PHILIP MORRIS INCORPORATED, et al. v. The Honorable Edward J. ANGELETTI
Misc. No. 2, Sept. Term, 1998
Court of Appeals of Maryland
May 16, 2000
752 A.2d 200
RAKER, Judge.
Carmen M. Shepard, Deputy Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore), Sherrilyn A. Ifill, Professor of Law, University of MD School of Law, for appellee.
Argued June 4, 1998 before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
Reargued April 6, 2000 before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.
RAKER, Judge.
Petitioners, a host of tobacco manufacturers and related entities, have filed a petition with this Court for a writ of mandamus or prohibition, asking that we direct the Circuit Court for Baltimore City to vacate its certification of two classes of Maryland residents who, as current or former users of tobacco products, have filed a suit against Petitioners claiming to have been injured by tobacco use or addicted to nicotine. We shall grant the extraordinary relief of mandamus and order the Circuit Court to decertify the classes.
I. The Case
On May 24, 1996, Respondents1 filed a complaint in the Circuit Court for Baltimore City against all manufacturers of
Respondents filed a Motion for Class Certification on September 5, 1997. Following oral argument on the motion, the Circuit Court issued an Order and Memorandum Opinion on January 28, 1998, granting the Motion for Class Certification. More specifically, the court approved for class action treatment, under
Thereafter, on February 19, 1998, the Circuit Court issued the following order certifying two classes:
Case No. 96145050/CE212596, styled Mildred C. Richardson, et al., Plaintiffs v. Philip Morris Inc., et al., Defendants shall be maintained as a class action on behalf of the following classes of plaintiffs:
a) Serious Injury and Death Claims:
All Maryland residents as of the date of class notice who have suffered, presently suffer, or who have died of diseases, medical conditions, and injury (while a resident of Maryland) caused by smoking cigarettes or using smokeless tobacco products that contain nicotine, and
1) The estates, representatives, and administrators of these persons; and
2) The spouses, children, relatives and significant others of these persons as their heirs or survivors; and
b) Nicotine Dependence Claims:
All nicotine dependent persons in Maryland who have purchased and used cigarettes and smokeless tobacco products manufactured by the Defendant Tobacco Companies. For the purposes of defining this class of claims, “nicotine dependent” shall be defined as:
All cigarette smokers or smokeless tobacco users who have been diagnosed by a medical practitioner as nicotine dependent, and/or; - All cigarette smokers who have regularly smoked more than 15 cigarettes per day for at least three years and who have made at least one unsuccessful effort to quit smoking, and/or;
- All regular daily users of smokeless tobacco products for at least three years and who have made at least one unsuccessful effort to quit using smokeless tobacco.3
(Circuit Court Class Certification Order at 1-2). The order excluded all past and present officers, directors, and agents of the defendant corporations from the classes. In addition, the order named class representatives, designated counsel for the classes, approved a Class Action Notice Plan, and provided for exclusion of class members.
By virtue of its orders in this case, the Circuit Court implicitly approved Respondents’ proposed trial plan, which consists of three phases. Phase I would entail a class action jury trial conducted principally to determine whether Petition-
For any claims upon which Respondents prevail during Phase I, Phase II would enable the named representative of each class or subclass to try the issues of causation and damages before the class jury. Finally, Phase III would involve trial of individual issues of class membership, causation, smoking history and damages for each and every absent class member. During Phase III, after having established class membership, individual class members could proceed in one of several ways: (1) conduct a full jury trial on Phase III issues; (2) accept the damages determined in Phase II; (3) conduct a summary jury trial on Phase III issues; or (4) conduct proceedings before a magistrate or special master on all Phase III issues.
On February 25, 1998, Petitioners filed a Motion for Reconsideration of Class Notice and to Stay Issuance of Class Notice. The Circuit Court held a hearing on this motion on March 27, 1998 and ultimately denied it. On April 8, 1998, Petitioners filed the present Petition for Writ of Mandamus and/or Writ of Prohibition, urging this Court to issue a writ commanding the Circuit Court to decertify the classes. On the same day, Petitioners filed a motion in the Circuit Court for Baltimore City requesting a stay of class notice pending this Court‘s consideration of the Petition for Writ of Mandamus and/or Writ of Prohibition, which motion the Circuit Court denied. On May 7, 1998, Petitioners filed with this
II. Arguments
We shall lay out the stated positions of the parties in this section, and discuss certain arguments in more detail throughout the opinion. Petitioners argue that this Court should issue a writ of mandamus or prohibition because irreparable harm will result to the parties and the judicial system if Petitioners are required to await end-of-the-case appeal. According to Petitioners, the opportunity to appeal the class certification might not arise until the Phase III trials are well underway, which, if class certification is improper, would entail a tremendous waste of judicial resources. Hence, we are urged to compel the Circuit Court to decertify the classes as an exercise in aid of our appellate jurisdiction or, in the alternative, as an execution of this Court‘s superintendency, whether inherent or bestowed, over the lower courts of this State.
Petitioners contend that the Circuit Court grossly abused its discretion in certifying the class action in violation of
Finally, Petitioners attribute four errors of law to the Circuit Court in rendering its decision. First, Petitioners
Respondents4 counter that this Court lacks the power to issue writs of mandamus or prohibition. According to Respondents, our decision in In re Petition for Writ of Prohibition, 312 Md. 280, 539 A.2d 664 (1988), in which we recognized that “mandamus or prohibition may issue in aid of appellate jurisdiction,” id. at 302, 539 A.2d at 675, was superseded by Title 8, which governs appellate procedure in the Court of Appeals and which does not expressly provide for writs of mandamus or prohibition. Even if appellate review is appropriate at this time, Respondents assert that this Court cannot properly assert jurisdiction without offending the “primary jurisdiction” of the Court of Special Appeals: we must wait until the matter, presumably in the form of a petition for writ of mandamus or prohibition, is pending in the intermediate appellate court, at which point we would be free to exercise our powers of certiorari.
Assuming that this Court does have the authority to issue such a writ, Respondents exhort that we rule the present petition untimely because Petitioners did not file it with this Court until seventy days after the Circuit Court‘s January 28, 1998 order granting Respondents’ Motion for Class Certification. “To the extent that nonstatutory appellate jurisdiction is recognized at all,” argue Respondents, “it must be invoked within the prescribed time for obtaining review in any form,” which, Respondents posit, is thirty days from the date of a
Respondents further argue that the appropriate standard for determining whether a writ of mandamus or prohibition shall issue is whether there was a judicial “usurpation of power,” not whether the Circuit Court‘s ruling was “erroneous” or “an abuse of discretion.” According to Respondents, the lower court‘s judgment was consistent with the law applying class certification requirements to long-term mass tort cases centered upon products liability (as distinguishable, perhaps, from cases arising out of a single-event disaster), its decision was carefully reasoned and supported, and its order effected an appropriate exercise of judicial power. Specifically, Respondents contend that the Circuit Court correctly and thoughtfully decided that the proposed classes complied with both the
Respondents offer three final rebuttals to Petitioners’ arguments: first, the Seventh Amendment and Maryland Constitution do not preclude bifurcation of common liability issues from individual issues such as damages, specific causation, or reliance. Secondly, the Circuit Court properly concluded that total amounts of punitive damages or punitive damages multipliers can be determined as a common issue prior to and separately from findings of specific liability and actual dam-
III. Mandamus
We shall first address the threshold question of whether this Court has the authority to issue the extraordinary writ of mandamus or prohibition under the circumstances of the present case.5
The common law writ of mandamus is an original action and not an appeal. See Goodwich v. Nolan, 343 Md. 130, 145, 680 A.2d 1040, 1047 (1996). Historically, this extraordinary writ has been defined, in general, to be a prerogative writ,
containing a command in the King‘s name, issuing from the Court of King‘s Bench, directed to persons, corporations or inferior courts of judicature within the King‘s dominions, requiring them to do a certain specific act, as being the duty of their office, agreeably to right and justice.
As a prerogative writ, the authority to issue mandamus rests within the sound discretion of the court, but that discretion must “be exercised under the rules long recognized and established at common law.” Hardcastle v. Md. & Del. R.R. Co., 32 Md. 32, 35 (1870) (internal quotation marks omitted). In addition, Circuit Courts of this State have been statutorily conferred with the power and discretion they enjoyed under the common law to issue writs of mandamus. See
We initially reject Respondents’ contentions (1) that this Court‘s promulgation of Title 8 of the Maryland Rules, Appellate Review in the Court of Appeals and Court of Special Appeals, effective July 1, 1988, forecloses the issuance of a writ of mandamus by this Court because of the absence of an express provision in the Rules for such; (2) that any appellate review of the present case, if conducted by this Court, must occur by way of a writ of certiorari, necessitating that the case first be noted and pending in the Court of Special Appeals; (3)
First, that
Second, for the very reason that a petition for writ of mandamus is not an appeal, any notion that the Court of Special Appeals possesses “primary jurisdiction” in the present matter is equally inapposite. Third, the writ of mandamus is, again, by its very nature an extraordinary form of relief, the request for which is likewise highly unusual, and, as such, the writ is not ordinarily subject to specific time requirements or other like restrictions. In short, a petition for writ of mandamus or prohibition stands on its own and, for the most part, outside the bounds of time. Fourth, the relief sought by
Judge Adkins, writing for this Court in In re Petition for Writ of Prohibition, 312 Md. 280, 539 A.2d 664 (1988), traced the history and nature of mandamus and prohibition at common law, focusing particularly on whether this Court has the power to issue such prerogative writs. Quickly disposing of any notion of an express constitutional or statutory grant of power in this Court to issue these extraordinary writs in Maryland, we held that “we have jurisdiction to issue to an inferior court peremptory writs in aid of our appellate jurisdiction.” Id. at 305, 539 A.2d at 676. In discussing the possible bases for this Court‘s power, we said:
The Maryland Constitution is silent as to any mandamus or prohibition power in this Court. The only general statutory provision dealing with mandamus jurisdiction is
Md. Code (1984 Repl. Vol., 1987 Cum. Supp.) § 3-8A-01 of the Cts. & Jud. Proc. Art. ; it relates only to the circuit courts. Nor is there any express grant of superintending power to this Court. Whether we have, as the highest court of this State, an inherent superintending or supervisory power over the courts below us in the judicial hierarchy, and whether any such power is implicit inArticle IV, § 18 of the Maryland Constitution , are questions we reserve for another day. We need not and do not address them today because we hold that under the circumstances of this case we have the power to issue a writ of mandamus or a writ of prohibition in aid of our appellate jurisdiction.
Id. at 292-93, 539 A.2d at 669-70 (footnotes omitted).7
As we made clear in In re Writ of Prohibition, this Court may utilize the writs of mandamus and prohibition as an
In exploring what “in aid of” our appellate jurisdiction entails, we had stated:
“[I]t is manifestly necessary, to the ends of justice, that there should be a power in special cases to suspend proceedings on the matter appealed from.... [This power] is necessarily incident to this Court, to preserve the usefulness of its appellate jurisdiction. If it were otherwise, cases might arise in which the appeal would be but as a shadow, pending which the substance might be lost.”
Id. at 298, 539 A.2d at 672 (quoting Thompson v. M‘Kim, 6 H. & J. 302, 333 (Md. 1825)) (ellipsis in In re Writ of Prohibition). Thus, we recognized that “by making possible the review of a potentially unreviewable question[, mandamus and] prohibition aided the appellate process.” Id. at 299, 539 A.2d at 673. The exercise of this Court‘s authority to issue an extraordinary writ was justified by the potential irreparable harm to the moving party and by the need to maintain the integrity of the legal system. Id. at 298, 301, 539 A.2d at 672, 674. See Ipes, 224 Md. at 183, 167 A.2d at 339 (“[I]n approaching the question concerning the issuance, vel non, of the writ, the courts invoke equitable principles to reach the real merits of the controversy between the parties.“).
As we proclaimed more generally,
Writing further for the General Court in the case of Runkel v. Winemiller, Judge Jeremiah Townley Chase, soon thereafter Chief Judge of the General Court and later Chief Judge of this Court, summarized the purpose and propriety of an appellate court‘s exercise of mandamus as follows:
[W]hence the inference is plainly deducible, ... this Court may, and of right ought, for the sake of justice, to interpose in a summary way to supply a remedy where, for the want of a specific one, there would otherwise be a failure of justice.
Id. at 449; accord Legg v. Annapolis, 42 Md. 203, 226 (1875). Yet, we do recognize that although mandamus allows a court to afford relief where otherwise none would be forthcoming, the converse of that touchstone principle has likewise been generally established:
It is well settled in this State that a writ of mandamus will not be granted where the petitioner has a specific and adequate legal remedy to meet the justice of the particular case and where the law affords [another] adequate remedy.
Brack v. Wells, 184 Md. 86, 90-91, 40 A.2d 319, 321 (1944); see also Gisriel v. Ocean City Elections Board, 345 Md. 477, 497, 693 A.2d 757, 767 (1997).
Furthermore, we believe that, given the procedural context of this case, the party seeking the extraordinary writ must demonstrate a paramount public policy interest sufficient to offset the strongly established preference for adherence to
In sum, in deciding whether the present circumstances warrant our exercise of the extraordinary writ of
The litigation plan approved by the Circuit Court in this case necessarily involves the commitment of such an extraordinary amount of the judicial and other resources of the busiest trial court in this State that any subsequent appellate review of the lower court‘s Class Certification Order is rendered inadequate and ineffective. The earliest possible point at which Petitioners could initially challenge the class certification in ordinary fashion would likely occur well into the future. Judicial review would ordinarily arise only after a fully litigated loss by Petitioners at the conclusion of one of the Phase II trials. “Only when a final judgment is entered, determining liability and assessing damages, will the case, including interim rulings such as the certification of certain issues in the case for determination in a class action, be appealable....” In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1297 (7th Cir. 1995). See also 2 HERBERT NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS, § 7.38, at 7-111 to 7-113 (3d ed. 1992) (“The question of appealability of initial class determinations and denials is not entirely settled. Generally, it may be said that appeals are normally limited to final decisions on the merits.“); 7B CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1802, at 464 (2d ed. 1986) (explaining that, by application of “the final judgment rule, the class certification question can be reviewed on appeal only after a final judgment on the merits has been entered”
Moreover, appellate review of the class certification may actually have to await a trial loss by Petitioners during Phase III. Only then might the class certification itself constitute an appealable issue because the named class plaintiffs’ representation of absent class members under the proposed litigation plan is incomplete. Even after a victory by the class or subclass representative during Phase II, each respective class or subclass member must still prevail during Phase III on his or her own individual issues related to specific liability and compensatory damages. The potential harm of this scenario is substantially exacerbated by the possibly inordinate size of the class membership in this case: Respondents have averred that “[a]n estimated 732,000 Maryland adults smoke cigarettes,” that “[t]housands of adolescents begin smoking for the first time every day” and that “[t]housands more Maryland residents use smokeless [t]obacco [p]roducts.” (Plaintiffs’ Fourth Amended Complaint at ¶ 44) (hereinafter Pls.’ 4th Am.
In the interim, judicial and other resources would be expended upon the following: discovery skirmishes, motions in limine, legal disputes over Maryland and probably foreign law, preparation for litigation, litigation, and a host of other unforeseeable conflicts between two well-represented, adverse and resourceful parties. We emphasize this case does not equate with garden variety class action litigation. The waste of judicial and other resources, should the Circuit Court‘s Class Certification Order be overturned on appeal only after a Phase II or Phase III verdict, would be without precedent in this State.
No citation to authority is required for us to note the crowded dockets in the Circuit Courts of this State; this is especially true in the Circuit Court for Baltimore City, where this litigation is scheduled to occur. We have explained before, albeit in a different context, that an order which has the direct effect of terminating litigation is an important issue, even if that order involves only a single litigant. See Clark v. Elza, 286 Md. 208, 213, 406 A.2d 922, 925 (1979). See also CSR Limited v. Link, 925 S.W.2d 591, 596 (Tex. 1996) (“The most efficient use of the state‘s judicial resources is another factor we consider in determining whether an ordinary appeal would provide an adequate remedy.“). That equation increas-
Given the judicial and other resources that would be irrevocably wasted should the Circuit Court‘s Class Certification Order not be overturned until after a Phase II or Phase III judgment, we will not permit this case to proceed that far if we are convinced presently that reversal of the Class Certification Order is mandated. In ruling interlocutory judicial review of a lower court‘s class certification proper because of the existence of irreparable harm, a Louisiana intermediate appellate court characterized that harm as follows:
“[I]f, at a later time, after trial on the merits and review, it is determined that the trial judge erred in permitting the matter to be tried as a class action, immeasurable expense and innumerable wasted court days will have resulted. Furthermore, litigants in other matters will have been needlessly delayed.”
Hampton v. Illinois Central RR Co., 730 So.2d 1091, 1093 (La.Ct.App. 1999) (quoting State ex rel. Guste v. General Mo-tors Corp., 354 So.2d 770, 774 (La.Ct.App. 1978)). The same harm is portended in the present case as it now stands before us.
Both the public interest and our responsibility in exercising the supreme judicial authority of this State thus compel the exercise of this Court‘s discretion in this extraordinary case. As cogently stated by the Supreme Court of Tennessee,
[W]hile mandamus relief is rarely justified, there is ample authority for the issuance of the writ to correct a class certification upon a clear showing that the trial court has committed legal errors or abused its discretion and no other adequate remedy is available. The conclusion is that in extraordinary cases, including class actions, this Court may, and properly should, issue a writ of mandamus if that action is necessary to protect its jurisdiction or accomplish substantial justice.
Meighan v. U.S. Sprint Communications Co., 942 S.W.2d 476, 483 (Tenn. 1997) (emphasis added).
There is substantial public interest in a timely resolution of the issue central to Petitioners’ request for a writ of mandamus. The legal propriety of certifying a class action in the present case, whose logistical magnitude alone is staggering and which concomitantly may significantly impact or divert the public resources earmarked for the judiciary for the next several years, calls for this Court‘s earlier than usual attention. In this regard, we credit another court‘s observation under similar circumstances:
The fact that it is in the public interest to resolve this controversy as expeditiously as possible tends to weigh in favor of the exercise of our discretion to consider the petition for writ of mandate, rather than requiring the [plaintiff] to await a later appeal.
City of Oakland v. Superior Court, 45 Cal.App.4th 740, 751, 53 Cal.Rptr.2d 120, 127 (1996); see also In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 307 (6th Cir. 1984) (“[T]he sheer magnitude of the case makes the disposition of these issues crucial as several hundred litigants are waiting for a decision
Respondents, as well as the dissenters, would have us stay our hand and ignore our authority on the basis that the Circuit Court‘s Class Certification Order retains a full degree of conditionality, revisibility, and reversibility. See
mus not only enables us to exercise our prerogative under these circumstances, but it is indeed for such rare circumstances as these that the writ grants us the authority to intervene in the first place.
Finally, Respondents have emphasized in contrast what we stated seven years ago,
Although the normal appellate process may not produce as swift and inexpensive a result as would the issuance of a writ of mandamus, we are not persuaded that the cost and delay attendant to following normal procedures will so prejudice the litigants as to justify the issuance of an extraordinary writ.
Keene, 330 Md. at 294, 623 A.2d at 666. We, however, view the extraordinary circumstances of the present case in a wholly different light. Indeed, we recognize that the parties will incur significant costs and delays if mandamus relief is not granted and appellate review of the Circuit Court‘s Class Certification Order is denied until the entry of a final judgment either at the conclusion of Phase II or during Phase III of the proposed class litigation. Should such expenses have been endured on account of a judgment by the Circuit Court that suffers from underlying legal error or an abuse of discretion, they would be losses as monumental in their unfairness as in their sheer amount. See Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1004 (11th Cir. 1997) (“The only conceivable alternative [to mandamus relief]—inevitable reversal by this court after the defendants have been forced to endure full discovery, full litigation, and a full trial—is scarcely adequate’ to redress this injury.” (quoting In re Cooper, 971 F.2d 640, 641 (11th Cir. 1992)) (alteration in Jackson)).
In similar vein, some courts have expressed concern that granting class certification significantly increases the pressure on a risk-adverse defendant to settle pending class claims rather than face the threat of an exceptional award of damages. See Castano, 84 F.3d at 746 (in describing so-called “judicial blackmail settlements,” stating, “In addition to skewing trial outcomes, class certification creates insurmountable pressure on defendants to settle, whereas individual trials would not. The risk of facing an all-or-nothing verdict presents too high a risk, even when the probability of an adverse judgment is low.” (citation omitted)); Rhone-Poulenc, 51 F.3d at 1297 (“The reason that an appeal will come too late to provide effective relief for these defendants is the sheer magnitude of the risk to which the class action ... exposes them.“). Cf. Jackson, 130 F.3d at 1004 (recognizing “the danger of abuse that always attends class communications—the possibility that plaintiffs might use widespread publication of their claims, disguised as class communications, to coerce defendants into settlement“). Should similar undue pressure be thrust upon Petitioners here, owing to a determination by the Circuit Court that is erroneous or abusive of its discretion, the injustice would be equally attributable to this Court for hesitating to exercise a discretion, however extraordinary in nature, with which we are not so much empowered as we are charged.
For all the reasons discussed above, we hold that the extraordinary writ of mandamus may appropriately issue under the circumstances of the present case. In doing so, we reaffirm our commitment to the principles underlying the final judgment rule and our adherence, ordinarily, to the rule itself.
[A]s we had no such question to decide we deemed it wholly unnecessary to step aside a single pace from the straight path before us, and declare what particular appointments were not included within the scope of our decision. The duty of a Court is done, as we apprehend, when it decides the case before it, and it is obviously no part of that duty to declare that the Court has not decided something wholly different; or to enumerate, in anticipation of possible future contests the instances in which, by reason of a difference of facts, the opinion would not be applicable.
Hooper v. New, 85 Md. 565, 573, 37 A. 424, 425 (1897). We simply hold that, given the irreparable harm that might otherwise be suffered by the legal system and by Petitioners, we may issue a writ of mandamus in aid of our appellate jurisdiction in the present matter. It is appropriately within this Court‘s prerogative to review the order of the Circuit Court granting class certification in this case so extraordinary because of the immense amount of time and expense that both the parties and the judicial system of this State will incur should the litigation proceed as a class action, as well as the astronomical number of persons in Maryland whose lives will be affected by our decision either way.
IV. Merits of the Class Certification Order
A. General Principles
We now turn to the merits of the Circuit Court‘s decision to certify two classes of Maryland residents injured by or addict-
(a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class actions maintainable. Unless justice requires otherwise, an action may be maintained as a class action if the prerequisites of section (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions, (B) the extent and nature of any
litigation concerning the controversy already commenced by or against members of the class, (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum, (D) the difficulties likely to be encountered in the management of a class action. (c) Certification. On motion of any party or on the court‘s own initiative, the court shall determine by order as soon as practicable after commencement of the action whether it is to be maintained as a class action. A hearing shall be granted if requested by any party. The order shall include the court‘s findings and reasons for certifying or refusing to certify the action as a class action. The order may be conditional and may be altered or amended before the decision on the merits.
(d) Partial class actions; subclasses. When appropriate, an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class.
There is a dearth of authority in Maryland analyzing the specific requirements of
The plain language of
In accordance with the procedure outlined in
The prerequisites of
Before we proceed to apply the specific requirements of
A “mass accident” resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.
such). For its part, the United States Supreme Court has placed some stock in the enduring vitality of the commentary, explaining that the “Committee‘s warning ... continues to call for caution when individual stakes are high and disparities among class members great.” Amchem, 521 U.S. at 625, 117 S.Ct. at 2250.
More or less independently of the debate over the 1966 Advisory Committee Note, the parties before this Court dispute the existence vel non of a recent trend, within the last decade or so, disfavoring class actions in mass tort cases. It is a dispute that we need not directly weigh in on, however, as we shall abide by the view that courts should decide whether to certify a class action in mass tort litigation on a case-by-case basis. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1230 (9th Cir.1996) (acknowledging that the 1966 Advisory Committee Note “cast[s] doubt on the availability of class actions in mass tort cases,” but also noting that courts have nevertheless “generally proceeded on a case-by-case basis and considered the appropriateness of class action treatment under the particular circumstances presented“); Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 473 (5th Cir.1986) (noting that courts have ordinarily avoided class actions in the mass tort setting, but observing that “the courts are now being forced to rethink the alternatives and priorities by the current volume of litigation and more frequent mass disasters“). See also 3 HERBERT NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS, § 17.05 (3d ed.1992).
Although we shall not decide the propriety of the lower court‘s class certification of the present action on the basis of some generalized or proposed approach to mass tort litigation, we are nonetheless cognizant of an irrefutable trend that is both more particular and more closely related to the instant case. A myriad of federal and state courts have shown a predominant, indeed almost unanimous reluctance to certify, or, in the case of appellate courts, to uphold the certification of class actions for mass tobacco litigation. Moreover, this aversion bears out regardless of (1) whether the plaintiffs represented a putative class membership that was nationwide or
We shall now turn to the specific prerequisites for prosecuting a class action lawsuit in Maryland, for purposes of assessing the appropriateness of the Circuit Court‘s Class Certification Order in the present matter.
B. Numerosity
The first requirement of
When the Circuit Court for Baltimore City consolidated the cases involved in the well-known asbestos litigation that inundated the City and State in the late 1980‘s and early
C. Commonality
We must next review the Circuit Court‘s determination as to whether there are questions of law or fact common to the classes. The lower court found that Respondents’ case presents several common questions, including whether cigarettes and smokeless tobacco products are addictive; whether Petitioners have manipulated nicotine levels in their products; whether Petitioners intentionally conspired to conceal and distort the results of tobacco research; whether certain affirmative defenses are available to Petitioners; and whether the conduct of Petitioners supports the imposition of punitive damages under Maryland law.21
The commonality requirement promotes “[c]onvenience, uniformity of decision, and judicial economy,” because common issues are litigated “only once on behalf of all class members.” 1 NEWBERG, supra, § 3.01, at 3-4. The threshold of commonality is not a high one and is easily met in most cases. See Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 472 (5th Cir.1986); 1 NEWBERG, supra, § 3.10, at 3-50. It “does not require that all, or even most issues be common, nor that common issues predominate, but only that common issues exist.” Central Wesleyan College v. W.R. Grace & Co., 143 F.R.D. 628, 636 (D.S.C.1992), aff‘d, 6 F.3d 177 (4th Cir.1993); see also Baby Neal v. Casey, 43 F.3d 48, 56 (3rd Cir.1994) (requiring only that the named plaintiffs share at least one question of fact or law with the grievances of the prospective class). Although the standard for commonality varies among jurisdictions, a common articulation requires that the lawsuit exhibit a “common nucleus of operative facts.” Insolia v. Philip Morris Inc., 186 F.R.D. 535, 542 (W.D.Wis.1998); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992); cf. 7A WRIGHT, MILLER, & KANE, supra, § 1778, at 528.
We had occasion to analyze a commonality requirement similar to that of
The defendants submit that the 8,555 plaintiffs in the consolidation have different occupations, were exposed at different times, at different workplaces, have different diseases, and different medical histories. But none of these factors diminishes the commonality of the Phase I issues, and the Phase I determinations are the only determinations that will be applied against the defendants-appellants at mini-trials of the other plaintiffs’ actions.
Issues involving a plaintiff‘s burden on state of the art in an asbestos products liability failure to warn case are particularly appropriate for consolidation. Absent unusual circumstances, it is senseless to repeat the presentation of the same evidence against the same defendants in successive, individual trials or mini-consolidations.
Although the instant lawsuit differs significantly from the asbestos litigation, we believe that the Godwin court‘s analysis of common issues is relevant here. The commonality requirement does not ask us to assess the common issues vis-à-vis individual issues, but only to ask whether common issues exist. Many of Respondents’ allegations focus on fraudulent conduct and concealment, actions which vary little, if at all, from plaintiff to plaintiff. As in the asbestos litigation, “the same medical studies, medical journal articles, workers’ compensation claims, third-party suits, depositions of witnesses, transcripts of court testimony, minutes of meetings, correspondence, and other exhibits are produced against the same defendants in [lawsuit] after [lawsuit] throughout the nation.” Id. at 395-96, 667 A.2d at 146. Indeed, as plaintiffs in any case alleging claims of fraudulent activity and misrepresentation on the part of tobacco manufacturers as well as charges regarding the harmfulness and addictiveness of tobacco usage, Respondents obviously have available for their arsenal of evidence any number of now widely disseminated and widely discussed documents and other materials. See Pls.’ 4th Am. Compl. at ¶¶ 51-231; Appendix to Opp‘n to Pet. § 7, at 1-85. See also, e.g., Insolia, 186 F.R.D. at 539-541 (relating the wealth of evidence against tobacco manufacturers and indus-
Yet, despite the Circuit Court‘s confidence that such allegations suffice for purposes of the class action commonality requirement, and despite Respondents’ conclusory argument before this Court (simply reciting the Circuit Court‘s listing of common issues, as outlined above in the first paragraph of this section), we agree with Petitioners, and the Insolia court, that an issue of law or fact should be deemed “common” only to the extent its resolution will advance the litigation of the entire case. See id. at 542. Putting aside any skepticism that resolution of the allegedly common issues would advance the litigation of the case at hand, see Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90, 96 (W.D.Mo.1997) (explaining that individual issues in tobacco litigation are so inextricably entwined with purportedly common issues that “certifying a class in order to obtain a global resolution of these [common] issues will not advance the resolution of this case“),22 we shall not on this basis reverse the Circuit Court‘s judgment that a common nucleus of operative facts exists and that the com-
D. Typicality
The typicality requirement seeks to make certain that “the representative part[ies] ... be ‘squarely aligned in interest’ with the class members.” 1 NEWBERG, supra, § 3.01, at 3-4 to 3-5 (quoting Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 HARV. L.REV. 356, 387 n. 120 (1967)). It is also “intended to ensure that class representatives will represent the best interests of class members who take a less active part in managing the litigation.” S. BAICKER-MCKEE, W. JANSSEN, & J. CORR, FEDERAL CIVIL RULES HANDBOOK at 402 (Millennium edition 2000). Professor Newberg characterizes the typicality requirement as follows:
[A] plaintiff‘s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.
1 NEWBERG, supra, § 3.13, at 3-76 to 3-77 (citations omitted).
This requirement demands a common-sense inquiry into whether the incentives of the plaintiffs are aligned with those of the class, and is meant to ensure that representative
Petitioners argue that where, as here, the crucial elements of each cause of action will require widely varying individual proof, it is impossible for a plaintiff to be “typical” of the class. Respondents counter that the representative claims were typical because “[e]ach class member has suffered from injuries, medical conditions, and diseases caused by their addiction to or dependence upon nicotine contained in the cigarettes and smokeless tobacco products manufactured, promoted, distributed, and sold by the defendants.” (Plaintiffs’ Motion for Class Certification at 38-39).
In order to make a determination regarding typicality, we will discuss each of the class plaintiffs.
Mildred C. Richardson
Mrs. Richardson began smoking when she was around fifteen years old. She started smoking on a regular basis when she was eighteen, “going on nineteen.” She started smoking because she “was trying to be grown up” and “keep up with the other crowd because they smoked.” She started smoking Camels and later smoked Salem 100‘s. She suffers from Chronic Obstructive Pulmonary Disease [hereinafter COPD] and has been hospitalized and undergone by-pass surgery. She stopped smoking after having double bypass surgery, then started smoking again.
Mildred C. Richardson, as personal representative of James B. Richardson
Mr. Richardson smoked Camel cigarettes and Salem 100‘s. Mr. Richardson had a stroke and stopped smoking for a while, but then started smoking again. Mr. Richardson was told by a doctor to cut back on his smoking because it was not good for him; he did not stop smoking. He suffered from heart disease and COPD. Mr. Richardson underwent several surgeries prior to his death from a massive heart attack.
Karol Potter
Ms. Potter started smoking cigarettes at the age of thirteen. She smoked her first cigarette because “the other kids were smoking” and “it was a cool thing to do.” She smoked about a pack of cigarettes a day when she was sixteen in 1964, and by 1975 or 1980 was smoking two packs a day. She first smoked Parliaments for “maybe a week,” then smoked Kents for “maybe a week,” then smoked Pall Malls and Winstons, each for a long time. She also smoked Lucky Strikes because her husband smoked them, after which she and her husband switched to Viceroys, which she smoked for four or five years. She then started smoking Marlboros, which she currently smokes, averaging two packs a day. She also smoked Raleigh Lites for a period of two or three weeks. She was told by a doctor around 1987 not to smoke because it was aggravating her ulcer, and also told not to smoke by a doctor in 1992. She was diagnosed with COPD and told that her lungs were half gone from smoking. She continues to suffer from COPD and is presently smoking.
Lonza B. Cutchin
Mr. Cutchin started smoking when he was fifteen or sixteen years old and living in North Carolina. He moved to Maryland before he was twenty-five years old. He smoked his first cigarette because “most of the time everybody else was smoking, the teenagers, I thought it was a sport.” He rolled his own cigarettes at that time, and later smoked Camels and Chesterfields. When he moved to Maryland, he was smoking
Each of the plaintiffs’ cases is factually distinct. This is not fatal to a finding of typicality, however. See Broin v. Philip Morris Companies, 641 So.2d 888, 892 (Fla.Dist.Ct. App.1994) (noting that the presence of factual differences will not defeat typicality). Although we do have concerns with the degree of variance between each of the named plaintiff‘s claims, we feel that these differences are more properly addressed during our predominance inquiry. Importantly, Petitioners do not allege that class representatives would be antagonistic to class members in any way. At this stage in the litigation, Respondents have sufficiently alleged that “the same unlawful conduct was directed at or affected both the named plaintiff[s] and the class[es] sought to be represented,” 1 NEWBERG, supra, § 3.13, at 3-77. The Circuit Court‘s ruling that the typicality requirement was satisfied was not an abuse of discretion.
E. Adequacy of Representation
The adequacy of representation prerequisite actually addresses two related concerns, ensuring that both the class representatives as well as class counsel are adequate to represent the interests of all class members. This last of the initial preconditions to class certification thus requires first “that the named plaintiff have no conflicts of interest with class members and that he or she prosecute the action vigorously on behalf of the class.” 1 NEWBERG, supra, § 3.01, at 3-5. As stated by the United States Supreme Court in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997):
The adequacy inquiry under
Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. “[A] class representative must bepart of the class and ‘possess the same interest and suffer the same injury’ as the class members.”
Id. at 625-26, 117 S.Ct. at 2250-51 (quoting East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977) (in turn quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974)))) (other citation omitted) (alteration in Amchem). See also 7A WRIGHT, MILLER, & KANE, supra, § 1766, at 302-303 (stating that “the general standard is that the representatives must be of such character as to assure the vigorous prosecution or defense of the action so that the members’ rights are certain to be protected” (citations omitted)).
In imposing the requirement of adequacy of representation, the class action rule seeks secondly to verify that counsel is adequate to represent the class. See Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir.1986) (en banc) (stating that adequacy of representation includes adequacy of attorneys representing class); 7A WRIGHT, MILLER, & KANE, supra, § 1769.1, at 375 (observing that under adequacy requirement court will consider not only character and quality of named representative party but also quality and experience of attorneys for class). Factors in this analysis include the vigor of counsel, experience, and diligence. See Central Wesleyan College v. W.R. Grace & Co., 143 F.R.D. 628, 637 (D.S.C.1992), aff‘d, 6 F.3d 177 (4th Cir.1993). See also In Re Northern Dist. of Cal., Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847, 855 (9th Cir.1982) (“Adequacy of representation depends on the qualifications of counsel for the representatives, an absence of antagonism, a sharing of interests between representatives and absentees, and the unlikelihood that the suit is collusive.“); Baby Neal v. Casey, 43 F.3d 48, 55 (3rd Cir.1994) (explaining that adequacy of representation assures “that the attorneys for the class representatives are experienced and qualified to prosecute the claims on behalf of the entire class“). This precondition also necessitates that a court focus on conflict of interest concerns, which represent “[b]y far the greatest difficulty for the courts in assessing
Before this Court, Petitioners do not attack the adequacy of the class representatives. Instead, they claim that class counsel have a conflict of interest and that the Circuit Court erred in finding that class counsel‘s concurrent representation of the classes in this case and the State of Maryland in a separate lawsuit against Petitioners is not adverse to either party. Because some class members’ and the State‘s interests allegedly collide on the issue of medicaid expense reimbursement, according to Petitioners, class counsel are ethically barred from proceeding any further in the instant litigation and therefore cannot possibly provide adequate representation. We note that the State of Maryland has at this point already entered into a finalized settlement agreement with the tobacco companies, thus rendering Petitioners’ objection on this point moot. See Agreed Dismissal Order, State v. Philip Morris Inc., No. 96122201/CL211487 (Baltimore City Cir. Ct. Dec. 1, 1998) (acknowledging existence of “Master Settlement Agreement,” noting court‘s entry of “Consent Decree and Final Judgment,” and ordering “all of the [State]‘s claims against all defendants ... dismissed with prejudice“). In light of this development, in light of the fact that Petitioners have made no other challenge before this Court as to the adequacy of the class representatives or their attorneys,23 and in light of the reputation and experience of
F. Predominance
We must next determine whether questions of law or fact common to the members of the classes predominate over any questions affecting only individual members. “It is only where ... predominance exists that economies can be achieved by means of the class-action device.”
The predominance test does not require that common issues be dispositive of the action or determinative of the liability issues. See 1 NEWBERG, supra, § 4.25, at 4-82. Instead, courts should inquire into “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 2249, 138 L.Ed.2d 689 (1997). In order to satisfy the predominance test, “common issues must constitute a significant part of the individual cases.” Jenkins v. Raymark Industries, 782 F.2d 468, 472 (5th Cir.1986). See also Watson v. Shell Oil Co., 979 F.2d 1014, 1022 (5th Cir.1992),
Conflict of Laws
The first potentially “individual” issue we shall address is conflict of laws. Petitioners argue that the Circuit Court erred in determining that because the definition of the two classes in the present case is limited to Maryland residents who have experienced the effects of their injury or dependence in Maryland, only Maryland law will apply to all class members. Contrary to the Circuit Court‘s determination, Petitioners contend that this litigation will require an individual choice-of-law analysis for every member of the two classes. Respondents retort that the Circuit Court properly determined that there will be no variations in state law at issue, because “it is abundantly clear that only Maryland law will apply to the class[es], which by definition involve[] only individuals who suffered injury in Maryland.” (Opp‘n to Pet. at 28.) Before the Circuit Court, Respondents asserted that:
the logical conclusion of [Petitioners‘] argument will be that plaintiffs, even in individual cases, will be prevented from asserting their claims against defendants in any forum, unless they coincidentally reside in the state in which the “magical moment of addiction” suggested by [Petitioners] took place. Identifying the moment and place of addiction is irrelevant for purposes of choice of law so long as all the class members currently reside in the [State of] Maryland and experience the effects of their nicotine addiction [in] Maryland.
(Reply Memorandum in Support of Plaintiffs’ Motion for Class Certification at 37).
Maryland adheres to the lex loci delicti rule in analyzing choice of law problems with respect to causes of action sounding in torts. See Hauch v. Connor, 295 Md. 120, 123-25, 453 A.2d 1207, 1209–10 (1983); White v. King, 244 Md. 348, 352, 223 A.2d 763, 765 (1966). See also Farwell v. Un, 902 F.2d 282, 286 (4th Cir.1990) (observing that “Maryland, against what may be the general trend of latter times toward ‘significant relationships’ analysis, appears rather steadfastly to have adhered to lex loci as the ordering principle in tort cases“). Lex loci delicti dictates that “when an accident occurs in another state substantive rights of the parties, even though they are domiciled in Maryland, are to be determined by the law of the state in which the alleged tort took place.” White, 244 Md. at 352, 223 A.2d at 765.
The rule is fairly easy to apply when all of the events giving rise to a suit have occurred in one state, as in a typical negligence action arising from an automobile accident. Maryland courts would apply the substantive law of the place of the wrong, i.e., the forum where the accident occurred. The more difficult situation arises when the events giving rise to a suit occur in a number of states. As a general rule, the place of the tort is considered to be the place of injury. As set out in the First Restatement of Conflict of Laws,
1. Except in the case of harm from poison, when a person sustains bodily harm, the place of wrong is the place where the harmful force takes effect upon the body.
* * * * * *
2. When a person causes another voluntarily to take a deleterious substance which takes effect within the body, the place of wrong is where the deleterious substance takes effect and not where it is administered.
RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 377, Notes 1 and 2, at 455-56 (1934).25
The place of injury is also referred to as the place where the last act required to complete the tort occurred. See RESTATEMENT (FIRST) OF CONFLICT OF LAWS § 377 (stating that the “place of wrong is the state where the last event necessary to make an actor liable for an alleged tort takes place“); Farwell, 902 F.2d at 286 (explaining that, under the doctrine of lex loci delicti, “the locus of a tort for choice of law purposes is that where the last act required to complete it occurred“); Alexander v. General Motors Corp., 219 Ga.App. 660, 466 S.E.2d 607, 609 (1995) (noting that, under the doctrine of lex loci delicti, “in torts of a transitory nature the place of the wrong is the place where the last event occurred neces-
We now turn to the application of Maryland‘s lex loci delicti rule to the litigation at issue. We cannot say, nor could the Circuit Court, that absent individualized inquiry on the part of the trial court, Maryland law would apply to each entire class. The Circuit Court simply misapplied the law in determining in blanket fashion that “only the law of Maryland will apply to all class members,” (Cir. Ct. Mem. Op. at 42).26 Quite the opposite, our conflict of law principles necessitate that the Circuit Court engage in individualized assessments for each class member. Cf. Georgine v. Amchem Products, Inc., 83 F.3d 610, 627 (3rd Cir.1996) (recognizing that a federal court, considering a motion for a nationwide class certification, “must apply an individualized choice of law analysis to each plaintiff‘s claims” (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 823, 105 S.Ct. 2965, 2980, 86 L.Ed.2d 628 (1985))), aff‘d sub nom., Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
Respondents also claim nicotine dependence, or addiction, as an injury in and of itself. The second class certified by the Circuit Court includes “[a]ll nicotine dependent persons in Maryland who have purchased and used cigarettes and smokeless tobacco products manufactured by the Defendant Tobacco Companies,” (Circuit Court Class Certification Order at 2). As indicated earlier, for purposes of the present litigation, a nicotine dependent person is one who either (1) has been medically diagnosed as such, (2) has regularly smoked more than fifteen cigarettes per day for at least three years and has made at least one unsuccessful effort to quit smoking, or (3) has been a regular daily user of smokeless tobacco products for at least three years and has made at least one unsuccessful
In order to avoid choice of law concerns that raised problems in other actions involving certification of mass torts, plaintiffs attempt to limit members of the class to persons whose claims are properly disposed of under Kansas law.... Kansas adheres to lex loci delicti which provides that the place of the law of the state where the tort occurred applies. A tort occurs where the injury occurs.
Plaintiffs overlook the difficulty involved in determining if class members’ injuries “occurred” in Kansas. For instance, plaintiffs’ broadest class injury alleged is addiction. To determine if this injury occurred in Kansas, a conclusion would have to be reached as to each member that they [sic] became addicted to cigarettes in Kansas. Only after such consideration is it possible to determine whether each person can be admitted to the class. The process would involve a hearing for every potential plaintiff because defendants would have the right to cross-examine each person about his or her smoking history. This task is unimaginably difficult considering the individual inquiry required to determine addiction.
Id. at 393-94 (citations and footnote omitted). See also Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90, 96 (W.D.Mo.1997) (noting that even though plaintiff did not seek certification of nationwide class, class of Missouri citizens allegedly injured by Brown & Williamson cigarettes would “still be governed by a myriad of [states‘] laws“).28
Additional Individual Issues
Also tipping the scales of the predominance inquiry against Respondents is the legal nature of their common law claims of fraud and deceit and negligent misrepresentation, and their statutory cause of action under various provisions of the Maryland Consumer Protection Act. The unsuitability of such claims for class action treatment arises from the burden placed on Respondents of proving individual reliance upon Petitioners’ alleged misrepresentations and material omissions regarding (1) the addictive nature of nicotine; (2) the adverse health effects of tobacco usage; (3) Petitioners’ knowledge of and research concerning the addictive nature of nicotine and
Concerning the propriety of prosecuting a civil fraud claim as a class action, the Advisory Committee Note to the 1966 amendments of Federal Rule 23 counsels as follows:
[A] fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class. On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed.
Success in Maryland on a civil claim of fraud requires proof of reliance. As this Court has frequently reiterated,
In order to recover damages in an action for fraud or deceit, a plaintiff must prove (1) that the defendant made a false representation to the plaintiff, (2) that its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth, (3) that the misrepresentation was made for the purpose of defrauding the plaintiff, (4) that the plaintiff relied on the misrepresentation and had the right to rely on it, and (5) that the plaintiff suffered compensable injury resulting from the misrepresentation.
One need only read the depositions of the named class representatives to recognize that reliance will vary from plaintiff to plaintiff.30 Prospective class members may have heard or read some, all or none of the misrepresentations allegedly made by Petitioners. Moreover, in making the decision to purchase and use Petitioners’ tobacco products, each member may have relied heavily, slightly or not at all on the various, arguably deceitful sales pitches, multimedia denials and assertions, and otherwise public claims of Petitioners with respect to their tobacco products. Such individual discrepancies obviously cannot be glossed over at trial on a classwide basis but must be allowed to be delved into by Petitioners, class member by class member.31
The predominance inquiry has proven to be the downfall of many mass tort class actions. Our concerns that individual issues would predominate over common issues in this litigation are mirrored in the United States Supreme Court‘s most recent pronouncement on class actions, in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Amchem involved a national asbestos class action lawsuit in which the Third Circuit had decertified the class because common issues did not predominate over individual issues. The Supreme Court affirmed, agreeing that “an overarching dispute about the health consequences,” id. at 624, 117 S.Ct. at 2250, of exposure to a potentially harmful product does not suffice for purposes of the predominance requirement of
“Class members were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma.... Each has a different history of cigarette smoking, a factor that complicates the causation injury.”
Id., 117 S.Ct. at 2250 (quoting Georgine v. Amchem Products, Inc., 83 F.3d 610, 626-27 (3rd Cir.1996)) (ellipsis in Supreme Court‘s Amchem opinion). See also Note, Decertification of Statewide Tobacco Class Actions, 74 N.Y.U. L.REV. 1336, 1344-45 (1999). The Supreme Court went on to note that
No settlement class called to our attention is as sprawling as this one. Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws. Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that “mass accident” cases are likely to present “significant questions, not only of damages but of liability and defenses of liability, ... affecting the individuals in different ways.” And the Committee advised that such cases are “ordinarily not appropriate” for class treatment. But the text of the Rule does not categorically exclude mass tort cases from class certification, and District Courts, since the late 1970‘s, have been certifying such cases in increasing number. The Committee‘s warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit‘s opinion makes plain, the certification in this case does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)‘s predominance requirement irreconcilable with the Rule‘s design.
Amchem, 521 U.S. at 624-25, 117 S.Ct. at 2250 (citations omitted) (ellipsis in Amchem).
The Fifth Circuit, in perhaps the seminal case involving mass tort tobacco litigation, heralded a similar proclamation directly relevant to this same issue in the present case:
The class members were exposed to nicotine through different products, for different amounts of time, and over different time periods. Each class member‘s knowledge about the effects of smoking differs, and each plaintiff began smoking for different reasons. Each of these factual differences impacts the application of legal rules such as causation, reliance, comparative fault, and other affirmative defenses.
While both Castano and Amchem involved nationwide class actions, these same problems of predominant individual issues have arisen in statewide class actions. For example, the District Court for the Western District of Missouri refused to certify a class of Missouri smokers defined as “[a]ll persons in the State of Missouri who have suffered personal injury as a result of smoking cigarettes designed, manufactured or sold by Brown & Williamson Tobacco Company....” Smith v. Brown & Williamson, 174 F.R.D. 90, 92 (W.D.Mo.1997). That court stated that
a separate inquiry will be required to determine which state‘s substantive laws will govern. In the case of a lifelong Missouri resident, it seems clear that Missouri law would apply. In the case of a resident of another state who stopped smoking before moving to Missouri, it seems clear that Missouri law would not apply. In the case of a person (like Plaintiff) who began smoking in another state and then moved to Missouri, the choice of law inquiry will vary with the circumstances. It is inconceivable that [Missouri] law will apply to all members of the class; in fact, it is possible that different [states‘] laws will apply to the different claims asserted by a single claimant: for instance, it may be that one state‘s laws will apply to a person‘s breach of warranty claims while another state‘s laws apply to that individual‘s strict liability claims.
Ultimately, it is clear that Missouri law will not apply to all of the class members’ claims. Thus, although Plaintiff does not seek certification of a nationwide class, the claims presented by the proposed class will still be governed by a
myriad of [states‘] laws. The wide variety of state laws that must be applied diminishes the common issues and prevents them from predominating.
Id. at 95-96. See Reed v. Philip Morris Inc., Civil No. 96-5070, 1997 WL 538921 (D.C.Super.Ct. Aug. 18, 1997) (Reed I) (refusing to certify a similar class of District of Columbia tobacco users); see also Barreras Ruiz v. American Tobacco Co., 180 F.R.D. 194, 197 (D.P.R.1998) (noting that “[a]lthough the proposed class would number in the hundreds of thousands rather than Castano‘s fifty million cigarette smokers, such a class nonetheless would present unprecedented challenges to the fundamental notion of commonality underlying a class action“); Barnes v. American Tobacco Co., 176 F.R.D. 479, 498 (E.D.Pa.1997) (deciding to decertify class of Pennsylvania smokers because “it is obvious that this action implicates far too many individual issues to proceed on a class-wide basis“), aff‘d, 161 F.3d 127 (3rd Cir.1998), cert. denied, 526 U.S. 1114, 119 S.Ct. 1760, 143 L.Ed.2d 791 (1999); Reed v. Philip Morris Inc., Civil No. 96-5070, slip op. (D.C.Super.Ct. July 23, 1999) (Reed II) (refusing to certify reduced class of District of Columbia tobacco users).
Our analysis of the extent of the individual issues involved in this litigation leads us to conclude that individual issues overwhelmingly predominate over common issues. See Smith, 174 F.R.D. at 94 (“Resolution of the common issues in this case will not promote judicial economy; in fact, in light of the individual issues a class action in this case will create judicial diseconomy.“). We agree with the United States District Court for the Eastern District of Pennsylvania, which, in rejecting class certification for Pennsylvania smokers, held that “the individual issues raised not only predominate over the common issues but overwhelm the common issues” Arch, 175 F.R.D. at 486.
The seeming collective lynchpin of the Circuit Court‘s finding of predominance of common issues in the instant litigation is “that the common questions regarding [Petitioners‘] conduct and knowledge ... are at the core of all of [Respondents‘]
[T]he rationale of courts that have certified tobacco personal injury suits as class actions, such as Richardson ..., relies heavily on the premise that an adverse ruling on certain common foundational issues would result in dismissal of the entire case. But missing from their analysis is any detailed explanation whether common questions would predominate if the common questions are resolved in plaintiffs’ favor. While acknowledging that resolution of the common questions in plaintiffs’ favor will not dispose of the case, it seems that they give little attention to the predominance question as it would be affected after the resolution of one or more common questions in favor of the plaintiffs.
Id. at 10-11.
In a District of Columbia tobacco lawsuit strikingly similar to the present one, see Reed I, after the trial court initially denied their motion for class certification, the representative plaintiffs purposefully excised certain, problematic causes of action from their complaint—claims that remain in the case now before this Court—in an effort to reduce the number of individualized issues, satisfy the predominance requirement and therefore, arguably, render their litigation suitable for class action treatment. See Reed II, slip op. at 4. The trial court deemed the maneuver futile, however, and ruled that the absence of claims of fraud and deceit, negligent misrepresen-
The Court concurs that a large portion of [Plaintiffs‘] claim is based upon the Defendants’ conduct in making and marketing cigarettes. Plaintiffs also are accurate that many common issues exist. Nonetheless, even with the changes to Plaintiffs’ Complaint, too many individualized issues exist, such as injury-in-fact, addiction, causation and reliance, and individual defenses, which preclude this Court from finding that common issues predominate over individual issues.
Reed II, slip op. at 30-31. It is equally clear the Circuit Court should have come to a like conclusion in the present case: class certification is simply not appropriate in the face of so many individualized, significant issues despite the purported “qualitative” force of the less numerous common questions.33
G. Superiority
In addition to predominance, the Circuit Court must find that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. As the Superior Court of the District of Columbia ruled within the past year, “[B]efore a class maybe certified, it must be shown that a class action is the superior method for resolving the conflict; in other words, it must be the most efficient means of adjudicating the matter.” Reed v. Philip Morris Inc., Civil No. 96-5070, slip op. at 34 (D.C.Super.Ct. July 23, 1999) (Reed II). See also Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996) (“Where classwide litigation of common issues will reduce litigation costs and promote greater efficiency, a class action may be superior to other methods of litigation.“). In accordance with Rule 2-231(b)(3), pertinent to the court‘s findings are (1) the
As to the first factor, the greater the individuals’ stakes in the litigation, the greater their interest in controlling their own actions in individual litigation. See Emig v. American Tobacco Co., 184 F.R.D. 379, 393 (D.Kan.1998). In this action, the representative plaintiffs claim in excess of $500,000 in compensatory damages, as well as $1,000,000 in punitive damages, for each class member. See Johnson v. Chrysler Credit Corp., 26 Md.App. 122, 129, 337 A.2d 210, 214 (1975) (“Although in some circumstances the class action may be an important public interest device, in others it contravenes the more traditional notions of an individual‘s jurisprudential rights.“). We find it relevant and compelling that individual plaintiffs historically have often been unable to finance a claim against the tobacco companies. We note, however, that individuals may have enormous stakes in individual tobacco litigation. See, e.g., Charles Haddad, Why Big Tobacco Can‘t Be Killed, BUSINESS WEEK, Apr. 24, 2000, available in 2000 WL 7825958 (reporting on Florida jury‘s finding tobacco industry liable to three plaintiffs and their survivors for compensatory damages of almost seven million dollars, and noting trial victories by three individual plaintiff smokers in separate California and Oregon cases during previous eighteen months resulting in jury awards totaling more than seventy million dollars). We are also cognizant that several courts have discredited prospective tobacco class action plaintiffs’ assertions that individual suits are infeasible. See, e.g., Castano v. American Tobacco Co., 84 F.3d 734, 747 n. 25 (5th Cir.1996) (calling plaintiffs’ claims of resource disparity “overstated“); Reed v. Philip Morris Inc., Civil No. 96-5070, 1997 WL 538921 at *12 (D.C.Super.Ct. Aug. 18, 1997) (Reed I) (commenting that “there does not appear to be any shortage of attorneys willing to undertake tobacco litigation” and attributing lack of individual tobacco lawsuits to possibility that “individuals are not filing claims because they feel they have no compensable injury, that they have no desire to quit smoking, or that they feel personally responsible for any condition from which they may suffer because they made a choice to smoke“).
The second factor focuses upon the extent and nature of litigation concerning the controversy that has already been commenced. This evaluation “is aimed at determining whether there is so much pre-existing litigation that a class would be unproductive....” Central Wesleyan College v. W.R. Grace & Co., 143 F.R.D. 628, 640 (D.S.C.1992), aff‘d, 6 F.3d 177 (4th Cir.1993). Similarly, reviewing whether other litigation of the same type is currently pending “is intended to serve the purpose of assuring judicial economy and reducing the possibility of multiple lawsuits.” 7A WRIGHT, MILLER, & KANE, supra, § 1780, at 568-69. To our knowledge, and according to the parties, there are very few, if any, individual tobacco cases currently pending in Maryland courts. Hence, there hardly exists any “risk of inconsistent adjudication or multiplicity of actions at this point.” Emig, 184 F.R.D. at 393. Nor does there appear to be any “impending explosion of injury-as-addiction [or other tobacco-related] claims that would justify certification of the action.” Id.
Third, a court considering class certification must appraise the desirability of permitting the litigation concerning the present controversy to be concentrated in one forum. Professors Wright, Miller and Kane explain this factor in the following way:
This factor embodies basically two considerations. First, a court must evaluate whether allowing a Rule 23(b)(3) action to proceed will prevent the duplication of effort and the possibility of inconsistent results....
The other consideration ... is whether the forum chosen for the class action represents an appropriate place to settle the controversy, given the location of the interested parties, the availability of witnesses and evidence, and the condition of the court‘s calendar.
7A WRIGHT, MILLER, & KANE, supra, § 1780, at 572-73 (citations omitted). The present lawsuit was filed as a class action, on behalf of Maryland residents, in the Circuit Court for Baltimore City, a court that has had extensive experience with mass tort lawsuits, namely in the asbestos litigation. See generally ACands, Inc. v. Godwin, 340 Md. 334, 667 A.2d 116 (1995). If this litigation were to proceed as a class action, the Circuit Court for Baltimore City would be as able and appropriate a forum as any Maryland has to offer, especially in light of the large numbers of Maryland residents who might become involved as plaintiffs and the geographically diverse roll of defendants.
Finally, the Circuit Court need assess the manageability of the lawsuit as a class action. In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164, 94 S.Ct. 2140, 2146, 40 L.Ed.2d 732 (1974), the Supreme Court explained that “this consideration encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.” As previously discussed, the individual issues in this case would necessitate potentially hundreds of thousands of somewhat extensive individual trials. Such a trial plan hardly promotes judicial economy. Instead, it renders the presently proposed class litigation unmanageable in much the same way as other courts have concluded. See Emig, 184 F.R.D. at 393 (ruling that plaintiffs’ proposed trifurcated trial plan, virtually identical to Respondents’ plan approved by the Circuit Court, would “not further judicial economy because it would necessarily require some type of individual trial for every class member and would greatly complicate the management of the class action“); Kurczi v. Eli Lilly & Co., 160 F.R.D. 667, 681 (N.D.Ohio 1995) (“This action would very likely require an individual hearing for each plaintiff regarding choice of law, another individual hearing regarding causation, and still an-
We also note the difficulties of managing a class action when dealing with an “immature tort.” This notion, and its applicability to the instant case, can be no better explicated than as by the court in Arch v. American Tobacco Co., 175 F.R.D. 469 (E.D.Pa.1997), a little less than three years ago:
Another compelling factor that militates against a finding of superiority is that there does not exist “a prior track record of trials from which [this Court] can draw the information necessary to make the ... superiority analysis required by Rule 23.” [Castano v. American Tobacco Co., 84 F.3d 734, 747 (5th Cir.1996)]. The Castano court stated that “the certification of an immature tort results in a higher than normal risk that the class action may not be superior to individual adjudication.” Id. As in Castano, this Court concludes that the lack of a prior track record of trials in these types of cases makes it practically impossible to draw information necessary to make the superiority analysis.
Plaintiffs argue that the “immature tort” theory should not apply in this case because they proceed on well-established causes of action. As an initial matter, the Court questions plaintiffs’ characterization with respect to the maturity of the causes of action on which they proceed. Plaintiffs’ medical monitoring claim and putative intentional exposure to a hazardous substance claim are relatively new causes of action if you consider the history of the development of tort law. Based just on the relative “maturity” of these particular causes of action, the Court could determine that these torts are immature. The concept of the immature tort however goes far beyond this simplistic analysis.
The immature nature of the Castano plaintiffs’ claim arose out of the fact that the plaintiffs were applying old causes of action to a new situation. The new situation was what the Castano court called the “addiction-as-injury” theory of liability. In Castano, plaintiffs were claiming that defendants’ conduct caused them to become addicted to cigarettes, thus exposing them to the enhanced risk of contracting smoking-related diseases. This theory of liability was “novel“. Indeed, at the time of Castano, no United States Court had ever tried a tobacco suit based on plaintiffs’ theory of liability. Because of the novelty of this theory and the lack of prior track record, the court was unable to draw on any information to make its superiority analysis.
In this case, plaintiffs allege that they proceed on a different theory of liability. However, a close reading of plaintiffs’ amended complaint indicates that plaintiffs proceed on almost the same theory of liability as did the Castano plaintiffs. The plaintiffs’ theory of liability directly relies on their being able to prove that cigarettes are addictive, that the class members are addicted, that the defendants knew that the cigarettes were addictive, that despite this knowledge defendants targeted children with advertising for the sole purpose of addicting them, and that defendants’ actions were undertaken with the full knowl-
Applying the immature tort theory to this case, the Court finds that plaintiffs cannot demonstrate superiority in this case. The superiority analysis requires a balancing of the merits of the class action against those “alternative available methods,” namely individual trials in this case. See Georgine [v. Amchem Products, Inc.], 83 F.3d [610,] 632 [(3rd Cir.1996)]. Any attempt to make a superiority determination in the absence of a prior track record of individual trials is necessarily based on speculation. See Castano, 84 F.3d at 748.
Id. at 494-95 (footnote omitted) (ellipsis in Arch). See also Emig, 184 F.R.D. at 394 (“The court‘s concern would be lessened if there was a prior track record of individual litigation in Kansas courts that establishes that a class action suit is superior to individual litigation of plaintiffs’ claims; however, none is present.“).
Indeed, in Castano the Fifth Circuit emphasized,
Fairness may demand that mass torts with few prior verdicts or judgments be litigated first in smaller units—even single-plaintiff, single-defendant trials—until general causation, typical injuries, and levels of damages become established. Thus, “mature” mass torts like asbestos or Dalkon Shield may call for procedures that are not appropriate for incipient mass tort cases, such as those involving injuries arising from new products, chemical substances, or pharmaceuticals.
Id., 84 F.3d at 748 (quoting MANUAL FOR COMPLEX LITIGATION § 33.26); see Francis E. McGovern, An Analysis of Mass Torts for Judges, 73 TEX. L.REV. 1821, 1841-43 (1995) (discussing the life cycle of a mass tort). As we mentioned earlier, there appear to be few, if any, individual tobacco cases currently pending in Maryland courts. In consideration of the contraindications of prosecuting immature torts as a class action, we concur with the Arch and Castano courts, and
As for the two state cases allowing a tobacco class action to proceed, R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39 (Fla.Dist.Ct.App. 1996), rev. denied, 682 So.2d 1100 (Fla.1996) and Scott v. American Tobacco Co., 725 So.2d 10 (La.Ct. App.1998), writ denied, 731 So.2d 189 (La. 1999), we find their reasoning unpersuasive, for the same reasons that two New York courts have discredited their authority. First the New York Appellate Division criticized the Engle decision on the
Secondly, in denying a motion for class certification against several tobacco manufacturers in a lawsuit pleading thirteen causes of action, the Supreme Court, Queens County, New York disparaged and distinguished the Scott case as follows:
In Scott v. American Tobacco Co., 725 So.2d 10 (1998), the Court of Appeals of Louisiana, Fourth Circuit, certified a tobacco case brought on a claim of medical monitoring. The court said, “In the instant case we are concerned basically with one substance only, nicotine, and one effect only, addiction.” (Scott v. American Tobacco Co., supra, at 13.) However, most jurisdictions are of the view that addiction is a highly individual issue and the Louisiana court‘s impression that the tobacco case involved a mass tort arising from a common cause finds no support in other reported cases. A tobacco case does not involve a mass tort arising from a single accident or catastrophic event. Moreover, in the Louisiana medical monitoring case, a plaintiff would have to prove that as a proximate result of exposure to a substance he suffered a significantly increased risk of contracting a serious latent disease. This is a far less difficult and far less individualistic burden of proof than that faced by a plaintiff in the case at bar where proximate causation of his specific disease must be proven.
Geiger v. American Tobacco Co., 181 Misc.2d 875, 696 N.Y.S.2d 345, 349 (N.Y.Sup.Ct.1999) (citations to cases other than Scott omitted).
V. Punitive Damages
Petitioners also take issue with the Circuit Court‘s proposed treatment of punitive damages under the class action scheme: “In this case, the plaintiffs’ trial plan provides for the common issues jury to determine defendants’ liability for punitive damages and an appropriate multiplier of any actual damages,
In recent years, this Court has on numerous occasions discussed the law of punitive damages. Yet we have not specifically analyzed the applicability of punitive damages to class action suits where liability determinations are separated from the consideration of punitive damages, nor have we addressed directly the use of punitive damages multipliers in any setting.38 Nonetheless, several of our opinions are instructive on the essential features underlying an award of
First, a jury must find compensatory damages as a foundation before it may award punitive damages. In Caldor v. Bowden, 330 Md. 632, 625 A.2d 959 (1993), this Court stated:
There are two threshold conditions that parties must meet before being entitled to receive an award of punitive damages. The first condition is that there be a compensatory damages award underlying an award of punitive damages.39
* * * * * *
Our prior decisions indicate that there must be a compensatory damages award foundation for each count of a complaint that provides a basis for punitive damages.
* * * * * *
[O]ne of the purposes of punitive damages is to punish the wrongs of the defendant. The requirement of a compensatory damages foundation protects defendants from being punished for acts that the trial court determines the defendant did not commit.
Id. at 661-63, 625 A.2d at 973-74 (citation omitted). See also Montgomery Ward v. Wilson, 339 Md. 701, 730, 664 A.2d 916, 930 (1995) (reconfirming that “an award of compensatory damages must underlie any award of punitive damages in Maryland“); Shell Oil Co. v. Parker, 265 Md. 631, 644, 291 A.2d 64, 71 (1972) (holding that “to support an award of punitive damages in Maryland there must first be an award of at least nominal compensatory damages“).
Second, even where the evidence warrants punitive damages, it is within the sound discretion of the trier of fact to
Finally, in the case of Kneas v. Hecht Co., 257 Md. 121, 262 A.2d 518 (1970), we characterized the nature of compensatory damages as an indispensable precondition to punitive damages in a fashion more directly relevant to the issue of separating the determinations of the two species of damages: “It is well settled that in order to support an award for punitive damages compensatory, or actual damages must first be found. Thus punitive damages are clearly dependent and can hardly be decided in a vacuum. . . .” Id. at 125, 262 A.2d at 521 (citations omitted).
Respondents argue that because punitive damages are focused purely on the defendants’ conduct, they may be determined in the Phase I class trial without regard to the liability of Petitioners to any class member. It is true, as Respondents suggest, that the purpose of a punitive damages award is to punish the defendant, and that such an award does not depend in any way upon the plaintiff‘s conduct. We reconfirmed this principle less than a decade ago, stating that the “‘purposes of punitive damages relate entirely to the nature of the defendant‘s conduct‘” and “the availability of a punitive damages award ought to depend upon the heinous nature of the defendant‘s tortious conduct.” Zenobia, 325 Md.
Rather than representing a specific monetary loss by the plaintiff, punitive damages embody a public policy determination that a particular defendant engaged in heinous and malicious conduct sufficient to warrant the equivalent of a “civil penalty.” It has no necessary relation to the loss suffered by the plaintiff, but rather depicts the degree of the defendant‘s culpability and his ability to pay.
Scott, 345 Md. at 36, 690 A.2d at 1007 (citation omitted). Nonetheless, that the focus of punitive damages lies upon defendants and their conduct does not change the fact that, as demonstrated from the precedents excerpted above, there is clearly established Maryland law prohibiting an award of punitive damages made without regard to the actual compensatory damages to be awarded.
Respondents, however, would have us instead look to other jurisdictions that have endorsed the use of punitive damages multipliers for complex tort litigation. In particular, they point to certain decisions within the Fifth Circuit, upon which the Circuit Court rested its approval of the use of punitive multipliers in prosecuting the present case as a class action. In Jenkins v. Raymark Industries, Inc., 782 F.2d 468 (5th Cir.1986), the court stated:
Defendants contend that, under Texas law, punitive damages cannot be determined separately from actual damages because the culpability of their conduct must be evaluated relative to each plaintiff. We disagree.
The purpose of punitive damages is not to compensate the victim but to create a deterrence to the defendant, and to protect the public interest. . . . The focus is on the defendant‘s conduct, rather than on the plaintiff‘s. While no plaintiff may receive an award of punitive damages without proving that he suffered actual damages, the allocation need not be made concurrently with an evaluation of the defen-
dant‘s conduct. The relative timing of these assessments is not critical.
Id. at 474 (citations omitted).
In the case of In re Shell Oil Refinery, 136 F.R.D. 588, 593-94 (E.D.La.1991), aff‘d, sub nom. Watson v. Shell Oil Co., 979 F.2d 1014 (5th Cir.1992), reh‘g en banc granted, 990 F.2d 805 (5th Cir.1993), appeal dismissed, 53 F.3d 663 (5th Cir.1994), the trial court, guided by the rationale stated in Jenkins, adopted a class action trial plan for the prosecution of claims arising out of a 1988 explosion whereby a common issues jury would determine the defendants’ liability for punitive damages, if any, in terms of an amount of money for each dollar of compensatory damages to be awarded individual plaintiffs by a later, separate jury. Hence, the common issues jury was to establish a punitive damages multiplier for the Court to utilize in computing and ordering punitive damages for those plaintiffs ultimately successful in proving actual damages. See Shell Oil Refinery, 136 F.R.D. at 593. See also Cimino v. Raymark Industries, Inc., 151 F.3d 297, 327 (5th Cir.1998) (relying on Jenkins, acknowledging propriety of punitive damages award based upon multiplier yet holding that one co-defendant could not be held jointly liable for punitive damages award separately assigned to other co-defendant).
Respondents have also cited Day v. NLO, Inc., 851 F.Supp. 869 (S.D.Ohio 1994), in which case the court stated:
The only other class wide verdict which we envision allowing the jury to render, if appropriate, is for punitive damages. Of all the issues to be decided in this case, the issue of punitive damages is the least dependent upon the individual differences between Plaintiffs. Punitive damages are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. As one district court has stated:
Punitive damages are not measured solely by the bodily injury suffered by a plaintiff, rather imposition of punitive damages is determined according to other factors such as
the outrageousness of the injurious act, the defendant‘s motives and intent, and the nature and extent of the harm to the plaintiff. The award of punitive damages focuses upon the conduct of the Defendants. In this case that proof, as we have noted, is very similar to the issue of liability for intentional tort. Therefore, for the same reasons it is fitting that the question of punitive damages be determined class wide.
Id. at 884-85 (internal quotation marks and citations omitted). See also In Re Diamond Shamrock Chemicals Co., 725 F.2d 858, 862 (2d Cir.1984) (refusing to issue writ of mandamus to compel trial court to vacate its certification of mandatory class under
Finally, Respondents direct our attention to In Re Air Crash Disaster at Stapleton International Airport, 720 F.Supp. 1455 (D.Colo.1988), where the court stated:
Consolidation of liability and punitive damage issues avoids the potential that disparate liability verdicts will be imposed on defendants . . . for the same conduct. The liability phases of individual trials would involve identical evidence and standards of conduct.
Issues of liability and damages are bifurcated pursuant to
Rule 42(b) . Common issues of liability and punitive damages are consolidated for an exemplar trial pursuant toRule 42(a) .
Id. at 1459 (footnotes omitted).
It is clear from these cases that other jurisdictions have approved of the use of punitive damages multipliers, as well as the separation of the determination of punitive damages from that of compensatory damages. This does not change the fact that punitive damage multipliers applied in the manner proposed are in direct contradiction to Maryland law for the same reasons that considerations of compensatory and punitive damages may not be bifurcated in wholesale fashion and across multiple juries. Allowing a single jury to set irrevocably the amount of punitive damages to be imposed relative to and on behalf of several, let alone thousands of
For all the reasons outlined above, we fully concur with Petitioners’ assessment that the Circuit Court‘s treatment of punitive damages was error:
Under the Circuit Court‘s decision, . . . the punitive damages determination would be made before any finding of liability to any class member, in the absence of any evidence that defendants’ conduct actually caused any class member‘s alleged injury, and without any knowledge of how much, if any, compensatory damages would be awarded to any class member by other juries who would never hear the Phase I evidence. This procedure, therefore, contravenes the bedrock requirements of Maryland substantive law.
(Petition at 41.)
VI. Medical Monitoring
The Circuit Court certified Respondents’ medical monitoring claim under
(b) Class actions maintainable. Unless justice requires otherwise, an action may be maintained as a class action if the prerequisites of section (a) are satisfied, and in addition:
* * * * *
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. . . .
Noting that this Court has never addressed the question of whether medical monitoring is cognizable in Maryland, (Cir. Ct. Mem. Op. at 64), the Circuit Court concluded that a cause of action for medical monitoring exists in Maryland, accepting “the elements for the maintenance of a medical monitoring claim,” id. at 67, based upon the reasoning set out in In re Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3rd Cir.1990) (Paoli I), In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3rd Cir.1994) (Paoli II), and Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). The Circuit Court then determined that the medical monitoring relief sought by the plaintiffs was within the scope of a
For the purposes of class certification, the plaintiffs have alleged systematic and continuous conduct by the defendants which has exposed the plaintiffs to numerous toxic substances. As a result of this alleged exposure, plaintiffs have an increased risk of contracting serious disease and injury. If the plaintiffs in this case ultimately prove their allegations, the class members will be entitled to injunctive relief in the form of an extensive court-supervised medical monitoring program. Therefore, because plaintiffs have alleged with particularity a common course of conduct by the defendants against the entire putative class, the Court concludes that the party opposing class certification has allegedly acted on grounds generally applicable to the class for which final injunctive relief with respect to the class as a whole is warranted.
(Cir. Ct. Mem. Op. at 67-68 (footnote and citation omitted)).
This Court has never considered whether a demonstrated need for medical monitoring creates a valid cause of action in
Medical monitoring has been defined as “one of a growing number of non-traditional torts that have developed in the common law to compensate plaintiffs who have been exposed to various toxic substances.” Paoli I, 916 F.2d at 849. See also Recovery of Damages for Expense of Medical Monitoring to Detect or Prevent Future Disease or Condition, 17 A.L.R.5th 327, § 3 (stating that courts have “defined a medical monitoring claim as a claim for the costs of periodic medical examinations to detect latent diseases or disorders caused by
Whether this Court should, as a matter of Maryland common law, recognize medical monitoring, either as a distinct cause of action or allowable form of relief, is a question not easily answered, and one that no doubt will be recurring. In the context of a toxic tort suit involving claims for damages
sustained because plaintiffs’ well water was contaminated by toxic pollutants, the Supreme Court of New Jersey, noting the difficulty that both law and science experience in attempting to deal with the emerging complexities of industrialized society and the consequent implications for human health, observed:
Our evaluation of the enhanced risk and medical surveillance claims requires that we focus on a critical issue in the management of toxic tort litigation: at what stage in the evolution of a toxic injury should tort law intercede by requiring the responsible party to pay damages?
We need not resolve this matter today but shall instead leave for the future whether, under Maryland law, plaintiffs could maintain a cause of action or claim to relief to recover the expense of medical surveillance. Whether medical monitoring is a cognizable claim under the tort law of this State is in no way ripe for our consideration at this stage of the litigation: even should this novel tort theory constitute a valid cause of action or form of relief in Maryland, an equitable relief class action should never have been certified on the basis of such a claim under the circumstances of this case.
The claim for medical monitoring should not have been certified under
In Arch v. American Tobacco Co., 175 F.R.D. 469 (E.D.Pa. 1997), the court offered the following rationale in analyzing plaintiffs’ claim for medical monitoring and rejecting their motion for certification of a class action on behalf of Pennsylvania smokers against tobacco companies under
The Court finds that it may properly certify a medical monitoring claim under Rule 23(b)(2) when the plaintiffs seek such specific relief which can be properly characterized as invoking the court‘s equitable powers. In reaching this decision, the Court perforce rejects defendants’ argument that a medical monitoring claim can never be characterized as injunctive.
The dispositive factor that must be assessed to determine whether a medical monitoring claim can be certified as a Rule 23(b)(2) class is—what type of relief do plaintiffs actually seek. If plaintiffs seek relief that is a disguised request for compensatory damages, then the medical monitoring claim can only be characterized as a claim for monetary damages. In contrast, if plaintiffs seek the establishment of a court-supervised medical monitoring program through which the class members will receive periodic examinations, then plaintiffs’ medical monitoring claim can be properly characterized as a claim seeking injunctive relief.
Id. at 483 (citations omitted). See also Barnes, 161 F.3d at 142. The court ultimately concluded that the claim for medical monitoring could not “be properly certified under [Federal] Rule 23(b)(2) but must satisfy the requirements of Rule 23(b)(3).” Arch, 175 F.R.D. at 485.
In their Fourth Amended Complaint, Respondents demand that “Defendants be ordered to create a medical monitoring fund, under the continuing jurisdiction and supervision of the Court, to monitor the health of Plaintiffs and Class members and to pay or reimburse Class members for all medical
It is therefore clear that notwithstanding the possibility that a medical monitoring claim might legitimately be framed as one seeking equitable relief, see Day v. NLO, Inc., 144 F.R.D. 330, 336 (S.D.Ohio 1992), that possibility cannot be realized through the instant lawsuit. See Arch, 175 F.R.D. at 484 (ruling that Pennsylvania smokers’ medical monitoring claim could not be certified under
Class certification of Respondents’ medical monitoring claim under
Moreover, the medical monitoring claim may perhaps more accurately be deemed a remedy rather than a distinct cause of action. See Potter, 25 Cal.Rptr.2d 550, 863 P.2d at 823 (“Recognition that a defendant‘s conduct has created the need for future medical monitoring does not create a new tort. It is simply a compensable item of damage when liability is established under traditional tort theories of recovery.“); Cosentino v. Philip Morris Inc., No. MID-L-5135-97, slip op. at 23 (N.J.Super. Ct. Oct. 22, 1998, recon., Feb. 11, 1999). But see Arch, 175 F.R.D. at 483-84 n. 11 (“[S]everal states have permitted recovery of damages for medical monitoring as part of the relief. In Pennsylvania, however, medical monitoring is an independent cause of action, not a compensable item of damages.” (Citation omitted)); Redland, 548 Pa. 178, 696 A.2d 137; Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996).41 Insofar as medical monitoring constitutes only a form of relief, Respondents would still be required to succeed in proving one of their other nine pleaded causes of action. These we have already deemed inappropriate for class action treatment on account of their lack of predominance of common issues over individual ones, a test that is, again, even less stringent than the “cohesiveness” requirement for equitable relief class actions. A fortiori, the particular medical monitor-
This Court has already stated that numerous issues, including addiction, causation, reliance, statute of limitations and other defenses, will have to be addressed individually. Those same issues are just as central to a medical monitoring claim as to any of the Plaintiffs[‘] other claims. Thus even if this Court were to consider certifying this class for medical monitoring under Rule 23(b)(2), it would still fail to qualify under the cohesive requirement.
Reed v. Philip Morris Inc., Civil No. 96-5070, slip op. at 45 (D.C.Super.Ct. July 23, 1999) (Reed II). Finally, for the already determined failure of predominance, the medical monitoring claim could thus not be maintained as a class action even if recast under
In conclusion, although we do not rule out the possibility that this Court would, in an appropriate case, recognize medical monitoring as a viable cause of action or as an element of damages, we do not believe that a
VII. Conclusion
Because the Circuit Court‘s order certifying the present litigation as a class action was inappropriate for the numerous reasons discussed above, we conclude that the instant petition for writ of mandamus should be, and hereby is, granted. An order of mandamus shall issue henceforth from this Court
CLASS CERTIFICATION ORDER OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED. COSTS TO BE PAID IN THE PROPORTION OF ONE-FOURTEENTH BY RESPONDENT STATE OF MARYLAND,
THIRTEEN-FOURTEENTHS BY RESPONDENT REPRESENTATIVE PLAINTIFFS.BELL, C.J., RODOWSKY and CATHELL, JJ., dissent.
CATHELL, Judge, dissenting.
I would deny the petition for writ of mandamus and/or prohibition.
“[T]he writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations [and] only ‘exceptional circumstances amounting to a judicial “usurpation of power“’ will justify issuance of the writ.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988); see Goodwich v. Nolan, 343 Md. 130, 146, 680 A.2d 1040, 1048 (1996) (“[J]udicial review is properly sought through a writ of mandamus ‘where there [is] no statutory provision for hearing or review and where public officials [are] alleged to have abused the discretionary powers reposed in them.‘” (second and third alterations in original) (quotation omitted)).
Under these circumstances, the granting of the petition, in my opinion, negatively impacts the ability of the Circuit Court for Baltimore City to manage its own docket. Just as important, by granting the writ of mandamus and rejecting the trial court‘s class certification at this early stage of the proceeding, this Court improperly substitutes its discretion for that of the trial judge and, because it does not accord the trial judge the proper deference, tends to undermine the judicial process,
I. Writ of Mandamus
As we have seen, the writs of mandamus and prohibition are “extraordinary” writs, which are to be used in only the most extreme cases of discretionary abuse.1 We addressed the prerequisites of such writs in Goodwich, 343 Md. at 145, 680 A.2d at 1047:
[The writ of mandamus] is “not a substitute for appeal or writ of error.” In re Petition for Writ of Prohibition, 312 Md. 280, 306, 539 A.2d 664, 676 (1988). It is, however, “an extraordinary remedy[,]” Ipes v. Board of Fire Commissioners of Baltimore, 224 Md. 180, 183, 167 A.2d 337, 339 (1961), “that ... will not lie if [there is] any other adequate and convenient remedy[.]” A.S. Abell Co. v. Sweeney, 274 Md. 715, 718, 337 A.2d 77, 79 (1975) (quoting Applestein v. Baltimore, 156 Md. 40, 45, 143 A. 666, 668 (1928)). Mandamus is generally used “to compel inferior tribunals, public officials or administrative agencies to perform their function, or perform some particular duty imposed upon them which in its nature is imperative and to the performance of which duty the party applying for the writ has a clear legal right.” Criminal Injuries Compensation Board v. Gould, 273 Md. 486, 514, 331 A.2d 55, 72 (1975); see also George‘s Creek Coal & Iron Co. v. County Commissioners, 59 Md. 255, 259 (1883). The writ ordinarily does not lie where the action to be reviewed is discretionary or depends on personal judgment. [Second, third and fourth alterations in original.]
See also Board of Supervisors v. County Comm‘rs, 200 Md. 114, 116, 88 A.2d 462, 463 (1952) (“The writ of mandamus is an extraordinary remedy afforded to prevent a failure of justice and to preserve peace, order and good government. Mandamus is not available except where the petitioner has a clear legal right to compel performance of a certain positive duty by the respondent and where the law affords no other adequate remedy.” (citation omitted)); Pressman v. Elgin, 187 Md. 446, 451, 50 A.2d 560, 563 (1947) (“[M]andamus ... was issued only by exercise of the extraordinary power of the Crown on proper cause shown.“).
Though the writ of mandamus traditionally has served an extremely limited role, this Court has noted the expanded role of the writ in appellate supervisory review:
“Some commentators have said that under what they view as the traditional approach, writs appropriately issue ‘only to control actions beyond the jurisdiction of an inferior court, or to compel action that the court lacked power to withhold.’ But, according to Wright, in recent times the use of the extraordinary writ has ‘broadened to include use of the writs to correct clear abuse of discretion, and more recently ... to satisfy other peculiar needs for interlocutory review.‘”
“Earlier commentators, however, recognized that a prerogative writ could issue to control actions of a lower court that were not jurisdictional in nature. As to mandamus, Blackstone asserts that it is designed to ‘enforce the due exercise of those judicial ... powers, with which [inferior courts are invested] ... not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.’ ... The same remedy is available ‘if, in handling of matters clearly within their
cognizance, they transgress the bounds proscribed to them by the laws of England....‘”
In re Petition for Writ of Prohibition, 312 Md. 280, 306-07, 539 A.2d 664, 676-77 (1988) (citations omitted) (alteration in original).
Thus, the law has evolved so that a writ may be issued by this Court to vacate an order of a lower tribunal that constitutes an “abuse of discretion.” In the context of appeal, we have defined an abuse of discretion as an instance “where no reasonable person would take the view adopted by the trial court, or when the court acts without reference to any guiding rules or principles. An abuse of discretion may also be found where the ruling under consideration is clearly against the logic and effect of facts and inferences before the court, or when the ruling is violative of fact and logic.” In re Adoption/Guardianship No. 3598, 347 Md. 295, 312, 701 A.2d 110, 118-19 (1997) (internal quotations and alterations omitted).
“Abuse of discretion” sufficient to justify issuance of “extraordinary” writs means more than making an erroneous or illogical decision, however; it is different in magnitude than that required to be shown to obtain reversal on appeal. In re Catawba Indian Tribe, 973 F.2d 1133 (4th Cir. 1992); Banov v. Kennedy, 694 A.2d 850 (D.C. 1997). In Banov, the District of Columbia Court of Appeals stated that “[a]buse of discretion sufficient for reversal in an appeal is not enough to warrant mandamus; for mandamus to issue, a decision [ (of the lower court)] must qualify as ‘usurpation of judicial power.‘” 694 A.2d at 858 (quotation omitted). Similarly, the United States Court of Appeals for the Fourth Circuit has observed that a party seeking mandamus “must make the most difficult showing, that of an abuse of discretion amounting to a usurpation of the judicial power, before mandamus will lie to replace the district court‘s decision.” Catawba Tribe, 973 F.2d at 1136; see also Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1386 & n. 23 (11th Cir. 1998) (referring to the “clear abuse of discretion” standard: “A district court‘s class certification decision, in and of itself, will constitute a ‘clear usurpation of
Thus, a trial court‘s order granting class certification, even if incorrect and even if the facts are as are alleged by petitioners, without more, should not trigger the granting of an extraordinary writ. Otherwise, there will be a significant further expansion of the extremely limited use of extraordinary writs by appellate courts for regulatory purposes. The Missouri Court of Appeals, in State ex rel. Byrd v. Chadwick, 956 S.W.2d 369, 376 (Mo. Ct. App. 1997), stated: “In [issuing the writ], we do not direct the trial court as to how it will exercise its discretion, but rather direct it as to what determinations it must make, and then allow it to make those determinations following issuance of our writ.” The Tennessee Supreme Court has agreed. See Meighan v. United States Sprint Communications Co., 942 S.W.2d 476 (Tenn. 1997) [hereinafter Meighan II]. (Quoting 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 742, at 7-128 to 7-129 (3d ed. 1992)), the Meighan II court stated:
Mandamus is appropriate for abuses of discretion, rather than misinterpretations of questions of law. It may lie if the [trial] court, in determining propriety of the class action, acts outside its jurisdiction, without regard to applicable procedural safeguards, or applies or refuses to apply the criteria of [Federal] Rule [of Civil Procedure] 23 in an arbitrary manner.2 However, if a district court has acted within its jurisdiction according to procedural safeguards and applies the criteria of Rule 23 in a nonarbitrary manner, mandamus is inappropriate to secure a de novo review of the ruling on the class.
Meighan, 942 S.W.2d at 481; cf. In re NLO, Inc., 5 F.3d 154, 159-60 (6th Cir. 1993) (“Assuming arguendo that the district court‘s certification under [Federal] Rule [of Civil Procedure] 23(b)(2) is erroneous, it is not so clearly erroneous ... that mandamus is the proper remedy.“).
Ex Parte Green Tree Financial Corp., 684 So.2d 1302, 1307 (Ala. 1996), involved a class certification in which the trial court “entered an order based upon little or no evidentiary underpinnings.” The Alabama Supreme Court was concerned that the order “merely parrot[ed]” the language of the class action rule and had illegally ordered both a mandatory and an “opt-out” class. Id. It held, relying in part on its earlier decision in Ex Parte Blue Cross & Blue Shield, 582 So.2d 469, 476-77 (Ala. 1991), in which mandamus was issued to vacate an order for certification when neither party moved to proceed by way of class action or produced any evidence to justify so proceeding, that such circumstances warranted the granting of a writ. See Ex Parte Green Tree, 684 So.2d at 1305.
In these cases, there was a blatant disregard of the applicable rule. Following their teaching, this Court should issue the writ only upon a blatant disregard of
II. Trial Court Discretion
The only guidance provided to this State‘s circuit court judges to assist them in determining whether to certify a class
Rules of practice and procedure are interpreted in the same manner as a statute, that is, the same canons of construction apply in both cases. See, e.g., State v. Bell, 351 Md. 709, 717, 720 A.2d 311, 315 (1998); New Jersey v. Strazzella, 331 Md. 270, 274, 627 A.2d 1055, 1057 (1993). Thus,
“[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). Legislative intent must be sought first in the actual language of the statute. Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts normally do not look beyond the words of the statute to determine legislative intent.
Id. at 717-18, 720 A.2d at 315 (some citations omitted).
(c) Certification. On motion of any party or on the court‘s own initiative, the court shall determine by order as soon as practicable after commencement of the action whether it is to be maintained as a class action. A hearing shall be granted if requested by any party. The order shall include the court‘s findings and reasons for certifying or refusing to certify the action as a class action. The order may be conditional and may be altered or amended before the decision on the merits.
The rule is plain and unambiguous.
“The ... language [of the Rule] is not read in isolation, but ‘in light of the full context in which [it] appear[s], and in light of external manifestations of intent or general purpose available through other evidence.‘” Stanford v. Maryland Police Training & Correctional Comm‘n, 346 Md. 374, 380, 697 A.2d 424, 427 (1997) (alterations in original) (quoting Cunningham v. State, 318 Md. 182, 185, 567 A.2d 126, 127 (1989)). Looking at it in light of the full context in which it appears, Title 2, “Civil Procedure—Circuit Court,” reveals that
Rule 2-231 , by design, contemplates that the circuit court exercise discretion in making the decision that the rule addresses. Without anydoubt, the all-inclusive wording of Maryland Rule 2-231 places the determination, in the first instance, of class certification with the circuit court judges.“When we pursue the context of statutory language, we are not limited to the words of the statute as they are printed.... We may and often must consider other ‘external manifestations’ or ‘persuasive evidence,’ including a bill‘s title and function paragraphs, amendments that occurred as it passed through the [enactment process], its relationship to earlier and subsequent [rules], and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.”
Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628, 632-33 (1987).
The history of
In the early 1980‘s, the Rules Committee proposed changes to the rule designed to eliminate jurisdictional and statutory shortcomings, eventually resulting in the adoption of the pres-
It is apparent from this history that the rule was recommended and adopted as a tool for the trial court to advance efficiency by (1) allowing class actions and (2) giving the trial courts the power to administer them. It is clear that it was the intention that the trial court‘s class certification decision be given due deference. Expedition of litigation is an expected result of increased court efficiency. Yet, granting the writ requested here subjects the class certification decision to the possibility of being bogged down immediately in a pretrial appellate process seeking mandamus review. That is counter-productive and inconsistent with the intent of
This Court and the Court of Special Appeals both have previously interpreted the rule as giving great deference, at least at the preliminary stages, to a trial judge‘s class certification decision. In Bender v. Secretary, Maryland Department of Personnel, 290 Md. 345, 430 A.2d 66 (1981), the issue was whether certain parties were necessary parties and, thus, had to be added by amendment or class certification. Rather than answering that question ourselves, we remanded the case to the trial court for a decision as to whether a class certification was appropriate. Id. at 356, 430 A.2d at 72-73. This Court then acknowledged that the determination whether class certification is appropriate is a question better left, at least initially, to the trial judge‘s discretion.
The same rationale was later utilized by the Court of Special Appeals in Kirkpatrick, supra. That court held that a trial judge should not have dismissed an action based on lack of necessary parties without also ruling on a motion for class action certification. “The message suggested to us by Bender apropos to our present concern, is that the trial judge should have decided appellee[‘s] renewed request for ruling on class
The Court of Special Appeals logically concluded that certification of a class is an issue initially left to the trial judge. Following Bender, the intermediate appellate court remanded the case, allowing the trial court to determine whether class certification was appropriate. Although, in that regard, the court suggested courses of action for the trial judge to take after determining whether the certification was appropriate, id. at 250-51, 467 A.2d at 567, it was clear in stating that, on that score, it “by no means suggest[ed] the conclusion to be reached....” Id.
Bender and Kirkpatrick illustrate that Maryland‘s appellate courts have resisted treading, prior to finality, on territory generally left to the discretion of the trial court, absent extraordinary circumstances amounting to a usurpation of power. In both cases, the appellate courts treated the class certification decision as a discretionary matter to be decided by the trial judge.
Petitioners rely heavily on Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), a case in which the Supreme Court overturned a trial court order that hastily certified a class for settlement purposes without properly analyzing and applying the class action rule. That case, however, is distinguishable. In Amchem Products, the Supreme Court feared that the trial judge did not use any discretion in certifying the class because “within the space of a single day ... the settling parties ... presented to the District Court a complaint, an answer, a proposed settlement agreement, and a joint motion for conditional class certification.” Id. at 601-02, 117 S.Ct. at 2239, 138 L.Ed.2d 689. The Supreme Court‘s concern in Amchem Products was the haste with which the certification determination was made. We do not have the same procedural concerns here. The record clearly shows that, in the case sub judice, the trial judge used discretion and seriously considered the certification issues; in
Whether his determinations are correct or not, the process the trial judge used to arrive at them, was clearly correct. When there is evidence, as in Amchem Products, that a trial court did not take the proper steps to certify a class, then there may be some evidence of an abuse of discretion and, therefore, justification for issuing mandamus. That is not the case here.
The trial court‘s exercise of discretion in formulating the issues and scope of class actions is not final until, at least, the commencement of the trial on the merits. In fact, it may not achieve finality until final judgment is rendered. As I see it, the view espoused by the majority makes the trial court‘s exercise of discretion, even at the very beginning of the proceedings, a final exercise of discretion. This is inconsistent with
In consolidated appeals after final judgment had been entered, the District of Columbia Court of Appeals recognized the importance of allowing a trial court wide discretion in reviewing certifications of class actions:
When seeking class certification, a plaintiff must meet each of the four requirements of Super. Ct. Civ. R. 23(a)....3 The party seeking certification has the burden of showing that the request for class certification complies with the requirements of the rule. Whether that burden has been met is a matter entrusted to the trial court‘s discretion, and its decision will not be reversed unless that discretion has been abused.
Cowan v. Youssef, 687 A.2d 594, 602 (D.C. 1996) (footnote omitted) (citing Yarmolinsky v. Perpetual Am. Fed. Sav. & Loan Ass‘n, 451 A.2d 92, 94 (D.C. 1982)); see also In re NLO, Inc., 5 F.3d at 157 (stating that trial courts “unquestionably
The Supreme Court of Tennessee has also held that it is generally premature for an appellate court to second guess a trial judge‘s exercise of discretion in certifying a class: “the determination of whether an action should proceed as a class action is a matter which is left to the sound discretion of the trial judge. Only upon a finding of an abuse of that discretion should the trial judge‘s decision be modified on appeal.” Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 637 (Tenn. 1996) (hereinafter Meighan I) (emphasis added) (citing Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988)). That court pointed out as well that “[i]t is well established that the existence of separate issues of law and fact, particularly regarding damages, do not negate class action certification.” Id.; see also
III. Class Certification
The prerequisites to a class action are outlined in
(a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are ques-
tions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Class actions maintainable. Unless justice requires otherwise, an action may be maintained as a class action if the prerequisites of section (a) are satisfied, and in addition:
....
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions, (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum, (D) the difficulties likely to be encountered in the management of a class action.
Subsection (a)(1) requires, for class certification, that the class be so numerous that joinder of all members is impracticable. In the case sub judice, the plaintiffs allege, petitioners do not contest, and the trial judge determined, that the class consists of tens of thousands of Maryland citizens. Clearly, a class of that size would justify class certification. But, for our purposes, whether his determination is correct or not, the trial judge did address this factor.
To meet the requirements of
In the case sub judice, the plaintiffs’ complaint and class certification motion allege numerous questions of law and fact that may be common to the class, including whether cigarettes and smokeless tobacco products are addictive, whether the defendants manipulated nicotine levels in their products, whether the defendants conspired to conceal and distort the results of their tobacco research, and whether affirmative defenses are available. It is the function, initially, of the trial judge to determine whether there are significant “‘issues involved [that] are common to the class as a whole’ and ... ‘turn on questions of law applicable in the same manner to each member of the class.‘” General Tele. Co. v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 2557, 61 L.Ed.2d 176 (1979)). Again, whether correctly or not, these issues were addressed by the trial judge.
In addition to meeting the four requirements of subsection (a), a class action must also fall within one of the four categories contained in subsection (b) of
Had the trial judge not exercised discretion at all, I might perceive that issuance of an extraordinary writ was in order. Petitioners, however they couch the issue, ask us to preliminarily assess the correctness of the judge‘s exercise of discretion, not whether it was exercised. Correctness of the ruling, as I see it, is a matter for review in the normal appellate process. At that time, our review will be of the “final” class of
Nor is there a basis in this record for concluding that the trial judge usurped his judicial authority. The trial judge‘s memorandum opinion, whether correct or not, is comprehensive, detailed, and specific, demonstrating only a deliberate effort to comply with
By the time this case would arrive here in the normal course, the facts established at trial may well be manifestly different, and the class may be different as well, as the trial court modifies and narrows the class in accordance with the pretrial development of the facts. The trial court‘s ultimate decision as to the size of the class might well be satisfactory to the entire Court. We will never know as the majority usurps the trial court‘s role in the process. This Court, as I see it, should not substitute its discretion for that of the trial judge, or determine that the trial judge has abused his discretion, at this early stage of the proceeding, when the exercise of discretion is supposed to be continuing, so that the final decision of the trial court may, or may not, be an abuse of discretion.
To hold otherwise sets a dangerous precedent. First, it improperly replaces the trial court‘s discretion with ours. Second, the situation may, in the end, not warrant such an extraordinary remedy. It also might serve to deny to the trial judge the initial deference in such matters to which the trial courts are entitled and might render the application of
In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir.), cert. denied, 516 U.S. 867, 116 S.Ct. 184, 133 L.Ed.2d 122 (1995), cited by petitioners as a leading case in which manda-
In another example, In re School Asbestos Litigation, 789 F.2d 996 (3d Cir. 1986),4 the Third Circuit, hearing an interlocutory appeal under
These examples reflect exactly what can happen in class action lawsuits if this Court modifies the final judgment rule as it pertains to pretrial class action decisions. Every defendant in major civil litigation who is disappointed by an important pretrial ruling will contend that that defendant‘s case presents extraordinary circumstances justifying early appellate intercession. Holding that the writ should issue here confers on such defendants the power to stall. In turn, plaintiffs and witnesses will die, become impossible to locate, or their memories will fail. Evidence will disappear or be
Chief Judge BELL and Judge RODOWSKY have authorized me to state that they concur with the views expressed herein.
Notes
- Smokers with diagnosable symptoms of smoking related diseases as defined in the Class Notice, such as Representative Plaintiffs Mildred Richardson, Karol Potter, Lonza Cutchin and other, additional, class representatives.
- Smokeless tobacco users with diagnosable symptoms of disease.
- Smokers who are nicotine dependent but who have no diagnosable symptoms of disease.
- Nicotine dependent users of smokeless tobacco products who have no diagnosable symptoms of disease.
- Smokers who are nicotine dependent and commenced smoking prior to implementation of the 1969 Cigarette Labeling Act.
- Smokers who are nicotine dependent and commenced smoking after implementation of the 1969 Cigarette Labeling Act.
In re Hotel Tel. Charges, 500 F.2d 86, 90 (9th Cir. 1974). We believe that whatever problems the Circuit Court‘s certification of the present litigation as a class action may entail, they are hardly unrevealed; instead, they are readily apparent.Conditional certification is not a means whereby the District Court can avoid deciding whether, at that time, the requirements of the
[federal class action] Rule have been substantially met. The purpose of conditional certification is to preserve the Court‘s power to revoke certification in those cases wherein the magnitude or complexity of the litigation may eventually reveal problems not theretofore apparent.
(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
******
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
whether tobacco is addictive; whether [Petitioners] have manipulated nicotine levels in their products; whether [Petitioners] have concealed research showing nicotine to be addictive; whether tobacco causes disease and if so, whether the [Petitioners] have intentionally concealed and distorted research data; whether prior to 1969 the industry failed to warn the public of the dangers known to the industry regarding smoking; whether the tobacco industry has produced a defective product and if so, whether they are strictly liable; whether a safer alternative design was and is available, and if so, whether the industry has intentionally disregarded the alternative design to continue marketing a defective, addictive product.
(Cir. Ct. Mem. Op. at 33 n. 13); see also (Pls.’ 4th Am. Compl. at ¶ 45).Because Maryland is among the few states that continue to adhere to the traditional conflict of laws principle of lex loci delicti, the First Restatement of Conflict of Laws, while of merely historical interest elsewhere, continues to provide guidance for the determination of lex loci delicti questions in Maryland.
Black v. Leatherwood, 92 Md.App. 27, 41, 606 A.2d 295, 301, cert. denied, 327 Md. 626, 612 A.2d 257 (1992).In this case, [Petitioners] have substantial business contacts in Maryland and [each] class is limited by the class definition which provides that only Maryland residents who have experienced the effects of their injury/dependence in this state, may qualify as class members. In any event, the state where the initial exposure to [Petitioners]’ products took place is of little significance in relation to the alleged harm suffered by Maryland residents. Therefore, only the law of Maryland will apply to all class members.
(Cir. Ct. Mem. Op. at 42.)Further, lex loci delicti will apply only to the tort claims (fraud and deceit, negligent misrepresentation, intentional infliction of emotional distress, and negligence). Respondents allege other causes of action that would implicate additional choice-of-law doctrine. See Frericks v. General Motors Corp., 278 Md. 304, 363 A.2d 460 (1976) (applying Maryland law imposing secondary liability for design defect in breach of warranty claim where car was sold in Maryland, although accident occurred in North Carolina); Volkswagen of America v. Young, 272 Md. 201, 220, 321 A.2d 737, 747 (1974) (reiterating that the “general rule, to which we adhere, is that ‘the law of the place of the sale determines the extent and effect of the warranties which attend the sale‘” (quoting Schultz v. Tecumseh Products, 310 F.2d 426, 428 (6th Cir.1962))). See also Smith v. Brown and Williamson Tobacco Corp., 174 F.R.D. 90, 96 (W.D.Mo.1997) (“[I]t is possible that different [states‘] laws will apply to the different claims asserted by a single claimant: for instance, it may be that one state‘s laws will apply to a person‘s breach of warranty claims while another state‘s laws apply to that individual‘s strict liability claims.“).
(Pls.’ 4th Am. Compl. at 1243). In apparent reference to this second type of “fraud,” Respondents argue to this Court that the reliance element normally required of a civil claim of fraud is essentially excused:Defendants knew or acted with reckless indifference to the fact that nicotine was addictive, defendants manipulated the amount of nicotine levels and/or the bio-availability of nicotine in the tobacco products, and defendants intended to addict cigarette smokers but refrained from disclosing the facts to cigarette smokers, for the purpose of inducing them to purchase tobacco products, thus causing Plaintiffs to incur injury and damages.
(Opp‘n to Pet. at 25-26.)[I]n many cases, plaintiffs must prove reliance and/or specific causation on an individual basis. This case, however, includes allegations of a far more insidious nature: that defendants’ acts of manipulating and/or controlling nicotine in their cigarettes through the secret use of additives such as ammonia and acetaldehyde are a substantial—though hidden factor—in causing nicotine addicted customers to continue to purchase their cigarettes. Therefore, it is ... [un]necessary to prove that each individual plaintiff purchased cigarettes in “reliance on” or “because of” their nicotine addiction....
******
In this case, Plaintiffs allege that the defendants intentionally engineered their products to make them deliver more nicotine “impact” without increasing the amounts of nicotine in their products. This is a fraudulent/deceptive act common to all defendants, which physically affected all users. Under these facts, reliance/causation need not be proven on an individual basis: rather, it can be established for all smokers based on scientific testimony on the effects on the human body of nicotine enhanced by additives such as ammonia and acetaldehyde.
Respondents, understandably, have cited no Maryland authority for their proposition that proof of reliance is excused. For, what Respondents ignore is that central not only to the reliance element in a civil claim of fraud in this State but to the very tort itself is that there have been some sort of misrepresentation by the defendant to the plaintiff, i.e. some communication or material omission which the plaintiff relied upon and which caused him or her injury. It is incorrect, therefore, to refer to the reliance Respondents concede is ordinarily required of a fraud claim as ‘reliance on’ ... nicotine addiction.” Id. at 25. What Respondents have pleaded as an alternative basis for their claim of fraud, the purposeful and undisclosed manipulation of nicotine levels resulting in (1) their addiction, (2) their concomitant uncontrolled purchase and use of harmful tobacco products, or (3) their suffering from disease or injury, may perhaps constitute instead an intentional personal tort such as battery, a cause of action which truly does contain no required proof of any reliance whatsoever on the part of the plaintiff(s). See Saba v. Darling, 320 Md. 45, 49, 575 A.2d 1240, 1242 (1990) (“A battery has been defined as a harmful or offensive contact with a person resulting from an act intended to cause the person such contact.” (Citing RESTATEMENT (SECOND) OF TORTS § 13 (1965))). Even were such a claim cognizable and properly pleaded, it can neither change nor cure the fact that several causes of action actually asserted by Respondents, including their claim of fraud and deceit, require not only proof of reliance but proof of such on an individual basis.
In re College Bound Consol. Litig., 93 Civ. 2348(MBM), 1994 WL 236163, 1994 U.S. Dist. LEXIS 7074 (S.D.N.Y. May 27, 1994), was another securities fraud class action lawsuit, yet of truly grand proportions as the putative plaintiffs numbered perhaps millions. See id. at *2, 1994 U.S. Dist. LEXIS 7074 at *7. The case is distinguishable, nevertheless, because the court explicitly refrained from determining whether the issue of reliance had to be proven individually or could be tried en masse or by subclasses. See id. at *4, 1994 U.S. Dist. LEXIS 7074 at *13-14. In the instant lawsuit, as we have explained, reliance is clearly an individual issue given the undeniable diversity of the potential class pool with respect to geographical distribution during various periods, time period of tobacco usage, age, receipt of or attention to none or all of the alleged misrepresentations by Petitioners, among other factors. The case of In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3rd Cir.1995), also encompassed an inordinate number of plaintiffs, some six million truck owners nationwide, in a products liability class action settlement approved by the trial court that the appellate court nevertheless ultimately rejected. We do not place much credence in the opinion‘s declaration that “individualized issues such as damages or reliance ... do not ordinarily preclude the use of the class action device,” id. at 817. The context of that statement embodied the appellate court‘s outline of creative approaches to class certification that might be considered on remand with respect to the difficult yet solvable problem of the individualized nature of damages in that case. The cited principle, therefore, lacks probative value as to the distinct problem of reliance faced in this case.
Finally, although a leading treatise on civil practice in another state asserts that “[i]f there is a reasonable expectation that most members of the class relied on the [defendants‘] representations, then class-wide reliance may be presumed for purposes of class certification,” 3 J. WEINSTEIN, H. KORN & A. MILLER, NEW YORK CIVIL PRACTICE ¶ 901.12, at 9-56 (1999), such an expectation cannot reasonably be assigned to the putative class members in the present case on account of the dissimilarities highlighted above.
(Opp‘n to Pet. at 27-28.)this issue will be resolved in whole, or in significant part, by the presentation of evidence regarding [Petitioners‘] fraudulent concealment of their knowledge regarding the addictiveness of nicotine. If [Respondents] prevail on this common claim, [Petitioners] may be equitably estopped from relying on the statute of limitations in all cases and individual issues relating to this defense will not arise at all.
******
Furthermore, the class trial may also be able to determine when—if ever—an ordinary Maryland consumer should have been on notice of the existence of the claims alleged herein—i.e. that [Petitioners] know nicotine is addictive and nevertheless control and manipulate the nicotine in their cigarettes with the known effect of causing and/or maintaining addiction, and that [Petitioners] use chemical additives in their cigarettes in order to enhance nicotine delivery—thus establishing a common time for the running of applicable statutes of limitation.
On this issue, we agree with the United States District Court for the District of Puerto Rico that our decision to command the Circuit Court to decertify the classes “render[s] it unnecessary to reach the contentious statute of limitations issue.” Barreras Ruiz v. American Tobacco Co., 180 F.R.D. 194, 199 (D.P.R.1998). For cases analyzing the effect of statute of limitations issues on the predominance requirement in class action lawsuits, see Barnes v. American Tobacco Co., 161 F.3d 127, 149 (3d Cir.1998); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1304 (7th Cir.1995); Emig v. American Tobacco Co., 184 F.R.D. 379, 391 (D.Kan.1998); Dhamer v. Bristol-Myers Squibb Co., 183 F.R.D. 520, 532-33 (N.D.Ill.1998); Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 694 N.E.2d 442, 457 (1998); E & V Slack, Inc. v. Shell Oil Co., 969 S.W.2d 565, 570 (Tex.Ct.App.1998).
3 HERBERT NEWBERG & ALBA CONTE, NEWBERG ON CLASS ACTIONS, § 17.28A (Cum.Supp.1999), at 205.The imposition of punitive damages in a common issues trial has been approved when the jury is permitted to assess punitive damages not as an aggregate award to the class, but rather as a ratio of any compensatory damage award made to individual class members. This is the so-called multiplier award.
* * * * * * ACandS, Inc. v. Godwin, 340 Md. 334, 392 and n. 20, 667 A.2d 116, 144 and n. 20 (1995).Phases III and IV [of the trial plan] were concerned with liability for punitive damages and the punitive damages multipliers. Special attention has been directed by the defendants to the validity of treating punitive damages as a common issue, but we need not consider those arguments in view of our holding that there was insufficient evidence for punitive damages.20
Id. at 667 n. 6.there is a theoretical and practical distinction between a medical monitoring fund and a medical monitoring claim. The medical monitoring claim is the plaintiffs’ actual cause of action; in order to have the right to a remedy, the plaintiffs must first establish that they have satisfied the seven elements of a medical monitoring fund. In contrast, the medical monitoring fund is the actual relief that will be awarded if the plaintiffs succeed in establishing the claim. The difference between the medical monitoring claim and the medical monitoring fund is highlighted by the fact that plaintiffs . . . can prevail on their medical monitoring claim and request monetary damages in lieu of their fund. Indeed, the plaintiffs’ first motion for class certification under Rule 23(b)(2) was initially denied because the relief requested under its medical monitoring claim was predominantly monetary damages, not a court-supervised fund.