ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Pеnding is Plaintiffs’ Motion for Class Certification. For the reasons set forth below, the motion is denied.
7. BACKGROUND
Plaintiff Barbara Smith (“Smith”) was born in 1927; she smoked her first cigarette in 1942 when she lived in Nashville, Tennessee. Plaintiffs Depo. at 9, 90. From 1949 to 1990, her cigarette of choice was Kools, which are manufactured by Defendant; prior to that time she smoked cigarettes manufactured by a different company, and the record does not reflect her brand-preference after 1990. Plaintiffs Depo. at 92-96; Tr. at 4. She stopped smoking in 1992 after being diagnosed as suffering from lung cancer. Tr. at 4. She is currently a resident of Missouri, but the record does not establish when she moved to this state. Plaintiffs First Amended Complaint sets forth thirteen counts, asserting various theories of recovery for injuries allegedly incurred from smoking cigarettes manufactured by Defendant Brown & Williamson Tobacco Corporation (“Defendant”).
In response to cases decided after her complaint was filed, Plaintiff has (understandably) changed the definition of the proposed class. At present, Plaintiff proposes certification of the following class:
All рersons 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, including the estates, representatives, administrators, heirs and survivors of these injured persons.
If this class is certified, Plaintiff would assert the following claims against Defendant: (1) strict liability for sale of unreasonably dangerous product, (2) failure to warn (prior to 1970), (3) strict liability based on design defect, (4) negligent testing and research, (5) breach of express warranty of safety, and (6) breach of implied warranty of merchantability and safety. In addition, Plaintiff has requested punitive damages and an order requiring medical monitoring of the class members; these requests are set forth in separate counts. Plaintiff has declared that she would dismiss the remaining five counts if the class is certified.
(1) whether Defendant’s cigarettes are addictive or cause disease;
(2) whether safer and/or non-addictive designs were available;
(3) whether Defendant was negligent;
(4) whether Defendant failed to warn of health dangers;
(5) whether Defendant knew that its cigarettes are addictive or hazardous;
(6) whether Dеfendant breached express or implied warranties;
(7) whether Defendant’s conduct justifies an award of punitive damages; and
(8) whether Defendant should provide a fund to pay for medical monitoring.
Plaintiff proposes submitting interrogatories to the jury in order to permit specific findings with respect to each brand of cigarette (along with each change made to each brand) and each advertising campaign used for each brand. Plaintiff also suggests that Phase One is appropriate for resolution of some of Defendant’s defenses. If the jury determines in Phase One that punitive damages аre appropriate, Phase Two will be used to let the jury determine the amount of punitive damages to be awarded. Finally, Plaintiff proposes that Phase Three be used to litigate “individual” matters, including causation, reliance, damages to be awarded to each class member and (presumably) comparative fault.
II. DISCUSSION
In order to maintain a class action, Plaintiff must satisfy four prerequisites, all of which are set forth in Rule 23(a):
(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 оr defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.
Upon satisfying these four prerequisites, Plaintiff must demonstrate that her claims qualify under one of the three subparts of Rule 23(b). Plaintiff contends that her medical monitoring claim can satisfy Rule 23(b)(1)(A) or Rule 23(b)(2) and that the remainder of her claims satisfy Rule 23(b)(3). Rule 23(b)(1)(A) permits certification of a class if there is a risk that separate adjudications will result in “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the pаrty opposing the class,” and Rule 23(b)(2) applies if “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.” Rule 23(b)(3) permits creation of an “opt-out” class if “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 fоr the fair and efficient adjudication of the controversy.”
At the outset, the Court notes that the parties have occasionally supported their positions by trying to prove whether class actions are generally appropriate in mass tort actions.
A. Rule 23 (a)
As set forth more fully below, the Court concludes that Plaintiff has not satisfied the general requirements set forth in Rule 23(a).
1. Numerosity
In order to gather information on this element, Plaintiff placed an advertisement in approximately eight newspapers throughout the state, including newspapers in Kansas City, St. Louis, Springfiеld, Joplin, St. Joseph and Hannibal. In response to these advertisements, over 988 people have contacted Plaintiffs attorney and have indicated that they have smoked Defendant’s cigarettes and they suffer from smoking-related illnesses. Plaintiffs conservative estimates suggest that there may be in excess of 2000 members of the proposed class.
Defendant has conceded that the numerosity requirement has been satisfied and, based on the information described above, the Court agrees.
2. Commonality & Predominance
The clear language of Rule 23(b)(3) demonstrates that the issue of commonality' — found in the mandatory rеquirements of Rule 23(a)(1) — and the issue of predominance— found in Rule 23(b)(3) — are obviously intertwined. Cf. Harding v. Tambrands. Inc.,
Plaintiff has isolated issues that all class members will need to prove. If each class member proceeds with his or her individual trial, all such trials will require the fact finder to determine whether the cigarettes smoked are hazardous, whether Defendant’s advertising was misleading, whether warranties were breached, and so forth. These issues are “substantially related to the resolution of litigation,” so the commonality requirement appears to have been satisfied. See DeBoer v. Mellon Mortgage Co.,
Moreover, commonality alone is- insufficient to satisfy the predominance requirement. “Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” Valentino v. Carter-Wallace, Inc.,
a. Variances in Substantive Law
One of the largest barriers to commonality and predominance is the variance in applicable state laws. The Fifth Circuit recently observed that “[i]n a multi-state class action, variations in state law may swamp any common issues and defeat predominance.” Castano,
In a diversity case, a federal court applies both the choice of law rules and statutes of limitation (including borrowing statutes) of the state in which it sits. Horn v. B.A.S.S.,
After concluding that the suit was not barred by the statute of limitations, the court proceeded to determine whether Missouri or Kansas substantive law governed the plaintiffs claims. Although thе court concluded that Missouri law governed, it is significant that the court did not reach this conclusion simply because Missouri’s statute of limitations applied. Instead, the court applied the factors found in § 145 of the Restatement (Second) of Conflicts as required by Kennedy v. Dixon,
Elmore demonstrates two important concepts with respect to class members who have not always lived in Missouri. First, each individual’s circumstances will have to be scrutinized to determine when and where they first discovered they suffered from smoking-related illnesses so that the appropriate limitation period can be applied. For those whose claims are not time-barred, a separate inquiry will be required to determine which state’s substantive laws will govern. In the case of a life-long 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 Mis
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 state’s laws. The wide variety of state laws that must be applied diminishes the common issues and prevents them from predominating.
b. Practical Role of the Common Issues
As stated above, the common issues identified by Plaintiff are common because they are, generally speaking, matters that will be at issue in all lawsuits asserted by the class members. However, certifying a class in order to obtain a global resolution of these issues will not advance the resolution of this ease.
First, some of the common issues are common in general sense, but are not appropriate issues for certification. For instance, whether cigarettes cause disease or are addicting is only part of other, larger issues to bе decided in the case. These are important matters, and certainly will be addressed by the parties at trial; however, “[a] finding of ‘general causation’ would do little to advance this litigation.” Harding,
The second bar to a finding of commonality and predominance is that some common issues cannot be decided without consideration of individual issues. For instance, the issue of Defendant’s negligence cannot be decided without reference to the class members’ comparative fault. Under Missouri’s
This same fault lies with other common issues. Consider the common issue regarding whether Defendant failed to warn: althоugh it is presumed that a warning would have altered the behavior of individuals, “a preliminary inquiry before applying the presumption is whether adequate information is available absent a warning.... As causation is a required element of the plaintiffs’ ease, the burden is on plaintiffs to show that lack of knowledge.” Arnold v. Ingersoll-Rand Co.,
Finally, Plaintiff proposes litigating matters relating to damages before liability is established. Punitive damages, for instances, can be awarded only if actual damages are proven. E.g., Haas v. Town and Country Mortg. Co.,
S. Typicality and Adequacy of Representation
“The Rule 23(a)(3) requirement of typicality and the Rule 23(a)(4) requirement that the named representative adequately represent the entire class overlap. If the class representative’s claims are not typical of the class, the representative cannot adequately protect the interests of the absent class members.” Harding,
At first glance, it would seem that these problems can be solved by adopting a multitude of subclasses. Given the number of permutations involved, this task appears virtually impossible; at best, it greatly diminishes any advantage certification offers over individual trials. Furthermore, the need for numerous subclasses to promote typicality demonstrates the initial lack of common issues, so predominance is diminished as more subclasses are added. E.g., Harding
B. Rule 23(b)(3) “Opt Out” Class
Much of the above discussion dovetails into the • analysis required by Rule 23(b)(3). The generally common issues are, in many instances, not truly common in light of the need to consider individual matters. Furthermore, the “common” issues do not predominate over the individual issues. In light of the legal flaws identified above, Plaintiff s proposed trial plan is not workable or feasible, will not provide efficiencies that justify certification, will not allow for the proper consideration of certain issues as required by Missouri law, and may actually violate Defendant’s Seventh Amendment rights. Finally, the need to implement multiple subclasses to preserve typicality undercuts both the superiority and predominance required by Rule 23(b)(3).
Assuming certification were manageable and in some degree superior, Plaintiffs doomsday prediction of a storm of cases being filed does not justify certification. Circumstances that might lead to such a “judicial crisis” have existed for some time, but the flood of suits has not arrived. When it does, less drastic alternatives (such as consolidation for discovery purposes) are available to aid the judiciary’s efforts to deal with the situation. In this regard the Court notes the presence of a warehouse of information established pursuant to a court order in Minnesota, which provides plaintiffs the opportunity to obtain discovery information — -much like the Plaintiff has in this case.
The Court is also concerned that forcing the plethora of individual issues into a class action constitutes a disservice to both potential class members and the Defendant. Given the number, magnitude and importance of the individual issues, certain class members’voices may be lost amidst the sheer number of fellow plaintiffs — each with different stories to tell. Conversely, the Defendant will be in a position where it has to prepare for nearly 2000 different trials simultaneously. Finally, neither party can seriously expect a jury’s full attention and consideration for the length of such proceedings, nor can they expect evenhanded, consistent treatment from beginning to end This is not an indictment of the class action procedure, but an acknowledgment of human nature that will surely be present among the jurors. The Court understands this is a risk in all class actions; however, the risk is heightened here because of the number and nature of the individual issues.
C. Rule 23(b)(1)(A)
“Rule 23(b)(1)(A) directs the cоurt to consider whether individual actions would have an adverse effect on the party opposing the class.” 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1773 at 427 (1986). Specifically, “Rule 23(b)(1)(A) is designed to protect against the nonclass party’s being placed in a stalemated or conflicted position and is applicable only to actions in which there is not only a risk of inconsistent adjudications but also where the nonclass party could be sued for different and incompatible affirmative relief.” Employers Ins. of Wausau v. Federal Deposit Ins. Corp.,
Although individual lawsuits might end with different results, this does not justify certification of the class. As stated above, see page 97, supra, medical monitoring constitutes an element of damages, and the fact that some successful plaintiffs may obtain this element of damages while others do not does not justify invocation of Rule 23(b)(1)(A). E.g., Vaughter v. Eastern Air Lines,
A review of the Committee Notes to Rule 23 confirms the above analysis. The Committee observed that Rule 23(b)(1)(A) is designed to cover those situations in which a party may be ordered to act in inconsistent ways if individual suits were permitted to proceed. As examples, the Committee cites “[sjeparate actions by individuals against a municipality to declare a bond issue invalid or condition or limit it, to prevent or limit the making of a particular appropriation, or to compel or invаlidate an assessment .... [or] individual litigations of the rights and duties of riparian owners, or of landowners’ rights and duties respecting a claimed nuisance, could create a possibility of incompatible adjudications.” A judgment in one case that, for instance, invalidates a bond issue is necessarily inconsistent with a judgment in another case that validates it. Generally speaking, there is nothing inconsistent in saying one smoker is entitled to damages for medical monitoring while another is not — and this general statement is made more true when one factors in the individualized determinations involved in reaching these different results. Fоr these reasons, Rule 23(b)(1)(A) does not permit class certification of Plaintiffs claim for medical monitoring even if Plaintiff had satisfied the general requirements contained in Rule 23(a).
D. Rule 23(b)(2)
A class may be certified under Rule 23(b)(2) if final relief of an injunctive nature is appropriate. According to the Committee Notes, this “subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” See also In re School Asbestos
III. CONCLUSION
For the foregoing reasons, Plaintiffs Motion for Class Certification (Doe. #83) is DENIED.
IT IS SO ORDERED.
Notes
. Defendant B.A.T. Industries, p.l.c. was dismissed by Order dated December 19, 1996.
. The Court agrees that there are certain flaws in this class definition. Most notable is the difficulty in determining who would be bound by a judgment should Defendant prevail (or, conversely, who would be entitled to share in the judgment should the class prevail). This problem arises because the class defines members as thоse harmed by Defendant’s cigarettes; if someone files a suit after this one concludes, a mini-lawsuit would be required to determine whether that person was bound by the judgment in this case.
However, ’’[a] court is not bound by the class definition proposed in the complaint and should not dismiss the action simply because the complaint seeks to define the class too broadly." Robidoux v. Celani,
. If a class is certified, Plaintiff intends to dismiss Counts 5, 6, 9, 10 and 11. The Court construes the Plaintiff’s intentions as conditional;
. Comparative fault will certainly apply to the negligence claim. In addition, comparative fault may (or may not) apply to claims of strict liability, depending upon when the particular class member's claim arose. See Burgess v. Suzuki Motor Co.,
. For what it’s worth, the Ninth Circuit recently observed that "[t]he history of сlass action certifications and products liability cases in this circuit and elsewhere has not been luminous.” Valentino v. Carter-Wallace, Inc.,
. "With respect to the substantive law of torts, Missouri has adopted § 145 of the Restatement (Second) of Conflict of Law, which provides that the rights and liabilities of the parties are governed by the substantive law of the state with the most significant relationship to the occurrence and the parties.
Pursuant to § 145(2) of the Restatement, the most significant relationship is determined by considering the following factors, according to their relative importance:
(a) the place where the injury occurred;
(b) the place where the conduct causing the injury occurred;
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties; and
(d) the place where the relationship, if any, between the parties is centered.”
Harter v. Ozark-Kenworth, Inc., 904 S.W.2d 317, 320 (Mo.Ct.App.1995) (citation omitted).
. Utilizing a separate jury may also violate the Seventh Amendment because the issues of the parties’ relative "faults" are too intertwined to permit separation. Gasoline Prods. Co. v. Champlin Refining Co.,
. Although Missouri law will not govern all class members’ claims, for ease of discussion it will be used for all illustrative purposes.
. Plaintiff correctly contends that the separation of punitive damages from actual damages was approved by the Fifth Circuit in Jenkins,
. These factors are also proper considerations when ascertaining the commonality and predominance of the class’s claims. E.g., In re Medical Sys., Inc.,
. Rule 23(b)(3) sets forth a nonexhaustive list of four factors that may be considered. "In many ways the factors listed in the rule are interdependent and overlapping both among themselves and with the prerequisites to a class action prescribed in Rule 23(a).” 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane at § 1780, p. 562. The Court believes its discussion of Rule 23(b)(3) to be sufficient without actually reciting the four factors.