# Appendix — A. H. Robins Co. v. Abed > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1213%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1171 ## Text Supreme Court of the United States OCTOBER TERM, 1982 A. H. ROBINS COMPANY, INCORPORATED, Petitioner, V. JANICE ABED, ET. XL., Respondents. APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CHARLES ALAN WRIGHT 727 East 26th Street Austin, Texas 78705 WILLIAM R. CoGar* CLIFFORD W. PERRIN, JR. STEPHEN W. BREWER Mays, VALENTINE, DAVENPORT & MooRE 23rd Floor, F&M Center P.O. Box 1122 Richmond, Virginia 23208 (804) 644-6011 Attorneys for Petitioner *Counsel of Record Page STE cdcecoesnednnesneedeelds seeGntensoecse A-l Opinion and Judgment of the Court of Appeals for the Ninth Circuit, June 18, 1982, as amended July 15, 1982 ...... A-1 Order of the Court of Appeals for the Ninth Circuit, Denying Petitioner's Motions for Rehearing and Suggestion for Re- hearing En Banc, August 26, 1982ꝶꝶ 2222 A-22 Memorandum of Opinion and Order of the District Court for the Northern District of California Conditionally Certifying Order of the District Court for the Northern District of Cali- fornia Conditionally Certifying Class Actions, June 25, 1981 A-86 Federal Rule of Civil Procedure 333 A-99 App. 1 Anited States Court of Appeals FOR THE NINTH CIRCUIT Nos. 81-4648, 81-4649, 81-4650, 81-4651, 81-4652, 81-4653, 81-4654, 81-4655, 81-4656 In re: Northern District of California, DALKON SHIELD IUD PRODUCTS LIABILITY LITIGATION JANICE ABED, et al., Plaintiffs-A ppellants, V. A. H. ROBINS COMPANY, et al., a Virginia corporation, HUGH J. DAVIS, M. D., and IRWIN S. LERNER, Defendants-A ppellees. Appeal from the United States District Court for the Northern District of California Spencer Williams, District Judge, Presiding Argued and Submitted March 10, 1982 Decided June 18, 1982, as amended July 15, 1982 Before: GOODWIN, ANDERSON and SCHROEDER, Circuit Judges GOODWIN, Circuit Judge Plaintiffs appeal from a district court order conditionally certifying their claims as: (1) a nationwide class action on App. 2 the issue of punitive damages pursuant to Federal Rule of Civil Procedure 23 (b) (1) (B); and (2) a statewide (Cali- fornia) class action on the issue of liability pursuant to Rule 23 (b) (3). In re Northern District of California “Dalkon Shield” 1UD Products Liability Litigation, 521 F Supp. 1188 (N.D. Calif. 1981); 526 F. Supp. 887 (N.D. Calif. 1981). All plaintiffs claim to have been injured by the Dalkon Shield intrauterine device. All of those plaintiffs who have joined in this appeal challenge class certification. Defend- ant A. H. Robins also opposes certification of the California 23(b)(3) class. Defendant Hugh J. Davis opposes cer- tification of both classes. Between June 1970 and June 1974, approximately 2.2 million Dalkon Shields were inserted in women in the United States. Many users sustained injuries. Complaints include uterine perforations, infections, ectopic and uter- ine pregnancies, spontaneous abortions, fetal injuries and birth defects, sterility, and hysterectomies. Several deaths also were reported. On June 28, 1974, Robins withdrew the Dalkon Shield from the market. By May 31, 1981, approximately 3,258 actions relating to the Dalkon Shield had been filed and 1,573 claims were pending. The claims are based on various theories: negli- gence and negligent design, strict products liability, breach of express and implied warranty, wanton and reckless con- duct, conspiracy, and fraud. Most plaintiffs seek both com- pensatory and punitive damages. Some plaintiffs joined Robins, Davis, and Irwin S. Lerner as defendants, as well as their own doctors or medical practitioners who recommended and inserted the Dalkon Shield, and local suppliers. Many piaintiffs sued fewer defendants. App. 3 In 1975 all actions then pending in federal district courts alleging damages from the use of the Dalkon Shield were transferred by the Judicial Panel on Multidistrict Litigation to the District of Kansas for consolidated pre- trial proceedings. In re A. H. Robins Co., Inc., “Dalkon Shield” Liability Litigation, 406 F Supp. 540 (J.P.M.D.L. 1975), 419 F. Supp. 710 (J.P.M.D.L. 1976), 438 F. Supp. 942 (J.P.M.D.L. 1977). After four years of consolidated discovery, the Judicial Panel began vacating its conditional transfer orders and remanding the cases to their respective transferor courts. In re A. H. Robins Co. Inc., “Dalkon Shield” IUD Products Liability Litigation, 453 F. Supp. 108 (J.P.M.D.L. 1978), 505 F. Supp. 221 (J.P.M.D.L. 1981). State courts have also received a number of Dalkon Shield cases. The results have been mixed. Some plaintiffs have recovered substantial verdicts. Others have recovered nothing. Many cases have been settled. Approximately 166 Dalkon Shield cases were pending in the Northern District of California. After one jury trial that lasted nine weeks, Judge Williams consolidated all Dalkon Shield cases pending in that district and ordered briefing on the feasibility of a class action. All but one of California plaintiffs’ counsel opposed class certification. Out-of-state plaintiffs were not notified of the briefing request and did not participate in the status conferences held to discuss the class action proposal. All defendants at that time opposed class certification. On June 25, 1981, Judge Williams entered an order conditionally certifying a nationwide class, under Fed. R. Civ. P. 23(b)(1)(B),’ consisting of all persons who filed Fed. R. Civ. P. 23(b)(1)(B) provides: “(b) Class Actions Maintainable. An action may be main- App. 4 actions for punitive damages against Robins.* The court asserted jurisdiction on the basis of diversity of citizenship, 28 U.S.C. § 1332. One stated purpose of certification was to insure the rights of all plaintiffs to a proportionate share of any punitive damages recovery from the “limited fund” of Robins’ assets. Judge Williams stated: “At the present time, some 1,573 suits involving claims for compensatory damages well over $500 mil- lion and claimed punitive damages in excess of $2.3 billion, are pending against A. H. Robins. The po- tential for the constructive bankruptcy of A. H. Robins, a company whose net worth is $280,394,000.00, raises the unconscionable possiblity that large num- bers of plaintiffs who are not first in line at the court- house door will be deprived of a practical means of redress.” No testimony was taken and the way in which the “fund” was limited was not specified, tained as a class action if the prerequisites of subdivision (a 28 17 and in „ bw 1 tion te actions or inst indi Ir. isk of _— interests of the other members not to the adjudications 323 ability to protect their terests : The prerequisites of subdivision (a) are: App. 5 Judge Williams also conditionally certified a California statewide subclass under Rule 23(b) (3) consisting of plain- tiffs who have filed actions against Robins in California.’ This California class is limited to the question of Robins’ liability arising from the manufacture and sale of the Dalkon Shield. Any plaintiff may opt out of this class, whereas all plaintiffs in the nation would be bound by the determina- tion on punitive damages. Plaintiffs from California, Oregon, Ohio, Florida, and Kansas moved to decertify the punitive damages class. The district court denied the motion and certified the issues for an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). This court granted the interlocutory appeals and ordered them expedited. The Rule 23(b)(1)(B) Nationwide Punitive Damages Class A. RULE 23(a) PREREQUISITES 1. Commonality. The district court held that the punitive damages class presented common questions about Robins’ knowledge of the safety of its product at material times while the Shield was on the market. What Davis, Lerner and Robins knew App. 6 about the Dalkon Shield, when they knew it, what infor- mation they withheld from the public, and what they stated in their advertising to doctors and in their product instruc- tions during various time periods may all be common ques- tions. These questions are not entirely common, however, to all plaintiffs. Moreover, as the plaintiffs correct'y argue, the 50 juris- dictions in which these cases arise do not apply the same punitive damages standards. Punitive damages standards can range from gross negligence to reckless disregard to various levels of willfulness and wantonness. If common- ality were the only problem in this case, it might be pos- sible to sustain some kind of a punitive damage class. But difficulties remain with other certification requirements. 2. Typicality. Typicality, while it may not be insurmountable, remains a significant problem. The district court order recites that representative parties have been selected. In re Northern District of California “Dalkon Shield” IUD Products Lia- bility Litigation, 526 F. Supp. at 919. However, all of the appealing plaintiffs assert that no plaintiff has accepted the role, and that no single plaintiff or group of plaintiffs could be typical of the numerous persons who might have claims. No plaintiff has appeared in this appeal in support of class certification. Again, while typicality alone might not be an insurmountable problem, it helps make the overall situa- tion difficult to rationalize as proper for class treatment. actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the litigation of the claims in the particular — Of Oe difficulties likely to be encountered in the management of a class action.” App. 7 3. Adequacy of Representation. The court designated lead counsel for the nationwide class, but he has resigned. New counsel has been designated but has not yet started to represent the class. Apparently none of the attorneys already involved in the case is willing to serve as class counsel. The district judge may well be better able to choose a good lawyer than some of the plaintiffs may be, but the right of litigants to choose their own counsel is a right not lightly to be brushed aside. The plaintiffs argue that newly appointed, even if expert counsel, may not litigate the action as vigorously as counsel selected by plaintiffs. This court is hesitant to force un- wanted counsel upon plaintiffs on the assumption that ap- pointed counsel will be adequate. Even if the class were otherwise acceptable, it would have to be decertified if ade- quate lead counsel turned out to be unavailable. We are not necessarily ruling out the class action tool as a means for expediting multi-party product liability ac- tions in appropriate cases, but the combined difficulties overlapping from each of the elements of Rule 23(a) pre- clude certification in this case. B. Tue Rute 23(b)(1)(B) REQUIREMENTS 1. Applicability of McDonnell Douglas. The Ninth Circuit has expressly barred class certification under 23(b)(1)(B) for independent tort claims seeking compensatory damages, unless separate actions “inescap- ably will alter the substance of the rights of others having similar claims.” McDonnell Douglas Corp. v. U. S. Dist. Ct., C.D. of Cal., 523 F.2d 1083, 1086 (9th Cir, 1975), cert denied, 425 U.S. 911 (1976), quoting LaMar v. H & B Novelty & Loan Company, 489 F.2d 461, 467 (9th Cir. App. 8 1973). In McDonnell Douglas, this court found that “[a]t worst individual actions (for air crash damages) would leave unnamed members of the class with the same com- plexity and expense as if no prior actions had been brought.” 523 F.2d at 1086. Robins argues that McDonnell Douglas does not pre- clude the 23(b)(1)(B) certification of a nationwide puni- tive damage class because that case treated only individual compensatory damage claims, and punitive damages were not at issue, The district judge did not discuss McDonnell Douglas but stated that certification under 23(b)(1)(B) is appropriate if individual actions “may” affect the claims of parties not before the court. Because total claims, if successful, might exceed Robins’ current assets, the judge noted that the earliest individual actions tried could exhaust Robins’ assets and thus adversely affect the claims of plain- tiffs who sued later and who might not be able to collect on their judgments. The judge cited Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 n.9 (9th Cir. 1976), in which the court stated that Rule 23 (b) (1) (B) applied “where the claims of all plaintiffs exceeded the assets of the defendant and hence to allow any group of individuals to be fully compensated would impair the rights of those not in court.” Green, however, was a 10b-5 action and did not involve mass personal injury claims. The quoted dictum did not discuss whether Rule 23(b) (1) (B) would apply in a tort case. One reason for certification ob- viously was to avoid any detrimental effect of earlier in- dividual claims upon later claims. McDonnell Douglas, however, appears to prohibit Rule 23(b)(1)(B) certification of mass tort actions for com- pensatory or punitive damages unless the record establishes that separate punitive awards inescapably will affect later App. 9 awards. The detrimental effect of earlier claims upon later claims commends itself to this court as worthy of future judicial and legislative consideration. As plaintiffs in this case correctly argue, though, not every plaintiff will pre- vail and not every plaintiff will receive a jury award in the amount requested. Thus on the present state of the record, the detrimental effect of separate punitive damages awards is not clearly inescapable. 2. The Limited Fund Concept. The drafters of Rule 23 intended 23 (b) (1) (B) to apply to “limited fund“ cases where numerous plaintiffs claim “against a fund insufficient to satisfy all claims.” Advisory Committee Note to the 1966 Revision of Rule 23, 39 F.R.D. 69, 101 (1966). The district court certified the “limited fund” punitive damage class before requesting or receiving adequate evi- dence of Robins’ net worth, earnings or available insurance coverage. The judge received Robins’ attorrey’s affidavit showing the total claims against Robins and Robins’ fund of assets but did not reopen discovery to permit plaintiffs to challenge these affidavits. The record does not show how many cases have been settled. Similarly, the court in In re Agent Orange Product Lia- bility Litigation, 506 F. Supp. 762, 789-90 (E.D.N.Y. 1980), refused to certify “Agent Orange” claims under Rule 23(b)(1)(B) because the plaintiffs offered no evi- dence of the likely insolvency of defendants. See also Payton . Abbott Labs, 83 F.R.D. 382, 389 (D. Mass. 1979) (class certification granted under Rule 23(b) (3) but denied under 23 (b) (1) (B) because the plaintiffs offered no evi- dence of the likely insolvency of the defendants and, “with- App. 10 out more, numerous plaintiffs and a large ad damnum clause should [not] guarantee (b)(1)(B) certification.”). Rule 23(b)(1)(B) certification is proper only when separate punitive damage claims necessarily will affect later claims. The district court erred by ordering certification without sufficient evidence of, or even a preliminary fact- finding inquiry concerning Robins’ actual assets, insurance, settlement experience and continuing exposure. The court’s other consideration for certifying the punitive damage issue as a nationwide class action was to ensure that Robins would be punished only once. The court cor- rectly notes, and appellants agree, that no rule of law limits the amount of punitive damages a jury may award. A class action, however, is not the only way to protect a defendant from unreasonable punitive damages. Given the difficulties in complying with the requirements of Rule 23 (b) (1) (B) in this case, it was error to certify a nationwide class of punitive damages claimants. II The Rule 23(b)(3) California Liabil'ty Class A. SUITABILITY OF CLASS ACTION LITIGATION OF Mass Propucts LiaBiLity CAsEs The Advisory Committee Note to the 1966 Revision of Rule 23(b)(3) (39 F.R.D. 69, 103) states: “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 to liability, would be present, affecting the individuals in different ways. In these circumstances an action con- ducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried. App. 11 Relying in part on that note and on the inherent ob- stacles to personal injury class actions, many courts have denied plaintiffs’ motions for class certification in mass tort personal injury actions, especially those alleging negli- gence by one or more defendants over extended periods. See Ryan v. Eli Lilly and Co., 84 F.R.D. 230 (D.S.C. 1979) (“DES” action); Mink v. University of Chicago, 460 F.Supp. 713 (N.D. III. 1978) (“DES” action); Harri- gan v. United States, 63 F.R.D. 402 (E.D. Penn. 1974) (action for negligent surgery in veterans’ hospital); Snyder v. Hooker Chemicals & Plastics Corp., 429 N. V. S. 2d 153 (1980) (Love Canal toxic waste action); Rosenfeld v. A. H. Robins Co., 407 N. V. S. 2d 196 (1978) (Dalkon Shield case) (discussed below); Hobbs v. Northeast Air lines, Inc., 50 F.R.D. 76 (E.D. Penn. 1970) (Rule 23(b)(3) certification of airplane crash cases denied be- cause individual plaintiffs in tort actions have an interest in controlling their own lawsuits; many other suits already might not be available to out-of-state claimants); Daye v. Commonwealth of Pennsylvania, 344 F. Supp. 1337, 1342-43 (E.D. Penn. 1972), cert. denied, 416 U.S, 946 (1974) (Rule 23(b)(3) certification of school bus acci- dent cases denied because some plaintiffs would bring per- sonal injury claims while other plaintiffs would bring wrong- ful death claims); Marchesi v. Eastern Airlines, Inc., 68 F. R. D. 500, 501 (E.D.N.Y. 1975) (class certification under any Rule 23 subsection denied). In Causey v. Pan American World Airways, inc., 66 F.R.D. 392 (E.D. Va. 1975), the court denied the plaintiffs’ motion for class certification of airplane crash cases under Rule 2b) (1) (A) and (B) and under Rule 23 (b) (2) or App. 12 (3) because most prospective plaintiffs were not United States citizens. The court noted, however, that mass acci- dent litigation “may and probably ought to be maintained as a class action” where: (!) the class action is limited to the issue of liability; (2) class members support the action; (3) choice of law problems are minimized because the accident occurred or substantially all plaintiffs reside in the same jurisdiction; and (4) the 23(b)(3) requirement of “superiority” also is met. Id. at 397. But see Petition of Gabel, 350 F. Supp. 624 (C.D. Cal. 1972) (fifty deaths in airplane crash) (overruled by McDonnell Douglas); Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558 (S.D. Fla. 1973), affirmed, 507 F.2d 1279 (Sth Cir. 1975) (dis- approved in McDonnell Douglas) (Rule 23(b)(1)(A) certification on issue of defendants’ negligence in preparing or making available contaminated food in suits for food poisoning on cruise ship); Bentkowski v. Marfuerza Com- pania Maritima, S. A., 70 F.R.D. 401 (E.D, Penn. 1976) (Rule 23(b)(3) class certification in cruise ship food poisoning cases on negligence issue); Ouellette v. Inter- national Paper Co., 86 F.R.D. 476 (D. Vt. 1980) (class certification in lake pollution cases); American Trading and Pro. Corp. v. Fischbach & Moore, Inc., 47 F.R.D. 155 (N.D. Ill. 1969) (fire at Chicago trade center). 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 plain- tiffs. 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 App. 13 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. See Rosenfeld v. A. H. Robins Co., 407 N.Y.S. 2d 196 (1978) (class certifica- tion denied under New York statute patterned after Rule 23(b)(3)). A federal district court also denied Rule 23 (b) (3) class certification of asbestoeis cases for these reasons. Yandle v. PPG Industries Inc., 65 F.R.D. 566, 569 (E.D. Tex. 1974). The Yandle court also suggested that when personal in- juries are involved, each plaintiff should have the right to prosecute his own claim and to be represented by the lawyer of his choice. Federal district courts recently have conditionally certi- fied two “mass tort” class actions that involve products liability and numerous injuries caused by individual prod- ucts over a long period of time. In re Agent Orange Product Liability Litigation, supra, 506 F. Supp. 762, and Payton v. Abbott Labs, supra, 83 F.R.D. 382 (“DES” case). In both cases, the plaintiffs sought class status. Both cases were certified under Rule 23(b) (3). The Agent Orange court found that Rule 23 (b) (3) re- quirements were met because: (1) the litigation was at such an early stage that resolution of preliminary issues Agent Orange manufacturer would affect every plaintiff's claim; (2) discovery and proof in such “untested areas of law” would be so expensive and complicated that no single attorney would be likely to succeed; (3) all cases currently pending already were before that same court under multi- App. 14 district litigation procedures; and (4) facts and issues in all pending and future cases were identical or parallel. 506 F. Supp. at 790-91. The Payton court, without distinguishing the cases pro- hibiting class action litigation of mass torts, certified a plain- tiff class of all women who were exposed to DES in utero in Massachusetts. The court found that “over 90% of the trial time” in two individual DES suits had been devoted to “whether and when defendants knew or should have known of the dangers of DES exposure.” 83 F.R.D. at 391- 92. The class action was limited to resolving those issues and issues of what injuries Massachusetts law would recog- nize. Id. at 386-87. The Payton court partially relied upon the nonavailability in Massachusetts of offensive collateral estoppel, which in some states would prevent relitigation of decided issues. Jd. at 392. Both the Payton and Agent Orange courts have recognized that neither causation nor damages may be determined in class proceedings. 83 F.R.D. at 394, 506 F. Supp. at 790. B. Rute 23(a) PREREQUISITES Before a class action may be maintained under Rule 23, the action must meet the prerequisites of Rule 23(a) and one set of the alternate requirements of Rule 23(b). 1. Commonality. Rule 23(a)(2) requires that “there are questions of law or fact common to the class. The district court cor- rectly held that each California case contains common issues “of design, testing, manufacturing, labeling and in- spection of the Dalkon Shields.” But on the issues of negli- gence, strict products liability, adequacy of warnings at relevant time periods, breach of warranty, fraud and con- App. 15 spiracy, commonality begins to be obscured by individual case histories. Different questions of law and fact could apply to various plaintiffs in the California class because of different repre- sentations and warnings made to each woman, different in. juries suffered, and different defenses available to Robins. The commonality requirement of Rule 23(a)(2) is not, of itself, insurmountable, but problems of commonality merge into problems of management. 2. Typicality. Rule 23(a)(3) requires that “claims or defenses of the representative parties .. . [be] typical of the claims or de- fenses of the class. | Generally, in a class action, plaintiffs who bring the action are the representative parties. They bear the burden of showing that their claims are typical, as well as the burden of demonstrating that the other Rule 23(a) ele- ments are satisfied. Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308-09 (9th Cir. 1977). Appellants assert that the trial court has not designated representative parties. Named plaintiffs generally are desig- nated parties before the class is certified and “typicality” is determined on the basis of their claims. The trial court stated in its order conditionally certifying class actions that “representative parties have been selected covering the broadest possible gamut of types of injuries....” In re Northern District of California “Dalkon Shield” IUD Prod- ucts Liability Litigation, 526 F.Supp. at 919-20. This desig- nation may require a substantial subdivision of representa- tive subclasses and appears to offer little advantage over a few test trials that may produce more settlements than App. 16 would a lengthy and complicated trial of consolidated cases. The Agent Orange court found the typicality requirement was met: “[a]lthough the named plaintiffs for purposes of the class action are yet to be designated, the court is satis- fied that out of the extremely large pool available repre- sentative plaintiffs can be named who will present claims typical of those of the class.” In re Agent Orange, supra, 506 F.Supp. at 787. From the large California class the court may be able to find plaintiffs whose claims are fairly representative of the varying injuries. In proving liability under a negligence theory, however, the plaintiffs have to prove not only their injuries, but that Robins and each defendant owed them a duty of care and also what those different standards of care were, if they were breached, and—most important—if the breaches proximately caused the plaintiffs’ varying injuries. See generally, W. Prosser, Law of Torts, §§ 41-42 (4th ed. 1971); Restatement (Second) of Torts, ch, 16, §§ 430-461 (1965). To prove liability under a breach of warranty theory, representative plaintiffs must exist for each type of warranty, assurance, or medical advice each plaintiff re- ceived. The difficulty of meeting the typicality requirement seems obvious. While we recognize the many differences between this case and LaMar, supra, 489 F.2d 461, the case is instruc- tive. The district court believed that an exception could be found within the LaMar doctrine for this particular case because “plaintiffs have alleged a concerted scheme or conspiracy between defendants in the marketing, design, testing, and production of Dalkon Shields.” But this gen- eralization, while partly true, loses sight of the fact that some of the plaintiffs have not alleged that all of their de- App. 17 fendants had so conspired. For example, some plaintiffs sued their own doctors and the local suppliers of those doctors, without planning to prove that those defendants were part of a conspiracy. The district court’s holding was inconsistent with LaMar. The financial importance of common questions of law and fact cannot be used to create a class of plaintiffs who have claims against some common defendants and some separate and uncommon defendants. The complexity of issues pe- culiar to individual claims militates against grouping all plaintiffs into a class for only part of their recovery. We do not decide or suggest that the typicality require- ment of Rule 23(a)(3) may never be met when multiple plaintiffs sue different defendants. But the requirement is not met in this case. 3. Adequacy of Representation. Rule 23(a)(4) requires that “the representative parties .. fairly and adequately protect the interests of the class.” Adequacy of representation depends on the qualifications of counsel for the representatives, an absence of antago- nism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive. 7 Wright and Miller, Federal Practice and Procedure §§ 1765- 1769 at 615-57. See In re Agent Orange, supra, 506 F. Supp. at 788; Payton v. Abbott Labs, supra, 83 F.R.D. at 388. The trial court found that “whichever firm is chosen to represent named plaintiffs will vigorously and competently litigate the action.” We assume that the plaintiffs’ California counsel named in the briefs were known to the district court to be competent attorneys. And the court correctly found “no reason to suspect any antagonism between any of the absentees and the named plaintiffs.” App. 18 Appellants argue, however, that adequacy is not satisfied because representative plaintiffs who do not have a cause of action against a particular defendant (such as individual doctors) cannot fairly and adequately protect the interests of those who do have such causes of action. The counsel originally designated by the court to be lead counsel for the nationwide class and statewide class at- tempted to resign from both positions, The judge did not accept his resignation from the statewide class. Attorneys for the California plaintiffs who appealed assert that they will suggest that their clients opt out of the California lia- bility class, leaving only the nationwide punitive damage class. If they do so, the issue of a California liability class may become moot. C. RULE 23(b)(3) REQUIREMENTS Under Rule 23 (b) (3) questions of law and fact common to members of the class must predominate over questions affecting individual members, and the class action must be superior in terms of fairness and efficiency to other means of litigation. Fed. R. Civ. P. 23(b)(3); LaMar v. H & B Novelty and Loan Co., supra, 489 F.2d at 467. 1. Predominance. The trial judge found that a “common nucleus of opera- tive facts” exists in this case that can be resolved in one adjudication. This common factual nucleus is “whether and when defendants knew or should have known of the dangers of the Dalkon Shield to its users... [and] the facts sur- rounding defendants’ design, production, etc. of the Dalkon Shield. . . .” Although those are common factual questions, the court should have balanced these concerns with the greater num- App. 19 ber of questions affecting individual class members. The 23(b)(3) class is limited to the issue of liability, but Robins’ overall liability, under some of the theories, cannot be proved unless each plaintiff also proves that Robins’ breach of its duty proximately caused her particular injury. For those plaintiffs who assert a breach of warranty claim, additional individual factual issues will have to be argued and determined. Robins’ warranties consisted mainly of various medical journal and medical trade-show adver- tisements over a four-year period. Different types of ad- vertisements were printed on different dates in different journals. Different doctors read various periodicals. The advertisements were made to and read not by plaintiffs but by their doctors. While facts about what warranties or representations Robins made and whether Robins breached them could be determined on a class basis, these facts can also be reached in consolidated discovery proceedings, and can be expected to become standardized after a few trials. 2. Superiority. Efficiency is a factor supporting class action treatment for some of the issues raised by California plaintiffs. The strongest supporting factor, however, is that by litigating portions of liability (defective or negligent design, exist- ence of warranties) on a class basis, litigation costs of presenting evidence and expert witnesses will be greatly reduced. A trial court can sever and try only certain issues on a class basis under Rule 23(c)(4)(A). The few issues that might be tried on a class basis in this case, balanced against issues that must be tried individually, indicate that the time saved by a class action may be relatively insignificant. A App. 20 few verdicts followed by settlements might be equally efficacious. 3. Considerations of Rule 23(b)(3)(A-D). In determining if common issues predominate and a class action is superior, the court should consider the factors provided in 23(b)(3)(A-D). A. The California liability class members have a strong interest in controlling the prosecution of separate actions. Counsel for plaintiffs who have appealed have stated they will recommend that their clients opt out of the class. If a large number do so, the class will be unable to proceed. B. Several Dalkon Shield cases already have been com- pleted in California, and over 300 are pending. C. The majority of California Dalkon Shield cases were not filed in the Northern District of California, although most plaintiffs’ counsel are from the Northern or Central Districts. D. Management is made difficult by the complexity and multiplicity of issues and by plaintiffs’ hostility to the class action. In addition, in this case, many plaintiffs have sued other defendants, such as their individual doctors, and the pres- ence of these separate defendants creates additional prob- lems of management. CONCLUSION The California liability class does not satisfy the typi- cality requirement of Rule 23 (a) (3) or the Rule 23 (b) (3) requirement that the class action be superior to other avail- able means of adjudication. We do not preclude further consideration by the district court of motions to certify a more limited class or subclasses under Rule 23 (b) (3). App. 21 The court erred in certifying the Rule 23(b)(1)(B) nationwide punitive damage class on its own motion with- out giving out-of-state plaintiffs an opportunity to partici- pate in prior briefings or hearings, and without estab- lishing as a fact that Robins’ assets were too limited to permit conventional litigation. Even if further proceedings were had on those issues, however, the case would still fail to meet Rule 23(a)’s preliminary requirements of com- monality, typicality and adequacy of representation. Moreover, separate early punitive damages awards need not inescapably affect later awards. Therefore a Rule 23(b)(1)(B) class action is inconsistent with this court’s decisions in LaMar and McDonnell Douglas. We conclude that both classes must be decertified. The orders challenged in this appeal are vacated and the cause is remanded for further proceedings. Vacated and remanded. App. 22 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Nos. 81-4648, 81-4649, 81-4650, 81-4651, 81-4652, 81-4653, 81-4654, 81-4655, 81-4656 In re: Northern District of California, DALKON SHIELD IUD PRODUCTS LIABILITY LITIGATION JANICE ABED, et al., Appellants, v. A. H. ROBINS COMPANY, et al., a Virginia corporation, HUGH J. DAVIS, M. D., and IRWIN S. LERNER, Appellees. ORDER Before: GOODWIN, ANDERSON and SCHROEDER, Circuit Judges The panel has voted to deny the petitions for rehearing and reject the suggestions for rehearing en banc filed herein on July 2 and July 23, 1982. The full court was advised of the suggestions for en banc rehearing and no active judge called for a vote on whether to rehear the case en banc. (Fed. R. App. P. 35.) The petitions for rehearing and suggestions for rehearing en banc are denied. August 26, 1982 App. 23 In re: NORTHERN DISTRICT OF CALIFORNIA “DALKON SHIELD” IUD PRODUCTS LIABILITY LITIGATION No. C-80-2213 SW United States District Court, N. D. California Nov. 5, 1981 MEMORANDUM OF OPINION AND ORDER CONDITIONALLY CERTIFYING CLASS ACTIONS SPENCER WILLIAMS, District Judge INTRODUCTION The latter half of the twentieth century has witnessed a virtual explosion in the frequency and number of lawsuits filed to redress injuries caused by a single product manu- factured for use on a national level. Indeed, certain products have achieved such national notoriety due to their tremen- dous impact on the consuming public, that the mere men- tion of their names—Agent Orange, Asbestos, DES, MER/ 29, Dalkon Shield—conjure images of massive litigation, corporate stonewalling, and infrequent yet prevalent, “big money” punitive damage awards. In a complex society such as ours, the phenomenon of numerous persons suffering the same or similar injuries as a result of a single pattern of misconduct on the part of a defendant is becoming increasingly frequent. The judicial system’s response to such repetitive litigation has often been blind adherence to the common law’s tradi- tional notion of civil litigation as necessarily private dispute resolution.’ In situations where this traditional mode of Miller, Of Frankenstein Monsters and Shining Knights: Myth, , and the “Class Action Problem,” 92 Harv.L.Rev. 664, 667- 70 (1979). App. 24 litigation threatens to leave large numbers of people with- out a speedy and practical means of redress and simul- taneously threatens to expose defendants to continuing pun- ishment for the same wrongful acts, the class action device is a powerful tool to accomplish its proclaimed goals of judicial economy and fairness." Factual Background This action involves the claims of thousands of women across the United States that they have been injured by an allegedly defective intrauterine device called the Dalkon Shield. The Dalkon Shield was invented in 1968. It was clinically tested from September 1968 to November 1969, at which time it was commercially introduced to the medical pro- fession by the Dalkon Corporation. On June 12, 1970, the A. H. Robins Co., Inc. (Robins), a manufacturer and dis- tributor of pharmaceuticals and other products, acquired all rights to the Dalkon Shield. Robins then initiated its own program to test the product and simultaneously began to market it. Between June 12, 1970, and June 28, 1974, approximately 2.2 million Dalkon Shields were inserted in women in the United States. On the latter date, Robins suspended distribution of the Dalkon Shield. A Dalkon Shield could be inserted only by a physician, who normally obtained the device from a surgical supply house. Each Dalkon Shield package contained labeling in- structions and materials that described its advantages and disadvantages. It was the physician’s responsibility to ex- plain to the prospective wearer these advantages and dis- * See Advisory Committee Note to the 1966 Amendments to Rule 23, 39 F.R.D. 98 (1966); 7 Wright, Miller & Kane, Federal Practice and § 1751 (1980 ed.); Grad v. Memorex Corp., 61 F.R.D. 88 (N.D. Cal. 1973). App. 25 advantages and, if the decision was made to have the Dalkon Shield inserted, to perform certain preliminary fitting procedures outlined in the labeling .nstructions. During the years in which the Dalkon Shield has been utilized, a large number of women have had adverse reac- tions to the device. The plaintiffs in these actions allege that they have sustained various injuries from their use of the Dalkon Shield including uterine perforations, infec- tions, pregnancy, spontaneous abortion, fetal injuries and hysterectomies. The plaintiffs predicate their right to re- cover against various defendants on theories of negligence, strict products liability, breach of warranty, conspiracy and fraud. In the vast majority of these actions, the plain- tiffs seek substantial sums in punitive damages. At the present time, some 1,573 suits involving claims for compensatory damages well over $500 million and claimed punitive damages in excess of $2.3 billion, are pending against A. H. Robins.* The potential for the con- structive bankruptcy of A. H. Robins, a company whose net worth is $280,394,000.00, raises the unconscionable possibility that large numbers of plaintiffs who are not first in line at the courthouse door will be deprived of a practical means of redress. The problem raised by this litigation is that the cases filed against the defendant, including the 165 pending in this district, involve nearly identical complaints, nearly identical legal claims, and a nearly identical factual background as to all issues of liability. As this court knows from its own experience in trying one nine-week case in 1980, any at- For a further, although adversarial, presentation of facts see, Van Dyke, The Dalkon Shield: A “Primer” in IUD Liability, 6 Western State Univ.L.Rev. 1. (1978). *See Affidavit of R. P. Wolf, and Assistant General Counsel of A. H. Robins Company. (June 19, 1981). App. 26 tempts to try all these cases would bankrupt the district court’s calendar and result in a tedium of repetition lasting well into the next century. Due to the national importance of the issues involved in respect to class certification, opting instead for a more de- liberate approach. The court conducted a series of status conferences to discuss various methods for achieving econo- mies of time and expense in the trial of these actions. On February 9, 1981, the court ordered briefing from all parties on the class certification issue. After careful con- sideration of these briefs and the arguments of all counsel at several subsequent hearings, the court issued its order conditionally certifying this class action. CERTIFICATION OF A CLASS ACTION The power of a trial court to limit re-examination of legal disputes by the use of representative suits has its genesis in the cid court of equity’s recognition of the “bill of peace.” Developed as a procedural device to prevent a mul- tiplicity of actions at common law, the bill of peace per- mitted consolidation of numerous actions involving com- mon issues in a single suit in equity.“ The device was often utilized when many parties were making claims as to the same property or fund.’ The class action was a logical extension of the court's equitable jurisdiction over bills of peace and was accepted in re: Northern District of California “Dalkon Shield” TUD Products Liability Litigation, 521 F. . 1188 (N.D. Cal. 1981). See generally 1 Pomeroy urisprudence, §§ 252, 253 (1918); . Chafee, Bille of Peace Multiple Parties, 45 Harv.L. Rev. 1297 (1932); 1 H. Newberg, Clas Actions, 1004 eet 2 See, e. g., Hom v. Tenants of Bromsgrove 2 K 166 1681); Brown v. Vermuden, 2 Eng. Rep. 802 ( 676). App. 27 early on by American courts.’ Trial courts retained their broad equitable powers to prevent a multiplicity of actions when a large number of persons with a single legal griev- ance sued or threatened to sue a defendant for alleged mis- conduct arising out of identical treatment of class members. In recognition of the large measure of discretion vest- ed in the trial court to balance conflicting interests,” enable a trial court to issue orders regarding coordination of lawsuits even though no party to the action requests such order. The court has a duty, for example, to determine on its own motion whether or not a class action may be main- ta ned. Moreover, the court may sua sponte certify sub- classes during the pendency of an action without being bound by the plaintiff's complaint.” The fact that no plaintiff in this district sought class relief is not dispositive of the power of this court to certify a class action for two reasons.” * See J. Story, Equity Pleadings, § 97 (3d ed. 1944); Note, Action Under the Codes Against Representative Defendants, 36 Harv.L. Rev. 89 (1922); Smith v. Swormstedt, 57 U.S. [16 How] 288, 14 L.Ed. 942 (1854); Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921). * See Cohn, The New Federal Rules of Civil Procedure, 54 Geo. LI. 1204, 1214 (1966). 10 Senter v. General Motors Corp., 532 F.2d 511, 520-21 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976); Castro v. Beecher, 459 F.2d 725, 731 (ist Cir. 1975); Stevenson v. Smith, 73 F.R.D. 79 (D. Del. 1976); Frankel, Some — Observations Concerning Civil Rule 23, 43 F. RD. 39 (1 mn Fed. R. Civ. P. 230 c) (I); Carr v. Conoco Plastics, Inc., 423 F. 2d 57, 58 (Sth Cir.) cert. denied, 400 U.S. 951, 91 S.Ct. 241, 27 L.Ed.2d 257 (1970); Philadelphia Elec. Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 462-63 (E.D. Pa. 1968). TI fashioned their lawsuits as actions. See, e. g., National Women's Health Network v. A. H. Robins Company, No. C-81-0004-N (D. App. 28 First, it is now recognized that a federal district court has broad and inherent power to regulate litigation be- fore it. This inherent power, which is broader and more flexible than the authority granted in the federal rules, is derived from the court’s duty to achieve expeditious disposi- tion of cases. Exercise of the court’s power to control litigation is particularly appropriate in cases where a class action could reduce a multiplicity of identical suits. As this court stated in its previous order,” the trial judge enjoys a wide range of discretion in overseeing all aspects of class action litiga- tion particularly in determining the certification issue. In fact, the court has more control over the class action than over ordinary actions, and thus must assume a more active role in its certification and management.” Nothing in Rule 23 prohibits a court from certifying a class action when to do so would result in both a major savings of judicial time in avoiding repetitive litigation and Mass. filed Jan. 12, 1981). Additionally, at least one plaintiff filed a brief in support of this court’s announced decision to certify a class. Link v. Wabash Railroad Co., 370 U.S. 626, 629-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962) (sua sponte dismissal for lack of prosecution): Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 951 2 — 1976); Doe v. Rostker, 89 F. R. D. 158, 163 (N. D. Cal. American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (Rule 23 is desi to avoid the “multi- icity of activity” on the part of courts litigants. ). 1 In re: Northern District of California “Dalkon Shield” IUD Products Liability Litigation, 521 F Supp. 1188 (N.D. Cal. 1981). % Gardner v. Westinghouse Broadcasting Co., 559 F.2d 209, 212 (3d Cir. 1977), aff'd, 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 Stale Price v. Lucky Stores Inc., 501 F.2d 1177, 1182 (9th Cir. 1 . Yaffe v. Powers, 454 F.2d 1362, 1367 (Ist Cir. 1972); 3B J. Moore, Federal Practice, J 23.50 (2d ed. 1980); 7 Wright, Miller & Kane, Federal Practice and Procedure, § 1785 (1980 ed.) C. Wright, Class Actions, 47 F.R.D. 169, 185 (1969). App. 29 the preservation of the collective interests of ail class mem- bers. Any alleged limitations contained in Rule 23 as to the exercise of the court’s class action jurisdiction do not control the result of this case because the federal rules state that they were not intended to limit the pre-existing juris- diction of the federal courts.” It is well-established that courts tried representative suits, in the interest of judicial efficiency, long before the adoption of Rule 23.” As noted above, this case was cog- nizable under the court’s equity jurisdiction.” Therefore, the trial court in exercising its equity power may certify a class even when no individual plaintiff fashions his com- plaint to seek such relief. The inherent powers of the trial court in conducting a class action lawsuit clearly vest it with the authority to certify a class when such a decision is in the collective best interest of the plaintiffs.“ As this court stated in its previous order: ** While at least one court appears to have fastened on the refer- ence in Rule 23(c)(1) to actions “brought” as class suits as preventi the sua sponte grant of class relief, Wilson v. Zarhadnick, 534 F.2 55, 57 (Sth Cir. 1976), no less an expert on Rule 23 than Professor Moore concludes that the trial court’s expanded role under the rule contemplates situations in which a court may transform an action commenced as a non-class action on its own motion. 3B J. Moore, Federal Practice, J 23.02 (2d ed. 1980). Fed. R. Civ. P. 82; accord, Brennan v. Silvergate District Lodge No. 50, 503 F.2d 800, $04 (9th Cir. 1974). *° Hom v. Tenants of Bromsgrove, a Se 277 (Ch. 1681); 7 Wright, Miller & Kane, Federal Practice and E I App. 30 In this action, plaintiffs are represented by many dif- ferent law firms, each with an individual interest in securing a punitive damage award for their clients. The court, on the other hand, is in the best position of being able to observe the spectrum of cases filed throughout the country with only the collective interest of the plain tiffs in mind.” In light of this factual finding, and the observed need to prevent an unnecessary race to the courthouse door, the most equitable solution is certification of a class designed to insure equal access to a recovery fund. There is a second reason supporting this court’s decision to certify this class. On June 26, 1981, the defendant filed a Motion for Class Certification of a Rule 23(b)(1)(B) class of all persons who have claims against it for punitive damages. It is axiomatic that either a plaintiff or a defendant may move for class certification.“ That a defendant may move for class certification is particularly compelling in the context of 23(b)(1) class suit as that subdivision, like equity’s “bill of peace,” is designed to protect the plaintiff and the defendant from the prejudice caused by the filing of multiple suits. The analogy to the “bill of peace” is per- represents parties with conflicting interests. The early punitive dam- age recovery of plaintiff No. 1 necessarily will effect the right of plaintiff No. 2 to monetary recovery. As such, the plaintiffs’ lawyer is placed in the unethical position of advising one client to pursue his right, to the detriment of the other client. n re Northern District of California Dalton Shield” IUD Products Liability Litigation, 521 F.Supp. 1188, 1192 (N.D. Cal. 1981). Fee Stevenson v. Smith, 73 F.R.D. 79 (D. Del. 1976); Kubin, Class Maintainability in California, 27 Hastings L.J. 293, 297 (1975). See generally Argo v. Hills, 425 F Supp. 151, 159 (E.D.N.Y. 1977). App. 31 suasive since in that context the defendant could resort to the equity court for such relief.” Accordingly, the court hereby grants the defendant's motion. The class action certified in this case, however, is limited to two basic issues. First, this court does not purport to restrict in any fashion an out-of-state plaintiff's right to sue A. H. Robins Company, or any other defendant, for com- pensatory damages arising out of her use of the Dalkon Shield. On the contrary, this court simply is attempting to coordinate the plaintiffs’ national claims for punitive dam- ages. While this coordination will prevent any one plaintiff from receiving an individual “windfall” punitive damage award, it will also insure the right of all plaintiffs to some proportionate share of any punitive damage recovery. Second, with regard to plaintiffs who have chosen to file in federal courts located in California, this court is exer- cising its broad discretion to eliminate repetitious litigation by certifying an issues-only class action on the question of the drug company’s liability arising from the manufacture and sale of the Dalkon Shield. Not only will these plaintiffs have tie right to opt out of this statewide class action on the liability issue, but each plaintiff will, if the class is success- ful, return to her own court for a determination of individual issues such as damages, causation and other affirmative defenses. The following constitutes a discussion of the court’s reasons for certifying these two class actions. Fee, Z. Chafee, Bills of Peace With Multiple Parties, 45 Harv.L. Rev. 1297 (1932). * Fed. R. Civ. P. 23(c)(4)(A) permits a class to be maintained with respect to particular issues. App. 32 CERTIFICATION OF CLASS ON PUNITIVE DAMAGES Rule 23(b)(1) allows class actions to avoid creating a risk of incompatible standards of conduct for the party opposing the class, or of judgments for some class mem- bers that threaten the interests of others, if separate ac- tions are prosecuted.*” Termed the “prejudice” class ac- tion provision,” Rule 23(b)(1) permits class actions as a method of obviating potential prejudice and inconsisten- cies which may result to the parties from a series of in- dividual actions. Structurally, this provision is divided into two clauses, (A) and (B), which appropriately can be characterized as two sides of the same coin.” Rule 23(b)(1)(A) takes as its focal point the possible adverse effects individual actions may have on the party opposing the class.“ This subdivision is designed to prevent * Causey v. Pan American World Airways, Inc., 66 F.R.D. 392 (E.D. Va. 1975). jn re “Agent Orange Product Liability Litigation, 506 F.Supp. 762, 789 (E.D.N.Y. 1980). ® Fed. R Civ. P. 23(b) (1) (A) and (B) provide: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequi- sites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or v: adjudications with respect to in- dividual members of the class which would establish incom- patible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the page 17 to the adjudications or substantially impair or * See La Mar v. Ww ab Novels A Loon Con 9 Pod 461 1— interests; . Cir. 1973). % A Wright, Miller & Kane, Federal Practice and Procedure, § 1773 (1980 ed.); see also Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 n.10 (9th Cir. 1976). App. 33 the party opposing the class from being forced into incom- patible standards of conduct.” Subdivision B, upon which this court relies, permits class actions in situations where separate suits prejudicially affect the class members. This subdivision emphasizes the po- tential undesirable effects on class members, rather than on the party opposing the class. Subdivision B applies when individual adjudication would, as a practical matter, dis- pose of the interests of class members who are not parties or substantially impair or impede the ability of absent class members to protect their interests. Fed.R.Civ.P. 23(b)(1)(B). If individual actions inescapably alter the substance of the rights of others having similar claims, Rule 23(b)(1)(B) becomes operative.” Class certification under Rule 23(b)(1)(B) generally is designed to accomplish equitable distribution of a liznited fund to all members of a proposed class who have a claim and whose interest may otherwise be impaired by damage awards in individual actions that deplete or diminish the fund.” The Advisory Committee Notes state that (b)(1)(B) applies to “situations where the judgment in a nonclass action by or against an individual member of the class, while not technically concluding the other members, might do so as a practical matter.“ Although the court is not characterizing this as an interpleader situation, the amount of punitive damages recoverable againet Robine, is, at least in theory, a sum certain for interpleader purposes. Con- ceptually, this sum certain can be viewed as a limited fund. 32 See Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 (9th Cir. 1976). ** 3B J. Moore, Federal Practice J 23.35[2] (2d ed. 1980); see also Dickinson v. Burnham, 197 F.2d 973 (2d Cir.), cert. denied, 344 US. 875, 73 S.Ct. 169, 97 L.Ed. 678 (1952). (966) of Advisory Committee on Rules, 39 F.R.D. 69, 100-101 App. 34 Neither the Rule nor the Advisory Committee Notes re- quires proof that claims “will”, as a certainty, exhaust the fund. Certification is appropriate if individual actions “may” affect the claims of parties not before the court. The instant matter is properly maintained as a Rule 23(b)(1)(B) action. At issue here is a limited common fund potentially exhaustible by some of the prospective claimants. Claims in excess of $3 billion have been filed thus far, and A. H. Robins’ assets currently equal $280 million.” There is good reason to believe that the total judg- ments may exceed, to a substantial degree, the ability of A. H. Robins to respond. Although the court makes no determination as to the liability of A. H. Robins, the court notes that it cannot be said with assurance that A. H. Robins can satisfy the judgments in toto. The situation presented here is identical to that in Coburn v. R Corp., 77 F.R.D. 43 (E.D. Ky. 1977). In Coburn, claims in excess of $1.5 billion were filed, and the assets of the defendant were approximately $3 million. The court held the matter maintainable as a Rule 23(b)(1)(B) class action and stated: In no event, however, should this litigation become an unseemly race to the courtroom door with monetary 0 rest. The threat of constructive bankruptcy pervades this mat- ter, and as in Coburn, this court views Rule 23(b)(1)(B) as the most practical method of avoiding the “race to the courthouse” syndrome. Moreover, it now appears that the claims filed against this de- fendant are increasing in number. See Affidavit, Robert G. Watts, filed September 22, 1981. * 77 F.R.D. 43, 45. App. 35 This situation is distinguishable from that of In re Agent Orange Product Liability Litigation, 306 F.Supp. 762 (E.D.N.Y. 1980). In Agent Orange there were five named defendants who suffered no threat of real or constructive bankruptcy. The court noted the unlikelihood of insolvency and rejected the idea of a Rule 23(b)(1)(B) class action on the ground that it was not a situation of multiple claim- ants who may deplete the fund and leave nothing for the late-comers /d. We have here the situation noted in Green v. Occidental Petroleum Corp., 541 F.2d 1335 (9th Cir, 1976), an in- stance where mass tort litigation is appropriately handled as a class action. In a footnote, the Green court reasoned that the claims of the named plaintiffs would substantially impair or impede the interests of other members not parties to the adjudication where the claims of all plaintiffs ex- ceeded the assets of the defendant. Id. at 1340 n.9. In such a situation, a group of individuals would be allowed full compensation which would impair the rights oi those not in court. A limited fund exists in this case for another compelling reason. It is clear that successive trials of individual claims may “as a practical matter be dispositive” of the rights of other members of the class because there certainly is an implied in law ceiling on the amount of punitive damages that may be assessed against the defendant company.” It is almost certain that an award of punitive damages to a plaintiff in one case will alter the potential recovery See deHaas v. Empire Petroleum Co., 435 F.2d 1223, 1231 (10th Cir. 1970); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967). Plaintiffs have no right to, or vested interest in, punitive damages. Plaintiffs do, however, have a right to seek punitive damages. It is this right to seek that the consequences of individual actions will impair. App. 36 of a plaintiff in a later filed suit. In theory, when a plaintiff recovers punitive damages against a defendant that repre- sents a finding by the jury that the defendant was sufficiently punished for the wrongful conduct. If the jury’s verdict constitutes excessive punishment, the trial judge is em- powered to use remittitur to reduce the award to the proper amount. If plaintiff No. 1 recovers one million dollars in punitive damages, plaintiff No. 2 runs a serious risk of being told that the amount awarded in the first suit represented an implied finding of the maximum amount the defendant should be punished. Obviously, the greater the number of plaintiffs, the more serious the risk becomes that the late plaintiff will find her demand for punitive damages dis- missed. At the very least, the trial court may admit evi- dence as to the payment of prior awards working to the detriment of a party seeking additional punishment for the ame misconduct.” Finally, in light of the fact that no plaintiff has a right to punitive damages, courts are likely to solve the inherent practical and constitutional problems with multiple punish- ment for the same conduct by creating doctrines severely %8 See generally Globus v. Law Research Service, Inc., 418 F.2d 1276 (2d Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 913, 25 L.Ed.2d 93 (1970); Roginsky v. Richardson-Merrell, Inc. 378 F.2d 832 (2d Cir. 1967); Maxey v. Freightliner Corp., 450 F. . 955 (N.D. Tex. 1978); Putz & Asitz, Punitive Damage Claims of Class Members Who Opt Out: Should They Survive? ——— U.S.F.L. Rev. —— (1981); Note, Mass Liability and Punitive Damages Overkill, 30 Hastings L.J. 1797 (1979); Coccia & Morrissey, Punitive Dam- ages in Products Liability Cases Should Not Be Allowed, 22 Trial L. O. 46 (1978). 8° State ex rel. Young v. Crookham, 290 Or. 61, 618 P.2d 1268, 1272-73 (1980); see generally 11 Punitive Damages, § 4.8 (1980); Restatement (Second) of T 11. 909 (1977); Morris, TY Damages in Tort Cases, 44 . L. Rev. 1173, 1195 (1 App. 37 limiting the right to recover punitive damages in the mass tort situation. The United States Supreme Court has often recognized that limitations, up to and including elimination, may be placed on the power to award punitive damages if there exists a strong countervailing interest.“ As such, the interest underlying the due process rights of the defendant rises to such a level. THEORY OF PUNITIVE DAMAGES Punitive damages in product liability litigation have the potential not only to punish a defendant but to severely damage its finances. In mass tort iiability situations the inequity and harmful effect of civil punitive damages are multiplied many times over. There is no “right” to punitive damages, and the awarding of punitive damages lies completely within the discretion of the trier of fact.“ As a general rule, puni- tive damages are recoverable in situations in which the defendant’s misconduct involves intentional or malicious wrongdoing. The basis for punitive damages is their de- terrent effect on the future conduct of the tort-feasor, and not their benefit to the specific victim. Punitive damages are, to a large degree, a windfall to a plaintiff. The compensatory damage award serves the function of fully compensating the plaintiff for the injuries suffered. Punitive damages are exacted for the benefit of society with the intended effect of deterring defendant from 0 See, e.g., Newport v. Fact Concerts, Inc., ——- U.S. ——, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (municipalities are immune from punitive damages); International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 48-50, 99 S.Ct. 2121, 2125-27, 60 L. Ed. 2d 698 (1979) (Labor Policy); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-50, 94 S.Ct. 2997, 3011-12, 41 L.Ed.2d 789 (1974) (First Amendment). Fee, e.g., Stoody Co. v. Royer, 374 F.2d 672 (10th Cir. 1967). App.38 similar conduct in the future. These awards are measured with an eye more to the total net worth of the defendant than to the actual damage suffered by the individual plain- tiff. Since each jury in a mass tort litigation situation will award punitive damages for wrongful conduct that affected an entire class of injured parties, a series of separate actions may result in windfall awards to individual plaintiffs at the expense of a disproportionately punished defendant. Punitive damage awards by juries can reach staggering amounts.“ Where, as here, one act or omission creates an injury to more than one victim, the possibility of multiple actions against the defendant arises. The punitive damage award in any one of the actions might constitute a reason- able deterrent. Yet, each plaintiff is permitted to try her case in a vacuum, oblivious to other pending actions or to prior punitive damage awards. Each plaintiff may then receive a punitive damage award with the result that the cumulative awards financially destroy the defendant. The purpose of punitive damages is to sting, not kill, a defendant. Punitive damages should not be permitted to bankrupt a defendant.” The potential for abuse implicit in repeated awards of punitive damages based on the same conduct is presently In Grimshaw v. Ford Motor Co., 119 Cal. App.3d 757, 174 Cal.Rptr. 348 (1981), the jury awarded the plaintiff $125 million in punitive damages. The jury based its award on the profit Ford Motor Company reaped from its omission to act properly. This award was later reduced by the trial court, and on appeal, the trial court was affirmed. See also Pease v. Fletcher Jones Beech Aircraft (Orange County, California, June, 1971 jury award of $17,250,000 as punitive damages, later set aside); Rosendin v. Avco-Lycoming (Santa Clara County, California, March 1971 jury award of $10,500,000 as punitive damages). ** See Wynn Oil Co. v. Purolator Chemical Corp., 403 F.Supp. 226 (M.D. Fla. 1974). App. 39 ameliorated only by the tendency of trial and appellate judges to reduce the jury awards. In Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967), Judge Friendly discussed the implications of the potential for punitive damage “overkill.” The court noted that it knew of no principle “whereby the first punitive damage award exhausts all claims for punitive damages and would preclude future judgments. . . .”“* The court recognized, though, the difficulty in administering claims for punitive damages in a multiplicity of suits so as to avoid overkill. A Rule 23(b)(1)(B) nationwide class action for puni- tive damages obviates many of the abuses inherent in mul- tiple punitive damage awards, A defendant has a due process right to be protected against unlimited multiple punishment for the same act. A defendant in a civil action has a right to be protected against double recoveries not because they violate “double jeopardy” but simply because overlapping damage awards violate that sense of “fundamental fairness” which lies at the heart of constitutional due process. Certainly the prin- ciple of res judicata, the notion that litigation must come to an end, that a party cannot sue or be sued repeatedly on the same cause of action, is a part of the process that is due under our constitutional system. Our law on punitive damages was created in an era of single plaintiff versus single defendant disputes and has not yet been adapted to the complexity of multiparty litiga- tion. Common sense dictates that a defendant should not be subjected to multiple civil punishment for a single act or 378 F.2d 832, 839. App. 40 unified course of conduct which causes injury to multiple plaintiffs.“ Without a Rule 23 (b) (1) (B) class action, the individual and cumulative awards of punitive damages may reach astounding amounts. How often is the defendant to be pun- ished? Under the doctrine of punitive damages there is no limiting rule in such a situation. There is no fair way to guide the juries. There is no basis for priority to punitive damages among the claimants, or for awarding such dam- ages to one or more and not to others. In light of the ob- vious application of punitive damages in the products lia- bility context,“ the class action is the best available device to protect the interests of all parties. STATEWIDE CLASS ACTION UNDER B(3) In order to bring and maintain a class action, a po- tential litigant must satisfy all of the conditions of Rule 23(a) and must also establish that such action is appro- priate under one of the subdivisions of 23(b). a. Numerosity. Rule 23(a)(1) states that a prerequisite to certification is that “the class is so numerous that joinder of all members is impracticable, ...” In this case, defend- there are at least several hundred potential class members. Moreover, this court alone has more than 160 prospective putz and Astiz, Punitive Damage Claims of Class Members Who Out: Should They Survive?, ——— U.S.F.L. Rev. —— (1981). „ 1 ee ee 797 (1979). Cf. Western Union Telegraph Co. v. App. 41 individual suits pending before it. The court finds that the numerosity requirement is satisfied. b. Commonality. A second requirement for class certifi- cation is that “there are questions of law or fact common to the class... Fed. R. Civ. P. 23 (a) (2). Each of the cases filed in California federal courts contain common issues of fact and law with respect to issues of design, testing, manu- facturing, labeling and inspection of the Dalkon Shields and with respect to issues of negligence, strict products liability, adequacy of warnings at relevant time periods, breach of warranty, fraud and conspiracy. c. Typicality. Rule 23(a)(3) further requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class. If the representatives’ claims or defenses, and the claims or defenses of the class members “stem from a single event or are based on the same legal or remedial theory,” Rule 23(a)(3) is satisfied.“ It is apparent in these Dalkon Shield cases that class members state claims arising out of the same factual setting and therefore the representative parties’ claims are typical. The more serious difficulty arises from the fact that, where different plaintiffs sue different defendants, “typicality is lacking when the representative plaintiffs’ cause of action is against a defendant unrelated to the defendants against whom the cause of action of the members of the class lies.“ However, the La Mar court articulated two excep- tions to its strict rule. The court stated: 17 Wright, Miller & Kane, Federal Practice and Procedure § 1764 (1980 ed.). La Mar v. HA Novelty & Loan Co., 489 F.2d 461, 465 (9th Cir., 1973). App. 42 Obviously this position does not embrace situations in which al! injuries are the result of a conspiracy or cun- certed schemes between the defendants at whose hands the class suffered injury. Nor is it intended to apply in instances in which all defendants are juridically re- lated in a manner that suggests a single resolution of the dispute would be expeditious.” This case falls within the exceptions recognized by La Mar in that piaintiffs have alleged a concerted scheme or conspiracy between defendants in the marketing, design, testing, and production of Dalkon Shields. Moreover, there exists a juridical relationship between defendants which enables a single resolution of this action and precludes a multiplicity of similar actions. The court [La Mar] merely discussed a few prior cases within which the court considered a juridical re- lationship sufficient to justify class treatment to exist. These cases involved class actions brought against state officials applying a common rule. . . There is no discussion in La Mar of other possible types of juridical links that make class treatment of an action proper.” The court in In re Itel went on to find a juridical link to permit class action treatment in that case, although the “specific kind of juridical link discussed in La Mar is not present in this case. This court, like the court in In re Itel, gives much con- sideration to the “great judicial convenience and economy which class certification would serve” in this case.” Ac- Id. at 466. % In re Itel Securities Litigation, 89 F.R.D. 104, 121 (N. D. Cal. App. 43 cordingly, this court recognizes that an important legal rela- tionship justifying class treatment in this case is that each defendant is united in a chain of privity that has allowed them to introduce the Dalkon Shield into the stream of commerce, Among the defendants are the inventors of the Dalkon Shield, the manufacturer and producer of the ma- terial and/or end product, and the distributor and/or sup- plier of the devices. All common issues of liability will necessarily entail careful examination of the role of each defendant in the alleged torts, the possible theories of lia- bility as appropriate, and the impact of each defendant's role on all other defendants. For these reasons, the court finds the presence of juridical links necessary to allow this suit to proceed as a class action.” d. Adequacy of Representation. The last requirement of Rule 23(a) is that “the representative parties will fairly and adequately protect the interests of the class.” This rule has been interpreted to require (1) that the representative party be a forceful advocate and his chosen attorney must be an experienced advocate, and (2) the representative party must have interests which are compatible with the members of the class.“ The representative parties represent a wide spectrum of injuries and circumstances. Additionally, the court has no reason to suspect any antagonism between any of the ab- sentees and the named plaintiffs. In fact, the interests of named plaintiffs are indistinguishable from those of the absentees. The many firms currently involved in this cer- tification of the class have been involved in approximately 700 other Dalkon Shield cases. From its many interactions * This court will, if necessary, consider severing the case as to the individual defendants in order to retain % Schulman v. Ritzenbreg, 47 F. R. D. 202, 207 (DDC 1979). App. 44 to date with the firms in this case, this court determines that whichever firm is chosen to represent named plaintiffs will vigorously and competently litigate the action. Rule 23(b) In addition to the requirements of Rule 23(a), certifica- tion depends on a demonstration that this action meets one of the alternative requirements of Rule 23(b) as well. Rule 23(b)(3) states that if the court finds that the questions of law or fact com- mon 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 contro- versy,“ then the class action may be maintained. a. Mass Tort vs. Mass Products Liability. Mass mar- keting of contraceptives such as the intrauterine device was the beginning of a modern phenomenon, and for several reasons does not fit in the category of “mass accident” torts. This situation more closely resembles that of personal injury suits alleging misfeasance or negligence by defend- ants over a long period of time.” The framework originally implemented for the tradi- tional litigation of tort injuries (one plaintiff versus one defendant) was not intended to and cannot effectively ac- commodate numerous individuals with grievances derived, in part or in whole, from mass marketing of medical de- vices or drugs. If such traditional structures are mechani- cally used merely for the convenience and familiarity of adhering to traditional practices, then a great many per- sons will be without effective and practical means of re- Fed. R. Civ. P. 23 (b) (3). ** Mink v. Univ. of Chicago, 460 F.Supp. 713 (N. D. Ill. 1978). App. 45 dress. This court's certification of a statewide federal district court litigants’ class is properly within the scope of the historical function of courts and of Rule 23(b) (3). b. Predominance. The first of two mandatory charac- teristics of a 23(b)(3) action is that “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members.” In mass product liability cases such as these cases now before the court, the foremost difficulty lies in whether or not innumerable individual issues or complaints will sub- sume the common issues. There is the possibility that signifi- cant questions of individual injury, causation, and medical history would effect individual cases differently and the action then “would degenerate in practice into multiple law- suits separately tried.“ This court does not maintain that this one class action suit disposes of the individual questions that inevitably would mandate separate trials. In the Order of Class Certi- fication,” it was specifically mandated that these cases must return to the districts of original jurisdiction for further trial of individual application of the outcome of this class action. More importantly, this class is brought together “more by a mutual interest in the settlement of common questions than it is divided by the individual members’ interest in the matters peculiar to them.“ Professor Moore would focus on whether the proposed class was “seeking to remedy a common legal grievance.” * Professors Wright, Miller and See Advisory Committee Note to the 1966 Amendments to Rule 23, 39 F.R.D. 69, 103 (1966). 88 In re Northern District of California “Dalkon Shield” IUD Prod- ucts Liability Litigatiom 521 F.Supp. 1188 (N.D. Cal. 1981). on J. Moore, Federai Practice J 23.45[2] (2d ed. 1980). eo App. 46 Kane, however, would focus on whether there existed a “common nucleus of operative facts” that could be resolved in one adjudication.“ Both seem to reject quantitative mea- sures of time and attention needed to resolve individual versus Class issues. In this case, the common nucleus of operative facts that lends itself to class adjudication is whether and when de- fendants knew or should have known of the dangers of the Dalkon Shield to its users. Most evidently, if any one plaintiff is to recover any measure of damages, she must establish defendants’ liability on this issue. As previously stated, the facts surrounding defendants’ design, produc- tion, etc. of the Dalkon Shield are the primary focus of this class action and if established, plaintiffs will prevail. Then and only then may plaintiffs proceed to the other issues in the suit: causation, damages and affirmative defenses. In this manner, bifurcation of these important issues ade- quately satisfies Rule 23(b)’s predominance requirements. c. Superiority. The other major requirement of Rule 23(b)(3) is that class adjudication must be “superior to other available methods.” In examining the interests of the class members, the importance of each member having her own day in court should be balanced against the great cost and technical difficulties of discovery and independent litigation in general. There currently are more than 160 individual cases in- volving Dalkon Shields pending before this court. Pretrial proceedings have been delayed so that the class action could be pursued. If these individual cases are forced to be liti- gated one by one, the congestion ensuing for this court and the other district courts would produce an unnecessary 0 7A Wright, Miller & Kane, Federal Practice and Procedure § 1778 (1980 ed.). App. 47 and unprecedented burden on California’s federal judicial system. The class action is the method of handling these cases so that disruption to the court system will be mini- mized. The Northern District is the appropriate forum in which to concentrate the class action due to the number of cases filed in this district and based on this court’s familiarity with the issues and procedures peculiar to this type of case. This court recently has concluded a trial involving a Dalkon Shield injury. The law firms of counsel involved in the many cases to be certified as a class are already in the vicinity of the Bay Area, or are in close contact with law firms in this area. Although the class is so large that joinder is impracti- cable, it is not so great that management is impracticable. Bifurcation of the limited common issues, carefully designed procedures for discovery, deposition and introduction of evidence, and other additional court orders tailored to fit this action insure that manageability problems will be minimal. In summary, the certification of all plaintiffs who file Dalkon Shield cases in the federal courts of California up to and including the commencement of the trial in this ac- tion meets the prerequisites of Rule 23(a) and addition- ally satisfies the balancing factors of Rule 23(b)(3). MOTION TO VACATE CERTIFICATION ORDER On August 31, 1981, the court heard lengthy argument on a motion brought by one plaintiff's counsel” to vacate The plaintiff's counsel (referred hereinafter as “plaintiff's coun- sel”), Bradley Post, is the lead liaison plaintiff's coursel at the Multi-District Litigation in Wichita, Kansas. Although Mr. Post's motion was joined in by several plaintiffs, this court does not wish to intimate that all plaintiffs nationwide joined or agreed with the ob- App. 48 the June 25, 1981 conditional certification order. After careful consideration of the excellent arguments and briefs of all counsel, the evidence in the record with regard to the incidence and potential for punitive damage awards, and all other matters in the record, this court orally denied the motion to vacate. The following constitutes the court’s written opinion denying the motion. Personal Jurisdiction The plaintiff's counsel begins by raising an important and fundamental question which strikes at the very heart of our jurisprudential system. The issue presented is whether a court may exercise in personam jurisdiction over a plain- tiff’s class action suit where some of the unnamed class members neither reside in nor have contacts with the forum state. Resolution of this question requires accommodation of the conflicting principles underlying representative ad- judication and those supporting traditional restrictions on the exercise of personal jurisdiction. As in almost all cases in which the issue of in personam jurisdiction arises,” there is no clean slate for the court’s use, but only a cluttered board etched with over one hun- dred years of United States Supreme Court precedent. In Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), the United States Supreme Court held that a state’s sover- jections raised at the hearing on this motion. However, Mr. Post „ eee ape Al Eee full extent permitted by the Constitution. See Cal. Civ. Proc. § 410.10. Therefore the jurisdictional analysis becomes a search for the outer limits of what due process permits. Forsythe v. Overmyer, 576 F.2d 779, 782, cert. denied, 439 U.S. 864, 99 S.Ct. 188, 58 L.Ed.2d 174 App. 49 eign power, and hence the jurisdiction of its courts, was con- fined by the territorial boundaries of the state.” In an opinion by Mr. Justice Field, the Court declared as a “principal of general, if not universal, law” that “in an action for money or damages where a defendant does not appear in the court, and is not found within the State, and is not a resident thereof but has property therein, the juris- diction of the court extends only over such property. . . .”™ After Pennoyer, the expansion of multistate enterprise and the development of the automobile posed problems for strict application of a territorial power theory.“ Courts, therefore, developed fictional jurisdictional theories in an attempt to reconcile the territorial power theory with modern realities. Courts “inferred” physical power by asserting ju- risdiction based on theories of implied consent, domicile and constructive presence.” The wooden rule of Pennoyer was made more flexible in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The Supreme Court estab- lished a jurisdictional theory based on due process and fun- damental fairness when it declared: [D]ue process requires only that in order to subject a defendant to a judgment in personam if he be not present within the territory of the forum, he have certain minimum contacts with it such that the main- on US. 714, 720, 24 L.Ed. 565. * * See generally Casad, Shaffer v. Heitner: An End to Ambivalence in Jurisdiction Theory? 26 Kan.L.Rev. 61, 63 (1977). For a further discussion of the development of the post-Pennoyer j adaptation see Kurland, The Supreme Court, the Due Process Clause and the In Personam Jurisdiction of State Courts From Pennoyer to Denckla: A Review, 25 U.Chi.L.Rev. 569 (1958). App. 50 tenance of the suit does not offend “traditional notions of fair play and substantial justice.“ While there are no precise yardsticks by which to mea- sure the necessary minimum contacts under the /nterna- tional Shoe standard, courts have stressed certain factors in reaching jurisdiction decisions.” In World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the high court’s most recent pronouncement on jurisdictional standards, the Supreme Court affirmed the “minimum contacts” formula and stressed its dual functions—to protect a defendant from the burdens of “litigating in a distant or inconvenient forum” and to prevent states “through their courts [from reaching] out beyond the limits imposed by them as co-equal sover- eigns in a federal system.“ The court ruled that the Okla- homa court’s exercise of jurisdiction over out-of-state car dealers was improper. The “minimum contacts” test outlined above is a stan- dard that has been applied exclusively to cases in which a forum sought to exercise jurisdiction over non-resident International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L.Ed., 95 (1945) quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). ® The Ninth Circuit has developed a three-part test in all cases where general jurisdiction is not conceded: (1) ——— é> cutee ost — mate some transaction with the forum or some act by which he purposefully avails himself the privilege of activities in the forum, thereby invoking ‘he bene- fits and protections of its laws. (2) The claim must be one which arises out of or results from the defendant’s forum- related activities. (3) Exercise of jurisdiction must be reason- able. Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977) (citations omitted). Accord, Taubler v. Giraud, 655 F.2d. 991, 993 (9th Cir. 1981). *® World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). App. 51 defendants. The notions of residence and territoriality, which gave rise to the minimum contacts test to protect absent defendants, have no application to absent plaintiffs who already are protected by notice of a right to be heard and adequate representation.” The strict rules of personal jurisdiction governing most civil actions necessarily must yield when a lawsuit is brought that is representative in nature, particularly when such an action involves alleged misconduct that takes place in more than one state.” It has long been recognized that class actions may proceed, in fact often must proceed, in the absence of per- sonal jurisdiction over all class members. In Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921), the United States Supreme Court allowed a class action brought in federal court on behalf of persons who “resided in many different states of the Union,” and held that the judgment rendered therein was binding on all 7 Ross, Multistate Consumer Class Actions in Illinois, 57 Chi-Kent L.Rev. 397, 414 (1981). Federal courts have long assumed jurisdiction over nationwide classes notwithstanding that a majority of plaintiffs were not within the jurisdiction of the district court. See, e.g., United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.E.2d 392 (1980); Califano v. Yamasaki, 442 U.S. 682, 701-03, 99 S.Ct. 2545, 2558-59, 61 L.Ed.2d 176 (1979); McClure v. Harris, 503 F.Supp. 409, 415 (N.D. Cal. 1980); Philadelphia Elec. Co. v. Anaco American Brass Co., 43 F.R.D. 452 (E.D. Pa. 1968). This court recognizes that these cases involved representative plain- tiffs who were seeking certification rather than resisting it, such that the issues were never raised. However, these nationwide class actions have been certified most often in "23(b) (1) and (b)(2) class suits where the unnamed class members would not have been entitled to opt-out or receive notice. As such, the mere ition of the viability of class suits in these contexts seems to imp y that — 1 end net gonsense, fo tho foundation af dao process in the class suit. App. 52 members.” The court noted that the class action judgment was valid and binding despite the fact that the federal court did not have jurisdiction over all members of the class. In Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940) the court was even more explicit in its recognition of the special jurisdictional nature of the class suit: It is a principle of general application in Anglo- American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.... To these general rules there is a recognized exception that to an extent not precisely defined by judicial opinion, the judgment on a ‘class’ or ‘representative’ suit, to which some mem- bers of the class are parties, nay bind members of the class or those represented who were not made parties to it. (citations omitted.) The deviation from the jurisprudential maxim that “every- one is entitled to his day in court” has been recognized in the language and case law interpretation of Federal Rule 23. Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” The imprac- ticability standard encompasses not only cases with an unmanageably large number of plaintiffs but also preserves the old equity notion that joinder is impracticable or im- 7 255 U.S. 356, 364, 41 S.Ct. 338, 341, 65 L.Ed. 673. See also Hartford Life Insurance Co. v. Ibs, 237 U.S. 662, 671-74, 35 S.Ct. 692, 695-96, 50 L.Ed. 1165 (1915). 311 US. 32, yd a 115, Mien’ Veliay’ Bee 22 (em- i pplied). Accord, sier v. Mi roadcasting = 656 20 1295, 1299 (9th Cir. 1981); Calagaz v. Calhoon, 309 F.2d 248, 254 (Sth Cir. 1962); Maraist and Sharp, Federal Procedure’s Troubled Marriage: Due Process and The Class Action, 49 Tex.L.Rev. 1 (1970). App. 53 possible when the court is unable to acquire jurisdiction over all class members." Similarly, the jus tertii nature of a class suit is ex- emplified in a 23(b)(1) or 23(b)(2) class action. In light of the fact that the (b)(1) or (b) (2) class is most cohesive in interest and that the issues determined in the class suit essentially are the same as to all class members, courts have held that due process does not require that unnamed plaintiffs be given a chance to opt out or receive notice of the action.” Rather due process requires only that class members in such courts be adequately represented. It is axiomatic, of course, that these rules are constitutionally permissible only because the remedies afforded by a class action are a sufficient alternative for the protection of the unnamed plaintiffs.” Finally, in the analogous area of subject matter ju- risdiction, it is well-recognized that a class suit brought in federal court upon diversity of citizenship, only requires Mat the citizenship of the named parties be considered. Courts have reconciled due process requirements with the relaxa- tion of rules governing subject matter jurisdiction by stress- ™ See 7 Wright, Miller & Kane § 1762 (1980 ed.); Donelan, Prerequisites to a Class Action Under New Rule 23, in The Class wa — Symposium, 10 B.C. Ind. & Comp. L. Rev. 527, 531 1969). % Dosier v. Miami Valley Broadcasting Corp., 656 F.2d 1295, 1299 (9th Cir. 1981); Robertson v. National Basketball Associa- tion, 556 F.2d 682, 686 (2nd Cir. 1977); Larionoff v. United States, 533 F.2d 1167 (D.C. Cir. 1976), d., 431 U.S. 864, 97 S. Ct. 2150, 53 L.Ed.2d 48 (1977); A. Miller, Problem of Giving Notice in cality. 7 Wright, Miller & Kane § 1789 (1980 ed.). * Snyder v. Harris, 394 U.S. 332, 340, 89 S.Ct. 1053, 1058, 22 L.Ed.2d 319 (1969); see also cases cited in note 105 infra. App. 54 ing the sheer necessity of such rules in order to retain the viability of the class action device.“ Many courts” and a host of commentators” have ex- pressed doubts that the minimum contacts test should be extended to unnamed members of a plaintiff's class. Im- posing a requirement that all class members be within the court’s jurisdiction would substantially negate the prac- tical effects of the class action device. “[R]equiring personal jurisdiction over all of the class members would in effect destroy the class action concept since by definition there could be no ‘absent’ members. If in every case unnamed class members were lurking in the background waiting to challenge the action due to lack C. — ae eee (3d ed. 1976) and cases cited therein. Similarly, for only the residence of one named party need be — mf Co. v. Advance- United Expressways, 494 F.2d 126 ce | Cir. 1974); Research Corp 2 Associated Growers, Inc., 301 F.Supp. 497 (N. D. Al. % Schlosser v. Allis- Chalmers Corp., 86 Wis. 2d 226, 271 N. W. ad 879 (1978); Shutts v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977), cert. denied, 434 U.S. 1068, 98 S.Ct. 2 55 L.Ed.2d 769 (1978). Contra, Feldman, v. Bates Mfg. Co., 143 N.J.Super. 84, 89-94, 362 A.2d 1177, 1179-82 (1976). Ross, Multistate Consumer Class Actions in Illinois, 57 Chi-Kent L 3 397 (1981); Comment, Multistate Plaintiff Class 1 Jurisdiction and Certification, 92 Harv.L. Rev. 718 (1979); Com- ment, Toward a Policy-Based Theory of State Court Jurisdiction Over Class Actions, 56 Tex.L.Rev. 1033 (1978); Comment, In Personam Jurisdiction Over Nonresident Plaintiffs in Multistate Class Actions, 17 Washburn L.J. 382 ag yb Comment, Consumer Class Actions with a Multistate Class: Problem of Jurisdiction, 25 L.J. 1411 (1974); K. Funds, Class Actions, 8-27 (III. Inst. for 1979); 3B J. Moore, Federal Practice, J 23.1115] (2d ed. 1980); Restatement (Second) of Judgments § 26 (Tent. Draft No. 5, March 10, 1978). Parsons and Starr, Environmental ion and Defendant Class Actions: The Unrealized Viability of Rule 23, 4 Envir. L. O. 881, 888-89 (1975). See also In re Securities Litigation, 79 F.R.D. 283, 291 (N.D. Cal. 1978). App. 55 of jurisdiction, courts would rarely, if ever, certify classes involving large numbers of plaintiffs. Such a result was never intended by either the early courts of equity or the drafters of modern Rule 23. above and rules governing class actions is resolved, at least with respect to plaintiffs’ classes,” by requiring that designated representatives adequately represent the interest of the class.“ The rule is plain, therefore, that if members ment entered a plaintiff class is, at worst, res judicata and denies an i See T an issue previously tried in a class in he was represented. See 28 in the Law—Class Actions, Harv.L.Rev. 1318, 1404 (1976). s Parsons and Starr, Environmental Litigation and Defendant Class oe a ee oe 23, 4 Envir. L.Q. 881, 888-89 (1975); 1 Defendant Class Actions, 91 Harv L. Rev. 630, 638 (1978); Note, Class Actions —Adequacy of Representa- App. 56 axis upon which all questions of due process and jurisdic- tional power turn.” In evaluating the assertion of jurisdiction in a case in- volving multiple plaintiffs injured by the identical conduct of defendants, the primary concern is whether the exercise of such power is fair and reasonable to the parties before the court. Courts have identified several factors that should be considered in assessing the reasonableness of subjecting an unwilling defendant to jurisdiction.“ This court will con- sider these factors in turn. 1. The Extent of the Partys Purposeful Integration Into the Forum State.“ In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) the Supreme Court, speaking in the context of an unwilling defendant, stated that the exercise of jurisdiction requires “that there be some act by which the defendant purposefully avails itself to the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.“ Some Problems in Class Actions, 9 Buff. L. Rev. 433, 434 (1960). Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. lenging the court’s jurisdiction. See World-Wide V v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Insurance Co. of North America v. Marina Salina Cruz, 649 F.2d 1266, 1270 (9th Cir. 1981); Rocke v. Canadian Automobile Sport Club, 660 F.2d 395 (9th Cir. 1981). * 375 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed. 2d 1283. App. 57 As previously discussed, this factor, which is only one of many for the court to consider, does not apply to exercise of jurisdiction over unnamed plaintiff parties in the class action context.” Rather, the “purposeful availment” of ade- quate representatives is sufficient. 2. The Burden of Defending in the Forum State. In the present class action suit, there is virtually no bur- den placed on out-of-state class members in the prosecution of this suit. Local class representatives will appear as wit- nesses and local class counsel will bear the initial expense of litigation. Any requirement that non-resident class members file affidavits in their home-state for use in the class suit in California presents a minimal burden in light of the sub- stantial savings of time and expense afforded all parties. 3. Conflicts with Sovereignty of Other States. It is now well-recognized that “the Due Process Clause, acting as an instrument of interstate federalism, may some- times act to divest the State of its power to render a valid judgment.“ The reasonableness of jurisdiction under this standard depends upon the seriousness of the potential affront to the sovereignty of a foreign state.” In the present case, there is a limited incursion into the sovereignty of other states with respect to the determina- tion of the amount in which the corporate defendant should be punished, The court does not purport to deprive other states of the power to try causes in their own courts. In fact, the single determination of the punitive damages * See notes 79-84 supra. " World-Wide Volkswagen v. Woodson, 444 U.S. 286, 294, 100 S.Ct. 559, 565, 62 L.Ed.2d 490 (1980). * Insurance Co. of North America v. Marina Salina Cruz, 649 F.2d 1266, 1272 (9th Cir. 1981). App. 58 issues may well protect the interests of non-resident class members who might otherwise be deprived of the oppor- tunity to collect additional sums as part of an award of exemplary damages.” In acknowledging the viability of multistate class actions and the special due process rules applicable thereto, the United States Supreme Court has recognized that the sover- eignty aspect of our federal system yields, to some extent, to the practical necessities of the representative suit. There- fore, the interests underlying our constitutional federalism do not apply with equal force to a federal class action. 4. The Forum States Interest in Adjudicating the Dispute.“ The interest of the forum state in this case is significant. A significant percentage of the parties allegedly injured by the defendant’s product are California residents.” This state has a significant interest in promoting safe products and in protecting its own citizens.“ Finally, this state has an in- terest in seeing that its residents not be deprived of a po- tential punitive damage recovery due to earlier awards made in other forums. 5. The Parties’ Interest in Convenient and Effective Relief. In analyzing the power of a court to assert jurisdiction, an important, though by no means determinative, factor to consider is the parties’ interest in obtaining convenient and effective relief, particularly when these interests are not Fee notes 37-39 supra. % World-Wide Volkswagen v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 556, 564, 62 L.Ed.2d 490 (1980). From cases filed to date, it appears that 15-20% of all potential plaintiffs reside in the state. * See discussion infra regardin es Se Came Se See sented in this lawsuit. Notes 162-63 infra. See also Taubler v. Giraud, 655 F.2d 991 (9th Cir. 1981). App. 59 adequately preserved by the plaintiff's personal choice of forum.” In the present case, both plaintiffs and the defendant stand to gain by having one binding determination of the punitive damage question. Certainly later plaintiffs are able to avoid the inevitable dismissal of their punitive damage claims. Similarly, the defendant is able to put a stop to repetitive litigation that runs the risk of punishing it over and over again for the same conduct. 6. The Interstate Judicial System’s Interest in Obtaining the Most Efficient Resolution of Controversies. In World-Wide Volkswagen v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 556, 564, 62 L.Ed.2d 490 (1980), the Supreme Court recognized that the exercise of jurisdiction may turn in some cases on the need for interstate coopera- tion in resolving controversies and the “shared interests of the several States in furthering fundamental substantive so- cial policies.“ The Court expressly recognized, therefore, that in some situations fairness to parties opposing juris- diction must be evaluated in light of factors such as judicial efficiency and interstate cooperation. In the present case, there is certainly a need for rational coordination of an otherwise unmanageable group of cases involving an identical issue, i. e., the amount of punitive damages the defendant should be required to pay for its alleged misconduct. All states in which punitive damages are allowed have a shared interest in seeing that the alleged misconduct is punished. % World-Wide Volkswagen v. Woodson, 441 U.S. 286, 292, 100 S.Ct. 556, 564, 62 L.Ed.2d 490 (1980); Kulko v. Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978). % 444 U.S. 286, 292, 100 S.Ct. 556, 564, 62 L.Ed.2d 490, ci Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L. Ed. 132 (1978). App. 60 The “minimum contacts” test was never intended to be a rigid formulation demanding blind conformity. Rather, it varies with the measure of values affected, the costs inflicted by failure to exercise jurisdiction and the facts of each case before the court.” The present case in- volves both the class action exceptions to normal jurisdic- tional requirements and a situation where the ultimate fair- ness to all parties concerned is a single determination of an issue with national implication. As such, the court has properly exercised jurisdiction over the members of this class within the parameters of due process and fundamental fairness. Subject Matter Jurisdiction Jurisdiction over the subject matter is critical in the federal court system because all federal courts are courts of limited jurisdiction.“ As such, this court is under an inde- pendent obligation to examine the basis of its jurisdiction over the subject matter in order to avoid an unconstitu- tional invasion of the powers reserved to the states. A class action must have an independent basis of jurisdiction as Rule 23 cannot be interpreted to extend in any way the subject matter jurisdiction of the federal courts.*” The present case satisfies this requirement because o See generally Carrington and Rash, Substantive Interests and the Jurisdiction of the State Courts, 66 Mich.L.Rev. 227 (1967). 1° See C. Wright, Law of Federal Courts 17-18 (3d ed. 1976); Green, Basic Civil Procedure 13 (2d ed. 1978). 0 13 Wright, Miller & Cooper, Federal Practice & Procedure, 8 3522 (1980 ed.); C. Wright, Law of Federal Courts 17 (3d ed. le Fed. R.CivP. 82. While no parties to this litigation have chal- lenged the court’s 21 parties within this class, this court is obliged to notice want of jurisdiction on its own motion. Kenosha v. Bruno, 412 U.S. 507, 511, 93 S.Ct. 2222, 2225, 37 L.Ed.2d 109 (1973). App. 61 it comes within this court’s diversity jurisdiction.” This court has examined two possible objections to the exercise of subject matter jurisdiction in this action. First, it might be argued that this case does not satisfy the so-called “complete diversity” requirement™ because certain unnamed class members reside in the same state as the defendant. This argument, however, ignores the rule that in a class suit, diversity is determined only by the citizen- ship of the named representatives.“ If a contrary rule applied, class actions would be unworkable due to the inability of the court to identify the citizenship of all un- named class members. In the present case all named plaintiffs, while repre- senting the gamut of injuries and claims, are residents of states diverse from that of the defendant. Accordingly, this court has jurisdiction on the basis of diversity. Second, the jurisdiction of this court might be attacked on the argument that each plaintiff in the class does not state a claim in excess of the $10,000 jurisdictional amount. This argument is premised on the United States Supreme Court’s decision requiring that each class member, named or unnamed, must meet the amount in controversy requirement.“ 108 See 28 U.S.C. § 1332. 10 In Strawbridge v. Curtis, 7 U.S. (3 Branch) 267, 2 L.Ed. 435 (1806) the rule was established that where there are multiple plain- tiffs or defendants, if any plaintiff is a citizen of the same state as any defendant, the diversity is not complete and no jurisdiction attaches. 10 Snyder v. Harris, 394 U.S. 332, 340, 89 S.Ct. 1053, 1058, 22 L.Ed.2d 319 (1969); Supreme Tribe of Ben-Hur v. Cauble, 255 US. 356, 363, 41 S.Ct. 338, 341, 65 L.Ed. 673 (1921); Friedman v. eyers, 482 F.2d 435 (2d Cir. 1973); C. Wright, Law of Federal Courts 355 (3d ed. 1976). 10 See 28 U.S.C. § 1332. 0 Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 App. 62 In determining whether or not all the plaintiffs satisfy the jurisdictional amount requirement, this court is guided by the rule that the “sum claimed by the plaintiff controls if the claim is apparently made in good faith.“ Further- more, “it must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. This rule applies to a plaintiff's claim for punitive damages. the face of plaintiff's allegations concerning punitive damages, this court cannot say to a legal certainty that the total award will not yield more than $10,000 to each successful claimant. If a contrary result appears, the court (1969) (aggregation of separate claims will not satisfy jurisdictional amount); Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 511, 38 L.Ed.2d 511 (1973) (“[e]ach plaintiff in Rule 23(b) (3) class action must satisfy the jurisdictional amount. ). After Zahn, it is uncertain whether the rules stated above apply with equal force to Rule 23(b)(1) and 23 (b) (2) class actions. Prior to the 1966 Amendment to Rule 23, the aggregation of claims always was permitted in the “true” class suit because like a 23(b)(1)(B) class, the plaintiffs’ rights were joint. common and derivative. See, e.g., Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); Brotherhood of R.R. Trainmen v. Templeton, 181 F.2d 527 (8th Cir.), cert. denied, 340 U.S. 823, 71 S.Ct. 57, 95 L.Ed. 605 (1950). However, in light of the jurisdictional amount in this case, this court need not address that issue at this time. 8 Ft. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). Accord, City of — v. City of Los Angeles, 451 F.2d 948, 952-53 (9th Cir. 10° Td. at 952. n gell v. Preferred Life Assurance Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943). un See note 4 supra. “2 Even assuming the success of all 1800 claimants at their indi- vidual trials, a $10,000 punitive damage award to each only would require a total fund of $18,000,000. Without passing on the merits < be beyond the reals of reasonable posubilty. Ragardlows, it does r 12 1 4 f i App. 63 can dismiss the punitive damage claims as to those parties who are shown to be unable to meet the jurisdictional requirement. The claims before this court for an award of punitive damages also satisfy the jurisdictional amount require- ment under an exception to the rule against aggregation of claims by multiple parties. The settled rule is that “when several plaintiffs unite to enforce a single title or right in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.” 1m The present plaintiffs arc seeking to vindicate a common integrated interest in a punitive damage award against the A. H. Robins Company. In Berman v. Narragansett Racing Association, 414 F.2d 311 (Ist Cir. 1969), cert. denied, 396 U.S. 1037, 90 S.Ct. 682, 24 L.Ed.2d 681, the court confronted a virtually identical set of facts. In Berman, the plaintiffs, as representatives of fellow race horse owners, brought a class action against the owners of a racetrack for their alleged failure to pay money alleged to be due plain- tiffs under annual purse agreements. The object c the class action was to determine the validity of a fund for later distribution to individual horse owners based on an as yet undetermined recovery formula. The district court in Berman dismissed the action for lack of subject matter jurisdiction and the First Circuit reversed. The court stated that the interest of the group of purse- winners in the asserted right was common and undivided, "8 For a similar treatment of the jurisdictional amount require- ment in a class action, see Payton v. Abbott Labs, 83 F.R.D. 382, 395 (D. Mass. 1979). n Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 417, 60 L.Ed. 817 (1916); see also C. Wright, Law of Federal Courts 139 n.8 and cited therein (3d ed. 1976). "8 414 F.2d 311, 314-15. App. 64 and as such, the amount of the fund, and not each plaintiff's individual interest therein, would constitute the “amount in controversy.” ** The court held that the plaintiffs’ claims constituted, in their totality, an integrated right against the defendant, notwithstanding the fact that each class member had an undivided interest in the distribution of the fund. Similarly, the plaintiffs in the present case have a com- mon and undivided interest in the recovery of punitive damages against the corporate defendant. While no in- dividual plaintiff has a “right to an award of exemplary damages, all plaintiffs have a collective interest in the creation of a fund sufficient to punish and deter any alleged misconduct on the part of the defendant. Accordingly, the court must look to the amount of the potential fund, and not the individual awards, for the determination of the amount in controversy. Accordingly, the court has subject matter jurisdiction. M.. L.—Jurisdiction Issue The plaintiff's counsel argues that this court is with- out jurisdiction to certify a class in these actions because a small number of cases still are pending in the District of Kansas, where they had been transferred by the Judicial Panel on Multidistrict Litigation (M. D. L.“).““ This 116 Jd. at 315. * The Berman court also noted that one factor of considerable importance in determining if the plaintiffs’ interests are aggregable is whether the defendant has an interest in how the funds will be In D Id. at 316. I Er. erman, the distribution formula that is adopted will not the defendant’s overall liability. on of this factor points to the finding that the interests of the, plaints are common plier ene Me — t their interest are separable Id., at 318 note 41 supra and note 156 infra. 119 See In re A. H. Robins Co., Inc., “Dalkon Shield” IUD Prod- ucts Liability Litigation, 406 F Supp. 540 (Jud.Pan.Mult.Lit. 1975). App. 65 court disagrees and holds that prohibitions on the exercise of jurisdiction over cases at multidistrict litigation do not apply to actions already remanded from such proceedings. The resolution of the jurisdictional question raised by the plaintiff's liaison counsel at M.D.L. requires a brief review of the relevant proceedings before the Judicial Panel on Multidistrict Litigation (“Panel”). In 1975, the Panel, acting pursuant to 28 U.S.C. § 1407,“ transferred all ac- tions involving claims for damages arising out of the use of the Dalkon Shield intrauterine device to the District of Kansas with the Honorable Frank G. Theis presiding.” The parties to the consolidated litigation conducted ex- tensive pretrial discovery which was made available na- tionally to all counsel. During the time pretrial discovery was conducted, the litigation before Judge Theis involved approximately one thousand actions. After almost four years of consolidated discovery, Judge Theis reported to the Panel that all pretrial proceedings 2 28 U.S.C. § 1407 (a) provides: (a) When civil actions involv- ing one or more common questions of fact are pending in different districts, such actions may be transferred to any district for co- ordinated or consolidated pretrial proceedings. Such transfers shall be this | snap ype 7 dre, - pre Spneneneg ow oped nen promote the just and efficient conduct of such actions. Each action so trans- 1. 1 HA ee ee pretrial proceedings to which it was trans- ferred unless it shall have been previously terminated: Provided, however, That the panel may separate any claim, cross-claim, counter- claim, o third-party claim and remand any of such claims before ion is rem F (Emphasis in original). 421 See In re A. H. Robins Co., Inc., Dalton Shield” IUD Products Liability Litigation, ‘Supp. "540, (Jud.Pan.Mult.Lit. 1975); In re A. H. Robins Co., Inc., “Dalkon Shield” IUD Products Liability Litigation, 419 F 710 Jud. Pan. Mult. Lit. 1976); In re A. H. Robins Co., Inc., Shield” IUD Products Liability Litiga- tion, 438 F.Supp. 942 (Jud.Pan.Mult.Lit. 1977). 7 App. 66 of a general nature had been concluded and that the ob- jectives of centralized pretrial proceedings under Section 1407 had been accomplished.” Accordingly, Judge Theis entered his pretrial order on November 28, 1977 and rec- ommended that the Panel begin remanding actions to their respective transferor courts.” Despite the fact that all common discovery was com- pleted in the transferee district,“ the transfer of the tag- along actions continued for the sole purpose of obtaining the benefits and restrictions deriving from the pretrial orders entered by the transferee judge. Recognizing the obvious procedural complications caused by this practice, the Panel began vacating its conditional transfer orders. In so doing, the Panel expressly noted that transfer of actions from the Northern District of California particularly was inappro- 122 See In re A. H. Robins Co., Inc., “Dalkon Shield” IUD Prod- ucts Liability Litigation, Docket No. 211 (D.Kan. 1977) (unpub- lished order); In re A. H. Robins Co., Inc., “Dalkon Shield” IUD py Liability Litigation, 453 F Supp. 108, 110 (Jud.Pan.Mult. Lit. ). 128 In re A. H. Robins Co., Inc., “Dalkon Shield” IUD Products Liability Litigation, Docket No. 211 (D.Kan. 1977) (unpublished order). 1 In re A. H. Robins Co., Inc. “Dalkon Shield” IUD Products Liability Litigation, 453 F. . 108, 110 (Jud.Pan.Mult.Lit. 1978). 125 A “tag-along” action refers to those cases transferred by the Panel to be joined with cases previously ordered to be trav.sferred. Rule 1 R.P.J.P.M.L., 78 F.R.D. 562 (1978); See also Weigel, The Judicial Panel on Multidistrict Litigation, Transferor Courts and Transferee Courts, 78 F.R.D. 575, 579 (1978). 128 In re A. H. Robins Co., Inc. “Dalkon Shield” IUD Products Liability Litigation, Docket No. 211 (Jud.Pan.Mult.Lit. October 7, 1980) (unpublished order). 12 See, e.g., In re A. H. Robins Co., Inc., “Dalkon Shield” IUD Products Liability Litigation, 505 F.Supp. 221 (Jud.Pan.Mult.Lit. 1981); In re A. H. Robins Co., Inc., “Dalkon Shield” IUD Products Liability Litigation, Docket No. 211 (Jud.Pan.Mult.Lit. October 7, 1980) (unpublished order); In re A. H. Robins Co., Inc., “Dalkon Shield” IUD Products Liability Litigation, 453 F.Supp. 108 (Jud. Pan.Mult.Lit. 1978). App. 67 priate because continuing transfer for multidistrict litigation would frustrate the local consolidation of cases for all pre- trial proceedings. Finally, in January of this year, the Panel vacated several more orders transferring actions for multidistrict treatment and stated that transfer “would not serve the conveniences of the parties and witnesses or promote the just and effi- cient conduct of the Dalkon Shield litigation.“ The Panel ruled that as of the date of its opinion, it would no longer issue conditional transfer orders. At the time of this court’s order conditionally certifying a class action, all discovery and motion procedures in the multidistrict litigation had been concluded and only fifty-four cases remained at the District of Kansas awaiting remand. At that time, however, Judge Theis, who retained jurisdiction over the fifty-four cases, had under submission a motion to reopen discovery for limited additional fact- finding pending a decision by the Panel on the defendant's motion to remand all cases. On October 9, 1981, nearly four months after this court certified a class action, the Panel deferred to Judge Theis’s intention to reopen dis- covery in the cases remaining before him and denied the request to remand.” 8 In re A. H. Robins Co., Inc., Dalkon Shield” IUD Products 1900) % Docket No. 211, (Jud.Pan.Mult.Lit. October 7, unpublished order). 19 In re A. H. Robins Co., Inc., “Dalkon Shield” IUD Products 505 F Supp. 221, 223 (Jud.Pan.Mult.Lit. 1981). % In re A. H. Robins Co., Inc., "“Dalkon Shield” IUD Products — Litigation, 505 F.Supp. 221, 223, n. 5 (Jud. Pan. Mult. Lit. 1981). nn re A. H. Robins Co., Inc., Dalton Shield” IUD Products Liability 521 F.Supp. 1188 (N.D.Cal. 1981). 2 In re A. H. Robins Co., Inc., Dalton Shield” IUD Products Liability Litigation, (Jud. Pan. Nuit. Lit. October 9, 1981) (un- — ceder). App. 68 Plaintiff's counsel argues that this court has no jurisdic- tion to certify a nationwide class action in cases previously transferred for multidistrict litigation. The plaintiff relies exclusively on In re Plumbing Fixture Cases, 298 F.Supp. 484 (Jud.Pan.Mult.Lit. 1968). In the Plumbing Fixture case, the Panel transferred nine antitrust actic as involving plumbing fixtures to the Eastern District of Pennsylvania. In answer to a request by the parties to one of the actions filed as a class suit, the Panel rejected the argument that it could transfer the cases before it but reserve the class action issues for determination by the transferor court. The Panel reasoned that it had neither the power nor the disposition to limit the transferee judge’s authority to rule on pretrial motions. The court estab- lished the unchallenged rule that once an action has been transferred for multidistrict litigation, the transferor court in that action is without jurisdiction to issue any orders, which includes a class certification order, until the case is remanded." The court in Plumbing Fixture premised its result on two legal grounds. First, the Panel noted that the purpose of Section 1407 was to eliminate the potential for conflicting pretrial rulings, and therefore its clear intent was to “invest the transferee court with the exclusive power, after transfer, to make the pretrial determination of the class questions.” The court stated that this rule was designed to insure speedy and economical coordination and would apply to an action 00 In re Plumbing Fixture Cases, 298 F.Supp. 484, 489-94; see also Wright, Miller & Kane, Federal Practice & Procedure, § 3862, p. 328 (1980 ed.). n re Plumbing Fixture Cases, 298 F.Supp. 484, 493 (Jud. Pan. Mult.Lit. 1968). 185 Id. at 496. App. 69 from the time it was transferred until the time it was remanded.” Second, the Panel in its Plumbing Fixture opinion recog- nized the jurisprudential maxim that “[t]wo courts of ex- clusive different jurisdictions, or venues, cannot exercise control over the same single c [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1213%3A2. Public record. Not legal advice.