurate measure of damages and, consequently, that Howe has failed to present economic evidence to establish damages. In essence, Microsoft argues that Leffler’s methodology is invalid and that, even if his methodology is valid, Howe failed to present “real world” evidence to support Lef-fler’s assessment of damages.

[¶ 17] The trial court addressed Microsoft’s assertions and concluded common issues predominated over individual issues:

[T]he court finds that the common questions of law and fact predominate over individual issues. The common issues of law and fact specified above are significant and affect every potential class member. On the other hand, it is true that there may be individual issues that affect only certain members. Microsoft contends that its distribution system is complex and that alleged damages to each purchaser would depend upon individual circumstances peculiar to each plaintiff. Plaintiffs contend that the issue of damages can be determined by class-wide proof. Each of the parties has presented affidavits from economists, with each economist reaching the opposite conclusion. The court finds that, although there may be some need to establish sub-classes, the predominating common questions of law and fact are such that class action status is appropriate to promote the fair and efficient adjudication of the controversy.
It should be noted that the court is not resolving the “battle of the experts” at this time. That would not be appropriate. The court is merely stating that there is at least a reasonable basis set forth for the methodology in determining damages by class-wide proof. Whether further proceedings will support the plaintiffs economic suppositions remains to be seen, but a sufficient basis has been laid by the plaintiffs for the finding by the court that certification of the case as a class action is appropriate at this time. The court always has the ability to decertify the class, or establish other classes or subclasses. It is not necessary to find that there are no individual issues that may remain, only that the common issues of law and fact predominate. The court so finds.

[¶ 18] Microsoft argues the trial court should have determined the validity of Lef-fler’s analysis and methodology and should have considered whether there was sufficient evidence of the effect of Microsoft’s overcharges to support Leffler’s theories. Here, Microsoft argues at length about the validity of Leffler’s methodology and whether there is evidence in the record to support a finding of “pass through” and damages based upon that methodology. Microsoft’s argument goes to the merits of Howe’s claims and seeks a determination that there is insufficient evidence to support those claims.

[¶ 19] It is well settled that the trial court must make a determination of class certification without delving into the merits of the case. Werlinger, 1999 ND 173, ¶ 18, 598 N.W.2d 820; Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The question is whether the requirements for class certification have been met, not whether the plaintiffs will prevail on the merits. Werlinger, at ¶ 18; Eisen, at 178, 94 S.Ct. 2140. In interpreting the corresponding federal rule, the Supreme Court in Eisen, at 177-78, 94 S.Ct. 2140 concluded:

We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.... This procedure is directly contrary to the command of subdivision (c)(1) that the court determine whether a suit denominated a class action may be maintained as such “[a]s soon as practicable after the commencement of [the] action.... ”

See N.D.R.Civ.P. 23(b)(1) (court shall determine whether to certify as a class action “as soon as practicable after the commencement of a class action”); see also 7B Charles Alan Wright et al., Federal Practice and Procedure § 1785 (2d ed.1986).

[¶ 20] The Supreme Court in Eisen, at 178, 94 S.Ct. 2140 specifically agreed with the rationale of the United States Court of Appeals for the Fifth Circuit in Miller v. Mackey Int’l, Inc., 452 F.2d 424 (5th Cir.1971). Concluding that the federal district court had improperly considered the merits of the claim in determining whether to certify a class action, the Miller court reasoned:

This portion of the order indicates to us that in passing on the propriety of the class action the district judge may have considered whether the petition stated a cause of action or whether Miller would succeed on the merits. This was improper. In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.
The determination whether there is a proper class does not depend on the existence of a cause of action. A suit may be a proper class action, conforming to Rule 23, and still be dismissed for failure to state a cause of action.
Kahan v. Rosenstiel, 424 F.2d 161, 169 (3rd Cir.1970). Rule 23 delineates the scope of inquiry to be exercised by a district judge in passing on a class action motion. Nothing in that Rule indicates the necessity or the propriety of an inquiry into the merits. Indeed, there is absolutely no support in the history of Rule 23 or legal precedent for turning a motion under Rule 23 into a Rule 12 motion to dismiss or a Rule 56 motion for summary judgment by allowing the district judge to evaluate the possible merit of the plaintiffs claims at this stage of the proceedings.

Miller, at 427-28 (citations omitted); see also Cowen v. Bank United of Texas, FSB, 70 F.3d 937, 941 (7th Cir.1995) (Fed.R.Civ.P. 23 “requires certification as soon as practicable, which will usually be before the case is ripe for summary judgment”); Westlake v. Abrams, 565 F.Supp. 1330, 1337 (N.D.Ga.1983) (distinguishing plaintiffs burdens under Rule 23 and Rule 56).

[¶ 21] One leading commentator has also noted that the class action determination usually occurs early in the proceedings, before significant discovery takes place:

Moreover, the requirement of Rule 23(c)(1) that the court determine by order “as soon as practicable after the commencement of an action brought as a class action” whether it may be so maintained means that a class ruling should and usually does come early in the litigation, often based primarily on the pleadings, and sometimes with some opposing and counter-affidavits involved. Rarely is any significant discovery on class issues required, and even more rarely is there a need for any evidentiary hearing. These problems, associated with the need for a preliminary ruling on the propriety of the class, have been eased by the flexibility and judicial discretion spelled out in Rule 23 itself, which provides that a class ruling “may be conditional, and may be altered or amended before the decision on the merits, ... an action may be brought or maintained as a class action with respect to particular issues, or ... a class may be divided into subclasses.”
These two factors — the flexibility and discretion inherent in Rule 23, on the one hand, coupled with the necessity for an early class ruling, usually at the pleading stage, on the other hand— mean that traditional burden of proof concepts have limited applicability in the procedural context of class actions.

2 Herbert Newberg & Alba Conte, Newberg on Class Actions § 7.27 (3d ed.1992) (footnote omitted).

[¶ 22] The Supreme Coui’t of California addressed the propriety of considering the merits of the underlying claims at the certification stage in Linder v. Thrifty Oil Co., 23 Cal.4th 429, 97 Cal.Rptr.2d 179, 2 P.3d 27 (Cal.2000). The court considered and agreed with the holdings in Eisen and Miller, and explained the underlying rationale for its result:

When the substantive theories and claims of a proposed class suit are alleged to be without legal or factual merit, the interests of fairness and efficiency are furthered when the contention is resolved in the context of a formal pleading (demurrer) or motion (judgment on the pleadings, summary judgment, or summary adjudication) that affords proper notice and employs clear standards. Were we to condone merit-based challenges as part and parcel of the certification process, similar procedural protections would be necessary to ensure that an otherwise certifiable class is not unfairly denied the opportunity to proceed on legitimate claims. Substantial discovery also may be required if plaintiffs are expected to make meaningful presentations on the merits. All of that is likely to render the certification process more protracted and cumbersome, even if, as Thrifty suggests, trial courts were prohibited from resolving factual disputes. Such complications hardly seem necessary when procedures already exist for early merit challenges.
Thrifty argues a trial court should have flexibility to consider the likely invalidity of the plaintiffs causes of action because of the substantial economic and administrative burdens that approval of class certification would entail. Thrifty also emphasizes that the denial of certification, unlike the granting of disposi-tive pretrial motions, does not terminate the substantive right of any party or prospective party to pursue an individual claim.
We are not persuaded by Thrifty’s suggestion that the traditional criteria and factors for assessing the propriety of certification are inadequate to screen out nonbeneficial class actions. As Miller, supra, 452 F.2d 424, indicated in the context of Rule 23, the traditional requirements are difficult to meet and represent meaningful obstacles to inappropriate class suits.
Thrifty’s other point also fails to persuade. While the mere denial of certification does not, as a legal matter, terminate the right of any plaintiff to pursue claims on an individual basis, it is likely to have that net effect when there has been injury of insufficient size to warrant individual action. But even assuming the denial of certification does not end an action, Thrifty’s proposal virtually assures that courts would be asked to decide repetitious challenges regarding the legal sufficiency of an action, e.g., at the pleading stage through a demurrer, at the certification stage, and yet again with regard to the plaintiffs individual action. Judicial economy and efficiency would not be served under such an approach.

Linder, at 35 (citation and footnote omitted).

[¶ 23] Similarly, courts have concluded it is inappropriate at the certification stage of a class action to resolve battles between the parties’ respective experts. For example, in Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292-93 (2d Cir.1999), cert. denied, 529 U.S. 1107, 120 S.Ct. 1959, 146 L.Ed.2d 791 (2000), the court reversed a denial of class certification where the district court had considered the relative merits of competing experts’ evidence:

The District Court relied on the report of Metro-North’s statistical expert, Dr. Evans, to conclude that the Class Plaintiffs’ statistics were inadequate because they failed to take into account the fact that various Metro-North positions have materially different rates of discipline and promotion. Though Metro-North’s critique of the Class Plaintiffs’ evidence may prove fatal at the merits stage, the Class Plaintiffs need not demonstrate at this stage that they will prevail on the merits. Accordingly, this sort of “statistical dueling” is not relevant to the certification determination.

Id. at 292. Noting that, although “[m]ore detailed statistics might be required to sustain the Plaintiffs’ burden of persuasion” at trial, the court concluded the Plaintiffs’ expert’s report sufficiently established the commonality factor for certification. Id. at 293. The court concluded:

In deciding a certification motion, district courts must not consider or resolve the merits of the claims of the purported class. See Eisen, 417 U.S. at 177, 94 S.Ct. 2140, 40 L.Ed.2d 732. Here, the District Court credited Metro-North’s expert evidence over that of the Class Plaintiffs. Such a weighing of the evidence is not appropriate at this stage in the litigation. Accordingly, we reverse the denial of class certification and remand the case for further proceedings.

Caridad, at 293.

[¶ 24] Relying on Caridad in granting class certification, the federal district court in In re Visa Check/Mastermoney Antitrust Litigation, 192 F.R.D. 68, 79 (E.D.N.Y.2000), aff'd, 280 F.3d 124 (2d Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 2382, 153 L.Ed.2d 201 (2002), noted “a district court is not permitted to indulge ‘dueling’ between opposing experts at the class certification stage.” On appeal, the United States Court of Appeals for the Second Circuit affirmed the class certification, explaining:

Defendants contend that the district court erroneously relied on Carlton’s report in granting plaintiffs’ class certification motion because, according to defendants, the district court improperly limited its scrutiny of the report and Carlton’s expert opinion “failed to provide a credible basis for class certification.” Although a trial court must conduct a “rigorous analysis” to ensure that the prerequisites of Rule 23 have been satisfied before certifying a class, “a motion for class certification is not an occasion for examination of the merits of the case.” Caridad, 191 F.3d at 291 (internal quotation marks omitted). A district court must ensure that the basis of the expert opinion is not so flawed that it would be inadmissible as a matter of law. However, a district court may not weigh conflicting expert evidence or engage in “statistical dueling” of experts. Caridad, 191 F.3d at 292-93. The question for the district court at the class certification stage is whether plaintiffs’ expert evidence is sufficient to demonstrate common questions of fact warranting certification of the proposed class, not whether the evidence will ultimately be persuasive.
The district court correctly noted that its function at the class certification stage was not to determine whether plaintiffs had stated a cause of action or whether they would prevail on the merits, but rather whether they had shown, based on methodology that was not fatally flawed, that the requirements of Rule 23 were met. As for defendants’ claim that plaintiffs’ expert evidence failed to provide a reliable basis for class certification, the district court’s finding that Carlton’s methodology was not fatally flawed, and therefore, was sufficiently reliable for class certification purposes, does not constitute an abuse of its discretion.

In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 134-35 (2d Cir.2001), cert. denied, — U.S. -, 122 S.Ct. 2382, 153 L.Ed.2d 201 (2002) (citations omitted).

[¶ 25] The court specifically noted that the class certification stage of the case is not the appropriate time to engage in a Daubert examination of the validity of expert evidence:

We note that a motion to strike expert evidence pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), involves a[n] inquiry distinct from that for evaluating expert evidence in support of a motion for class certification, see infra Section III. A., although the parties’ substantive arguments in both instances may be similar, as is true in this case. A Daubert motion is typically not made until later stages in litigation, such as in association -with a motion for summary judgment, motion in limine, or at trial, and a district court should not postpone consideration of a motion for class certification for the sake of waiting until a Daubert examination is appropriate. See Fed.R.Civ.P. 23(c)(1) (“As soon as practicable after commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”)

Visa, 280 F.3d at 132 n. 4.

[¶ 26] Another federal court recently rejected arguments that class certification in an antitrust case was inappropriate because the plaintiffs’ expert’s methodology was invalid and the expert had merely relied on the substantive allegations in the complaint rather than on actual data. In Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives and Composites, Inc., 209 F.R.D. 159 (C.D.Cal.2002), the defendants raised many of the same challenges to the expert’s opinion Microsoft raises here, including allegations the expert had not tested his economic methodology, had not studied the actual prices purchasers had paid, had not estimated the price purchasers would have paid absent the alleged antitrust violations, had not used empirical data to evaluate his hypothesis, and had not studied the percentage of costs that had been passed on to customers. See id. at 161-62. In granting certification, the court concluded:

It is clear to the Court that a lower Daubert standard should be employed at this stage of the proceedings. Courts have declined to engage in a Daubert analysis at the class certification stage of an action on the ground that an inquiry into the admissibility of the proposed expert testimony under Daubert would be an inappropriate consideration of the merits of the plaintiffs claims.
At this stage in the proceeding, an expert report should not be excluded merely on the basis that it assumes the substantive allegations of the complaint rather than relying upon actual data that may yet to be discovered.

Thomas, at 162-63 (citations omitted).

[¶ 27] We agree with the rationale of the foregoing cases. A motion for certification should not be treated as a motion for summary judgment, requiring plaintiffs to present admissible evidence to support each element of their claims. Nor is the certification hearing the appropriate time to engage in a full-blown examination of the validity of an expert’s analysis, opinions, and methodology. As long as the basis of the expert’s opinion is not so blatantly flawed that, on its face, it would be inadmissible as a matter of law, the court may consider the expert’s evidence in determining whether to certify the class action.

[¶ 28] The arguments raised by Microsoft are more appropriate for a motion in limine to exclude expert testimony or a motion for summary judgment. Microsoft’s arguments go to the merits of the plaintiffs claims and may be more appropriately reviewed at a later stage of this litigation. Rule 23(b)(1), N.D.R.Civ.P., provides that the decision whether to certify a class action should be made “as soon as practicable after the commencement of a class action.”

[¶ 29] We have explained that, if further development of the facts warrant, the trial court has the authority to decertify, create subclasses, or modify the class:

Under N.D.R.Civ.P. 23(b), a trial court generally considers issues about certification of a class action “as soon as practicable after the commencement of a class action,” and at that stage of the proceeding, issues regarding a joint or common interest may not be fully crys-talized. A trial court may amend a certification order at any time before entry of judgment on the merits. N.D.R.Civ.P. 23(e). Under similar language in Fed.R.Civ.P. 23(c)(1), federal trial courts are free to decertify, sub-classify, or modify a class certification previously granted. In Richardson [v. Byrd, 709 F.2d 1016, 1019 (5th Cir.1983)], the court aptly explained a federal trial court “must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts.”

Rose, 2002 ND 148, ¶ 18, 651 N.W.2d 683 (quoting Ritter II, 2001 ND 56, ¶ 16, 623 N.W.2d 424). The trial court in this case expressly noted it may be necessary to create other classes or subclasses, or even decertify the class, based on future development of the facts.

[¶ 30] We conclude the trial court did not abuse its discretion in determining Howe had, at this stage in the proceedings, set forth an adequate methodology to establish the impact and damage elements of the underlying claims. We further conclude the court did not abuse its discretion in determining that common questions predominated over individual issues and that management of the class would not be unusually difficult.

C

[¶ 31] Microsoft argues we should follow the reasoning in the only appellate decision to date which has addressed the appropriateness of class certification in the numerous identical class actions against Microsoft wending their way through various state courts. In A & M Supply Co. v. Microsoft Corp., 252 Mich.App. 580, 654 N.W.2d 572 (Mich.Ct.App. Aug.27, 2002), the trial court had certified a class action by indirect purchasers against Microsoft, relying upon affidavits by Professor Lef-fler. The Michigan Court of Appeals, after engaging in a painstaking analysis of Leffler’s economic theories and methodologies, determined that the plaintiffs had failed to present sufficient data to calculate actual damages using Leffler’s proposed methodologies and that Leffler had not provided a viable method for proving damages on a class-wide basis. Microsoft alleges that Leffler’s affidavits in the Michigan case are virtually identical to the affidavits submitted by Howe in this case.

[¶ 32] Microsoft urges us to adopt the rationale of the Michigan Court of Appeals, to reject Leffler’s economic theories and methodologies, and to reverse the order granting class certification. We decline to do so for several reasons.

[¶ 33] Most significantly, the Michigan court employed a vastly different appellate standard of review than the standard which guides our review of an order granting or denying class certification. In Michigan, the trial court’s decision to certify a class action is treated as a finding of fact, and is reviewed on appeal under the clearly erroneous standard. See A & M, 252 Mich.App. 580, 654 N.W.2d 572, 2002 WL 1974137, at *4. In this state, the trial court has broad discretion in determining whether to certify a class under N.D.R.Civ.P. 23, and its decision will not be overturned unless the trial court has abused its discretion. E.g., Rose, 2002 ND 148, ¶ 5, 651 N.W.2d 683. In order to establish an abuse of discretion, the complaining party must affirmatively establish the trial court acted in an unreasonable, arbitrary, or unconscionable manner, its decision was not the product of a rational mental process leading to a reasoned decision, or it misinterpreted or misapplied the law. See Rose, at ¶ 5; Gepner v. Fujicolor Processing, Inc., 2001 ND 207, ¶ 13, 637 N.W.2d 681. In Rose, at ¶ 17, we stressed that this is a “highly deferential standard of review,” and held:

By definition, when a matter is left to the broad discretion of the trial court, it is envisioned there is a broad range of factual scenarios in which the trial court is left to make its choice, and whichever choice it makes will be upheld on appeal. This case presented many close questions and difficult choices, and it was for the trial court to make those choices without interference from this Court on appeal unless there has been an abuse of discretion.

[¶ 34] Perhaps because it was employing a less deferential standard of review, the Michigan court closely examined the facts and merits of the case and engaged in a resolution of the “battle of the experts,” which we have concluded is inappropriate at the class certification stage. The court repeatedly pointed to the lack of data to support a calculation of damages using Leffler’s methodology, effectively turning the class certification determination into a de facto summary judgment proceeding. This result conflicts with our conclusion that class action plaintiffs are not required to prove their claims or to present admissible evidence on all elements of their claims at the class certification stage of the litigation.

[¶ 35] In noting the lack of evidence or empirical data to support Leffler’s theories and methodologies, the Michigan court chastised the plaintiff for seeking certification too early in the litigation:

Again, the early stage of the proceedings likely did not allow Dr. Leffler sufficient data to perform — or even describe in any great detail — a regression analysis or results. However, the timing of a motion for class action certification within the first ninety-one days after the complaint is filed is entirely a matter that rests in the plaintiffs hands. The decision iohen to move for class certification is tactical, resting in part on the degree to which the lawsuit’s economic feasibility depends on whether it proceeds as a class action and the likely expense of learning, at a later date, that certification is not possible. Nevertheless, these factors do not obviate a plaintiffs burden with respect to articulating a method or formula by which a court could determine that the defendant’s conduct caused each member of the proposed class actual damages.

A & M, 252 Mich.App. 580, 654 N.W.2d 572, 639-40 (footnote omitted). The Michigan court’s analysis directly conflicts with the language of N.D.R.Civ.P. 23(b)(1), which provides that the decision whether to certify a class action shall be made “as soon as practicable after the commencement of [the] action.” See also Eisen, 417 U.S. at 177-78, 94 S.Ct. 2140 (a procedure allowing inquiry into the merits at the class certification stage “is directly contrary to the command” in Fed.R.Civ.P. 23(c)(1) that the court determine whether to certify “[a]s soon as practicable after the commencement of [the] action”).

[¶ 36] We decline Microsoft’s invitation to adopt the Michigan court’s rationale and result in A & M.

rv

[¶ 37] We have reviewed the remaining issues raised by Microsoft and find them to be without merit. We conclude the trial court did not abuse its discretion in certifying the class action. The order certifying the class action is affirmed.

[¶ 38] WILLIAM A. NEUMANN, Acting C.J., and WILLIAM W. McLEES, D.J., LAWRENCE A. LECLERC, D.J., and DALE V. SANDSTROM, JJ„ concur.

[¶ 39] The Honorable WILLIAM W. McLEES, D.J., and the Honorable LAWRENCE A. LECLERC, D.J., sitting in place of VANDE WALLE, C.J., and MARING, J., disqualified.

      . We have not adopted the standards for admitting expert evidence articulated by the Supreme Court of the United States in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). See Hamilton v. Oppen, 2002 ND 185, ¶ 20 n. 2, 653 N.W.2d 678. Admission of expert evidence at trial is governed by N.D.R.Ev. 702, and the trial court has broad discretion to determine whether the witness is qualified as an expert and whether the evidence will assist the trier of fact. See Hamilton, at ¶ 15.

      . According to the parties, trial courts in Florida, South Dakota, Kansas, Michigan, Wisconsin, Arizona, Minnesota, California, New Mexico, and Tennessee have granted class certification in indirect purchaser antitrust actions against Microsoft. One trial court, in Maine, has denied certification.


author: ERICKSON, Circuit Judge.

text:
    2003 SD 2
    Mary ENGEL, Appellee, v. PROSTROLLO MOTORS and Mid-Century Insurance Co. d/b/a Farmers Insurance Group, Appellants.
    No. 22211.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Jan. 8, 2003.

      Glenn Boomsma of Breit Law Office, Sioux Falls, for appellee.
    Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, for appellants.
   ERICKSON, Circuit Judge.

[¶ 1J Mary Engel (Engel) was awarded odd-lot benefits under the Workers Compensation Act. Prostrollo Motors (Employer) appeals that decision. We affirm.

FACTS

[¶ 2.] At the time of the hearing Engel was forty years old. She was a high school graduate, but had been a below average student. She had attended Mitchell Vo-tech for one year, completing a course in meat cutting. She has never been employed as a meat cutter. Her work history consists of unskilled positions involving heavy-duty labor.

[¶ 3.] Engel began working for Employer in August 1990 detailing cars. She was also responsible for snow removal. On January 2, 1996, she suffered a work-related injury while pushing a four-wheel drive vehicle out of a snowdrift. Engel sought medical treatment and a diagnostic laparoscopy was performed and an adhesion in her abdomen region was repaired. Following surgery she continued to experience pain in her abdominal area, and could not return to work due to pain. Surgery was then performed repairing a ventral hernia.

[¶ 4.] Following this second surgery, Engel experienced significant pain relief and returned to work with restrictions to do light duty. Two days later she began to experience additional pain and under doctor’s orders began exercises to strengthen her abdominal wall muscle. She eventually returned to work doing light duty. In August 1996 she resumed her former duties. However, pain again began to bother her and she quit work in August 1996.

[¶ 5.] Engel then began work at Huron Regional Medical Center, but was fired for insubordination. From April 1997 through December 7, 1999, she worked as a garment inspector and packer at Raven Industries in Huron. During part of this time period she also worked part-time as a nurse’s aide at the Huron Nursing Home and later as a waitress at the Barn Restaurant in Huron.

[¶ 6.] Engel was laid off from Raven from December 8, 1999 to February 14, 2000. She was called back to work in March 2000, but refused because of pain.

[¶ 7.] During all this period of time, Engel received conservative pain control treatment. She received pain medication, physical therapy and, after February 1997, seven trigger point injections for abdominal pain.

[¶ 8.] An impairment rating was conducted in February 1998 and Engel was given fifteen-percent whole person impairment rating because of significant pain syndrome.

[¶ 9.] In September 1999, Engel was referred to Dr. Gregory Wiedel, a specialist in internal medicine. He diagnosed chronic pain, although he acknowledged he could not attribute her pain to any anatomic ideology. Dr. Wiedel agreed with the fifteen percent impairment rating. He also agreed with the opinion of Dr. Cho (who performed the impairment rating) that any dramatic improvement would be medically unlikely and that in the absence of an active lifestyle she would be further hindered.

[¶ 10.] In October 1999, Engel was treated for a gastric ulcer caused in part by the pain medicines she was taking. The ulcer was treated and cleared up. She continued to see Dr. Wiedel, tried less evasive pain control measures, but found that only lidoeaine injections for pain relief were successful. Dr. Wiedel testified that these injections could continue for a lifetime.

[¶ 11.] In June 2000, Engel participated in a Functional Capacity Evaluation. The occupational therapist concluded that she exhibited symptom/disability exaggeration behavior and indicated that Engel made a poor effort.

[¶ 12.] Dr. Jerry Blow then examined Engel in September 2000. Dr. Blow concluded that the source of the pain was her original abdomen pain and that she had now developed chronic pain from that injury. He also felt there was some symptom magnification.

[¶ 13.] Engel has not been employed since December 1999. However, she has completed basic computer courses and clerical courses. Her career counselor, rehabilitation counselor and instructor all described her as motivated, diligent and have concluded that she has completed all courses necessary for a job within her limitations. She has made extensive job contacts. For example, from April through October 2000, she made over 200 job contacts. To date, she has been unable to secure employment. Lay testimony indicates that prior to her injury Engel was a very active, hard-working person.

[¶ 14.] No doctor has ever opined that Engel cannot work.

STANDARD OF REVIEW

[¶ 15.] “The standard of review in an appeal to the Supreme Court from a trial court’s appellate review of an administrative decision is de novo; unaided by any presumption that the trial court is correct.” Brown v. Douglas School Dist., 2002 SD 92 ¶ 17, 650 N.W.2d 264. “Our task on appeal is to determine if there is substantial evidence to support the agency’s decision, and not to determine if there is substantial evidence that contradicts the agency’s decision.... We will reverse only if we are definitely and firmly convinced that a mistake has been made.” Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 16, 571 N.W.2d 376

ISSUE ONE.

[¶ 16.] Whether under the odd-lot doctrine of the Workmens’ Compensation Act the hearing officer erred when determining that Engel’s evidence was persuasive that she was obviously unemployable due to continuous, severe and debilitating pain?

[¶ 17.] Employer argues that the hearing examiner erred in finding that Engel was permanently and totally disabled. “There are two ways in which a claimant can make out a prima facie case. One way is if the claimant is ‘obviously unemployable.’” Kester, 1997 SD at ¶ 29, 571 N.W.2d at 381. The hearing examiner found this method was not applicable. En-gel is not “obviously unemployable.” The hearing examiner found that she was capable of performing some light work.

[¶ 18.] A claimant can establish obvious unemployability by convincing the trier of fact that she suffers “continuous, severe, and debilitating pain.” Kester, 1997 SD at ¶ 29, 571 N.W.2d at 381. It was under this method that the hearing examiner concluded that Engel had permanent total disability benefits under the odd-lot doctrine.

[¶ 19.] Employer argues that the hearing examiner’s decision betrays a fundamental misunderstanding of the odd-lot doctrine because no South Dakota case has ever accepted a claim for odd-lot status when medical evidence shows a claimant can work. Employer cites Tiensvold v. Universal Transport, Inc., 464 N.W.2d 820 (S.D.1991) for this proposition. It is true that in Tiensvold we articulated the fact that “[n]o physician placed physical restraints on Tiensvold’s activities.” Tiensvold, 464 N.W.2d at 823. However, this statement did not establish a bright-line standard for determining permanent total disability. Rather, the standard is that “[a] claimant may show obvious unemploy-ability by ... convincing the trier of fact that [s]he suffers the kind of continuous, severe and debilitating pain which [s]he claims.” Kester, 1997 SD at ¶ 29, 571 N.W.2d at 381.

[¶ 20.] All but Employer’s expert believed Engel’s pain complaints to be credible. Particularly persuasive was the testimony of Dr. Gregory L. Wiedel, a doctor of internal medicine, who treated Engel for her pain. It was his opinion that Engel suffered from continuous, severe and debilitating pain. On cross-examination, Dr. Wiedel explained that the degree of pain a person suffers is subjective. More importantly, he testified there is no objective way to medically measure the amount of pain someone is experiencing. He testified that “we’re talking about a ‘chronic sick pain syndrome’ where there is no normal anatomical correlate. In the bodies [sic] repair of even the surgical incisions there is probably regrowth of nerves that have become hyperesthetic. That is overly sensitive to any pain.” He further pointed out that “there is no true anatomic ideology,” which is the problem with trying to create a bright-line standard.

[¶ 21.] Dr. Jerry Blow, Employer’s expert, agreed that Engel has chronic pain syndrome and is experiencing actual pain. However, he opined that he did not believe it was at the level Engel complained. He further opined that she was experiencing symptom magnification due to the stress of litigation. This opinion is unsupported by any evidence and was nothing more than speculation. Dr. Blow went on to testify that he did not believe that her description of the level of pain was consistent with his physical examination. At the same time, he also agreed that it is very difficult to measure pain and is best left to those who deal with the patient on a regular basis. More importantly, Dr. Blow agreed that there is no scientific empirical way to measure pain.

[¶ 22.] This issue comes down to a battle of expert doctors. Dr. Weidel’s opinion is more persuasive based on his credentials, his interaction with Engel, the clarity of his reasoning and the fact it is substantiated by other evidence of this case.

[¶ 23.] Based upon the foregoing, Department correctly found that Engel met her burden of proving unemployable due to continuous, severe and debilitating pain.

ISSUE TWO

[II24.] Whether the hearing officer erred when determining that Employer failed to show that there was suitable employment available in Engel’s community, which would accommodate her limitations?

[¶ 25.] Once a claimant establishes unemployability, “the burden shifts to the employer to show that there is suitable employment available in the claimant’s community that will accommodate claimant’s limitations.” Kester, 1997 SD at ¶ 29, 571 N.W.2d at 381. On the other hand, SDCL 62-4-53 imposes on the claimant the burden of making a reasonable, good faith search for work. Employer claims that the hearing officer failed to require Engel to present expert evidence of rehabilitation.

[¶ 26.] Engel offered testimony of Mary Lesselyoung, a rehabilitation counselor with the local Job Service office; Jeff Myers, a training specialist with the Cornerstones Career Learning Center; Janice Tschetter, a career counselor at Cornerstones; and Thomas Audet, a certified rehabilitation counselor with Medical and Vocational Rehabilitation Consulting Services. They testified that she completed clerical programs, various computer classes and software programs and used the appropriate services available. Thomas Audet testified that these programs were more appropriate for her and she was doing what was necessary. Additionally, Employer’s expert, Joel Lee agreed that concluding “I think what Mary is doing is exactly what she should be doing.” This evidence was sufficient to meet the requirements of SDCL 62-4-53.

[¶ 27.] Employer also claims that En-gel failed to prove she conducted a reasonable, good faith work search. Those experts who worked closely with Engel, however, testified she made a credible, motivated and diligent, albeit unsuccessful search for a job. Engel’s vocational expert opined that “I only wish all my clients would do that [actually go in and apply for jobs].” He concluded that she made an exhaustive area job search.

[¶ 28.] Employer’s expert, Joel Lee, had not reviewed all of Engel’s job search records or many of her medical records prior to testifying and had not listened to Engel’s experts. Mr. Lee testified that his study merely showed openings that were generally available; however, he could not say whether these jobs were available in light of Engel’s condition.

[¶ 29.] This is a credibility issue. The evidence was presented live before the hearing officer. As such, “due regard shall be given to the opportunity of the agency to judge the credibility of the witness.” Bonnett v. Custer Lumber Corp., 528 N.W.2d 393, 396 (S.D.1995). Based on this record and giving due regard to the hearing officer, we cannot conclude that the hearing officer’s findings were in error.

ISSUE THREE

[¶ 30.] Did the hearing examiner err in finding that Engel’s weekly injections of a local anesthetic are reasonable and necessary?

[¶ 31.] SDCL 62-4-1 provides that “the employer shall provide necessary ... medical ... care.” Employer argues that weekly lidocaine injections are not necessary and that other less intrusive methods, such as exercise and lidocaine patches are available.

[¶ 32.] “It is in the doctor’s province to determine what is necessary or suitable and proper. When a disagreement arises as to the treatment rendered, or recommended by the physician, it is for the employer to show that the treatment was not necessary or suitable and proper.” Krier v. John Morrell & Co., 473 N.W.2d 496, 498 (S.D.1991).

[¶ 33.] Dr. Wiedel testified that he initially tried steroids plus a local anesthetic (either lidocaine or bupivacaine). He also tried amitriptyline, an antidepressant, gra-bapentin, a seizure medicine, Yioxx, vieo-profen and lidocaine patches. The lido-caine patches did not seem to work very well. He then found that a weekly series of six — one percent lidocaine injections worked best. He also testified that these injections were reasonable and necessary. Dr. Wiedel was not cross-examined about these injections.

[¶ 34.] Dr. Blow acknowledges that Dr. Wiedel tried various pain medications before resorting to injections, which he believed to be a very aggressive manner of treating the pain. In his opinion he would not have used injections, but rather the most appropriate intervention was a program of stretching exercises and conditioning. Further, he did not believe the injections to be necessary; however, he suggested instead that the use of lidocaine patches would have been more appropriate. While acknowledging that Dr. Wiedel had tried lidocaine patches he questioned whether they had been tried for a long enough period of time, but did nothing to determine how long Engel had tried them.

[¶ 35.] Again we are faced with determining the credibility of the two doctors involved. It is the employer’s burden to prove that the treatment was not necessary or suitable and proper. Krier, 473 N.W.2d at 498. Based upon this record, we cannot conclude that the hearing officer erred in determining that the injections were necessary.

CONCLUSION

[¶ 36.] Engel presented evidence to prove facts essential to compensation under workers’ compensation law. We affirm.

[¶ 37.] GILBERTSON, Chief Justice, and SABERS, and KONENKAMP, Justices, and AMUNDSON, Retired Justice, affirm.

[¶ 38.] ERICKSON, Circuit Judge, for ZINTER, Justice, disqualified.

[¶ 39.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . This statute provides in pertinent part:
      An employee shall introduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. The effort to seek employment is not reasonable if the employee places undue limitations on the kind of work the employee will accept or purposefully leaves the labor market. An employee shall introduce expert opinion evidence that the employee is unable to benefit from vocational rehabilitation or that the same is not feasible.

      . Maty Lesselyoung, Jeff Myers, Janice Tschetter, and Thomas Audet.