ORDER DENYING DEFENDANT’S MOTION TO DECERTIFY THE CLASS AND THE COURT’S TRIAL PLAN
The above-entitled matter comes before the Court on the Defendant’s Motion to De-certify the Class and the Plaintiffs’ opposition thereto, and the trial plans submitted by the parties, and the Court, having reviewed the relevant materials on file herein, having heard the oral arguments of the parties and being fully informed in the premises, FINDS and ORDERS as follows:
Background
This case involves a national class action product liability lawsuit against Defendant Copley Pharmaceutical, Inc. A history of the case can be found in the Court’s Order Granting Partial Class Certification. In re Copley Pharmaceutical, Inc.,
Following the recall, Copley was named in a large number of lawsuits filed throughout the United States. Ultimately the Judicial Panel on Multidistrict Litigation consolidated all the federal cases brought against Copley in this Court. On July 18, 1994, this Court held an initial status conference in which it appointed a Plaintiffs’ Steering Committee
On October 28, 1994, the Court issued its Order Granting Partial Class Certification. See In re Copley, supra. In that Order the Court recognized the presence of several common threshold issues affecting the class:
(1) Were the Defendant’s manufacturing processes defective?
(2) Was the Defendant negligent in its manufacture and distribution of Albuter-ol?
(3) Did the Defendant breach any warranties in selling its product? and,
(4) Are pseudomonas fluorescens or other possible contaminants dangerous to the human body?
Id. at 489. The Court also held that individual issues of causation and damages were present and that those issues were not proper for class adjudication. Id. at 492. Balancing these considerations under Fed. R.Civ.P. 23(c)(4)(A), the Court certified the class under Fed.R.Civ.P. 23(b)(3) for the following common issues of liability: strict liability, negligence, negligence per se, breach of warranties, and declaratory relief. Id. at 493.
The Court’s approach was influenced, in part, by a similar holding by Judge Grady in his certification of another partial class action brought by hemophiliacs against blood products manufacturers. See, Wadleigh v. Rhone-Poulenc Rorer, Inc., et al.,
Subsequent to the class certification, this action has moved forward with surprising speed and efficiency. For the most part, counsel on both sides have cooperated to coordinate discovery and minimize the delays that can plague national products liability actions. See, e.g. In re School Asbestos Litigation,
Pursuant to Management Order Number Six, the parties submitted their trial plans on April 17,1995. These plans will be discussed in more detail below. Along with its trial plan, Copley filed the pending Motion to Decertify the Class. In that motion, Copley argues that the Court should decertify the class because the Seventh Circuit reversed Judge Grady’s class certification in Wad-leigh. See, In re Rhone-Poulenc Rorer Inc., et al.,
The Court held a hearing on the motion and the trial plans oh April 21, 1995. After careful consideration of Copley’s arguments, the Rhone-Poulenc decision, and the Court’s fiduciary duty to the class, the Court is confident that its class certification remains legally sound. In its October order the Court noted the difficulty in deciding whether to certify the class at that early stage of the litigation. In re Copley,
As mentioned above, Copley’s motion to decertify makes two arguments: (1) the Seventh Amendment precludes submitting the elements of liability to separate juries, and (2) a trial would be unmanageable because the Court would be required to apply the differing laws of all fifty states. It is clear from the tone and substance of these arguments that they are inspired by the decision in In re Rhone-Poulenc,
A. In re Rhone-Poulenc Rorer, Inc., et al.
In Wadleigh, et al. v. Rhone-Poulenc Rorer, Inc.,
Despite individual issues of causation, the Court in Wadleigh found that common issues of negligence and breach of fiduciary duty were proper for class certification. Id. at 426. The court used its authority under Fed.R.Civ.P. 23(e)(4)(A) and certified a partial class to those particular issues. Id.
Defendants sought a writ of mandamus from the Seventh Circuit. Writing for the Court, Chief Judge Posner granted the writ and ordered the district court to decertify the class. Rhone-Poulenc at 1304. Judge Posner reasoned that the proposed trial plan had exceeded the bounds of the trial court’s discretion. Id. at 1299. Judge Posner identified three concerns with the class certified by the district court.
. First, the court concluded that even though the defendants had won 92.3% of the previous trials, a class action would force them to settle because a jury of six persons would “hold the fate of an industry in the palm of its hand.” Id. at 1299. Despite Plaintiffs’ lack of success at trial, Judge Pos-ner then concluded that if the plaintiffs win at the class trial each member of the class “is apt to receive a judgment in the millions.” Id.
The second concern expressed in Rhone-Poulenc was the district court’s ability, or rather presumed inability, to condense the negligence law of different jurisdictions' into one jury instruction, which he hinted might even require the use of Esperanto. The court also expressed doubt that the district court could properly apply the plaintiffs’ “serendipity” theory of liability.
Finally, the majority decision closed with recognition that both the Fifth and Third Circuits had approved approaches similar to Judge Grady’s. Id. at 1304 citing Jenkins v. Raymark Industries, Inc.,
Judge Rovener wrote a vigorous dissent, much of which questioned the appropriateness of a writ of mandamus for an issue such as class certification. Id. at 1305. The dissent also criticized Judge Posner’s prognostication that each of the plaintiffs would be awarded a seven figure judgment and his consideration of the merits of the plaintiffs’ claims. Id. at 1308. Judge Rovener went on to say that the majority’s concern about submitting class issues to a single jury “is a rationale for amending the rule, not for avoiding its application in a specific ease.” Id. Judge Rovener closed by admitting that he also had concerns about Judge Grady’s trial plan but that “it should be given the opportunity to succeed” and that the trial court has the power to modify or abandon its plan if it becomes unworkable at trial. Id. at 1308.
B. The Applicability of the Rhone-Pou-lenc decision
This Court shares Judge Rovener’s misgivings about Judge Posner’s decision. Moreover, the Rhone-Poulenc decision contains a number of legal and logical inconsistencies that lessen its weight in this Court. For the reasons discussed below, the Court finds the Wadleigh case factually distinguishable from this case. The Court declines Copley’s invitation to follow the Seventh Circuit’s application of economic justice to the Federal Rules of Civil Procedure.
The first concern expressed by Judge Posner was the placement of the fate of an entire industry in the hands of a single jury and the apparent lack of merit of the plaintiffs’ claims. Id. at 1299. First of all, as this Court observed last October, consideration of the merits of the plaintiffs’ claims is expressly prohibited when deciding whether to certify a class. In re Copley,
The second concern expressed in Rhone-Poulenc is the district court’s manageability of the laws of various jurisdictions, especially in light of the plaintiffs’ novel “serendipity” theory of liability. Rhone-Poulenc at 1300. This Court notes that even Judge Posner conceded “that at some level of generality the law of negligence is one, not only nation
The Seventh Circuit’s third “concern” is no more persuasive to this Court. Judge Pos-ner reasoned that the class issue of the defendants’ negligence was inseparable from the issues of proximate cause and comparative negligence. Rhone-Poulenc at 1303. Unlike the Wadleigh case where some of the plaintiffs allegedly continued using blood products after the HIV danger was known, comparative negligence is unlikely to be a defense in this ease. Unless a particular plaintiff used contaminated Albuterol after the recall, it is difficult to see how an individual plaintiff could be comparatively negligent by her use of Albuterol. Furthermore, Judge Posner’s analysis effectively eviscerates Fed.R.Civ.P. 23(e)(4)(A). As this Court noted last October, the advisory note to that rule suggests the same separation of liability and injury issues proposed by the Court. In re Copley,
As Judge Rovener’s dissent argued, the majority’s concerns are focused more on the soundness of Fed.R.Civ.P. 23(c)(4)(A) than on its application in Wadleigh. Rhone-Poulenc at 1307. Unlike Judge Posner, this Court finds Fed.R.Civ.P. 23(c)(4)(A) a highly efficient way to preserve both judicial economy and the rights of the parties in the case. Judge Posner directs that, when separating out common issues, district courts must “carve at the joint.” Id. at 1302. However, the effect of his decision takes away one of the sharpest instruments available to trial courts managing mass tort litigation.
Finally, this Court observes than many of the economic factors that seem to be the real driving force behind the Rhone-Poulenc decision are not present here. This case does not involve an entire industry and a wide range of products, but a single company and single product. This case does not involve novel theories of hindsight liability, but instead concerns a defendant who has admitted that some of its product was contaminated and that it is liable for any resulting injuries. Furthermore, even in October the Court noted that this case is not complicated by the foreseeability and professional standard of care issues present in Wadleigh. In re Copley,
C. Defendant’s Copley’s Arguments in Favor of Decertification
Even though Copley bases much of its motion to decertify on the Rhone-Poulenc decision, Copley’s contentions go beyond that case. Therefore, the Court will address Copley’s arguments regarding the constitutionality and manageability of the class certified below.
1. Constitutional Concerns
a. Generic Causation
Under the Court’s trial plan detailed below, there will be two phases: (1) a trial of
Through this approach the Court recognizes that there are common issues concerning the extent, nature and dangerousness of the contamination in Copley’s Albuterol. Even Copley’s proposed trial plan admits this much. Defendant’s Proposed Trial Plan, pp. 5-6. For example, a threshold common issue that will have to be proved by every Plaintiff is whether the contaminants in Albuterol are harmful to the human body. Defendant contends that it would be unconstitutional for one jury to consider whether its Albuterol can injure a user and a second jury to consider whether a particular Plaintiff was in fact so injured. The main authorities cited by Copley for this proposition are Rhone-Pou-lenc and Gasoline Products,
At the outset, the Court observes that Gasoline Products predates the Federal Rules of Civil Procedure. Thus, one can conclude that the comments from the Fed. R.Civ.P. 23(c)(4)(A) and the Manual for Complex Litigation endorsing the separate treatment of liability issues considered the requirements of Gasoline Products.'
Perhaps the case most factually similar to the Court’s trial plan is Sterling v. Velsicol Chemical Corp.,
The Sixth Circuit observed that district courts enjoy broad discretion in certifying a class and that their plans should not be overturned absent an abuse of discretion. Id. at 1197. The Sixth Circuit then affirmed the district court’s approach, reasoning,
where the defendant’s liability can be determined on a class-wide basis because the cause of the disaster was a single course of conduct which is incidental to each of the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy-
*463 In the instant case, each class member lived in the vicinity of the landfill and allegedly suffered damages as a result of ingesting or otherwise using contaminated water. Almost identical evidence would be required to establish the level and duration of chemical contamination, the causal connection, if any, between the plaintiffs’ consumption of the contaminated water and the type of injuries allegedly suffered, and the defendant’s liability. The single major issue distinguishing the class members is the nature and amount of damages, if any, that each sustained. To this extent, a class action in the instant case avoided duplication of judicial effort and prevented separate action from reaching inconsistent results with similar, if not identical, facts. The district court clearly did not abuse its discretion in certifying this action as a Rule 23(b)(3) class action. However, individual members of the class still will be required to submit evidence concerning their particularized damage claims in subsequent proceedings.
Id. at 1197. While this case involved a bench trial, this Court finds it significant that the Sixth Circuit did not even consider whether separate proceedings on general causation, individual causation, damages and injuries were constitutionally suspect.
A court that did consider, and reject, a constitutional challenge to a class certification like the one in the instant case was the Ninth Circuit in Arthur Young & Co., et al. v. United States District Court,
This Court observes that since the decision in Arthtvr Young & Co., there has been no intervening Supreme Court decisions or changes in the Federal Rules of Civil Procedure that could explain the Seventh Circuit’s decision in Rhone-Poulenc. On the contrary, since the Ninth Circuit’s decision in Arthur Young & Co., several other circuits have endorsed the separate treatment of class and individual issues. For example in In re School Asbestos Litigation,
[reassessment in the utility of the class action in the mass tort area has come about, no doubt, because courts have realized that such an action need not resolve all the issues of litigation. See Fed. R.Civ.P. 23(c)(4)(A). If economies can be achieved by use of the class device, then its application must be given serious and sympathetic consideration.
Id. at 1008-1009. Finally, Judge Weis endorsed the trial court’s view that common factual issues involving the health hazards of
In Jenkins v. Raymark Industries, Inc.,
The Fourth Circuit took a similar approach in a case against the insurer of the manufacturer of the Daikon Shield. See In re AH. Robins Co., Inc.,
Apparently finding that Daikon Shield was not so unique after all, the Fourth Circuit took a similar approach four years later in Central Wesleyan College v. W.R. Grace & Co.,
Thus, between 1977 and 1993, the Third, Fourth, Fifth, Sixth and Ninth Circuits have all used class certification for common issues of liability as a step forward in managing “mass torts.” Significantly, none of those courts held that such an approach had any constitutional infirmities whatsoever. This Court chooses to join those courts in their progressive treatment of mass torts and disagrees with the Seventh Circuit’s decision to take a massive leap back to the time before Rule 23 class actions. The weight of the current law demonstrates that the Seventh Amendment is not violated by the separation of common issues of liability for class treatment.
The Court’s trial plan detailed below offers two phases of litigation that each involve “distinct and separable” issues and, as a result, the Seventh Amendment is preserved. Gasoline Products,
b. Application of Different State’s Laws
The heart of Copley’s arguments concerning the application of laws from different jurisdictions comes in its argument that the class is unmanageable. However, Copley also contends that consideration of different standards of liability violates the Constitution. Despite Rhone-Poulenc’s holding that Judge Grady’s approach would be unconstitu
2. Manageability of the Class
Copley raises a very real concern that the laws of the different state jurisdictions make a trial unmanageable.
For their part, the Plaintiffs give numerous examples of courts who were undeterred by the specter of differing standards of negligence and product liability. Most notable among these was In re Asbestos School Litigation, where Judge Kelly observed that “51 jurisdictions are in virtual agreement in that they apply the Restatement (Second) of Torts § 388” and “forty seven jurisdictions have adopted strict liability and all of them start with the concept of a defective product.”
This differing authority leads the Court to conclude that the decision whether to attempt to manage a class under differing laws is committed to the discretion of the trial court. See Reed v. Bowen,
Furthermore, several factors make this class an excellent candidate for the application of law to a nationwide class. First, this case involves only one defendant manufacturer, Copley Pharmaceutical, and, at the present time, only one product, Albuterol 0.5%. Second, the product in question is safely manufactured by many other generic drug companies. Third, Copley, through its counsel, has admitted that at least some of its Albuterol was contaminated and that it is liable for any injuries such contamination may have caused.
Because of these facts, many of the “nuances” in state negligence and products liability laws may be irrelevant in this ease. For example, comparative negligence, a defense that varies throughout the states, will only be relevant in the rare cases where a plaintiff used Albuterol after the recall. Similarly, the traditional strict liability defenses of risk/utility, state of the art and assumption of the risk are irrelevant because Copley has admitted that it is liable for any injuries caused by its Albuterol. As detailed in the Court’s trial plan below, if an individual state’s law is at variance with the general law on a relevant point of law, its residents may be removed from the class. Therefore, the Court is not intimidated by the parade of horribles presented by the Defendant.
Finally, Copley’s counsel repeatedly argued that there was not a single case where
S. Policy Reasons Supporting a Class Action
In its Order Granting Partial Class Certification, this Court stated that the most convincing reason for certification was not offered by Plaintiffs’ lead counsel, but by a single attorney in less than a minute. In re Copley,
Seven months later, after hearing the arguments on decertification, the compelling argument made by this attorney still rings true in the Court’s ears. Plaintiffs’ counsel repeated this point when they suggested that the real motivation behind Copley’s motion to decertify was to cripple the claims brought by individual plaintiffs with less experienced counsel. Copley may or may not have such a goal, but the Court agrees that if the class is decertified, the courthouse door could be slammed on a great many plaintiffs.
Given Judge Posner’s recent decision in Rhone-Poulenc, it is ironic that over fifty years ago, it was the Seventh Circuit which recognized,
to permit the defendant to contest liability with each claimant in a single separate suit would, in many cases, give defendants an advantage which would almost be equivalent to closing the door of justice to small claimants. This is what we think the class suit practice was to prevent.
Weeks v. Bareco Oil Co.,
Today, in the era of “mass torts” many commentators agree that class actions are necessary to protect the interests of individual plaintiffs. One such commentator has observed,
The case by case mode of adjudication magnifies this burden [of litigating complex issues] by requiring the parties and courts to reinvent the wheel for each claim. The merits of each case are determined de novo even though the major liability issues are common to every claim arising from the mass tort accident, even though they may have been previously determined several times by full and fair trials. These costs exclude many mass tort victims from the system and sharply reduce the recovery for those who gain access. Win or lose, the system’s private law process exacts a punishing surcharge from defendant firms as well as plaintiffs.
In addition, the case-by-case, individualized processing of the mass tort claims that are filed confers a strategic edge upon defendant firms. While it prevents victims from deriving the benefits of a concerted action, the traditional process has no similar effect on the capacity of the defendant firms to spread litigation costs and prepare the common questions efficiently for a once-and-for-all basis.
David Rosenberg, Class Actions for Mass Torts: Doing Individual Justice by Collective Means, 62 Ind.L.J. 561, 563-564, 570-571 (1987) (footnotes omitted). The author has also recognized,
Class treatment, moreover, has been extended solely to common questions of law and fact concerning liability, preserving the right to an individual trial on damages. In some eases courts have gone slightly beyond the conventional bifurcation of liability and damage elements of the tort cause of action. They have instead designated certain common liability issues for class treatment, while remanding the remaining liability questions related to the circumstances of each member to an indi*467 vidual trial before, or along with, determination of damages.
Id. at 568-569. (Footnotes omitted).
Numerous other commentators have recognized the benefit of class certification for common issues of liability. E.g. Wright & Miller, Federal Practice and Procedure: Civil 2d § 1783, p. 76. Some practitioners have also observed the value of use of class actions to conserve the resources of plaintiffs, defendants and the courts. E.g. Marc Z. Edell, Resolution of Mass Tort Litigation: A Practitioner’s Guide to Existing Methods and Emerging Trends, C949 ALI-ABA 37 (1994) and Sheila Birnbaum, Case Management of Mass Tort Litigation, 406 PLI/Lit 27 (1991).
Finally, Copley directs the Court to the infamous Advisory Committee Note to Fed. R.Civ.Pro. 23. That advisory note, a favorite among class action defendants, states, “A ‘mass accident’ resulting in injuries to numerous persons is ordinarily not appropriate for class action.” However, this note was written nearly thirty years ago, before the advent of most “mass tort” litigation. As the Plaintiffs point out, even one of the authors of that note has repudiated it:
I was an ex-officio member of the Advisory Committee on Civil Rules when Rule 23 was amended, which came out with an Advisory Committee Note saying mass torts are inappropriate for class certification. I thought then that was true. Unless we can use the class action and devices built on the class action, our judicial system is simply not going to be able to cope with the challenge of the mass repetitive wrong that we see in this case and so many others that have been mentioned this morning and afternoon.
H. Newberg, Newburg on Class Actions, § 17.06 (3d Ed.1992) quoting Professor Charles Allen Wright, In re School Asbestos Litigation, Master File 830268 (E.D.Pa.) Class Action Argument, July 30, 1984, Tr. 106. In the world of practice, it is now generally accepted that the committee’s note is outdated. See, Pamela Coyle, When Bigger Isn’t Better, American Bar Association Journal, March 1995, at 72.
After many months of discovery, the able litigators on both sides of this case are well-versed in Copley’s Albuterol and its contamination. Just as Copley will have the best counsel available, the Plaintiffs deserve to have counsel who are familiar with Albuterol, its manufacture and its contamination. In this way the truth about the common issues liability may be decided in one class trial. The Court’s October 28,1994 Order Granting Partial Class Certification stands and the Defendant’s Motion to Decertify the Class is DENIED.
II. The Court’s Trial Plan
A. ¡Punitive Damages
: Both parties have submitted excellent briefs^on the point of the alleged punitive conduct of Copley and whether the Court shouldj try such conduct at the class trial. Howeyer, the Court is persuaded by Copley’s two threshold arguments that the issue of punitive conduct cannot be added to the class issues I to be tried in June. First and foremost, the notice to the class did not inform its mejmbers that punitive conduct would be tried. Therefore, it would be manifestly unjust to bind the class to the outcome of punitive issues without giving class members an opportunity to opt-out from the class. In re Nissan Motor Corp. Antitrust Litigation,
Secondly, in its October Order, the Court observed that punitive damages were inappropriate for class certification because they depend on an individual’s injury and compen-sable damages. In re Copley,
B. Bellwether Plaintiffs
At the status conference on March 17, 1995, the Court raised the possibility of adding the cases of bellwether plaintiffs at the class trial in June. At that hearing both parties agreed to explore such a possibility in their trial plans. While the Plaintiffs have submitted a proposal for the use of bellwether plaintiffs and nominated possible candidates, Copley has objected to such an approach. The Court decides against the use of bellwether plaintiffs for three reasons. First, at this late stage in the litigation the Court believes that it would be unfair to change, without Copley’s consent, the identity of the individuals whose cases will be tried in June. Second, even though the Plaintiffs claim that Copley has adequately discovered the cases of the proposed bellwether plaintiffs, Copley insists such discovery is not complete. The Court will give Copley the benefit of the doubt on this issue. Third, the Court may replace named representative plaintiffs at any time. Carpenter v. Stephen F. Austin State Univ.,
C. Generic Causation
Again, Copley has admitted that four batches of its Albuterol were contaminated and that it is liable for any injury resulting from that contamination. Copley’s posture throughout this litigation has been that none of the contaminants present in its Albuterol are capable of causing injury in human beings. Thus, it is ironic that Copley itself has created the best argument for general causation. Copley has presented the Court with a defense of lack of general causation.
As discussed above, the Court concludes that a jury may constitutionally consider some issues of general causation that focus on the extent and nature of the contamination in the Defendant’s Albuterol. Based on these factual findings, a jury may determine whether the contaminants proved to be in Copley’s Albuterol can be harmful to human beings.
D. Issues to be tried
The trial plan proposed by the Court is subject to modification at the final pretrial conference which is currently scheduled for May 30, 1995. The Court proposes a two-phase trial plan:
1. Class Trial
a. Class Representatives’ Claims
The Court begins with the simplest factor: all claims for relief made by the seven class representatives in the Amended Master Class Action Complaint will be tried under the choice of law rules of the State of Ohio. Furthermore, the jury will hear evidence of both compensatory and punitive damages for each of the class representatives. The goal of this trial will be to determine if Copley is indeed liable to the class as defined by the Court.
b. Common Factual Issues
In addition to deciding the individual cases of the class representatives, the jury will consider the following factual issues:
(1) To what extent was Copley’s Albuterol contaminated?
(a) What batches were contaminated?
(b) What were the contaminants present?
(2) Using the class representatives as models, are those contaminants capable of causing damage to the human body?
(3) Was Copley’s Albuterol defective?
(a) Was Copley’s Albuterol defective in its design or manufacture?
(b) Did the contamination in Copley’s Al-buterol make it an “unreasonably dangerous” product?
*469 (4) Was the defendant negligent in allowing the contaminants into its product?
(5) Did the defendant violate the Food, Drug & Cosmetic Act or the regulations promulgated thereunder?
(6) Did Copley breach express or implied warranties by its sale of contaminated Albuterol?
During the course of the trial, the Court will also consider evidence relevant to the Plaintiffs’ request for the equitable remedy of medical monitoring. Such evidence should not only relate to the need for such monitoring, but also the scope and duration of a monitoring program. However, because of the equitable nature of medical monitoring, this issue should not be submitted to the jury.
The answer to the above questions will be binding on Copley and those who can carry them burden of proof in Phase II of the trial plan.
During this class trial, the Court will consider the relevant law of negligence, breach of warranty and strict product liability from all necessary jurisdictions. If the law of a particular state appears to be idiosyncratic, the residents from that state can be excised from the class. For example, if it is shown that the law of State of Idaho includes a relevant defense to product liability that conflicts with other jurisdictions, the Court will redefine the class to exclude Idaho residents. Even if such idiosyncrasies remove half the jurisdictions in the United States, which the Court believes is highly unlikely, the application of common issues concerning the other twenty-five states should conserve judicial and litigation resources for all involved.
The Court’s approach may be simplified by various states’ differing approaches to products liability. For example, in products liability actions, both North Carolina and Virginia apply theories of implied warranties rather than strict product liability. Smith v. Fiber Controls Corp.,
2. Phase II: Individual Suits
Following the trial on the class issues and the claims of the individual representative plaintiffs, if the Plaintiffs prevail in any significant way, the Court will thereupon return the eases to their transferor districts. .
Upon return, the transferor courts may then hold trials where plaintiffs will prove their membership in the class. Assuming the plaintiffs are successful at the class trial and Copley is found liable, individual plaintiffs will then have the burden of proving, under them local law, that they were in fact injured by the Defendant’s product. Also at the trials, individual plaintiffs will present their claims for compensatory and punitive damages. While these trials will focus on issues of individual causation, plaintiffs will in fact be proving that they are members of the class because they, or those they represent, suffered damages because of Copley’s Albu-terol.
Conclusion
After a thorough examination of the Seventh Circuit’s decision in Rhone-Poulenc and Copley’s constitutional arguments, the Court concludes that Copley’s concerns are unfounded. While the Court’s division of issues is somewhat innovative, it is believed to be based on legal precedent and promises to streamline the litigation in this case. The Court’s proposed trial plan will resolve this case through two phases that balance the common issues of liability with the individual issues of causation, injury and damages.
Finally, the Court has carefully considered the suggestion that the Court continue the trial date until the fall to allow more time for counsel to review the evidence. There is more than six weeks between this date and the trial date which, given the large force of legal help available, should be adequate for the task of digesting the document discovery
Therefore, it is ORDERED, that the Defendant’s Motion to Decertify the Class be, and the same hereby is, DENIED; It is further,
ORDERED, subject to modification at the final pretrial conference, the issues to be tried in this case are those outlined above.
Notes
. It is unclear, however, how much the timing of this motion was affected by the In re Rhone-Poulenc because Copley waited for over one month after the Seventh Circuit’s decision to act. With the trial less than two months away, Copley’s decision to delay its motion to decertify is somewhat suspect.
. The Court will refer to Judge Grady's decision as "Wadleigh" to distinguish it from the Seventh Circuit's decision in “Rhone-Poulenc.”
. The "serendipity" theory is the first of the Wadleigh plaintiffs' two liability theories mentioned above. Basically, the plaintiffs contended that if the defendants had properly screened blood for Hepatitis B and other viruses, they would have screened out much of the blood contaminated with HIV. Rhone-Poulenc at 1301.
. This reasoning also shows a profound mistrust in the jury system. If the defendants have indeed been successful in twelve of thirteen trials, one should have faith that a class jury can also make a fair determination.
. That comment states, "This provision recognizes that an action may be maintained as a class action as to particular issues only. For example, in a fraud or similar case the action may retain its ‘class’ character only through the adjudication of liability to the class; members of the class may thereafter be required to come in individually and prove the ^mounts of their respective claims.” Under the Court’s similar proposal, the class trial would establish Copley's liability to the class certified by the Court, which includes "all persons who suffered damages as a result of inhalation of Albuterol manufactured, supplied, distributed or placed in commerce by Copley Pharmaceutical, Inc.” Under the Court's trial plan, if the Plaintiffs are successful at the class trial, Plaintiffs would essentially be proving their membership in the class by a showing of individual causation.
. Although the Court and the parties have referred to separate issues of generic cause and proximate cause, a more accurate description of the division of liability envisioned by the Court is "general causation”, that is the ability to cause harm, and "individual causation", the harm, if any, to a particular plaintiff.
. The Manual For Complex Litigation, 2d, advises, "The provision authorizing a class for specific "issues” does not require that an entire claim by or against a class be certified. Several courts have assumed that class action treatment might be afforded one or more issues relating to liability, while denying (or deferring consideration of) class certification of other issues affecting liability or questions of damages.” MCL 2d § 30.17. At a footnote to this provision, the Manual suggests that the separation of common liability issues from individual issues “appears to have been the intention of the drafters of [Fed.R.Civ.P. 23(c)(4)(A)].” Id. at n. 39.
. At oral argument Copley's counsel tried to distinguish this case because it was premised on federal law, not state law. The nature of the cause of action is irrelevant to the consideration of the constitutionality of class certification for particular issues.
. During oral argument Copley's counsel argued that many of the cases involving asbestos were distinguishable because they involve property damage, not persona! injury. While that may be true, the elements and standard of proof do not differ for torts involving property and personal injury. Therefore, this distinction is irrelevant.
. At oral argument defense counsel tried to distinguish this case because the defendant was not a products liability manufacturer but an insurance company. Considering that the action charged that Aetna Casualty and Surety was a joint tortfeasor for the manufacture of the Dai-kon Shield, this Court finds little reason to disregard its precedent. See In re A.H. Robins Co., Inc.,
. Currently the Court has sixty-six cases transferred to it from twenty-three different jurisdictions. However, under the Court's class definition there may be class members from up to fifty-two jurisdiction (counting the District of Columbia and Puerto Rico) depending on whether the non-diverse plaintiffs from Massachusetts are included.