reversing the district court’s order to grant the defendant’s motion for bail partly because a potentially three-day extradition hearing was not unusually long and because the court did “not believe the-normal passage of time inherent in the litigation process constitutes a ‘special circumstance’”
How later courts described this case
- reversing the district court’s order to grant the defendant’s motion for bail partly because a potentially three-day extradition hearing was not unusually long and because the court did “not believe the-normal passage of time inherent in the litigation process constitutes a ‘special circumstance’”
- specifically declining to hold conflicting substantive state laws destroy commonality while holding same conflicts torpedo predominance requirement
Written by the judges who cited it.
The opinion
Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
5-10-1996
Georgine v. Amchem Prod Inc
Precedential or Non-Precedential:
Docket 94-1925,94-1927,94-1928,94-1929
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"Georgine v. Amchem Prod Inc" (1996). 1996 Decisions. Paper 175.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/175
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________________________________
NOS. 94-1925, 94-1927, 94-1928, 94-1929, 94-1930, 94-1931,
94-1932, 94-1960, 94-1968, 94-2009, 94-2010, 94-2011,
94-2012, 94-2013, 94-2066, 94-2067, 94-2068, 94-2085, 95-1705
_______________________________________________
ROBERT A. GEORGINE; LAVERNE WINBUN, EXECUTRIX OF THE ESTATE
OF JOSEPH E. WINBUN, DECEASED, AND IN HER OWN RIGHT; AMBROSE
VOGT, JR.; JOANNE VOGT, HIS WIFE; CARLOS RAVER; DOROTHY M.
RAVER, HIS WIFE; TIMOTHY MURPHY; GAY MURPHY, HIS WIFE; TY T.
ANNAS; ANNA MARIE BAUMGARTNER, EXECUTRIX OF THE ESTATE OF
JOHN A. BAUMGARTNER, DECEASED; NAFSSICA KEKRIDES,
INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF PAVLOS
KEKRIDES, DECEASED; WILLIAM H. SYLVESTER, EXECUTOR AND
PERSONAL REPRESENTATIVE OF THE ESTATE OF
FRED A. SYLVESTER, DECEASED
v.
AMCHEM PRODUCTS, INC.; A.P. GREEN INDUSTRIES, INC.;
ARMSTRONG WORLD INDUSTRIES, INC.; CERTAINTEED CORPORATION;
C.E. THURSTON & SONS, INC.; DANA CORPORATION; FERODO
AMERICA, INC.; FLEXITALLIC, INC.; GAF BUILDING MATERIALS,
INC.; I.U. NORTH AMERICA, INC.; MAREMONT CORPORATION;
**ASBESTOS CLAIMS MANAGEMENT CORP; NATIONAL SERVICES INDUSTRIES,
INC.; NOSROC CORPORATION; PFIZER, INC.; QUIGLEY COMPANY, INC.;
SHOOK & FLETCHER INSULATION COMPANY; T&N, PLC;
**UNION CARBIDE CORPORATION; UNITED STATES GYPSUM COMPANY
v.
ADMIRAL INSURANCE COMPANY; AFFILIATED FM INSURANCE COMPANY;
AIU INSURANCE COMPANY; ALLIANZ INSURANCE COMPANY; ALLIANZ
UNDERWRITERS INSURANCE COMPANY, INDIVIDUALLY AND AS
SUCCESSOR TO ALLIANZ UNDERWRITERS, INC.; ALLSTATE INSURANCE
COMPANY, AS SUCCESSOR TO NORTHBROOK EXCESS AND SURPLUS
INSURANCE COMPANY; AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA;
AMERICAN CENTENNIAL INSURANCE COMPANY; AMERICAN HOME
ASSURANCE COMPANY; AMERICAN MOTORISTS INSURANCE COMPANY;
AMERICAN RE-INSURANCE COMPANY; APPALACHIAN INSURANCE COMPANY
OF PROVIDENCE; ARGONAUT INSURANCE COMPANY; ATLANTA INTERNATIONAL
INSURANCE COMPANY; CAISSE INDUSTRIELLE D'ASSURANCE MUTUELLE;
C.E. HEATH COMPENSATION AND LIABILITY INSURANCE COMPANY AS
SUCCESSOR TO EMPLOYERS' SURPLUS LINE INSURANCE COMPANY;
CENTENNIAL INSURANCE COMPANY; CENTRAL NATIONAL INSURANCE
COMPANY OF OMAHA; CHICAGO INSURANCE COMPANY; CITY INSURANCE
COMPANY; COLONIA VERSICHERUNG AKTIENGESELLSCHAFT; COLUMBIA
CASUALTY COMPANY; COMMERCIAL UNION INSURANCE COMPANY,
AS SUCCESSOR TO COLUMBIA CASUALTY COMPANY, EMPLOYERS COMMERCIAL
UNION INSURANCE COMPANY, EMPLOYERS COMMERCIAL UNION INSURANCE
COMPANY OF AMERICA, AND EMPLOYERS' LIABILITY ASSURANCE
CORPORATION LIMITED; COMPAGNIE EUROPEENNE DE REASSURANCES;
THE CONSTITUTION STATE INSURANCE COMPANY; CONTINENTAL CASUALTY
COMPANY; EMPLOYERS MUTUAL CASUALTY COMPANY; EVANSTON
INSURANCE COMPANY; EXECUTIVE RE INDEMNITY INC., AS SUCCESSOR
TO AMERICAN EXCESS INSURANCE COMPANY; FEDERAL INSURANCE
COMPANY; GENERAL REINSURANCE CORPORATION; GIBRALTAR
CASUALTY COMPANY; GOVERNMENT EMPLOYEES INSURANCE COMPANY;
GRANITE STATE INSURANCE COMPANY; HIGHLANDS INSURANCE COMPANY;
THE HOME INDEMNITY COMPANY; THE HOME INSURANCE COMPANY;
HOUSTON GENERAL INSURANCE COMPANY; HUDSON INSURANCE COMPANY;
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA; INTERSTATE
FIRE & CASUALTY COMPANY; JEFFERSON INSURANCE COMPANY
OF NEW YORK; LANDMARK INSURANCE COMPANY; LA PRESERVATRICE
FONCIERE TIARD, INDIVIDUALLY AND AS SUCCESSOR TO LA
FONCIERE ASSURANCES TRANSPORTS ACCIDENTS AND LA PRESERVATRICE;
LE SECOURS; LEXINGTON INSURANCE COMPANY; LILLOISE D'ASSURANCES,
AS SUCESSOR TO LILLOISE D'ASSURANCES ET DE REASSURANCES;
LUMBERMENS MUTUAL CASUALTY COMPANY; MARYLAND
CASUALTY COMPANY; MICHIGAN MUTUAL INSURANCE COMPANY;
MUTUELLE GENERALE FRANCAISE; NATIONAL AMERICAN
INSURANCE COMPANY OF CALIFORNIA, AS SUCCESSOR TO THE STUYVESANT
INSURANCE COMPANY; NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PA; NORTHBROOK INDEMNITY COMPANY; NORTH STAR
REINSURANCE CORPORATION; OLD REPUBLIC INSURANCE COMPANY;
PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY;
THE PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA;
PRUDENTIAL REINSURANCE COMPANY; PURITAN INSURANCE COMPANY,
INDIVIDUALLY AND AS SUCCESSOR TO THE MANHATTAN FIRE AND
MARINE INSURANCE COMPANY; RANGER INSURANCE COMPANY; REPUBLIC
INSURANCE COMPANY; SAFECO INSURANCE COMPANY OF AMERICA;
SAFETY NATIONAL CASUALTY CORPORATION, AS SUCCESSOR
TO SAFETY MUTUAL CASUALTY CORPORATION; ST. PAUL FIRE AND
MARINE INSURANCE COMPANY, INDIVIDUALLY AND AS SUCCESSOR
TO BIRMINGHAM FIRE INSURANCE COMPANY; ST. PAUL GUARDIAN
INSURANCE COMPANY; STONEWALL INSURANCE COMPANY; STEONEWALL
SURPLUS LINES INSURANCE COMPANY; SUN ALLIANCE AND LONDON
INSURANCE PLC; TOKIO MARINE & FIRE INSURANCE COMPANY, LIMITED;
THE TRAVELERS INDEMNITY COMPANY; THE TRAVELERS INSURANCE
COMPANY; UNIGARD SECURITY INSURANCE COMPANY, AS SUCCESSOR TO
UNIGARD MUTUAL INSURANCE COMPANY; UNION DES ASSURANCES DE PARIS;
YOSEMITE INSURANCE COMPANY; EURINCO ALLEGEMEINE
VERSICHERUNGS, A.G.; F&M INSURANCE COMPANY, LTD.; LA CONCORDE;
LEXINGTON INSURANCE COMPANY, LTD.; L'UNION ATLANTIQUE S.A.
D'ASSURANCES; N.V. ROTTERDAMSE ASSURANTIEKAS PER MEES & ZOONEN;
NATIONAL CONTINENTAL INSURANCE COMPANY AS SUCCESSOR TO
AMERICAN STAR INSURANCE COMPANY; NEWFOUNDLAND AMERICAN
INSURANCE CO., LTD.; NEW HAMPSHIRE INSURANCE COMPANY, LTD.;
PHOENIX ASSURANCE; RELIANCE INSURANCE COMPANY; SIRIUS (UK)
INSURANCE COMPANY, PLC; TRIDENT GENERAL INSURANCE COMPANY;
GREAT AMERICAN INSURANCE COMPANY; AMERICAN EMPIRE SURPLUS LINES
INSURANCE COMPANY, AS AUTHORIZED AGENT ON BEHALF OF TRANSPORT
INDEMNITY COMPANY
*George Windsor; Constance Windsor, Michael Windsor
and Karen Windsor,
Appellants in Nos. 94-1925/2009
*White Lung Association of New Jersey, National
Asbestos Victims Legal Action Organizing Committee,
the Oil, Chemical, and Atomic Workers International
Union, The Skilled Trades Association, Myles O'Malley,
Marta Figueroa, Robert Fiore, Roh Maher, and Lynn Maher,
(in her own behalf and as next friend for her minor
children, Jessica Marie Maher, Jamie Marion Maher, and
Jennifer Megan Maher),
Appellants in Nos. 94-1927/1968
*Richard R. Preston, Sr. and Louis C. Anderson,
Appellants in Nos. 94-1928/2013
*Albert and Margaret Hertler,
Appellants in No. 94-1929
*Richard E. Blanchard, D.D.S., Jack S. Boston,
James L. Anderson, Personal Representative of
Robert L. Anderson and Harrison O. McLeod,
Appellants in Nos. 94-1930/2066
*Iona Cunningham, as representative of the estate of
Charles Cunningham, and Twila Sneed,
Appellants in Nos. 94-1931/2010
*Aileen Cargile, Betty Francom, John Wong, John Soteriou,
Harold Hans Emmerich and Thomas Corey,
Appellants in Nos. 94-1932/2012
*William J. Golt, Sr. and Phyllis Golt,
Appellants in Nos. 94-1960/2011
*Joe and Lynne Dominguez,
Appellants in No. 94-2067
*Kathryn Toy, individually, and as representative
of the estate of Edward Toy,
Appellants in Nos. 94-2068
*John Paul Smith,
Appellant in No. 94-2085
*Casimir Balonis, Margaret Balonis and Shepard A. Hoffman,
Appellants in No. 95-1705
*(Pursuant to F.R.A.P. Rule 12(a))
**(Pursuant to Clerk's Order dated 11/9/94)
____________________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
D.C. Civ. No. 93-cv-00215
____________________________________________
Argued: November 21, 1995
Before: BECKER, GREENBERG, and WELLFORD,
0
Circuit Judges.
(Filed May 10, l996)
STEVEN J. COOPERSTEIN, ESQUIRE
Brookman, Rosenberg, Brown & Sandler
30 South 15th Street, 17th Floor
Philadelphia, PA 19102
Counsel for George Windsor, Constance Windsor,
Michael Windsor and Karen Windsor,
Appellants in Nos. 94-1925/2009
BRIAN L. WOLFMAN, ESQUIRE (ARGUED)
ALAN B. MORRISON, ESQUIRE
ALAN T.L. SUN, ESQUIRE
Public Citizen Litigation Group
Suite 700, 2000 P Street, NW
Washington, DC 20036
Counsel for White Lung Association of New Jersey, National
Asbestos Victims Legal Action Organizing Committee,
The Oil, Chemical, and Atomic Workers International
Union, The Skilled Trades Association, Myles O'Malley,
Marta Figueroa, Robert Fiore, Roh Maher, and Lynn Maher,
(on her own behalf and as next friend for her minor
children, Jessica Marie Maher, Jamie Marion Maher, and
Jennifer Megan Maher), Appellants in Nos. 94-1927/1968
LAURENCE H. TRIBE, ESQUIRE (ARGUED)
BRIAN S. KOUKOUTCHOS, ESQUIRE
0
Honorable Harry W. Wellford, United States Circuit Judge for the
Sixth Circuit, sitting by designation.
JONATHAN S. MASSEY, ESQUIRE
1575 Massachusetts Avenue
Cambridge, MA 02138-3800
BRENT M. ROSENTHALL, ESQUIRE
Counsel of Record
FREDERICK M. BARON
STEVE BAUGHMAN
BARON & BUDD, P.C.
3102 Oak Lawn Avenue Suite 1100
Dallas, TX 75219-4281
Counsel for Richard R. Preston, Sr. and Louis C. Anderson,
Appellants in Nos. 94-1928/2013
JOSEPH D. SHEIN, ESQUIRE
Shein, Johnson & Berezofsky
235 South 17th Street
Philadelphia, PA 19103
Counsel for Albert and Margaret Hertler,
Appellants in No. 94-1929
MARLA A. MACEY, ESQUIRE
TIMOTHY J. HOGAN, ESQUIRE
Law Office of Peter G. Angelos
John Wanamaker Building
100 Penn Square East
Suite 1000, 10th Floor
Philadelphia, PA 19107
Counsel for Richard E. Blanchard, D.D.S.,
Jack S. Boston, James L. Anderson, Personal
Representative of Robert L. Anderson and
Harrison O. McLeod, Appellants in Nos. 94-1930/2066
STEVEN KAZAN, ESQUIRE
AARON SIMON, ESQUIRE
Kazan, McClain, Edises, Simon & Abrams
171 Twelfth Street, Suite 300
Oakland, CA 94607
BRAD SELIGMAN, ESQUIRE (ARGUED)
JOCELYN LARKIN, ESQUIRE
DONNA RYU, ESQUIRE
1049 Key Route Boulevard
Albany, CA 94706
DAVID RUDOVSKY, ESQUIRE
Kairys, Rudovsky, Kalman & Epstein
924 Cherry Street, 5th Floor
Philadelphia, PA 19107
Counsel for
Iona Cunningham, as representative
of the estate of Charles Cunningham, and Twila Sneed,
Appellants in Nos. 94-1931/2010 and
Aileen Cargile, Betty Francom, John Wong, John Soteriou,
Harold Hans Emmerich and Thomas Corey,
Appellants in Nos. 94-1932/2012
JOSHUA M. SPIELBERG, ESQUIRE
Tomar, Simonoff, Adourian & O'Brien
41 South Haddon Avenue
Haddonfield, NJ 08033
Counsel for William J. Golt, Sr. and Phyllis Golt,
Appellants in Nos. 94-1960/2011
DAVID R. DONADIO, ESQUIRE
Brayton, Gisvold & Harley
999 Grant Avenue
P.O. Box 2109
Novato, CA 94948
Counsel for Joe and Lynne Dominguez,
Appellants in No. 94-2067
DOUGLAS B. CANFIELD, ESQUIRE
Jacobs & Crumplar
2 East 7th Street
P.O. Box 1271
Wilmington, DE 19899
Counsel for Kathryn Toy, individually, and as
representative of the estate of Edward Toy,
Appellants in Nos. 94-2068
JAMES L. FERRARO, ESQUIRE
Ferraro & Associates
200 South Biscayne Boulevard
3800 First Union Financial Center
Miami, FL 33131-2310
Counsel for John Paul Smith,
Appellant in No. 94-2085
SHEPARD A. HOFFMAN, ESQUIRE
Suite 901
301 North Charles Street
Baltimore, MD 21201
Counsel for Casimir Balonis, Margaret Balonis,
and Shepard H. Hoffman, Appellants in No. 95-1705
GENE LOCKS, ESQUIRE (ARGUED)
JONATHAN MILLER, ESQUIRE
Greitzer & Locks
1500 Walnut Street, 20th Floor
Philadelphia, PA 19102
RONALD L. MOTLEY, ESQUIRE
JOSEPH F. RICE, ESQUIRE
Ness, Motley, Loadholt, Richardson & Poole
151 Meeting Street, Suite 600
Charleston, SC 29402
L. JOEL CHASTAIN, ESQUIRE
DESA A. BALLARD, ESQUIRE
Ness, Motley, Loadholt, Richardson & Poole
P.O. Box 365
Barnwell, SC 29812
Counsel for Appellees, Robert A. Georgine; Laverne Winbun,
Executrix of the estate of Joseph E. Winbun, deceased, and in her
own right; Ambrose Vogt, Jr.; Joanne Vogt, his wife; Carlos
Raver; Dorothy M. Raver, his wife; Timothy Murphy; Gay Murphy,
his wife; Ty T. Annas; Anna Marie Baumbartner, Executrix of the
Estate of John A. Baumgartner, deceased; Nafssica Kekrides,
individually and as administratrix of the estate of Pavlos
Kekrides, deceased; William H. Sylvester, Executor and Personal
Representative of the estate of Fred A. Sylvester, deceased
JOHN D. ALDOCK, ESQUIRE (ARGUED)
WENDY S. WHITE, ESQUIRE
ELIZABETH RUNYAN GEISE, ESQUIRE
RICHARD M. WYNER, ESQUIRE
HEATHER H. ANDERSON, ESQUIRE
Shea & Gardner
1800 Massachusetts Avenue, NW
Washington, DC 20036
JOHN G. GAUL, ESQUIRE
LAWRENCE FITZPATRICK, ESQUIRE
Center for Claims Resolution
504 Carnegie Center - 2nd Floor
Princeton, NJ 08540
Counsel for Appellees, Amchem Products, Inc.; A.P. Green
Industries, Inc.; Armstrong World Industries, Inc.;
Certainteed Corporation; C.E. Thurston & Sons, Inc.; Dana
Corporation; Ferodo America, Inc.; Flexitallic, Inc.; GAF
Building Materials, Inc.; I.U. North America, Inc.; Maremont
Corporation; **Asbestos Claims Management Corp; National Services
Industries, Inc.; Nosroc Corporation; Pfozer, Inc.; Quigley
Company, Inc.; Shook & Fletcher Insulation Company; T&N, PLC;
**Union Carbide Corporation; United States Gypsum Company
STEPHEN F. BROCK, ESQUIRE
Manta & Welge
2005 Market Street
One Commerce Square, 37th Floor
Philadelphia, PA 19103
JOSEPH T. MALLON, ESQUIRE
Dunn, Haase, Sullivan, Mallon, Cherner & Broadt
216 South Orange Street
Media, PA 19063
R. JEFF CARLISLE, ESQUIRE
AARON L. BOWERS, ESQUIRE
Lynberg & Watkins
888 South Figueroa Street
International Tower Plaza, 16th Floor
Los Angeles, CA 90017-2516
ELIT R. FELIX, II, ESQUIRE
Margolis, Edelstein & Scherlis
Sixth & Walnut Streets
The Curtis Center, 4th Floor
Philadelphia, PA 19106
JAMES J. RODGERS, ESQUIRE
Dilworth, Paxson, Kalish & Kauffman
1735 Market Street
3200 The Mellon Bank Center
Philadelphia, PA 19103
WILSON M. BROWN, III
Drinker, Biddle & Reath
1345 Chestnut Street
Philadelphia National Bank Building
Philadelphia, PA 19107-3496
THOMAS C. DeLORENZO, ESQUIRE
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street
Philadelphia, PA 19103
ROBERT R. REEDER, ESQUIRE
WILLIAM P. SHELLEY, ESQUIRE
Cozen & O'Connor
The Atrium
1900 Market Street
Philadelphia, PA 19103
LAWRENCE M. SILVERMAN, ESQUIRE
Silverman, Coopersmith, Hillman & Frimmer
Two Penn Center Plaza, Suite 910
Philadelphia, PA 19102
JOHN P. O'DEA, ESQUIRE
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103
DANIEL P. LYNCH, ESQUIRE
Timby, Brown & Timby
1818 Market Street, Suite 3100
Philadelphia, PA 19103
MARC I. BRESSMAN, ESQUIRE
Budd, Larner, Gross, Rosenbaum,
Greenberg & Sade
200 Lake Drive East
Woodland Falls Corporate Park
Suite 100
Cherry Hill, NJ 08002
DAVID J. D'ALOIA, ESQUIRE
Saiber, Schlesinger, Satz & Goldstein
One Gateway Center, Suite 1300
Newark, NJ 07102-5311
ALLAN C. MOLOTSKY, ESQUIRE
Post & Schell
1800 JFK Boulevard, 19th Floor
Philadelphia, PA 19103
THERESA W. HAJOST, ESQUIRE
Chadbourne & Parke
1101 Vermont Avenue, NW, Suite 900
Washington, DC 20005
LISA B. ZUCKER, ESQUIRE
German, Gallagher & Murtagh
200 So. Broad Street, 5th Floor
Philadelphia, PA 19102
RUDOLPH GARCIA, ESQUIRE
Saul, Ewing, Remick & Saul
3800 Centre Square West
Philadelphia, PA 19102
JOSEPH L. RUBY, ESQUIRE
Wiley, Rein & Fielding
1776 K Street, NW
Washington, DC 20006
Counsel for Remaining Appellees
DAN MORALES, ESQUIRE
Attorney General
JORGE VEGA, ESQUIRE
First Assistant Attorney General
LAQUITA A. HAMILTON, ESQUIRE
Deputy Attorney General for Litigation
PAUL ELLIOTT, ESQUIRE
Assistant Attorney General
Chief, Natural Resources Division
BRIAN E. BERWICK, ESQUIRE
Assistant Attorney General
Office of Attorney General of Texas
Environmental Protection Division
Natural Resources Division
P.O. Box 12548
Austin, Texas 78711-2548
Counsel for State of Texas-Amicus Curiae
ARTHUR H. BRYANT, ESQUIRE
LESLIE A. BRUECKNER, ESQUIRE
Trial Lawyers for Public Justice
Suite 800
1717 Massachusetts Avenue, NW
Washington, DC 20036
ROBERTA B. WALBURN, ESQUIRE
Robins, Kaplan, Miller, & Ciresi
2800 LaSalle Plaza
800 La Salle Avenue
Minneapolis, MN 55402
Counsel for Asbestos Victims of America and
Trial Lawyers for Public Justice-Amicus Curiae
W. DONALD McSWEENY, ESQUIRE
ROBERT H. RILEY, ESQUIRE
CATHERINE MASTERS EPSTEIN, ESQUIRE
Schiff, Hardin & Waite
7200 Sears Tower
Chicago, IL 60606
JAMES D. MILLER, ESQUIRE
King & Spalding
1730 Pennsylvania Avenue, NW
Washington, DC 20006
PHILIP McWEENY, ESQUIRE
DAVID L. GRAY, ESQUIRE
Owens-Illinois, Inc.
One SeaGate
Toledo, Ohio 43666
Counsel for Owens-Illinois, Inc.-Amicus Curiae
ROBERT G. VIAL, ESQUIRE
1717 Main Street, Suite 4400
Dallas, Texas 75201
GORDON S. RATHER, JR., ESQUIRE
200 W. Capitol Avenue, Suite 2200
Little Rock, Arkansas 72201
Counsel for American Board of Trial Advocates-Amicus Curiae
__________________________
OPINION OF THE COURT
__________________________
BECKER, Circuit Judge.
Every decade presents a few great cases that force the
judicial system to choose between forging a solution to a major
social problem on the one hand, and preserving its institutional
values on the other. This is such a case. It is a class action
that seeks to settle the claims of between 250,000 and 2,000,000
individuals who have been exposed to asbestos products against
the twenty companies known as the Center for Claims Resolution
(CCR).0 Most notably, the settlement would extinguish asbestos-
related causes of action of exposed individuals who currently
suffer no physical ailments, but who may, in the future, develop
possibly fatal asbestos-related disease. These "futures claims"
of "exposure-only" plaintiffs would be extinguished even though
they have not yet accrued.
0
The CCR Companies are Amchem Products, Inc.; A.P. Green
Industries, Inc.; Armstrong World Industries, Inc.; Asbestos
Claims Management Corp. (formerly known as National Gypsum Co.);
CertainTeed Corp.; C.E. Thurston and Sons, Inc.; Dana Corp.;
Ferodo America, Inc.; Flexitallic Inc.; GAF Building Materials
Corp.; I.U. North America, Inc.; Maremont Corp.; National
Services Industries, Inc.; Nosroc Corp.; Pfizer Inc.; Quigley
Co., Inc.; Shook & Fletcher Insulation Co.; T&N, plc; Union
Carbide Corp.; and United States Gypsum Co.
All of the CCR defendants stopped manufacturing
asbestos products circa 1975. The assets of the CCR companies,
together with their insurance coverage, represent a significant
portion of the funds that will ever be available to pay asbestos-
related claims.
The settlement, memorialized in a 106 page document,
was not crafted overnight. Indeed, more than a case, this is a
saga, reflecting the efforts of creative lawyers and an extremely
able district judge to deal with the asbestos litigation
explosion. Asbestos litigation has burdened the dockets of many
state and federal courts, and has particularly challenged the
capacity of the federal judicial system. The resolution posed in
this settlement is arguably a brilliant partial solution to the
scourge of asbestos that has heretofore defied global management
in any venue.
However, against the need for effective resolution of
the asbestos crisis, we must balance the integrity of the
judicial system. Scholars have complained that the use of class
actions to resolve mass toxic torts, particularly those involving
futures claims, improperly involves the judiciary in the crafting
of legislative solutions to vexing social problems. These
criticisms are not merely abstract; they are levied in terms of
the fundaments of the federal judicial polity: jurisdiction,
justiciability, notice, and the requirements of Federal Rule of
Civil Procedure 23.
This opinion addresses appeals of the district court's
September 22, 1994, preliminary injunction, which prohibits
members of the so-called Georgine class from pursuing asbestos-
related personal injury claims in any other court pending the
issuance of a final order in this case. The appellants
("objectors") are three groups of individuals with aligned
interests who challenge the district court's injunction: the
"Windsor Group"; the New Jersey "White Lung Group"; and the
"Cargile Group" (mesothelioma victims from California). The
objectors challenge the district court's jurisdiction (both
personal and subject matter) over the underlying class action,
the justiciability of the case, the adequacy of class notice, and
the propriety of class certification under Federal Rule of Civil
Procedure 23.
Although we have serious doubts as to the existence of
the requisite jurisdictional amount, justiciability, adequacy of
notice, and personal jurisdiction over absent class members, we
will, for reasons explained below, pass over these difficult
issues and limit our discussion to the class certification
issues. We conclude that this class meets neither the 23(a)
requirements of typicality and adequacy of representation, nor
the 23(b)(3) requirements of predominance and superiority. In In
re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig.,
55 F.3d 768 (3d Cir.) [Hereinafter GM Trucks], cert. denied sub
nom. General Motors Corp. v. French, 116 S. Ct. 88 (1995), we
held that, for settlement classes, the 23(a) requirements must be
applied as if the case were going to be litigated. We now hold
that, because the 23(b)(3) requirements protect the same
interests in fairness and efficiency as the 23(a) requirements,
and because "[t]here is no language in [Rule 23] that can be read
to authorize separate, liberalized criteria for settlement
classes," id. at 799, the 23(b)(3) criteria must also be applied
as if the case were to be litigated. While the better policy may
be to alter the class certification inquiry to take settlement
into account, the current Rule 23 does not permit such an
exception.
Examined as a litigation class, this case is so much
larger and more complex than all other class actions on record
that it cannot conceivably satisfy Rule 23. Initially, each
individual plaintiff's claim raises radically different factual
and legal issues from those of other plaintiffs. These
differences, when exponentially magnified by choice of law
considerations, eclipse any common issues in this case. In such
circumstances, the predominance requirement of Rule 23(b) cannot
be met. Furthermore, this amalgamation of factually and legally
different plaintiffs creates problematic conflicts of interest,
which thwart fulfillment of the typicality and adequacy of
representation requirements of Rule 23(a). Primarily, the
interests of the exposure only plaintiffs are at odds with those
of the presently injured: the former have an interest in
preserving as large a fund as possible while the latter seek to
maximize front-end benefits.
This class also fails Rule 23(b)'s superiority prong.
Even utilizing the management techniques pioneered by the Federal
Judicial Center, we do not see how an action of this magnitude
and complexity could practically be tried as a litigation class.
This problem, when combined with the serious fairness concerns
caused by the inclusion of futures claims, make it impossible to
conclude that this class action is superior to alternative means
of adjudication.
For the reasons we have preliminarily outlined, and
which we will now explain in depth, we will vacate the district
court's order certifying the plaintiff class and remand with
directions to decertify the class and vacate the injunction. We
recognize that our decision undermines the partial solution to
the asbestos litigation crisis. However, in doing so, we avoid a
serious rend in the garment of the federal judiciary that would
result from the Court, even with the noblest motives, exercising
power that it lacks. We thus leave legislative solutions to
legislative channels.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
Reciting the background facts and procedural history of
this case could consume pages by the dozen. This history is,
however, already well known. It has been chronicled in the
opinion of the district court, see Georgine v. Amchem Prods.,
Inc., 157 F.R.D. 246, 254-67 (E.D. Pa. 1994); in the Cornell Law
Review, see Symposium, Mass Tortes: Serving Up Just Desserts, 80
Cornell L. Rev. 811 (1995); and has even surfaced on the
Continuing Legal Education (CLE) circuit, see Legal Intelligencer
(Philadelphia), Jan 31, 1996, at 34 (announcing a CLE Course on
the "Lessons of Georgine").0 In short, the asbestos law world
0
In addition to the Cornell Law Review Symposium, numerous
articles have addressed the issues raised in this case. See,
e.g., John C. Coffee, Jr., Class Wars: The Dilemma of the Mass
Tort Class Action, 95 Colum. L. Rev. 1343 (1995) (arguing for
prudential limits on mass tort class actions and using this class
action as a case study); Richard A. Nagareda, Turning From Tort
to Administration, 94 Mich. L. Rev. 899 (1996) (discussing
judicial review of mass tort settlements and focusing in part on
knows this case backwards and forwards. We shall, therefore, set
forth only the essentials.
A. The Genesis of the Case
This case arises against the background of an asbestos
litigation crisis:
[This] is a tale of danger known in the
1930s, exposure inflicted upon millions of
Americans in the 1940s and 1950s, injuries
that began to take their toll in the 1960s,
and a flood of lawsuits beginning in the
1970s. On the basis of past and current
filing data, and because of a latency period
that may last as long as 40 years for some
asbestos related diseases, a continuing
stream of claims can be expected. The final
toll of asbestos related injuries is unknown.
Predictions have been made of 200,000
asbestos disease deaths before the year 2000
and as many as 265,000 by the year 2015.
The most objectionable aspects of
asbestos litigation can be briefly
summarized: dockets in both federal and
state courts continue to grow; long delays
are routine; trials are too long; the same
issues are litigated over and over;
transaction costs exceed the victims'
recovery by nearly two to one; exhaustion of
assets threatens and distorts the process;
and future claimants may lose altogether.
In re Asbestos Prods. Liab. Litig. (No. VI), 771 F. Supp. 415,
418-19 (J.P.M.L. 1991) (quoting Report of The Judicial Conference
Ad Hoc Committee on Asbestos, 1-3 (1991)) (footnote omitted).
Seeking solutions to the asbestos litigation crisis,
eight federal judges with significant asbestos experience wrote
this case); Note, And Justiciability for All?: Future Injury
Plaintiffs and the Separation of Powers, 109 Harv. L. Rev. 1066
(1996) (addressing the justiciability of futures claims).
to the Judicial Panel on Multidistrict Litigation ("MDL Panel"),
urging it to consolidate all the federal asbestos litigation in a
single district. These judges argued that consolidation would
"facilitate global settlements, and allow the transferee court to
fully explore . . . national disposition techniques such as
classes and sub-classes under Rule 23." Georgine, 157 F.R.D. at
265 (citation and internal quotations omitted). The MDL Panel
agreed, transferring all pending federal court asbestos cases
that were not yet on trial to the Eastern District of
Pennsylvania, and assigning them to Judge Charles R. Weiner for
consolidated pretrial proceedings. See In re Asbestos Prods.
Liab. Litig. (No. VI), 771 F. Supp. at 424.
After the MDL Panel transfer, steering committees for
the plaintiffs and defendants were formed and commenced global
settlement negotiations. Judge Weiner appointed two of the class
counsel in this case, Ronald Motley and Gene Locks, as co-chairs
of the Plaintiffs' Steering Committee. Counsel for CCR were
active participants on the Defendants' Steering Committee.
When these negotiations reached an impasse, class
counsel and CCR began negotiations to resolve CCR's asbestos
liability. After a year of discussions, the two sides reached a
settlement agreement, and then filed this class action.
B. Proceedings in the District Court
On January 15, 1993, the named plaintiffs filed a
complaint on behalf of a class consisting of (1) all persons
exposed occupationally or through the occupational exposure of a
spouse or household member to asbestos-containing products or
asbestos supplied by any CCR defendant, and (2) the spouses and
family members of such persons, who had not filed an asbestos-
related lawsuit against a CCR defendant as of the date the class
action was commenced.0 Five of the named plaintiffs allege that
they have sustained physical injuries as a result of exposure to
the defendants' asbestos products. Four named plaintiffs allege
0
The complaint defines the class as follows:
(a) All persons (or their legal
representatives) who have been exposed
in the United States or its territories
(or while working aboard U.S. military,
merchant, or passenger ships), either
occupationally or through the
occupational exposure of a spouse or
household member, to asbestos or to
asbestos-containing products for which
one or more of the Defendants may bear
legal liability and who, as of January
15, 1993, reside in the United States or
its territories, and who have not, as of
January 15, 1993, filed a lawsuit for
asbestos-related personal injury, or
damage, or death in any state or federal
court against the Defendant(s) (or
against entities for whose actions or
omissions the Defendant(s) bear legal
liability).
(b) All spouses, parents, children, and
other relatives (or their legal
representatives) of the class members
described in paragraph (a) above who
have not, as of January 15, 1993, filed
a lawsuit for the asbestos-related
personal injury, or damage, or death of
a class member described in paragraph
(a) above in any state or federal court
against the Defendant(s) (or against
entities for whose actions or omissions
the Defendant(s) bear legal liability).
that they have been exposed to the CCR defendants' asbestos-
containing products but have not yet sustained any asbestos-
related condition. On December 22, 1993, the settling parties
stipulated to the substitution of Robert A. Georgine for Edward
J. Carlough as the lead plaintiff, and the caption of the case
has been changed accordingly. See Georgine, 157 F.R.D. at 257
n.1. We thus refer to the plaintiff class as the Georgine class.
The complaint asserts various legal theories, including
(1) negligent failure to warn, (2) strict liability, (3) breach
of express and implied warranty, (4) negligent infliction of
emotional distress, (5) enhanced risk of disease, (6) medical
monitoring, and (7) civil conspiracy. Each plaintiff seeks
unspecified damages in excess of $100,000.
On the same day, the CCR defendants filed an answer,
denying the allegations of the plaintiffs' class action complaint
and asserting eleven affirmative defenses. Also on the same day,
the plaintiffs and defendants ("the settling parties") jointly
filed a motion seeking conditional class certification for
purposes of settlement accompanied by a stipulation of
settlement.0 Simultaneously, the settling parties concluded
another agreement: class counsel agreed to settle their
inventories of pending asbestos claims -- claims that were
0
Additionally, on January 15, the CCR defendants filed a third
party action against their insurers, seeking a declaratory
judgment that the insurers are liable for the costs of the
settlement. The insurance litigation is still pending in the
district court. See, e.g., Georgine v. Amchem Prods., Inc., No.
93-0215, 1994 WL 502475 (E.D. Pa. Sept. 2, 1994).
expressly excluded from the class action -- against the CCR
defendants for over $200 million.
The stipulation of settlement purports to settle all
present and future claims of class members for asbestos-related
personal injury or wrongful death against the CCR members that
were not filed before January 15, 1993. The stipulation
establishes an administrative procedure that provides
compensation for claimants meeting specified exposure and medical
criteria. If the exposure criteria are met, the stipulation
provides compensation for four categories of disease:
mesothelioma, lung cancer, certain "other cancers" (including
colon-rectal, laryngeal, esophageal, and stomach cancer), and
"non-malignant conditions" (asbestosis and bilateral pleural
thickening). The stipulation provides objective criteria for
medical diagnoses. For those claimants that qualify, the
stipulation fixes a range of damages that CCR will award for each
disease, and places caps both on the amount that a particular
victim may recover and on the number of qualifying claims that
may be paid in any given year.
Claimants found to have "extraordinary" claims can be
awarded more than the cap allows, but only a limited number of
claims (three percent of the total number of qualified
mesothelioma, lung cancer and "other cancer" claims, and up to
one percent of the total number of qualified "non-malignant
conditions" claims) can be found to be "extraordinary."
Furthermore, the total amount of compensation available to
victims with such claims is itself capped. Payment under the
settlement is not adjusted for inflation.
The stipulation does allow some claimants who qualify
for payment but are dissatisfied with the settlement offered by
CCR to pursue their claims in court. However, the stipulation
severely limits the number of claimants who can take advantage of
this option. Only two percent of the total number of
mesothelioma and lung cancer claims, one percent of "other
cancer" claims, and one-half of a percent of "non-malignant
conditions" claims from the previous year may sue in the tort
system. Although the plaintiffs are generally bound to the
settlement in perpetuity, the defendants are not so limited. Each
defendant may choose to withdraw from the settlement after ten
years.
The claims asserted by the exposure only plaintiffs --
claims for increased risk of cancer, fear of future asbestos-
related injury, and medical monitoring -- receive no payment
under the stipulation of settlement. In addition, "pleural"
claims, which involve asbestos-related plaques on the lungs but
no physical impairment, receive no cash compensation, even though
such claims regularly receive substantial monetary payments in
the tort system.
On the other hand, the settlement does provide
exposure-only and pleural claimants with significant benefits.
First, the stipulation tolls all statutes of limitations, so that
any claim that was not time-barred when the class action was
commenced may be filed at any time in the future. Thus, unlike
in the tort system, where pleural claimants may have to rush to
file suit on discovery of changes in the lining surrounding their
lungs (before their full injuries are known), under the
stipulation claimants do not submit their claims until they
develop an impairing illness. Second, the stipulation provides
certain "comeback" rights, so that claimants who have been
compensated for a non-malignant condition may file a second claim
and receive further compensation if they later develop an
asbestos-related cancer. It is estimated that almost 100,000
claims will be paid under the settlement over the course of the
next ten years.0
On January 29, 1993, Judge Weiner conditionally
certified this opt-out class. He then referred the matter to
Judge Lowell A. Reed for the establishment of settlement
procedures and the resolution of objections to the settlement.
Judge Reed held hearings on a number of aspects of the case and
issued several comprehensive opinions. On October 6, 1993, he
ruled that the court had subject matter jurisdiction and that the
action presented a justiciable case or controversy. See Carlough
v. Amchem Prods., Inc., 834 F. Supp. 1437 (E.D. Pa. 1993). On
October 27, 1993, he concluded that the proposed settlement
satisfied a threshold level of fairness sufficient to warrant
class notice and approved a notice plan. See Carlough v. Amchem
0
The terms of the Stipulation are discussed in greater detail in
Georgine, 157 F.R.D. at 267-86.
Prods., Inc., 158 F.R.D. 314 (E.D. Pa. 1993). We summarize the
highlights of these decisions in the margin.0
0
First, Judge Reed rejected the objectors' contentions that
exposure-only plaintiffs, who may not presently have sufficient
physical harm to state a valid cause of action, lack standing to
pursue this litigation. Carlough, 834 F. Supp. at 1446-56. He
reasoned that Article III standing is not dependent upon the
plaintiffs' ability to state a valid cause of action, but that it
depends upon whether these plaintiffs have "suffered an injury in
fact which is concrete and particularized, and actual or imminent
rather than merely conjectural or hypothetical." Id. at 1450
(citing Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136
(1992)). He concluded that "exposure to a toxic substance
constitutes sufficient injury in fact to give a plaintiff
standing to sue in federal court." Id. at 1454.
Second, with respect to amount-in-controversy, Judge Reed
noted that "the sum claimed by the plaintiff controls if the
claim is apparently made in good faith," and the case will not be
dismissed unless it appears to a "legal certainty" that the
$50,000 amount cannot be satisfied. Id. at 1456 (citations and
internal quotations omitted). He then rejected the objectors'
argument that exposure-only plaintiffs did not meet this
standard. Judge Reed held first that "it is enough that the kind
of factual injuries alleged by the exposure-only plaintiffs --
physical, monetary and emotional injuries -- plainly support a
claim to more than $50,000." Id. at 1459 (citation omitted). He
also ruled that, even if he were required to do a claim-by-claim
analysis of the exposure-only plaintiffs' claims, it could not be
said to a legal certainty that a jury might not award $50,000 to
any plaintiff. See id. at 1462.
Third, Judge Reed rejected the objectors' claim that the
litigation was "collusive" -- and therefore did not present a
case or controversy -- because the Stipulation of Settlement was
negotiated before class counsel formally filed the complaint.
Id. at 1462-66. He held that this case "is one involving
genuinely adverse interests, but, because of the settlement, it
lacks a dispute as to the remedy." Id. at 1465.
On October 27, 1993, Judge Reed ruled that "the proposed
settlement is fair for the preliminary purpose of deciding
whether to send notice to the class in that it appears to be the
product of serious, informed, non-collusive negotiations, it has
no obvious deficiencies, it does not improperly grant
preferential treatment to class representatives or segments of
the class, and it clearly falls within the range of possible
approval." Carlough v. Amchem Prods., Inc., 158 F.R.D. 314, 320
On February 22, 1994, after several months of pre-trial
proceedings, discovery, and motions, Judge Reed commenced a
hearing to assess the fairness of the settlement. The hearing
took eighteen days and involved the testimony of some twenty-nine
witnesses. On August 16, 1994, Judge Reed filed an opinion
approving the Stipulation of Settlement and finally certifying
the Georgine settlement class. In the course of his opinion, he
held that the class met the requirements of Federal Rule of Civil
Procedure 23, that the settlement was fair and reasonable, and
that notice to the class met the requirements of Rule 23 and the
Due Process Clause. See Georgine v. Amchem Prods., Inc., 157
F.R.D. 246 (E.D. Pa. 1994).0
The settling parties then moved for a preliminary
injunction barring class members from initiating claims against
any CCR defendant pending a final judgment in this case. On
September 21, 1994, he granted the motion, explaining that the
(E.D. Pa. 1993) (footnotes omitted). He then analyzed the notice
plan, concluding that the proposed notice (with certain specified
modifications) "satisf[ied] the requirements of Rules 23(c)(2)
and (e) and the due process clause of the Constitution."
Carlough, 158 F.R.D. at 333.
Finally, Judge Reed rejected the objectors' contention that,
regardless of the content or form of the notice plan, notice
regarding potential future personal injury claims for past toxic
exposure is per se unconstitutional, either because such
claimants may not understand that they are members of the class
or because they cannot make an informed opt-out decision without
knowing what disease, if any, they may suffer in the future. Id.
at 334-36.
0
Judge Reed later established a new notice and opt-out period,
voiding a prior notice and opt-out period, to remedy alleged
improper communications made by counsel opposing the settlement.
See Georgine v. Amchem Prods., Inc., 160 F.R.D. 478 (E.D. Pa.
1995).
injunction is necessary because "the cost and time expended
defending claims in multiple jurisdictions would likely result in
the disintegration of the Georgine settlement." Georgine v.
Amchem Prods., Inc., 878 F. Supp. 716, 723 (E.D. Pa. 1994). These
appeals followed.
C. The Contentions on Appeal
Although this opinion will address only the class
certification issues, these appeals have not been so
circumscribed. Indeed, far from acceding to any of Judge Reed's
rulings, see supra note 6, the objectors have also vigorously
pressed challenges to justiciability, subject matter
jurisdiction, personal jurisdiction over absent class members,
and the adequacy of class notice.
First, the objectors argue that this is a feigned suit
-- and thus is not a justiciable case or controversy under
Article III of the Constitution -- because neither plaintiffs nor
plaintiffs' counsel had any intention of litigating their
"futures" claims, but merely seek approval of a result that
plaintiffs and defendants have jointly pursued. This contention
is supported by the fact that class counsel presented the suit
and settlement together with counsel for the CCR defendants in
one package, after having negotiated with CCR a side-settlement
of over $200 million for cases in their "inventory." Second, the
objectors contend that the exposure only plaintiffs lack standing
to bring their claims because they currently suffer no actual
injuries. Third, they assert that the court lacks subject matter
jurisdiction over the exposure-only plaintiffs' claims because
such claims cannot exceed the $50,000 minimum required by the
diversity statute. Fourth, they argue that the court cannot
assert personal jurisdiction over class members lacking minimum
contacts with the forum, because such class members have not had
a meaningful opportunity to opt out and thus have not consented
to jurisdiction. See Phillips Petroleum Co. v. Shutts, 472 U.S.
797, 811-12 (1985).
Finally, the objectors have martialed a powerful three-
pronged argument that, in this futures class action with
virtually no delayed opt-out rights, notice to absent class
members cannot meet the requirements of Rule 23 or the
Constitution. See Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 313 (1950). The objectors argue that notice is
problematic for futures plaintiffs because (1) such plaintiffs
may not know that they have been exposed to asbestos within the
terms of this class action; (2) even if aware of their exposure,
these plaintiffs, who suffer no physical injuries, have little
reason to pay attention to class action announcements; and (3)
even if class members find out about the class action and realize
they fall within the class definition, they lack adequate
information to properly evaluate whether to opt out of the
settlement.
The settling parties counter these contentions, arguing
that the jurisdiction of the district court is secure and that
the strictures of due process have been satisfied. First, to
rebut the objectors' argument that this suit is feigned, the
settling parties point out that the district court's resolution
of that issue in their favor rested largely on fact findings, and
that this appeal does not challenge any factual determinations of
the district court. The settling parties also allege that,
against the background of bitter adversarial litigation that has
gone on for many years between plaintiffs and asbestos companies
(and between counsel in this case), this suit was no more or less
"collusive" than other similar actions brought and settled.
Second, regarding the existence of the requisite amount in
controversy, the settling parties cite to precedent (within a
checkered body of caselaw) holding that claims for future injury
and medical monitoring with accompanying emotional distress meet
the jurisdictional threshold.0
0
The settling parties also contend that a prior decision in this
case, Carlough v. Amchem Prods., Inc., 10 F.3d 189 (3d Cir. 1993)
[Hereinafter Gore], decided the jurisdictional challenges raised
in this appeal. We are unpersuaded. After the Georgine class
action had commenced but prior to the establishment of an opt-out
period, the Gore plaintiffs (several absent members of the
Georgine class) filed a class action complaint in West Virginia
state court. The Gore plaintiffs sought a declaration that they
were authorized to "opt out" of the Georgine action on behalf of
a West Virginia class and to initiate their own asbestos class
action. The district court granted a preliminary injunction as
"necessary in aid of [its] jurisdiction" under the All-Writs and
Anti-Injunction Acts, enjoining the Gore plaintiffs from
prosecuting their separate class action. On appeal to this
Court, the Gore plaintiffs argued that the district court lacked
jurisdiction to enjoin them because the district court had issued
the injunction before providing absent plaintiffs an opportunity
to opt out of the Georgine class, which is necessary to establish
personal jurisdiction over plaintiffs lacking minimum contacts
with the forum, and before the district court found that it had
subject matter jurisdiction over the Georgine action. The panel
upheld the district court's injunction because, after issuing its
injunction, the district court established an opt-out period and
found that it had subject matter jurisdiction. Id. at 200-01.
Although the district court should have inquired into its
Third, as to the adequacy of class notice, the settling
parties submit that the class members, having the terms of the
settlement before them, were in a better position to exercise a
choice than the usual notice recipient who has no idea how the
case will come out. Finally, they assert, though far less
convincingly in the wake of GM Trucks, that the requisites of
Rule 23 are met as well.
Although the existence of justiciability and subject
matter jurisdiction are not free from doubt, and although we have
serious concerns as to the constitutional adequacy of class
notice, we decline to reach these issues, and pass on to the
class certification issues. The class certification issues are
dispositive, and we believe it prudent not to decide issues
unnecessary to the disposition of the case, especially when many
of these issues implicate constitutional questions. See, e.g.,
jurisdiction before issuing the injunction, we held that the
district court's subsequent orders constituted an "initial
jurisdictional inquiry" necessary to support its preliminary
injunction. Id. at 201.
Given its unique posture, we read Gore very narrowly.
Gore held that a district court may issue a preliminary
injunction against an attempt to opt out en masse -- which
threatens to completely undermine the federal class action --
without a full-scale determination of its jurisdiction. Where a
federal class action is threatened with destruction before the
notice and opt-out period even commences, an "initial
jurisdictional inquiry" -- which "may be based on the information
reasonably and immediately available to the court," id. -- is
sufficient to support the court's jurisdiction to issue a
protective preliminary injunction. Gore did not reach the
question raised in this case: the propriety of the district
court's assertion of jurisdiction, after completion of the notice
and opt-out period, to enjoin individual plaintiffs from pursuing
collateral litigation.
Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944)
(expressing the rule that courts will avoid constitutional
questions when possible). In doing so, we offend no principle of
constitutional law, for the jurisdictional issues in this case
would not exist but for the certification of this class action.
Absent the class certification, there is no need for a
determination of jurisdiction over futures claims, the
justiciability of such claims, the adequacy of notice, or the
propriety of a nationwide protective injunction. Moreover, a
court need not reach difficult questions of jurisdiction when the
case can be resolved on some other ground in favor of the same
party. See Norton v. Mathews, 427 U.S. 524, 528-33 (1976); Elkin
v. Fauver, 969 F.2d 48, 52 n.1 (3d Cir.), cert. denied, 506 U.S.
977 (1992); United States v. Weathersby, 958 F.2d 65, 66 (5th
Cir. 1992); Wolder v. United States, 807 F.2d 1506, 1507 (9th
Cir. 1987).
II. APPELLATE JURISDICTION
Although we deem it wise not to decide most of the
jurisdictional issues posed by this case, we are obliged to
consider the threshold question whether we have appellate
jurisdiction to review the propriety, under Federal Rule of Civil
Procedure 23, of the district court's class certification.
Although the district court has approved the
stipulation of settlement and certified the Georgine settlement
class, it has not entered a final judgment because the
stipulation of settlement is expressly conditioned on the CCR's
insurers assuming liability for the settlement. See supra note
4. This is an appeal of the district court's September 22, 1994,
preliminary injunction, which prohibits Georgine class members
from pursuing claims for asbestos-related personal injury in any
other court pending the issuance of a final order. The district
court issued the preliminary injunction pursuant to the All-Writs
Act, 28 U.S.C. § 1651, and the Anti-Injunction Act, 28 U.S.C.
§2283, which provide authority to enjoin collateral litigation if
"necessary in aid" of the court's jurisdiction. See Gore, 10
F.3d 189, 201-04 (3d Cir. 1993). The district court found that
the injunction is necessary because collateral litigation would
undermine implementation of the settlement.
An order granting or denying class certification is
generally not appealable until a final order has been issued. See
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) (class
certification not appealable under 28 U.S.C. § 1291); Gardner v.
Westinghouse Broadcasting Co., 437 U.S. 478 (1978) (class
certification not appealable under 28 U.S.C. § 1292(a)(1)). This
Court has jurisdiction, of course, under 28 U.S.C. § 1292(a)(1)
to review the preliminary injunction issued by the district
court. We further conclude that we have pendent appellate
jurisdiction to review class certification.
In Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir.
1982) (in banc), we held that class certification is reviewable
on appeal from issuance of a preliminary injunction if "the
preliminary injunction cannot properly be decided without
reference to the class certification question." Id. at 449. We
reasoned that if the propriety of class certification "directly
controls disposition of the [injunction], or [if] the issues are,
in some way, inextricably bound[,] then both issues must be
addressed in order to resolve properly the section 1292(a)(1)
preliminary injunction." Id. (emphasis in original) (footnote
omitted); accord Hoxworth v. Blinder, Robinson & Co., 903 F.2d
186, 208-09 (3d Cir. 1990). To do otherwise would impinge on the
right to a 1292(a)(1) appeal. See Kershner, 670 F.2d at 449.
In this case, class certification "directly controls
disposition of the [injunction]." The entire basis for the
district court's injunction is to protect the underlying class
action. If the class was not properly certified, the district
court was without authority to issue its preliminary injunction.
To give full effect to the appellants' right to review of the
injunction, we must reach class certification. We also note that
concerns that might militate against review are not present in
this case. Most notably, there is no indication that the
district court might alter its class certification order. Compare
Kershner, 670 F.2d at 449 (expressing this concern).
III. CLASS CERTIFICATION
To obtain class certification, plaintiffs must satisfy
all of the requirements of Rule 23(a) and come within one
provision of Rule 23(b). See Wetzel v. Liberty Mutual Ins. Co.,
508 F.2d 239, 248 (3d Cir.), cert. denied, 421 U.S. 1011. Rule
23(a) mandates a showing of (1) numerosity; (2) commonality; (3)
typicality; and (4) adequacy of representation:
One or more members of a class may sue or be
sued as representative parties on behalf of
all only if (1) the class is so numerous that
joinder of all members is impracticable, (2)
there are questions of law or fact common to
the class, (3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class, and (4) the
representative parties will fairly and
adequately protect the interests of the
class.
FED. R. CIV. P. 23(a).
We held in GM Trucks that, although class actions may
be certified for settlement purposes only, Rule 23(a)'s
requirements must be satisfied as if the case were going to be
litigated. See 55 F.3d 768, 799-800 (3d Cir.), cert. denied sub
nom. General Motors Corp. v. French, 116 S. Ct. 88 (1995). Strict
application of the criteria is mandated, even when the parties
have reached a proposed settlement, because
Rule 23 is designed to assure that courts
will identify the common interests of class
members and evaluate the named plaintiff's
and counsel's ability to fairly and
adequately protect class interests . . . . To
allow lower standards for the requisites of
the rule in the face of the hydraulic
pressures confronted by courts adjudicating
very large and complex actions would erode
the protection afforded by the rule almost
entirely.
Id. at 799 (citation omitted). Therefore, despite the
possibility that settlement-only class actions might serve the
"useful purpose of ridding the courts" of the "albatross[]"
represented by mass tort actions, the rule in this circuit is
that settlement class certification is not permissible unless the
case would have been "triable in class form." Id.
In addition to satisfying the Rule 23(a) requirements,
a putative class must meet the conditions of one of the parts of
subsection (b). In this case, the settling parties seek
certification pursuant to 23(b)(3), which requires findings of
predominance and superiority -- i.e., "that the questions of law
or fact common to the members of the class predominate over any
questions affecting only individual members, and that a class
action is superior to other available methods for the fair and
efficient adjudication of the controversy." FED. R. CIV. P.
23(b)(3).
In GM Trucks we reserved the question whether, in the
case of settlement classes,0 the fact of settlement may be
considered in applying the 23(b)(3) requirements. 55 F.3d at
796. The settling parties assert that in contrast to the 23(a)
factors, which protect absent class members' rights, the 23(b)(3)
factors promote the "fair and efficient resolution of justice."
The fact of settlement, they argue, goes to the heart of Rule
23(b)(3)'s "manageability concerns" and thus must be considered.
We disagree. The 23(b)(3) requirements protect the
same interests in fairness and efficiency as the 23(a)
0
A settlement class is a device whereby the court postpones
formal class certification until the parties have successfully
concluded a settlement. If settlement negotiations succeed, the
court certifies the class for settlement purposes only and sends
a combined notice of the commencement of the class action and the
settlement to the class members. By conditionally certifying the
class for settlement purposes only, the court allows the
defendant to challenge class certification in the event that the
settlement falls apart. For a more detailed description of
settlement classes and their costs and benefits, see GM Trucks,
55 F.3d at 786-92.
requirements. More importantly, we based our pronouncement in GM
Trucks that "a class is a class is a class" in large part on the
fact that "[t]here is no language in the rule that can be read to
authorize separate, liberalized criteria for settlement classes."
Id. at 799. Whatever the Advisory Committee on Civil Rules (and,
of course, Congress) may ultimately determine the better rule to
be, we do not believe that the drafters of the present rule
included a more liberal standard for 23(b)(3).0
The district court did not have the benefit of GM
Trucks when it decided the Rule 23 issues, and it applied an
incorrect standard. First, it took the view that Rule 23
requirements are lower for settlement classes. See, e.g.,
0
The settling parties argue that In re School Asbestos Litig.,
789 F.2d 996 (3d Cir.), cert. denied sub nom. Celotex Corp. v.
School Dist. of Lancaster, 479 U.S. 852, and National Gypsum Co.
v. School Dist. of Lancaster, 479 U.S. 915 (1986), requires the
Court to take the possibility of settlement into account in
applying Rule 23(b)(3). We reject this contention. In re School
Asbestos Litig. stated, in relevant part:
Concentration of individual damage suits in
one forum can lead to formidable problems,
but the realities of litigation should not be
overlooked in theoretical musings. Most tort
cases settle, and the preliminary
maneuverings in litigation today are designed
as much, if not more, for settlement purposes
than for trial. Settlements of class actions
often result in savings for all concerned.
Id. at 1009. This statement, whatever its import, does not
constitute a holding. Its language is broad, general, and
grammatically permissive. Moreover, this statement appears in a
section in which the Court does both a Rule 23(a) and 23(b)
analysis. Thus, insofar as In re School Asbetos Litig. requires
a consideration of settlement, this requirement would apply to
Rule 23(a) as well as 23(b). But GM Trucks held that Rule 23(a)
must be applied without reference to settlement, thereby
rejecting the settling parties' argument.
Georgine v. Amchem Prods., 157 F.R.D. 246, 315 (E.D. Pa. 1994)
("The Rule 23 requirements for class certification . . . are
often more readily satisfied in the settlement context because
the issues for resolution by the Court are more limited than in
the litigation context."). Second, the district court erred by
relying in significant part on the presence of the settlement to
satisfy the Rule 23(a) requirements of commonality, typicality,
and adequacy of representation, and the Rule 23(b)(3)
requirements of predominance and superiority. See Georgine, 157
F.R.D. at 314-19. But each of these requirements must be
satisfied without taking into account the settlement, and as if
the action were going to be litigated. See GM Trucks, 55 F.3d at
799.
With a proper understanding of the Rule 23 factors, we
turn now to their application. For the reasons explained below,
we conclude that this class, considered as a litigation class,
cannot meet the 23(a) requirements of typicality and adequacy of
representation, nor the 23(b) requirements of predominance and
superiority.0 We will discuss each of these requirements.
Instead of addressing them in the conventional sequence, we will
use a functional arrangement, linking related provisions.
A. Commonality & Predominance
Rule 23(a)(2) requires that "there are questions of law
or fact common to the class," and Rule 23(b)(3) requires "that
0
This class, which may stretch into the millions, easily
satisfies the numerosity requirement.
the questions of law or fact common to the members of the class
predominate over any questions affecting only individual
members." FED. R. CIV. P. 23. Because 23(b)(3)'s predominance
requirement incorporates the commonality requirement, we will
treat them together.
All of the putative class members assert claims based
on exposure to the asbestos sold by the CCR defendants. The
capacity of asbestos fibers to cause physical injury is surely a
common question, though that issue was settled long ago. See,
e.g., In re School Asbestos Litig., 789 F.2d 996, 1000 (3d Cir.),
cert. denied sub nom. Celotex Corp. v. School Dist. of Lancaster,
479 U.S. 852, and National Gypsum Co. v. School Dist. of
Lancaster, 479 U.S. 915 (1986). Although not identified by the
district court, there may be several other common questions, such
as whether the defendants had knowledge of the hazards of
asbestos, whether the defendants adequately tested their asbestos
products, and whether the warnings accompanying their products
were adequate. See id. at 1009.0
However, beyond these broad issues, the class members'
claims vary widely in character. Class members were exposed to
different asbestos-containing products, for different amounts of
time, in different ways, and over different periods. Some class
members suffer no physical injury or have only asymptomatic
pleural changes, while others suffer from lung cancer, disabling
0
The only common questions identified by the district court are
(1) the fairness of the settlement -- an impermissible
consideration -- and (2) the harmfulness of asbestos exposure.
See Georgine, 157 F.R.D. at 316.
asbestosis, or from mesothelioma -- a disease which, despite a
latency period of approximately fifteen to forty years, generally
kills its victims within two years after they become symptomatic.
Each has a different history of cigarette smoking, a factor that
complicates the causation inquiry.
The futures plaintiffs especially share little in
common, either with each other or with the presently injured
class members. It is unclear whether they will contract
asbestos-related disease and, if so, what disease each will
suffer. They will also incur different medical expenses because
their monitoring and treatment will depend on singular
circumstances and individual medical histories.
These factual differences translate into significant
legal differences. Differences in amount of exposure and nexus
between exposure and injury lead to disparate applications of
legal rules, including matters of causation, comparative fault,
and the types of damages available to each plaintiff.
Furthermore, because we must apply an individualized
choice of law analysis to each plaintiff's claims, see Phillips
Petroleum Co. v. Shutts, 472 U.S. 797, 823 (1985) (constitutional
limitations on choice of law apply even in nationwide class
actions), the proliferation of disparate factual and legal issues
is compounded exponentially. The states have different rules
governing the whole range of issues raised by the plaintiffs'
claims: viability of futures claims; availability of causes of
action for medical monitoring, increased risk of cancer, and fear
of future injury; causation; the type of proof necessary to prove
asbestos exposure; statutes of limitations; joint and several
liability; and comparative/contributory negligence. In short,
the number of uncommon issues in this humongous class action,
with perhaps as many as a million class members, is colossal.
The settling parties point out that our cases have
sometimes stated a very low threshold for commonality. In Neal
v. Casey, 43 F.3d 48, 56 (3d Cir. 1994), for example, we stated
that "[t]he commonality requirement will be satisfied if the
named plaintiffs share at least one question of fact or law with
the grievances of the prospective class." And, in In re School
Asbestos Litigation, 789 F.2d at 1010, we stated that "the
'threshold of commonality is not high.'" (citation omitted). But
those cases are quite different from this one. Neal involved a
class action for injunctive relief, and thus raised infinitely
fewer individualized issues than are posed here. And In re
School Asbestos Litigation upheld the certification of a
nationwide class action for damages associated with asbestos
removal explicitly on the ground that case involved only property
damages. See, e.g., 789 F.2d at 1009 ("[T]he claims are limited
to property damage, and school districts are unlikely to have
strong emotional ties to the litigation.").0 We believe that the
0
Moreover, In re School Asbestos Litigation involved vastly fewer
individualized questions than this one. Cf. id. at 1010 (noting
that the complexity of causation questions in personal injury
suits is much greater than for property damage suits). And,
choice of law arguably did not greatly magnify the number of
disparate issues. Class counsel had made a credible argument
that the applicable law of the different states could be broken
into approximately four patterns, see id., and we noted that the
district court could decertify the class if this prediction
commonality barrier is higher in a personal injury damages class
action, like this one, that seeks to resolve all issues,
including noncommon issues, of liability and damages.
Nevertheless, we do not hold that this class fails the
commonality requirement because the test of commonality is
subsumed by the predominance requirement, which this class cannot
conceivably meet. We proceed cautiously here because
establishing a high threshold for commonality might have
repercussions for class actions very different from this case,
such as a Rule 23(b)(1)(B) limited fund class action, in which
the action presented claimants with their only chance at
recovery.
Turning to predominance, we hold that the limited
common issues identified, primarily the single question of the
harmfulness of asbestos, cannot satisfy the predominance
requirement in this case. Indeed, it does not even come close.
We start by noting the Advisory Committee's well-known caution
against certifying class actions involving mass torts:
A "mass accident" resulting in injuries to
numerous persons is ordinarily not
appropriate for a class action because of the
likelihood that significant questions, not
only of damages but of liability and defenses
of liability, would be present, affecting the
individuals in different ways. In these
circumstances an action conducted nominally
as a class action would degenerate in
practice into multiple lawsuits separately
tried.
FED. R. CIV. P. 23(b)(3) Advisory Notes to 1966 Amendment.
proved to be faulty. Of course, this case could not be broken
into anywhere near that small a number of patterns.
While, notwithstanding this cautionary note, mass torts
involving a single accident are sometimes susceptible to Rule
23(b)(3) class action treatment, the individualized issues can
become overwhelming in actions involving long-term mass torts
(i.e., those which do not arise out of a single accident). As
the Ninth Circuit stated in In re N.D. Cal. Dalkon Shield IUD
Prods. Liab. Litig., 693 F.2d 847 (9th Cir. 1982), cert. denied
sub nom. A.H. Robins Co., Inc. v. Abed, 459 U.S. 1171 (1983):
In the typical mass tort situation, such
as an airplane crash or a cruise ship food
poisoning, proximate cause can be determined
on a class-wide basis because the cause of
the common disaster is the same for each of
the plaintiffs.
In products liability actions, however,
individual issues may outnumber common
issues. No single happening or accident
occurs to cause similar types of physical
harm or property damage. No one set of
operative facts establishes liability. No
single proximate cause applies equally to
each potential class member and each
defendant. Furthermore, the alleged
tortfeasor's affirmative defenses (such as
failure to follow directions, assumption of
the risk, contributory negligence, and the
statute of limitations) may depend on facts
peculiar to each plaintiff's case.
Id. at 853 (citations omitted).
Other cases are in accord. See, e.g., Sterling v.
Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988) ("In
complex, mass, toxic tort accidents, where no one set of
operative facts establishes liability, no single proximate cause
equally applies to each potential class member and each
defendant, and individual issues outnumber common issues, the
district court should properly question the appropriateness of a
class action for resolving the controversy."); cf. Watson v.
Shell Oil Co., 979 F.2d 1014, 1023 (5th Cir. 1992) (approving a
class of some 18,000 plaintiffs injured in an oil refinery
explosion but noting that "[t]his litigation differs markedly
from toxic tort cases such as Jenkins, Fibreboard, and
Tetracycline, in which numerous plaintiffs suffer varying types
of injury at different times and through different causal
mechanisms, thereby creating many separate issues"), reh'g
granted, 990 F.2d 805 (5th Cir. 1993), appeal dismissed, 53 F.3d
663 (5th Cir. 1994). These concerns recently led the Sixth
Circuit to decertify a nationwide class action for injuries
caused by penile prostheses. See In re American Medical Sys.,
Inc., 75 F.3d 1069, 1081 (6th Cir. 1996) ("Proofs as to strict
liability, negligence, failure to warn, breach of express and
implied warranties will also vary from plaintiff to plaintiff
because complications with an AMS device may be due to a variety
of factors . . . .").
Although some courts have approved class certification
of long-term mass torts, these cases have generally involved the
centrality of a single issue. See In re "Agent Orange" Prod.
Liab. Litig., 818 F.2d 145, 166-67 (2d Cir. 1987) (expressing
concern over the difficulties of managing mass tort suits but
finding that class certification was justified because of the
centrality of the military contractor defense), cert. denied sub
nom. Pinkney v. Dow Chem. Co., 484 U.S. 1004 (1988); In re A.H.
Robins Co., Inc., 880 F.2d 709, 747 (4th Cir.) ("Just as the
military [contractor] defense was central to the case in Agent
Orange, so the question whether Aetna was a joint tortfeasor here
was the critical issue common to all the cases against Aetna, and
one which, if not established, would dispose of the entire
litigation."), cert. denied sub nom. Anderson v. Aetna Casualty
and Sur. Co., 493 U.S. 959 (1989). This case, of course, lacks
any single central issue.
The lack of predominant common issues has been a
particular problem in asbestos-related class actions. For
example, in In re Fibreboard Corp., 893 F.2d 706 (5th Cir. 1990),
the Fifth Circuit stated:
The 2,990 [asbestos personal injury]
class members cannot be certified for trial
as proposed under Rule 23(b)(3). Rule
23(b)(3) requires that "the questions of law
or fact common to the members of the class
predominate over any questions affecting
individual members." There are too many
disparities among the various plaintiffs for
their common concerns to predominate. The
plaintiffs suffer from different diseases,
some of which are more likely to have been
caused by asbestos than others. The
plaintiffs were exposed to asbestos in
various manners and to varying degrees. The
plaintiffs' lifestyles differed in material
respects. To create the requisite
commonality for trial, the discrete
components of the class members' claims and
the asbestos manufacturers' defenses must be
submerged.
Id. at 712 (citations omitted). In In re Temple, 851 F.2d 1269
(11th Cir. 1988), the Eleventh Circuit expressed similar
concerns:
Although the record on commonality and
typicality of the class is sparse, the
district court's order on its face
encompasses a potentially wide variety of
different conditions caused by numerous
different types of exposures. We have no
indication that claimants' experiences share
any factors other than asbestos and Raymark
in common.
Id. at 1273 (footnote and citations omitted).
We also draw instruction from Yandle v. PPG Indus.,
Inc., 65 F.R.D. 566 (E.D. Tex. 1974), where the district court
refused to certify a much more narrowly circumscribed asbestos
class action -- one brought by former employees of an asbestos
plant. The court stated:
[T]he Pittsburgh Corning plant was in
operation in Tyler for a ten year period,
during which some 570 persons were employed
for different periods of time. These
employees worked in various positions at the
plant, and some were exposed to greater
concentrations of asbestos dust than were
others. Of these employees it is only
natural that some may have had occupational
diseases when they entered their employment
for Pittsburgh Corning. There are other
issues that will be peculiar to each
plaintiff and will predominate in this case,
such as: The employee's knowledge and
appreciation of the danger of breathing
asbestos dust and further, whether the
employee was given a respirator and whether
he used it or refused to use it. . . .
Additionally, the plaintiffs have
asserted various theories of recovery against
the defendants, and the nine defendants have
alleged differing affirmative defenses
against the plaintiffs. For example, the
statute of limitations may bar some
plaintiffs, but not others. During the ten
year period the state of medical knowledge
was changing, which has a significant bearing
on the defendants' duty to warn of dangers.
Taking all these factors into consideration,
the Court is convinced that the number of
uncommon questions of law and fact would
predominate over the common questions, and
the case would therefore 'degenerate . . .
into multiple lawsuits separately tried.'
Id. at 570-71.
Many of the cases cited by the settling parties in
support of class certification are distinguishable because they
involved only partial certification of common issues. See
Central Wesleyan College v. W.R. Grace & Co., 6 F.3d 177, 184
(4th Cir. 1993) ("[T]he district court exercised its discretion
under Fed. R. Civ. P. 23(c)(1) and 23(c)(4)(A) to certify the
class conditionally . . . on eight common issues."); Jenkins v.
Raymark Indus., Inc., 782 F.2d 468, 471 (5th Cir.) ("Accordingly,
[the district court] certified the class as to the common
questions, ordering them resolved for the class by a class action
jury."), reh'g denied, 785 F.2d 1034 (5th Cir. 1986); Payton v.
Abbott Labs, 83 F.R.D. 382, 386 (D. Mass. 1979) (certifying class
as to limited common issues), vacated, 100 F.R.D. 336 (D. Mass.
1983). Other cases relied on by the settling parties are mass
tort cases where it appeared possible to try a number of common
issues and leave the individual issues to trials of small groups
of plaintiffs. See, e.g., Sterling v. Velsicol Chem. Corp., 855
F.2d 1188, 1197 (6th Cir. 1988) ("[I]ndividual members of the
class still will be required to submit evidence concerning their
particularized damage claims in subsequent proceedings."). These
cases did not seek to resolve anywhere near the number of
individual issues presented in this case.
In view of the factors set forth at pages 35-36, and
for the reasons stated on pages 36-42, we conclude that this
class fails the test of predominance. Even if we were to assume
that some issues common to the class beyond the essentially
settled question of the harmfulness of asbestos exposure remain,
the huge number of important individualized issues overwhelm any
common questions. Given the multiplicity of individualized
factual and legal issues, magnified by choice of law
considerations, we can by no means conclude "that the questions
of law or fact common to the members of the class predominate
over any questions affecting only individual members."
B. Adequacy of Representation
Rule 23(a)(4) requires that "the representative parties
will fairly and adequately protect the interests of the class."
FED. R. CIV. P. 23(a)(4). The adequacy of representation inquiry
has two components designed to ensure that absentees' interests
are fully pursued. First, the interests of the named plaintiffs
must be sufficiently aligned with those of the absentees. GM
Trucks, 55 F.3d at 800. This component includes an inquiry into
potential conflicts among various members of the class, see id.
at 800-01, because the named plaintiffs' interests cannot align
with those of absent class members if the interests of different
class members are not themselves in alignment. Second, class
counsel must be qualified and must serve the interests of the
entire class. Id. at 801.
Although questions have been raised concerning the
second prong of the inquiry, we do not resolve them here. As we
have briefly noted above, the objectors have forcefully argued
that class counsel cannot adequately represent the class because
of a conflict of interest. In the eyes of the objectors, class
counsel have brought a collusive action on behalf of the CCR
defendants after having been paid over $200 million to settle
their inventory of previously filed cases. The objectors also
adduce evidence that class counsel, as part of the settlement,
have abjured any intention to litigate the claims of any futures
plaintiffs. These allegations are, of course, rife with ethical
overtones, which have been vigorously debated in the academy. See
Symposium, Mass Tortes: Serving Up Just Desserts, 80 Cornell L.
Rev. 811 (1995). However, Judge Reed resolved this issue in
favor of class counsel largely on the basis of fact findings that
the objectors have not challenged. See Georgine, 157 F.R.D. at
326-330.
As to the first prong of the inquiry, however, we
conclude that serious intra-class conflicts preclude this class
from meeting the adequacy of representation requirement. The
district court is certainly correct that "the members of the
class are united in seeking the maximum possible recovery for
their asbestos-related claims." Georgine, 157 F.R.D. at 317
(citation omitted). But the settlement does more than simply
provide a general recovery fund. Rather, it makes important
judgments on how recovery is to be allocated among different
kinds of plaintiffs, decisions that necessarily favor some
claimants over others. For example, under the settlement many
kinds of claimants (e.g., those with asymptomatic pleural
thickening) get no monetary award at all. The settlement makes
no provision for medical monitoring or for payment for loss of
consortium. The back-end opt out is limited to a few persons per
year. The settlement relegates those who are unlucky enough to
contract mesothelioma in ten or fifteen years to a modest
recovery, whereas the average recovery of mesothelioma plaintiffs
in the tort system runs into the millions of dollars. In short,
the settlement makes numerous decisions on which the interests of
different types of class members are at odds.
The most salient conflict in this class action is
between the presently injured and futures plaintiffs. As
rational actors, those who are not yet injured would want reduced
current payouts (through caps on compensation awards and limits
on the number of claims that can be paid each year). The futures
plaintiffs should also be interested in protection against
inflation, in not having preset limits on how many cases can be
handled, and in limiting the ability of defendant companies to
exit the settlement. Moreover, in terms of the structure of the
alternative dispute resolution mechanism established by the
settlement, they should desire causation provisions that can keep
pace with changing science and medicine, rather than freezing in
place the science of 1993. Finally, because of the difficulty in
forecasting what their futures hold, they would probably desire a
delayed opt out like the one employed in Bowling v. Pfizer, Inc.,
143 F.R.D. 141, 150 (S.D. Ohio 1992) (heart valve settlement
allows claimants who ultimately experience heart valve fracture
to reject guaranteed compensation and sue for damages at that
time).
In contrast, those who are currently injured would
rationally want to maximize current payouts. Furthermore,
currently injured plaintiffs would care little about inflation-
protection. The delayed opt out desired by futures plaintiffs
would also be of little interest to the presently injured;
indeed, their interests are against such an opt out as the more
people locked into the settlement, the more likely it is to
survive.0 In sum, presently injured class representatives cannot
adequately represent the futures plaintiffs' interests and vice
versa.
This conflict (as well as other conflicts among
different types of claimants) precludes a finding of adequacy of
representation. The class is not unlike the one in GM Trucks,
where a conflict between individual and fleet truck owners
prevented a finding of adequacy of representation. See GM
Trucks, 55 F.3d at 801 ("[W]e must be concerned that the
individual owners had no incentive to maximize the recovery of
the government entities; they could skew the terms of the
settlement to their own benefit.").
Absent structural protections to assure that
differently situated plaintiffs negotiate for their own unique
interests, the fact that plaintiffs of different types were among
the named plaintiffs does not rectify the conflict. This
principle was explained by the Second Circuit in In re Joint
0
The conflict between futures and presently injured plaintiffs is
obvious. Consider, for example, the deposition testimony of
representative plaintiff Anna Baumgartner, whose husband died of
mesothelioma. She testified that the "pleurals," i.e., people
who suffer only pleural thickening, and who remain uncompensated
under the settlement, "don't deserve to be compensated by
anyone," despite the fact that such plaintiffs currently win
large awards in the tort system.
Eastern & Southern District Asbestos Litigation, 982 F.2d 721 (2d
Cir. 1992), modified sub nom. In re Findley, 993 F.2d 7 (2d Cir.
1993), a case arising out of the Manville Bankruptcy
reorganization. In addressing a conflict created by placing both
asbestos victims and co-defendant manufacturers in the same
subclass, the court observed, "Their interests are profoundly
adverse to each other. The health claimants wish to receive as
much as possible from the co-defendant manufacturers, and the
latter wish to hold their payment obligations to a minimum." Id.
at 739. The court concluded,
The class representatives may well have
thought that the Settlement serves the
aggregate interests of the entire class. But
the adversity among subgroups requires that
the members of each subgroup cannot be bound
to a settlement except by consents given by
those who understand that their role is to
represent solely the members of their
respective subgroups.
Id. at 743. The lack of any structural protections in this case
thwarted the adequate representation of the disparate groups of
plaintiffs.
C. Typicality
Typicality requires that "the claims or defenses of the
representative parties are typical of the claims or defenses of
the class." FED. R. CIV. P. 23. The typicality requirement is
intended to preclude certification of those cases where the legal
theories of the named plaintiffs potentially conflict with those
of the absentees. See Neal v. Casey, 43 F.3d 48, 57 (3d Cir.
1994); Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir.), cert.
denied sub nom. Weinstein v. Eisenberg, 474 U.S. 946, and
Wasserstrom v. Eisenberg, 474 U.S. 946, and Pelino, Wasserstrom,
Chucas and Monteverde, P.C. v. Eisenberg, 474 U.S. 946 (1985).
The inquiry assesses whether the named plaintiffs have incentives
that align with those of absent class members so that the
absentees' interests will be fairly represented. See Neal, 43
F.3d at 57.
Some commentators believe that the concepts of
commonality and typicality merge. See 7A Charles A. Wright, et
al., Federal Practice and Procedure § 1764, at 243-47 (1986).
Both criteria, to be sure, seek to assure that the action can be
practically and efficiently maintained and that the interests of
the absentees will be fairly and adequately represented. See
General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n.13
(1982). But despite their similarity, commonality and typicality
are distinct requirements under Rule 23. See Hassine v. Jeffes,
846 F.2d 169, 176 n.4 (3d Cir. 1988) ("'[C]ommonality' like
'numerosity' evaluates the sufficiency of the class itself, and
'typicality' like 'adequacy of representation' evaluates the
sufficiency of the named plaintiff . . . ."); Weiss v. York
Hosp., 745 F.2d 786, 810 n.36 (3d Cir. 1984), cert. denied, 470
U.S. 1060, and cert. denied sub nom. Medical and Dental Staff of
York Hospital v. Weiss, 470 U.S. 1060 (1985). We think that
typicality is more akin to adequacy of representation: both look
to the potential for conflicts in the class.
As our discussion of commonality and predominance make
clear, this class is a hodgepodge of factually as well as legally
different plaintiffs. Moreover, as our discussion of adequacy of
representation shows, these differences create problematic
conflicts of interest among different members of the class. These
problems lead us to hold that no set of representatives can be
"typical" of this class. Even though the named plaintiffs
include a fairly representative mix of futures and injured
plaintiffs, the underlying lack of commonality and attendant
conflicts necessarily destroy the possibility of typicality. See
In re American Medical Systems, Inc., 75 F.3d 1069, 1082 (6th
Cir. 1996) ("[W]e know from the amended complaint that each
plaintiff used a different model, and each experienced a distinct
difficulty. . . . These allegations fail to establish a claim
typical to each other, let alone a class."). The claims of the
named futures plaintiffs are not typical of the injured class
members, and, conversely, the claims of the named injured
plaintiffs are not typical of the futures class members.
Even if this class included only futures plaintiffs, we
would be skeptical that any representative could be deemed
typical of the class. In addition to the problems created by
differences in medical monitoring costs, the course of each
plaintiff's future is completely uncertain. As we pointed out in
our discussion of commonality, some plaintiffs may ultimately
contract mesothelioma, some may get asbestosis, some will suffer
less serious diseases, and some will incur little or no physical
impairments. Given these uncertainties, which will ultimately
turn into vastly different outcomes, the futures plaintiffs share
too little in common to generate a typical representative. It is
simply impossible to say that the legal theories of named
plaintiffs are not in conflict with those of the absentees, see
Neal, 43 F.3d at 57; Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d
Cir. 1985), or that the named plaintiffs have incentives that
align with those of absent class members, see Neal, 43 F.3d at
57.
D. Superiority
Rule 23(b)(3) requires, in addition to predominance,
"that a class action is superior to other available methods for
the fair and efficient adjudication of the controversy." FED. R.
CIV. P. 23(b)(3). The rule asks us to balance, in terms of
fairness and efficiency, the merits of a class action against
those of "alternative available methods" of adjudication. See
Katz v. Carte Blanche Corp., 496 F.2d 747, 757 (3d Cir.) (en
banc), cert. denied, 419 U.S. 885 (1974). We conclude that in
this case a class action has serious problems, which, when
compared to other means of adjudication, are not outweighed by
its advantages.
The proposed class action suffers serious problems in
both efficiency and fairness. In terms of efficiency, a class of
this magnitude and complexity could not be tried. There are
simply too many uncommon issues, and the number of class members
is surely too large. Considered as a litigation class, then, the
difficulties likely to be encountered in the management of this
action are insurmountable. See FED. R. CIV. P. 23(b)(3)(D).0
This class action also suffers from serious problems in
the fairness it accords to the plaintiffs. Each plaintiff has a
significant interest in individually controlling the prosecution
of separate actions. See supra note 15 (FED. R. CIV. P.
23(b)(3)(A)). This is not a case where "the amounts at stake for
individuals [are] so small that separate suits would be
impracticable." FED. R. CIV. P. 23(b)(3) Advisory Notes to 1966
Amendment. Rather, this action involves claims for personal
injury and death -- claims that have a significant impact on the
lives of the plaintiffs and that frequently receive huge awards
in the tort system. See Yandle v. PPG Indus., Inc., 65 F.R.D.
566, 572 (E.D. Tex. 1974) ("[T]he court finds that the members of
the purported class have a vital interest in controlling their
own litigation because it involves serious personal injuries and
death in some cases."). Plaintiffs have a substantial stake in
making individual decisions on whether and when to settle.
0
Rule 23(b)(3) specifically directs the court to consider:
(A) the interest of members of the class in
individually controlling the prosecution or
defense of separate actions; (B) the extent
and nature of any litigation concerning the
controversy already commenced by or against
members of the class; (C) the desirability or
undesirability of concentrating the
litigation of the claims in the particular
forum; [and] (D) the difficulties likely to
be encountered in the management of a class
action.
FED. R. CIV. P. 23(b)(3).
Furthermore, in this class action, plaintiffs may
become bound to the settlement even if they are unaware of the
class action or lack sufficient information to evaluate it.
Problems in adequately notifying and informing exposure-only
plaintiffs of what is at stake in this class action may be
insurmountable. First, exposure-only plaintiffs may not know
that they have been exposed to asbestos within the terms of this
class action. Many, especially the spouses of the occupationally
exposed, may have no knowledge of the exposure. For example,
class representatives LaVerne Winbun and Nafssica Kekrides did
not learn that their husbands had been occupationally exposed to
asbestos until the men contracted mesothelioma. Second, class
members who know of their exposure but manifest no physical
disease may pay little attention to class action announcements.
Without physical injuries, people are unlikely to be on notice
that they can give up causes of action that have not yet accrued.
Third, even if class members find out about the class action and
realize they fall within the class definition, they may lack
adequate information to properly evaluate whether to opt out of
the settlement.0
To amplify, the fairness concerns created by the
difficulties in providing adequate notice are especially serious
because exposure-only plaintiffs may eventually contract a fatal
0
Of course, these concerns would be alleviated to the extent the
class action provided for an opt-in rather than opt-out
procedure, or allowed plaintiffs to opt-out after they contract a
disease. But this case, encompassing a huge number of futures
plaintiffs, is an opt-out class action in which back-ended opt
outs are greatly limited.
disease, mesothelioma, from only incidental exposure to asbestos.
Although only a small fraction of exposure-only plaintiffs will
develop mesothelioma, the disease is presently always fatal,
generally within two years of diagnosis. Prior to death,
mesothelioma victims invariably suffer great pain and disability.
Mesothelioma can be caused by slight and incidental exposure to
asbestos fibers. The disease has been known to occur in persons
who lived with an asbestos-exposed parent, or in household
members who washed the clothes of people who worked with
asbestos. Unlike other asbestos-related cancers, mesothelioma
has only one medically established cause: asbestos exposure. The
unpredictability of mesothelioma is further exacerbated by the
long latency period between exposure to asbestos and the onset of
the disease, typically between fifteen to forty years. As a
result, persons contracting the disease today may have little or
no knowledge or memory of being exposed. It is unrealistic to
expect every individual with incidental exposure to asbestos to
realize that he or she could someday contract a deadly disease
and make a reasoned decision about whether to stay in this class
action.
We make no decision on whether the Constitution or Rule
23 prohibits binding futures plaintiffs to a 23(b)(3) opt-out
class action. However, it is obvious that if this class action
settlement were approved, some plaintiffs would be bound despite
a complete lack of knowledge of the existence or terms of the
class action. It is equally obvious that this situation raises
serious fairness concerns. Thus, a class action would need
significant advantages over alternative means of adjudication
before it could become a "superior" way to resolve this case. See
Yandle, 65 F.R.D. at 572 (stating, as a reason the superiority
requirement was not satisfied, that "because of the nature of the
injuries claimed, there may be persons that might neglect to
'opt-out' of the class, and then discover some years in the
future that they have contracted asbestosis, lung cancer or other
pulmonary disease").
These advantages are lacking here. Although individual
trials for all claimants may be wholly inefficient, that is not
the only alternative. A series of statewide or more narrowly
defined adjudications, either through consolidation under Rule
42(a) or as class actions under Rule 23, would seem preferable.
See also William W Schwarzer, Structuring Multiclaim Litigation:
Should Rule 23 Be Revised?, 94 Mich. L. Rev. 1250, 1264 (1996)
("These alternatives 'are hardly confined to the class action, on
the one side, and individual uncoordinated lawsuits, on the
other.'") (quoting Benjamin Kaplan, Continuing Work of the Civil
Committee: 1966 Amendments of the Federal Rules of Civil
Procedure (I), 81 Harv. L. Rev. 356, 386 (1967)).
E. Summary and Observations
We have concluded that the class certified by the
district court cannot pass muster under Rule 23 because it fails
the typicality and adequacy of representation requirements of
Rule 23(a), as well as the predominance and superiority
requirements of Rule 23(b). Indeed, GM Trucks requires an order
of vacatur on these facts. Moreover, we cannot conceive of how
any class of this magnitude could be certified.
The desirability of innovation in the management of
mass tort litigation does not escape the collective judicial
experience of the panel. But reform must come from the policy-
makers, not the courts. Such reform efforts are not, needless to
say, without problems, and it is unclear through what mechanism
such reform might best be effected. The most direct and
encompassing solution would be legislative action. The Congress,
after appropriate study and hearings, might authorize the kind of
class action that would facilitate the global settlement sought
here. Although we have not adjudicated the due process issues
raised, we trust that Congress would deal with futures claims in
a way that would maximize opt-out rights and minimize due process
concerns that could undermine its work. On the other hand,
congressional inhospitability to class actions, as reflected in
the recently enacted Private Securities Litigation Reform Act of
1995, Pub. L. No. 104-67, 109 Stat. 737 (1995), and by its
recently expressed concern about the workload of the federal
courts, might not bode well for such a prospect.
In a different vein, Congress might enact compensation-
like statutes dealing with particular mass torts.0 Alternatively,
Congress might enact a statute that would deal with choice of law
in mass tort cases, and provide that one set of laws would apply
0
For example, Judge Weinstein calls for a broad compensatory
legal framework to give mass tort victims a means of recovery
independent of tort law. See Jack B. Weinstein, Individual
Justice in Mass Tort Litigation (1995).
to all cases within a class, at least on issues of liability.
Such legislation could do more to simplify (and facilitate) mass
tort litigation than anything else we can imagine.
Another route would be an amendment to the Federal Rule
of Civil Procedure 23. We are aware that the Judicial Conference
Advisory Committee on Civil Rules is in fact studying Rule 23,
including the matter of settlement classes. One approach the
Rules Committee might pursue would be to amend Rule 23 to provide
that settlement classes need not meet the requirements of
litigation classes. The Rules Committee, of course, should
minimize due process concerns, but it might address them via opt-
in classes, or by classes with greater opt-out rights, so as to
avoid possible due process problems.
The Rules Committee might also consider incorporating,
as an element of certification, a test, akin to preliminary
injunction analysis, that balances the probable outcome on the
merits against the burdens imposed by class certification. This
kind of balancing might engender confidence in the integrity of
classes thus developed. But this approach has problems too, not
only in terms of the potential for satellite litigation, but also
in terms of the impact of the threshold decision on the outcome
of the case.
Perhaps this case, with its rich matrix of factual and
legal issues, will serve as a calipers by which the various
proposals before the Rules Committee might be measured. While we
hope that these observations are useful, we express doubts that
anything less than statutory revisions effecting wholesale
changes in the law of mass torts could justify certification of
this humongous class. In short, we think that what the district
court did here might be ordered by a legislature, but should not
have been ordered by a court.
The order of the district court certifying the
plaintiff class will be vacated and the case remanded to the
district court with directions to decertify the class. The
injunction granted by the district court will also be vacated.
The parties will bear their own costs.
NOS. 94-1925, etc.; GEORGINE, ET AL. V. AMCHEM PRODUCTS, ET AL.
HARRY W. WELLFORD, Circuit Judge, concurring:
I fully subscribe to the decision of Judge Becker that
the plaintiffs in this case have not met the requirements of Rule
23. I have some reservations, however, about any intimation that
Congress might or should enact compensation-like statutes to deal
with mass torts or that we approve any suggestion of Judge
Weinstein "for a broad compensatory legal framework to give mass
tort victims a means of recovery independent of tort law." See
n.17. I concur in the observation, however, that Rule 23 might
be amended to aid in the process of mass settlement in the class
action context.
I am of the view, moreover, that the "futures claims"
presented by certain plaintiffs, as described in the court's
opinion, do not confer standing to these exposure only
plaintiffs. Plaintiffs of this type do not claim presently to
suffer from any clinically diagnosable asbestos-related
condition; they merely assert that they were exposed to asbestos
fibers at some time in the past. In Lujan v. Defenders of
Wildlife, 504 U.S. 555 (1992), we were reminded that federal
courts under the Constitution have jurisdiction to consider only
real cases and controversies. Id. at 559. At a minimum,
standing requires:
First, the plaintiff must have
suffered an "injury in fact"--an
invasion of a legally protected
interest which is (a) concrete and
particularized, see id., at 756;
Warth v. Seldin, 422 U.S. 490, 508
(1975); Sierra Club v. Morton, 405
U.S. 727, 740-741, n.16 (1972); and
(b) "actual or imminent, not
`conjectural' or `hypothetical,'"
Whitmore, supra, at 155 (quoting
Los Angeles v. Lyons, 461 U.S. 95,
102 (1983)). Second, there must be
a causal connection between the
injury and the conduct complained
of--the injury has to be "fairly .
. . trace[able] to the challenged
action of the defendant, and not .
. . th[e] result [of] the
independent action of some third
party not before the court." Simon
v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 41-42
(1976). Third, it must be
"likely," as opposed to merely
"speculative," that the injury will
be "redressed by a favorable
decision."
Lujan, 504 U.S. at 560-61 (footnote omitted).
Plaintiffs bear the burden of establishing federal
jurisdiction and their standing to proceed. Lujan, 504 U.S. at
561; FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth v.
Seldin, 422 U.S. 490, 518 (1975). I do not believe exposure only
plaintiffs have demonstrated any "injury in fact" as of the time
of filing. Furthermore, I would conclude that such plaintiffs
have not presented a "likely" as opposed to a mere "speculative,"
current injury that could be redressed at trial. The court's
decision in such a case would necessarily be conjectural at best.
Fear and apprehension about a possible future physical or medical
consequence of exposure to asbestos is not enough to establish an
injury in fact. I do not believe that Duke Power Co. v. Carolina
Environmental Study Group, Inc., 438 U.S. 59 (1978), a case
involving actual nuclear power emissions, supports the
plaintiffs' position. The case, moreover, did not contain claims
for money damages. Nor does Helling v. McKinney, 509 U.S. 25
(1993), constitute precedent on which these plaintiffs can rely
to support standing. Helling involved a plaintiff who was
continuously exposed to tobacco smoke in limited quarters and
claimed that he had certain health problems caused by exposure to
cigarette smoke and that he feared further injury if he continued
to be exposed involuntarily to this hazard. Id. at 2478.
Standing was not discussed by the Supreme Court, nor by the court
of appeals (see Helling, 924 F.2d 1500 (9th Cir. 1991)),
presumably because the plaintiff claimed present injury.
In re "Agent Orange" Products Liability Litigation (Ivy
v. Diamond Shamrock Chemicals Co.), 996 F.2d 1425, 1434 (2d Cir.
1993), cert. denied, 114 S. Ct. 1125 (1994), may suggest to the
contrary, but I would adopt here a prudential limitation on
standing, under these particular circumstances, as to exposure
only plaintiffs who have not yet manifested a distinct and
palpable injury-in-fact. See John C. Coffee, Jr., Class Wars:
The Dilemma of the Mass Tort Class Action, 95 Col. Law Rev. 1343,
1422-1433 (1995). I do not intimate that prudence would always
preclude any and all suits by "future claimants" who have been
exposed to some calamitous occurrence or substance. This view in
this case is supported by the testimony of the plaintiffs
themselves. The exposure only class representatives admitted
under oath that they would not have continued with the litigation
in the absence of a settlement. Robert Georgine responded to
questioning:
Q.Have you ever
gone to a
lawyer for your
own personal
reasons to file
a claim for
yourself?
A.No.
Q.--for
asbestos
related injury?
A.No.
Q.And why is
that?
A.I haven't had
a problem.
Q.Is that still
true today?
That you
haven't had a
problem?
A.Well, I
don't--I
breathe normal-
-I don't have
any problems
that I'm aware
of. That's not
to say that one
can't develop.
Q.Oh, I
understand
that.
A.Okay.
Q.And God
forbid, I hope
nothing ever
does develop,
but until you
develop an
asbestos-
related
problem, you
have no
intention of
filing a
lawsuit for
damages, do
you?
A.Other than
the present--
present case?
Q.Well, in the
present case,
do you believe
that the
asbestos
companies owe
you money? M-
O-N-E-Y.
A.Owe me
personally?
Q.Yes.
A.I believe
that if there
was anything
that happened
to my lungs
that was
asbestos-
related, that
they would owe
me money, yes.
Q.But as of
today, nothing
has happened to
your lungs
that's
asbestos-
related that
you know of?
. . . .
A.For myself,
that's right.
. . . .
Q.As you sit
here today, you
are not
suffering any
emotional
distress
because you
might come down
with an
asbestos--
A.No, I am not.
I am not.
J/A 1204-06 (emphasis added). At the fairness hearing, Ambrose
Vogt testified similarly:
Q.Now, prior to
your
participation
in this class
action, you had
never consulted
with a lawyer
for the purpose
of filing a
claim as a
result of your
asbestos
exposure, isn't
that right?
A.Yes.
Q.You testified
under oath on
January 12th,
1994, that you
were not
seeking money
damages at the
time that you
agreed to be a
class
representative
in this case,
and at the time
that the
lawsuit was
filed? You
testified that
way under oath
then, isn't
that correct?
A.Yes.
Q.And that was
true then, is
that right?
A.Yes.
Q.And it is
true today, it
is not, you are
not seeking
money damages
today?
A.Not today,
no.
Id. at 1280-81. At his deposition, class representative Ty Annas
also made clear that he would not have brought suit had it not
been for the settlement. Id. at 1179. On cross-examination,
Annas stated:
Q.As of today,
can you think
of any out-of-
pocket loss
that you've had
as a result of
your exposure
to asbestos?
A.Not from
mine.
Q.So, Mr.
Annas, would it
be fair to say
that you don't
believe you've
lost any money
at all as a
result of your
exposure to
asbestos?
A.No, sir.
. . . .
Q.So you, on
January 15,
1993, had no
interest in
recovering
money for
yourself from
the asbestos
companies; is
that right?
A.Yes.
Id. at 1178-79. At the fairness hearing, Mr. Annas reiterated
even more clearly that he did not seek damages of any kind from
the CCR defendants:
Q.At deposition
you testified
that as of
January 15th,
1993 that you
hadn't
authorized
anybody to sue
for money for
yourself
because of your
asbestos
exposure, is
that right?
A.That's right.
Q.And that is
correct today?
A.Yes, sir.
Q.And when you
appeared at
deposition, you
testified I
believe that
you got
involved in
this case in
order to help
to get the case
resolved and to
help people
before the
money runs out,
is that
correct?
A.That's my
statement.
. . . .
Q.If they're
[people exposed
to asbestos]
not impaired
they should
receive no
compensation
whatsoever?
A.That's my
feelings.
Id. at 1269-72. Representative plaintiffs Timothy Murphy and
Carlos Raver also stated emphatically that they were not seeking
damages of any kind at the time the complaint was filed. At his
deposition, Murphy testified as follows:
Q.Let's go
back, let's
say, a month in
time, prior to
the
communication
that you had
with Mr.
Weingarten
[counsel for
Greitzer &
Locks] three or
four weeks ago.
Before that
communication,
did you know
what it was
that you were
claiming in
this lawsuit?
A.I know what
I--that I
claimed that I
was
occupationally
exposed to
asbestos over a
long period of
time.
Q.Did you know
that you were
claiming money
damages?
A.No.
Q.To this day,
do you believe
you are
claiming money
damages in this
case?
A.No.
Q.So you are
not seeking any
recovery in
terms of money
damages in this
case; is that
right?
A.No. Not at
this time.
Id. at 1124 (emphasis added). Raver testified to the same
effect:
Q.Did you
conclude in
1991, sir, that
based on your
physical
condition at
that time that
you, in your
words, didn't
deserve any
money and
didn't need any
money? Was
that a decision
that you made?
A.Yes, sir.
Q.When you
filed this
lawsuit, the
one that was
filed in
January of
1993, at the
time that you
filed the
lawsuit, had
you decided
that based on
your condition
at that time
that you didn't
deserve any
money and
didn't want any
money at that
time?
A.That's true,
sir. I didn't
want any money
at that time.
Still don't
want any money.
Id. at 1147-49. These representative plaintiffs clearly conceded
at the fairness hearing that, absent the settlement, they did not
intend to pursue the claims in the class complaint. They claimed
no damages and no present injury. I would hold, accordingly,
that the exposure only plaintiffs had no standing to pursue this
class action suit.
I concur in the court's decision to reverse the
district court, vacate the order certifying the plaintiff class,
and remand with instructions to vacate the injunction. I would
also hold further that exposure only plaintiffs have no standing
to pursue their claims.