Jenkins v. Raymark Industries, Inc., No. 85-2815

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GEE, ALVIN B. RUBIN and REAVLEY; REAVLEY
• Citation: 782 F.2d 468
• Parties: Wanda JENKINS, et al., Plaintiffs-Appellees, v. RAYMARK INDUSTRIES, INC., et al., Defendants-Appellants.
• Docket Number: No. 85-2815
• Decision Date: 05 February 1986

Page 468

782 F.2d 468 3 Fed.R.Serv.3d 1137 Wanda JENKINS, et al., Plaintiffs-Appellees,
v.
RAYMARK INDUSTRIES, INC., et al., Defendants-Appellants. No. 85-2815. United States Court of Appeals,
Fifth Circuit. Feb. 5, 1986.
Rehearing and Rehearing En Banc Denied March 3, 1986.

Page 469

Marlin Thompson, Orange, Tex., Walter Umphrey, Port Arthur, Tex., Paul L. Sadler, Henderson, Tex., for plaintiffs-appellees.

Rex Houston, Henderson, Tex., Messrs, J. Dennis Chambers, O.J. Weber, Texarkana, Tex., Frank M. Bean, Edward Hennessy, Houston, Tex., Thomas W. Hathaway, Tyler, Tex., Joseph R. Steele, Orange, Tex., Grover Russell, Jr., Center, Tex., Messrs. Brent M. Rosenthal, Frederick M. Baron, Dallas, Tex., Messrs. David L. Tolin, R. Lyn Stevens, John G. Tucker, Beaumont, Tex., Raymond T. Matthews, Houston, Tex., Robert K. Wise, Jeffrey S. Lynch, Dallas, Tex., Dan Mayfield, Waco, Tex., O.J. Weber, Beaumont, Tex., Elizabeth Thompson, Houston, Tex., Roberte Dodson, Texarkana, Tex., Dale L. Trimble, Houston, Tex., Clyde Braken, Dallas, Tex., Andrew C. Schirrmeister, Houston, Tex., John H. Hall, Dallas, Tex., Richard L. Josephson, Houston, Tex., Sandra F. Clark, Beaumont, Tex., Robert Scott, F. Walter Conrad, Houston, Tex., Don W. Kent, Tyler, Tex., Gordon R. Pate, Beaumont, Tex., Jack Flock, Tyler, Tex., Messrs. Gary D. Elliston, J. Carlisle DeHay, Jr., Dallas, Tex., Gail C. Jenkins, Beaumont, Tex., John Sharp, Longview, Tex., for defendants-appellants.

Appeal from the United States District Court for the Eastern District of Texas.

Before GEE, ALVIN B. RUBIN and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

In this interlocutory appeal, the thirteen defendants ¹ challenge the decision of District Judge Robert M. Parker to certify a class of plaintiffs with asbestos-related claims. We affirm.

Page 470

I. Background to Judge Parker's Plan

Experts estimate that at least 21 million American workers have been exposed to "significant" amounts of asbestos at the workplace since 1940; other millions have been exposed through environmental contact or contact with relatives who have worked with the products. R. Seltzer, Punitive Damages in Mass Tort Litigation: Addressing the Problems of Fairness, Efficiency and Control, 52 Fordham L.Rev. 37, 37 n. 1 (1983); Note, Mass Tort Claims and the Corporate Tortfeasor: Bankruptcy Reorganization and Legislative Compensation Versus the Common-Law Tort System, 61 Tex.L.Rev. 1297, 1301 n. 15 (1983). Because of its injurious propensities, such exposure, in human terms, has meant that literally tens of thousands of people fall ill or die from asbestos-related diseases every year. E.g., Note, Who Will Compensate the Victims of Asbestos-Related Diseases? Manville's Chapter 11 Fuels the Fire [hereinafter, Manville ], 14 Envtl.L. 465, 466-67 (1984). In legal terms, it has translated into thousands of lawsuits, over 20,000 as of 1983, centered mainly in industrialized areas along the country's coasts. See Seltzer, supra, at 37 n. 1.

Courts, including those in our own circuit, have been ill-equipped to handle this "avalanche of litigation." See Note, Manville, supra, at 468-71. Our numerous opinions in asbestos-related cases have repeatedly recognized the dilemma confronting our trial courts, and expressed concern about the mounting backlog of cases and inevitable, lengthy trial delays. See, e.g., Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 416 n. 2 (5th Cir.1986) (Clark, C.J., dissenting); Jackson, 727 F.2d 506, 524 (5th Cir.1984); Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 348-52 (5th Cir.1982) (sympathizing with caseload and encouraging trial court innovation, such as the quoted Memorandum by Judge Parker); Migues v. Fibreboard Corp., 662 F.2d 1182, 1189 (5th Cir.1981) (calling for "new approaches to the national tragedy of asbestos-related disease").

About 5,000 asbestos-related cases are pending in this circuit. Much, though by no means all, of the litigation has centered in the Eastern District of Texas. Nearly nine hundred asbestos-related personal injury cases, involving over one thousand plaintiffs, were pending there in December of 1984. Despite innovative streamlined pretrial procedures and large-scale consolidated trials of multiple plaintiffs, the dockets of that district's courts remained alarmingly backlogged. Plaintiffs had waited years for trial, some since 1979--and new cases were (and still are) being filed every day. It is predicted that, because asbestos-related diseases will continue to manifest themselves for the next 15 years, filings will continue at a steady rate until the year 2000.

In early 1985, ten of these plaintiffs responded by moving to certify a class of all plaintiffs with asbestos-related personal injury actions pending in the Eastern District on December 31, 1984. ² These plaintiffs hoped to determine in the class action one overarching issue--the viability of the "state of the art" defense. Because the trial of that issue consistently consumed substantial resources in every asbestos trial, and the evidence in each case was either identical or virtually so, they argued, a class determination would accelerate their cases.

II. The Plan

Following copious briefing and several hearings, the district court granted the motion. In his order of October 16, 1985, Judge Parker carefully considered the request under Rule 23(a), (b)(1) and (b)(3) of the Federal Rules of Civil Procedure. Finding a "limited fund" theory too speculative, he refused to certify the class under Rule 23(b)(1); by contrast, he found all of the elements for a 23(b)(3) action present. Drawing on his past experience, the judge

Page 471

concluded that evidence concerning the "state of the art" defense would vary little as to individual plaintiffs while consuming a major part of the time required for their trials. Considerable savings, both for the litigants and for the court, could thus be gained by resolving this and other defense and defense-related questions, including product identification, product defectiveness, gross negligence and punitive damages, in one class trial. ³ The court further found that the named representatives had "typical" claims, and that they and their attorneys would adequately represent the other class members. Accordingly, it certified the class as to the common questions, ordering them resolved for the class by a class action jury. The class jury would also decide all the individual issues in the class representatives' underlying suits; individual issues of the unnamed members would be resolved later in "mini-trials" of seven to ten plaintiffs. Although the class action jury would evaluate the culpability of defendants' conduct for a possible punitive damage award, any such damages would be awarded only after class members had won or settled their individual cases. The court subsequently appointed a special master to survey the class and prepare a report, detailing the class members and their claims, to apprise the jury of the gravity and extent of the absent members' claims and the typicality of the representatives' claims.

Defendants moved for reconsideration or, in the alternative, certification of the decision for interlocutory appeal. The court granted defendants' alternate motion.

On appeal, defendants challenge the court's decision on three grounds: (1) the class fails to meet the requirements of Rule 23; (2) Texas law proscribes a bifurcated determination of punitive damages and actual damages; and (3) the contemplated class format is unconstitutional.

III. Discussion

The purpose of class actions is to conserve "the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740, 749 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 2557, 61 L.Ed.2d 176 (1979)). To ensure that this purpose is served, Rule 23 demands that all class actions certified under Rule 23(b)(3) meet the requirements of both 23(a): numerosity, commonality,...