CLASS ACTIONS AND PERSONAL INJURY

By: Paul R. Kiesel, Esq. & Ray Henke, Esq.

I. INTRODUCTION.

The purpose of this article is to provide some meaningful background for the practitioner who wishes to consider bringing a personal injury action in the form of a class action. There are, currently several legal obstacles to class mass tort litigation and one of the areas to be explored in this article is how to overcome these obstacles.
Preliminarily, there is a general rule against class certification in mass tort cases. There is a long line of cases involving everything from faulty pacemakers to bad eggs which have held that class action is an inappropriate device for the resolution of mass tort claims. The reasons for the decisions center primarily on the negation of the necessary "community of interest" i.e., the predominance of common issues of law and fact. The cases have generally denied class certification because of the concern that the actions would devolve into individual disputes about causation and damages. There are also a number of other problems with class certification of mass tort and other cases which have been found fatal to class certification.

The object, therefore, in drafting a class action complaint, must be to anticipate the faults which have led to failure in the previous attempts to certify mass tort classes, and draft class allegations which address the criteria for class treatment but which distinguish your case from those which have failed heretofore to avoid the certification pitfall of stare decisions to the extent possible.
Assuming you are successful in obtaining class certification one of the significant issues to be concerned about, thereafter, is the issue of managing your class action. These concerns range from concerns about whether the class members are readily identifiable, how you will provide notice and an opportunity to opt out, how you will demonstrate the class size, how you will deal with the problem of multiple defendants, (Where these issues are present), how you will resolve the individual causation and damage issues, and how you will distribute the monies obtained by settlement or class judgment in the case. I will offer those potential solutions that I have been able to cull from the California and federal case law on class actions. And I hope that you will criticize these potential solutions and offer better solutions to these, and other additional problems which I anticipate.

II. THERE IS A GENERAL RULE AGAINST CLASS CERTIFICATION OF MASS TORT LITIGATION

"Personal injury actions are generally not maintainable as class actions. The very personal nature of tort injuries, the wide variety of theories of liability and causation, the disparities in damages, and the fact that most tort plaintiffs prefer to be represented by counsel of their own choice make these actions inappropriate for class action treatment." Bender, Class Actions, "Policy of No Community of Interest in Mass Tort Actions," page 9. "The major elements in tort actions for personal injuries (liability, causation and damages) may vary widely in individual cases, even though such cases may involve some common questions of law and fact. Hence, the courts are reluctant to process mass torts as class actions...." Witkin, Procedure, Pleading, Sec. 221, page 270.
In Rose v. Medtronics, (1980) 107 Cal. App. 3d 150, 166 Cal. Rptr. 16, the defendant manufacturer of cardiac pacemakers discovered a potential defect in one of the components and advised physicians that a replacement should be made. The plaintiff's class action complaint alleged that 4,000 member patients would have to undergo second operations to replace the pacemakers with resulting physical injury, mental distress and medical expense. The Court of Appeal affirmed dismissal of the class action because the defendant's liability and damages would vary from claim to claim; also the issues of period of limitations, informed consent and comparative negligence would call for diverse legal rulings. Medtronics was framed as a class not limited to California but to members in all states.

In Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, the trial court denied certification of a class of women exposed to DES in utero who had or would suffer as the result clear cell adenocarcinoma. As its reason the court cited, inter alia, the lack of commonality among class members on issues of proximate cause, extent of injury, and appropriate medical examination or treatment. "As a general rule," the court observed, "so called 'mass accidents' or 'common disasters' are considered not appropriate for class litigation. This inappropriateness is based upon the overwhelming uniqueness of the issues stemming from the necessity for the trier to hear and determine individually each victim's injuries, his suffering, financial loss, etc. Thus even though a common question may be involved (e.g., the defendant's tort) the matter is not suitable for a class action."
In Brown v. Regents of University of California, (1984) 151 Cal.App.3d 982, 198 Cal.Rptr. 916, the Court of Appeal, held that plaintiffs' causes of action alleging intentional concealment and misrepresentation regarding level of coronary care at the medical center, battery, and negligence were not suited for class action in light of fact that individual issues relating to representations, reliance, informed consent, causation, and damages would predominate over common questions. After discussing the general liberality and non-rigid criteria for class certification, the Court qualified its observations as regards the utility of class action for the resolution of mass tort actions as follows: "The right to bring a class action, however, is not unlimited. Class actions will not be permitted, for example, where there are diverse factual issues to be resolved, even though there may be many common questions of law. "The ultimate question in every case of this type is whether, given an ascertainable class, the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants." (Collins v. Rocha (1972) 7 Cal.3d 232, 238, 102 Cal.Rptr. 1, 497 P.2d 225; Bozaich v. State of California, supra, 32 Cal.App.3d at p. 695, 108 Cal.Rptr. 392.) If the ability of each member of the class to recover clearly depends on a separate set of facts applicable only to him, then all of the policy considerations which justify class actions equally compel the dismissal of such inappropriate actions at the pleading stage. In our review of the complaint at issue, we have determined that individual issues substantially predominate over common questions.

"As discussed above, the primary theories of recovery are in the first four causes of action. The first and second causes of action allege plaintiffs were induced to receive coronary care at the Medical Center by certain affirmative misrepresentations or the failure to disclose certain facts. Certain elements of a fraud cause of action, in the present context, could lend themselves to a class action method of proof. The fact that a certain representation was made, for example, probably could be proved for the class by reference to defendants' publications regarding coronary care. Proof of falsity also would be common to all members of the class. "Beyond these elements, however, we encounter a veritable quagmire of tough factual questions which can only be resolved by individual proof. Whether a particular class member relied on the representation, for example, will require close scrutiny of what was said between a class member and his physician. A class member's particular medical condition and method of treatment must be examined in order to determine proximate cause of any claimed damage and the actual extent of such damage. All of the foregoing involve questions of what is medically appropriate for a particular patient under his particular circumstances. Viewed in this context, the complaint raises numerous and substantial individual questions of fact such that it is not reasonably possible plaintiffs will be able to establish a sufficient community of interest to warrant class action."
The Court in Brown also stressed that the individual damage issues made class certification inappropriate. The Court distinguished Vasquez v. Superior Court,(1971) 4 Cal.3d 800, 94 Cal.Rptr. 796, a case wherein the plaintiffs had brought a class action seeking recovery for alleged misrepresentations concerning the sale of freezers and food packages. In upholding the right to maintain a class action for rescission based on consumer fraud, the court in Vasquez had noted the misrepresentations were based on a memorized standard statement in a sales manual. Proof of falsity also was provable on a common basis, particularly in view of the standardized nature of the contracts at issue. Finally, the court in Vasquez held it was permissible to infer justifiable reliance on defendant's misrepresentations if the reasonable man would have so relied. As we might urge here, and as the Plaintiffs in Brown urged, the damage issues might be bifurcated for individual trials as they were in Vasquez, the Court of Appeal in Brown distinguished Vasquez specifically on that point, holding:

"Damage issues compound the problem. Although the court in Vasquez permitted individual proof of damage by each member of the class, the total amount of damages claimed by any one plaintiff was $7,700, of which $5,000 was for punitive damages. Compensatory damages in excess of $15,000 are claimed by each plaintiff in the present case, together with punitive damages of $500 Million. Even if we were to ignore the problems relative to common proof of reliance as previously discussed, the complexity of the damage question alone, fully litigated by each class member, would far outweigh any small benefit derived from those issues which could be tried on a common basis."

The Court in Brown concluded by citing Rose v. Medtronics, supra, "`In general, mass tort actions for personal injuries are not appropriate for class-action treatment ... in that the major elements in tort actions for personal injuries--liability, causation and damages--may vary widely from claim to claim. Reluctance to extend class-action treatment to mass torts governs even those types of claims which necessarily contain common questions of law and fact.' ( Rose v. Medtronics, Inc., supra, 107 Cal.App.3d at p. 155, 166 Cal.Rptr. 16.)"

In Clausing v. San Francisco Unified School Dist., (1990) 221 Cal. App.3d 1224, 271 Cal. Rptr. 72, the class action complaint alleged that the representative plaintiff and those similarly situated were physically handicapped and mentally retarded students at special schools for the handicapped, and that they were repeatedly subjected to verbal abuse, beatings, and public humiliation. As a result, it was alleged that they suffered severe physical, mental, emotional, and psychological injury and damages. It was alleged that the School District authorized or failed to prevent the abuse inflicted by the teachers and other school employees. The complaint sought damages and "such equitable, legal or injunctive relief as the court may deem appropriate" on behalf of appellants and of a purported class of "all persons similarly situated" under various causes of action for assault and battery, intentional and negligent infliction of emotional distress, and negligence.
The Court of Appeal upheld the lower court's granting of a demurrer to the complaint without leave to amend. The Court of Appeal reasoned: In the complaint in this case, individual issues substantially predominate over common factual questions. Indeed, the separate issues to be adjudicated in this mass-tort action are overwhelmingly numerous and substantial when compared to the few issues which are common to the class. In order to recover, each individual claimant would have to prove: (1) the fact that he or she was a victim of abuse; (2) the identity of the abuser; (3) the capacity in which the alleged abuser acted; (4) the fact that the alleged perpetrator was acting within the scope of his or her employment by the District; and (5) the existence and extent of damages. In each individual instance, the District and the individuals involved would be entitled to different affirmative defenses and immunities. Even if it could be determined that the policies and practices of the District encouraged or permitted physical and mental abuse of students in the asserted class, this determination could not resolve the lawsuit, which would still require a full trial on each and every alleged incident of abuse with respect to fault, causation, damages, and affirmative defenses.

The instant case is precisely the kind of mass-tort lawsuit which courts have found not amenable to class certification. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1123, 245 Cal.Rptr. 658, 751 P.2d 923; Brown v. Regents of University of California, supra, 151 Cal.App.3d at pp. 988-991, 198 Cal.Rptr. 916.) In these kinds of cases, the wide disparity in individual claimants' damages and the diverse issues of liability and causation as to each individual claimant preclude maintenance of the suit as a class action.

In Fuhrman v. California Satellite Systems, (1986) 179 Cal.App.3d 408, 231 Cal.Rptr. 113, the class action complaint alleged that a sender of microwave television signals wrote letters to supposedly illegal recipients of the microwave signals, threatening legal action and demanding payment. Plaintiff, recipient of one of the letters, filed the class action on behalf of herself and all other recipients of the letters, alleging multiple causes of action, including extortion, fraud, negligent misrepresentation, invasion of privacy, intentional infliction of emotional distress, conspiracy and violation of the Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.). As to each of the first six causes of action, the complaint alleged damages consisting of "severe intimidation, shock, distress, humiliation, alarm, frustration, harassment, embarrassment, defamation and disruption" and expenditure of "sums of money for legal advice and representation...."

The Court of Appeal denied class certification again citing the general rule that class action is ill suited to mass tort litigation and the specific predominance of disparate issues of fact:

In general, mass tort actions for personal injuries are not appropriate for class- action treatment (Fed.Rules Civ.Proc., rule 23, Supplemental Notes of Advisory Com., reported in 28 U.S.C.A., rule 23, p. 299), in that the major elements in tort actions for personal injuries--liability, causation, and damages--may vary widely from claim to claim. Reluctance to extend class-action treatment to mass torts governs even those types of claims which necessarily contain common questions of law and fact. This is most clearly seen in airplane accident causes, where, although the injuries indubitably possess a common origin, courts decline to adjudicate such causes as class actions. [Citations.] Rather, consolidation of actions is the preferred procedure for disposition of such causes. The reasons behind the reluctance to process mass torts as class actions are twofold: first, the great importance of tort claims for personal injuries to the claimants themselves and the consequent desire of claimants to be represented by counsel of their own choosing rather than by strangers, and, second, the wide disparity in damages that ordinarily arises from such claims. And once we leave those types of mass torts which necessarily involve common causation, the issues become further diversified by individual causation. (Rose v. Medtronics, Inc., supra, 107 Cal.App.3d at pp. 154-155, 166 Cal.Rptr. 16.)

Again on the issue of individual damages the Court of Appeal stressed that class action would be inappropriate:

The injury alleged in each of the first six causes of action is "severe intimidation, shock, distress, humiliation, alarm, frustration, harassment, embarrassment, defamation and disruption...." Perhaps no cause of action is less susceptible to a class action than one for infliction of emotional distress. Recovery in each case necessarily depends on the particular characteristics of each plaintiff. Every plaintiff will have a different degree of susceptibility and emotional reaction to the conduct in question. If the legal issues were common to all class members, the individual right of each member to damages and the extent of those damages would have to be separately litigated. While each class member is similarly situated in that each received the letters in question, each member must establish his or her right to recover on the basis of facts peculiar to his or her own case. A class action is inappropriate in such a case. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 707-708, 69 Cal.Rptr. 724, 433 P.2d 732; Chance v. Superior Court (1962) 58 Cal.2d 275, 285, 23 Cal.Rptr. 761, 373 P.2d 849.)

The California courts commonly look to the federal decisions under class action Federal Rule of Civil Procedure, Rule 23. The rules themselves, Code of Civil Procedure, Section 382 and Federal Rule 23 are very different in their content, Rule 23 is detailed and Section 382 is without detail. And there are significant subject matter where the California Courts do not follow the federal rule, for example, on notice to class member to assure their right to opt out. The United States Supreme Court is strict per the Eisen line of cases, while California is more liberal, rejecting Eisen as not due process based but based on considerations unique to Rule 23. However, an important development in the federal law that is pertinent here, and which may portend a similar development in the law of California, is a trend toward making class action available in mass tort cases.

In In re A. H. Robbins Co., 880 F.2d 709 (4th Cir. 1989) the Court of Appeal upheld certification of a product liability class in re the Dalkon Shield IUD alleging that the manufacturer's insurer was liable as a joint tortfeasor. In Moore's analysis of the case, Professor Moore makes reference to the trend as follows: "The court of appeals affirmed, holding that mass tort actions may be certified pursuant to Rule 23 when the requisites to class certification are present. Although certification of mass tort actions was originally disfavored, on the theory that the existence of non-common issues would in practice dissolve the class action into multiple individual lawsuits, the emerging trend has been to construe Rule 23 liberally in light of the Federal Rules' purpose to secure the just, speedy and inexpensive determination of every action. Accordingly, the court determined that mass tort actions may be certified under the Federal Rules. Certiorari was denied, 110 S. Ct. 377, 107 L. Ed. 2d 362 (1989). See Moore's Federal Practice, Rule 23, Supp., 23-165.

Elsewhere, Professor Moore commented: "Under some circumstances a mass tort case may be ideal for class action treatment..." Id at Rule 23, 23-246. Professor Moore states "Although class actions may be particularly appropriate as a means of vindicating statutory rights, they have also proven useful in other types of litigation, such as the mass tort case." Moore's, supra, at 23-326. The cases cited by Moore for this proposition were Jenkins v. Raymark, 782 F.2d 486 (5th Cir. 1986) asbestos-related litigation in which a class was certified for the purpose of litigating the "state of the art" defense among other common issues. Also In re School Asbestos Litigation 789 F. 2d 996 (3rd Cir. 1986) upholding certification of an opt-out class to litigate property damage claims. The supplement to Moore's stresses the fact that these were properly damage cases as follows:

Class actions are historically disfavored in mass tort cases, partly because concentrating individual damage suits in one forum creates great difficulty, and partly because individual plaintiffs suffering personal injuries should be able to select their own forum and counsel. Here however, these objections were mostly theoretical, since plaintiffs were suing for property damage and the case would most likely end in settlement.

Also cited was In re Agent Orange Product Liability Litigation 100 FRD 718 (ED NY 1983). Moore's supplement also refers Wehner v. Syntex, 117 F.R.D. 641 (N.D. Cal. 1987) a dioxin case brought on behalf of a class of persons living in proximity to specified sites. A question of fact common to all members of the class was presented as to the nature of dioxin, and a common legal question existed as to an issue of statutory construction. Because the claims of all class members turned on the negligence of the defendants, the typicality requirement was met. Significantly here, the court held that the action was maintainable as a class action in large part because plaintiffs would be economically precluded from bringing individual actions. As will also be significant below, the court in addition ordered notice of class members, including notice of the right to opt out. Moore's, Supplement at 23-336.

Professor Moore states that Rule 23 (A) "has been read to include plaintiff classes, even those asserting individual tort damage claims. [Footnoting Petition of Gabel 350 F. Supp 624 (CD Cal 1972) and Hernandez v. Motor US Vessel Skyward 61 FRD 558 (SD Fla 1974)] But [Moore continues] most courts have found clause (A) inapplicable in actions for money damages. [Citing to my Bendectin case, 749 F2d 300 (6th Cir. 1984) and McDonnell Douglas Corp v. United States Dist. Court 523 F.2d 1083 (9th Cir. 1975) wrongful death claims arising our of an airplane crash.]"

III. SPECIFIC PROBLEMS WITH OBTAINING CERTIFICATION AND MANAGING A CLASS ACTION.

There are a couple of reasons for thinking from the very outset about the problems you (as an attorney) will face in obtaining certification and in managing the class once certified. One good reason is so you can frame your class complaint so as to anticipate and avoid the problems which have resulted in other cases being denied certification or once certified. If the class complaint describes a class or class remedies which have been held previously unsuitable for class treatment, we may be setting ourselves up to fail. Also, since as Jim Butler used to say: "You don't lose money on the cases you don't take," you may want to consider the risks in deciding whether to go forward.

My purpose is not only to point out the problems, it is to help you find solutions so that the complaint you file may serve you in maximizing your chances for certification. Bringing the problems to your attention is for the purpose of getting your input on the best was to deal with the problems, since the pleadings may determine whether the class litigation will serve your purposes or not.

Dealt with Together: the Problems of Disparate Issues of Fact and Difficulties Providing Notice to the Class and Divvying the Recovery.

The three potential problems identified above arise at three different stages in the class proceedings, however, since the simple resolution of one may impact on the options for resolving the others, these issues are dealt with together.

The Problem of Disparate Issues of Fact.

Witkin, Bender, and Moore's all describe the traditional abhorrence of class treatment of mass tort litigation. The California case law suggests a steep uphill battle to obtain certification; the federal case law, often followed in California, suggests a mixed trend toward permitting class action in selected mass tort cases. The solution to the problem is to identify why the abhorrence, attempt to deal with it in advance, distinguish the pleadings in your case from those which have failed, or attempt to fit your case within solutions which have been paved by others.

Why the abhorrence of class action in mass disaster litigation? First, the Courts are concerned that the disparate issues of fact from case to case within the class will cause the class litigation to devolve into individual litigation and defeat the purpose of the class to promote judicial economy. Second, individual tort claimants often want to maintain control of their own litigation and prosecute it by counsel of their own choice.

The greatest problem the courts have had traditionally with certifying class actions in mass tort litigation was the first above identified, to wit, the problem of overwhelming disparate issues. One solution adopted in other cases has been to request certification of the class only on the common issues, leaving the disparate issues for individual trials. In Gabel v. Hughes Aircraft Corp. 350 F. Supp 624 (CD Cal. 1972) for example, the Court fashioned a class action for the determination of liability in the aircraft product liability litigation, leaving the damage issues to be tried separately. The Gabel case was followed in Hernandez v Motor Vessel Skyward, supra, in which a class action was certified to determine the single issue of negligence in the preparation of food and water, leaving for separate trials the issues of proximate cause, adequacy of medical treatment, contract liability and damages.

Some courts have rejected this concept rationalizing that having just one jury of 6 or 12 individuals deciding on issues of liability which might affect tens of thousands if not millions of individuals is to limiting and risky a proposition. This issue relates to the two other issues identified above, the requirement that the individual class members be provided with notice of the class action and an opportunity to opt out, and the question of how the fund recovered will be distributed to the class members. One potential solution to the notice problem is to request that the Court permit notification by publication. Publication has been ordered as the means of notice when it is the only reasonable and economic means of providing notice.

IV. CLASS ALLEGATIONS

The object of the Complaint must be to satisfy the criteria for class treatment and distinguish this case from the attempted mass tort class actions which in the past have failed. The Complaint must also state the substantive theories of action.

Tentative List of Allegations

1. Designate action as class action in caption.
2. Plaintiff brings the action on behalf of self and all other persons similarly situated.
3. Describe class or specifying facts from which class can be ascertained.
4. Show well defined community of interest in questions of law and fact among potential class members, specifying any common issues to be litigated.
5. Specify facts that illustrate the superiority of the class action as the method for fair and efficient adjudication of the controversy.
a. Class so numerous that joinder is impractical.
b. Individual damages are so small that individual actions or other individual remedies are impractical.
c. Class members lack the wealth to initiate individual suits.
d. Legal issues are so arcane that obtaining private counsel is impractical.
e. Burden imposed on judicial system by multiple actions would outweigh any burdens imposed on system by class action.
f. Multiple actions would result in inconsistent standards of conduct for the defendant.
g. Individual action would have practical effect of disposing of or impairing interests of other members of class.
h. Public interest would be served by obtaining definitive answers to questions posed by case.
6. Specify facts to show suitability of each named plaintiff or defendant to represent class Plaintiff or defendant has claims or defenses typical of class members. Interests co- extensive. 7. Plaintiff or defendant will fairly represent interests of the class.
8. Non-Class Action Allegations, Causes of Action.
a. Who are the Plaintiffs
b. Who are the Defendants/Corporation other status/Place of Incorporation/principal place of business
c. Doe Allegations, Distributors
d. Respondeat Superior Allegations?
e. Conspiracy/Concert of Action Allegations.
f. Statute of Limitations
g. Negligence
h. Proximate Cause.
i. Compensatory Damages.
j. Punitive Damages.

V. CONCLUSION

There are a number of potentially serious problems with obtaining class certification in mass tort litigation and a number of conceivable solutions to the problems. Is there an ascertainable class? Are the class members identifiable? Can the class members be located and notified of the class action and their right to opt out? Will the Court permit us to notify the class by publication? Is there a predominance of common issues of fact or law? Will it be necessary to bifurcate causation and damages? Will the Court permit bifurcation, or, will the court deem the disparate issues to require that certification be denied? Can the Class be maintained against multiple defendants (where present)? Might the class be broken down into sub-classes by defendant?

It has been said, "Don't tell me why it can't work -- tell me how to make it work." We I hope that this has provided you with an accurate look at the potential problems that may be faced in fashioning a class action, while at the same time providing creative potential solutions to the problems. Obviously, it is important to deal with the problems at the outset, especially in the complaint, if you are to provide the best chance for the litigation to succeed. Good luck!! You may download the foregoing article and print it for personal use.