Class Action Fairness: A Mature Solution to the
23(b)(3) Choice of Law Problem
JED J. BORGHEI*
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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I. THE CHOICE OF LAW PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . .
1647
II. FOUR PROPOSALS FOR RESOLVING THE CHOICE OF LAW PROBLEM . . .
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A.
WORKING WITHIN THE CURRENT FRAMEWORK
...............
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B.
JUDICIALLY IMPOSED CHANGES TO THE CURRENT FRAMEWORK
...
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C.
FEDERAL CHOICE OF LAW LEGISLATION
...................
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D.
FEDERAL TORT LAW
................................
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III. THE RELATIONSHIP BETWEEN MATURITY AND THE CHOICE OF LAW
PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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IV. TOWARDS A COMPROMISE SOLUTION: FEDERAL MATURE TORT
LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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A.
LEGISLATION PROVIDING FOR BELLWETHER TRIALS AND SCIENTIFIC
.........................................
1665
.....
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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STAYS
B.
LEGISLATION MANDATING A REQUISITE LEVEL OF MATURITY
INTRODUCTION
Inherent in the mass production and distribution of goods is the potential for
mass injury.1 Economic development has produced a marked increase in mass
tort claims, overwhelming federal court dockets and exposing a need for more
* Georgetown University Law Center, J.D. expected 2007; College of William and Mary, B.A.; City
University of New York Graduate Center, M.A. © 2007, Jed J. Borghei. I would like to thank my
mother, Dr. Suzanne Borghei, for her comments and support. This Note is dedicated to my grandparents, Victor and Meda Croizat. Your passion for life has always inspired me.
1. See, e.g., In re A.H. Robins Co., 880 F.2d 709, 725 (4th Cir. 1989) (“Within recent years, the
proliferation in the development and distribution of new products and remedies and the complaints of
injuries from the use of these products have brought an accelerating avalanche of mass products
liability suits primarily in federal courts which represents what is . . . probably the most important and
difficult management problem facing the federal court system today.”).
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efficient means to consolidate common claims.2 One major impediment to
aggregation is the choice of law problem facing federal class actions brought
pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure.3 There is no
lack of scholarship offering potential solutions to this problem.4 Yet, to date, no
proposal has provided a successful comprehensive resolution.5 Lack of success
has not been due to theoretical unsoundness. Rather, the problem emanates from
the difficulty of satisfying both federalist support for decentralized decision
making and respect for the place of state law in the federal system, and liberal
support for aggregation in the interest of equity and efficiency.6 This Note
argues for a compromise solution that paves a path towards aggregation while
addressing federalist opposition. The key to such a solution lies in recognition
of the interrelationship between the choice of law problem and the debate over
mass tort maturity. These are typically treated as separate issues but are, in fact,
animated by similar federalist concerns. By linking these issues, it is possible to
forge a choice of law solution attentive to maturity issues, with the result that
mass tort claims can be aggregated within a moderate framework that incorporates both federalist and liberal interests.
Part I of this Note describes the Rule 23(b)(3) choice of law problem in
relation to the mass tort dilemma and highlights the importance of overcoming
barriers to aggregation. Part II forwards and critiques four existing proposals for
overcoming the choice of law problem, and concludes that federal tort law is the
best available model. Part III explores objections to federal tort law and
illustrates that they are based on a desire to protect decentralized decisionmaking as reflected in the concept of maturity. Part IV describes and analyzes
two federal tort law solutions to the choice of law problem that internalize a
maturity requirement and, thus, strike a reasonable compromise between federal-
2. Robert W. Kastenmeier & Charles Gardner Geyh, The Case in Support of Legislation Facilitating
the Consolidation of Mass-Accident Litigation: A View From the Legislature, 73 MARQ. L. REV. 535,
548 (1990) (noting that mass torts have contributed significantly to the case load of courts and that this
problem is aggravated by impediments to aggregation).
3. Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern
Class Action, 104 MICH. L. REV. 373, 388 (2005) (noting that the choice-of-law problem has become a
central justification in a majority of decertification decisions in federal courts).
4. See, e.g., Michael H. Gottesman, Draining the Dismal Swamp: The Case for Federal Choice of
Law Statutes, 80 GEO. L.J. 1 (1991); Samuel Issacharoff, Settled Expectations in a World of Unsettled
Law: Choice of Law After the Class Action Fairness Act, 106 COLUM. L. REV. 1839 (2006); Paul S.
Bird, Note, Mass Tort Litigation: A Statutory Solution to the Choice of Law Impasse, 96 YALE L.J. 1077
(1987).
5. See Kastenmeier & Geyh, supra note 2, at 548 (noting that multiparty, multiforum litigation
continues to waste resources); Jack B. Weinstein, Mass Tort Jurisdiction and Choice of Law in a
Multinational World Communicating by Extraterrestrial Satellites, 37 WILLAMETTE L. REV. 145, 153
(2001) (stating that Congress is unlikely to accept proposals for consolidating tort actions in federal
courts).
6. Compare In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002) (discussing merits
of decentralized decision-making and arguing that centralizing cases does violence to federalism) with
Gilles, supra note 3, at 389–90 (arguing that class action treatment for mass torts promotes fairness and
efficiency).
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ist and liberal stances on centralization. The Note concludes, in Part V, by
endorsing federal tort legislation that only applies to sufficiently mature and
national mass torts in a class action context.
I. THE CHOICE OF LAW PROBLEM
“Choice of law” refers to situations in which legal disputes between parties
are governed by more than one state’s law.7 Due process requirements relating
to personal jurisdiction are the only constitutional limitation on which state’s
law a state court may apply: “each state whose law is sought to be applied [must
have] ‘significant contacts or significant aggregation of contacts creating state
interests, such that choice of its law is neither arbitrary nor fundamentally
unfair.’”8 State courts—and in a few jurisdictions, state legislatures—have
developed the choice of law rules that control which laws will govern particular
disputes.9 The majority of states have adopted one of two general choice of law
theories.10 Most commonly, states derive their rules from the Restatement
(Second) of Conflict of Laws, which applies the law of the jurisdiction with the
“most significant relationship to the occurrences and the parties.”11 A sizeable
minority of states still uses the Restatement (First) of Conflict of Laws’ lex loci
delicti principle, which applies the law of the jurisdiction where “the last event
necessary to make an actor liable for an alleged tort takes place.”12 The
remaining states rely upon either a “better law” approach that seeks to apply the
“best” available law (but tends to select the forum state’s law), a presumption
that forum law applies, or other theories that are difficult to classify with
precision.13
Under the Supreme Court’s decision in Klaxon Co. v. Stentor Electric Manufacturing Co.,14 federal courts sitting in diversity must apply the choice of law
rules of the states in which they sit.15 In so doing, Klaxon extended, to the area
of choice of law, the prohibition on the federal courts’ ability to independently
create common law announced in Erie Railroad Co. v. Tompkins.16 This requirement currently presents a significant hurdle for national mass tort class actions
that are in federal court under diversity jurisdiction.17 State tort law currently,
7. Simon v. Philip Morris Inc. (Simon I), 124 F. Supp. 2d 46, 53 (E.D.N.Y. 2000); Gottesman, supra
note 4, at 1.
8. Simon I, 124 F. Supp. 2d. at 53 (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 313 (1981)).
9. Gottesman, supra note 4, at 3.
10. Id. at 9; Jeremy T. Grabill, Comment, Multistate Class Actions Properly Frustrated by Choice-ofLaw Complexities: The Role of Parallel Litigation in the Courts, 80 TUL. L. REV. 299, 302–03 (2005).
11. RESTATEMENT (SECOND) OF CONFLICT OF LAWS §145(1) (1971); Grabill, supra note 10, at 302.
12. RESTATEMENT (FIRST) OF CONFLICT OF LAWS §377 (1934); Grabill, supra note 10, at 303.
13. Gottesman, supra note 4, at 8–9.
14. 313 U.S. 487 (1941).
15. Id. at 496.
16. See id.
17. See, e.g., In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1021 (7th Cir. 2002) (decertifying
class action, in part, because of difficulties inherent in managing a choice of law analysis for a
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and traditionally, governs these claims.18 However, by definition, mass torts are
typically multi-state or national in scale: a mass tort is any civil harm “to a
significant number of people—a number large enough to constitute a class
under prevailing standards.”19 When a mass tort is national in scale, plaintiffs
may have been harmed in every U.S. jurisdiction and the interests of every state
and territory may be affected. Thus, via Klaxon, federal courts are often
directed, by the choice of law rules of the jurisdiction in which they sit, to apply
the substantive tort law of more than fifty jurisdictions to a national class action
suit.20 Federal courts view this task as an obstacle to class certification and,
therefore, aggregation.
Under Rule 23(b)(3) of the Federal Rules of Civil Procedure, federal courts
can only certify and maintain a class action 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. The matters pertinent to the findings
include . . . the difficulties likely to be encountered in the management of a
class action.21
Over the past ten years, federal courts have held that the choice of law problem
has the potential to undermine both predominance and superiority, thus rendering the 23(b)(3) class action mechanism unavailable for many national mass tort
claims.22 This is so because “variations in state law may swamp any common
issues and defeat predominance”23 and a class action governed by the laws of
more than fifty jurisdictions may not be superior to other available adjudication
models because it could prove unmanageable.24 In fact, manageability is the
most common reason for holding that a class action fails superiority,25 and the
most common manageability concern is the choice of law problem.26 Though
some federal courts have proved willing to certify national mass tort classes that
nationwide class); Castano v. Am. Tobacco Co., 84 F.3d 734, 752 (5th Cir. 1996) (same); In re Am.
Med. Sys., Inc., 75 F.3d 1069, 1085, 1090 (6th Cir. 1996) (same); In re Rhone-Poulenc Rorer Inc., 51
F.3d 1293, 1300, 1304 (7th Cir. 1995) (same).
18. See Robert A. Sedler & Aaron D. Twerski, The Case Against All Encompassing Federal Mass
Tort Legislation: Sacrifice Without Gain, 73 MARQ. L. REV. 76, 82–85 (1989).
19. David L. Shapiro, Class Actions: The Class as Party and Client, 73 NOTRE DAME L. REV. 913,
920 (1998).
20. See, e.g., Bridgestone/Firestone, 288 F.3d at 1018; Am. Med. Sys., 75 F.3d at 1085–86;
Rhone-Poulenc, 51 F.3d at 1300.
21. FED. R. CIV. P. 23(b)(3) (emphasis added).
22. See, e.g., Bridgestone/Firestone, 288 F.3d at 1018–19; Castano, 84 F.3d at 741–44; Am. Med.
Sys., 75 F.3d at 1085–86; Rhone-Poulenc, 51 F.3d at 1300–02.
23. Castano, 84 F.3d at 741.
24. See Bridgestone/Firestone, 288 F.3d at 1018; see also Am. Med. Sys., 75 F.3d at 1085–86.
25. Ryan Patrick Phair, Comment, Resolving the “Choice-of-Law Problem” in Rule 23(b)(3) Nationwide Class Actions, 67 U. CHI. L. REV. 835, 839–40 (2000).
26. Id. at 847.
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implicate the laws of all fifty states,27 the tide is turning against certification of
these class claims.28 Thus, increasingly, the choice of law problem is being used
as grounds to deny 23(b)(3) class certification. As a result, factually similar
claims brought by plaintiffs residing in different jurisdictions are not being
aggregated because of variations in the applicable law.
Denial of class certification has broad socio-political implications. In essence,
politically and legally, this issue pits corporate interests and a conservative
federalist perspective favoring retention of a traditional legal model (single
plaintiff suits under a single state’s tort law) against liberal concerns favoring
flexibility and aggregation to accommodate the efficient and equitable management of mass torts.29 Certification of nationwide classes forces corporate defendants to face the possibility of immense liability, while decertification provides
some protection through diffuse litigation; thus, the class action mechanism
“changes the real power and substantive balance of rights of those whose claims
are aggregated. . . . [This] accounts for the political content that underlies some
of the attacks on, and defenses of, class actions.”30 At present, the interests of
those opposed to certification are gaining ground because judges have developed doctrinal hurdles to deny certification—the most susceptible classes are
those with mass tort claims that, inevitably, create choice of law difficulties.31
Yet, even as the judicial current has pushed against mass tort class certification, the need for aggregating mass tort claims has increased.32 As Judge Jack
27. E.g., Klay v. Humana, Inc., 382 F.3d 1241, 1246, 1276 (11th Cir. 2004); In re Teletronics Pacing
Sys., Inc., 172 F.R.D. 271, 275 (S.D. Ohio 1997); In re Sch. Asbestos Litig., 789 F.2d 996, 998–99 (3d
Cir. 1986).
28. See Robert T. Krebs, Note, Castano v. American Tobacco Co.: Class Treatment of Mass Torts is
Going up in Smoke, 24 N. KY. L. REV. 673, 674 (1997); Phair, supra note 25, at 844–45.
29. See Charles Silver, “We’re Scared to Death”: Class Certification and Blackmail, 78 N.Y.U. L.
REV. 1357, 1429 (2003) (“By aggregating hundreds, thousands, or even millions of claims, the class
action can make small claims viable and empower claimants in other ways. Defendants dislike class
actions for this reason. They prefer single-plaintiff lawsuits in which they possess significant advantages, including economies of scale and superior tolerance for risk. One must therefore expect repeat
class action defendants—product manufacturers, financial institutions, insurance companies, directors
and officers, etc.—to oppose the use of litigation classes and to enlist the help of tort reform groups and
politicians when seeking to defeat them, just as one must expect repeat players on the side of claimants
to exert countervailing pressure. The class action will always be a political football.”).
30. Simon v. Phillip Morris, Inc. (Simon I), 124 F. Supp. 2d 46, 77–78 (E.D.N.Y. 2000); see also
Gilles, supra note 3, at 389–90 (“Many commentators, unsurprisingly, have picked up on the outcomedriven nature of the judge-made rules restricting mass tort certification.”).
31. Gilles, supra note 3, at 390. Moreover, because the federal bench has become more conservative,
it is more likely that doctrinal hurdles to deny certification will be utilized. See Jack B. Weinstein, A
Survey of Changes in United States Litigation, 76 ST. JOHN’S L. REV. 379, 392 (2002) (noting that
federal courts have become more defense oriented because there have been more conservative than
liberal presidents over the past twenty-five years).
32. See Simon v. Phillip Morris Inc. (Simon II), 200 F.R.D. 21, 43 (E.D.N.Y. 2001) (noting that
modern manufacturing creates the potential for an increase in mass injury cases); Mary J. Davis,
Toward the Proper Role for Mass Tort Class Actions, 77 OR. L. REV. 157, 161 (1998) (arguing that class
actions are better suited than individualized adjudication in a “post-technology society”); Larry Kramer,
Choice of Law in Complex Litigation, 71 N.Y.U. L. REV. 547, 581 (1996) (explaining that “mass torts
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Weinstein noted in his opinion in Simon v. Philip Morris Inc.:33 “American
manufacturers now mass produce goods for consumption by millions using new
chemical compounds and processes, creating the potential for mass injury.”34 As
a result, the last few decades have produced an explosion of mass tort claims
that, in turn, has created a great deal of pressure on the federal docket,
increasing the need for consolidation of common claims.35 The Fourth Circuit
in In re A.H. Robins Co.36 aptly identified the current federal mass tort situation
as a crisis:
When account is . . . taken of the toll of such cases on the court system itself,
it is evident that the proper functioning of the courts and the fair and efficient
administration of justice for other litigants whose right to a judicial determination [is] inevitably delayed inordinately by the clogging of the court system
by mass tort actions tried individually and the societal costs of the endless
repetition of these suits in separate trials at substantial costs to the judicial
system mean that a mechanism for deciding expeditiously, efficiently and
relatively inexpensively these actions without the delays of individual suits is
demanded.37
Impediments to consolidation threaten to delay adjudication of all claims in the
federal system, affecting potential members of plaintiff classes as well as all
other federal litigants.
Additionally, recent passage of the Class Action Fairness Act of 200538
(CAFA) has exacerbated the pressure on federal courts and has worsened the
23(b)(3) choice of law problem. The “primary thrust” of CAFA is to facilitate
removal of class actions involving state-law claims to federal court.39 The
purpose of this legislation is to thwart the certification of multi-state class
actions by placing these suits before federal courts that are thought to be less
hospitable to aggregation than some state courts.40 Moreover, CAFA accom-
are unavoidable given developing technology, national markets, and our evolving sense of substantive
justice”).
33. 200 F.R.D. 21 (E.D.N.Y. 2001).
34. Id. at 43.
35. See Kastenmeier & Geyh, supra note 2, at 548 (noting that mass torts have contributed
significantly to the case load of courts and that the problem is aggravated by obstacles to aggregation).
36. 880 F.2d 709 (4th Cir. 1989).
37. Id. at 726.
38. Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
39. Richard A. Nagareda, Aggregation and Its Discontents: Class Settlement Pressure, Class-Wide
Arbitration, and CAFA, 106 COLUM. L. REV. 1872, 1876 (2006).
40. See id. (“The point of moving such classes into federal court is to subject them to a distinctively
federal body of class certification principles, and in so doing, to alter the outcomes of class certification
decisions from what they otherwise would have been—at least in some courts within some state judicial
systems.”); Issacharoff, supra note 4, at 1861 (“[T]he motivation behind [CAFA] was to take multistate
class actions out of the hands of state courts, presumably selected for their amenability to class
certification, and place them in federal courts, perceived as being less welcoming to ‘adventuresome’
aggregated proceedings.”).
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plishes its goal by relying upon the choice of law problem: “CAFA clearly
sought to keep in place the inherited choice of law regime, under the assumption that the spiral of choice of law dictates of the multiple states where the
claims accrue would effectively bar nationwide class actions.”41 Thus, through
CAFA, Congress sought to harness the choice of law problem to deny multistate class certification. As a result, CAFA increases the pressure on federal
dockets without the benefit of offering even a partial solution to the mass tort
crisis.
Aggregation of mass tort claims into multi-state class actions would recognize the national character of alleged harms that result from the mass production
and dissemination of products to anonymous consumers in the national and
global marketplace.42 Furthermore, class actions provide for the equal treatment
of all plaintiffs harmed in a similar fashion, regardless of the state in which each
plaintiff lives.43 These available benefits are reflected in the Advisory Committee notes to Rule 23(b)(3).44 They state that the rule “encompasses those cases
in which a class action would achieve economies of time, effort, and expense,
and promote uniformity of decision as to persons similarly situated.”45 Thus,
Rule 23(b)(3) was drafted to promote efficiency and equity, two interests that
are increasingly undermined by the choice of law problem. In sum, the choice
of law problem, in tandem with the increasingly national and global nature of
our economy, is contributing to a broader crisis in the federal courts that must
be solved in spite of the conflict between federalist and liberal perspectives.
II. FOUR PROPOSALS FOR RESOLVING THE CHOICE OF LAW PROBLEM
Various proposals to facilitate class certification by resolving the mass tort
choice of law problem have been advanced. Some call for judicial action within
the current framework, others call for changing the current framework, and still
others call for federal legislation—either federal choice of law legislation or
federal substantive tort law—to ease the path towards class certification.46
41. Issacharoff, supra note 4, at 1862.
42. See Simon v. Phillip Morris Inc. (Simon II), 200 F.R.D. 21, 44 (E.D.N.Y. 2001); see also
Gottesman, supra note 4, at 2 (suggesting that a “national solution” for multi-state events is necessary).
43. See In re Teletronics Pacing Systems, Inc., 172 F.R.D. 271, 275 (S.D. Ohio 1997) (“[W]e
continue to believe that class action provides the fairest, most efficient and economical means of
dealing with [mass tort and product liability] cases.”); Bird, supra note 4, at 1085 (“[C]ollective
adjudication theoretically is more equitable because it avoids disparate recoveries by injured parties and
inconsistent standards of conduct for tortfeasors, reduces inequalities in bargaining power between
plaintiffs and defendants, and lowers the risk that early claimants will deplete available compensation
funds and cause an inequitable allocation of compensatory and punitive damages.”); Weinstein, supra
note 5, at 145 (“In mass torts, reduction of transactional costs, full protection of the largest number of
those injured, the interest of defendants in stability, and the prompt ending of litigations usually
mandate application of one law in one court.”).
44. FED R. CIV. P. 23(b)(3) advisory committee’s note (1966).
45. Id.
46. See generally Bird, supra note 4, at 1093–94 (calling for federal choice of law legislation);
Gottesman, supra note 4, at 16 (same); Issacharoff, supra note 4, at 1869 (suggesting a need for either
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Though all four methods promote aggregation, they are not equally adept at
doing so. Furthermore, each method is subject to varying degrees of federalist
criticism. Nevertheless, the option of federal tort law offers the most promise
for consolidation and compromise.
A. WORKING WITHIN THE CURRENT FRAMEWORK
Klaxon denies the federal judiciary the power to fashion its own choice of
law rules.47 Federal courts are thus left to rely upon state rules, even if the result
is the application of the laws of more than fifty jurisdictions to a given class
action. Yet, in practice, this impediment may not be as insurmountable as it
appears; predominance and superiority are not always undermined by the
multi-state mass tort. As Professor Larry Kramer has argued:
[T]here will never be fifty different substantive rules, or even fifteen or ten.
States tend to copy their laws from each other, and many use identical or
virtually identical rules. In practice, the court will seldom have to deal with
more than three or four formulations, and the choice will often be between
two alternatives.48
Under Professor Kramer’s “relative uniformity”49 method, once the minor
substantive conflicts have been identified, the court can create subclasses for
claims which are subject to different standards, and careful jury instructions can
mitigate potential juror confusion.50 “Relative uniformity” is possible, despite
minor textual differences between state laws, because the Supreme Court only
requires courts to acknowledge “material” conflicts between state laws.51 Thus,
even class actions presenting a fifty-state choice of law inquiry can be manageable, and can meet the predominance and superiority requirements of Rule
23(b)(3) once the handful of “material” differences have been identified.52
An example of a court applying this method of resolving the choice of law
federal choice of law legislation or federal common law); Kramer, supra note 32, at 583 (discussing the
potential for consolidation within the current framework); Phair, supra note 25, at 846–62 (assessing
the possibility of federal judicial action as well as current judicial solutions to choice of law problems);
Sedler & Twerski, supra note 18, at 106–07 (“In [mega-mass disaster] cases, there is no alternative to
directly federalizing the cause of action and fashioning special rules that will address both the
procedural and substantive law problems which are indigenous to them.”); Weinstein, supra note 5, at
153 (calling for federal legislation).
47. See supra notes 14–17.
48. Kramer, supra note 32, at 583.
49. Phair, supra note 25, at 854.
50. See Kramer, supra note 32, at 584–85; Phair, supra note 25, at 854–56, 862.
51. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 816 (1985); see also Phair, supra note 25, at
858–59.
52. Phair, supra note 25, at 855–56 (explaining how the techniques of grouping and subclassing
“provide a method of organizing legal claims in order to drastically reduce, simplify, and narrow the
number of legal issues at trial, thereby making the prospect of a nationwide class action seem less
overwhelming at the certification stage”).
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problem can be found in In re Teletronics Pacing Systems, Inc.53 In Teletronics,
the district court certified a 23(b)(1)(B) and a 23(b)(3) class of plaintiffs
implanted with the Accufix Atrial “J” Lead pacemaker.54 In arriving at its
decision, the court held that variations in state law on medical monitoring,
negligence, and strict liability were largely immaterial and that sub-classification and proper jury instructions could account for the few material variations.55
This method has been endorsed recently by the Eleventh Circuit.56
Though the “relative uniformity” approach can work within the current legal
framework and would require no new legislation or reversal of Supreme Court
precedent, it is an insufficient and unsatisfactory solution. From a functional
perspective, although this method has been advocated by courts and commentators for the last twenty years,57 it has failed to encourage sufficient consolidation to solve the mass tort dilemma. Furthermore, the effectiveness of the
“relative uniformity” approach is undermined by the recent increase in changes
to statutory tort law among the states.58 In effect, politicization of state tort law
has produced legal changes that, in turn, increase state tort law diversity from a
national perspective. As functional barriers expand, the capacity of “relative
uniformity” to provide a comprehensive resolution to the choice of law problem
becomes more remote.
Additionally, “relative uniformity” remains subject to the discretion of judges
who are increasingly inclined to find choice of law analysis unmanageable.59
This retrenchment began with Judge Richard Posner’s opinion in In re RhonePoulenc Rorer Inc.60 In Rhone-Poulenc, the Seventh Circuit decertified a class,
in part, because the district court had erred in finding that the negligence laws of
53. 172 F.R.D. 271 (S.D. Ohio 1997).
54. Id. at 276–77, 285–86.
55. Id. at 285–94.
56. Klay v. Humana, Inc., 382 F.3d 1241, 1262 (11th Cir. 2004). The court noted that the defendants
failed to argue that there were “material differences among state laws addressing breaches of contract,”
but the court refused to certify the contract claims because individual factual questions predominated.
Id. at 1263, 1267.
57. See, e.g., id. at 1262 (“[I]f the applicable state laws can be sorted into a small number of groups,
each containing materially identical legal standards, then certification of subclasses embracing each of
the dominant legal standards can be appropriate.”); In re Prudential Ins. Co. America Sales Practice
Litigation Agent Actions, 148 F.3d 283 (3d Cir. 1998) (rejecting defendant’s “contention that predominance is defeated because the class claims are subject to the laws of the fifty states” and noting that
“[c]ourts have expressed a willingness to certify nationwide classes on the ground that relatively minor
differences in state law could be overcome at trial by grouping similar state laws together and applying
them as a unit”); In re Sch. Asbestos Litig., 789 F.2d 996, 996 (3d. Cir 1986) (holding that small
variations in the laws of many states were immaterial and that “subclasses could be created to
accommodate [existing] differences”).
58. Weinstein, supra note 5, at 152 (“[R]ecent statutory changes resulting from battles in state
legislatures between defense and plaintiff attorney lobbies have created a substantive law Tower of
Babel. Some classifications of different states into related groups are possible, but the barrier to
complete joint or class action trials is almost insuperable.”).
59. See Gilles, supra note 3, at 387–89.
60. 51 F.3d 1293 (7th Cir. 1995); Gilles, supra note 3, at 385–86 (discussing the significance of
Judge Posner’s opinion in Rhone-Poulenc).
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the fifty states and the District of Columbia were essentially uniform and could
“be abstracted into a single jury instruction.”61 Judge Posner arrived at his
holding by arguing that nuances between state negligence standards were
“important” and “significan[t].”62
This concern for nuance reflects a federalist perspective on the choice of law
debate. The Court in BMW of North America, Inc. v. Gore63 stated that the
federal system provides “a patchwork of rules representing the diverse policy
judgments of lawmakers in 50 states.”64 In this vein, Judge Posner argued that
the composite negligence standard that the district court attempted to apply to
the Rhone-Poulenc class was analogous to federal courts creating federal common law in diversity suits, a method held unconstitutional in Erie.65 Thus, in
practice, judges and commentators can undermine the efficacy of the “relative
uniformity” method simply by arguing that nuance is material and that holding
otherwise subverts the sovereignty of states and their authority to institute their
policies through application of their laws.66
Federal courts are split over the extent to which nuanced differences create
“material” conflicts between state laws.67 This split is ideological as it depends
upon the value federal judges place on subtleties of state law and the extent to
which they are swayed by federalist concerns. In practice, this split, combined
with the increasingly conservative bent of the federal bench, ensures that the
“relative uniformity” method will only remain effective in isolated cases such as
Teletronics. Thus, the “relative uniformity” method is only a stop-gap; it lacks
the power to provide a global solution. A comprehensive answer to the choice of
law problem must be found elsewhere.
B. JUDICIALLY IMPOSED CHANGES TO THE CURRENT FRAMEWORK
A global judicial resolution to the mass tort dilemma would require the
Supreme Court to overrule Klaxon and either create choice of law rules for
federal courts sitting in diversity or allow federal courts to create their own rules
through federal common law.68 Such a change in direction seems especially
justified in light of CAFA: “[t]here is more than a touch of irony in holding fast
61. Rhone-Poulenc, 51 F.3d at 1300.
62. Id. at 1300.
63. 517 U.S. 559 (1996).
64. Id. at 570.
65. Rhone-Poulenc, 51 F.3d at 1300.
66. See Issacharoff, supra note 4, at 1860 (“The willingness of courts to certify class actions in the
face of competing accounts of the compatibility or incompatibility of varying state laws became the
fault line in the battles over class certification.”); see also Phair, supra note 25, at 859 (noting that the
Supreme Court, in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), “did not proffer a methodology for resolving the scope of a material nuance”).
67. See Issacharoff, supra note 4, at 1860 Compare Rhone-Poulenc, 51 F.3d at 1300 (arguing that
state negligence laws cannot be reduced down to one standard) with In re Teletronics Pacing Sys., Inc.,
172 F.R.D. 271, 292–93 (S.D. Ohio 1997) (arguing that state negligence laws, though they vary in
nuance, can be reduced down to one standard because the nuances are not material).
68. See Gottesman, supra note 4, at 20; Kastenmeier & Geyh, supra note 2, at 565.
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to a doctrine [(Klaxon)] honoring state autonomy in the context of a statute
[(CAFA)] that takes away precisely the power of state courts to adjudicate
nationwide class actions.”69 Moreover, by creating the federal choice of law
problem, Klaxon undermines “uniformity and stability”70 because, “[t]o the
extent that goods or services are routinely exchanged on an interstate basis, and
to the extent that the choice of law rules are imprecise, the desired objective of
settling the legal expectations of the parties is compromised.”71 Thus, by
reversing Klaxon and creating room for federal choice of law rules, the Court
could increase both aggregation and stability.
Yet, reversing Klaxon is problematic for several reasons. First, overturning
Klaxon would reintroduce the forum shopping and equity concerns that animated it and Erie, allowing for the “accident” of diversity to once again
determine the applicable choice of law rules and, therefore, the substantive
law.72 In addition, overturning Klaxon is unlikely because it would raise serious
concerns about the horizontal balance of power between the judicial and
legislative branches. As Professor Kramer has argued, choice of law rules are
substantive, not procedural, because they serve to define parties’ rights.73 If
Klaxon is overturned, federal courts (either the Supreme Court or the lower
courts) would have the power to create substantive federal common law to the
detriment of the states’ ability to define the rights of parties based on the states’
own policies.74 “Such a ‘cure’ in the long run would be worse than the
disease—at least, that’s the premise of a system based on a preference for
popular decisionmaking and separation of powers and federalism.”75
If the states’ ability to institute their own policies in the area of mass torts is
to be infringed upon, the legislature, not the judiciary, is the proper branch to
undertake this project.76 A federal intrusion on state sovereignty over choice of
law would mandate the balancing of competing substantive policy interests.
This act of creation is properly conceived of as legislative in nature and,
therefore, should be left to Congress, which is “a negotiating table at which all
fifty states have seats.”77 Therefore, though federalists would object to any
usurpation of state law by federal law, such an intrusion would be more
69. Issacharoff, supra note 4, at 1865.
70. Id. at 1842.
71. Id. at 1847.
72. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (citing Erie R.R. v. Tompkins,
304 U.S. 64, 74–77 (1938)); Gottesman, supra note 4, at 21 (“To reverse Klaxon would be to resurrect,
for choice of law purposes, the regime of inconsistency that had attended pre-Erie jurisprudence.”).
73. Kramer, supra note 32, at 571–72.
74. See id. at 550.
75. Id.
76. Gottesman, supra note 4, at 18 (“[C]hoice between the competing interests of co-ordinate states
is a political function of a high order, which ought not, in a democracy, to be committed to the
judiciary; . . . the Court is not equipped to perform such a function; and . . . the Constitution specifically
confers that function upon Congress.” (quoting BRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICTS OF
LAWS 6, 272 (1963))).
77. Id. at 22.
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legitimate if it were done by elected representatives. The mass tort crisis is an
inherently national problem calling for a comprehensive national solution;
Congress, not the courts, is the appropriate institution to coordinate a comprehensive federal response.
C. FEDERAL CHOICE OF LAW LEGISLATION
Several commentators have argued that Congress should pass a federal
choice of law statute for diversity suits to ensure that the law of only one
jurisdiction will apply to any given suit.78 Recognizing the increasingly national
impact of alleged tort harms and resulting mass tort crisis, these commentators
propose legislative solutions that would enable efficiency and equity gains
through aggregation without the need for federal preemption of state tort law.79
Thus, these proposals attempt to forge a compromise between liberal and
federalist interests by facilitating consolidation while retaining substantive state
tort law. Professor Michael Gottesman is one such commentator. Professor
Gottesman limits his choice of law legislation to subjects that are a “frequent
source of litigation with multi-state implications,”80 thus targeting the sources
of the problem and minimizing infringement upon state sovereignty.81
Professor Gottesman’s proposal recognizes that, with the exception of a state
applying its own choice of law analysis to a multi-state dispute, state courts lack
the authority to regulate interstate disputes, adjudicated in other jurisdictions, in
which their policy interests are implicated.82 In the class action context, this
argument is amplified by the passage of CAFA, which ensures that virtually all
multi-state class actions will be litigated in federal courts.83 Thus, federal choice
of law legislation along the lines advocated by Professor Gottesman represents a
de minimus encroachment upon state sovereignty in the class action context
while facilitating certification of 23(b)(3) classes by eliminating the federal
choice of law problem.
Yet, while federal choice of law legislation would help solve this problem, it
is not an ideal solution. Initially, there remain the same federalist concerns
which press against the “relative uniformity” approach and reversal of Klaxon.
State choice of law rules reflect substantive policy decisions; any federal action
78. See, e.g., Bird, supra note 4, at 1093–94; Gottesman, supra note 4, at 2, 31; Issacharoff, supra
note 4, at 1869; Kastenmeier & Geyh, supra note 2, at 563.
79. See, e.g., Gottesman, supra note 4, at 1–2, 30–31.
80. Id. at 16.
81. Id. at 1, 31–32 (noting that, in his proposal, “[s]tates retain total control over the law that will
govern disputes that are entirely internal to one state. But, when a dispute is not entirely internal, states
do not now have control over the application of their own law . . . . Indeed, it is impossible that two
states with conflicting laws can both retain autonomy in regulating a dispute that implicates both
states.”).
82. See id. at 31–32.
83. See Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified in
scattered sections of 28 U.S.C.); Elizabeth J. Cabraser, The Class Action Counterreformation, 57 STAN.
L. REV. 1475, 1515 (2005); Grabill, supra note 10, at 317–18.
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which impinges upon the states’ ability to enforce their policies (even minimally) lessens the extent of state sovereignty.84
Additionally, federal choice of law legislation would be problematic in
application. In Phillips Petroleum Co. v. Shutts,85 the Supreme Court held that
the constitutional requirements for personal jurisdiction, necessitating “‘significant contact or significant aggregation of contacts’. . .‘creating state interest[]’”
are not altered when applied to nationwide class actions.86 Thus, a federal
choice of law rule selecting the law of a single jurisdiction cannot be constitutionally applied to a nationwide class unless the chosen jurisdiction has sufficient
contacts with the claims of every plaintiff.87 In application, it would be implausible that the claims of all plaintiffs in a nationwide mass tort class will have the
requisite contacts with any state other than the defendant’s state of manufacture.88 As a result, by constitutional necessity, federal choice of law legislation
would be reduced to application of the law of the jurisdiction in which a product
is manufactured.89 Though this solution would add predictability to the choice
of law analysis, it would work to the detriment of plaintiffs because defendants
could try to ensure that hazardous products are manufactured in the most
defendant-friendly jurisdictions.90 Furthermore, this concern raises the specter
of states competing to create defendant-friendly tort regimes in order to attract
manufacturing jobs, resulting in a “race to the bottom” for consumers.91
Finally, aside from these pragmatic concerns, federal choice of law legislation suffers from an internal theoretical inconsistency. Such legislation is advanced as a national solution to a national problem.92 Yet, federal choice of law
legislation would still rely upon state law to govern national disputes.93 Professor Kramer effectively sums up this argument:
84. See Robert A. Sedler, The Complex Litigation Project’s Proposal for Federally-Mandated
Choice of Law in Mass Tort Cases: Another Assault on State Sovereignty, 54 LA. L. REV. 1085, 1110
(1994).
85. 472 U.S. 797 (1985).
86. Id. at 821–22 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 313 (1981)).
87. See Sedler & Twerski, supra note 18, at 101.
88. Id. at 103.
89. Id. Application of the law of defendant’s state of manufacture is precisely the solution advocated
by Professor Samuel Issacharoff. See Issacharoff, supra note 4, at 1869 (“[L]arge-scale economic actors
who deliver products in undifferentiated fashion onto the national market must be held accountable to
some standard of conduct, and if none other is available, it should be the law governing the defendant’s
home state behavior.”).
90. See Sedler & Twerski, supra note 18, at 103–04.
91. See Gottesman, supra note 4, at 35 (raising this concern but ultimately concluding that it will not
happen due to the presence of the consumer rights and plaintiffs’ bar lobbies); Issacharoff, supra note 4,
at 1871 (“There is the risk that home state defendants will urge the passage of consumer unfriendly
laws, turning every state into a variant of Delaware or South Dakota in terms of sheltering favored
industries.”).
92. See Bird, supra note 4, at 1093–94; Gottesman, supra note 4, at 2, 31; Issacharoff, supra note 4,
at 1870 (“[T]he object is to craft a sensible choice of law rule that corresponds to the identified national
scope of the underlying conduct, the jurisdictional predicate for cases brought into federal court under
CAFA.”); Kastenmeier & Geyh, supra note 2, at 563.
93. Sedler & Twerski, supra note 18, at 86–87.
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No one seems to notice the irony of advocating a choice-of-law rule that
selects the law of a single state on the ground that complex litigation is
national in character. I would have thought that the more “national” the case,
the less appropriate it is for any single state’s standard to govern. A federal
standard is one thing; at least the conditions it sets for recovery are chosen by
the national legislature.94
Therefore, as suggested by Professor Kramer, an appropriate national solution
to the choice of law problem could be substantive federal tort law.
D. FEDERAL TORT LAW
One of the stated purposes of CAFA is to “restore the intent of the framers of
the United States Constitution by providing for Federal court consideration of
interstate cases of national importance under diversity jurisdiction.”95 Thus, in
2005, Congress noted the national importance of class action suits, and used the
Commerce Clause to justify altering the class action landscape. Similarly,
Congress has the power under the Commerce Clause to pass substantive federal
tort law to address the interstate effects of mass tort litigation.96
Congress has the power to federalize tort law to provide a national solution to
the choice of law problem. Furthermore, federal tort law is arguably the most
efficient means of solving this problem because it would eliminate both the
need to conduct a choice of law analysis and any resulting manageability
concerns. Yet, despite the recognized need for action and Congress’ ability to
meet this need by federalizing mass tort causes of action, commentators such as
Judge Weinstein and Kenneth Feinberg believe that congressional legislation in
the area of mass tort law is improbable.97 This is likely the case because current
proposals for federal substantive tort law greatly amplify federalist critiques of
other proposed solutions to the choice of law problem.
Traditionally, in our federal system, states have retained the power to establish the legal rules governing private disputes.98 Any intrusion into this traditional area of state sovereignty raises federalist concerns over the vertical
balance of powers.99 Aside from abstract notions of state power vis-à-vis the
federal government, the Supreme Court has noted the importance of states as
94. Kramer, supra note 32, at 578.
95. Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4, 5 (2005).
96. See Gottesman, supra note 4, at 23; Issacharoff, supra note 4, at 1843; Sedler & Twerski, supra
note 18, at 86 (“In certain limited circumstances, Congress may conclude that national interests require
displacement of state law, and that diverse or cumulative imposition of liability in cases with interstate
or international ramifications impose an ‘undue burden’ on interstate commerce.”).
97. See Margaret A. Berger, Civil Litigation in the Twenty-First Century: A Panel Discussion, 59
BROOK. L. REV. 1199, 1205 (1993) (quoting the remarks of Kenneth Feinberg at a panel discussion);
Weinstein, supra note 5, at 148 (calling congressional legislation “appropriate—but unlikely”).
98. Sedler & Twerski, supra note 18, at 83–84 (noting that this power is reflected in the Supreme
Court’s decisions in Erie and Klaxon).
99. See id. at 82–83.
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laboratories of law.100 Under this view, decentralization, through state law, is a
dynamic and progressive force; any federal preemption via centralization (such
as federal tort law) limits the advantages we gain from our two-tiered system.101
In the last decade, two influential decisions by the Seventh Circuit have
forwarded prominently the federalist value of decentralized decision-making:
Rhone-Poulenc and Bridgestone/Firestone. In Rhone-Poulenc, Judge Posner
found that the proposed class action was not superior to other available methods
of adjudication, in part, because of the availability of “a decentralized process
of multiple trials, involving different juries, and different standards of liability,
in different jurisdictions.”102 Judge Posner’s preference for decentralization
weighs directly against federal tort law that seeks to ensure a centralized
process with one trial, one jury, and one standard of liability. Judge Frank
Easterbrook was even more emphatic in Bridgestone/Firestone in advocating
decentralization in the interest of federalism. After citing the above quote from
Rhone-Poulenc, he stated:
[I]t is hard to adopt the central-planner model without violence not only to
Rule 23 but also to principles of federalism. Differences across states may be
costly for courts and litigants alike, but they are a fundamental aspect of our
federal republic and must not be overridden in a quest to clear the queue in
court.103
The federalist preference for decentralization represents an ideological and
practical impediment to federal tort law (as well as other methods for facilitating aggregation of mass tort claims). From this perspective, because all techniques for aggregation involve centralization of dispute resolution at the federal
level, they undermine the advantages gained from state law and diffuse decisionmaking. Furthermore, federal tort legislation, as the most efficient means of
centralizing mass tort class actions, does the most violence to the proper balance
of our legal system.104 Thus, arguments for and against substantive federal tort
law represent the two extremes of the socio-political debate over class certification. On one side are federalist commentators and judges who are primarily
100. John Conyers, Jr., Class Action “Fairness”—A Bad Deal for the States and Consumers, 40
HARV. J. ON LEGIS. 493, 501 & n.52 (2003) (citing New State Ice Co. v. Liebmann, 285 U.S. 262, 311
(1932) (Brandeis, J., dissenting)).
101. See Mark Moller, The Rule of Law Problem: Unconstitutional Class Actions and Options for
Reform, HARV. J. L. & PUB. POL’Y 855, 882–83 (2005).
102. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1299 (7th Cir. 1995).
103. In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002).
104. See generally Conyers, supra note 100, at 501 (“Allowing each state to apply its own law
comports with basic federalism principles and allows the states to serve as laboratories of law, testing
different approaches and comparing the results.”); Gottesman, supra note 4, at 30 (“A principal line of
argument against congressional action is likely to be that it invades state prerogatives in areas that have
traditionally been left to state control . . . . The claim . . . is that Congress has chosen not to exercise
much of the power that it has possessed, . . . that this abstention has represented a deference to the
states, and that torts, particularly, is an area that ought to remain with the states.”).
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motivated by their attachment to the traditional vertical separation of powers,
which leaves control over the creation and application of tort law in the hands
of state courts and legislatures and ensures the decentralization of the judicial
system.105 On the other side are those who recognize the national scope of these
cases, the burden individual suits impose upon courts and litigants, and argue
that justice (in the form of efficiency and equity) now requires an effective
means to consolidate national mass tort claims.106 Thus, it appears as though
federal legislation will not be forthcoming because the social-political divide
between the two sides undermines the possibility for compromise without
which Congress will not act.107
Yet, despite this gulf, room for compromise can be created through federal
tort legislation structured to promote aggregation while addressing a preference
for state law and decentralization. To find middle ground, it is necessary to
investigate further the nature of federalist arguments for decentralization.
III. THE RELATIONSHIP BETWEEN MATURITY AND THE CHOICE OF LAW PROBLEM
As discussed in Parts I and II above, corporate defendants and federalists
favor decentralization over centralized aggregation of mass tort claims. In the
case of corporate defendants, it is relatively simple to identify their motivation:
the aggregation of claims tilts the balance of power towards plaintiffs and
increases the likelihood that defendants will be subject to large damage awards.108
In the case of jurists, the reasons behind their preference for decentralization,
beyond a simple respect for the place of state law in the federal system, are less
obvious. Yet, by analyzing court opinions, it becomes clear that “judicial
empathy for the complaint of corporate defendants that large class actions
present a great deal of pressure to settle cases” motivates their preference for
decentralization.109 A more positive interpretation of this preference for “market
models” over centralization is the belief that decentralization “produces more
information, more accurate prices, and a vibrant, growing economy.”110 Thus,
jurists favoring the federalist position argue that decentralization is a better
method for collecting accurate information and, therefore, ultimately produces
more efficient and equitable results for litigants.111
105. See, e.g., Bridgestone/Firestone, 288 F.3d at 1020 (“When courts think of efficiency, they
should think of market models rather than central-planning models.”).
106. See, e.g., Shapiro, supra note 19, at 934.
107. See Gottesman, supra note 4, at 35 (“Congress’s failure to this date to enact a substantive
products liability bill helpful to manufacturers is at least in part a result of the heavy counter-lobbying
by consumer groups and the plaintiffs’ torts bar.”).
108. See Simon v. Philip Morris Inc. (Simon I), 124 F. Supp. 2d. 46, 77–78 (E.D.N.Y. 2000); Gilles,
supra note 3, at 389–90.
109. Gilles, supra note 3, at 389.
110. Bridgestone/Firestone, 288 F.3d at 1020.
111. Id. (“[O]nly ‘a decentralized process of multiple trials, involving different juries, and different
standards of liability, in different jurisdictions’ will yield the information needed for accurate evaluation
of mass tort claims.” (quoting In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1299 (7th Cir. 1995)).
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It follows that a key fear motivating advocates for decentralization is the
centralized treatment of immature torts.112 The concept of immaturity and
maturity assumes that mass torts evolve through different stages, and “that
different judicial strategies should be used at different stages of the life cycle.”113
“Immature” tort litigation can be defined in opposition to “mature” litigation,
which refers to situations where:
[T]here has been full and complete discovery, multiple jury verdicts, and a
persistent vitality in the plaintiffs’ contentions. Typically at the mature stage,
little or no new evidence will be developed, significant appellate review of
any novel legal issues has been concluded, and at least one full cycle of trial
strategies has been exhausted.114
The main concern with certifying national class actions for immature mass
torts is the fear that doing so may place corporate defendants in the position of
risking millions of dollars and potential bankruptcy in a single “all-or-nothing”
class action lawsuit decided by one judge and one jury in one courtroom.115
Thus, immature certification could force defendants into “blackmail settlements,”116 regardless of the strength of the plaintiffs’ claims, because defendants would rather settle than subject themselves to an unlikely but potentially
disastrous loss at trial.117
Rhone-Poulenc, decided in 1995, “was the first published opinion to identify
settlement pressure on defendants as a legitimate basis for denying a motion for
class certification.”118 In his opinion, Judge Posner expressed “concern with
forcing these defendants to stake their companies on the outcome of a single
jury trial, or be forced by fear of the risk of bankruptcy to settle even if they
have no legal liability . . . .”119 Judge Posner’s concern for decentralization
served to relieve the defendants of what he perceived to be unreasonable
settlement pressure.120
The Rhone-Poulenc decision was followed, in 1996, by Judge Jerry Smith’s
decision in Castano v. American Tobacco Co.,121 the first opinion to mention
112. See, e.g., id.; Rhone-Poulenc, 51 F.3d at 1298–1300.
113. Francis E. McGovern, An Analysis of Mass Torts for Judges, 73 TEX. L. REV. 1821, 1841
(1995).
114. Francis E. McGovern, Resolving Mature Mass Tort Litigation, 69 B.U. L. REV. 659, 659 (1989).
115. See Castano v. Am. Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996); Rhone-Poulenc, 51 F.3d at
1299–1300; Silver, supra note 29, at 1357–58.
116. Rhone-Poulenc, 51 F.3d at 1298 (citing HENRY J. FRIENDLY, FEDERAL JURISDICTION: A GENERAL
VIEW 120 (1973)). The term “blackmail settlements” was originally coined by Judge Henry Friendly.
See Silver, supra note 29, at 1357 & n.1.
117. See Rhone-Poulenc, 51 F.3d at 1298.
118. Allan Kanner & Tibor Nagy, Exploding the Blackmail Myth: A New Perspective on Class
Action Settlements, 57 BAYLOR L. REV. 681, 686 (2005).
119. Rhone-Poulenc, 51 F.3d at 1299.
120. See id.
121. 84 F.3d 734 (5th Cir. 1996).
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immaturity as a sufficient basis for finding a lack of predominance (the court
cannot yet know whether questions of law or fact common to the class will
predominate) and superiority (it cannot yet be determined whether the class
action is superior to other available methods of adjudication).122 After recognizing the potential for “judicial blackmail,” Judge Smith went on to state that
“[f]airness may demand that mass torts with few prior verdicts or judgments be
litigated first in smaller units . . . until general causation, typical injuries, and
levels of damages become established.”123 The Castano decision, building upon
Rhone-Poulenc, created a presumption against certifying immature torts124 that
has influenced the 23(b)(3) analysis of several federal courts over the last
decade.125
In addition to the above mentioned general antipathy towards aggregation of
immature claims, scientific immaturity is a specific concern relating to toxic tort
and products liability claims.126 The fear is that scientific evidence in immature
tort suits may be unreliable because the judicial system and science do not share
the same timeline for resolving disputes.127 Toxic tort and products’ liability
suits are sometimes brought before expensive, time-consuming epidemiological
studies can be conducted.128 Thus, scientific knowledge of general and specific
causation may remain uncertain despite a legal timeframe which demands an
immediate verdict.129
The primary example of scientific immaturity creating a “blackmail settlement” is the case of Dow Corning.130 In 1994, Dow Corning entered into a $4.2
billion settlement with a plaintiff class alleging that its breast implants caused
connective tissue disease.131 This settlement subsequently collapsed, and Dow
Corning entered bankruptcy because more claims were filed than could be
accommodated by the $4.2 billion settlement fund.132 Yet, by 1996, “an exhaustive survey of the epidemiological literature definitively concluded that silicone
implants presented no large increase in the risk of developing connective tissue
122. Castano, 84 F.3d at 747; Young K. Lee, Beyond Gatekeeping: Class Certification, Judicial
Oversight, and the Promotion of Scientific Research in “Immature” Pharmaceutical Torts, 105 COLUM.
L. REV. 1905, 1924 (2005).
123. Castano, 84 F.3d at 746, 748.
124. Thomas E. Willging, Beyond Maturity: Mass Tort Case Management in the Manual for
Complex Litigation, 148 U. PA. L. REV. 2225, 2235 (2000); see also Ruiz v. Am. Tobacco Co., 180
F.R.D. 194, 198 (D. P. R. 1998) (citing Castano for the proposition that a “determinative element of
superiority. . .is the maturity of the tort”). But see Klay v. Humana, Inc., 382 F.3d 1241, 1272 (11th Cir.
2004) (finding the “‘maturity’ of a tort to be a[n] [im]proper consideration in the certification
decision”).
125. Lee, supra note 122, at 1924.
126. See Edward K. Cheng, Changing Scientific Evidence, 88 MINN. L. REV. 315, 320–21 (2003);
Davis, supra note 32, at 206.
127. Cheng, supra note 126, at 329.
128. Id. at 321.
129. Id. at 320–21.
130. See Davis, supra note 32, at 187.
131. Cheng, supra note 126, at 316–17.
132. Davis, supra note 32, at 187.
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disease.”133 The dramatic downfall of Dow Corning, precipitated by immature
scientific evidence, focused increased scrutiny on the class action mechanism
and may have triggered a more general concern for maturity.134
Concerns over immature suits reinforce the perception that decentralization
provides critical protection against “blackmail settlements” because, through
multiple cases, courts and litigants are “able to develop both expertise and
experience in determining whether the defendant is liable and, if so, how to
arrive at the appropriate measure of damages or other relief.”135 Therefore, if
only mass torts that remain viable through the crucible of individual suits in
state and federal courts are certified, defendants would not be pressured to settle
because the factual record would stabilize, the value of claims as determined by
juries would become more predictable, and, as a result, the information necessary for an equitable and efficient trial or settlement would be present.136 By
limiting aggregation to mature mass torts, defendants could find global peace
without the fear of incurring immense liability upon questionable science and
novel legal theories.137 Thus, if the maturity concern is warranted, decentralization is important when a tort is in the immature stages of its evolution, but
centralization is called for at the mature stage to promote an efficient, comprehensive resolution.138 Yet, current methods of aggregating mature torts remain
deficient and these shortcomings contribute to the mass tort crisis.139
It should be noted at this point that some courts and scholars dispute the
accuracy of the “blackmail” charge and the propriety of importing any maturity
requirement into the 23(b)(3) analysis.140 Undermining the “blackmail settlement” theory, studies have shown that class actions and conventional lawsuits
share similarly high settlement rates so that “class actions do not seem exceptionally coercive.”141 Additionally, a federal court has argued that economic factors
such as the potential for judicial blackmail should not influence the 23(b)(3)
analysis.142 Finally, the Eleventh Circuit has held that maturity is not a legitimate consideration in 23(b)(3) certification analysis.143 Yet, despite these arguments, there is a persistent and growing trend in the federal judiciary to consider
133. Cheng, supra note 126, at 317.
134. See Davis, supra note 32, at 187–88.
135. Shapiro, supra note 19, at 935.
136. See In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002) (stating that
decentralization “will yield the information needed for accurate evaluation of mass tort claims”).
137. See McGovern, supra note 113, at 1843.
138. See id. at 1844.
139. See McGovern, supra note 114, at 688–90. See generally McGovern, supra note 113, at 1842
(noting that a more “activist” approach to mature mass torts “may help alleviate many of the pressures
that mass torts place on the judicial system”).
140. See, e.g., Klay v. Humana, Inc., 382 F.3d 1241, 1272 (11th Cir. 2004); In re Teletronics Pacing
Sys., Inc., 172 F.R.D. 271, 275–76 (S.D. Ohio 1997); Silver, supra note 29, at 1402.
141. Silver, supra note 29, at 1402.
142. See Teletronics, 172 F.R.D. at 275–76.
143. Klay, 382 F.3d at 1272.
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maturity as a factor in denying certification of mass tort class actions.144 As a
result, proponents of aggregation should not confine their efforts to undermining
allegations of class action “blackmail,” but should also seek to find some
common ground in the interim to promote the aggregated treatment of similar
claims to the extent currently possible.
At this stage in our analysis, we are prepared to identify the illusive middle
ground that currently exists. To this point, we have found that: (1) substantive
federal tort law is the most efficient and appropriate means of overcoming the
choice of law problem; (2) opponents of federal tort law favor decentralization
and application of state law (as a form of state sovereignty in the federal
system); (3) a major argument for decentralization derives, in part, from a fear
that the centralized treatment of immature torts will result in “blackmail settlements”; (4) mature mass torts do not pose similar concerns; and (5) there are
still obstacles to the aggregation of mature mass torts, such as the choice of law
problem, which contribute to the mass tort crisis. In light of these facts, any
potential compromise will require liberal proponents of aggregation to limit the
discussion to mature mass torts and will require federalist proponents of decentralization and state law to forgo their concerns relating to the consolidated
treatment of mature, multi-state mass torts under federal law.
IV. TOWARDS A COMPROMISE SOLUTION: FEDERAL MATURE TORT LEGISLATION
Arguments against federal tort legislation, the most efficient means of facilitating national class actions, rely upon the value of state law to the federal system
and the virtues of decentralized decision-making in reducing the blackmail
effects of immature torts. To forge a compromise, federal tort legislation should
address and accommodate these federalist concerns. Such legislation should
include a maturity requirement as the means by which decentralization and the
application of state law can be protected in the early stages of a mass tort’s
evolution. If successful, this proposal could bridge the current political divide
and provide a partial, though important, solution to the choice of law problem
lying at the heart of the mass tort crisis. Because draft legislation would require
careful selection of the elements of tort liability and available damages,145
topics well beyond the scope of this paper, I have not created a comprehensive
draft but, rather, will proceed to sketch the contours of legislation by which
national mature mass torts can be aggregated in federal class actions.
Initially, to minimize the preemptive effect on state law, my proposal only
calls for federal tort law for class treatment of sufficiently national mass torts.
The legislation would apply when claims that are sufficiently multi-state in
scope are presented for class treatment under Rule 23. Indeed, through CAFA,
144. See Krebs, supra note 28, at 674; Lee, supra note 122, at 1923–24.
145. See Issacharoff, supra note 4, at 1859 (“In many areas of law . . . the differences in state law are
relatively inconsequential. In other areas, such as standards of liability in tort, or the availability of
punitive or exemplary damages, the differences could be more substantial.”).
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Congress has already identified “a discrete set of cases” in which there are
“national market implications” sufficient to justify removal from state to federal
courts.146 This solution has the advantage of directly addressing the choice of
law problem, while minimizing encroachment upon state tort law which, in part,
animates federalist concerns.147
This aspect of the proposal could be criticized by those who believe that the
rights of plaintiffs and defendants should not be altered simply due to the fact
that claims have been aggregated.148 Specifically, corporations favoring stable
expectations could argue that “parties cannot meaningfully exercise their autonomy unless they can apprehend what the law requires of them.”149 Yet,
though such reasoning is effective in criticizing the practice of ignoring nuances
between state laws, it should not concern advocates of targeted federal tort
legislation. Under the proposed regime, prospective defendants who manufacture products that are distributed to a multi-state market (as already defined by
CAFA) are on notice that their rights are defined, in part, by the federal mass
tort law. This addresses the concern that litigants retain the ability to arrange
their affairs according to an intelligible principle that can be consistently
applied.150
As to specifics, there are two main forms of federal national mass tort
legislation that promote both aggregation and decentralization: 1) legislation
that would provide “bellwether” trials for decentralized decision-making and
stays to promote scientific maturity,151 and 2) legislation that only applies if a
tort has reached a requisite level of maturity. These two proposals will be
discussed in turn with a focus on their ability to aggregate while taking into
account federalist concerns over respect for state law and decentralization (thus,
the degree to which they might generate consensus across the political spectrum).
A. LEGISLATION PROVIDING FOR BELLWETHER TRIALS AND SCIENTIFIC STAYS
One potential legislative proposal would mandate bellwether trials and stays
146. Id. at 1866 (“The cases that CAFA sends to federal court . . . constitute a discrete set of cases in
which Congress has determined that their national market implications deserve particularized treatment.”); see also Pub. L. No. 109-2, 119 Stat. 4, § 4(a) (2005) (broadening federal diversity jurisdiction
over multi-state class actions in sections 4(a)(2) through 4(a)(10) and noting, in section 4(a)(11), that “a
mass action shall be deemed to be a class action removable under paragraphs (2) through (10) if it
otherwise meets the provisions of those paragraphs”).
147. See Gottesman, supra note 4, at 16, 31–32.
148. Scott Fruehwald, Individual Justice in Mass Tort Litigation: Judge Jack B. Weinstein on Choice
of Law in Mass Tort Cases, 31 HOFSTRA L. REV. 323, 345–46 (2002); Kramer, supra note 32, at 572.
149. Moller, supra note 101, at 857.
150. See id.
151. The first proposal is derived from the Fifth Circuit’s opinion in In re Chevron U.S.A., Inc., 109
F.3d 1016, 1019–21 (5th Cir. 1997) and several articles. See Cheng, supra note 126, at 340 (suggesting
courts “stay proceedings until the body of scientific evidence became more substantial and stable”);
Shapiro, supra note 19, at 935–36 (arguing “certification of a ‘mass tort’. . . should be limited to
‘mature’ torts”). The second proposal is an original creation of the author.
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for scientific maturity in order to promote decentralized decision-making and
ensure the requisite level of scientific maturity.152 Bellwether trials in a class
action context involve identifying claims that are statistically representative of
the class, trying those claims individually before separate juries, and using the
resulting verdicts to provide information on the value of claims so as to
facilitate a global resolution.153 A legislative proposal based on bellwether trials
could allow district courts to provisionally certify an immature class action,
conduct bellwether trials to develop the evidentiary record and provide diversified decision-making by several juries, and, if class treatment remains viable
through this maturing process, certify the class as a whole to facilitate settlement or a final disposition of the claims.154 Furthermore, to ensure the reliability of underlying scientific claims, either party could move for a “stay for
scientific maturity.”155 Through this mechanism, the statute of limitations could
toll once provisional certification is granted to ensure that all potential plaintiffs
have access to an equitable resolution.156 Thus, the potential benefits from such
legislation would derive not only from the ability to aggregate and diversify the
decision-making process but also from the central management of the tort’s
maturing process by a single district court which can delay trials until the
science is mature while ensuring that valid claims do not lose their viability
during the maturation process.
Yet, the availability of these additional benefits betrays the problem behind
the bellwether approach. It is a highly federalized and centralized approach and,
therefore, it is unlikely to facilitate compromise. An immature tort would be
placed in the hands of a single district court judge to be developed in line with
the newly-created federal national mass tort law. Thus, state law would no
longer play an important role (or any role) in developing national mass torts.
Additionally, though multiple trials would ensure a larger jury pool, the inherent
centralization of the process in a single courthouse, under a uniform procedure,
would surely raise cries of blackmail. In essence, the bellwether approach
would likely be viewed from the federalist perspective as a superficial attempt
to provide decentralization and scientific reliability; an attempt that fails to
adequately address the fundamental concern for decentralization and respect for
state tort law.
B. LEGISLATION MANDATING A REQUISITE LEVEL OF MATURITY
Federal mass tort legislation requiring a requisite level of maturity is the most
promising proposal for creating a compromise solution to the mass tort crisis.
Essentially, this legislation would not federalize tort claims until a sufficient
152.
153.
154.
155.
156.
See Cheng, supra note 126, at 340; Shapiro, supra note 19, at 935–36.
See Chevron, 109 F.3d at 1019–20.
See id.
Cheng, supra note 126, at 340.
See id. at 341, Shapiro, supra note 19, at 935–36.
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number of similar state law claims had wound their way through state or federal
courts so both the viability of claims and the soundness of the factual record
(including any scientific evidence) had been established. Thus, a maturity
requirement would mitigate against “blackmail settlements” and accommodate
an equitable global resolution to mature mass torts.157 Though less streamlined
than the bellwether approach, this proposal ensures both the continued application of state law to immature mass torts and decentralized decision-making by
multiple judges and juries in multiple jurisdictions.
The most difficult aspect of creating this legislation would involve creating a
definition of “maturity” that could be consistently applied. Yet, this hurdle
should not serve as a deterrent. Initially, there is a debate within the federal
judiciary concerning whether maturity is an appropriate consideration in the
certification decision under Rule 23158 because a maturity factor does not
appear in the rule’s text.159 As a result, courts adopting maturity as a legitimate
consideration can only look to precedent for direction on how to define “mature.” Thus, federal tort legislation that definitively included a maturity requirement and gave some guidance as to its definition would create more stability
than exists in the current framework. Moreover, a legislative definition of
“mature” could be refined through statutory interpretation and clarified or
improved through amendment. Thus, providing a definite definition of “mature”
would improve clarity, coherence, and stability in the law governing multi-state
class actions.
A related concern is that institutionalizing any particular maturity requirement would provide defendants an opportunity to gain an advantage by offering
generous settlements to strong cases while aggressively defending weak cases.160
This tactic could rig the trial record to undermine the vitality of plaintiffs’
claims and therefore their “maturity.”161 Yet, once again, this problem need not
157. See McGovern, supra note 113, at 1843; Shapiro, supra note 19, at 935–36.
158. Compare Castano v. Am. Tobacco Co., 84 F.3d 734, 747 (5th Cir. 1996) (“[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 predominance and superiority analysis 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.”), and Ruiz v. Am. Tobacco Co., 180 F.R.D. 194, 198 (D.P.R.
1998) (citing Castano for the proposition that “maturity” is one of the three criteria that impacts the
superiority determination under Rule 23(b)(3)), with Klay v. Humana, Inc., 382 F.3d 1241, 1272 (11th
Cir. 2004) (finding the “‘maturity’ of a tort to be a[n] [im]proper consideration in the certification
decision”).
159. See FED. R. CIV. P. 23(b)(3). In 1996, a proposed amendment to Rule 23(b)(3), which would
have added “maturity” as a consideration in the predominance and superiority analysis, failed to pass.
Proposed Rules, 167 F.R.D. 523, 559 (1996); Peter A. Drucker, Class Certification and Mass Torts: Are
“Immature” Mass Tort Claims Appropriate for Class Action Treatment?, 29 SETON HALL L. REV. 213
(1998) (describing the proposed amendment and noting that “the Standing Committee on Rules of
Practice and Procedure (Rules Committee) put this . . . amendment on hold indefinitely[]”).
160. See Silver, supra note 29, at 1378–79 (“By settling good cases for large amounts and defending
bad ones aggressively, defendants can manipulate the trial record to their advantage and drive down
settlement values in pending cases.”).
161. Id.
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derail the entire enterprise. To begin with, the problem already exists in the
current framework because a court analyzing a tort’s prior record can fail to
account for settlements, thereby undervaluing the tort’s viability or maturity.162
Moreover, by permitting review of the settlement record as well as the trial
record when maturity is evaluated, this legislation could help federal courts
acquire a more accurate understanding of the evolutionary stage of the tort in
question and of the viability of plaintiffs’ claims.163
Finally, legislation with a maturity requirement seemingly faces a greater
statute of limitations hurdle than the bellwether proposal because of the increase
in decentralization (as no one district court would be in charge of the maturing
process).164 Yet, the solution to this problem could be identical; a single district
court could provisionally certify a national mass tort class action, thereby
tolling the statute of limitations, upon the condition that the tort mature within a
specified window of time. This would give plaintiffs’ counsel an incentive to
litigate individual claims and develop the scientific record to ensure maturity
while not indefinitely tolling the statute of limitations to the detriment of
defendants.
In sum, federal tort law for mature, national mass torts is a compromise
solution to the choice of law problem that is currently available. This solution
allows a minimal intrusion on state law by only federalizing claims that are
multi-state in scope and, therefore, particularly suited to a federal cause of
action. Further, this solution provides for actual decentralization in a geographic
and temporal sense. Thus, the federalist concerns which animate opposition to
choice of law solutions are largely addressed and appeased. Finally, such
legislation would pose no significant problems not already present in the current
framework—rather, it would actually serve to provide greater clarity, coherence,
stability, and equity.
CONCLUSION
The choice of law problem lies at the heart of the current mass tort crisis. The
most appropriate and efficient solution to the problem is federal tort law.
Federalist objections to this solution are founded on a preference for decentralization and a respect for the importance of state tort law in the federal system.
These concerns are gaining adherents on the federal bench and making mass
tort class certification increasingly difficult, thereby leaving liberal concerns
with efficiency and equity unanswered. Yet, by highlighting the relationship
162. See, e.g., id. at 1378–80 (arguing that Judge Posner undervalued plaintiffs’ claims in RhonePoulenc because he failed to take into account settlement values in addition to the tort’s one win,
twelve loss record in court).
163. Id. at 1378 (“The desirability of reviewing settlements increases when one considers that tried
cases are unlikely to be representative of the larger universe of disputes. Settlement negotiations have a
sorting effect, as parties resolve those cases upon which they agree and jockey over the order in which
the remainder will be adjudicated.”).
164. See Cheng, supra note 126, at 341.
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between choice of law and maturity, created by common concerns over decentralization, a compromise solution to the choice of law problem—one that promotes
the advantages of aggregation while addressing federalist concerns—becomes
available. The most successful proposal in striking this balance is federal tort
legislation structured to apply only to sufficiently national and mature mass
torts. Though both sides of the debate would find this proposal less than ideal
from their respective vantage points, it locates the common ground currently
available and, therefore, presents a viable, though limited, solution to the mass
tort crisis.