1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-30725

_______________

DIANNE CASTANO, et al.,

Plaintiffs-Appellees,

VERSUS

THE AMERICAN TOBACCO COMPANY, et al.,

Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________ May 23, 1996

Before SMITH, DUHÉ, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In what may be the largest class action ever attempted in

federal court, the district court in this case embarked “on a road

certainly less traveled, if ever taken at all,” Castano v. American

Tobacco Co. , 160 F.R.D. 544, 560 (E.D. La. 1995) (citing E DWARD C.

L ATHAM

, T HE P OETRY OF R OBERT F ROST

, “T HE R OAD N OT T AKEN ” 10 5 (1969)), and

entered a class certification order. The court defined the class

as:

(a) All nicotine-dependent persons in the United States

. . . who have purchased and smoked cigarettes manufac-1 The court defined “nicotine-dependent” as:

(a) All cigarette smokers who have been diagnosed by a medical

practitioner as nicotine-dependent; and/or

(b) All regular cigarette smokers who were or have been advised by

a medical practitioner that smoking has had or will have adverse

health consequences who thereafter do not or have not quit smoking.

Id. at 561. The definition is based upon the criteria for “dependence” set forth

in A MERICAN P SYCHIATRIC A SSOCIATION

, D IAGNOSTIC AND S TATISTICAL M ANUAL OF M

ENTAL D ISORDERS (4th

ed.).

2 The original class plaintiffs were Ernest R. Perry, Sr., T. George

Solomon, Jr., and Dianne A. Castano. The class representatives include Perry,

Gloria Scott, and Deania Jackson, all current cigarette smokers. Dianne Castano

is a class representative on behalf of her deceased husband, Peter Castano.

3 The defendant tobacco companies are The American Tobacco Company, Inc.,

R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, Phillip

Morris, Inc., Liggett & Meyers, Inc., Lorillard Tobacco Company, Inc., and United

(continued...)

2 tured by the defendants;

(b) the estates, representatives, and administrators of

these nicotine-dependent cigarette smokers; and

(c) the spouses, children, relatives and “significant

others” of these nicotine-dependent cigarette smokers as

their heirs or survivors.

Id. at 560-61. The plaintiffs limit the claims to years since

1943. 1

This ma tter comes before us on interlocutory appeal, under

28 U.S.C. § 1292(b), of the class certification order. Concluding

that the district court abused its discretion in certifying the

class, we reverse.

I.

A. The Class Complaint

The plaintiffs 2 filed this class compla int against the

defendant tobacco companies 3 and the Tobacco Institute, Inc.,(...continued)

States Tobacco Company. Prior to oral argument, Liggett & Meyers, Inc., filed

in this court a motion conditionally to dismiss, without prejudice, its appeal

because of a pending settlement with the plaintiffs. We have declined to enter

the requested dismissal.

4 The plaintiffs seek compensatory damages for fraud and deceit, negligent

misrep resentation, intentional infliction of emotional distress, breach of

express and implied warranty, strict products liability, and redhibition.

5 The plaintiffs seek punitive damages for fraud and deceit, intentional

inflictio n of emotional distress, negligence, and negligent infliction of

emotional distress.

6 The plaintiffs seek attorneys’ fees for violations of consumer protection

statutes and redhibition.

3 seeking compensation solely for the injury of nicotine addiction.

The gravamen of their complaint is the novel and wholly untested

theory that the defendants fraudulently failed to inform consumers

that nicotine is addictive and manipulated the level of nicotine in

cigarettes to sustain their addictive nature. The class complaint

alleges nine causes of action: fraud and deceit, negligent

misrepresentation, intentional infliction of emotional distress,

negligence and negligent infliction of emotional distress,

violation of state consumer protection statutes, breach of express

warranty, breach of implied warranty, strict product liability, and

redhibition pursuant to the Louisiana Civil Code.

The plaintiffs seek co mpensatory 4 and punitive damages 5 and

att orneys’ fees. 6 In addition, the plaintiffs seek equitable

relief for fraud and deceit, negligent misrepresentation, violation

of consumer protection statutes, and breach of express and implied

warranty. The equitable remedies include a declaration that

d efendants are financially responsible for notifying all class

members of nicotine’s addictive nature, a declaration that the7 The district court did no t adopt the plaintiffs’ trial plan, but its

order certifying the class incorporates many elements of it.

8 For purposes of clarity, those issues that the distr ict court did not

certify as common have been left out of this summary of the plai ntiffs’ trial

plan.

4 defendants manipulated nicotine levels with the intent to sustain

the addiction of plaintiffs and the class members, an order that

the defendants disgorge any profits made from the sale of cigarettes, restitution for sums paid for cigarettes, and the establishment of a medical monitoring fund.

The plaintif fs initially defined the class as “all nicotine

dependent persons in the United States,” including current, former

a nd deceased smokers since 1943. Plaintiffs conceded that

addiction would have to be proven by each class member; the

defendants argued that proving cl ass membership will require

individual mini-trials to determine whether addiction actually

exists.

In r esponse to the district court’s inquiry, the plaintiffs

proposed a fo ur-phase trial plan. 7 In phase 1, a jury would

determine common issues of “core liability.” Phase 1 issues would

include 8 (1) issues of law and fact relating to defendants’ course

of conduct, f raud, and negligence liability (including duty,

standard of care, misrepresentation and concealment, knowledge,

intent); (2) issues of law and fact relating to defendants’ alleged

conspiracy and concert of action; (3) issues of fact relating to

the addictive nature/dependency creating characteristics and

properties of nicotine; (4) issues of fact relating to nicotine5

cigarettes as defective products; (5) issues of fact rela ting to

whether defendants’ wrongful conduct was intentional, reckless or

negligent; (6) identifying which defendants specifically targeted

the ir advertising and promotional efforts to particular groups

(e.g. youths, minorities, etc.); (7) availability of a presumption

of reliance; (8) whether defendants’ misrepresentations/suppression

of fact and/or of addictive properties of nicotine pr eclude

availability of a “personal choice” defense; (9) defendants’

liability for actual damages, and the categories of such damages;

(10) defendants’ liability for emotional dist ress damages; and

(11) defendants’ liability for punitive damages.

Phase 1 would be followed by notice of the trial verdict and

claim forms to class members. In phase 2, the jury would determine

compensatory damages in sample plaintiff cases. The jury then

would establish a ratio of punitive damages to compensatory

damages, which ratio thereafter would apply to each class member.

Phase 3 wo uld entail a complicated procedure to determine

compensatory damages for individual class members. The trial plan

envisions determination of absent class members’ compensatory

economic and emotional distress damages on the basis of claim

forms, “subject to verification techn iques and assertion of

defendants’ affirmative defenses under grouping, sampling, or

representative procedures to be determined by the Court.”

The trial plan left open how jury trials on class members’

personal injury/wrongful death claims would be handled, but the

trial plan discussed the possibility of bifurcation. In phase 4,9 Rule 23(a) states:

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

represen tative parties are typical of the claims or

defenses of the cla ss, and (4) the representative

parties will fairly and adequately protect the interests

of the class.

1 0 Rule 23(b)(3) states, in pertin ent part, that a class action may be

maintained 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 for

the fair and efficient adjudication of the controversy.

6 the court would apply the punitive damage ratio based on individual

damage awards and would conduct a review of the reasonableness of

the award.

B. The Class Certification Order

Following extensive briefing, the district court granted, in

part, plaintiffs’ motion for class certification, concluding that

the prerequisites of F ED

. R. C IV

. P. 23(a) had been met. 9 The court

rejecte d certification, under F E D

. R. C IV

. P. 23(b)(2), of the

plaintiffs’ claim for equitable relief, including the claim for

medical monitoring. 160 F.R.D. at 552. Appellees have not crossappealed that portion of the order.

The court did grant the plaintiffs’ motion to certify the

class under F ED

. R. C IV

. P. 23(b)(3), 10 organizing the class action

issues into four categories: (1) core liability; (2) injury-infact, proximate cause, reliance and affirmative defenses;7

(3) compensatory damages; and (4) punitive damages. I d

. at 553-58.

It then analyzed each category to determine whether it met the

predominance and superiority requirements of rule 23(b)(3). Using

its power to sever issues for certification under F E D

. R. C IV

.

P. 23(c)( 4), the court certified the class on core liability and

punitive damages, and certified the class conditionally pursuant to

F ED

. R. C IV

. P. 23(c)(1).

1. Core Liability Issues

The court defined core li ability issues as “common factual

issues [of] whether defendants kn ew cigarette smoking was addictive, failed to inform cigarette smokers of such, and took actions

to addict cigarette smokers. Common legal issues include fraud,

negligence, breach of warranty (express or im plied), strict

liability, and violation of consumer protection statutes.”

160 F.R.D. at 553.

The court found that the predominance requirement of rule

23(b)(3) was satisfied for the core liability issues. Without any

s pecific analysis regarding the multitude of issues that make up

“core liabili ty,” the court found that under J enkins v. Raymark

Indus.

, 782 F.2d 468 (5th Cir. 1986), common issue s predominate

because resolution of co re liability issues would significantly

advance the individual cases. The court did not discuss why “core

liability” issues would be a significant, rather than just common,

part of each individual trial, nor why the individual issues in the

remaining categories did not pred ominate over the common “core11 The court cited In re Asbestos Sch. Litig.

, 104 F.R.D. 422, 434 (E.D.

Pa. 1984) (discussing the similarity of negligence and strict liability in U.S.

jurisdictions), aff’d in part and reversed in part sub nom. School Dist. of

Lancaster v. Lake Asbestos, Ltd. (In re Sch. Asbestos Litig.) (“ School

Asbestos ”), 789 F.2d 996, 1010 (3d Cir.), cert. denied

, 479 U.S. 852, and cert.

denied

, 479 U.S. 915 (1986), and In re Cordis Cardiac Pacemaker Prod. Liability

Litig.

, No. C-3-90-374 (S.D. Ohio De c

. 23, 1992) (unpublished) (discussing

similarities among negligence, strict liability, and fraud).

8 liability” issues.

The only specific analysis on predominance analysis was on the

plaintiffs’ fraud claim. The court determined that it would be

premature to hold that individual reliance issues predominate over

common issues. Relying on E isen v. Carlisle & Jacquelin

, 417 U.S.

156 (1974), the court stated that it could not inquire into the

merits of the plaintiffs’ claim to determine whether reliance would

be an issue in individual trials. 160 F.R.D. at 554. Moreover,

the court recognized the possibility that under state law, reliance

can be inferred when a fraud claim is based on an omission.

Accordingly, the court was convinced that it could certify the

class and defer the consideration of how reliance would affect

predominance.

The court also deferred subst a ntial consideration of how

variations in state law would affect predominance. Relying on two

district court opinions, 11 the court concluded that issues of fraud,

breach of war ranty, negligence, intentional tort, and strict

liability do not vary so much from state to state as to cause

individual issues to predominate. The court noted that any

determination of how state law variations affect predominance was

premature, as the court had yet to make a choice of law determination. As for the consumer protection claims, the court also9

deferred analysis of state law variations, because “there has been

no showing that the consumer protection statutes differ so much as

to make individual issues predominate.” Id.

The court also concluded that a class action is superior to

other methods for adjudication of the core liability issues.

Relying heavily on Jenkins

, the court noted that having this common

issue litigated in a class action was superior to repeated trials

of the same evidence. Recognizing serious problems with manageability, it determined that such problems were outweighed by “the

specter of thousands, if not millions, of similar trials of

liability proceeding in thousands of courtrooms around the nation.”

Id . at 555-56.

2. Injury-in-fact, Proximate Cause, Reliance,

Affirmative Defenses, and Compensatory Damages

Using the same methodology as it did for the core liability

issues, the district court refused to certify the issues of injuryin-fact, proximate cause, reliance, affirmative defenses, and

compensatory damages, concluding that the “issues are so overwhelmingly replete with individual circumstances that they quickly

outweigh predominance and superiority.” I d. at 556. Specifically,

the court found that whether a person suffered emotional injury

from addiction, whether his addiction was caused by the defendants’

actions, whether he relied on the defendants’ misrepresentations,

and whether affirmative defenses unique to each class member

precluded recovery were all individual issues. As to compensatory

damages and the claim for medical monitoring, the court concluded1 2 The panel opinion in Watson has no precedential weight in this circuit.

While the case was awaiting rehearing en banc, it sett led. According to the

Internal Operating Procedure accompanying 5 TH C IR

. R. 35, “the effect of granting

a rehearing en banc is to vacate the previous opinion and judgment of the Court

and to stay the mandate.” S ee de Aguilar v. Boeing Co.

, 47 F.3d 1404, 1411 (5th

Cir.), cert. denied , 116 S. Ct. 180 (1995).

10 that such claims were s o intertwined with proximate cause and

affirmative defenses that class certification would not materially

advance the individual cases.

3. Punitive Damages

In certifying punitive damages for class treatment, the court

adopted the plaintiffs’ trial plan for punitive damages: The class

jury would develop a ratio of punitive damages to actual damages,

and the court would apply that ratio in individual cases. As it

did with the core liability issues, the court determined that

variations in state law, including differing burdens of proof, did

not preclude certification. Rather than conduct an independent

review of predominance or superiority, the court relied on Jenkins

and on Wats on v. Shell Oil Co. , 979 F.2d 1014 (5th Cir. 1992),

vacated for rehearing en banc

, 990 F.2d 805 (5th Cir. 1993), appeal

dismissed

, 53 F.3d 663 (5th Cir. 1994), for support of its

certification order. 12

II.

A district co urt must conduct a rigorous analysis of the

rule 23 prerequisites before certifying a class. G eneral Tel. Co.

v. Falcon

, 457 U.S. 147, 161 (1982); Applewhite v. Reichold Chems.

,1 3 The defendants raise a number of additional challenges to the district

court’s order, including claims that individual issues predominate, that the use

of a punitive damage ratio violates due process, that a multi-state class action

inevitably will violate Erie R.R. v. Tompkins

, 304 U.S. 64 ( 1938), and that

bifurcation of core liability issues in a class action violates article III of

the Constitution. Given our conclusion that this matter cannot proceed as a

class action in any event, we find it unnecessary to address those issues.

11 67 F.3d 571, 573 (5th Cir. 1995). The decision to certify is

within the broad discretion of the court, but that discretion must

be exercised within the fra mework of rule 23. G ulf Oil Co. v.

Bernard

, 452 U.S. 89, 100 (1981). The party seeking certification

bears the burden of proof. H orton v. Goose Creek Ind. Sch. Dist.

,

690 F.2d 470, 486 (5th Cir. 1982), c ert. denied

, 463 U.S. 1207

(1983); In re American Medical Sys. , 75 F.3d 1069, 1086 (6th Cir.

1996) (concluding that district court reversed the proper burden of

proof by asking defendants to show cause why the court should not

certify the class).

The district court erred in its analysis in two distinct ways.

First, it failed to consider how variations in state law affect

predominance and superiority. Second, its predominance inquiry did

not include consideration of how a trial on the merits would be

conducted.

Each of t hese defects mandates reversal. Moreover, at this

time, while the tort is immature, the class complaint must be

dismissed, as class certification cannot be found to be a superior

method of adjudication . 13

A. Variations in State Law

Although rule 23(c)(1) requires t hat a class should be12

certified “as soon as practicable” and allows a court to certify a

conditional class, it does not follow that the rule’s requirements

a re lessened when the class is conditional. As a sister circuit

explained:

Conditional certification is not a means wher eby the

District Court can avoid deciding whether, at that time,

the requirements of the 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. But

in this case the District Court seemed to brush aside one of the requirements of Rule 23(b)(3) by stating that at

t h is time “analysis of the individual versus common questions would be for the Court to act as a seer.”

However difficult it may have been for the District Court

to decide whether common questions predominate over

individual questions, it should not have sidestepped this

preliminary requirement of t he Rule by merely stating

that the problem of individual questions “lies far beyond

the horizon in the realm of speculation.”

In re Hotel Tel. Charges , 500 F.2d 86, 90 (9th Cir. 1974).

In a multi-state class action, variations in state law may

swamp any common issues and defeat predominance. S ee Georgine v.

Amchem Prods., 1996 WL 242442, at *2 (3d Cir. May 10, 1996)

(decertifying class because l egal and factual differences in the

plaintiffs’ claims “when exponentially magnified by choice of law

considerations, eclipse any common issues in this case.”) ; American

Medical Sys.

, 75 F.3d at 1085 (granting mandamus in a multi-state

products liability action, in part because “[ t]he district court

. . . failed to consider how the law of negligence differs from

jurisdiction to jurisdiction”).

Accordingly, a district court must consider how variations in

state law affect predominance and superiority. W alsh v. Ford Motor13

Co.

, 807 F.2d 1000 (D.C. Cir. 1986) (Ruth Bader Ginsburg, J.),

cert. denied

, 482 U.S. 915 (1 987). The W alsh court rejected the

n otion that a district court may defer considering variations in

state law:

Appellees see the “which law” matter as academic. They

say no variations in state warranty laws relevant to this

case exist. A court cannot accept such an assertion “on

faith.” Appellees, as class action proponents, must show

that it is accurate. We have made no inquiry of our own

on this score and, for the current purpose, simply note

the general unstartling statement made in a leading

treatise: “The Uniform Commercial Code is not uniform.”

Id. at 1016-17 (footnotes omitted).

A district court’s duty to determine whether the plaintiff has

borne its burden on class certificat ion requires that a court

consider varia tions in state law when a class action involves

multiple jurisdictions. “In order to make the findings required to

certify a class action under Rule 23(b)(3)

. . . one must initially

identify the substantive law issues which will control the outcome

of the litigation.” Alabama v. Blue Bird Body Co. , 573 F.2d 309,

316 (5th Cir. 1978).

A requirement that a court know which law will apply before

making a predominance determination is especially i mportant when

there may be differences in state law. S ee In re Rhone-Poulenc

Rorer, Inc. (“ Rhone-Poulenc ”), 51 F.3d 1293, 1299-1302 (7th Cir.)

(mandamus) (comparing differing state pattern instructions on

negligence and differing formul ations of the meaning of negligence), cert. denied , 116 S. Ct. 184 (1995); In re “Agent Orange”

Prod. Liability Litig.

, 818 F.2d 145, 165 (2d Cir. 1986) (noting

possibility of differences in state products liability law), cert.14

denied

, 484 U.S. 1004 (1988). Given the plaintiffs’ burden, a

court cannot rely on assurances of counsel that any problems with

predominance or superiority can be overcome. Windham v. American

Brands, Inc.

, 565 F.2d 59, 70 (4th Ci r. 1977), c ert. denied

, 435

U.S. 968 (1978).

The able opinion in School Asbestos demonstrates what is

required from a district court when variations in state law exist.

There, the court affirmed class certification, despite variations

in state law, because:

To meet the problem of diversity in applicable state law,

class plaintiffs have undertaken an extensive analysis of

the variances in products liability among the jurisdictions. That review separates the law into four categories. Even assuming additional permutations and combinations, plaintiffs have made a creditable showing, which

apparently satisfied the district court, that class

certification does not present insuperable obstacles.

Although we have some doubt on this score, the effort may

nonetheless prove successful.

789 F.2d at 1010; see also Georgine

, 1996 WL 242442, at *12 & n.13

(distinguishing School Asbestos because it involved few individualized questions, and class counsel had made a credible argument that

the applicable law of the different states could be categorized

into four patterns); Walsh

, 807 F.2d at 1017 (h olding that

“nationwide class action movants must creditably demonstrate,

through an ‘extensive analysis’ of state law variances, ‘that class

certification does not present insuperable obstacles’”).

A thorough review of the record demonstra tes that, in this

case, the district court did not properly consider how variations

in state law affect predominance. The court acknowledged as much

in its order granting class certi fication, for, in declining to1 4 The defendants contend that this statement sh ows that the court

erroneously placed the burden on them to show that the various state statutes

differ, rather than on the plaintiffs to show that they do no t. See American

Medical Systems , 75 F.3d at 1085.

1 5 We find it difficult to fathom how common issues could predominate in

this case when variations in state law are thoroughly considered. The G eorgine

court found that common issues in an asbestos class action did not predominate:

H owever, beyond these broad issues, the class

members’ claims vary widely in character. Class members

were exposed to different asbestos-containing products,

for different amoun t s of time, in different ways, and

over dif f erent periods. Some class members suffer no

physical inju ry or have only asymptomatic pleural

changes, while others suffer from lung cancer, disabling

asbestosis, or from mesothelioma SS a disease which,

despite a latency pe r iod of approximately fifteen to

forty years, gen erally kills its victims within two

years after they become symptomatic. Each has a

different history of cigarette smokin g, a factor that

complicates the causation inquiry.

. . .

These factual differences translate into significant legal differences. Differences in amount of

exposure and nexus between exposure and injury lead to

disparate applications of legal rules, including matters

of cau sation, comparative fault, and the types of

(continued...)

15 make a choice of law determination, it noted that “[t]he parties

have only briefly addressed the conflict of laws issue in this

matter.” 160 F.R.D. at 554. Similarly, the court stated that

“there has been no showing that the c onsumer protection statutes

differ so much as to make individual issues predominate.” Id

. 14

The district court’s review of state law variances can hardly

be considered extensive; it conducted a cursory review of state law

variations and gave short shrift to the defendants’ arguments

concerning variations. In response to the defendants’ extensive

analysis of how state law varied on fraud, products liability,

affirmative defenses, negligent infliction of emotional distress,

consumer protection statutes, and punitive damages, 15 the court(...continued)

damages available to each plaintiff.

Furthermore, because we must apply an individualized choice of law analysis to each plaintiff’s claims,

the proliferation of disparate factual and legal issues

is compounded exponentially.

. . . In short, the number

of uncommon issues in this humongous class action, with

perhaps as many as a million class members, is colossal.

1995 WL 242442, at *11 (citations omitted).

The Castano class suffers from many of the difficulties that the Georgine

court found dispositive. 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.

Variations in state law magnify the differences. In a fraud claim, some

states require justifiable reliance on a misrepresentation, see Allgood v. R.J.

Reynolds Tobacco Co., 80 F.3d 168, 171 (5th Cir. 1996); B urroughs v. Jackson

Nat’l Life Ins. Co. , 618 So. 2d 1329, 1332 (Ala. 1993), while others require

reasonable reliance, see Parks v. Morris Homes Corp.

, 141 S.E.2d 129, 132 (S.C.

1965). States impose varying standards to determine when there is a duty to

disclose facts. S ee Sugarhouse Fin. Co. v. Anderson

, 610 P.2d 1369, 1373 (Utah

1980) (finding no duty when transaction was made at arm’s length); Dodd v. Nelda

Stephenson Chevrolet, Inc.

, 626 So. 2d 1288, 1293 (Ala. 1993) (using a flexible

standard based on the transaction and relationship of the parties).

Products liability law a lso differs among states. Some states do not

recognize strict liability. E.g., C line v. Prowler Indus.

, 418 A.2d 968, 979-80

(Del. 1980). Some have adopted R E STATEMENT (S ECOND ) OF T ORTS § 402A. E.g., O .S.

Stapley Co. v. Miller

, 447 P.2d 248, 251-52 (Ariz. 1968). Among the states that

have adopted the Restatement, there are variations. S ee 5 S TUART M. S PEISER ET AL

. , T HE A MERICAN L AW OF T ORTS §§ 18.31, 18:34-18:35 (Law Co-op 1996).

Differences in affirmative defenses also exist. Assumption of risk is a

complete defense to a products claim in some states. E.g., S.C. C O DE A NN

. § 15-73-20 (Law Co-op 1976). In others, it is a part of compara tive fault

analysis. E.g., C O LO

. R EV

. S TAT

. § 13-21-111.7 (1986). Some states utilize “pure”

comparative fault, e.g., A RIZ

. R EV

. S TAT

. A NN

. § 12-2503-09 (1984); others follow

a “greater fault bar,” e.g., C ONN

. G EN

. S TAT

. A NN

. § 52-572h (West 1988); and still

others use an “equal fault bar,” e.g., A RK

. C ODE A NN . § 16-64-122 (Michie 1991).

Negligent infliction of emotional distress also involves wide variations.

See Douglas B. Marlow, Negligent Infliction of Mental Distress: A Jurisdictional

Survey of Existing Limitation Devices and Proposal Based on an Analysi s of

O bjective Versus Subjective Indices of Distress , 33 V I LL

. L. R EV

. 781 (1988).

Some states do not recognize the cause of action at all. See Allen v. Walker

, 569 So. 2d 350, 352 (Ala. 1990). Some require a physical impact. S ee OB-GYN

Assocs. v. Littleton , 386 S.E.2d 146, 148 (Ga. 1989).

Despite these overwhelming individual issues, common issues might

predominate. We are, however, left to speculate. The point of detailing the

alleged differences is to demonstrate the inquiry the district court failed to

make.

16 examined a sample phase 1 jury interrogatory and verdict form, a1 6 Both the plaintiffs and the di strict court cite C ordis and School

Asbestos for the definitive proposition that state law does not vary enough in

negligence, strict liability, or fraud to prevent certification. S ee Castano

, 160 F.R.D. at 554. Putting aside the obvious objection that a court must

independently analyze the case before it to determine predominance, such reliance

is misplaced.

In Cordis

, the court specifically recognized that there are differences in

the law of strict liability and fraud in different juris dictions. The court

certified the class despite those differences because the differ ences did not

eliminate predominance in that particular case. Such a finding cannot be

reflexively applied to the case sub judice.

The same is true of School Asbe stos

. Like the court in C ordis

, the

district court there found little variation in state negligence law. The Third

Circuit agreed that the variations in strict liability would not make the class

unmanageable. 789 F.2d at 1009. See also Georgin e , 1996 WL 242442, at *12 &

n.13 (acknowledging that the court in School Asbestos certified the class despite

variations in state law, but limiting the reach of the decision to cases where

variations can be broken down into a small number of patterns). It is a stretch

to characterize these two cases as standing for the proposition that state law

does not vary on negligence, strict liability, or fraud.

17 survey of medical monitoring decisions, a survey of consumer fraud

class actions, and a survey of punitive damages law in the

defendants’ home states. The court also relied on two district

court opinions granting certification in multi-state class actions.

The district court’s consideration of state law variations was

inadequate. The surveys provided by the plaintiffs failed to

discuss, in any meaningful way, how the court could deal with

variations in state law. The consumer fraud survey simply quoted

a few state courts that had certified state cla ss actions. The

survey of punitive damages was limited to the defendants’ home

states. Moreover, the two district court opinions on which the

court relied did not support the proposition that variations in

state law cou ld be ignored. 1 6 Nothing in the record demonstrates

that the court critically analyzed how variations in state law

would affect predominance.

The court also failed to perform its duty to determine whether18

the class action would be manageable in light of state law

variations. The court’s only discussion of manageability is a

c itation to J enkins and the claim that “[w]hile manageability of

the liability issues in this case may well prove to be difficult,

the Court finds that any such difficulties pale in comparison to

the specter of thousands, if not millions, of similar trials of

liability proceeding in thousands of courtrooms around the nation.”

Id . at 555-56.

The problem with this approach is that it substitutes casespecific analysis wit h a generalized reference to J enkins

. The

Jenkins court, however, was not faced with managing a novel claim

involving eight causes of action, multiple jurisdictions, millions

of plaintiffs, eight defendants, and over fifty years of alleged

wrongful co nduct. Instead, J enkins involved only 893 personal

injury asbestos cases, the law of only one state, and the prospect

of trial occurring in only one district. Accordingly, for purposes

of the instant case, Jenkins is largely inapposite.

In summary, whether the specter of millions of cases outweighs

any manageability problems in this class is uncertain when the

scope of any manageability problems is unknown. Absent considered

judgment on the manageability of the class, a comparison to

millions of individual trials is meaningless.

B. Predominance

The dist rict court’s second error was that it failed to

consider how the plaintiffs’ addiction claims would be tried,1 7 See Falcon

, 457 U.S. at 160 (“Sometimes the issues are plain enough from

the pleadings

. . . an d sometimes it may be necessary for the court to probe

behind the pleadings before coming to rest on the certification question.”) ;

Coopers & Lybrand v. Livesay

, 437 U.S. 463, 469 (1978) (reasoning that “the class

determination generally involves considerations that are ‘enmeshed in the factual

and legal issues comprising the plaintiff’s cause of action.’”); id

. at 469 n.12

(“‘Evaluation of many of the questions ente ring into determination of class

action que stions is intimately involved with the merits of the claims. The

typicality of the representative’s claim or defenses . . . and the presence of

common questions of law or fact are obvio us examples. The more complex

determinations required in R u le 23(b)(3) class actions entail even greater (continued...)

19 individually or on a class basis. S ee 160 F.R.D. at 554. The

district court, based on Eisen v. Carlisle & Jacquelin

, 417 U.S.

156, 177-78 (1974), and Miller v. Mackey Int’l , 452 F.2d 424 (5th

Cir. 1971), believed that it could no t go past the pleadings for

the certification decision. The result was an incomplete and

inadequate predominance inquiry.

The crux of the court’s error was that it misinterpreted Eisen

and Miller. Neither case suggests that a court is limited to the

pleadings when deciding on certification. Both, instead, stand for

the unremarkable prop osition that the strength of a plaintiff’s

claim should not affect the certification decision. In E isen

, the

Court held that it was improper to make a preliminary inquiry into

the merits of a case, determine that the plaintiff was likely to

succeed, and consequently shift the cost of providing notice to the

defendant. 417 U.S. at 177. In M iller

, this court held that a

district court could not deny certification based on i ts belief

that the plaintiff could not prevail on the merits. 452 F.2d

at 427.

A district court certainly may look past the pleadings to

determine whether the requirements of rule 23 have be en met. 1 7(...continued)

entanglement with the merits.’”); Love v. Turlington

, 733 F.2d 1562, 1564 (11th

Cir. 1984) (“While it is true that a trial cour t may not properly reach the

merits of a claim when determining whether the class certification is warranted,

this principle should not be talismanically invoked to artificially limit a trial

court’s examination of the factors necessary to a reasoned determination of

whether a plaintiff has met her burden of establishing each of the Rule 23 class

action requirements.”); Huff v. N.D. Cass Co.

, 485 F.2d 710, 713 (5th Cir. 1973)

(en banc) (“It is inescapable that in some cases there will be overlap between

the demands of [rule] 23(a) and (b) and the ques tion of whether plaintiff can

succeed on the merits.”).

1 8 The district court’s approach to predominance stands in stark contrast

to the methodology the district court used in Jenkins

. There, the district judge

had a vast amount of experience with asbestos cases. He certified the state of

the art defense because it was the most significant contested issue in each case.

Jenkins

, 109 F.R.D. at 279. To the contrary, however, the district court in the

instant case did not, and could not, have determined that the common issues would

be a significant part of each case. Unlike the judge in Jenkins , the district

judge a quo had no exp erience with this type of case and did not even inquire

into how a case would be tried to determine whether the defendants’ conduct would

be a significant portion of each case.

20 Going beyond the pleadings is necessary, as a court must understand

the claims, defenses, relevan t facts, and applicable substantive

law in order to make a meaningful determination of the certification issues. See M ANUAL FOR C OMPLEX L ITIGATION § 30.11 (3d ed. 1995).

The district court’s predominance inquiry demonstrates why

such an understanding is necessary. The premise of the court’s

opinion is a citation to Jenkins and a conclusion that class

treatment of common issues would significantly advance the

individual trials. Absent knowledge of how addiction-as-injury

cases would actually be tried, however, it was impossible for the

court to know whether the common issues would be a “significant”

portion of the individual trials. The court just assumed that

because the common issues would play a pa rt in every trial, they

must be significant. 18 The court’s synthesis of Jenkins and Eisen

would write the predominance requirement out of the rule, and any

common issue would predominate if it were common to all the1 9 An incorrect predominance f inding also implicates the court’s

superiority analysis: The greater the number of individual issues, the less

likely superiority can be established. A merican Medical Sys.

, 75 F.3d at 1084-85

(distinguishing a single disaster mass tort from a more complex mass tort). The

relationship between predominance and superiority in mass torts was recognized

in the Advisory Committee’s note to rule 23(b)(3), which states:

A “mass accident” result i ng in injuries to numerous persons is

ordinarily not appropriate for a class action because of the

likelihood that significant questions, not only of da mages but of

liability and defenses to 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.

F ED

. R. C IV

. P. 23(b)(3) advisory committee’s note (citation omitted), reprinted

in 39 F.R.D. 69, 103 (1966). S ee also Georgine

, 1996 WL 242442, at *12-*13

(relying on the Advisory Committee’s note); American Medical Sys.

, 73 F.3d at

1084-85.

The plaintiffs assert that Professor Charles Allen Wright, a member of the

Advisory Committee has now repudiated this passage in the notes. S ee H. N EWBERG

, 3 N E WBERG ON C LASS A CTIONS § 17.06 (3d ed. 1992). Professor Wright’s recent

statements, made as an advocate in School Asbestos, m ust be viewed with some caution. As Professor Wright has stated:

I certainly did not intend by that statement to say that a

class should be certified in all mass tort cases. I merely wanted

to take the sting out of the statement in the Advisory Committee

Note, and even that said only that a class action is “ordinarily not

appropriate” in mass-tort cases. The class action is a complex

device that must be used with discernment. I think for example that

Judge Jones in Louisiana would be creating a Frankenstein’s monster

if he should allow certification of what pur ports to be a class

action on behalf of everyone who has ever been addicted to nicotine.

Letter of Dec. 22, 1994, to N. Reid Neureiter, Williams & Connolly, Washington,

D.C.

2 0 The court specifically discussed reliance in the context of a fraud

claim. Reliance is also an element of breach of warranty claims in some states,

see, e.g., Mode rn Farm Serv., Inc. v. Ben Pearson, Inc. , 308 F.2d 18, 23 (5th

Cir. 1962) (Arkansas); Caruso v. Celsius Insulation Resources, Inc.

, 101 F.R.D.

530, 536 (M.D. Pa. 1984), a nd an element of consumer protection statutes in

others, s ee, e.g., Louisiana ex rel. Guste v. General Motors Corp.

, 370 So. 2d

477, 489 (La. 1979).

21 individual trials. 19

The court’s treatment of the fraud claim also demonstrates the

error inherent in its approach. 20 According to both the advisory

committee’s notes to Rule 23(b)(3) and this court’s decision in

Simon v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

, 482 F.2d 8802 1 Severing the defendants’ conduct from reliance under rule 23(c)(4) does

not save the class action. A district court cannot manufacture predominance

through the nimble use of subdivision (c)(4). The proper interpretation of the

interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as

a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is

a housekeeping rule that allows courts to sever the common issue s for a class

trial.

22 (5th Cir. 1973), a fraud class action cannot be certified when

individual reliance will be an issue. The district court avoided

the reach of this court’s decision in Simon by an erroneous reading

of Eisen ; the court refused to consider whether reliance would be

an issue in individual trials.

The problem with the district court’s approach is that after

the class trial, it might have decided that reliance must be proven

in individual trials. The court then would have been faced with

the difficult choice of decertifying the class after phase 1 and

wasting judicial resources, or continuing with a class action that

would have failed the predominance requirement of rule 23(b)(3). 21 0.

Rule 23(b)(3) states:

An action may be maintained as a class a ction if . . . the court

finds that the questions of law or fact common to the members of the

class predominate over any questions affecting only the individual

members, and that a class acti on is superior to other available

methods for the fair and efficient adjudication of the controversy.

Rule 23(c)(4) states:

When appropriate . . . an action may be brought or maintained as a

c lass action with respect to particular issues,

. . . and the

provisions of this rule shall the be construed and applied accord-See In re N.D. Cal. Dalkon Shield IUD Prods. Liability Litig.

, 693

F.2d 847, 856 (9th Cir. 1982) (balancing severed issues against the

remaining individual issues), cert. denied

, 459 U.S. 1171 (1983);

see also Je nkins , 109 F.R.D. at 278 (comparing state of the art

defense to individual questions of exposure and degree of injury in

a class action certified only on the common issue of the state of

the art defense). Reading rule 23(c)(4) as allowing a court to

sever issues until the remaining common issue predominates over the

remaining individual issues would eviscerate the predominance

requirement of rule 23(b)(3); the result would be automatic

certification in every case where there is a common issue, a result

that could not have been intended.

23 ingly. 22

III.

In addition to the reasons given above, regarding the district

court’s procedural errors, this class must be decertified because

it independently fails the superiority requirement of

rule 23(b)(3). In the context of mass tort class actions,

certification dramatically affects the stakes for defendants.

Class certificati on magnifies and strengthens the number of

unmeritorious claims. A gent Orange

, 818 F.2d at 165-66. Aggregation of claims also makes it more likely that a defendant will be

found liable and results in sign ificantly higher damage awards.

M ANUAL FOR C OMPLEX L ITIGATION § 33.26 n.1056; Kenneth S. Bordens and

Irwin A. Horo witz, M ass Tort Civil Litigation: The Impact of

Procedural Changes on Jury Decisions , 73 J UDICATURE 22 (1989).

In addition to skewing trial outcomes, class certification

creates insurmountable pressure on defendants to settle, whereas

individual trials would not. See Peter H. Schuck, Mass Torts: An

Institutional Evolutionist Perspective , 80 C ORNELL L. R EV . 941, 9582 3 In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig.

,

55 F.3d 768, 784-85 (3d Cir.), cert. denied

, 116 S. Ct. 88 (1995); Rhone-Poulenc

, 51 F.3d at 1299-1300. S ee also Georgine

, 1996 WL 242442, at *10 n.10 (rejecting

the argument that the possibility of settlement should be factored positively in

applying rule 23(b)(3)). B ut see In re A.H. Robins Co.

, 880 F.2d 709, 740 (4th

Cir. 1985) (treating the fact that certification may foster settlement as a

positive factor when applying rule 23(b)(3)) ( dicta ), cert. denied

, 493 U.S. 959

(1989).

2 4 At the time rule 23 was drafted, mass tort litigation as we now know it

did not exist. Schuck, s upra

, at 945. The term had been applied to single-event

accidents. Id . Even in those cases, the advisory committee cautioned against

certification. S ee supra note 19. As modern mass tort litigation has evolved,

courts have been willing t o certify simple single disaster mass torts, s ee Sterling v. Velsicol Chem. Corp.

, 855 F.2d 1188, 1197 (6th Cir. 1987), but have

been hesitant to certify more complex mass torts, see Georgine

, 1996 WL 242442,

at *12-*14, *19 (discussing the trend in certification and decertifying an

asbestos class action); American Medical Sys.

, 75 F.3d at 1084-85. See also

Rhone-Poulenc

, 51 F.3d 1293 (decertifying class); In re Joint E. & S. Dist.

Asbestos Litig.

, 14 F.3d 726 (2d Cir. 1993) (vacating limited fund class action);

In re Bendectin Prod. Liability Litig. , 749 F.2d 300 (6th Cir. 1984) (granting

mandamus reversing class certificatio n); Dalkon Shield IUD Prods. Liability

Litig.

, 693 F.2d at 856 (decertifying class for lack of commonality and

superiority); Harding v. Tambrands Inc.

, 165 F.R.D. 623,

___, 1 996 WL 138057,

at *5 (D. Kan. 1996) (denying certification of nationwide class of persons

alleging toxic shock syndrome); Kurczi v. Eli Lilly & Co.

, 160 F.R.D. 667 (N.D.

Ohio 1995) (denying nationwide class certification); Hurd v. Monsanto Co. , 164

F.R.D. 234 (S.D. Ind. 1995) (refusing to certify class of persons alleging PCB

exposure at one plant); Bethards v. Bard Access Sys., Inc., 1995 WL 75356 (N.D.

Ill. 1995) (recommending denial of class certification in products liability

action regarding catheters); Ikonen v. Hartz Mountain Corp.

, 122 F.R.D. 258 (S.D.

Cal. 1988) (denying class certification in flea and tick spray products liability

action); I n re Tetracycline Cases , 107 F.R.D. 719 (W.D. Mo. 1985) (denying

certification be cause class action is not superior method of adjudication);

Mertens v. Abbott Laboratories

, 99 F.R.D. 38 (D.N.H. 1983) (denying certification

of class in DES litigation); Ryan v. Eli Lilly & Co.

, 84 F.R.D. 230 (D.S.C. 1979)

(denying certification of class of women who took synthetic estroge n during

pregnancy); Yandle v. PPG Indus., 65 F.R.D. 566 (E.D. Tex. 1974) (denying

asbestos claims class certification). B ut see Central Wesleyan College v. W.R.

Grac e & Co. , 6 F.3d 177 (4th Cir. 1993) (affirming certification of class of

colleges in suit against asbestos manufacturer); Agent Orange

, 818 F.2d at 166-67

(certifying class despite manageability difficult i es because of centrality of

military contractor defense); School Asbestos , 789 F.2d 996; In re Teletronics

Pacing System, Inc., Acufix Atrail “J” Leads Prod. Liability Litig.

, No. C-1-95-

(continued...)

24 (1995). The risk of facing an all-or-nothing verdict presents too

high a risk, even when the pr obability of an adverse judgment is

low. R hone-Poulenc

, 51 F.3d at 1298

. These settlements have been

referred to as judicial blackmail. 23

It is no surprise then, that h istorically, certification of

mass tort litigation classes has been disfavored. 24 The traditional(...continued)

094 (S.D. Ohio, Nov. 17, 1995) (certifying class against manufacturer of alleged

defective pacemaker leads) (unpublished); In re Copley Pharmaceutical, Inc.

, 161

F.R.D. 456 (D. Wyo. 1995) (certifying nationwide class for limited threshold

liability issues regarding prescription drug albuterol, but refusing to certify

class for individual issues of liability and causation or punitive damages);

Craft v. Vanderbilt Univ.

, No. 3:94-0090 (M.D. Tenn. July 14, 1994) (certifying

class for exposure t o a radioactive isotope in medical experiments)

(unpublished); In re Cordis Cardiac Pacemaker Prod. Liability Litig.

, No. C-3-90-

374 (S.D. Ohio Dec. 23, 1992) (unpublished).

25 concern over the rights of defendants in mass tort class actions is

magnified in the instant case. Our specific concern is that a mass

tort cannot be properly certified without a prior track record of

trials from which the district court can draw the information

necessary to make the pre dominance and superiority requirements

required by rule 23. This is because certification of an immature

tort results in a higher than normal risk that the class action may

not be superior to individual adjudication.

We first address the district court’s superiority analysis.

The court acknowledged the extensive manageability problems w ith

this clas s. Such problems include difficult choice of law

determinations, subclassing of eight claims with variations in

sta te law, E rie guesses, notice to millions of class members,

further subcl assing to take account of transient plaintiffs, and

the difficult procedure for determining who is nicotine-dependent.

Cases with far fewer manageability problems have given courts

pause. S ee, e.g., Georgine

, 1996 WL 242442, at *19; In r e Hotel

Tel. , 500 F.2d at 909.

The district court’s rationale for certification in spite of

such problems SS i.e., that a class trial would preserve judicial

resources in the millions of inevitable individual trials SS is based2 5 There is reason to believe that even a mass tort like asbestos could

be managed, without class certification, in a way that avoids judicial meltdown.

See Georgine

, 1996 WL 242442, at *21 (suggesting methods, short of a nationwide

class action, that would be more efficient than individual trials); John A.

Siliciano, Mass Torts and the Rhetoric of Crisis

, 80 C ORNELL L. R EV

. 980, 1010-12

(1995) (suggesting that stringent “gate keeping” by courts at the outset would

have prevented asbestos from becoming a monstrous mass tort). In a case such as

this one, where c ausation is a key element, disaggregation of claims allows

courts to dismiss weak and frivolous claims on summary judgment.

Where novel theories of recovery are advanced (such as addi ction as

injury), courts can aggressively weed out untenable theories. S ee, e.g.

, Allgood

v. R.J. Reynolds Tobacco Co.

, 80 F.3d 168, 172 (5th Ci r. 1996) (rejecting

failure-to-warn cl aim against tobacco companies based on inadequate proof of

reliance and, alternatively, on “common knowledge” theory). Courts can use case

management techniques to avoid discovery abuses. The parties can also turn to

mediation and arbitration to settle individual or aggregated cases.

2 6 The plaintiffs, in seemingly inconsistent positions, argue that the lack

of a judicial crisis justifie s certification; they assert that the reason why

individual plaintiffs have not filed claims is that the tobacco industry makes

individual trials far too expensive and plaintiffs are rarely successful. The

fact tha t a party continuously loses at trial does not justify class

certification, however. S ee American Medical Systems

, 75 F.3d at 1087 and n.20

(granting mandamus in part because judge’s comments that class treatment was

warranted because the defendant had greater litigation resources than the

plaint iff demonstrated a bias in favor of certification by the judge). The

plaintiffs’ argument, if accepted, would justify class treatment whenever a

defendant has better attorneys and resources at its disposal.

The plaintiffs’ claim also overstates the defendants’ ability to outspend

plaintiffs. Assuming arguendo that the defendants pool resources and outspend

plaintiffs in individual trials, there is no reason why plaintiffs still cannot

prevail. The class is represented by a consortium of well-financed plaintiffs’

lawyers who, over time, can develop the ex pertise and specialized knowledge

sufficien t to beat the tobacco companies at their own game. S ee Francis E.

McGovern, An Analysis of Mass Torts for Judges

, 73 T EX

. L. R EV

. 1821, 1834-35

(1995) (suggest i ng that plaintiffs can overcome tobacco defendants’ perceived

advantage when a sufficient number of plaintiffs have fil ed claims and shared

discovery). Courts can also overcome the defendant’s alleged advantages through

coordination or consolidation of cases for discovery and other pretrial matters.

See M ANUAL FOR C OMPLEX L ITIGATION at §33.21-25.

26 on pure specu lation. Not every mass tort is asbestos, and not

every mass tort will result in the same judicial crises. 2 5 The

judicial crisis to which the district court referred is only

theoretical.

What the district court failed to consider, and what no court

can determine at this time, is the very real possibility that the

judicial crisis may fail to materialize. 26 The plaintiffs’ claims2 7 There are numerous reasons why plaintiffs with positive-value suits opt

out of the tort system, including risk aversion to eng a ging in litigation,

privacy concerns, and al ternative avenues for medical treatment, such as

M edicaid. S ee McGovern, supra

, at 1827-28. In a case where comparative

negligence is raised, plaintiffs have the best insight into their own relative

fault.

Ultimately, a court cannot extrapolate, from the number of

potential plaintiffs, the actual number of c ases that will be

filed. S ee i d

. at 1823 & n.8 (contending that only 10 to 20% of

person s who suffer harm actually invoke the tort litigation

process).

27 are based on a new theory of liability and the existence of new

evidence. Until plaintiffs decide to file individual claims, a

court cannot, from the existence of injury, presume that all or

even any plaintiffs will pursue legal remedies. 27 0. See Allgood v. R.

J. Reynolds Tobacco Co.

, No. 95-20363, 1996 WL 146250, at *2 (5th Cir. Apr. 16,

1996) (holding that common knowledge is a defense to a duty to warn and warranty

claim). 28 N or can a court make a superiority determination based on

such speculation. A merican Medical Sys.

, 75 F.3d at 1085 (opining

that superiority is lacking where judicial management crisis does

not exist and individual trials are possible).

Severe manageability problems and the lack of a judicial

crisis are not the only reasons why s uperiority is lacking. The

m ost compelling rationale for finding superiority in a class

action SS the existence of a negative value suit SS is missing in this

case. Accord Phillips Petroleum Co. v. Shutts , 472 U.S. 797, 809

(1985); Rhone-Poulenc , 51 F.3d at 1299.

As he stated in the record, plaintiffs’ counsel in this case

has promised to inundate the courts with individual claims if class

certification is denied. Independently of the reliability of this

self- serving promise, there is reason to believe that individual28

suits are feasible. First, individual damage claims are high, and

punitive damages are available in most states. The expense of

litigation does not necessarily turn this case into a negative

value suit, in part because the p revailing party may recover

attorneys’ fees under many consumer protection statutes. S ee Boggs

v. Alto Trailer Sales, 511 F.2d 114, 118 (5th Cir. 1974) (acknowledging that the availability of attorneys’ fees is a common basis

for finding non-superiority).

In a case such as this one, where each plaintiff may receive

a large award, and fee shifting often is available, we find Chief

Judge Posner’s analysis of superiority to be persuasive:

For this consensus or maturing of judgment the district

judge pro poses to substitute a single trial before a

single jury

. . . . One jury . . . will hold the fate of

an industry in the palm of its hand.

. . . That kind of

thing can happen in our system of civil justice . . . .

But it need not be tolerated when the alternative exists

of submitting an issue to multiple juries constituting in

the aggregate a muc h larger and more diverse sample of

decision-makers. That would not be a feasible option if

the stakes to each class member were too slight to repay

the cost of suit

. . . . But this is not the case

. . . . Each plaintiff if successful is apt to receive

a judgment in the millions. With the aggregate stakes in

the tens or hundreds of millions of dollars, or even in

the billions, it is not a waste of judicial resources to

conduct more than one trial, before more than six jurors,

to determine whether a major segment of the international

pharmaceutical industry is to follow the asbestos

manufacturers into Chapter 11.

Rhone-Poulenc

, 51 F.3d at 1300. So too here, we cannot say that it

would be a waste to allow individual trials to proceed, before a

district court engages in the complicated predominance and

superiority analysis necessary to certify a class.

Fairness may demand that mass tor ts with few prior

verdi cts or judgments be litigated first in smaller2 9 See Sterling

, 855 F.2d at 1196 (“The procedural device of Rule 23(b)(3)

class action was designed not solely as a means for assuring legal assistance in

the vindication of small claims but, rather, to achieve the economies of time,

effort, and expense.”).

3 0 See, e.g., Allgood

, 80 F. 3d at 171 (holding that under Texas law,

relia nce is an essential element of both affirmative fraud and fraudulent

concealment).

29 units SS even single-plaintiff, single-defendant trials SS

until general causation, typical injuries, and levels of

damages become esta blished. Thus, “mature” mass torts

like asbestos o r 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.

M ANUAL FOR C OMPLEX L ITIGATION § 33.26.

The remaining rationale for superiority SS judi cial efficiency 2 9 SS

is also lacking. In the context of an immature tort, any savings

in judicial resources is specul ative, and any imagined savings

would be overwhelmed by the procedural problems that certification

of a sui generis cause of action brings with it.

Even assuming arguendo that the tort system will see many more

addiction-as-injury claims, a conclusion that certification will

save judicial resources is premature at this stage of the litigation. Take for example the district court’s plan to divide core

liability from other issues such as comparative n egligence and

reliance. The assumption is that after a class verdict, the common

issues will not be a part of follow-up trials. The court has no

basis for that assumption.

It may be that comparative negligence will be raised in the

individual trials, and the evidence p resented at the class trial

will have to be repeated. The same may be true for reliance. 3 0 The30

net result may be a waste, not a savings, in judicial resources.

Only after the courts have more experience with this type of case

can a court certify issues in a way that preserves judicial

resources. S ee Jenkins

, 782 F.2d 468 (certifying state of the art

defense because experience had demonstrated that judicial resources

could by saved by certification).

Even assuming that certification at this time would result in

judicial e fficiencies in individual trials, certification of an

immature tort brings with it unique problems that may consume more

judicial resources than certification will save. These problems

are not speculative; the district court faced, and ignored, many of

the problems that immature torts can cause.

The primary procedural difficulty created by immature torts is

the inherent difficulty a district court will have in determining

whether the requirements of rule 23 have been met. We have already

identified a number of defects with the district court’s predominance and manageability inqu ires, defects that will continue to

exist on remand because of the unique nature of the plaintiffs’

claim.

The district court’s pred ominance inquiry, or lack of it,

squarely presents the problems associated with cer tification of

immature torts. Determining whether the common issues are a

“significant” part of each individual case has an abstract quality

to it when no court in this country has ever tried an injury-asaddiction claim. As the plaintiffs admitted to the district court,

“we don’t have the learning curb [sic] that is necessary to say to31

Your Honor ‘this is precisely how this case can be tried and that

will not run afoul of the teachings of the 5th Circuit.’”

Yet, an accurate finding on predominance is necessary before

the court can certify a class. It may turn out that the defendant’s conduct, while common, is a minor part of each trial.

Premature certification deprives the defendant of the opportunity

to present that argument to any cour t and risks decertification

after considerable resources have been expended.

The court’s analysis of relia nce also demonstrates the

potential judicial inefficiencies in immature tort class actions.

Individual trials will determine whether individual reliance will

be an issue. Rather than guess that reliance may be inferred, a

district court should base its de termination that individual

reliance does not predominate on the wisdom of such individual

trials. The risk that a district court will make the wrong guess,

that the parties will engage in years of litigation, and that the

class ultimately will be decertified (because reliance predominates

over common issues) prevents this class action from being a

superior method of adjudication.

The complexity of the choice of law inquiry also makes

individua l adjudication superior to class treatment. The plaintiffs have asserted eight theories of liability from every state.

Prior to certification, the district court must determine whether

variations in state law defeat predominance. While the task m ay

not be impossible, its complexity certainly makes individual trials

a more attrac tive alternative and, i pso facto

, renders class3 1 State courts are more than capable of providing definitive statements

regarding the validity of addiction-as-injury claims. S ee, e.g.

, Joseph E.

Seagram & So ns v. McGuire , 814 S.W.2d 385 (Tex. 1991) (accepting “common

knowledge” theory and holding no cause of acti on for alcohol addiction claim

based on products liability, misrepresentations, negligence, breach of implied

warranties of merchantability and fitness, violations of consumer protection

statutes, and conspiracy); see also Allgood

, 80 F.3d at 171-72 (rej ecting

failure-to-warn claim against tobacco companies based on inade quate proof of

reliance and, alternatively, on “common knowledge” theory) (citing J oseph E.

Seagram ).

32 treatment not superior. S ee Georgine

, 1996 WL 242332, at *21

(recommending that Congress solve the problems inherent in multistate class actions by federalizing choice of law rul es, but

rejecting such legislation when it masquerades as judicial

innovation).

Through individual adjudication, the plaintiffs can winnow

their claims to the strongest causes of action. 31 The result will

be an easier choice of law inquiry and a less complicated predominance i nquiry. State courts can address the more novel of the

plaintiffs’ claims, making the federal court’s E rie guesses l ess

c omplicated. It is far more desirable to allow state courts to

apply and develop their own law than to have a federal court apply

“a kind of Esperanto [jury] instruction.” Rhone-Poulenc , 51 F.3d

at 1300; M ANUAL FOR C OMPLEX L ITIGATION § 33.26 (discussin g the full

cycle of litigation necessary for a tort to mature).

The full development of trials in every sta te will make

subclassing an easier process. The result of allowing individual

trials to proceed is a more accurate determination of predominance.

We have already seen the result of certifying this class without

individual ad judications, and we are not alone in expressing

discomfort with a district court’s certification of a novel theory.3 2 “[N]o fact tried by jury, shall be otherwise re-examined in any Court

of the United States. . .” U.S. C ONST . amend. VII.

33 See Rhone-Poulenc , 51 F.3d at 1300.

Another factor weighing heavily in favor of individual trials

is the risk that in order to make this class action manageable, the

court will be forced to bifurcate issues in violation of the

Seventh Amendment. This class action is permeated with individual

issues, such as proximate causation, comparative negligence,

reliance, and compensatory damages. In order to manage so many

individual issues, the district court proposed to empanel a class

jury to adjudicate common issues. A second jury, or a number of

“second” juries, will pass on the individual issues, either on a

case-by-case basis or through group trials of individual p laintiffs.

The Seventh Amendment entitles part ies to have fact issues

decided by one jury, and prohibits a second jury from reexamining

those facts and issues. 32 Thus, Constitution allows bifurcation of

issues that are so separable that the second jury will not be

called upon to reconsider findings of fact by the first:

[T]his Court has cautioned that separation of issues is

not the usual course that should be followed, and that

the issue to be tried must be so distinct and separable

from the others that a trial of it alone may be had

without injustice. This limitation on the use of

bifurcation is a recognition of the fact that inherent in

the Seventh Amendment guarantee of a trial by jury is the

general right of a litigant to have only one jury pass on

a common issue of fac t. The Supreme Court recognized

this principle in Gasoline Products . . . . The Court

explained

. . . that a pa rtial new trial may not be

“properly resorted to unless it clearly appears that the

issue to be retried is so distinct and separable from the

others that a trial of it alone may be had without34

injustice.” Such a rule is dictated for the very

practical reason that if separate juries are allowed to

pass on issues invo lving overlapping legal and factual

questions the verdicts rendered by each jury could be

inconsistent.

Alabama v. Blue Bird Body Co.

, 573 F. 2d 309, 318 (5th Cir. 1978)

(citations and footnotes omitted).

The Seventh Circuit recently addressed Seventh Amendment

limitations to bifurcation. In R hone-Poulenc

, 51 F.3d at 1302-03,

Chief Judge Posner described the constitutional limitation as one

requiring a court to “carve at the joint” in such a way so that the

same issue is not reexamined by different juries. “The right to a

jury trial . . . is a right to have juriable issues determined by

the first jury impaneled to hear them (provided there are no errors

warranting a new trial), and not reexamined by another finder of

fact.” Id . at 1303.

Severing a defendant’s conduct from comparative negligence

results in the type o f risk that our court forbade in B lue Bird

.

Comparative negligence, by definition, requires a comparison

between the defendant’s and the plaintiff’s conduct. RhonePoulenc , 51 F.3d at 1303 (“Comparative negligence entails, as the

name implies, a comparison of the degree of negligence of plaintiff

and defendant.”). At a bare minimum, a second jury will rehear

evidence of the defendant’s conduct. There is a risk that in

apportioning fault, the second jury could reevaluate the defendant’s fault, determine that the defendant was not at fault, and

apportion 100% of the fault to the plaintiff. In such a situation,

the second jury would be impermissibly reconsidering the findings3 3 The plaintiffs argue that any risk that a bi furcation order would

violate the Seventh Amendment is speculative, as the plaintiffs may prevail on

causes of action that either do not require bifurcation or do not contain issues

that are so intertwined that the Seventh Amendment will be implicated. In

essence, plaintiffs’ argument boils down to a repudiation of the class

complaint’s negligence and strict products liability claims.

3 4 This contention is disingenuous at best. At oral argument, the

plaintiffs asserted that time is of the essence, because plaintiffs who die

cannot partake in a medical monitoring fund. What the plaintiffs failed to

mention was that the district court refused to certify a medical monitoring fund,

and the plaintiffs have not cross-appealed tha t decision. Moreover, for the

remainder of the claims a plaintiff’s family or estate can sue based on

survivorship statutes. The plaintiffs’ class complaint envisions survivor

lawsuits. In fact, the named plaintiff in this case, Dianne Castano, is a nonsmoker who is suing both for the wrongful death o f her husband and as a

representative in a survival action.

35 of a first jury. The risk of such reevaluation is so great that

class treatment can hardly be said to be superior to individual

adjudication. 33

The p laintiffs’ final retort is that individual trials are

inadequate because time is running out for many of the plaintiffs. 34

They point out that prior litigation against the tobacco companies

has taken up to ten years to wind through the legal system. While

a compelli ng rhetorical argument, it is ultimately inconsistent

with the plaintiffs’ own arguments and ignores the realities of the

l egal system. First, the plaintiffs’ reliance on prior personal

injury cases is unpersuasive, as they admit that they have new

evidence and are pursuing a claim entirely different from that of

past plaintiffs.

Second, the plaintiffs’ claim that time is running out ignores

the reality of the class action device. In a complicated case

involving multiple jurisd ictions, the conflict of law question3 5 The plaintiffs rely on S chool Asbestos for the proposition that

variations in state law do not preclude predominance. Putting that issue aside,

the case is instructive for what happened after the Third Circuit remanded to the

district court. Almost nine years after the first complaint was filed, and eight

years after the court of appeals had affirmed certification, the conflict of law

issues had yet to be resolved. S ee In re Sch. Asbestos Litig.

, 977 F.2d 764, 771

(3d Cir. 1992) (granti ng mandamus to disqualify judge but refusing to address

whether district cou rt’s trial plan properly resolved any problems with

variations in state law because new judge may adopt a different trial plan).

36 its elf could take decades to work its way through the courts. 3 5

Once that issue has been resolved, discovery, subcl assing, and

ultimately the class trial would take place. Next would come the

appellate process. After the class trial, the individual trials

and appeals on comparativ e negligence and damages would have to

take place. The net result could be that the class action device

would lengthen, not shorten, the time it takes for the plaintiffs

to reach final judgment.

IV.

The district court abu sed its discretion by ignoring variations in state law and how a trial on the alleged causes of action

would be tried. Those errors cannot be corrected on remand because

of the novelty of th e plaintiffs’ claims. Accordingly, class

treatment is not superior to individual adjudication.

We have once before stated that “traditional ways of proceeding reflect far more than habit. They reflect the very culture of

the jury trial. . . .” In re Fibreboard Corp. , 893 F.2d 706, 711

(5th Cir. 1990). The collective wisdom of individual juries is

necessary before this court commits the fate of an entire industry37

or, indeed, the fate of a class of millions, to a single jury. For

the forgoing reasons, we REVERSE and REMAND with instructions that

the district court dismiss the class complaint.