Life After Amchem: The Class Struggle Continues, page 16

Life After Amchem (continued)

Page 16

It was a California court, one hundred years ago, which noted the equitable heritage of California's class action statute and employed it to resolve a most difficult problem, exclaiming: "Indeed, equity fears no difficulty."⁵⁹ Likewise, equity should not allow, in this presumably more advanced age, the theoretical existence of "nuances" of multiple states' laws to preclude the unitary adjudication of common issues of fact, when in fact a review of those states' laws, as implemented by those states' courts, reveals virtually identical jury instructions.⁶⁰ Equity simply requires courage.

This courage exists today in the federal as well as in the state courts. Amchem, properly interpreted, should empower more federal judges to act on the courage that should accompany life tenure. That courage is fully supported by the equitable heritage of the class action and the judges' power to invoke it. This courage must be employed in the personal injury arena, as well as in cases of financial or non-injury consumer fraud and product defect. The need is just as strong, the inequality between the individual plaintiffs and the corporate defendant is just as daunting, and the potential for injustice is even more pronounced. Every court should be free to be persuaded, as was Judge Brimmer in In re Copley Pharmaceutical, Inc.,⁶¹ to refuse to decertify a nationwide tort claimant class despite an appellate ruling in Rhone-Poulenc.⁶² Judge Brimmer, consciously or not, echoed the words of the California Supreme Court in Vasquez,⁶³ and of Supreme Court Justices Douglas, Brennan, and Marshall in Eisen,⁶⁴ and presaged the language of Amchem by stating:

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NOTES

⁵⁹ Wheelock v. First Presbyterian Church, 119 Cal. 477, 484, 51 P. 841, 844 (1897) (imposing equitable resolution of dispute among warring seceding factions of Presbyterian church); see also Smith v. Swormstedt, 57 U.S. (16 How.) 288, 302 (1853) ("The rule is well established, that where the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of the others . . . .").

⁶⁰ The "nuance," a fundamental particle of academic legal writing even smaller and more elusive than its physics counterpart, the neutrino, is not detectable at the jury instruction level, at which the law is applied by finders of fact to reach a just result. Product liability jury instructions fully compatible with the laws of all states fill a single slim volume. See RONALD W. EADES, JURY INSTRUCTIONS ON PRODUCTS LIABILITY (2d ed. 1993). Courts, like the Alabama state court in Ex parte Masonite Corp., 681 So. 2d 1068 (Ala. 1996), that have actually reviewed nationwide surveys of pattern jury instructions and directed the litigants to provide specific instructions for use in the liability and damages phases of multistage class actions, have sustained the class status of such cases, concluding that juries may be properly and thoroughly instructed on the operative law of all states.
Fortunately, there is appellate as well as trial-level case law that affirms the feasibility of such classwide trials. See, e.g., In re School Asbestos Litig., 789 F.2d 996 (3d Cir.), cert. denied, 479 U.S. 852 (1986). Most recently, Judge Spiegel of the Southern District of Ohio recertified a nationwide product liability/personal injury class, through the utilization of subclasses based upon a structural analysis of the commonalities and distinctions among the laws of the states on strict product liability and negligence. The case is set for classwide trial on common issues in late 1997. See In re Telectronics Pacing Sys., Inc., 172 F.R.D. 271 (S.D. Ohio 1997), appeal dismissed sua sponte and mandamus denied (6th Cir., June 11, 1997).

⁶¹ 161 F.R.D. 446 (D. Wyo. 1995).

⁶² 51 F.3d 1293 (7th Cir. 1995).

⁶³ 4 Cal. 3d 800, 484 P.2d 964, 94 Cal. Rptr. 796 (1971).

⁶⁴ Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). In a partially dissenting opinion issued the same year as Vasquez, Justice Douglas, joined by Justices Brennan and Marshall stated:

I think in our society that is growing in complexity there are bound to be innumerable people in common disasters, calamities, or ventures who would go begging for justice without the class action but who could with all regard to due process be protected by it . . . . The class action is one of the few legal remedies the small claimant has against those who command the status quo. I would strengthen his hand with a view of creating a system of law that dispenses justice to the lowly as well as to those liberally endowed with power and wealth.

Id. at 185-86 (Douglas, J., dissenting in part).