IN RE NORTHERN DIST. OF CALIFORNIA, ETC.

• Decision Date: 25 June 1981
• Docket Number: No. C-80-2213 SW.,C-80-2213 SW.
• Citation: 521 F. Supp. 1188
• Parties: In re NORTHERN DISTRICT OF CALIFORNIA "DALKON SHIELD" IUD PRODUCTS LIABILITY LITIGATION.
• Court: U.S. District Court — Northern District of California

521 F. Supp. 1188

In re NORTHERN DISTRICT OF CALIFORNIA "DALKON SHIELD" IUD PRODUCTS LIABILITY LITIGATION.

No. C-80-2213 SW.

United States District Court, N. D. California.

June 25, 1981.

COPYRIGHT MATERIAL OMITTED

Anthony J. Klein, DiGiorgio, Davis & Klein, Bakersfield, Cal., Conklin, Davids & Friedman, San Francisco, Cal., William A. Hensley, Sherwood & Hensley, Wichita, Kan., Stanley Bell, Thomas J. Brandi, Abramson & Bianco, San Francisco, Cal., Louis M. Bernstein, Oakland, Cal., Kent A. Russell, San Francisco, Cal., Appert & Pyle, Minneapolis, Minn., Gary H. Silverman, Chubb & Silverman, Sparks, Nev., Ronald P. Schneider, Huster & Schneider, San Francisco, Cal., Rodney A. Klein, Sacramento, Cal., Ralph B. Wegis, Taft, Cal., Paul Melodia, Walkup, Downing, Shelby, Bastian, Melodia, Kelly & O'Reilly, San Francisco, Cal., Bradley Post, Post, Syrios & Bradshaw, Wichita, Kan., Douglas E. Bragg, Denver, Colo., for plaintiffs.

Thomas W. Kemp, Harris Wagenseil, Barbara L. Gately, Washburn, Kemp & Wagenseil, Robert C. Gebhardt, Fern M. Smith, Frank Z. Leidman, Bronson, Bronson & McKinnon, San Francisco, Cal., Robert H. Patterson, Jr., Gordon H. Rosser, Jr., Alexander H. Slaughter, Anne Marie Whittemore, Franklin M. Tatum, III, McGuire, Woods & Battle, William R. Cogar, Clifford W. Perrin, Jr., Stephen W. Brewer, Mays, Valentine, Davenport & Moore, Richmond, Va., Kevin Dunne, Sedgwick, Detert, Moran & Arnold, San Francisco, Cal., for defendant A. H. Robins Co., Inc.

ORDER CONDITIONALLY CERTIFYING CLASS ACTIONS

SPENCER WILLIAMS, District Judge.

INTRODUCTION

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 device was manufactured by defendant A. H. Robins Company and invented by defendants Hugh Davis and Irwin Lerner.

The plaintiffs in these actions allege 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.

In 1975, these actions were transferred to a single district for coordinated pretrial proceedings. In so doing, the Judicial Panel on Multidistrict Litigation held that the complaints contained a commonality of factual issues concerning the design, testing, manufacturing, labeling, and inspection of the Dalkon Shield.¹ On June 17, 1980, this court consolidated all actions before it for pretrial proceedings.²

Approximately one year ago, this court presided over a single jury trial in one of these actions that lasted nine weeks. Since that time, and in light of its extended experience with this litigation, the court conducted a series of status conferences to discuss methods for achieving economies of time and expense in the trial of these actions. After consideration of alternatives such as videotaping witnesses, consolidation and test cases, this court concluded that class action certification represents the most reasonable solution to the repetitive nature of this litigation.

On February 9, 1981, the court ordered briefing from all parties on the class certification issue. At that time, the court noted that cases such as these present the obvious inability of our traditional mode of case-by-case litigation to deal with repetitive litigation of the same underlying facts. Each of these cases takes several months to try and involves many of the same witnesses for each trial. At the present time, some 1,573 suits involving claims for compensatory damages well over $500 million are pending against defendant A. H. Robins.³ 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.

A federal class action, to the extent that it is possible under Federal Rule of Civil Procedure 23, appears to be the most equitable solution to the monumental problems posed by this litigation.

It is clear from a reading of the history behind Rule 23 that it was intended primarily to foster judicial economy within a framework that effectively protects the rights of individual litigants.⁴ Even before the enactment of Rule 23, equity courts recognized that class treatment was appropriate when judicial efficiency demanded the elimination of multiple suits arising from the same facts and questions of law.⁵ Likewise, it can hardly be said that modern Rule 23 necessarily forecloses the application of class action concepts to cases such as this one in which repetitive litigation based on a single set of facts threatens to cause irreparable harm both to the defendant and more importantly to thousands of plaintiffs left with a legal right but potentially no adequate remedy.

In response to these problems, the court invited briefs and conducted hearings on May 20, 1981 and June 3, 1981 on the class action issue. After careful consideration of these briefs and the arguments of all counsel present, the court hereby finds that all prerequisites for class certification under Rule 23(a) and 23(b)(1)(B) have been satisfied and conditionally certifies a nationwide class⁶ consisting of all persons who, prior to an as yet undetermined date certain, file written claims for punitive damages against A. H. Robins Company relating to the Dalkon Shield intrauterine device.

This court further finds that the prerequisites for class certification under Rule 23(a) and 23(b)(3) are satisfied and conditionally certifies a class action on all common issues of liability as to all persons who have filed suit, or will file suit before the commencement of the trial of this case, relating to the Dalkon Shield intrauterine device in the United States District courts located in the state of California.

This court further orders that all cases involving the Dalkon Shield intrauterine device which are filed in the United States District Court for the Northern District of California be consolidated for trial on the liability issues pursuant to Federal Rule of Civil Procedure 42(a). As part of the Final Trial Order filed in a separate action consolidated herein, the court shall order the action severed for trial on the issues of affirmative defenses, if any, causation and damages.

The following constitutes a brief explanation of the court's reasoning on these matters. The court will issue a full memorandum of opinion on this matter hereafter.

COURT CERTIFICATION OF CLASS ACTION

The case law and commentary on federal class actions emphasize the wide range of discretion accorded the trial court in overseeing all aspects of class action litigation and particularly in determining whether to certify a class in the first instance.⁷

Many of the trial court's responsibilities in maintaining a class action may be exercised even though no party to the lawsuit requests such action. For example, the district judge has an obligation to sua sponte determine whether an action shall proceed as a class action notwithstanding a motion from either party.⁸ The court can, on its own motion, limit the size of a class action, deleting members with smaller claims.⁹ The court is also able to sua sponte dismiss class allegations that were already certified.¹⁰

While the language of Rule 23 generally refers to actions "brought" or "maintained" as class actions, nothing in the rule prohibits sua sponte class certification. In fact, Professor Moore states in his text on federal practice that the trial court's role under Rule 23 contemplates situations in which it may transform an action commenced as a non-class action into a class action on its own motion.¹¹

Federal Rule 23 is a rule of civil procedure, not a rule of jurisdiction. The Federal Rules of Civil Procedure, including Rule 23, were promulgated by the Supreme Court and not by Congress. Plainly, courts tried cases as class actions in the interest of judicial efficiency and economy long before the adoption of Rule 23.¹² Therefore, the trial court in exercising its equity power may certify a class even when no individual plaintiff fashions his complaint seeking such relief.

This case presents the unusual situation where court ordered class treatment is appropriate. In this action, plaintiffs are represented by many different law firms, each with an individual interest in securing a punitive damage award for their clients. The court, on the other hand, is in the position of being able to observe the spectrum of cases filed throughout the country with only the collective interest of the plaintiffs in mind. Clearly with respect to the issue of punitive damages, the most equitable approach as to all present and future plaintiffs is to provide equal access to a recovery fund.

CERTIFICATION OF NATIONWIDE CLASS ON PUNITIVE DAMAGES

To qualify for class certification, all four prerequisites of Rule 23(a) must be satisfied and, in addition, the proposed class must come within one of the three categories enumerated in Rule 23(b). With respect to the four requirements of 23(a), the court specifically finds as follows:

1. The class is so numerous that joinder of all members is impracticable in that there are more than 1600 cases against Robins presently pending in federal and state courts, most of which purport to assert claims for punitive damages.

2. There are questions of law and fact common to the class with respect to the liability of Robins for punitive damages by reason of its conduct in the manufacture and marketing of the Dalkon Shield.

3. With respect to the issue of punitive damages,...