Lead Opinion
Oрinion by Judge RONALD M. GOULD; Dissent by BETTY B. FLETCHER.
This is a products liability action involving pacemakers containing the allegedly defective ENCOR Bipolar Passive Fixation Pacing Lead Model 380-854 (“854 lead”). Plaintiff-Appellant Robin Zinser (“Zinser”) filed a class action complaint alleging negligence, products liability, negligent misrepresentation, fraud and deceit, breach of express warranty, breach of implied warranty, and infliction of emotional distress against defendant Aceufix Research Institute (“ARI”), formerly Te-lectronics Pacing Systems. Zinser also alleged that defendants Pacific Dunlop Limited (“Pacific Dunlop”) and Nucleus Limited (“Nucleus”) were derivatively liable for damages caused by ARI.
The district court denied class certification, holding that Zinser failed to meet her burden of proving that a class should be certified pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”) (b)(1)(A), (b)(1)(B), (b)(2), or (b)(3). Zinser appeals, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pacemakers containing the 854 lead were implanted in a population of 10,549 patients in 48 states throughout the United States. Approximately 8,200 of these patients were still alive and implanted with an 854 lead when the district court considerеd class certification.
ARI designed, manufactured, and distributed the 854 lead. Pacific Dunlop is an Australian company and the ultimate parent and beneficial owner of ARI. Nucleus, another Australian company, is a wholly-owned subsidiary of Pacific Dunlop and also holds an indirect beneficial ownership interest in ARI.
A pacemaker consists of two parts: a pulse generator and one or two atrial leads. Because most atrial leads included in pacing systems are placed in the upper portion of the atrium, which is difficult to reach, many atrial leads are manufactured with a preexisting “J” shape to help physicians stabilize the lead. The 854 lead consists of a polyurethane insulated conductor coil formed into its “J” shape through the use of a flat metal retention wire, which runs through the inside of a conductor coil. While implanted, the lead flexes and bends each time the heart beats, approximately 100,000 to 150,000 times per day.
Because of metal fatigue, the “J” retention wire may fracture over time. Whether a “J” wire in an 854 lead will fracture depends, in part, on whether thе wire has suffered bends or kinks in the interelee-trode region. Injury from a “J” wire in an 854 lead has been reported only when the wire fractures and protrudes through a small section of the tip of the lead in the interelectrode region.
On September 11, 1995, ARI published a “Dear Doctor” letter announcing its withdrawal of all models of passive fixation atrial “J” leads. The letter also advised physicians of new safety information related to its ENCOR 330-854 and ENCOR DEC 033-856 leads.
ARI communicated the current lead patient management guidelines to the medical community on August 14, 1998. ARI recommended: (1) annual fluoroscopic screening for all patients imрlanted with 854 leads; (2) fluoroscopic screening every six months if a physician finds that a lead is fractured proximal to the anode band; (3) fluoroscopic screening every six months or consideration of extraction if fluoroscopic screening reveals that a lead is fractured or Mnked within the interelectrode region; and (4) consideration of extraction if fluoroscopic evidence indicates that the “J” wire is protruded or severed within the intereleetrode region. ARI maintains that the risk of extraction is greater than the risk of injury from a “J” wire protrusion.
ARI has previously faced litigation involving three different pacemaker leads, known as ACCUFIX atrial “J” lead models 330-801, 329-701, and 088-812 (“Te-lectronics litigation”). The Telectronics litigation’s procedural history includes certification, decertification, and recertifi-cation by the district court of a class against ARI. See In re Telectronics Pacing Systems, Inc.,
On August 11, 1997, Zinser filed a putative class action complaint against ARI alleging negligence, products liability, negligent misrepresentation, fraud and deceit, breach of express warranty, breach of implied warranty, and infliction of emotional distress. Zinser also alleged that Pacific Dunlop and Nucleus, as parent corporations, were derivatively liable for damages caused by ARI.
Zinser sought class certification only for claims of negligence, products liability, and medical monitoring pursuant to Rule 23. Zinser defined the proposed class as:
All persons domiciled or residing in the United States of America and its territories, possessions, and the District of Columbia, who had implanted in their bodies, an ENCOR Bipolar Passive Fixation Pacing Lead Model 330-854. Excluded from the class are the defendant’s officers and employees.
Zinser also sought certification of two subclasses:
The first subclass (the “Medical Monitoring Subclass”) is сomposed of those individuals who are currently implanted with a model 330-854 pacing lead. The second subclass (the “Explantation Subclass”) is composed of those individuals who have had a model 330-854 lead re*1186 moved because of an actual injury or risk of injury.
The district court denied Zinser’s request for class certification pursuant to Rule 23(b)(1)(A), (b)(1)(B), (b)(2), and (b)(3). Because of the procedural complexity of trying a class action under the laws of multiple jurisdictions, the district court refused to certify the class pursuant to Rule 23(b)(3). The district court denied certification of the proposed Rule 23(b)(1)(A) medical monitoring subclass, finding that individual adjudications of the medical monitoring claim would not expose ARI to conflicting obligations. The court also rejected certification of the subclass pursuant to Rule 23(b)(2), finding that the nature of the relief sought was primarily legal, not equitable, in nature. And the court refused to certify the class pursuant to Rule 23(b)(1)(B) as a limited fund. Because the Rule 23(b) requirements were dispositive, the district court declined to consider whether Zinser met the requirements of Rule 23(a).
On September 27, 1999, we exercised our discretion pursuant to Rule 23(f) and granted Zinser permissiоn to appeal the district court’s order denying class certification. Pursuant to 28 U.S.C. § 1292(e) and Rule 23(f), we have jurisdiction over Zinser’s appeal.
DISCUSSION
I
Class actions are governed by Federal Rule of Civil Procedure 23. As the party seeking class certification, Zinser bears the burden of demonstrating that she has met each of the four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Hanon v. Dato products Corp.,
Before certifying a class, the trial court must conduct a “rigorous analysis” to determine whether the party seeking certification has met the prerequisites of Rule 23. Valentino v. Carter-Wallace, Inc.,
Our circuit has recognized the potential difficulties of “commonality” and “management” inherent in certifying products liability class actions. In re N. Dist. of Cal., Daikon Shield IUD Prods. Liab. Litig.,
II
Zinser argues that the district court erroneously concluded that the law of multiple jurisdictions applies. Instead, Zinser asserts that Colorado and Delaware law properly applies to all class members’ claims. On this central issue, we disagree.
A federal court sitting in diversity must look to the forum state’s choice of law rules to determine the controlling substantive law. Klaxon Co. v. Stentor Elec. Mfg. Co. Inc.,
Under the first step of the governmental interest approach, the foreign law proponent must identify the applicable rule of law in eaсh potentially concerned state and must show it materially differs from the law of California_ If ... the trial court finds the laws are materially different, it must proceed to the second step and determine what interest, if any, each state has in having its own law applied to the case.... Only if the trial court determines that the laws are materially different and that each state has an interest in having its own law applied, thus reflecting an actual conflict, must the court take the final step and select the law of the state whose interests would be ‘more impaired’ if its law were not applied.
Wash. Mut. Bank v. Superior Court,
Zinser initially argued that California law should apply to the claims of all putative class members. However, the district court correctly noted that “[pjlaintiff does not show how application of California law satisfies constitutional due process requirements in this case.” On appeal, Zinser concedes that under Phillips Petroleum Co. v. Shutts,
Although Zinser acknowledges that every state has an interest in having its law applied to its resident claimants, she nevertheless asserts that Colorado law should apply to all putative class members. To support this assertion, Zinser argues: (1) that ARI is headquartered in Colorado;
Zinser misconstrues California choice of law rules. As the district court explained, “the thrеe-part California choice of law inquiry requires comparison of each non-forum state’s law and interest with California’s law and interest separately.” (Citing Pizza Time,
Zinser does not explain how each non-forum state’s law differs from California law, whether each non-forum state has an interest in having its law applied, or whether each non-forum state has an interest outweighing California’s interest. The district сourt made this point clearly, reasoning:
Colorado law could be applied to a nationwide class under California choice of law rules only if Colorado law were the sole non-forum law to conflict with California law and if Colorado were the sole state with an interest that outweighed California’s interest.
Because, as the district court noted, “the laws of negligence, produces] liability, and medical monitoring all differ in some respects from state to state,” In re Rhone-Poulenc Rarer, Inc.,
We hold that Zinser has not met her burden to establish that Colorado law applies to the negligence, products liability, and medical monitoring claims of each putative class member. The district court correctly rejected the contention that the law of a single state — either California or Colorado — applies to this action.
Ill
Zinser next argues that even if the law of multiple jurisdictions applies, Rule 23(b)(3) class certification is appropriate because common questions of law and fact predominate over individual issues and because a class action is the superior method of resolving the claims. Zinser, as the party seeking class certification, bears the burden of showing that common questions of law or fact predominate. Hanon,
A. Predominance
“Implicit in the satisfaction of the predominance test is the notion that the adjudication of common issues will help achieve judicial economy.” Valentino,
Zinser argues that the district court abused its discretion by holding that variances in state laws overwhelm common issues of fact. Citing Telectronics,
Understanding which law will apply before making a predominance determination is important when there are variations in applicable state law. “[W]here the applicable law derives from the law of the 50 states, as opposed to a unitary federal cause of action, differences in state law will ‘compound the [ ] disparities’ among class members from the different states.” Chin v. Chrysler Corp.,
Certainly, there may be common issues in this case, such as those relating to liability to the extent that any alleged defect in the 854 lead may have been caused by ARI’s alleged negligence. But to determine causation and damages for each of the three claims asserted here, it is inescapable that many triable individualized issues may be presented. For example, was the alleged defect in the 854 lead caused by negligent manufacture? Was it caused by negligent shipping or handling? Was it caused by improper handling of the lead by physicians or medical staff? Or was it caused by some combination of these or other factors? As cogently explained by a leading commentator:
[I]f the main issues in a case require the separate adjudication of each class member’s individual claim or defense, a Rule 23(b)(3) action would be inappropriate.... Moreover, when individual rather than common issues predominate, the economy and efficiency of class action treatment are lost and the need for judicial supervision and the risk of confusion are magnified.
7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, Federal Practice and Procedure § 1778 at 535-39 (2d ed.1986) (footnotes omitted).
The case relied upon by Zinser, Telectronics, is distinguishable. There, the district court initially declined to certify the class pursuant to Rule 23(b)(3), reasoning:
The Plaintiffs simply assert that any nuances or differences in state law that do exist “can be handled by the creation of subclasses and separate jury interrogatories.” The Plaintiffs, however, bear the burden of establishing appropriate subclasses and demonstrating that each subclass meets the Rule 23 requirements .... The Plaintiffs must come forward with the exact definition of each subclass, its representatives, and the reasons each subclass meets the prerequisites of Rule 23(a) and (b).
Telectronics,
Here, the district court declined certification for precisely the same reasons originally advanced by the Telectronics court. The district court held:
Plaintiff raises the alternative argument that even if neither California nor Colorado law applies to all claims of the nationwide class, the proposed subclasses can be further divided into manageable subclasses which take into account conflicts in state laws. However, Plaintiff has not presented representative plaintiffs for those subclasses, nor has she demonstrated that each subclass meets the Rule 23 requirements.
The district court thus concluded that there was no manageable trial plan adequate to deal with individualized issues and variances in state law. We find no abuse of discretion in this respect.
B. Superiority
Zinser also argues that class adjudication is superior to other methods of adjudication because “classwide litigation of common issues will reduce litigation costs and promotе greater efficiency.” Valentino,
1. Rule 23(b)(3)(A)
The first factor is the interest of each member in “individually controlling the prosecution or defense of separate actions.” Fed.R.Civ.P. 23(b)(3)(A). Where damages suffered by each putative class member are not large, this factor weighs in favor of certifying a class action. See, e.g., Dalkon Shield,
Here, Zinser’s amended class action complaint states: ‘Without reference to punitive damages, which are sought as well as compensatory damages, the amount in controversy in compensatory damages alone for each plaintifflclass members [sic] exceeds the sum of $50,000.00 exclusive of
2. Rule 28(b)(3)(B)
The second factor is “the extent and nature of any litigation concerning the controversy already commеnced by or against members of the class.” Fed.R.Civ.P. 23(b)(3)(B).
This factor is intended to serve the purpose of assuring judicial economy and reducing the possibility of multiple lawsuits .... If the court finds that several other actions already are pending and that a clear threat of multiplicity and a risk of inconsistent adjudications actually exist, a class action may not be appropriate since, unless the other suits can be enjoined, ... a Rule 23 proceeding only might create one more action.... Moreover, the existence of litigation indicates that some of the interested parties have decided that individual actions are an acceptable way to proceed, and even may consider them preferable to a class action. Rather than allowing the class action to go forward, the court may encourage the class members who have instituted the Rule 23(b)(3) action to intervene in the other proceedings.
7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, Federal Practice and Procedure § 1780 at 568-70 (2d ed.1986) (footnotes omitted).
Here, the district court noted that “[a]l-though thousands of patients were implаnted with the ENCOR lead, only nine lawsuits are pending; this indicates that individual litigation may be sufficient to satisfy potential claims.” Further, although Zinser relies upon the Telectronics litigation as support for certification, there ARI faced claims filed on behalf of over 900 individual implantees, and joinder might have been impractical.
3. Rule 23(b)(3)(C)
The third factor is “the desirability or undesirability of concentrating the litigation of the claims in the particular forum.” Fed.R.Civ.P. 23(b)(3)(C).
We are persuaded by the reasoning of Haley v. Medtronic, Inc.,
In this case, where the potential plaintiffs are located across the country and*1192 where the witnesses and the particular evidence will also be found across the country, plaintiffs have failed to establish any particular reason why it would be especially efficient for this Court to hear such a massive class action lawsuit.
Id. at 653. Similarly, Zinser offers no adequate justification for the concentration of the litigation in this particular forum.
4. Rule 23(b)(3)(D)
The fourth factor is “the difficulties likely to be encountered in the management of a class action.” Fed.R.Civ.P. 23(b)(3)(D). We have previously held that when the complexities of class action treatment outweigh the benefits оf considering common issues in one trial, class action treatment is not the “superior” method of adjudication. Valentino,
If each class member has to litigate numerous and substantial separate issues to establish his or her right to recover individually, a class action is not “superior.” See, e.g., Dalkon Shield,
Here, the allegedly negligent pacemaker leads were implanted in different individuals in different states by different doctors. As a result, - the causes of plaintiffs’ injuries are not entirely the same, since the injuries did not occur at the same time, place or under the same conditions. Given the fact that approximately 66,000 individuals had these leads implanted, there are potentially 66,000 different instances that the Court would have to examine to determine if defendant’s conduct was the real cause of injury for each potential plaintiff. Under these circumstances, therе are just too many individual, issues for the Court to manage for class adjudication to be deemed superior, even though there is a common nucleus of facts concerning defendant’s conduct.
Id. at 654.
Here, evidence suggests that deformation of the “J” wire decreases its resistance to fatigue. This in turn may result in fracture, causing injury to patients if the wire protrudes through the insulation. ARI argues, and we agree, that it may be difficult to establish a common cause of injury because many factors may contribute to “J” wire deformation, including manufacturing and shipping history and handling of the lead by physicians or staff. See id. at 654 (“Given all of these extremely complicated and individual issues, it would seem unwise — and unmanageable— for the Court to independently attempt to handle this case.”). In view of the formidable complexities here inherent in trying claims of negligence, products liability, and medical monitoring with differing state laws, Zinser does not persuade us that class treatment is superior to individual adjudication. See Am. Med. Sys.,
Because Zinser fails to demonstrate predominance and superiority, we hold that the district court did not abuse its discretion by rеfusing to certify the proposed class pursuant to Rule 23(b)(3).
Zinser next argues that certification of the proposed medical monitoring subclass is appropriate pursuant to Rule 28(b)(1)(A) because separate actions create a risk that ARI will be subject to incompatible standards for monitoring class members’ leads. Because we conclude that the medical monitoring claim primarily seeks monetary damages, we affirm the district court’s denial of certification of the medical monitoring subclass.
A class action is maintainable under Rule 23(b)(1)(A) if “prosecution of separate actions ... would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class....” Fed.R.Civ.P. 23(b)(1)(A). The phrase “incompatible standards of conduct” refers to the situation where “different results in separate actions would impair the opposing party’s ability to pursue a uniform continuing course of conduct.” 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, Federal Practice and Procedure § 1773 at 431 (2d ed.1986) (footnote omitted). Rule 23(b)(1)(A) certification requires more, however, “than a risk that separate judgments would oblige the opposing party to pay damages to some class members but not to others or to pay them different amounts.... ” Id. at 429. Certification under Rule 23(b)(1)(A) is therefore not appropriate in an action for damages. See, e.g., Green v. Occidental Petroleum Corp.,
The salient facts here, however, are quite different. Here, Zinser’s amended complaint does not seek the establishment of a medical monitoring program — presumably because such a program already exists — but rather seeks “the crеation of a medical monitoring fund.” Specifically, Zinser’s amended complaint requests that the court order:
(1) [the defendants to] pay the cost of notifying all class members of the unreasonably dangerous and defective nature of its Leads and other pertinent related information; (2) that defendants create a medical monitoring fund ... for the purpose of monitoring in the future the health and well being of plaintiff and the other class members; (3) that defendants be required to pay all future medical expenses in any way related to its defective product; and (4) that defendants be ordered to conduct full and proper research into alternative methodologies for remedying the condition of each patient/class member....
From this, it is apparent that the requested “medical monitoring fund” is in essence a request for monetary relief. Moreover, the complaint also seeks past and future compensatory damages plus punitive damages. We conclude that Zinser primarily seeks money damages.
Zinser contends that the issue is not whether ARI must pay for the monitoring, but instead what type of monitoring must be performed. Zinser does not, however, demonstrate how ARI’s current patient management guidelines and screening program are inadequate. More importantly, Zinser does not demonstrate how separate adjudications will force ARI to comply with inconsistent standards of conduct that it cannot legally pursue.
Even if multiple courts were to formulate separate medical monitoring programs as Zinser urges may occur, Rule 23(b)(1)(A) certification is still not appropriate. As we explained in La Mar v. H & B Novelty & Loan Co.,
Rule 23(b)(1)(A) authorizes class actions to eliminate the possibility of adjudications in which the defendant will be required to follow inconsistent courses of continuing conduct. This danger exists in those situations in which the defendant by reason of the legal relations involved can not as a practical matter pursue two different courses of conduct. The Advisory Committee’s Note makes this clear in discussing Rule 23(b)(1)(A) by its reference to actions to declare bond issues invalid, to fix the rights and duties of a riparian owner, and to deter*1195 mine a landowner’s rights and duties respecting a claimed nuisance.
Id. at 466 (footnotes omitted). Any administrative difficulty ARI potentially might face from slightly different medical monitoring programs required by different courts for differently situated potential claimants does not rise to the level of requiring of ARI inconsistent courses of conduct.
We therefore hold that the district court did not abuse its discretion by refusing to certify the proposed medical monitoring subclass pursuant to Rule 23(b)(1)(A).
V
Zinser also contends that the district court abused its discretion by refusing to certify the proposed medical monitoring subclass pursuant to Rule 23(b)(2).
Rule 23(b)(2) provides that a class action is appropriate 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.” Fed.R.Civ.P. 23(b)(2). Class certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory or injunctive. Nelsen v. King County,
Zinser contends that a medical monitoring claim is primarily equitable or injunc-tive. A request for medical monitoring cannot be categorized as primarily equitable or injunctive per se. Many courts, including California state courts, have recognized that medical monitoring relief is appropriate only as an element of damages after independent proof of liability. See Potter v. Firestone Tire and Rubber Co.,
Because Rule 23(b)(2) certification is inappropriate where the primary relief sought is monetary, Nelsen,
Plaintiffs do not seek a court-established medical monitoring program solely for the purposes of diagnosing disease and sharing information with class members. Rather Plaintiffs seek the establishment of a “reserve fund to pay for the cost of the medical monitoring program,” which includes medical examinations of class members, as well as treatment of disease detected in class members. Plaintiffs additionally seek punitive and compensatory damages for the Class. Thus, the medical monitoring program Plain*1196 tiffs seek does not resemble that held in Day as appropriate injunctive relief. In fact, Plaintiffs’ proposed program does not resemble any programs certified under Rule 23(b)(2).
O’Connor,
Courts have split on whether medical monitoring relief is primarily compensatory or injunctive. Depending on the nature of the precise relief sought and the circumstances of the particular case, many courts have declined to certify medical monitoring classes when joined with requests for funding and compensation. See Boughton v. Cotter Corp.,
We conclude that Zinser’s proposed medical monitoring subclass is not appropriate for certification pursuant to Rule 23(b)(2). The amended class action complaint here seeks the establishment of a reserve fund for past and future damages, compensation for future medical treatment, plus other compensatory and punitive damages. Although the complaint also seeks “full and proper research into alternative methodologies for remedying the condition of each patient/class member,” this injunctive relief is merely incidental to the primary claim for money damages.
We hold that the district court did not abuse its discretion by refusing to certify the proposed medical monitoring subclass pursuant to Rule 23(b)(2).
VI
Zinser argues that certification of the class and subclasses is also appropriate pursuant to Rule 23(b)(1)(B) because this case involves a limited fund. Certification pursuant to Rule 23(b)(1)(B) is justified if adjudications by individual members of the class would “as a practical matter be dis-positive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.” Fed.R.Civ.P. 23(b)(1)(B).
Class actions are permitted under Rule 23(b)(1)(B) if separate actions “inescapably will alter the substance of the rights of others having similar claims.”
The district court rejected Zinser’s assertion that this test could be satisfied and that certification of the proposed class and subclasses is therefore appropriate under Rule 23(b)(1)(B) because of a “limited fund.”
Plaintiff argues that the settlement in the Ohio In re Telectronics litigation left ARI with only two limited funds from which it must pay all of its operating and litigating costs. However, Plaintiff provides no evidence indicating either that the $6.75 million litigation fund is insufficient to cover plaintiffs’ claims, or that plaintiffs will be unable to reach the $10 million operating fund. Moreover, Plaintiff points to no evidence concerning holdings of Defendants Pacific Dunlop and Nucleus, and presents conflicting accounts of whether insurance coverage will be available.
(footnote and citation omitted).
Also, the Sixth Circuit recently rejected Rule 23(b)(1)(B) certification of the Telec-tronics class for similar reasons. As the district court did here, the Sixth Circuit questioned whether the case presents a “limited fund,” viewing both Pacific Dunlop and Nucleus as solvent and potentially liable. Telectronics,
Zinser has not demonstrated that the assets potentially available to claimants are so limited that separate actions “inescapably will alter” the rights of other claimants. The district court did not abuse its discretion by refusing to certify the proposed class and subclasses pursuant to Rule 23(b)(1)(B).
CONCLUSION
The district court did not abuse its discretion when it denied class certification pursuant to Rule 23(b)(1)(A), (b)(1)(B), (b)(2), and (b)(3).
AFFIRMED.
Notes
. The ENCOR 033-856 lead uses a "J” retention wire and has a similar construction to the 854 lead. The 033-856 was not implanted into patients in the United States, however, and is not the subject of this litigation.
. Although the parties to the Telectronics litigation reached a settlement committing substantially all of ARI’s assets, the Sixth Circuit recently decertified the limited fund class and disapprоved the settlement. In re Telectronics Pacing Systems, Inc., Accufix Atrial "J" Leads Products Liability Litig., 221 F.3d 870, 882 (6th Cir.2000) (''limited fund" rationale of Rule 23(b)(2)(B) does not apply where the available funds are limited only by agreement of the parties). The Sixth Circuit also disagreed with the district court’s conclusion that Zinser’s motion to intervene was untimely. Id.
. In addition to challenging the district court's disposition of Rule 23(b), Zinser maintains that she has also satisfied Rule 23(a). Because we affirm the district court’s denial of class certification pursuant to Rule 23(b), we do not address Zinser's Rule 23(a) arguments.
. Zinser sought certification only on the negligence, products liability, and medical monitoring fund claims. Apparently for this reason, the district court did not undertake a choice of law analysis with respect to the derivative claims. Because Zinser did not seek certification of the derivative claims, we will not address the choice of law arguments relating to these claims.
. Although ARI is now headquartered in Colorado, Zinser has not demonstrated that it
. Zinser has also failed to demonstrate that the 854 leads were manufacturеd in or distributed out of Colorado.
. IT ALSO SUGGESTS THAT INDIVIDUAL CLAIMS MIGHT ECONOMICALLY AND REASONABLY BE PURSUED INDIVIDUALLY OR PERMISSIVELY JOINED. See 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, Federal Practice and Procedure § 1779 at 552 (2d ed. 1986) ("The most obvious alternative to a class action is to remit the class members to the institution of individual actions. The 1966 amendments to the civil rules, which expanded their already liberal joinder policy and significantly enlarged the right to intervene under Rule 24 have made this a more realistic possibility than it once was.”) (Footnotes omitted).
. While the dissent agrees with our conclusion that class certification under Rule 23(b)(3) is inappropriate at the present time, it would have us hold that if Zinser were to propose proper representative subclasses based on slate law commonalities at some future point in time, Rule 23(b)(3) would be
The dissent also urges that the proposed medical monitoring subclass merits certification under Rule 23(b)(3). Again the dissent contends that if Zinser were to propose two sub-subclasses, any manageability problems due tо variations in state law could be resolved. As an initial matter, variations in state law cannot be so simply resolved. For example, some states recognize medical monitoring as a separate cause of action. Compare Friends For All Children, Inc. v. Lockheed Aircraft Corp.,
. COURTS HAVE HELD THAT CLASS CERTIFICATION PURSUANT TO RULE 23(B)(1)(A) IS APPROPRIATE IN A VARIETY OF SITUATIONS.
THESE INCLUDE A SUIT TO ENJOIN STATE OFFICERS FROM TERMINATING UNEMPLOYMENT COMPENSATION WITHOUT A HEARING, AN ACTION FOR A DECLARATORY JUDGMENT WITH RESPECT TO PLAINTIFF'S INSURANCE LIABILITY ON AN ILLEGALLY DECLARED DIVIDEND, AND AN ACTION SEEKING A DECLARATION OF ELIGIBILITY FOR DEFERMENTS UNDER THE SELECTIVE SERVICE ACT. A CLASS ACTION SEEKING RESCISSION OF PURCHASES OF SECURITIES THAT ALLEGEDLY WERE MADE ON THE BASIS OF FRAUDULENT MISREPRESENTATIONS ALSO HAS BEEN ALLOWED UNDER CLAUSE (1)(A).
7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, Federal Prac
. For further treatment of this issue, see part V, infra.
. Favoring the reasoning of the district court in Telectronics, the dissent disagrees. While conceding that there are some "minor factual differences” between the medical monitoring class certified in Telectronics and that proposed here, the dissent would overlook these differences and hold that the district court abused its discretion by denying certification under Rule 23(b)(1)(A). We respectfully disagree. Zinser has not demonstrated that Ac-cufix 'by reason of the legal relations involved can not as a practical matter pursue two different courses of conduct.” La Mar v. H & B Novelty & Loan Co.,
Dissenting Opinion
I respectfully dissent. In deciding all of the issues against Zinser and in favor of ARI, the majority opinion seriously distorts federal class action law by collapsing the Rule 23(b)(1)(A) certification inquiry into that of Rule 23(b)(2). In the process, the majority opinion virtually ignores the holding of the Ohio district court in a parallel suit against the same defendants, see In re Telectronics Pacing Sys., Inc.,
As I understand it, the Encor 854 leads are essentially the same ones (or at least are alleged to suffer from the same defects, including the J-shaped design flaw) implicated in Telectronics. Zinser cites evidence that ARI’s own studies have found a rising incidence of 854 lead fractures and that it has finally decided to recall the product, even though it initially refused to do so (and permitted continued implantation of the potentially defective leads) at the time it was forced to recall the similar J-leads at issue in Telectronics. Thus, although the number of complainants may have been fairly low at the time of filing, the potential class of plaintiffs may well have grown to be quite sizeable. Cf. Haley v. Medtronic, Inc.,
The majority finds that neither common issues of fact or law predominate under Rule 23(b)(3). This finding squarely conflicts with the reasoning of the Telectronics court, as well as that of the Haley court (which the majority otherwise cites selectively in support of its conclusions). For example, the majority repeatedly contends that a plethora of individual factual questions makes this case unsuitable for class certification. Maj. Op. 1189-90, 1192-93. However, as the district court noted in Telectronics, the sheer number of fractured leads, combined with the fact that the product had been recalled, strongly suggested a single cause of injury. Telectronics,
Likewise, in Haley, the court found that “because ... defendant’s conduct with regard to the design, mаnufacture and distribution of the leads and defendant’s representations about these leads are at the heart of all plaintiffs’ cases, ... common questions of law and fact do predominate in the instant case.” Haley,
Most importantly, with respect to the proposed medical monitoring subclass, the majority opinion completely ignores the analysis of the district court in Telectronics. In the words of that court, “The medical monitoring claim here is an ideal candidate for class certification pursuant to Rule 23(b)(1)(A) because separate adjudications would impair TPLC’s ability to pursue a single uniform monitoring program.” Telectronics,
Inexplicably, and utterly without case support, the majority opinion essentially collapses the Rule 23(b)(1)(A) inquiry into that of Rule 23(b)(2). Even if Zinser’s medical monitoring claim essentially seeks damages (an assumption which I find questionable), this should not be dispositive under Rule 23(b)(1)(A). Indeed, inasmuch as Zinser seeks to compel ARI to provide increased research and diagnostic testing for all class members (i.e., beyond just fluoroscopies), the equitable component of the medical monitoring claim is highly significant. Rule 23(b)(1)(A) says nothing about whether the class also seeks damages; it only requires that “(1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications ... which would establish incompatible standards of conduct for the party opposing the class.” Fed. R. Civ.P. 23(b)(1)(A).
I particularly find the majority’s assumption that ARI could only be confronted with “slightly different” medical monitoring requirements, Maj. Op. 1195, to be altogether speculative and without support. In so doing, the majority substitutes an unadorned conclusory statement for sound legal reasoning. Tellingly, the majority ignores the plain language of Rule 23(b)(1), which only requires that individual actions prospectively “create a risk of’ inconsistent judicial rulings and incompatible standards of conduct. Instead, the
Significantly, both Ninth Circuit cases cited as precedent for the majority holding — Green v. Occidental Petroleum Corp.,
To be sure, there are some minor factual differences between the medical monitoring class certified in Telectronics and that proposed here, such as the requirement that the defendants pay the cost of notifying all class members; create a fund to pay for the cost of monitoring the health of class members; and pay all medical expenses related to defective leads. But for all practical (and legal) purposes, these differences are insignificant under the Rule 23(b)(1)(A) framework; indeed, if anything, the requested medical monitoring “fund” simply makes exрlicit whatever financial responsibility was inherent in the Telectronics medical monitoring proposal. Thus, I cannot see how the proposed medical monitoring subclass here “is in essence a request for monetary relief.” Maj. Op. 1194. Furthermore, even if it is, this should only be grounds for denying certification under Rule 23(b)(2), not Rule 23(b)(1)(A).
Finally, I believe the medical monitoring subclass also merits certification under Rule 23(b)(3). With respect to the predominance requirement, ARI’s primary defense to Zinser’s claim is that the current monitoring program is sufficient. As the Telectronics court reasoned, “[tjhis defense is common to all implantees and is the predominant issue regarding the appropriateness of a court ordered medical monitoring program.” Id. at 286 (citations omitted). Moreover, “practically speaking, for many of the ‘J’ Lead recipients their only realistic claim may be for medical monitoring.... The superiority prong of Rule 23(b)(3) is satisfied if aggregation of small monetary claims is required to ensure vindication of legal rights.” Id. at 286-87 (citations omitted). Any manageability problems due to variations in state law can be readily addressed, as in Telec-
In sum, because I find that the majority opinion completely neglects the persuasive reasoning of the Telectronics court and eviscerates the distinction between Rule 23(b)(1)(A) and Rule 23(b)(2), I respectfully dissent.
. In In re Telectronics Pacing Sys., Inc.,
. The majority opinion's analysis of the superiority prong of Rule 23(b)(3) also conflicts with Haley. In Haley, the court found that under Rule 23(b)(3)(A), "where the damages each plaintiff suffered are not that great, this factor weighs in favor of certifying a class action." Id. at 652. Furthermore, the court also found that the second criterion for determining superiority under Rule 23(b)(3)(B), the nature and extent of concurrent litigation, "slightly weighted] in favor of granting class certification.” Instead, it was "in particular” because of the manageability problems under Rule 23(b)(3)(D) that the Haley court deemed class certification to be inappropriate. Id. at 653.
. Notwithstanding my conclusion that the choice-of-law problem renders Rule 23(b)(3) certification inappropriate at the present time, the majority somehow contends that based on our divergence on other issues of predominance and superiority, I "would have us hold that if Zinser were to propose proper representative subclasses based on state law commonalities at some future point in time, Rule 23(b)(3) would be satisfied.” Maj. Op. 1192-93 n. 8. To the contrary, such a holding would be tantamount to inserting the court into the role of plaintiff's counsel. Rather, I take issue with the further (and, I believe, unwarranted) conclusion in the majority opinion that, in addition to the choice-of-law problem, other individual issues of fact and law overwhelm common issues in this case. These findings unnecessarily conflict with Te-lectronics and Haley, and preclude the possibility that if Zinser did propose subclasses and appropriate representatives along the lines of what was done in Telectronics, the class would merit certification.
. Like the majority, the district court below denied Rule 23(b)(1)(A) .certification of the medical monitoring subclass because it determined that Zinser "seeks mostly damages." Although the majority makes much of the fact that our review of the district court's denial of class certification is for abuse of discretion, the district court’s reliance upon an erroneous construction of Rule 23(b)(1)(A) constitutes a per se abuse of discretion. See Koon v. United States,
. The majority opinion also quotes selectively from O’Connor v. Boeing North American, Inc.,