In re No. Dist. of Cal." Dalkon Shield" IUD Products, C-80-2213 SW.

Citation526 F. Supp. 887
Decision Date05 November 1981
Docket NumberNo. C-80-2213 SW.,C-80-2213 SW.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

526 F. Supp. 887


No. C-80-2213 SW.

United States District Court, N. D. California.

November 5, 1981.

526 F. Supp. 888
526 F. Supp. 889
526 F. Supp. 890
526 F. Supp. 891
Anthony J. Klein, Digiorgio, Davis & Klein, Bakersfield, Cal., John J. Davids, Conklin, Davids & Friedman, San Francisco, Cal., Sherwood & Hensley, William A. Hensley, Wichita, Kan., Gary R. Silverman, Chubb & Silverman, Sparks, Nev., Ronald P. Schneider, Huster & Schneider, Boccardo, Blum, Lull Niland & Bell, Thomas J. Brandi, Abramson & Bianco, San Francisco,
526 F. Supp. 892
Cal., Louis M. Bernstein, Oakland, Cal., Kent A. Russell, San Francisco, Cal., Robert J. Appert, Appert & Pyle, Minneapolis, Minn., Ralph B. Wegis, Taft, Cal., Rodney A. Klein, Inc., Sacramento, Cal., Walkup, Downing, Shelby, Bastian et al., San Francisco, Cal., Rupert H. Ricksen, Knox, Ricksen, Snook, Anthony & Robbins, Oakland, Cal., John St. John, Armour, St. John, Wilcox & Goodin, San Francisco, Cal., Bradley Post, Post, Syrios & Bradshaw, Wichita, Kan., Douglas E. Bragg, Denver, Colo., Sidney L. Matthew, Gorman & Matthew, Tallahassee, Fla., Brown & Szaller, Cleveland, Ohio, Norman G. Axe, Santa Monica, Cal., Robert B. Keddie, Behrend, Aronson & Morrow, Pittsburgh, Pa., William O. Bradley, Bradley & Drendel, Reno, Nev., Stanley Bell, San Francisco, Cal., John Van Dyke, Fullerton, Cal., Thomas W. Hauser, San Diego, Cal., Ed Stapleton, Brownsville, Tex., Paul D. Rheingold, New York City, Arthur C. Johnson, Johnson, Harrang, Swanson & Long, Eugene, Or., for plaintiffs

Robert C. Gebhardt, Bronson, Bronson & McKinnon, Thomas W. Kemp Jr., Washburn, Kemp & Wagenseil, Scott Conley, Sedgwick, Detert, Moran & Arnold, San Francisco, Cal., Franklin M. Tatum, McGuire, Woods & Battle, Stephen W. Brewer, Mays, Valentine, Davenport & Moore, Richmond, Va., for defendants.




The latter half of the twentieth century has witnessed a virtual explosion in the frequency and number of lawsuits filed to redress injuries caused by a single product manufactured for use on a national level. Indeed, certain products have achieved such national notoriety due to their tremendous impact on the consuming public, that the mere mention of their names ?€” Agent Orange, Asbestos, DES, MER/29, Dalkon Shield ?€” conjure images of massive litigation, corporate stonewalling, and infrequent yet prevalent, "big money" punitive damage awards.

In a complex society such as ours, the phenomenon of numerous persons suffering the same or similar injuries as a result of a single pattern of misconduct on the part of a defendant is becoming increasingly frequent.

The judicial system's response to such repetitive litigation has often been blind adherence to the common law's traditional notion of civil litigation as necessarily private dispute resolution.1 In situations where this traditional mode of litigation threatens to leave large numbers of people without a speedy and practical means of redress and simultaneously threatens to expose defendants to continuing punishment for the same wrongful acts, the class action device is a powerful tool to accomplish its proclaimed goals of judicial economy and fairness.2

Factual Background

This action involves the claims of thousands of women across the United States that they have been injured by an allegedly defective intrauterine device called the Dalkon Shield.

The Dalkon Shield was invented in 1968. It was clinically tested from September 1968 to November 1969, at which time it was commercially introduced to the medical profession by the Dalkon Corporation. On June 12, 1970, the A. H. Robins Co., Inc. (Robins), a manufacturer and distributor of pharmaceuticals and other products, acquired all rights to the Dalkon Shield. Robins then initiated its own program to test the product and simultaneously began to market it. Between June 12, 1970, and

526 F. Supp. 893
June 28, 1974, approximately 2.2 million Dalkon Shields were inserted in women in the United States. On the latter date, Robins suspended distribution of the Dalkon Shield

A Dalkon Shield could be inserted only by a physician, who normally obtained the device from a surgical supply house. Each Dalkon Shield package contained labeling instructions and materials that described its advantages and disadvantages. It was the physician's responsibility to explain to the prospective wearer these advantages and disadvantages and, if the decision was made to have the Dalkon Shield inserted, to perform certain preliminary fitting procedures outlined in the labeling instructions.

During the years in which the Dalkon Shield has been utilized, a large number of women have had adverse reactions to the device. The plaintiffs in these actions allege that they have sustained various injuries from their use of the Dalkon Shield including uterine perforations, infections, pregnancy, spontaneous abortion, fetal injuries and hysterectomies. The plaintiffs predicate their right to recover against various defendants on theories of negligence, strict products liability, breach of warranty, conspiracy and fraud. In the vast majority of these actions, the plaintiffs seek substantial sums in punitive damages.3

At the present time, some 1,573 suits involving claims for compensatory damages well over $500 million and claimed punitive damages in excess of $2.3 billion, are pending against A. H. Robins.4 The potential for the constructive bankruptcy of A. H. Robins, a company whose net worth is $280,394,000.00, raises the unconscionable possibility that large numbers of plaintiffs who are not first in line at the courthouse door will be deprived of a practical means of redress.

The problem raised by this litigation is that the cases filed against the defendant, including the 165 pending in this district, involve nearly identical complaints, nearly identical legal claims, and a nearly identical factual background as to all issues of liability. As this court knows from its own experience in trying one nine-week case in 1980, any attempts to try all these cases would bankrupt the district court's calendar and result in a tedium of repetition lasting well into the next century.

Due to the national importance of the issues involved in this litigation, the court has not acted precipitously with respect to class certification, opting instead for a more deliberate approach. The court conducted a series of status conferences to discuss various methods for achieving economies of time and expense in the trial of these actions.

On February 9, 1981, the court ordered briefing from all parties on the class certification issue. After careful consideration of these briefs and the arguments of all counsel at several subsequent hearings, the court issued its order conditionally certifying this class action.5


The power of a trial court to limit re-examination of legal disputes by the use of representative suits has its genesis in the old court of equity's recognition of the "bill of peace." Developed as a procedural device to prevent a multiplicity of actions at common law, the bill of peace permitted consolidation of numerous actions involving common issues in a single suit in equity.6 The device was often utilized when many

526 F. Supp. 894
parties were making claims as to the same property or fund.7

The class action was a logical extension of the court's equitable jurisdiction over bills of peace and was accepted early on by American courts.8 Trial courts retained their broad equitable powers to prevent a multiplicity of actions when a large number of persons with a single legal grievance sued or threatened to sue a defendant for alleged misconduct arising out of identical treatment of class members.

In recognition of the large measure of discretion vested in the trial court to balance conflicting interests,9 modern class actions retained the procedural rules which enable a trial court to issue orders regarding coordination of lawsuits even though no party to the action requests such order. The court has a duty, for example, to determine on its own motion whether or not a class action may be maintained.10 Moreover, the court may sua sponte certify subclasses during the pendency of an action without being bound by the plaintiff's complaint.11

The fact that no plaintiff in this district sought class relief is not dispositive of the power of this court to certify a class action for two reasons.12

First, it is now recognized that a federal district court has broad and inherent power to regulate litigation before it.13 This inherent power, which is broader and more flexible than the authority granted in the federal rules, is derived from the court's duty to achieve expeditious disposition of cases.

Exercise of the court's power to control litigation is particularly appropriate in cases where a class action could reduce a multiplicity of identical suits.14 As this court stated in its previous order,15 the trial judge enjoys a wide range of discretion in overseeing all aspects of class action litigation particularly in determining the certification issue.16 In fact, the court has more control over the class action than over ordinary

526 F. Supp. 895
actions, and thus must assume a more active role in its certification and management.17

Nothing in Rule 23 prohibits a court from certifying a class action when to do so would result in both a major savings of judicial time in avoiding repetitive litigation and the preservation of the collective interests of all class members.18 Any alleged limitations contained in Rule 23 as to the exercise of the court's class action jurisdiction do not control the result of this case because...

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