This is аn interlocutory appeal. The appellants contend that the trial court erred when it denied their request for class certification of their tort action against the appellees. We affirm.
Jeanne Baker, Maria Valencia, Tina Thomas, and Mirtha Breslin (the “plaintiffs”) took, for weight-loss purposes, the prescription drugs fenfluramine, dexfenfluramine, and phentermine. The plaintiffs took different combinations of these diet drugs, in different quantities, and for different durations. In September of 1997, the diet drugs were removed from the market because it was discovered that they might cause valvular heart disease, pulmonary hypertension, and other health problems.
In 1998, the plaintiffs filed a class action against numerous manufacturers, supplies, and distributors (the “defendants”) 1 of fenfluramine, dexfenfluramine, and phentermine. The plaintiffs later voluntarily dismissed their allegations regarding the use of phentermine. The complaint included numerous сauses of action including negligence, products liability, failure to warn, and breach of express and implied warranties.* 2 The plaintiffs proposed that the class be divided into a subclass of asymptomatic plaintiffs who need to undergo medical monitoring, and a subclass of plaintiffs who have serious physical injuries.
Soon thereafter, the plaintiffs filed a motion to certify the class action pursuant to Ark. R. Civ. P. 23. On October 26, 1998, the trial court denied the motion because the plaintiffs had failed to satisfy the predominance and superiority factors found in Ark. R. Civ. P. 23(b). In particular, the court ruled that a class action would not bе the superior way to litigate this matter because the following individual issues predominated the common issues presented by this case: 1) the plaintiffs had different medical conditions and family histories at the time the diet drugs were prescribed; 2) the diet drugs were prescribed by different doctors who had different degrees оf knowledge regarding the risks posed by the diet drugs; 3) the doctors told the plaintiffs different things about the risks posed by using the diet drugs; 4) the plaintiffs had different levels of knowledge, which they obtained from outside sources, about the risks posed by the use of the diet drugs; 5) the plaintiffs took different combinations of the three different diet drugs; 6) the plaintiffs took the diet drugs for different durations; 7) some plaintiffs have no physical injuries, while others have physical injuries but of different degrees and types; and 8) the plaintiffs have different damages in that some want medical monitoring while others request traditional damages such as medical expenses, pain and suffering, etсetera.
The issue on appeal is whether the trial court erred when it denied the plaintiffs’ request for class certification because the predominance and superiority requirements found in Ark. R. Civ. P. 23(b) had not been satisfied. Arkansas Rule of Civil Procedure 23(b) provides, in relevant part, that:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
As we have said on several occasions, trial courts are given broad discretion in matters of class certification, and we will reverse the trial court’s ruling only when the appellant can demonstrate an abuse of that discretion. Seeco, Inс. v. Hales,
I. Predominance
First, we must decide if the trial court abused its discretion when it ruled that class certification was improper because the common questions of law or fact did not predominate over the questions affecting only individual members. In making this determination, we do not merely compare the number of individual versus common claims. Mega Life & Health Ins., supra. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of a bifurcated proceeding. See Seeco, supra; Mega Life & Health Ins., supra.
For example, in Seeco, we held that the predominance factor was satisfied because the common issue of whether the defendant had engaged in a scheme to defraud the plaintiffs could be resolved in a class action before decertifying the case for resolution of the individual issues of reliance and diligence. Seeco, supra. Likewise, in Mega Life & Health Ins., we held that the predominance factor was satisfied because the common issues of what type of insurance policy was issued, and what type of notice was required prior to termination could be resolved in a class action before decertifying thе case for resolution of the individual issues of reliance and damages. Mega Life & Health Ins., supra.
Mass-tort actions, however, present unique certification problems because they generally involve numerous individual issues as to the defendant’s conduct, causation, and damages. Courts, however, have recently distinguishеd between two different types of mass-tort actions: 1) mass-accident cases where injuries are caused by a single catastrophic event occurring at one time and place; and 2) toxic-tort or products-liability cases where the injuries are a result of a series of events occurring over a considerable length of time and under different circumstances. See James W. Moore, Moore’s Federal Practice § 23.47[4] (3d. ed. 1999); Herbert B. Newberg & Alba Conte, Newberg on Class Actions §§ 17.01 to 17.06 (3d ed. 1992); Charles Alan Wright et al., Federal Practice and Procedure § 1783 (2d ed. 1986). Due to the enormity and complexity of the individual issues рresented by toxic-tort and products-liability cases, class certification is more common in mass-accident cases than in toxic-tort or products-liability case. See James W. Moore, supra § 23.47[4] (citing numerous products-liability and toxic-tort cases where class certification was denied); Herbert B. Nеwberg & Alba Conte, supra § 17.22 (citing several products-liability cases involving tetracycline, bendectin, and DES where class certification was denied). In this regard, the Sixth Circuit has admonished that a court should “question the appropriateness of a class action” where “no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and the individual issues outnumber common issues.” Sterling v. Velsicol Chemical Corp.,
Likewise, we have been more inclined to approve class certification in mass-accident cases than in products-liability or toxic-tort cases. For example, we allowed class certification in the mass-accident case of Summons v. Missouri Pac. R.R.,
In contrast, we concluded that class certification was improper in Arthur v. Zearley,
Likewise, in Amchem Products, Inc. v. Windsor,
Even if Rule 23(a)’s commonality requirement may be satisfied by that shared experience, the predominance criterion is far more demanding. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) prеdominance standard.
Id. (emphasis added). The Court further opined that class certification was improper because the class members:
were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma .... Each has a different history of cigarette smoking, a factor that complicates the causation inquiry.
Id. (quoting the Third Circuit’s earlier decision in this same case, Georgine v. Amchem Products, Inc.,
We, however, are not holding that class certification should be denied in all products-liability or toxic-tort cases. Instead, wе hold that class certification is improper in this case because the numerous and complex individual issues predominate over the individual issues. As the trial court correctly acknowledged, and similar to Arthur and Amchem Products, this case presents numerous individual issues that go to the heart of the defendants’ cоnduct, causation, injury, and damages such that the defendants’ liability as to each plaintiff will have to be resolved on a case-by-case basis. In fact, as in Amchem Products, the only thing the plaintiffs have in common is that they all took one or a combination of the diet dugs listed in the complaint.
Nor can this case be bifurcated into certified and decertified proceedings as was done in Seeco, supra, and Mega Life & Health Ins., supra, because there are few global or common issues that can be resolved in the certified stage. For example, the appellants argue that issues concerning the defendants’ conduct, such as whether the diet drugs were defective products and whether the defendants adequately warned of the risks associated with taking the diet drugs, could be resolved on a class-wide basis. We disagree because even the resolution of these seemingly common issues will depend upon individual differences among the plaintiffs such as when they took the drug, the duration of use, the quantity taken, the combination used, their medical history and condition at the time of use, and the state of the art at the time the drugs were marketed. Likewise, causation cannot be resolved on a class-wide basis because there are numerous individual issues such as whether the plaintiffs assumed any risk, and what the doctors told the plaintiffs prior to use. Finally, damages cannot be resolved in a class action because some plaintiffs are asymptomatic while others have manifested physical injuries.
We have only listed some of the abundant individual issues that make certification at any stage of this proceeding improper. Accordingly, we have no hesitancy in holding that the trial court did not abuse its discretion when it ruled that the predominance factor of Rule 23(b) had not been satisfied.
II. Superiority
Because we affirm the trial court’s ruling that the predominance requirement has not been satisfied, we do not need to address the superiority requirement. Nevertheless, we have held that the superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. See Seeco, supra; Mega Lifе & Health Ins., supra. For the reasons stated above, a class action would not be the most efficient way of handling this case because the individual issues are so pervasive that even the bifurcation approach is not feasible.
The appellants also alleged that a class action would be more “fair” to the asymptomatic plaintiffs because the damages recoverable for medical monitoring would not justify the cost of bringing individual lawsuits. This argument is flawed for two reasons. First, the asymptomatic plaintiffs also asked for punitive damages, which could justify the cost of individual litigation. Second, fairness to the plaintiffs alone cannot compensate for the lack of predominance. Accordingly, we also affirm the trial court’s ruling that the superiority requirement has not been satisfied.
Because we conclude that the trial court did not abuse its discretion when it ruled that the predominance and supеriority requirements of Rule 23(b) had not been satisfied, we affirm the denial of the petition for class certification.
Affirmed.
Notes
The defendants involved in this appeal are Wyeth-Ayerst Laboratories Division, a Division of American Home Products Corporation; American Home Products Corporation; Interneuron Pharmaсeuticals, Incorporated; and A.H. Robins Company, Incorporated.
The complaint originally contained a sixth claim for medical monitoring. Upon the defendants’ motion to dismiss, the plaintiffs agreed to treat medical monitoring as a type of damages instead of a separate cause of action.