Use and Misuse of Expert Opinions at the Class ... - King & Spalding

Page 286 DEFENSE COUNSEL JOURNAL—July 2002
four factors, the district court directs its inquiry
into the propriety of the class under
one of the subsections of Rule 23(b). 3
In the usual case, plaintiffs will attempt
to proceed under either Rule 23(b)(2) if
they seek injunctive and declaratory relief,
or Rule 23(b)(3) if they seek monetary
damages. Sometimes both are employed.
While there is some overlap between the
elements of Rule 23(a) and (b)(3), the
plaintiff must meet the heavy burden under
Rule 23(b)(3) of showing that the class
action is the “superior” means of adjudicating
the dispute and that common issues of
law and fact “predominate” over individual
issues.
B. Used to Establish that Variations in
State Laws Does Not Create
Manageability Problems
In putative nationwide class actions,
variations in state law often prevent a federal
district court from finding the action
manageable, which results in a denial of
class certification. 4 The U.S. Supreme
Court has cautioned that a district court
“may not take a transaction with little or no
relationship to the forum and apply the law
of the forum in order to satisfy the procedural
requirements that there be a common
question of law.” 5
Often, courts find that any variations
among state laws defeat the predominance
of common legal issues and render a
23(b)(3) multistate class action unmanageable.
6 Defendants regularly defeat class
certification on a showing that divergent
state laws present “insuperable obstacles”
because the federal district court would be
required to apply different states’ laws to
the claims of class members and to instruct
jurors so that they will know which laws
apply to which claims. 7 As a result, plaintiffs
have employed experts to opine that
the variation among the laws of some 50
jurisdictions fail to predominate over
common legal issues, therefore making the
legal differences manageable—or even
non-existent. 8
For example, in In re Bridgestone/
Firestone Inc. Tires Products Liability Litigation
in the U.S. District Court for the
Southern District of Indiana, plaintiffs’ experts
opined that the divergent laws of the
states did not impinge on the manageability
of the class action. 9 In this class action,
customers brought a nationwide class action
alleging that tires on sport utility vehicles
were defectively designed or manufactured.
The named plaintiffs were
residents of 27 different states, and they
sought to represent two classes: (1) the
“tire class,” persons and entities in the
United States who own or lease or had
owned or leased vehicles that are or were
equipped with certain Firestone-brand
tires; and (2) the “Explorer diminution
class,” those who own or lease or had
3. Amchem Prods. v. Windsor, 521 U.S. 591,
613-14 (1997).
4. See, e.g., Castano, 84 F.3d 734.
5. Phillips Petroleum Co. v. Shutts, 472 U.S. 797,
821-23 (1985).
6. See, e.g., Amchem, 521 U.S. at 624; Zinser v.
Accufix Research Inst. Inc., 253 F.3d 1180, 1189
(9th Cir. 2001) (differences in state law compound
disparities among class members from different
states), opinion amended, 273 F.3d 1266 (9th Cir.
2001); In re Ford Motor Co. Ignition Switch Prods.
Liab. Litig., 194 F.R.D. 484, 490 (D. N.J. 2000);
Castano, 84 F.3d at 741.
7. See In re Sch. Asbestos Litig., 789 F.2d 996,
1010 (3d Cir. 1986), cert. denied, 479 U.S. 852
(1986) (granting conditional certification in spite of
state law variations, while noting the problem of
manageability); In re Gen. Motors Corp. Pick-Up
Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768,
815 (3d Cir. 1995), cert. denied, 516 U.S. 824
(1995) (overturning nationwide class settlement but
noting that courts have certified nationwide class actions
relying on capacity for court to decertify or
redefine class subsequently if case becomes unmanageable).
These cases, however, are the exception
rather than the norm. Courts overwhelmingly reject
any assurances by counsel that problems with predominance
or superiority caused by the application
of various state laws could simply be overcome. Ignition
Switch, 174 F.R.D. at 350; Castano, 84 F.3d at
742. Accord Andrews v. Am. Tel. & Tel. Co., 95
F.3d 1014, 1023 (11th Cir. 1996).
8. Joel S. Feldman et al., Expert Witnesses in Insurance
Class Actions and Individual Cases—Defense
Perspective, 80 A.L.I. 249, 271 (2000).
9. 155 F.Supp.2d 1069 (S.D. Ind. 2001) (granting
in part and denying in part defendants’ motion to
dismiss). In a separate order and opinion the same
day, the court ruled that the plaintiffs’ state-lawbased
claims seeking a judicial recall of tires were
pre-empted by the Motor Vehicle Safety Act, 49
U.S.C. § 30101 et seq. 153 F.Supp.2d 935.