use of class actions in personal injury cases, The

I.

INTRODUCTION

Plaintiffs in crops liability cases that involve personal injury increasingly look after class certification pursuant to Federal domination of Civil Procedure 23 or state law equivalents. Depending on the circumstances and stage of the litigation, the class action may either be a sword for the plaintiff or, upon rare occasions, a shield for the defendant. The unique characteristic of a class action, which makes it of that kind a deadly sword or impregnable shield, is that individuals who have never filed suit or made a claim will benefit from or be confine by the result of the case. Class actions oftentimes have the potential to be "bet your company" litigation from a defense standpoint, because a defendant conceivably can let slip through the fingers on the issue of liability to thousands of plaintiffs in a single jury trial.

The advisory committee notes to the 1966 amendments to mastership 23 state that "a mass accident resulting in injuries to numerous clan is ordinarily not appropriate for a class action." However, the federal courts have get alonged on a case by case basis. In several instances, courts have lay the foundation of class certification appropriate as to personal injury claims for designs of litigation,1 and other courts have certified adjustment classes in the personal injury context2

Recent case law, however, strike one as beings to support the advisory committee's original position that class actions are not appropriate in the adjoining matter of personal injury cases. at the same time plaintiffs have not lost their zeal. They continue to hammer at the door, and the defense lawyer must understand the issues to be exhibited and be prepared to argue in opposition to class certification.

This article is not a general primer upon class actions. Rather, it focuses upon the use of class actions in personal injury cases in which the plaintiffs look after class certification. The defense in a pharmaceutical case will virtually not ever seek certification of a class reject with the agreement of the plaintiffs, in what is called a "settlement class."3 by means of the time the parties look after to have a settlement class certified, it is typical for consultation to be well versed in the intricacies of direction 23. On the other hand, the motion to certify a class may arrive with the order to appears and complaint. This article, therefore, concentrates the couple on the effects of class certification on the dynamics of the litigation and on the arguments to be made in opposition to a class certification.

II.

BACKGROUND

Civil litigation was a two-party affair beneath English common law. The for the use of all law courts departed from this empire only when co-parties were closely related, of the like kind as joint obligors on a debit As early as the 1600's, however, the Court of Chancery began to disentangle the Bill of Peace to manage cases in which the interested parties were too numerous to join in individual action.4 In How v. Tenants of Bromsgrove5 the court allowed the tenants of the manor to bring a representative action against the Lord after he allegedly had appropriated for the use of all land of the village for his possess purposes. To allow each tenant to proce individually against the Lord would have brought about sum of two units undesirable results:

(1) The court and the Lord could have been tied up for a prolix period relitigating the same case as each individual tenant had his day in court.

(2) Inconsistent proceeds could have occurred with each case being tried separately.

Therefore, practicality l the Chancellor to hear the case one time with the tenants' side being neared by a capable, representative clump Based on the results of the trial, the Lord either won - and got to hold fast the land for his be in possession of use free from the threat of time to come lawsuits over the issue - or he missing and had to return the land to the for the use of all use.

Drawing on their heritage from the English Chancery Courts, American courts have lengthy recognized class action suits. The American courts evolveed two prerequisites before a class action could be brought First, the individuals in the class had to share a belonging to all interest, as the tenants of Lord How's fiefdom did in sharing use of the for the use of all land. Second, the people with the belonging to all interest had to be for a like reason numerous that it was impractical to join them as named parties.

In Lord How's case, individual trial settled all issues as to all tenants. However as the case move rounded out, everyone's rights were adjudicated and the case was above In personal injury class actions, however, cases are at no time completely adjudicated in one malicious swoop. Issues of causation in individual cases and damages always remain. As discussed below, identifying the issue to be tried is of paramount importance in class actions.

III.

WHY IT MATTERS IF THE COURT CERTIFIES A CLASS

The trial court's decision to certify a class is not make submissive to interlocutory appeal because the order is non-final, and the trial court is at liberty to decertify the class at a later time should it decide certification was inappropriate. The defendant's first opportunity to appeal as a matter of right will be after the trial and the entrance of judgment. There are sum of two units methods by which a federal circuit court of appeals can review a class certification order prior to the entrance of judgment: 1) the court of appeals can grant a writ of mandamus to quash the certification order;6 or 2) the district court can certify its ruling for an immediate appeal. The basis for the next to the first option is that class certification is a controlling question of law, about which there is substantial question as to the correctness of the districts court's ruling.7