Georgine v. Amchem Products, Inc.

(4th Cir.1962), F.2d ceased; because that is Kekrides, Nafssica Individually evidence relevant in considering and as Administratrix of the Estate of its findings supported whether Kekrides, Deceased; Pavlos William H. Accordingly, record. the 1995 Sylvester, workers’ com- Repre Executor and Personal pensation decision is irrelevant. sentative of Sylves the Estate of Fred A. ter, Deceased, Although acknowledge we different v. decision-maker could have decided these facts PRODUCTS, that a INC.; constructive AMCHEM termination had oc- A.P. Green curred, Industries, Inc.; it is not our Armstrong role to substitute our In World judgment dustries, Inc.; for that Board. See NLRB Corporation; Certainteed Co., v. L Equipment & J C.E. Sons, Inc.; Thurston & F.2d Dana Cor (3d Cir.1984). poration; There is America, Inc.; substantial Ferodo evidence Flexi tallic, Inc.; support record to the hearing Building Materials, officer’s Gaf Inc.; determination that there I.U. America, Inc.; was no North constructive Maremont Corporation; termination of employment Morris’s prior to Manage Asbestos Claims election, Corp**; ment therefore we uphold will National Services Indus tries, Inc.; decision. Board’s Corporation; Nosroc Pfizer,

Inc.; Quigley Company, Inc.; Shook & Fletcher Company; Insulation N, T & III. PLC; Union Corporation **; Carbide Gypsum United States Company CONCLUSION For above, the reasons ADMIRAL set forth COMPANY; INSURANCE Cavert’s Af petition for filiated Fm review will be Company; denied and Insurance Aiu cross-petition Company; Board’s Insurance for enforcement of Allianz its Insurance Company; order granted. bewill Allianz Underwriters Insur Company, ance Individually and as

Successor to Allianz Underwriters, Inc.; Allstate Company, Insurance as Succes sor to Northbrook Surplus Excess and Company; Insurance American Bank ers Company Insurance Florida; American Centennial Insurance Com pany; American Home Assurance Com pany; American Motorists Insurance Company; American Re-Insurance Company; Appalachian Insurance Company Providence; Argonaut In surance Company; Atlanta Internation al Company; Insurance Caisse Industr ielle Mutuelle; D’Assurance C.E. Heath GEORGINE; Robert A. Winbun, Laverne Compensation Liability Insurance Executrix of Joseph the Estate of Company E. Employers’ Successor Winbun, Deceased, and in Her Surplus Own Line Company; Insurance Right; Vogt, Jr.; Ambrose Vogt, Joanne Centennial Company; Insurance Cen Wife; His Raver; Dorothy Carlos M. tral National Insurance Company of Raver, Wife; Timothy His Murphy; Gay Omaha; Chicago Company; Insurance Murphy, Wife; Ty Annas; His T. City Anna Company; Insurance Colonia Ver- Baumgartner, Marie Executrix of the sicherung Aktiengesellschaft; Colum Estate of John Baumgartner, A. De Casualty bia Company; Commercial **(Pursuant 11/9/94). to Clerk’s Order dated Company; Company; Ranger Insurance Company, as Succes Insurance

Union Company, Company; Casualty Republic Insurance Safeco sor to Columbia America; Safety Insur Employers Company Union Commercial Insurance Employers Company, Commercial Casualty Corporation, ance as Suc National America, Company of Casualty Insurance Safety Union Cor to Mutual cessor Liability Employers’ Assurance In poration; Fire and Marine St. Paul Limited; Compagnie Euro- Corporation Individually Company, and as surance Reassurances; the Constitu peenne De Birmingham Fire Insur Successor Company; Conti Insurance tion State Company; In Paul ance St. Guardian Employers Casualty Company; nental Company; Stonewall Insurance. surance Casualty Company; Evanston Mutual Surplus Company; Lines Steonewall re In Company; Executive Insurance Company; Alliance and Insurance Sun Inc., demnity to American as Successor PLC; Tokio Marine London Insurance Company; Federal Insurance Excess Company, Limited; & Fire Insurance Company; Reinsur General Insurance Indemnity Company; the the Travelers Casualty Corporation; Gibraltar ance Company; Unigard Insurance Travelers Employees In Company; Government Security Company, as Insurance Suc Company; Insur State Granite surance Unigard Mutual Insurance cessor to Highlands Company; Insurance ance Company; De Des Assurances Union Indemnity Company; Com the Home Paris; Company; Yosemite Insurance Company; pany; the Home Insurance Versicherungs, Allegemeine Eurinco Company; Insurance Houston General Ltd.; Company, A.G.; MF & Insurance Company; Insurance Hudson Insurance Concorde; Lexington Insurance La Pennsylvania; Company State Atlantique Company, Ltd.; L’Union Company; Casualty Fire Interstate & D’Assurances; Rotterdamse N.V. S.A. Company New Insurance Jefferson Zoonen; & Per Mees Assurantiekas Company; York; Insurance Landmark Com Continental National Tiard, Insurance Indi Fonciere La Preservatrice pany In to American Star as Successor vidually to La and as Successor .Fonci- Company; Newfoundland Transports surance Accidents ere Assurances Ltd.; Secours; Co., Preservatrice; New Insurance Le American and La Ltd.; Company; Company, Lil- Lexington Hampshire Insurance Insurance D’Assurances, to Lil- Assurance; as Sucessor loise Insur Reliance Phoenix Reassurances; (UK) et De D’Assurances loise Company; Insurance ance Sirius Casualty Compa Mutual Lumbermens PLC; Company, Insur Trident General Casualty Company; Maryland ny; Company; American Insur Great ance Company; Michigan Mutual Insurance Empire Company; American Sur ance Francaise; National Mutuelle Generale Company, as Au plus Lines Insurance Company of Cali Insurance American Transport Agent Behalf of thorized Stuyvesant fornia, to the as Successor Indemnity Company. Company; Union National Insurance Pittsburgh, Company of Fire Insurance Windsor, Windsor; Mi George Constance Indemnity Company; PA; Northbrook Windsor, Ap and Karen chael Windsor Corporation; North Star Reinsurance 94-1925, pellants 94-2009.* in Nos. Company; Republic Insurance Old Pennsylvania Associa Manufacturers’ Jersey, Lung of New Association White Company; the Protec tion Insurance Legal Action Victims National Asbestos Company of tive Insurance National Oil, Committee, Organizing Chemi Omaha; Reinsurance Com Prudential cal, International and Atomic Workers Company, In pany; Puritan Insurance Association, Union, The Trades Skilled dividually and as Successor Figueroa, O’Malley, Robert Myles Marta Insurance and Marine Manhattan Fire 12(a)). *(Pursuant F.R.A.P. Rule Maher, (in

Fiore, Lynn Maher, Roh her own behalf as next friend for children, her minor Jessica Marie Mah er, Maher, Jamie Marion and Jennifer

Megan Maher), Appellants in Nos. 94-

1927,94-1968.* Preston, R.

Richard Sr. and Louis Anderson, Appellants C. 94-1928, Nos. 94-2013.* Margaret Hertler,

Albert and Appellants

in No. 94-1929.* Blanchard, D.D.S.,

Richard E. Jack S. Bos ton, Anderson, James L. Repre Personal of Robert

sentative L. Anderson and McLeod, Appellants Harrison O. in Nos. 94-1930, 94-2066.* Cunningham, representative

Iona estate Cunningham, of Charles and Twi Appellants Sneed, la 94-1931, in Nos. 94-

2010.* Cargile, Betty

Aileen Francom, John Wong, Soteriou, John Harold Em- Hans Corey, merich Appellants and Thomas 94-1932, Nos. 94-2012.* Golt, Phyllis J.

William Sr. Golt, Appellants in Nos.

94-1960, 94-2011.* Lynne

Joe Dominguez, Appellants

in No. 94-2067.*

Kathryn Toy, individually, rep and as

resentative of the estate of Edward Toy, Appellants in Nos. 94-2068.* Smith, Appellant

John Paul

in No. 94-2085.* Balonis,

Casimir Margaret Balonis and Shepard Hoffman, Appellants A.

No. 95-1705.* 94-1925,

Nos. 94-1932, 94-1960, 94-1927 to 94-1968, 94-2013, 94-2009 to 94-2066 94-2068, 94-2085 and 95-1705.

United States Appeals, Court of

Third Circuit.

Argued Nov. 1995. May

Decided 1996.

Sur Petition for Rehearing Panel June Maher), Maher, Megan

Marion Jennifer 94r-1927, Appellants in Nos. 94-1968. (Argued), H. Tribe Brian Laurence S. Koukoutchos, Massey, Jonathan S. Cam- MA, Rosenthall, bridge, Brent M. Counsel Record, Baron, Baugh- Frederick M. Steve man, Budd, P.C., Dallas, TX, Baron & Preston, Richard R. Sr. and Louis C. Anderson, 94-1928, Appellants Nos. 94- Shein, Shein, Joseph D. Johnson & Bere- zofsky, Philadelphia, and Mar- Albert PA Hertler, garet Appellants in No. 94-1929. Macey, Timothy Hogan, Marla A. J. Law Angelos, Philadelphia, Office of Peter G. PA Blanchard, D.D.S., for Richard E. Jack S. Boston, Anderson, Repre- James L. Personal sentative of Robert L. Anderson and Harri- McLeod, 94-1930, Appellants in son O. Nos. 94-2066. Kazan, Simon, Kazan,

Steven Aaron Oakland, McClain, Edises, Abrams, Simon & Jocelyn Seligman (Argued), Lar- Brad CA kin, Albany, Ryu, David Rudov- Donna CA sky, Kairys, Rudovsky, Epstein, Kalman & Cunningham, for Iona Philadelphia, PA representative of the estate Charles Cun- Sneed, Appellants in ningham, and Twila Cargile, and Aileen Nos. 94-2010 94— Soteriou, Francom, Betty Wong, John John Corey, Harold Hans Emmerich and Thomas 94-1932, 94-2012. Appellants in Nos. Tomar, Simonoff, Spielberg, Joshua M. O’Brien, Haddonfield, NJ, for Adourian & Golt, Golt, Phyllis Appel- and J. Sr. William Brookman, Rosen- Cooperstein, Steven J. 94r-1960, in Nos. 94-2011. lants PA, Philadelphia, for berg, & Brown Sandler Donadío, Brayton, Gisvold & David R. Windsor, Windsor, Mi- George Constance Novato, Lynne Harley, for Joe CA Windsor, Appel- and Karen chael Windsor in No. 94-2067. Dominguez, Appellants 94-1925, 94-2009. lants Nos. Canfield, Crumplar, Douglas B. Jacobs & (Argued), Alan B. Mor- Brian L. Wolfman DE, Kathryn Toy, individu- Wilmington, for Sun, Litiga- rison, Public Citizen Alan T.L. of the estate ally, representative and as DC, Lung Washington, for Group, White tion 94-2068. Toy, Appellants Nos. Edward Jersey, Asbes- of New National Association Associates, Ferraro, Ferraro & James L. Organizing Legal Action Commit- tos Victims Smith, FL, Appellant Miami, for John Paul Oil, Chemical, tee, and Atomic Workers in No. 94-2085. Union, Trades As- The Skilled International Baltimore, MD, Hoffman, for Shepard A sociation, O’Malley, Figueroa, Myles Marta Balonis, Balonis, Maher, Margaret Fiore, Maher, Lynn Casimir Robert Roh Hoffman, in No. 95- Appellants (on Shepard H. friend for her own behalf and as next her Maher, children, Jamie Jessica Marie minor Miller, DeLorenzo, (Argued), Marshall, Warner, Dennehey, Jonathan

Gene Locks Locks, PA, PA, Philadelphia, Goggin, Philadelphia, Coleman & Ronald & Robert Greitzer Rice, Ness, Reeder, Motley, Joseph Motley, Shelley, F. R. P. L. William Cozen & Poole, O’Connor, PA, Loadholt, Charleston, Philadelphia, & Richardson Lawrence M. Chastain, Ballard, Ness, Silverman, Silverman, SC, Coopersmith, Desa A. L. Hillman Joel Loadholt, Poole, Frimmer, PA, Motley, Philadelphia, Richardson & Barn- & John P. O’Dea, well, SC, Ronon, Appellees, Georgine; Stradley, Young, Robert A. for Stevens & Winbun, PA, Philadelphia, Lynch, Timby, Executrix of the P. Láveme estate Daniel Winbun, deceased, PA, Timby, Joseph Philadelphia, E. her own Brown & Marc I. Jr.; Bressman, Larner, right; Vogt, Vogt, Budd, Gross, Rosenbaum, Ambrose Joanne his wife; Raver; Raver, Sade, Hill, NJ, Dorothy Greenberg Cherry M. & Carlos his David J. wife; D’Aloia, Saiber, Timothy Murphy; Gay Murphy, Schlesinger, his Satz & Gold- wife; Annas; stein, Newark, NJ, Ty Baumgart- T. Anna Molotsky, Marie Allan C. Post ner, Schell, PA, Philadelphia, Executrix of the Estate of John A. & Theresa W. Ha- deceased; Kekrides, jost, Parke, Baumgartner, DC, Washington, Nafssica Chadbourne & Zucker, German, individually and as administratrix of the es- Lisa B. Gallagher & Mu- Kekrides, deceased; PA, rtagh, Garcia, Philadelphia, Rudolph tate of Pavlos William Saul, Saul, Sylvester, Repre- Ewing, H. Executor and Personal Philadelphia, Remick & PA, Sylvester, Joseph Ruby, Wiley, sentative of the estate of Fred A. L. Fielding, Rein & Washington, DC, Remaining Appellees. deceased. for Morales, General, Attorney Dan Jorge (Argued), Wendy White, John D. Aldock S. Vega, Attorney General, First Assistant Geise, La- Runyan Wyner, Richard M. Elizabeth Hamilton, quita Deputy Attorney A. Anderson, Gardner, General Heather H. & Shea Elliott, Litigation, for Paul DC, Gaul, Assistant Attor- Washington, John G. Lawrence General, Chief, ney Natural Resolution, Resources Divi- Fitzpatrick, Center for Claims sion, Berwick, Brian Attorney E. Princeton, NJ, Assistant Appellees, Amehem Prod- General, Attorney Texas, ucts, Inc.; Industries, Office of General of Inc.; A.P. Arm- Green Division, Environmental Industries, Inc.; Protection strong Natural World Certainteed Division, Austin, Texas, Resources Sons, Inc.; Corporation; State C.E. Thurston & of Texas-Amicus America, Inc.; Curiae. Corporation; Dana Ferodo Flexitallic, Inc.; Materials, Building GAF Bryant, Brueckner, Arthur H. Leslie A. Inc.; America, Inc.; I.U. North Maremont Lawyers Justice, Trial for Public Washing- Corporation; Management Claims Asbestos ton, DC, Walbum, Robins, Roberta Kap- B. **; Industries, Inc.; Corp National Services lan, Miller, Ciresi, MN, Minneapolis, & for Pfozer, Inc.; Corporation; Quigley Nosroc Asbestos Victims of America and Trial Law- Inc.; Company, Shook & Fletcher Insulation yers for Public Justice-Amicus Curiae. N, PLC; Company; T & Union Carbide McSweeny, Riley, W. Donald Robert H. Corporation **; Gypsum United States Com- Schiff, Catherine Epstein, Masters Hardin & pany. Waite, IL, Chicago, Miller, King James D. & Brock, Stephen Welge, F. Manta & Phila- Spalding, DC, Washington, Philip McWeeny, delphia, PA, Mallon, Dunn, Haase, Joseph T. Gray, Owens-Illinois, Inc., Toledo, David L. Sullivan, Mallon, Broadt, Media, Chemer & Ohio, Owens-Illinois, for Inc.-Amicus Curiae. PA, Carlisle, Bowers, Lyn- R. Jeff Aaron L. Vial, Dallas, Texas, Robert G. Gordon S. Watkins, berg , Angeles, & Los CA Elit R. Rather, Jr., Rock, Arkansas, Little for Amer- Felix, II, Scherlis, Margolis, Edelstein & ican Board of Trial Advoeates-Amieus Curi- PA, Philadelphia, Rodgers, James J. Dil- ae. worth, Paxson, Kauffman, Kalish & Philadel- phia, PA, Brown, III, Drinker, BECKER, Wilson M. GREENBERG, Before: and Reath, PA, Philadelphia, WELLFORD, Biddle & Thomas C. Judges.*** Circuit *** Wellford, Harry designation. Honorable W. United States Circuit, Judge sitting by Circuit for the Sixth judicial THE polity: juris-

OPINION OF COURT daments of the federal diction, notice, justiciability, require- and the BECKER, Judge. Circuit ments of Federal Rule of Civil Procedure 23. Every presents great decade few cases judicial system opinion appeals that force the to choose be- This addresses of the dis- forging major 22, 1994, trict September tween solution social court’s preliminary hand, problem preserving injunction, on the one and its prohibits which members of the institutional values on the other. This is Georgine pursuing so-called from class asbes- such a It is a action case. class that seeks to personal injury tos-related any claims in oth- 250,000 settle the claims of between and pending er court the issuance of a final order 2,000,000 exposed individuals who have been appellants (“objectors”) this ease. The products against twenty to asbestos com- groups three aligned of individuals with in- panies as the known Center Claims Reso- challenge terests who the district court’s in- (CCR).1 notably, lution Most the settlement junction: Group”; the “Windsor the New extinguish would asbestos-related causes of Jersey Lung “White Group”; and the “Car- exposed currently action of individuals who (mesothelioma gile Group” victims from Cali- ailments, physical may, suffer no but who in fornia). objectors challenge The the district future, develop possibly fatal asbestos- (both jurisdiction personal court’s and sub- related disease. These “futures claims” of matter) ject action, underlying over the class “exposure-only” plaintiffs would be extin- case, justiciability adequacy guished though they yet even have not ac- notice, propriety and the of class certifi- crued. cation under Federal Rule of Civil Procedure settlement, memorialized a 106 document, page overnight. was not crafted Although we have serious doubts as to the Indeed, case, saga, more than a this is a requisite jurisdictional existence of reflecting lawyers the efforts of creative amount, justiciability, notice, adequacy of extremely judge an able district to deal with personal jurisdiction over absent class mem litigation explosion. the asbestos Asbestos bers, will, below, explained we reasons many has burdened dockets of pass over these difficult issues and limit our courts, particularly state and federal and has discussion to the class certification issues. challenged capacity judicial federal conclude that We this class meets neither the system. posed The resolution in this settle- 23(a) requirements typicality adequa arguably partial ment is a brilliant solution to 23(b)(3) cy representation, require nor the scourge has heretofore predominance superiority. ments global management defied venue. Corp. Pick-Up In re General Motors Truck However, against Liability Litigation, the need for effective Tank Fuel Products crisis, (3d Cir.) ], resolution of the asbestos we must F.3d 768 GM Trucks [Hereinafter integrity judicial system. Corp. balance the cert. denied sub nom. General Motors — French, U.S. -, complained Scholars have that the of use torts, (1995), that, par- class actions to resolve mass toxic L.Ed.2d 45 we held for settle claims, 23(a) ticularly involving classes, requirements those futures im- ment the must be properly judiciary applied involves the in going litigat the craft- as if the case were to be 23(b)(3) ing legislative vexing that, solutions to social ed. hold We now because the problems. merely requirements These criticisms protect the same interests in abstract; 23(a) efficiency are levied in fun- require- terms the fairness and as the Products, Inc.; Co., Inc.; Companies Quigley 1. The CCR are Amchem Pfizer Shook & Fletcher Inc.; Industries, Inc.; Co.; N, pic; Armstrong & A.P. Green Insulation Corp.; T Union Carbide Industries, Inc.; Gypsum Manage- and United States Co. World Asbestos Claims Coip. (formerly Gyp- ment known as National stopped CCR All the defendants manufactur- Co.); Coip.; sum CertainTeed C.E. Thurston and ing products circa 1975. The assets of Sons, Inc.; America, Inc.; Corp.; Dana Ferodo companies, together the CCR with their insur- Inc.; Building Corp.; Flexitallic GAF coverage, represent significant portion Materials ance America, Inc.; Coip.; pay I.U. North Maremont Na- the funds that will ever be available to asbes- Industries, Inc.; Corp.; tional Services Nosroc tos-related claims. ments, language is no in certifying plaintiff “[t]here and because der the class and remand sepa- can be read to authorize decertify that with directions [Rule 23] the class and rate, criteria injunction. liberalized settlement vacate the recognize We that our 23(b)(3) classes,” at the criteria must id. partial decision undermines the solution to if applied as the case were to be However, also be litigation the asbestos crisis. in policy may better litigated. so, be to doing While we avoid a serious in rend inquiry certification garment alter the class take judiciary of the federal that would account, into the current Rule 23 Court, settlement result from the even with the noblest exception. an permit motives, such does not exercising power that it lacks. We legislative thus legislative leave solutions to case, class, litigation as a this Examined channels. larger complex so much and more than all on record that other class actions it cannot I. BACKGROUND FACTS AND satisfy conceivably Initially, Rule 23. each PROCEDURAL HISTORY radically claim individual raises dif- legal ferent factual and issues from those of Reciting background proce- facts and differences, plaintiffs. other These when ex- history dural of this case could consume by ponentially magnified choice of law con- pages by is, the dozen. history This howev- siderations, eclipse common issues this er, already well known. It has been chroni- circumstances, predomi- In case. such opinion court, cled in the of the district see 23(b) nance of Rule cannot requirement be Georgine Prods., Inc., v. Amchem 157 F.R.D. Furthermore, amalgamation this met. of 246, (E.D.Pa.1994); 254-67 in the Cornell factually legally different cre- Review, Law Symposium, see Mass Tories: interest, problematic ates conflicts of which Desserts, Serving Up Just 80 Cornell L.Rev. typicality of the thwart fulfillment and ade- (1995); and has even surfaced on the quacy representation requirements of Rule (CLE) Continuing Legal circuit, Education 23(a). Primarily, the interests expo- Legal Intelligencer see (Philadelphia), Jan only plaintiffs sure are at odds with those of 31,1996, at (announcing a CLE Course on presently injured: the former have an Georgine”).2 short, the “Lessons of preserving large interest a fund as asbestos law world knows this case back- possible while the latter seek to maximize shall, therefore, wards and forwards. We set front-end benefits. forth the essentials. 23(b)’s This class also fails Rule superiority A. The Genesis the Case

prong. utilizing management Even tech- niques pioneered the Federal Judicial This case arises background Center, do not we see how an action of this litigation an asbestos crisis: magnitude complexity practically could danger [This] is a tale of known problem, tried as class. This 1930s, exposure upon inflicted millions of when combined with the serious fairness con- 1950s, Americans injuries 1940s and cerns caused the inclusion of futures began 1960s, to take their toll in the claims, impossible make it to conclude that and a flood of lawsuits beginning in the superior action is to alternative 1970s. past On the basis of and current adjudication. means of data, filing latency because of a period For preliminarily the reasons we have out- long years last as as 40 for some lined, explain and which we will now diseases, asbestos related a continuing depth, we will vacate the district court’s or- stream of claims can expected. The Administration, 2. Sympo- addition to the Cornell Law (1996) Review to 94 Mich. L.Rev. 899 sium, numerous articles have addressed the is- (discussing judicial review of mass tort settle- See, Coffee, e.g., sues raised in this case. John C. focusing case); Note, part ments and on this Jr., Class Wars: The Dilemma the Mass Tort Justiciability And Injury All?: Future Plain- Action, (1995) Class (arguing 95 Colum. L.Rev. 1343 Powers, Separation and the 109 Harv. tiffs L.Rev. prudential limits on mass tort class (1996) (addressing justiciability using actions and this class action as a case claims). of futures study); Nagareda, Turning Richard A. From Tort injuries transfer, final toll of asbestos related After the MDL Panel steering unknown. Predictions have been made of committees for the and defendants 200,000 asbestos disease deaths before the were global formed and commenced settle- 265,000 year many 2000 and as as negotiations. ment Judge appointed Weiner year 2015. ease, two of the class counsel Ronald objectionable aspects Motley Locks,

The most of asbes- and Gene as co-chairs of the briefly litigation can be summarized: Steering tos Plaintiffs’ Committee. Counsel for dockets in both federal and state courts CCR participants were active on the Defen- routine; grow; long delays to continue Steering dants’ Committee. long; trials are too the same issues are negotiations When these reached an im- over; litigated over and transaction costs passe, class began negotia- counsel and CCR recovery by nearly exceed the victims’ two tions to resolve liability. CCR’s asbestos Af- one; exhaustion of assets threatens and year discussions, ter a the two sides process; distorts the and fixture claimants agreement, reached a settlement and then may altogether. lose filed this class action. (No. VI), Litig.

In re Asbestos Prods. Liab. (J.P.M.L.1991) F.Supp. 418-19 Proceedings B. in the District Court (quoting Report The Judicial Conference Asbestos, (1991)) January 15, Ad Hoc on Committee 1-3 On the named (footnote omitted). complaint filed a on behalf of a class consist- (1) ing persons all exposed occupationally Seeking litigation solutions to the asbestos through occupational or exposure of a crisis, eight judges significant federal spouse or household member to asbestos- experience asbestos wrote the Judicial containing products supplied by or asbestos (“MDL Litigation Panel on Multidistriet Pan- (2) any defendant, CCR spouses el”), urging it to consolidate all the federal family persons, members of such who had single district. These not filed an against asbestos-related lawsuit judges argued that consolidation would “facil- CCR defendant as of the date the class ac- settlements, global itate and allow the trans- tion was commenced.3 Five of the named fully explore feree court to ... national dis- plaintiffs allege they have sustained position techniques such as classes and sub- physical injuries exposure as a result of Georgine, classes under Rule 23.” (citation products. the defendants’ asbestos F.R.D. at 265 Four quota- and internal omitted). plaintiffs allege named have been agreed, tions The MDL Panel exposed to transferring pending all the CCR defendants’ federal court asbes- asbestos- containing products yet yet tos cases that were not but have not sus- trial to the any Pennsylvania, Eastern tained assign- District of asbestos-related condition. On 22,1993, ing Judge settling parties them to R. December stipu- Charles Weiner for pretrial proceedings. consolidated lated See In re to the substitution of A. Robert Geor- (No. VI), Litig. gine Asbestos Prods. Liab. Carlough for Edward J. as the lead F.Supp. at 424. plaintiff, caption and the of the case has been Defendants) (or complaint against defines the class as follows: entities for (a) (or Defendant(s) persons legal representatives) whose actions or All their omissions exposed legal liability). who have been in the United States bear (or working (b) children, or its territories while aboard spouses, parents, All and other merchant, military, passenger ships), U.S. either or (or legal representatives) relatives their occupationally through occupa- or paragraph the class members described in exposure spouse tional of a or household (a) not, January above who have as of member, to asbestos or to asbestos-contain- 1993, filed a lawsuit for the asbestos-related ing products for one which or more of the personal injuty, damage, or or death of a who, legal liability Defendants bear (a) paragraph class member described in 15, 1993, January as of reside in the United against above in state or federal court territories, not, States or its and who have (or Defendant(s) entities for 15, 1993, January filed lawsuit for as- Defendants) whose actions or omissions the personal injury, damage, bestos-related or or legal liability). bear any against death in state or federal court accordingly. Georgine, 157 and on

changed qualifying the number of claims that may paid any given year. n. 1. We thus refer to the at 257 F.R.D. Georgine the plaintiff class as class. Claimants “extraordinary” found to have claims can be awarded more cap than the legal asserts various theo- complaint The allows, but a limited number of claims (1) warn, ries, negligent including failure to (three percent quali- of the total of number (3) (2) liability, express breach of and strict mesothelioma, lung fied cancer and “other (4) warranty, negligent infliction of implied claims, up percent cancer” and to one (5) distress, enhanced risk of dis- emotional qualified total number of “non-malignant con- (7) (6) ease, monitoring, and civil medical claims) ditions” can be found to be “extraor- conspiracy. plaintiff unspecified Each seeks Furthermore, dinary.” the total amount of $100,000. damages in excess compensation available to victims with such capped. Payment claims is itself under the day, On the same the CCR defendants adjusted settlement is not for answer, inflation. denying allegations filed an the plaintiffs’ complaint action as- the class and stipulation The does allow some claimants serting eleven affirmative defenses. Also on qualify payment who for but are dissatisfied day, plaintiffs the and same defendants with the pur- settlement offered CCR (“the parties”) jointly settling filed a motion However, sue their claims in stip- court. seeking pur- conditional class certification for severely ulation limits the number of claim- poses accompanied by stipu- settlement ants advantage who can take option. Simultaneously, lation of settlement.4 the Only percent two of the total number of settling parties agree- concluded another lung claims, mesothelioma and cancer one agreed ment: class counsel to settle their percent claims, of “other cancer” and one- pending inventories claims— percent half of a “non-malignant condi- expressly claims that excluded from were tions” previous year may claims from the sue against class the CCR defendants for system. action — in the tort Although million. over $200 generally bound to the settlement perpetuity, the defendants are not so limited. stipulation purports The of settlement Each may defendant choose to withdraw present settle all and future claims of class years. from the settlement after ten personal injury members for asbestos-related The claims exposure only asserted wrongful against or death the CCR members for increased risk of can- —claims January 15, that were not filed before 1993. cer, fear of futriré injury, asbestos-related stipulation The establishes an administrative and monitoring medical payment no procedure —receive provides compensation stipulation under the of settlement. In addi- exposure meeting specified claimants tion, claims, “pleural” which involve asbestos- exposure medical If criteria. criteria are plaques related lungs on the physical but no met, stipulation provides compensation impairment, receive compensation, no cash mesothelioma, for four categories of disease: though even regularly such claims receive cancer, (includ- lung certain “other cancers” monetary substantial payments in the tort ing colon-rectal, laryngeal, esophageal, and system. cancer), “non-malignant stomach condi- (asbestosis tions” pleural hand, and bilateral thick- On the other the settlement does ening). stipulation provides objective provide exposure-only pleural claimants criteria diagnoses. significant First, medical For those with stipula- benefits. claimants qualify, stipulation limitations, fixes a tion tolls all statutes of so that range damages any that CCR will award for claim that was not time-barred when the disease, each places caps both on the may action was commenced be filed at particular amount that a victim Thus, recover time the future. unlike Additionally, January the CCR defen- The insurance pending is still in the party See, dants filed a third action their e.g., Georgine district court. v. Amchem insurers, seeking Prods., Inc., declaratory judgment 93-0215, that the No. 1994 WL 502475 (E.D.Pa. 2, 1994). insurers are Sept. liable for the costs of tire settlement. system, pleural may tort where comprehensive opinions. claimants several On October 6, discovery 1993, have to rush to file suit on he ruled that subject the court had changes lining surrounding lungs jurisdiction in the their matter and that pre the action (before known), injuries justiciable their full are under sented a controversy. ease or See stipulation not Carlough Prods., Inc., the claimants do submit their v. Amchem they develop impairing (E.D.Pa.1993). claims until an F.Supp. illness. 27, On October Second, stipulation provides 1993, the certain he proposed concluded that the settle rights, “comeback” so that who claimants ment satisfied a threshold level of fairness compensated have non-malignant been for a sufficient to warrant ap notice and may condition file a second claim proved and receive plan. a notice Carlough v. Am- compensation they Prods., develop Inc., (E.D.Pa. further if later an chem 158 F.R.D. 314 ' 1993). asbestos-related cancer. It is estimated that We highlights summarize the of these 100,000 paid almost claims (cid:127)will be under the margin.6 decisions the settlement over the course of the next ten February On after several years.5 pre-trial months of proceedings, discovery, 29, 1993, January Judge motions,

On condi Judge Weiner Reed commenced a hear- tionally opt-out ing certified this class. He then to assess the fairness of the settlement. Judge referred the hearing matter to Lowell A. Reed eighteen days took and involved proce the establishment of settlement testimony the twenty-nine some witnesses. objections dures and the August resolution of to Judge the On Reed filed an Judge hearings settlement. Reed opinion held on a approving Stipulation the of Settle- aspects number of of the finally ease and issued ment and certifying Georgine the set- Stipulation 5. legal The terms of the are certainly jury discussed in be said to a might that a not greater Georgine, $50,000 detail in 157 F.R.D. at 267-86. any plaintiff. award See id. at 1462. Third, Judge rejected objectors' Reed the claim First, Judge rejected objectors’ Reed the con- that the was "collusive”—and therefore exposure-only plaintiffs, may tentions that who present controversy did not a case or —because presently physical have sufficient harm to Stipulation negotiated of Settlement was be- action, standing state a valid cause of lack formally complaint. fore class counsel filed the pursue litigation. Carlough, F.Supp. at Id. at 1462-66. He held that this case "is one standing 1446-56. He reasoned that Article III interests, but, involving genuinely adverse be- dependent upon plaintiffs’ ability is not settlement, dispute cause of the it lacks a as to action, depends state a valid cause of but that it remedy.” Id. at 1465. upon whether these have "suffered an 27, 1993, Judge On October Reed ruled that injury ized, particular- in fact which is concrete and proposed prelimi- "the settlement is fair for the merely and actual or imminent rather than naiy purpose deciding whether to send notice conjectural hypothetical.” (citing or Id. at 1450 appears product to the class in that it to be the 555, 559, Lujan Wildlife, 504 U.S. Defenders of serious, informed, negotiations, non-collusive it 2130, 2136, (1992)). 119 L.Ed.2d 351 deficiencies, improp- has no obvious it does not “exposure He concluded that to a toxic sub- erly grant preferential repre- treatment to class injury give stance constitutes sufficient in fact to class, segments clearly sentatives or and it plaintiff standing to sue in federal court.” Id. range possible approval." falls within the at 1454. Prods., Inc., Carlough v. Amchem 158 F.R.D. Second, respect to amount-in-controver- (E.D.Pa.1993) (footnotes omitted). He then sy, Judge hy Reed noted that “the sum claimed analyzed plan, concluding the notice plaintiff apparently if the claim is controls (with proposed specified notice certain faith,” modifica- good made in and the case wiE not be tions) "satisf[iedj requirements of Rules appears “legal certainty” dismissed unless it to a 23(c)(2) (e) $50,000 process and the due clause of the that the amount cannot be satisfied. Id. (citations Carlough, Constitution.” 158 F.R.D. at 333. quotations at 1456 and internal omit- Finally, Judge ted). rejected objectors’ Reed con rejected objectors' argument He then that, regardless tention of the content exposure-only or form of did not meet this plan, regarding potential Judge the notice notice standard. Reed future held first that “it is personal injury enough past exposure injuries aEeged claims for toxic that the kind of factual unconstitutional, per exposure-only plaintiffs physical, se either because such mone- — tary they injuries plainly support and emotional claimants not understand that — $50,000.” (cita- claim to more than Id. at 1459 members of the class or because cannot omitted). that, opt-out tion He also ruled if make an informed even he decision without disease, required claim-by-claim analysis knowing any, they may were to do what if suffer in claims, exposure-only plaintiffs’ it could not the future. Id. at 334 — 36. 622 jurisdiction exposure-only plain opinion, course of his ter over the In the class.

tlement requirements claims because such claims cannot ex class met the tiffs’ the held that he $50,000 by required that minimum the of Civil Procedure ceed the Rule of Federal Fourth, reasonable, they diversity argue fair and was statute. the settlement jurisdiction requirements personal court cannot assert class met the the to the that notice lacking Due Process over class members minimum con Clause. See 23 and of Rule Prods., Inc., forum, 157 F.R.D. tacts because such class Amchem Georgine v. (E.D.Pa.1994).7 meaningful opportu members have had a 246 nity opt out to and thus have not consented pre- then moved for a settling parties The jurisdiction. Phillips to See Petroleum Co. barring injunction class members liminary Shutts, 797, 811-12, 472 U.S. any against de- initiating claims CCR from (1985). 2965, 2974-75, 86 L.Ed.2d 628 judgment final in this pending a fendant 21, 1994, objectors granted Finally, the he have marshalled September case. On that, motion, injunction powerful three-pronged argument in explaining that the is virtually this futures class action with no necessary “the cost and time ex- because jurisdic- delayed opt-out rights, multiple in notice to absent class defending claims pended likely disintegration requirements in the cannot meet the result members tions would Georgine v. Rule 23 or the Georgine settlement.” Constitution. See Mullane v. of the Co., Prods., Inc., F.Supp. Central Hanover Bank & Trust 339 878 723 U.S. Amchem 306, 313, 652, 656-57, (E.D.Pa.1994). appeals 70 94 L.Ed. These followed. S.Ct. (1950). objectors argue The that notice is Appeal The Contentions on C. (1) problematic plaintiffs for futures because plaintiffs may they such not know that have opinion will address Although this exposed been to asbestos within the terms of issues, appeals these have class certification (2) action; this if class even aware of their Indeed, far from not been so circumscribed. exposure, plaintiffs, these who suffer no any Judge rulings, Reed’s acceding to see injuries, physical pay have little reason to objectors vigor- also note have supra announcements; attention to class action challenges justiciability, to ously sub- pressed (3) even if class out members find about the ject jurisdiction, personal jurisdiction matter they class action and realize fall within the members, adequa- class and the over absent definition, they adequate lack informa cy of class notice. properly opt tion to evaluate whether to out First, objectors argue that this is a of the settlement. justiciable feigned thus is not a suit —and controversy III settling parties under Article case or counter these contentions, plaintiffs arguing jurisdiction Constitution —because neither nor that the plaintiffs’ any litigat had counsel intention of the district court is secure and that the stric claims, ing merely process “futures” but seek their tures of due have been satisfied. First, approval objectors’ argument of a result that and defen to rebut the jointly pursued. feigned, settling parties dants have This contention this suit is point supported the fact that class counsel out that the district court’s resolution of that presented together largely the suit settlement issue their favor rested on fact findings, appeal with counsel for the CCR defendants in one and that this does not chal package, having negotiated lenge after with CCR a factual determinations of the dis of over million for settling parties side-settlement cases trict court. The allege $200 also Second, “inventory.” objectors that, their background of bitter adver exposure only plaintiffs contend that the lack gone many sarial that has on for standing bring they years their claims because compa between and asbestos (and injuries. Third, currently case), no actual suffer nies between counsel this subject that the court lacks mat assert suit was no more or less “collusive” than Judge opposing Reed later established new notice and tions made counsel the settlement. Prods., Inc., opt-out period, voiding prior opt-out Georgine notice and v. Amchem 160 F.R.D. (E.D.Pa.1995). period, remedy alleged improper communica- 101, 105, McLaughlin, brought and settled. U.S. S.Ct. actions other similar (1944) (expressing 89 L.Ed. 101 the rule requi- Second, existence of the regarding the questions that courts will avoid constitutional controversy, settling par- amount site so, (within possible). doing when we offend no a checkered precedent ties cite law, juris principle of constitutional for the easelaw) fu- holding that claims for body of in dictional issues this case would not exist monitoring with ac- injury and medical ture certification of this class but for the action. jur- distress meet the companying emotional certification, Absent the class there is no threshold.8 isdictional jurisdiction for a need determination over notice, Third, adequacy of class as to the claims, justiciability futures the of such settling parties submit the class the claims, notice, adequacy propri or the members, having the terms of the settlement injunction. ety protective of a nationwide them, position to in a better before were Moreover, a court need not reach difficult recipi- than the usual notice exercise a choice jurisdiction questions of can when the case come no idea how the case will ent who has ground be resolved on some other favor of assert, they though far less Finally, out. Mathews, v. See Norton party. 427 the same Trucks, convincingly in the wake of GM 524, 528-33, 2771, 2773-76, 96 S.Ct. 49 U.S. as requisites of Rule 23 are met well. Fauver, (1976); Elkin v. 672 L.Ed.2d 969 denied, (3d 48, Cir.), cert. F.2d 52 n. 1 justicia Although the existence 473, 121 L.Ed.2d 379 U.S. jurisdiction subject are not bility and matter (1992); Weathersby, United States doubt, although and we have seri from free (5th Cir.1992); Wolder v. United F.2d adequa to constitutional ous concerns as States, (9th Cir.1987). 807 F.2d notice, cy we decline to reach these of class issues, pass on to the class certification II. APPELLATE JURISDICTION dis- The class certification issues are issues. prudent Although it to it to positive, and we believe we deem wise not decide jurisdictional posed by unnecessary disposition most of the issues issues to the decide ease, case, many obliged the thresh- especially when of these we are to consider of the question appellate juris- implicate questions. old whether we have issues constitutional Serv., See, Spector Inc. v. propriety, e.g., Motor diction to review the under Feder- prior injunction, opt- settling parties the district court established an also contend that a 8. The Prods., case, Carlough period subject v. Amchem decision in this that it had matter out and found Inc., (3d Cir.1993) [Hereinafter 10 F.3d 189 Although jurisdiction. the dis- Id. at 200-01. ], jurisdictional challenges Gore decided the inquired jurisdic- trict court should have into its appeal. unpersuaded. We are Af- raised in this issuing injunction, we before held that tion Georgine commenced but ter the class action had subsequent district court’s orders constituted opt-out period, prior establishment an to the jurisdictional inquiry” necessary to an "initial (several plaintiffs members of the the Gore absent support preliminary injunction. its Id. at 201. class) complaint Georgine action filed a class Virginia plaintiffs unique posture, vety Gore we Gore West state court. The Given its read sought a declaration that were authorized to narrowly. that a district court Gore held Georgine "opt on behalf of a out” of the action preliminary attempt injunction an issue a Virginia class and to initiate their own West opt threatens to com- out en masse—which granted district court asbestos class action. The pletely undermine the federal class action—with- "necessary preliminary injunction in aid jurisdiction. of its out a full-scale determination jurisdiction” under the All-Writs Anti- [its] a federal class action is threatened with Where Acts, enjoining plaintiffs Injunction the Gore opt-out period destruction before the notice and prosecuting separate On from their class action. commences, jurisdictional inqui- even an "initial Court, argued plaintiffs appeal to this the Gore ry” "may be based on the information —which jurisdiction to en- that the district court lacked reasonably immediately available to the join because the district court had issued them court,” support sufficient to the court’s id.—is providing injunction absent before protective preliminary jurisdiction to in- issue class, Georgine opportunity opt an out of the question junction. did not reach the raised Gore jurisdic- necessary personal to establish which is propriety court’s case: the of the district in this plaintiffs lacking minimum contacts tion over completion jurisdiction, of the after assertion forum, the district court with the and before enjoin opt-out period, individual notice jurisdiction subject over that it had matter found litigation. pursuing from collateral Georgine panel upheld the dis- action. The because, injunction issuing its trict court's after Procedure of the district properly al of Civil addressed order to resolve Rule 1292(a)(1) preliminary injunction.” court’s class certification. section (footnote omitted); (emphasis original) Id. Although ap the district court has Blinder, accord Hoxworth v. Robinson & of settlement and cer proved stipulation Co., (3d Cir.1990). 903 F.2d 208-09 To class, Georgine settlement it tified the has do impinge right otherwise would on the to a judgment final not entered a because the 1292(a)(1) Kershner, appeal. See 670 F.2d at expressly stipulation of settlement condi assuming tioned on the insurers liabil OCR’s case, In this “directly class certification ity supra settlement. See note 4. disposition [injunction].” controls appeal Sep This is an of the district court’s injunction entire basis for the district court’s 1994, 22, injunction, preliminary tember protect is to underlying the If class action. prohibits Georgine which class members properly certified, the class was not the dis- pursuing from claims for asbestos-related authority trict court was without to issue its injury personal pending other court preliminary injunction. give To full effect to final the issuance of a order. The district appellants’ right injunc- the to review of the injunction preliminary pur court issued the tion, we must reach class certification. We Act, 1651, § suant to the 28 All-Writs U.S.C. also note that might concerns that militate Act, Anti-Injunction and the 28 U.S.C. present review are not in this case. 2283, provide authority § enjoin which notably, Most there is no indication that the litigation “necessary if collateral in aid” of district might court alter its class certifica- Gore, jurisdiction. the court’s 10 F.3d Kershner, Compare tion order. 670 F.2d at (3d Cir.1993). 189, 201-04 The district court concern). (expressing 449 injunction necessary found that be cause collateral would undermine III. CLASS CERTIFICATION implementation of the settlement. certification, To obtain class plain granting denying An order or satisfy tiffs must requirements all of the of generally appealable certification is until 23(a) Rule provision and come within one Coopers a final order has been issued. See & 23(b). Rule Liberty See Wetzel v. Mutual 463, Lybrand Livesay, 437 U.S. 98 S.Ct. Co., (3d 239, Ins. Cir.), 508 F.2d 248 cert. (1978) (class 2454, 351 57 L.Ed.2d certifica denied, 1011, 421 U.S. 44 S.Ct. 1291); appealable § tion not under 28 U.S.C. (1995). 23(a) L.Ed.2d 679 Rule mandates a Co., Westinghouse Broadcasting Gardner v. (1) (2) showing numerosity; commonality; U.S. S.Ct. 57 L.Ed.2d 364 (3) (4) typicality; adequacy represen (1978) (class appealable certification not un tation: 1292(a)(1)). § der 28 U.S.C. This Court has One or more may members of a class sue jurisdiction, course, under 28 U.S.C. or be representative sued as parties on 1292(a)(1) § preliminary injunc review (1) behalf of all if the class is so tion issued the district court. We further joinder numerous that of all members is pendent jur appellate conclude that we have (2) impracticable, questions there are isdiction to review class certification. (3) class, law or fact common to the claims or representative defenses of the Mazurkiewicz, Kershner v. In parties typical of the claims or defens- Cir.1982) (in (3d banc), F.2d 440 we held that (4) class, es of the representative class certification is on appeal reviewable parties fairly will adequately protect preliminary injunction from issuance of if the interests of the class. preliminary injunction “the properly cannot P. 23(a). Fed. R. Civ. be decided without reference to the class question.” certification Id. at 449. We rea that, We held in CM Trucks al soned propriety that if the though class certifica may class actions be certified for “directly tion disposition 23(a)’s controls purposes only, [in settlement Rule re junction], are, or way, quirements [if] the issues in some must be satisfied as if the ease inextricably bound[,] going then both issues must litigated. were to be See 55 F.3d (3d Cir.), any questions affecting only cert. denied sub nom. mate over indi- 799-800 — French, members, Corp. v. U.S. General Motors vidual and that a class action is (1995). -, 133 L.Ed.2d 45 superior to other available methods for the mandated, of the criteria is application Strict adjudication fair and efficient of the contro- pro parties have reached even when 23(b)(3). versy.” Fed. R. Civ. P. settlement, because posed designed to assure that courts Rule 23 is Trucks we GM reserved the identify the common interests of class will whether, question in the case of settlement plain- and evaluate the named members classes,9 fact of settlement be con ability fairly tiffs and counsel’s 23(b)(3) applying requir sidered . protect class interests.... To adequately settling parties ements 55 F.3d at 796. The requisites for the allow lower standards 23(a) factors, assert that in contrast to the hydraulic pres- face of the the rule protect rights, which absent class members’ adjudicating confronted courts sures 23(b)(3) promote factors the “fair and complex very large and actions would justice.” efficient resolution of The fact of by the protection afforded rule erode settlement, they argue, goes to the heart of entirely. almost 23(b)(3)’s “manageability Rule concerns” and omitted). (citation Therefore, de- Id. at 799 thus must be considered. settlement-only possibility that spite the 23(b)(3) disagree. requirements We purpose might serve the “useful class actions protect in the same interests fairness and ridding “albatross[ ]” the courts” of the of 23(a) efficiency requirements. as the More actions, by rule in represented mass tort importantly, pronouncement class certifica- we based our in this circuit is that settlement permissible is not unless the ease would a is a tion GM Trucks “a class is class” Id. “triable in class form.” have been large part on fact that is no “[t]here language the rule that can be read to 23(a) satisfying Rule In addition to separate, authorize liberalized criteria for requirements, putative class must meet the at 799. settlement classes.” Id. Whatever parts of one of the of subsection conditions (and, Advisory Committee on Civil Rules (b). case, settling parties In this seek course, ultimately Congress) may deter- of 23(b)(3), pursuant certification to which re- be, we do not believe mine the better rule findings predominance superi- and quires present rule included that the drafters of the ority i.e., questions or fact “that the of law — 23(b)(3).10 predom- standard for common to the members of the class more liberal 23(b)(3). whereby reject We this contention. In re 9. A settlement class is a device the court stated, par- postpones Litig. part: formal class certification until the in relevant School Asbestos successfully a settlement. If ties have concluded damage suits in Concentration of individual succeed, negotiations the court certi- settlement problems, one forum can lead to formidable purposes only settlement and fies the class for be but the realities of should not sends a combined notice of the commencement musings. overlooked in Most tort theoretical the class action and the settlement to the class settle, preliminary maneuverings and the cases By conditionally certifying the class members. much, litigation today designed if not in more, purposes only, allows for settlement the court purposes for settlement than for trial. challenge in the defendant to class certification in sav- Settlements of class actions often result apart. falls For a more event that the settlement ings for all concerned. description and detailed of settlement classes statement, import, whatever its Id. at 1009. This benefits, Trucks, their costs and see GM 55 F.3d holding. language Its is does not constitute at 786-92. broad, general, grammatically permissive. and Moreover, appears in a section in this statement settling parties argue that In re School 10. The 23(a) 23(b) and (3d Cir.), which the Court does both a Rule Litig., F.2d 996 cert. de Asbestos 789 Thus, District, analysis. insofar as In re School Asbestos Corp. sub nom. Celotex v. School nied settlement, 852, 182, 117, Litig. requires a consideration of 479 U.S. 107 S.Ct. 93 L.Ed.2d 23(a) Lancaster, requirement apply as well as would to Rule Gypsum Co.v. School Dist. National 23(a) 23(b). 915, 318, that Rule must But GM Trucks held L.Ed.2d 479 U.S. 107 S.Ct. 93 291 settlement, (1986), applied possibility there- requires be without reference the Court to take the argument. by rejecting settling parties’ applying into account Rule of settlement 626 putative All of the class members assert did not have the benefit court

The district it decided the Rule 23 when exposure Trucks to the asbestos sold GM claims based issues, applied an incorrect standard. it capacity by defendants. The the CCR require- First, that Rule 23 the view it took injury physical fibers to cause See, for settlement classes. lower ments are question, though surely a common that issue Prods., F.R.D. Amchem 157 e.g., Georgine v. See, long ago. e.g., In was settled re School (“The (E.D.Pa.1994) 246, Rule 23 re- 315 (3d 996, Cir.), Litig., 1000 Asbestos 789 F.2d ... are of- for class certification quirements Corp. v. cert. denied sub nom. Celotex readily in the settlement satisfied ten more Dist., 479 U.S. School for resolution the issues context because Gypsum and National L.Ed.2d Co. litiga- limited than in the are more the Court Dist., School U.S. S.Ct. context.”). Second, court the district tion (1986). Although L.Ed.2d 291 not identified significant part on the by relying erred court, the district there be several satisfy the Rule the settlement presence of questions, other common such as whether the 23(a) commonality, typicali- requirements representation, knowledge adequacy of and the defendants had of the hazards of ty, and 23(b)(3) requirements predominance asbestos, Rule adequately whether the defendants Georgine, 157 F.R.D. at superiority. See products, tested their asbestos and whether requirements But of these 314-19. each warnings accompanying products their taking into account must satisfied without adequate. were See id. at 1009.12 settlement, as if the action were Trucks, issues, litigated. However, beyond GM going to be these broad F.3d at 799. vary widely in class members’ claims charac- exposed ter. members Class were to differ- proper understanding the a of With asbestos-containing products, ent for differ- factors, appli turn now to their Rule 23 we time, ways, ent amounts of in different and below, explained For the reasons cation. periods. over different class members Some class, that this considered as a we conclude injury only physical asymp- suffer no or have 23(a) class, cannot meet the re pleural changes, tomatic while others suffer typicality adequacy quirements of of cancer, asbestosis, lung disabling from or 23(b) representation, requirements nor the which, despite from mesothelioma —a disease superiority.11 predominance of We will latency period approximately of fifteen to requirements. of these Instead discuss each addressing of in the conventional se forty years, generally them kills its victims within quence, arrange a functional we will use years they symptomatic. two after become ment, linking provisions. related history cigarette Each has a different of

smoking, complicates a factor that the causa- Commonality & Predominance A. inquiry. tion 23(a)(2) requires that “there Rule plaintiffs especially The futures share little questions of law or fact common to the common, in either with each other or with 23(b)(3) class,” requires and Rule “that the presently injured the class members. It is questions fact common to the of law or mem unclear whether will contract asbestos- predominate ques bers of over the class and, so, if related disease what disease each affecting only individual tions members.” They will suffer. will also incur different 23(b)(3)’spredo 23. Because R. Civ. P. Fed. expenses monitoring medical because their incorporates requirement minance the com depend singular and treatment will cir- monality requirement, we will treat them together. cumstances and individual medical histories. class, (2) impermissible 11. which stretch into the mil- This ment —an consideration —and lions, easily numerosity requirement. satisfies the exposure. the of asbestos harmfulness Geor- gine, at 157 F.R.D. only questions by 12. The common identified (1) district court are the fairness of the settle- sig- explicitly ground into factual differences translate removal on the These case See, legal only property damages. differences. Differences involved e.g., nificant (“[T]he expo- exposure and nexus between amount of 789 F.2d at 1009 claims are limited to applications injury disparate property damage, lead to sure and and school districts are causation, rules, legal including matters of unlikely strong of to have emotional ties to the fault, types damages comparative and the litigation.”).13 We believe the common- plaintiff. to each available ality higher in personal injury barrier is action, one, damages class like this that seeks Furthermore, apply must an because we issues, including to resolve all noncommon analysis to each individualized choice law issues, liability damages. claims, Phillips Petroleum Co. see Shutts, 797, 828, 472 U.S. Nevertheless, we do not hold that this (1985) (constitutional 2980, 86 L.Ed.2d 628 commonality requirement class fails the be- apply limitations on choice of law even commonality cause test of is subsumed actions), proliferation class nationwide predominance requirement, which this legal factual and issues is com- disparate conceivably proceed class cannot meet. We exponentially. The states have dif- pounded cautiously establishing high here because range governing the whole ferent rules commonality might reper- threshold for have plaintiffs’ claims: viabili- issues raised very cussions for class actions from different claims; ty availability of causes of of futures 23(b)(1)(B) ease, this as a such Rule limited monitoring, increased risk action for medical action, fund presents class which the action cancer, injury; and fear of future causa- ed claimants with their chance at recov- tion; proof necessary prove type ery. limitations; exposure; statutes of joint liability; eompara- and several Turning predominance, we hold that the short, tive/contributory negligence. identified, primarily limited common issues humon- number of uncommon issues single question of the harmfulness of action, gous perhaps many as a asbestos, satisfy predominance cannot re- members, is million class colossal. Indeed, quirement in this case. it does not by noting even come close. start We settling parties point out that our Advisory Committee’s well-known caution very cases have sometimes stated a low against certifying involving class actions commonality. In threshold for Neal Ca- (3d 48, Cir.1994), mass torts: sey, example, 43 F.3d 56 commonality require-

we stated that “[t]he resulting injuries A “mass accident” in satisfied if ment will be the named persons ordinarily appro- numerous not question at of fact or law with share least one priate for a class action of the because grievances prospective of the class.” significant questions, likelihood And, Litigation, in In re School Asbestos 789 damages liability but of and defens- 1010, F.2d at we stated that “the ‘threshold affecting liability, present, would be es ” (citation commonality high.’ is not omit- ways. In the individuals different these ted). quite But those cases are different circumstances an action conducted nomi- from this one. Neal involved a class action nally degenerate as a class action would relief, injunctive infinitely and thus raised multiple separately practice into lawsuits posed individualized issues than are fewer tried. Litigation In re here. And School Asbestos 23(b)(3) Advisory upheld Fed. R. P. Notes to the certification of a nationwide class Civ. damages action for associated with asbestos 1966Amendment. Moreover, Litigation argument had made a credible In re School Asbestos in- Class counsel vastly questions applicable states could be volved fewer individualized than law of the different id., patterns, (noting approximately id. at that the com- broken into four see this one. 1010 Cf. questions personal injury plexity we noted that the district court could decer- of causation prediction proved faulty. greater property damage tify to be suits is much suits). And, than for the class if this course, arguably into law did not Of this case could not be broken choice of magnify disparate anywhere patterns. greatly near that small a number of the number of issues.

628 injury varying types of at different times and

While, notwithstanding this caution mechanisms, involving single through acci there- note, different causal torts ary mass issues”), susceptible reh’g to Rule by creating many separate sometimes dent treatment, (5th 23(b)(3) Cir.1993), the individu appeal action granted, 990 F.2d 805 overwhelming (5th Cir.1994). dismissed, become can issues 53 F.3d 663 These alized (i.e., long-term mass torts involving recently actions led the Circuit to concerns Sixth single not arise out of a do which inju- those decertify a nationwide class action for accident). in In Circuit stated the Ninth As by perfile prostheses. In caused re ries Daikon District re Northern Inc., 1069, Sys., 75 F.3d American Medical of California Litigation, Liability Products Shield IUD (6th Cir.1996) (“Proofs as to strict liabil- 1081 (9th Cir.1982), cert. denied sub F.2d 847 693 warn, ity, negligence, failure to breach of Abed, Co., 469 Inc. v. Robins A.H. nom. vary implied will also express and warranties 817, 1171, 74 L.Ed.2d 1016 S.Ct. U.S. plaintiff plaintiff complica- because from (1983): may tions an AMS device be due to a situation, such typical mass tort In the ”). variety of factors ship or a cruise food airplane crash an as Although approved courts have some can proximate cause be deter- poisoning, torts, long-term mass class certification class-wide basis because on a mined generally have involved the cen these eases same common disaster is the cause of the “Agent trality single of a See In re issue. plaintiffs. for each Orange” Litig., Prod. Liab. 818 F.2d however, actions, liability products (2d Cir.1987) (expressing 166-67 concern common outnumber issues individual managing the difficulties of mass tort over happening single or accident No issues. finding suits but that class certification was types physical similar to cause occurs justified centrality of because of the damage. No one set property harm or defense), military contractor cert. denied liability. establishes No operative facts Co., Pinkney nom. v. Dow Chem. sub applies equally to single proximate cause 98 L.Ed.2d 648 U.S. class member and each de- potential each Co., Inc., (1988); In re A.H. Robins Furthermore, alleged tort- fendant. (4th Cir.) (“Just F.2d as the mili (such fail- affirmative defenses feasor’s tary [contractor] defense was central to the directions, assumption of the ure to follow Agent Orange, question case in so the risk, contributory negligence, and the stat- joint whether Aetna was a tortfeasor here limitations) may depend on facts ute was the critical issue common to all the plaintiffs case. peculiar to each Aetna, which, and one if not cases (citations omitted). Id. at 853 established, dispose would of the entire liti See, e.g., in accord. Ster cases are Other cert, gation.”), nom. denied sub Anderson Corp., ling v. Chem. 866 F.2d Velsicol Co., Casualty v. Aetna and Sur. 493 U.S. (“In (6th Cir.1988) mass, complex, toxic (1989). 107 L.Ed.2d 362 accidents, operative no one set of tort where case, course, any single This lacks central liability, single proximate no facts establishes issue. potential equally applies to each class cause predominant The lack of common issues defendant, and individual member and each particular problem has a been asbestos- issues, common the district issues outnumber example, in related class actions. For In re question appropri properly court should (5th Corp., 706 Fibreboard 893 F.2d Cir. resolving action for ateness of a class 1990),the Fifth Circuit stated: Co., controversy.”); Watson Shell Oil cf. 2,990 (5th Cir.1992) personal injury] The 1014, 1023 [asbestos (approving 979 F.2d 18,000 class members cannot be certified for trial plaintiffs injured in an class of some 23(b)(3). proposed under Rule Rule refinery explosion noting that “[t]his oil but 23(b)(3) requires questions markedly that “the of law from toxic tort differs Jenkins, Fibreboard, or fact common to the members [In cases such as (W.D.Mo. any questions predominate class over af- Tetracycline F.R.D. 719 re] [107 1985)], fecting individual members.” There are plaintiffs which numerous suffer among Additionally, many disparities plaintiffs the various too have asserted recovery common concerns to various plaintiffs against for their theories of defendants, The from predominate. suffer and the nine defendants have diseases, alleged of which are more differing different some affirmative defenses by likely plaintiffs. example, to have been caused asbestos For exposed may than others. The were statute of limitations plain- bar some tiffs, manners During year to asbestos various but not others. the ten varying degrees. plaintiffs’ lifestyles period knowledge the state of medical was respects. changing, significant differed in material To create bearing which has a trial, commonality requisite duty the dis- on the defendants’ to warn of dan- components gers. Taking crete of the class members’ all these factors into consid- eration, claims and the asbestos manufacturers’ de- the Court is convinced that submerged. questions fenses must be number of uncommon of law and predominate fact would over the common (citations omitted). In In re Tem- Id. at 712 questions, and the case would therefore (11th Cir.1988), ple, 851 F.2d 1269 the Elev- ‘degenerate multiple ... into sep- lawsuits expressed enth Circuit similar concerns: arately tried.’ commonality Although the record on Id. at 570-71. typicality sparse, of the class is the district encompasses court’s order its face Many by settling of the cases cited variety

potentially wide of different condi- parties in support of class certification are by types tions caused numerous different distinguishable they because involved exposures. have no indication that We partial certification of common issues. See experiences claimants’ share factors Wesleyan College Central v. W.R. Grace & Raymark in other than asbestos and com- Co., (4th Cir.1993) (“[T]he 6 F.3d mon. district court exercised its discretion under (footnote 23(c)(4)(A) omitted). 23(c)(1) to certi- Id. at 1273 and citations Fed.R.Civ.P. fy conditionally eight the class ... on com- draw from Yandle v. We also instruction issues.”); Indus., Raymark mon Jenkins v. Industries, Inc., PPG 65 F.R.D. 566 (5th Cir.) Inc., (“According- 782 F.2d (E.D.Tex.1974), where the district court re- ly, district certified [the court] the class as to certify narrowly fused to a much more cir- questions, ordering the common them re- cumscribed asbestos action —one jury.”), solved for the class class action brought by employees former of an asbestos (5th denied, Cir.1986); reh’g F.2d 1034 plant. The court stated: Labs, Payton v. Abbott 83 F.R.D. Pittsburgh Corning plant was in [T]he (D.Mass.1979) (certifying class as to limited Tyler year operation period, for a ten issues), vacated, common 100 F.R.D. 336 during persons which some 570 were em- (D.Mass.1983). Other cases relied on periods of ployed for different time. it settling parties are mass tort cases where employees posi- These worked in various try appeared possible to a number of com- plant, exposed tions at the and some were mon issues and leave the individual issues to greater dust concentrations See, groups plaintiffs. e.g., trials of small employees than were others. Of these it is Sterling Corp., v. Velsicol Chem. 855 F.2d only natural that some have had occu- (6th Cir.1988) (“[Individual 1188, 1197 mem- pational diseases when entered their required still will bers the class employment Pittsburgh Corning. for concerning particular- their submit evidence peculiar There are other that will be issues subsequent proceed- damage ized claims in plaintiff predominate to each and will ings.”). did not seek to resolve These cases case, employee’s such knowl- this as: The anywhere near the number of individual is- edge appreciation danger of the of presented in this case. sues further, breathing asbestos dust given respira- pages In set forth at employee whether the was view of the factors thirty-five thirty-six, and for the reasons tor and whether he used it or refused to pages thirty-six forty-two, we use it.... stated on (1995). However, pre- Judge class fails the test of this Reed resolved this conclude that largely if were to issue in favor of class counsel on Even we assume the dominance. objectors beyond findings basis of fact that the common to the class have issues some question challenged. Georgine, See at essentially of the harmful- F.R.D. settled remain, exposure huge 326-330. ness of individualized issues ov- important of number prong inquiry, As to the first of the howev- questions. any common Given the erwhelm er, we conclude that serious intra-class con- legal individualized factual and multiplicity of preclude meeting flicts from class issues, by of magnified choice law consider- adequacy representation requirement. ations, no means conclude “that can we certainly The district court is correct that or fact common of law to the questions “the members of the class are united in predominate any class over members of seeking recovery possible the maximum affecting only individual members.” questions Georgine, their asbestos-related claims.” (citation omitted). 157 F.R.D. at 317 But the Representation Adequacy B. simply provide settlement does more than 23(a)(4) Rather, general recovery requires that “the fund. it makes Rule fairly important judgments recovery representative parties will and ade on how is to among plain- the interests of the be allocated different quately protect class.” kinds of 23(a)(4). tiffs, necessarily adequacy P. The decisions that favor Fed. R. Civ. some inquiry components example, claimants over representation has two others. For under many (e.g., that absentees’ the settlement kinds of designed to ensure interests claimants First, asymptomatic with fully pursued. pleural thickening) the interests of the those sufficiently get monetary no plaintiffs aligned must be award at all. The settle- named Trucks, provision absentees. ment makes no those of the GM for medical moni- component toring payment This an or for F.3d at 800. includes loss consortium. among inquiry potential opt into conflicts various The back-end out is limited to a few class, 800-01, persons per year. see id. at relegates members of the be The settlement plaintiffs’ unlucky enough named interests cannot those who are cause the to contract align years with those of absent class members if mesothelioma in ten or fifteen to a recovery, average the interests of different class members are modest whereas the recov- Second, alignment. ery not themselves class mesothelioma tort system qualified and runs into counsel must be must serve the the millions of dollars. short, entire class. interests of the Id. at 801. settlement makes numerous deci- sions on which the interests of different Although questions have been raised con types of class members are at odds. cerning prong inquiry, the second of the we do not resolve them here. As we have brief The most salient conflict in this class ac- above, objectors ly forcefully injured noted have tion is presently between the argued adequately counsel plaintiffs. actors, that class cannot futures As rational those represent yet injured the class because of a conflict of who are not would want reduced eyes objectors, In the of the payouts (through interest. current caps compensa- brought counsel have a collusive action on tion awards and limits on the number of having behalf of the CCR defendants after paid year). claims that can be each paid been over million to settle their $200 futures should also be interested in inventory previously protection against inflation, filed cases. The ob having in not jectors preset also adduce evidence that many class coun limits on how can cases sel, settlement, handled, part abjured limiting ability have and in of defen- any litigate the claims of companies intention dant to exit the settlement. are, Moreover, plaintiffs. allegations futures These in terms of the structure of the course, overtones, rife with ethical dispute which alternative resolution mechanism es- vigorously settlement, have been debated the acade tablished should de- my. Symposium, Serving provisions Mass Tortes: sire keep pace causation that can Desserts, Up changing medicine, Just 80 Cornell 811 L.Rev. science and rather

631 freezing place than the science of 1993. placing both asbestos victims and co-de- Finally, difficulty because of the in forecast- fendant subclass, manufacturers in the same hold, ing what prob- their futures would observed, the court “Their interests pro- are ably a delayed opt desire out like the one foundly adverse to each other. The health employed Inc., Bowling Pfizer, v. 143 claimants wish to receive as possible much as (S.D.Ohio 141, 1992) (heart F.R.D. 150 valve from the manufacturers, co-defendant ultimately settlement allows claimants who the latter wish to hold payment their obli- experience reject heart valve fracture to gations a to minimum.” Id. at 739. The guaranteed compensation and sue for dam- court concluded: time). ages at that representatives The class may well have contrast, In those currently who are in- thought that the Settlement serves the jured rationally would want to maximize aggregate interests of the entire class. payouts. Furthermore, currently current But adversity among subgroups re- injured plaintiffs would care little in- about quires that the members of subgroup each flation-protection. delayed opt The out de- cannot bound to a settlement plaintiffs except by sired futures would also be of given by little consents presently injured; interest to the those who in- understand deed, their opt that interests such an their role represent is to solely the people out as more locked into the set- of respective members their subgroups. tlement, likely the more it is to survive.14 Id. at 743. The lack of protec- structural sum, presently injured representa- In tions this case thwarted adequate rep- adequately represent tives cannot the fu- disparate resentation of the groups plain- of plaintiffs’ tures interests and vice versa. tiffs. (as This conflict well other conflicts among claimants) different types pre- of Typicality C. finding adequacy representa- cludes tion. The class is not unlike the one in GM Typicality requires that “the Trucks, where conflict between individual claims or defenses of the representative par prevented and fleet truck finding owners typical ties are of the or claims defenses of adequacy representation. See GM the class.” Fed. R. P. typicality The Civ. Trucks, (“[W]e 55 F.3d at 801 must be con- requirement preclude is intended to certifica cerned that the individual owners had no tion of legal those cases where the theories of recovery incentive to maximize the plaintiffs potentially named conflict with entities; government they could skew the those of the absentees. Casey, Neal v. See terms of the settlement to their own bene- 48, (3d Cir.1994); 43 F.3d Eisenberg v. fit.”). (3d Gagnon, 770, Cir.), 766 F.2d cert. protections Absent structural to assure denied nom. Eisenberg, sub Weinstein v. differently plaintiffs situated negotiate 946, 342, 290, 474 U.S. 106 S.Ct. 88 L.Ed.2d unique interests, their own the fact that Eisenberg, Wasserstrom v. 474 U.S. plaintiffs types among different were Pelino, 106 S.Ct. 88 L.Ed.2d plaintiffs named rectify does the conflict. Wasserstrom, Monteverde, Chucas and P.C. principle This explained by was the Second Eisenberg, 474 U.S. Circuit In re Joint Eastern & Southern (1985). L.Ed.2d inquiry assesses District Litigation, Asbestos 982 F.2d 721 (2d whether the named Cir.1992), have incentives sub nom. Findley v. modified Blinken, (2d align Cir.1993), 993 F.2d with those of absent class mem a case arising out of the bers so Bankruptcy Manville reor- that the absentees’ interests will be ganization. addressing Neal, a conflict fairly represented. created 43 F.3d at 57. als,” i.e., 14. The presently conflict between people futures and pleural who suffer thicken- Consider, injured plaintiffs ing, uncompensated obvious. exam- and who remain under the ple, deposition testimony settlement, representative compensated by "don’t deserve to be plaintiff Baumgartner, Anna anyone,” despite whose died husband the fact that cur- such “pleur- rently mesothelioma. testified that large system. She awards in the win tort 632 not injured plaintiffs are named claims of the that the believe commentators Some members. typical the futures class typicality of commonality and

concepts of Arthur Wright, Alan Charles merge. 7ASee only futures if this class included Even Kane, Kay Prac Mary Federal & R. Miller that skeptical we would be plaintiffs, (1986). 1764, § at 248-47 Procedure tice and typical of the could be deemed representative sure, that seek to assure criteria, be to Both problems created In addition to the class. efficiently practically and can be the action costs, monitoring medical differences the ab interests of that the and maintained plaintiff’s future is com- of each the course adequately repre fairly and bewill sentees pointed out our pletely uncertain. As we v. Southwest Tel. Co. See General sented. of commonality, plaintiffs some of discussion 13, 147, 102 S.Ct. Falcon, 157 n. 457 U.S. mesothelioma, some may ultimately contract (1982). 13, But L.Ed.2d 740 2864, 72 n. 2371 asbestosis, suffer less some will get commonality and similarity, despite their diseases, incur little or and will some serious under requirements are distinct typicality impairments. these uncer- physical Given no 169, Jeffes, F.2d v. 846 Hassine Rule 23. See vastly tainties, ultimately turn into will which Cir.1988) (“ <[C]ommonality’ (3d like n. 4 176 outcomes, futures the different sufficiency of the ‘numerosity’ evaluates generate to a too little common share ‘adequacy of itself, ‘typicality5like and class simply impossi- representative. is typical It sufficiency of evaluates representation’ legal theories of named say that the ble to York v. plaintiff....”); Weiss the named not in with those plaintiffs are conflict (3d Cir.1984), 786, n. 810 36 Hosp., 745 F.2d Neal, 57; absentees, at Eisen- see 43 F.3d 1777, 1060, 105 84 denied, S.Ct. U.S. 470 cert. (3d 770, 786 Cir. berg Gagnon, 766 F.2d 836, sub nom. cert. denied L.Ed.2d and 1985), plaintiffs have in- that the named or Hospital v. York and Dental Medical Staff of align, of with those centives absent^class 1777, Weiss, 105 S.Ct. 470 U.S. Neal, members, 43 F.3d at 57. see (1985). typicality We think that L.Ed.2d 836 adequacy representation: of akin is more Superiority D. for conflicts potential both look to the class. 23(b)(3) requires, in addi Rule is predominance, “that a class action tion to pre- commonality and As our discussion methods for superior to other available clear, hodge- this class ais dominance make adjudication of the contro fair and efficient factually legally as well as different podge of 23(b)(3). P. The rule versy.” Fed. R. Crv. Moreover, our discussion plaintiffs. balance, in terms of fairness asks us shows, these dif- adequacy representation action efficiency, the merits of a class of inter- problematic conflicts create ferences “alternative methods” those of available members of the class. among est different adjudication. Blanche See Katz v. Carte to hold no set of lead us problems These (3d Cir.) (en banc), Corp., F.2d “typical” be of this class. representatives can denied, 419 U.S. cert. plaintiffs include a though named Even (1974). that in this L.Ed.2d 125 We conclude in- mix of fairly futures representative problems, has serious case class action a underlying com- lack of jured plaintiffs, which, compared other means of when necessarily conflicts monality and attendant adjudication, outweighed not its ad are In typicality. destroy possibility vantages. Inc., Sys., 75 F.3d re American Medical Cir.1996) (“[W]e (6th proposed class suffers serious from action know efficiency in both and fairness. plaintiff problems complaint that each the amended efficiency, magnitude model, experienced terms of class and each used a different tried. There allegations complexity could difficulty.... These a distinct issues, other, many simply too typical to each uncommon a claim fail to establish surely too class.”). of class The claims of named number members let alone then, class, large. in- Considered as typical futures are not likely in the members, and, to be encountered jured conversely, the the difficulties management of this action are physical insurmounta- manifest may no disease pay little 23(b)(3)(D).15 ble. See Fed. R. Civ. P. attention to class action announcements. physical injuries, Without people unlikely This action class also suffers from serious to be on they give notice that up can causes problems in the fairness it to the accords of action that yet Third, have not accrued. plaintiffs. plaintiff Each significant has a if even class members find out about the individually controlling interest prose in the class action they and realize fall supra separate cution of actions. within the note Civ.P.23(b)(3)(A)). definition, they class may (Fed. adequate R. lack in- This is not a properly case where formation to “the amounts at stake for individ evaluate whether to separate opt uals so small [are] that out of suits would the settlement.16 23(b)(3) impracticable.” Fed. R. Civ. P. To amplify, the fairness concerns created Advisory Notes to 1966 Rath Amendment. by the in providing adequate difficulties no- er, this action personal involves claims for especially tice are serious exposure- because injury signifi and death —claims that have a only plaintiffs may eventually contract a fatal impact cant on the lives plaintiffs of the and disease, mesothelioma, only from incidental frequently that huge receive in awards the exposure to Athough only asbestos. a small Indus., system. See Yandle v. PPG tort exposure-only fraction of plaintiffs will devel- Inc., (E.D.Tex.1974) 65 F.R.D. mesothelioma, op the presently disease is (“[T]he court finds that the members fatal, always generally years within two purported class have a vital in con interest diagnosis. death, Prior to mesothelioma vic- trolling litigation their own it in because invariably tims great pain suffer and disabili- personal injuries volves serious and death cases.”). ty. can by slight Mesothelioma be caused some Plaintiffs have a substantial making exposure stake individual incidental to asbestos decisions on fibers. whether The and when to settle. disease has been known to occur in persons who lived asbestos-exposed with an Furthermore, action, plaintiffs this class parent, or in household who members may become bound to the settlement even if washed people the clothes of who worked they are unaware of the class or lack action with asbestos. Unlike other asbestos-related sufficient information to evaluate it. Prob- cancers, medically mesothelioma has one in adequately notifying lems informing established cause: exposure. asbestos The exposure-only plaintiffs of what is at stake in unpredictability of mesothelioma is further may this class action be insurmountable. long latency period exacerbated be- First, exposure-only plaintiffs may not know exposure tween to asbestos and the onset they exposed that have been to asbestos disease, typically forty between fifteen to within Many, the terms of this class action. result, years. persons As a especially contracting the spouses of the occupationally disease exposed, may today have little or no knowledge have no knowl- expo- of the edge memory being exposed. sure. or example, representatives It For class expect every LaVerne unrealistic Winbun Nafssica individual with Kekrides did not learn that their incidental exposure husbands had been occu- to asbestos to realize pationally exposed to someday the men he or she deadly until could contract a Second, contracted mesothelioma. disease and make a reasoned decision about members who exposure know of their stay but whether to in this class action. 23(b)(3) specifically 15. Rule likely directs the court to difficulties agement to be encountered in the man- consider: of a class action. 23(b)(3). Fed. R. Civ. P. (A) the interest of members of the class in individually controlling prosecution or de- course, 16. Of these concerns would be alleviated actions; (B) separate fense of extent provided opt- to the extent the class action for an any litigation concerning nature of the contro- opt-out procedure, in rather than or allowed versy already commenced or mem- opt-out after contract a disease. class; (C) bers of the desirability case, or unde- encompassing huge But this number sirability concentrating litigation plaintiffs, opt-out futures is an class action in forum; particular (D) claims opt greatly [and] which back-ended outs are limited. magnitude any class of this how conceive of the Con- on whether decision no We make certified. could be binding futures prohibits or Rule stitution 23(b)(3) opt-out class action. ato man- in the desirability of innovation if class action However, it is obvious not es- tort does agement of mass some approved, were settlement judicial experience of the cape the collective complete lack of despite a bound would be from the reform must come panel. But of the or terms existence knowledge of the reform not the courts. Such policy-makers, this that equally obvious It is class action. not, say, needless to without efforts concerns. fairness raises serious situation through what it is unclear problems, and significant need Thus, would action a class might best be ef- such reform mechanism adjudi- of means advantages over alternative encompassing direct and The most fected. “superior” a become it could before cation action. The legislative be would solution Yandle, 65 case. See way to resolve study and hear- Congress, appropriate after supe- (stating, as a reason F.R.D. at 572 of class ac- might authorize the kind ings, satisfied, that was riority requirement global settle- that would facilitate tion injuries of the nature Although “because have not sought we here. ment might claimed, may persons that raised, be there process issues adjudicated the due class, and then ‘opt-out’ of neglect Congress to deal with fu- that would we trust they future that years in the way some maximize discover in a that would tures claims asbestosis, lung cancer or process rights have contracted and minimize due opt-out disease”). work. pulmonary could undermine its other concerns that hand, congressional inhospita- the other On lacking Al- here. advantages are These actions, in the bility as reflected to class all claimants trials for though individual Litiga- recently Private Securities enacted inefficient, not the that wholly 1995, Pub.L. No. 104- Reform Act of tion or more of statewide A series alternative. (1995), recently 67, by 737 its 109 Stat. adjudications, either narrowly defined about the workload of expressed concern 42(a) or as under Rule through consolidation courts, might not bode well the federal pref- seem Rule would actions under class prospect. such a Schwarzer, W erable. See also William vein, might Congress enact In a different Litigation: Should Structuring Multiclaim dealing par- statutes Revised?, compensation-like Mich. L.Rev. 94 Rule 23 Be Alternatively, Congress (“These hardly torts.17 (1996) ‘are ticular mass alternatives side, would deal with action, might a statute that the one enact on to the confined cases, lawsuits, provide in mass tort on the choice of law uncoordinated and individual apply to all cases other.’”) Benjamin Kaplan, that one set of laws would Con- (quoting class, liability. at least on issues of 1966 within the Civil Committee: tinuing Work of simplify legislation could do more to Rules Civil Such the Federal Amendments (and facilitate) any- litigation tort than (I), mass Harv. L.Rev. Procedure (1967)). thing imagine. can else we to would be an amendment Another route Summary and Observations

E. Rule of Civil Procedure We the Federal Advi- that the Judicial Conference that the class certified are aware We have concluded in fact sory on Rules is pass muster un- Committee Civil court cannot the district 23, including studying Rule the matter typicality and it fails the der Rule 23 because approach the Rules classes. One requirements of settlement adequacy representation to amend might pursue would be 23(a), predominance and Committee as the Rule as well 23(b). classes provide In- Rule settlement of Rule superiority requirements requirements meet the deed, requires an order of vaca- need not Trucks CM Committee, course, Moreover, classes. The Rules we cannot tur on these facts. Weinstein, See Jack B. Individ- Judge dent of tort law. example, Weinstein calls for 17. For (1995). legal give Litigation compensatory broad framework in Mass Tort ual Justice recovery indepen- mass tort victims a means concerns, process view, should minimize due I moreover, but it am of the that the “fu- classes, might opt-in address them via or tures presented by claims” plaintiffs, certain greater opt-out rights, classes with so as to described opinion, court’s do not possible process problems. avoid due standing confer exposure to these only plain- tiffs. type Plaintiffs of this do not claim might The Rules Committee also consider presently to suffer from any clinically diag- certification, incorporating, as an element of nosable condition; asbestos-related they test, injunction preliminary analy- akin to merely assert exposed were sis, probable that balances the outcome asbestos, at fibers some past. time merits imposed by the burdens Lujan v. Wildlife, 504 U.S. Defenders of balancing class certification. This kind of (1992), 119 L.Ed.2d 351 we engender might integrity confidence in the were reminded that federal courts under the developed. approach classes thus But this jurisdiction Constitution have to consider too, problems only in has not terms of the only real cases 559, and controversies. Id. at potential litigation, for satellite but also 112 minimum, S.Ct. at 2135. At a standing impact terms of the of the threshold decision requires: , on the outcome of the case. First, plaintiff must have an suffered case, Perhaps this “injury its rich matrix of in fact” —an legally invasion of a issues, legal factual and (a) will serve as a cali- protected interest which is concrete and pers by which the proposals various particularized, before see Wright] [Allen v. id. might Rules Committee 737], be measured. 3315, 3327, [468 at [104 U.S. 756 S.Ct. hope While we that these (1984)]; observations are 82 Seldin, L.Ed.2d 556 v. Warth useful, express we 490, 508, doubts that anything less 422 2197, 2210, U.S. 95 S.Ct. 45 statutory effecting than revisions (1975); wholesale L.Ed.2d 343 Sierra Club v. Mor changes ton, in the law of mass justify 727, torts could 16, 405 740-741, U.S. n. 92 S.Ct. humongous 1361, certification of this 1368-1369, class. 16, n. 31 L.Ed.2d 636 short, we think (1972); (b) that what the district court imminent, “actual or not might did here by legislature, be ordered a ‘conjectural’ ‘hypothetical,’” or Whitmore should not by Arkansas], but have been ordered a supra 149], [v. court. [495 U.S. at 155 1717, 1722, [110 S.Ct. 109 L.Ed.2d 135 The order of the district certifying court (1990)] (quoting Angeles Lyons, Los v. 461 plaintiff class will be vacated and case 102, 95, 1660, 1665, U.S. 103 S.Ct. 75 to remanded court district with directions (1983)). Second, L.Ed.2d 675 there must decertify injunction to the class. The grant- be a causal connection injury between the ed the district court will also be vacated. complained and the conduct injury of—the parties will bear own their costs. “fairly has to ... traee[able] to the challenged defendant, action of the and not WELLFORD, Judge, Circuit concurring: ... independent result th[e] [of] the action party of some third not before the court.” fully I subscribe Judge to the decision of Simon Ky. Rights v. Eastern Or Welfare Becker that the in this case have ganization, 26, 41-42, 426 U.S. requirements met the I Rule 23. have 1917, 1926, (1976). Third, 48 L.Ed.2d 450 reservations, however, some about any inti- it “likely,” must be opposed merely to Congress might mation that or should enact “speculative,” injury that the will be “re compensation-like statutes to deal with mass dressed a favorable decision.” torts or that approve any suggestion we Lujan, 560-61, at 504 U.S. 112 S.Ct. at 2136 Judge Weinstein compensatory “for broad (footnote omitted). legal give framework to mass tort victims a recovery independent means of tort law.” establishing Plaintiffs bear the burden observation, See n.17.1 concur in jurisdiction howev- federal standing pro- and their er, might that Rule 23 be amended to 561, aid ceed. Lujan, 504 U.S. at 112 S.Ct. at process 2136; FW/PBS, of mass Dallas, settlement in the Inc. v. 493 U.S. action context. 110 L.Ed.2d 603 S.Ct. 107 repre- Seldin, 490, 518, exposure only class themselves. The (1990); U.S. Warth (1975). I oath that 2197, 2215, L.Ed.2d 343 do sentatives admitted under S.Ct. plaintiffs have not have continued with the exposure would not believe “injury in fact” as of the Robert Geor- in the absence of settlement. demonstrated Furthermore, I would con- filing. gine responded questioning: time of presented have not that such clude lawyer Q. you gone to a Have ever “speculative,” a mere opposed to “likely” as your personal to file a claim own reasons at injury that could be redressed current yourself? in such a case decision The court’s trial. A. No. conjectural at best. necessarily be would Q. injury? —for asbestos related fu- possible about a apprehension Fear and A. No. consequence of ex- or medical physical ture. Q. why And is that? enough to is not establish posure problem. A. I haven’t had a I do not believe that Duke injury in an fact. you today? That Q. Is that still true Study Environmental v. Carolina Power Co. problem? haven’t had a Inc., 59, 98 438 U.S. S.Ct. Group, Well, I normal —I A. don’t —I breathe (1978), involving actual a ease L.Ed.2d 595 any problems that I’m aware don’t have emissions, plain- supports the power nuclear say not to that one can’t That’s case, moreover, of. develop. did not position. The tiffs’ money damages. Nor claims for contain Oh, Q. I that. understand McKinney, 509 Helling v. U.S. does Okay. (1993), A. constitute L.Ed.2d S.Ct. plaintiffs rely forbid, can Q. hope nothing these I ever precedent on which And God standing. Helling involved a support develop, you develop until an to does but continuously exposed to was plaintiff problem, you who have no asbestos-related quarters in limited damages, smoke filing tobacco a lawsuit for intention problems he had certain health claimed that you? do exposure cigarette to smoke and by caused present present A. than the case? Other — injury if further he continued that he feared case, Well, you Q. present in the do be- involuntarily to this hazard. exposed to be companies owe lieve that the asbestos Standing at 2478. was at 113 S.Ct. Id. you money? M-O-N-E-Y. Court, by nor Supreme not discussed personally? A. me Owe (see McKinney appeals the court of Q. Yes. (9th Cir.1991)), Anderson, pre- 924 F.2d 1500 anything IA. believe that there was if pres- sumably plaintiff claimed because happened my lungs that was that to injury. ent asbestos-related, they would owe me that Liability “Agent Orange” Products In re money, yes. (Ivy v. Diamond Shamrock Litigation Q. today, nothing happened But as of has Cir.1993), (2d Co.), 996 F.2d Chemicals your lungs that that’s asbestos-related — denied, U.S. -, rt. ce 1125, 127 you know of? (1994),may suggest to L.Ed.2d 434 adopt pru I here a contrary, but would myself, right. A. For that’s standing, under these dential limitation circumstances, exposure only particular as to you Q. you today, are not As sit here yet plaintiffs not manifested a dis who have suffering any emotional because distress injury-in-fact. palpable tinct See John you might with an asbes- come down Jr., Coffee, The Dilemma C. Class Wars: tos— Action, 95 Col. Law Mass Tort Class No, I I am not. A. am not. (1995). I do not inti Rev. 1422-1433 added). (emphasis At the fair- 1204-06 J/A always preclude prudence would mate that hearing, Vogt testified similar- ness Ambrose any by “future claimants” who and all suits ly: occur exposed have been to some calamitous Now, Q. prior your participation this in this case is rence or substance. This view action, supported testimony you had never consulted class lawyer purpose filing for the volved this case in help order to get your a claim as a result the case resolved and to help people exposure, right? isn’t that money out, before the runs is that cor- A. rect? Yes. A.

Q. my That’s January You testified under oath on statement.

12th, 1994, you seeking were not money damages you at the time that Q. they’re If [people exposed to asbestos] agreed representative to be a class not impaired they should receive no case, and at the time that compensation whatsoever? was lawsuit filed? You testified that A. my feelings. That’s then, way under oath isn’t that cor- Id. at Representative 1269-72. rect? Timothy Murphy and Carlos Raver also stat- A. Yes. ed emphatically seeking were not Q. then, that was right? And true is that damages any kind at the time the com- A. Yes. plaint was deposition, filed. At his Murphy Q. today, not, you it is true it And testified as follows: seeking money damages today? Q. back, go Let’s say, let’s a month in today, A. Not no. time, prior to the communication that you Id. at At deposition, rep- 1280-81. his with Weingarten had Mr. [counsel Ty resentative Annas also made clear that he & Locks] Greitzer three or four brought would not have suit had it ago. not been weeks Before that communica- for the tion, settlement. Id. at 1179. you cross- On did know what it was that examination, Annas you stated: claiming were in this lawsuit?

Q. today, you As can think of out- A. I know what I—that I claimed that I

of-pocket you’ve loss that had a result occupationally was exposed to asbes- your exposure to asbestos? long period tos over of time. A. Not from mine. Q. you Did you know that claiming were So, Annas, Q. Mr. would it say money damages? fair you you’ve

that don’t any believe lost A. No. at money your exposure all as a result of Q. day, you To this do you believe are to asbestos? money claiming damages in this case? No, A. sir. A. No. Q. you seeking So any recovery Q. you, January So had no money damages terms in recovering money yourself interest case; right? that is companies; from the asbestos is that A. No. at this Not time. right? added). (emphasis Id. at 1124 Raver testi- A. Yes. fied to the same effect: Id. at At hearing, 1178-79. the fairness Mr. Q. you 1991, sir, Did conclude in that Annas clearly reiterated even more that he your physical based on at condition damages any did not seek kind from the you, your words, that that time CCR defendants: any money didn’t deserve and didn’t Q. deposition you At testified that as of any money? need that Was a decision 15th, January you 1993 that au- hadn’t you that made? anybody money thorized to sue for Yes, A. sir. yourself your because of expo- Q. lawsuit, you When filed this one sure, right? that January that filed in at was right. A. That’s you lawsuit, that filed the time had Q. today? that is And correct you your that decided based on condi- Yes, A. sir. you tion at that time that didn’t de- Q. you appeared when deposition, any And at money any serve and didn’t want

you you I got testified believe that in- money that at time? any true, want I didn’t sir.

A.' That’s America, STATES UNITED don’t want time. Still money at that Plaintiff-Appellee, money. plain- representative These Id. at 1147-49. Defendant-Appellant. DAVID, Karl V. hearing fairness at the clearly conceded tiffs settlement, they did not that, 94-5754. absent No. in the class com- the claims pursue

intend Appeals, Court United States damages and no no They claimed plaint. Fourth Circuit. hold, accordingly, injury. I would present Argued 1995. Nov. only plaintiffs had no exposure 6,May Decided class action suit. pursue this standing to to reverse decision in the court’s I concur certifying court, order vacate district class, and remand instruc- plaintiff injunction. I would also

tions to vacate only plaintiffs exposure further

hold claims. standing pursue their

have no STAPLETON, BECKER, Present: GREENBERG, SCIRICA,

MANSMANN, ALITO, ROTH, NYGAARD,

COWEN, SAROKIN, McKEE, Judges

LEWIS, Circuit WELLFORD,1 Judge. District PANEL REHEAR- FOR PETITION

SUR FOR RE- SUGGESTION

ING WITH IN BANC

HEARING 27, 1996

June plaintiffs/appellees Robert petitions al., on behalf themselves Georgine,

A. et situated, and of similarly de- all others Products, Inc.

fendants/appellees Amehem (other Corporation) for re- than GAF

Ltd. judges having

hearing been submitted of this Court in the decision participated

who judges circuit all the other available

and to service, judge concurred no who

active rehearing, having asked decision judges of the circuit majority the circuit having voted for regular active service banc, petition

rehearing the court rehearing is DENIED. rehearing. grant

Judge would SCIRICA only. panel rehearing

1. Asto

Case Details

Case Name: Georgine v. Amchem Products, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: May 10, 1996

Citation: 83 F.3d 610

Docket Number: 94-1925, 94-1927 to 94-1932, 94-1960, 94-1968, 94-2009 to 94-2013, 94-2066 to 94-2068, 94-2085 and 95-1705

Court Abbreviation: 3rd Cir.