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Recent Class Certification Decisions Present New Opportunities and Challenges for Defendants

By Heather A. Pigman

From a mass tort product liability defense perspective, the trend away from class certification is welcome news and reflects at least in part the almost universal rejection by federal courts of putative classes seeking recovery for personal injuries or medical monitoring in product liability cases. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (“significant questions, not only of damages but of liability and defenses of liability ” affect[] individuals in different ways, making mass torts ordinarily not appropriate for class treatment”) (internal quotations omitted); In re Rezulin Prods. Liab. Litig., 210 F.R.D. 61, 65-66 (S.D.N.Y. 2002) (finding it “not surprising that all relevant Court of Appeals and the bulk of relevant district court decisions have rejected class certification in products liability cases”); see also Jack B. Weinstein, Preliminary Reflections on Administration of Complex Litigations, Cardozo L. Rev. de novo 1, 18 (2009) (noting “the tide has turned against class actions”). One of many reasons certification is often denied in such cases is the stringent proof required by Federal Rule of Civil Procedure 23 itself. Courts in almost every circuit have held that plaintiffs seeking certification must show that they have developed a way to aggregately prove the elements of their claims, such as causation and damages. Mere assurances that they can develop a method of doing so by the time of trial on the merits are not sufficient.

However, any pronouncement of class actions as dead is premature. Putative class actions regarding allegedly defective products, particularly so-called consumer class actions, are arriving in federal courts at increasing rates. Defendants should not assume that the recent trend away from class certification will stop efforts to challenge and change judicial interpretation of Rule 23 in the mass tort or product liability contexts. Because they are in some ways unique to each case, expert and fact discovery are likely to be key battleground areas. In these areas, the same recent cases that reaffirm Rule 23”s stringent pre-certification requirements present new challenges for defendants. Regarding expert discovery, because it is now clear that courts must resolve at the certification stage those issues that overlap with the merits, class action defendants in product liability cases should consider raising Daubert challenges much earlier than some undertook such efforts in the past. Simultaneously, defendants must seek to limit plaintiffs” requests for expansive (and expensive) merits-related fact discovery at the class certification stage.

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