Rosenfeld v. A. H. Robins Co., Inc.

CourtNew York Supreme Court Appellate Division
Citation407 N.Y.S.2d 196,63 A.D.2d 11
PartiesDoris ROSENFELD, etc., Appellant, v. A. H. ROBINS CO., INC., Respondent.
Decision Date03 July 1978

Page 196

407 N.Y.S.2d 196
63 A.D.2d 11
Doris ROSENFELD, etc., Appellant,
A. H. ROBINS CO., INC., Respondent.
Supreme Court, Appellate Division, Second Department.
July 3, 1978.

[63 A.D.2d 12] Lichtenberg & Goss, P.C., New York City (David J. Goss and Murray Lichtenberg, New York City, of counsel), for appellant.

Gair, Gair & Conason, New York City (Herman Schmertz, New York City, of counsel), for respondent.


GULOTTA, Justice.

On this appeal we are called upon to interpret the recently enacted class action statute CPLR article 9 (L.1975, ch. 207). The underlying action sounds in products liability and involves an intrauterine device (IUD) known as the Dalkon Shield. The device was manufactured by defendant, A. H. Robins Co., Inc. (A. H. Robins), between 1970 and 1975. Plaintiff, a former user of the Dalkon Shield, alleges that the IUD was defectively designed and that it caused her

Page 197

injury. She further alleges that the defendant breached certain express and implied warranties with regard to the Dalkon Shield. Plaintiff seeks damages on behalf of herself and the class she purports to represent, which class is defined as those New York women who suffered "pelvic infection, uterine abscessing [63 A.D.2d 13] and/or perforation, and related or incidental hemorrhaging" as a consequence of their use of the Dalkon Shield.

Special Term denied plaintiff's application for class action certification, whereupon the instant appeal was taken. The order appealed from should be affirmed.


The defendant began marketing the Dalkon Shield during November of 1970, after purchasing the rights to the product in June of 1970 from the Dalkon Corporation which had developed the device. A Dalkon Shield could only be obtained through a licensed physician, who would normally explain to the patient the advantages and disadvantages of using the IUD prior to her making a decision. If the patient then chose to have a Dalkon Shield inserted, the physician would perform certain fitting procedures and insert the device. Product brochures issued by A. H. Robins were distributed to users through their physicians.

As part of its program for marketing the Dalkon Shield, A. H. Robins advertised intensively in medical journals and, in addition thereto, the inventor of the Dalkon Shield, Dr. Hugh J. Davis, undertook to explain the advantages of his IUD in a series of articles which were also published in medical journals. By 1974 the Dalkon Shield was being used by approximately 2.2 million women in the United States, many of whom reside in New York. At that time, however, a series of medical studies began to appear which indicated that the Dalkon Shield was unsafe and ineffective and that it had resulted in an increased incidence of pelvic infection among large numbers of women. Following public criticism and an investigation by the Federal Food and Drug Administration, A. H. Robins permanently suspended distribution of the Dalkon Shield in January, 1975.

Thereafter, more than 670 products liability actions were commenced nationwide against A. H. Robins, more than 150 of those being brought in the Federal courts. Pursuant to section 1407 of title 28 of the United States Code, the Federal actions were consolidated for the purpose of conducting joint, pretrial proceedings (Matter of A. H. Robins Co., Inc. "Dalkon Shield" IUD Prod. Liab. Litigation, 406 F.Supp. 540 (Jud.Pan.Mult.Lit., 1975)). The Federal panel had concluded (p. 542) that joint discovery would be advantageous because of the "commonality of factual issues concerning the design, testing, manufacture, labeling [63 A.D.2d 14] and inspection of the Dalkon Shield." Many of the state plaintiffs co-operated in this joint Federal discovery, under the leadership of a noted New York attorney, Paul D. Rheingold, the "trustee" of the Dalkon Shield group.

The instant litigation is one of 72 similar actions which have been brought in the New York State courts. Plaintiff suggests, however, that the majority of the prospective plaintiffs have yet to commence any action and estimates that the proposed class she purports to represent may include as many as 2,525 New York women. Plaintiff's bill of particulars alleges that the Dalkon Shield was manufactured without adequate control over the production process and specifies three particular design defects which she contends resulted in pelvic disease, pelvic infection, uterine perforation and other injuries to its users. 1

On application by the plaintiff for class action certification, the appropriateness of a class action was considered by Madam Justice BURSTEIN at Special Term. She found that to determine the issue of liability as to individual class members would require an inquiry "into the facts and circumstances of each individual case" and, ultimately, that as many as 4,000 additional parties (including physicians and hospitals)

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would have to be joined. She therefore concluded that plaintiff's purported class failed to satisfy two of the requirements for a class action set forth in CPLR 901:

"2. (that) there are questions of law or fact common to the class which predominate over any questions affecting only individual members; (and)

"5. (that) a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

As a consequence, class action certification was denied.


This court has never before been called upon to consider the applicability of our revised class action statute in a products liability case.

Our new statute, enacted in 1975, was patterned after Rule 23 of the Federal Rules of Civil Procedure and, while the legislative history of our own statute is virtually silent upon [63 A.D.2d 15] this point, it is clear that the framers of Federal Rule 23, as amended in 1966, considered class action treatment to be particularly inappropriate in the case of a mass tort or "mass accident" resulting in injuries to numerous persons. (See Advisory Committee Note to the 1966 revision of Rule 23.) The commentators, however, have been virtually unanimous in suggesting that the Advisory Committee took an unduly restrictive view of the possibilities of class action treatment in such cases (see, e. g., 3B Moore's Federal Practice, § 23.45(3), p. 23-811, n. 35; 7A Wright and Miller, Federal Practice & Procedure § 1783, pp. 116-118), and have indicated time and again that such treatment can and should be considered in an appropriate case. Similar views have been expressed by the commentators on our own article 9 (see McLaughlin, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 901:6, p. 327; Siegel, New York Practice, § 142, pp. 182-183). The thrust of all of these authors is substantially the same, namely, that in a mass tort or mass accident situation, such as a major airplane crash or train wreck, the courts should seriously consider isolating the issue of liability for class action treatment, while allowing the individual determinations on damages to be tried separately thereafter (see CPLR 906). There are, however, important differences between mass torts of the type referred to above and product liability cases such as the case at bar, particularly insofar as the question of causality is concerned. Thus, in the typical mass tort situation, proximate cause can usually be determined on a class-wide basis, since the "cause" of the common disaster will always be identical as to each of the plaintiffs, while contributory negligence on the part of an individual plaintiff is virtually nonexistent.

More directly in point on the present question, two well-known tort attorneys and authors who presently represent a number of Dalkon Shield plaintiffs have considered the feasibility of class action treatment in the products liability area and have been less than enthusiastic in their conclusions. Thus, Alfred S. Julien, who represents plaintiffs in 10 of the New York Dalkon Shield cases, has been critical of the restrictive views taken by the New York courts in class action cases decided under the prior law (see NYLJ, May 31, 1972, p. 1, col. 1), but has concluded that personal injury (as opposed to property damage) product liability cases are not amenable to class action treatment in view of the "(d)ifficult questions of [63 A.D.2d 16] causation and (the) extent of injury" which they present (Id., p. 6, col. 4). The views of Paul D. Rheingold, the trustee of the Dalkon Shield group and counsel for four of the New York plaintiffs, are also pertinent here. Under current law, he has written, "it seems probable that class actions cannot be maintained in products cases involving personal injuries" (3A Frumer and Friedman, Products Liability, § 46A.02(4), p. 16A-35). More recently, however, Mr. Rheingold has suggested that the courts "may have adopted too restrictive a view of the role of class action treatment" (3 A.B.A., Litigation, No. 3 (Spring, 1977), pp. 18, 21), and has cited with approval

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the comments of Professor Moore, arguing that there is "much to commend the use of class actions In certain types of mass disaster cases" (Id., p. 21 (emphasis supplied)).

We emphatically agree with our dissenting brother that, although our own statute was patterned after Federal Rule 23, we are not constrained to follow the restrictive views of the Federal courts (or the Federal Advisory Committee), on the problem at issue. Indeed, were this a case where the liability issue could be isolated and treated on a class-wide basis (e. g., a typical common disaster or mass tort case), there would be strong reasons for certifying the proposed class, although the question of damage would necessarily have to be left for individual determination. Thus, in the case of an airplane crash, to use the most frequently cited example, it would be possible in many cases to isolate a single causative...

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