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Medical MalpracticeClass ActionsFeaturesLitigationLJN NewslettersMedical Malpractice Law & Strategy

Class Certification

By Jeremy M. Creelan

Editor's note: Because medical malpractice claimants also often suffer injury from the way that pharmaceutical products were used upon them, medical malpractice legal advisers must keep abreast of product liability law and the ways it may affect their clients. One of the common questions is this: “Is my client a potential member in a class-action lawsuit against a pharmaceuticals manufacturer?” The answers can get complicated, especially when the legal landscape is in flux, as it is now as we await the appointment of a new Supreme Court justice. What should we expect?

For two decades leading up to Justice Antonin Scalia's death, the U.S. Supreme Court's class certification jurisprudence took shape as a dialogue between Justices Scalia and Ruth Bader Ginsburg over the commonality and predominance requirements of Federal Rule of Civil Procedure 23(a)(2) and (b)(3), respectively. In broad strokes, Ginsburg favored granting significant discretion to district judges to determine whether, based on the unique facts and pragmatic concerns of each case, a class action was the appropriate vehicle for resolution. By contrast, Scalia favored requiring putative class plaintiffs to meet an ever-increasing set of “bright line” rules in order to have a class certified. Fundamentally, this debate reflected their views on the desirability of class actions as a means of dispute resolution.

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