98-0452 La.App. 4 Cir. 11/4/98, Scott v. American Tobacco Co.

• Decision Date: 04 November 1998
• Citation: 725 So.2d 10
• Parties: 98-0452 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 10

725 So.2d 10

98-0452 La.App. 4 Cir. 11/4/98

Gloria SCOTT and Deania M. Jackson, et al. v. The AMERICAN TOBACCO COMPANY, et al.

No. 98-CA-0452

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 4, 1998.

Rehearing Denied March 1, 1999.

Robert L. Redfearn, Simon, Peragine, Smith & Redfearn, New Orleans, Louisiana, and Wendell H. Gauthier, Gauthier, Downing, LaBarre, Beiser & Dean, Metairie, Louisiana, and Stephen B. Murray, Murray Law Firm, New Orleans, Louisiana, and Walter J. Leger, Jr., Leger & Mestayer, New Orleans, Louisiana, Attorneys for the Plaintiffs/Appellees.

Phillip A. Wittmann, Stephen H. Kupperman, Stone, Pigman, Walther, Wittmann &amp Hutchinson, New Orleans, Louisiana, and Jerome R. Doak, Margaret I. Lyle, Jones, Day, Reavis & Pogue, Dallas, Texas, and Scott F. Delacroix, Charles F. Gay, Jr., Deborah B. Rouen, Adams and Reese, L.L.P., New Orleans, Louisiana, and Gary R. Long, James P. Muehlberger, Jennifer L. Brown, Shook, Hardy & Bacon, L.L.P., Kansas City, Missouri, and Steven W. Copley, John M. McCollam, Gordon, Arata, McCollam & Duplantis, L.L.P., New Orleans, Louisiana, and Charles W. Schmidt, III, C. Edgar Cloutier, III, Christovich & Kearney, L.L.P., New Orleans, Louisiana, and Charles L. Chassaignac, Carmelite M. Bertaut, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, Louisiana, and Richard A. Schneider, Michael R. Powers, King & Spalding, Atlanta, Georgia, and Alan H. Goodman, Thomas M. Benjamin, Lemle & Kelleher, L.L.P., New Orleans, Louisiana, and Joy G. Braun, John W. Hite, III, Sessions & Fishman, L.L.P., New Orleans, Louisiana, and D. Scott Wise, Vincent Chang, Davis, Polk & Wardwell, New York, New York, Attorneys for Defendants/Appellants.

Court composed of Judge WILLIAM H. BYRNES, III, Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III.

[98-0452 La.App. 4 Cir. 1] BYRNES, Judge.

Defendants, ¹ all cigarette manufacturers, appeal a judgment certifying a class action, defining the members of the class, designating the two named plaintiffs herein as the representatives of that class, naming an interim plaintiffs' committee, providing for notice to the putative class, and dismissing all cigarette distributor defendants. ² This appeal is limited to those portions of the April 16, 1997 judgment granting plaintiffs' motion for class certification and definition of the class. We affirm.

The judgment of April 16, 1997 ordered that:

[98-0452 La.App. 4 Cir. 2] a class be certified herein defined as all Louisiana residents who are or who were smokers on or before May 24, 1996, of cigarettes manufactured by the defendants, who desire to participate in a program designed to assist them in the cessation of smoking and/or to monitor the medical conditions of class members to ascertain whether they may be suffering from diseases caused by, contributed to, or exacerbated by the habit of cigarette smoking, provided the class member alleges that he or she commenced smoking before September 1, 1988 or that one or more defendants actively or intentionally engaged in a course of conduct designed to undermine or eliminate compliance with or attention to warnings on cigarette packaging.

The judgment states that the "Court hereby reserves unto plaintiffs and members of this defined class the right to assert any claims for damages they may have sustained as a result of smoking cigarettes."

The defendants contend that the trial court erred in certifying the class certification based on the following claims:

(1) Neither federal nor Louisiana law permits class certification of long-term, product liability, mass tort classes where individual issues predominate;

(2) The federal district court denied class certification to the same two named plaintiffs in Castano v. American Tobacco Company, 84 F.3d 734 (5 Cir.1996);

(3) The trial court ignored the individual issues, including causation, reliance and affirmative defenses, which are necessary to prove liability;

(4) The trial court failed to consider how to comply with choice-of-law requirements, or recognizing that the application of the varying laws of different states would defeat the predominance and manageability requirements for class certification;

(5) The trial court failed to define the class subjectively, and mistakenly provided for a reservation of rights that destroys judicial efficiency and the res judicata effect of a judgment; and

[98-0452 La.App. 4 Cir. 3] Certification of the class is erroneously based on novel, untested theories and immature torts.

The judgment certifying the class in this case is appealable. Eastin v. Entergy Corp., 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835. A trial court has great discretion in deciding whether to certify a class, and its decision will not be overturned absent manifest error. Adams v. CSX Railroads, 92-1077 (La.App. 4 Cir. 2/26/93), 615 So.2d 476.

In the present case at the time that the action was filed in June 1996, La. C.C.P. arts. 591 and 592 provided that the basic requirements of a class action included: ³

(1) A class so numerous that joinder is impracticable;

(2) The joinder of parties who are members of the class and who are able to prove adequate representation for absent members;

(3) A "common" character among the rights of the representatives of the class and the absent class members.

Andry v. Murphy Oil, U.S.A., Inc., 97-0793--97-0800 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, writ denied, 98-1158 (La.6/19/98), 720 So.2d 1213, writ denied 98-1178 (La.6/19/98), 720 So.2d 1214, and writ not considered, 98-1204 (La.6/19/98), 719 So.2d 473.

Certification of the class in this case is proper because it essentially boils down to one fundamental question: Is a cigarette that contains nicotine a defective product? There should be one answer to this question, and the only practical [98-0452 La.App. 4 Cir. 4] that can effectively arrive at one consistent answer is the class action procedure.

Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La.9/9/97), 703 So.2d 542, and Castano v. American Tobacco Co., 84 F.3d 734 (5 Cir. La.1996), are the two cases having the most bearing on the outcome of the instant case. Of the two, Ford, as the most recent pronouncement by the Louisiana Supreme Court on the question of class action certification, is controlling.

Ford admonishes us that historically, certification of mass tort litigation classes has been disfavored. Id., p. 15; 703 So.2d at 550. We are also admonished in Ford, quoting from Castano, that:

In the context of mass tort class actions, certification dramatically affects the stakes for defendants. Class certification magnifies and strengthens the number of unmeritorious claims. Aggregation of claims also makes it more likely that a defendant will be found liable and results in significantly higher damage awards.

In addition to skewing trial outcomes, class certification creates insurmountable pressure on defendants to settle, whereas individual trials would not. The risk of facing an all-or-nothing verdict presents too high a risk, even when the probability of an adverse judgment is low.

Ford, p. 15; 703 So.2d at 550.

Ford denied class certification. The class in Ford consisted of residents in the vicinity of four petrochemical plants who alleged injury as result of a "synergistic accumulation or combination" of "continuous emissions, combined and individual," which caused varying individual damages to the defendants. Id. at 543. Thus, Ford dealt not only with a combination of substances emitted by different defendants, but combinations that according to the plaintiff class' own allegations might involve different combinations for every member of the [98-0452 La.App. 4 Cir. 5] class as well as effects that would have been different for each member of the class.

In the instant case we are concerned basically with one substance only, nicotine, and one effect only, addiction. Therefore, Ford is distinguishable from the instant case. We find that the reasoning in McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984), is applicable to the instant case where the court held that it did not matter that each member of the class was not harmed on the same date or sustained the same amount of injury. Tracing the complaint of the class in the instant case to a single source, nicotine, is consistent with the admonition found in Ford that "only mass torts 'arising from a common cause' ... may be appropriate for class certification ..." Id., 703 So.2d at 550.

The Ford court objected to the "synergy" theory as a novel and untested theory of law. The instant case relies on proving the addictive qualities of nicotine, which, although apparently never proved before in a reported opinion as a matter of fact does not rely upon any novel theories of law. Ford refers to Castano in its rejection of novel theories of law, but Castano appears to involve more of a novel theory of fact. We are not persuaded by Castano on this point, which as explained later in this opinion was not the primary factor upon which the Castano court based its decision. We assume that the facts of many, if not most cases, are distinguishable in some way, and the Castano reasoning, if carried to its logical conclusion, would eliminate class actions altogether. We find it significant that Castano alluded to no authority in support of its novel theory about novel theories.

We prefer the reasoning of the Louisiana Supreme Court in Ford where the Court stated that:

Plaintiffs [sic] "synergy theory" is novel and untested.

[98-0452 La.App. 4 Cir. 6] a cause of action against more than one defendant can be sustained under C.C. arts. 667--669 has never been decided. [Footnote omitted.] Furthermore, it is unclear whether plaintiffs can prove that the emissions of the four defendant companies (or the two remaining defendant companies) indeed do combine "synergistically" to cause damage to their surrounding neighbors. Thus, it is...