The abundance and variety of hazards associated with consumer products have led to a panoply of responses by the legal system. At the state level, standards of strict liability in tort were judicially developed in an attempt to meet society’s need to minimize the growing burdens of product-related injuries. Responding to the weaknesses of the individual claims system, Congress recently has enacted federal legislation designed to promote greater product safety and to supplement existing remedies. In addition, private plaintiffs seeking various forms of preventive injunctive relief4 have attempted to maintain products liability suits as class actions on behalf of all consumers of certain allegedly defective products. This Comment will examine the role of injunctive products liability class suits as an alternative means of implementing more fully the substantive policies underlying both state and federal products liability law.
Products-Liability Class Suits for Injunctive Relief Under Federal Rule 23, Fordham Law Review, Volume 47 | Issue 1 Article 4, 1978.
The ability to pursue products liability claims as class actions is an unsettled area of law. The drafters of rule 23 of the Federal Rules of Civil Procedure, which governs representative suits in the federal courts, cautioned that mass accidents ordinarily would not be appropriate for class treatment. Although products liability controversies, strictly speaking, do not arise out of mass accidents, this reasoning has been specifically relied upon by one court to deny class action status to one products liability action for damages. Moreover, several federal courts faced with claims for injunctive relief have refused to certify them as class actions on extremely narrow grounds, and two state courts have reached conflicting results on the same issue.
This Comment will argue that class action procedures can play a vital role in achieving the compensatory, deterrent and risk-spreading objectives of products liability law, and that injunctive products liability suits are particularly appropriate controversies for class treatment. The analysis wvill begin by examining the goals contemplated by the substantive theory of products liability law and the general role of class action procedures in attaining these goals. The function and propriety of injunctive relief in products liability class suits are then discussed. Finally, an analysis of the procedural prerequisites to class status for such controversies-and judicial reaction to such claims–is presented.
I. SUBSTANTIVE AND PROCEDURAL ARGUMENTS FOR CLASS CERTIFICATION OF INJUNCTIVE PRODUCTS LIABILITY SUITS
A. The Objectives of Strict Liability: Compensation, Risk Spreading, and Deterrence
The imposition of a standard of strict liability in tort upon sellers of defective products is designed initially to ensure that individual claimants are compensated for monetary losses resulting from product-related injuries. By marketing a product for use and consumption, a product seller is held to have assumed a special duty toward any consumer injured by his product. It is believed that the consumer of such products is entitled to the maximum … protection . . ., and the proper persons to afford it are those who market the products. The product seller is held to a standard of strict liability because it is believed that the costs of even unavoidable product-related injuries are better placed on the product seller than left on the injured consumer.
In addition to compensating injured consumers, damage awards and liability insurance also serve a risk-spreading function. The seller is expected to pass on these added costs by increasing the prices of injury-causing products, thereby spreading the economic burdens of product-related injuries among all the consumers of those products.
Once the total cost to society of producing dangerous products is reflected accurately in the prices paid by consumers, it is reasonable to assume that they will generally decide to purchase safer and less expensive products. Many consumers who would purchase a relatively dangerous product at a price that did not reflect its accident costs may, instead, decide to purchase less expensive and safer products. In this manner, damage awards and the costs of liability insurance also act as a deterrent by creating market forces that promote greater product safety and consumer protection.
Unfortunately, in practice, the high cost of products liability litigation prevents many injured persons from prosecuting their claims and from recovering for their injuries. As a result, the total cost of producing dangerous products is not reflected in the prices paid by consumers. This failure to include accident costs in product prices results in the continued presence in the market place and continued consumer selection of more dangerous products than would be available if prices served their deterrent and risk-spreading functions. Indeed, a major federal role in the promotion of product safety was prompted by recognition of the “inadequacy of existing controls on product hazards.” Although congressional attention was concerned initially with the failure of the individual claims system to achieve compensatory goals, the legislative response ultimately focused on risk-spreading and deterrent aims and the broader consequences to all consumers that follow from the endemic failings of state common law.
Because the risk-spreading and deterrent objectives are dependent upon the success of the compensatory system, any limitations on the recovery of damages by deserving claimants will affect other consumers of similar products. The failure to compensate adequately perverts public policy by allowing product sellers to develop levels of product safety independent of consumer demands. 29 In addition, product sellers’ propensity to maximize profits may often lead to decisions that conflict with society’s interests in the prevention of avoidable product-related injuries. One car manufacturer reportedly decided not to make an $11-per-motor vehicle improvement-at a total model cost of $137 million-that would have prevented 180 burn deaths, 180 serious burn injuries, and 2,100 burned vehicles because it expected liability of only $49.5 million as a consequence of that product defect. Proper functioning of the compensatory system might well have led to greater exposure to liability and to voluntary preventive action by the manufacturer.
The individual claims system also suffers from the tendency to require duplication of judicial efforts and to impose added burdens on already congested court calendars. The prospect of repeated litigation is present throughout products liability law. Multiple suits concerning a single defect alleged to have injured large numbers of consumers frequently occur in defective drug litigation. Similarly, one car manufacturer’s decision to market a product allegedly known to be defective and to present a risk of physical injury was reportedly reached with the expectation of more than 2,000 claims based on a single defect affecting 12.5 million products. It is against this background of substantive goals and practical limitations that the propriety of products liability class suits seeking injunctive relief should be evaluated.
B. Products Liability Controversies as Class Actions
Rule 23 was designed primarily to promote judicial “economies of time, effort, and expense. Products liability controversies, which, as noted earlier, generate a staggering volume of litigation, would seem to be ideal candidates for the furtherance of these judicial economies. Whether a particular product presents an unreasonable risk of injury to the ultimate users or consumers of that product posits the class question in all products liability class suits. The inquiry may focus upon the product’s inherent design, the manner in which it was manufactured, or the adequacy of any warnings concerning possible dangers associated with the product. Resolution of this threshold issue generally calls for difficult and complex factual findings that would be needlessly repeated in individual suits.
Products liability suits seeking damages, however, also present questions of law and fact affecting only individual class members, thereby reducing the extent of judicial economies afforded by class status. Issues concerning each class member’s postpurchase conduct, proximate cause, and damages, which must be resolved in all actions for damages, are not capable of uniform determination. Yet, these issues are not present in actions primarily seeking equitable relief such as an injunction. Rather, in equitable actions, the right of the class to the requested relief turns only upon the nature of the alleged defect, which remains constant as to each class member. These products liability controversies are, therefore, often particularly appropriate for the furtherance of the judicial economies intended by the drafters of rule 23.
Rule 23 also was designed to promote greater fairness in the adjudication of claims brought by similarly situated claimants. To the extent that “the interests of absentees, who may be affected by the litigation regardless of its class nature, are given representation in the litigative process,” class action procedures promote judicial fairness. Indeed, the ability of products liability plaintiffs to pursue their claims individually is affected by the prosecution of other claims regarding the same alleged defect by the doctrine of stare decisis, since the holding in each decision will affect all controversies involving similar alleged defects. Class actions, on the other hand, would provide the court with an opportunity to reach a single adjudication concerning a claim of product defectiveness that is binding upon :all members of the consumer class. At the same time, the court’s supervision of the plaintiff’s legal representation ensures that the interests of each class member will be fairly and adequately protected.
Moreover, in any products liability claim the judiciary is called upon to do substantially more than adjust the legal relations between the protagonists. Decisions concerning liability and damage awards will have significant effects upon achieving the objectives of risk spreading and deterrence. Class actions will put before the courts the interests of absentees, thereby enabling the courts to see the “full implications” of their decisions, and to determine what results “would best serve the policies underlying” products liability law. The judiciary will, therefore, be better informed to make judgments that require it to weigh society’s interest in product safety against the expense and inconvenience that product recall or repair may impose upon the manufacturer.
Class actions also promote the realization of the substantive goals underlying products liability law by facilitating maximum claims prosecution. Class actions reduce per plaintiff legal costs since attorney fees are determined under judicial supervision on the basis of the benefits provided to all class members. By lowering the high cost of bringing a lawsuit, a major failing of the individual claims system, class actions would “open the courts to claims not ordinarily litigated,” therby allowing the judiciary “to enforce policies underlying causes of action in circumstances where those policies might not otherwise be effectuated.
Finally, class actions provide specific procedural advantages for those involved in products liability actions. With regard to injured consumers, in addition to reducing the per plaintiff legal costs and increasing the plaintiffs’ litigation posture by injecting the absentees’ interests into the controversy, the filing of the complaint tolls the statute of limitations for the benefit of the entire class, even when certification of the suit as a class action is subsequently denied. Moreover, the named representative satisfies the personal jurisdiction, venue, and service requirements on behalf of the entire class.
At the same time, defendants also benefit from class action procedures. The potential economies to be gained from avoiding multiple suits concerning a single alleged defect may be enormous. The defendant is given an opportunity to settle with the entire class after making a candid evaluation of exposure to liability. The defendant is thus able to obtain a unitary disposition of the controversy that is binding on all class members and, at the same time, is consistent with the substantive policies underlying both products liability law and class action procedures.
C. The Role of Injunctive Relief
1. Products Liability Class Actions Seeking Damages
Procedural obstacles to certification of products liability suits seeking damages require that class treatment be limited to injunctive actions. Certification of suits for damages as class actions under rule 23(b)(3) requires that the common questions of law or fact which must be present in all class suits “predominate over any questions affecting only individual members” of the class. Although common questions of law and fact do exist in all products liability class suits, the presence of significant issues concerning postpurchase conduct, proximate cause, and the extent of injury would appear to disqualify products liability damage suits as class action candidates. Indeed, these drawbacks have been dispositive in several class actions brought to recover damages arising out of various mass accidents, such as airplane crashes, in which the issues of postpurchase conduct and proximate cause do not vary from plaintiff to plaintiff. This same reasoning has been relied upon to deny class action status in several products liability suits. Related to the failure of such suits for damages to satisfy the “predomination” requirement is the likely finding that class status simply is not a “superior” method for resolution of such controversies.
However, neither the “predomination” nor the “superiority” requirement applies to the certification of actions primarily seeking injunctive relief as class actions. Injunctive products liability claims may be certified as representative suits under entirely different class action categories, rules 23(b)(1) and (2), thereby obviating any need of satisfying the foregoing rule 23(b)(3) requirements. Consequently, a major stumbling block to class status is not present in equitable products liability actions.
Jurisdictional obstacles to the certification of damage suits as class actions in the federal system also act to limit class treatment to equitable products liability suits. In Snyder v. Harris, the Supreme Court held that the damages of individual class members cannot be aggregated in order to satisfy the amount in controversy requirement in diversity cases, at least when each claimant’s right to recover is separate and distinct from the rights of other class members. In Zahn v. International Paper Co., the Court later held that each individual class member must satisfy the amount in controversy prerequisite and that any plaintiff, named or unnamed, who failed to do so must be dismissed from the action and could not avoid the amount in controversy requirement under concepts of ancillary jurisdiction. Consequently, a federal forum is available only to those class action damage suits in which the members already have suffered relatively serious injuries.
Although the amount in controversy prerequisite must also be satisfied in injunctive products liability suits, it would appear that this requirement is more readily satisfied in such cases. The amount in controversy in injunctive actions generally is determined with respect to “the value of the right involved.” Thus, in products liability suits, the amount in controversy is the value of the right of each member of the class to protection against the risk of physical injury associated with the allegedly defective product. The cost of injuries already sustained is not, by itself, dispositive of the jurisdictional question. Consequently, in City of Chicago v. General Motors Corp. the court held that “plaintiff’s right not to be harmed by dangerous motor vehicle emissions and defendants’ converse right to unfettered manufacturing are both in excess of the jurisdictional amount.
In addition, it should be noted that the amount of damages suffered by those who one car manufacturer anticipated would be injured or killed by its product would satisfy the jurisdiction requirement. The manufacturer estimated that liability for each injury would be approximately $67,000, and liability for each death would be approximately $200,000. Therefore, it is reasonable to assume that injunctive products liability class suits will often meet the monetary requirement for diversity jurisdiction.
2. Injunctive Relief as a Substantive Remedy
The few products liability class suits seeking injunctive relief which have been brought were decided on narrow procedural grounds, and leave open the question of whether, as a matter of substantive law, equitable relief is ever appropriate in such tort cases. Although injunctive relief has historically been restricted to the protection of only property rights, it is now well established that equitable protection of personal rights by injunction is available upon the same conditions as those regarding the protection of property rights. This recent expansion of the role of equitable relief has been attributed in large part “to the attractiveness of so flexible a remedy in a modern society with expanding regulation of complex economic and social affairs. It is submitted that, notwithstanding the lack of any definitive precedent concerning the availability of injunctive relief to products liability claimants, regulation of the relationship between consumers and manufacturers of defective products is frequently an appropriate controversy for equity’s preventive intervention.
Perhaps the most useful analogy to products liability actions is the power of equity to enjoin a nuisance. The defendant is held to a standard of strict liability in tort in both types of action. Moreover, although the salient feature of a private nuisance is interference with the use and enjoyment of land, “many interferences with personal comfort. . . which at first glance would appear to be wrongs purely personal to the landowner… are treated as nuisances because they interfere with that right to the undisturbed enjoyment of the premises.” Consequently, the interests protected in nuisance and products liability actions often are quite similar. For example, an injunction issued over a century ago against the operation of a rifle range until it was made safe for use without endangering the lives of persons occupying the adjoining property acted ultimately to safeguard the plaintiffs’ personal and physical well-being. Indeed, the interests protected in that nuisance cause of action do not appear to be distinguishable in any meaningful sense from the gravamen of a products liability class suit brought to enjoin the sale of motor vehicles alleged to present a risk of injury from air pollution.
a. The Availability of Equitable Relief
There exists “no general formula” governing the availability of equitable relief. Several principles limiting the issuance of preventive injunctions, however, are clearly recognizable and would thus establish the general parameters of equitable relief in products liability controversies. Initially, it must be shown that the mere recovery of damages at law will not be an adequate remedy and that the plaintiff will, therefore, suffer irreparable harm in the absence of the requested relief. Relevant factors in determining whether alternative remedies are inadequate include the potential need for a multiplicity of damage actions, the seriousness of the potential harm, the uniqueness of the interests protected, and the financial inability of the defendant to respond in damages.
With respect to products liability controversies, these factors would often appear to argue in favor of the propriety of equitable relief. The seriousness of the potential harm and the financial inability of the defendant to respond in damages, of course, present factual issues for case-by-case adjudication. Yet, an injunction directed against harmful conduct of a continuing nature, such as the risk of injury created by a product defect, obviates the need for the multiple damage actions often present in products liability situations, thereby conserving judicial resources and avoiding unnecessary burdens for the plaintiff.
The nuisance analogy noted above lends further support for the propriety of injunctions in products liability suits. The difficulty of ascertaining compensatory damages is frequently a factor favoring equitable relief against private nuisances. Similarly, the assessment of money damages for personal injuries resulting from defective products is highly speculative in nature. Merely awarding compensatory damages manifestly fails to do justice whenever such personal injuries are likely to be substantial and are preventable.
Furthermore, injunctions are a common remedy in nuisance actions because every tract of land is regarded as “unique” and damages, therefore, are not considered adequate when the land’s usefulness is seriously impaired. Yet, human life and safety are no less important than property. Surely the interests protected by products liability law are, at the very least, as “unique” as those protected by nuisance actions.
Finally, it should also be noted that the issue of prematurity-whether the threat of harm is sufficiently ripe to make the grant of preventive relief appropriate-which often arises in nuisance actions is less problematic in products liability suits. In nuisance actions, preventive relief will not be granted to a plaintiff who has suffered no actual damages unless he establishes that the threatened harm is imminent, substantial, and otherwise unavoidable. In products liability cases, on the other hand, typically the representative plaintiff or absentee class members have already suffered substantial personal injuries providing strong evidence that other consumers of the same defective product are likely to sustain similar injuries in the absence of preventive relief.
b. The Scope of Equitable Relief
Once it has been determined that equitable remedies are proper, the court can order any affirmative action it deems necessary to remove or render harmless the source of the threatened injury. The scope of the appropriate relief in products liability cases, therefore, depends upon the risk of injury associated with the particular product defect.
Thus, injunctive products liability actions have been brought in federal courts for a variety of remedies. One injured consumer sought, on behalf of herself and other similarly situated plaintiffs, to enjoin the manufacture and sale of certain color television sets, dangerously prone to implosion and resulting fire, as well as certain mobile homes equipped wvith those defective televisions. Another plaintiff sued, as a private attorney general, 100 for the creation of a fund to be used on behalf of the class plaintiffs for
- conducting research into the causes, cures and prevention of the development of vaginal cancer and other conditions in the female children of mothers who, during the term of their pregnancies, took certain prescription drugs;
- alerting parents and their female offspring of the risks of developing vaginal cancer caused by those drugs;
- and paying the costs of routine preventive examinations of all identified female offspring among the class plaintiffs in order to detect the development of these injuries.
Moreover, the maintenance of class actions primarily seeking injunctive relief does not prevent courts from granting damages or other monetary relief to the class members in the same proceeding. As a result of the role played by compensation of individual claimants in furthering the objectives of risk spreading and deterrence, this relief acts to reinforce the efficacy of the preventive remedy, and is well within the equitable jurisdiction of the court. This power has been liberally exercised in favor of injured class members in injunctive class suits dealing with employment, welfare, securities and other controversies. One commentator has urged that “miass restitution recoveries by official agencies are … persuasive authority for the liberal allowance of ancillary relief for class members in class actions for primarily . . . injunctive relief instituted by ‘private attorneys general.’ ”
Finally, one may question why, even assuming the appropriateness of injunctive class products liability suits, an injured plaintiff would chose such an alternative to the traditional damage action. It is submitted that the enhanced litigation posture following from class action status, and the availability of ancillary monetary remedies in actions seeking injunctive relief would ensure an ample source of potential litigants. Although compensatory remedies are generally thought to be the primary focus of products liability litigation, oftentimes only equitable remedies can afford the most adequate relief. This is true not only in those cases in which the individual consumers thankfully have not yet suffered any actual physical injuries, but also in those cases in which some of the absentee class members have suffered only relatively minor physical injuries not sufficient to justify the enormous litigation expenses required to adjudicate their claims for damages. The interests of these absentee class members may, therefore, be advanced by class representatives with substantial monetary claims, who in addition to furthering the interest of class members, may also recover for their own monetary claims.
II. FEDERAL RULES ANALYSIS
In order to maintain any suit as a class action under rule 23 a plaintiff must satisfy the four prerequisites contained in rule 23(a) and also must qualify the suit under one of the categories of class actions contained in rule 23(b). As noted above, products liability suits primarily seeking damages would appear to be unable to satisfy the “predomination” and “superiority” requirements for certification under rule 23(b)(3). Accordingly, the discussion that follows will be limited to an examination of the ability of injunctive products liability suits to satisfy the prerequisites of rule 23(a) and to qualify under the class action categories contained in rule 23(b)(1) and 23(b)(2).
A. Rule 23(a)-Prerequisites of All Class Actions
1. Numerosity and Joinder-Rule 23(a)(1)
The initial prerequisite to the maintenance of any suit as a federal class action is that the class be so numerous that joinder of all members is impracticable. Although numerosity of the prospective class is perhaps of primary importance, no inviolate criteria have been established, and other factors may be significant to this determination. Thus, the geographic diversity among class members is often considered to determine the practicability of joinder. Additionally, the financial inability of absentee class members to bring individual suits-one of the major stumbling blocks to recovery in products liability cases generally -is also highly relevant under rule 23(a)(1).
The numerosity prerequisite is easily satisfied in injunctive products liability class suits since, whenever it is alleged that the defendant’s defective product presents an unreasonable risk of injury and is distributed in the stream of trade, every ultimate user of that product is a potential class member. Thus, injunctive class actions have been brought on behalf of citywide, statewide, and nationwide consumer classes. The members of such large consumer classes will typically be geographically diverse and unable to bring individual suits either because of financial inability or ignorance of the risk of injury, thereby making joinder of those claims highly impracticable.
2. Common Questions of Law or Fact-Rule 23(a)(2)
Under rule 23(a)(2), a suit may be maintained as a class action only if “there are questions of law or fact common to the class.” Whether a particular product presents an unreasonable risk of injury to the ultimate users or consumers of that product posits the class question in all such suits. Thus, it is submitted, the commonality requirement is satisfied in all products liability class suits. Difficulties in determining issues such as causation, the extent of injuries and the adjudication of individual defenses, which typically are confronted in class suits seeking damages, are not present with respect to the issue of injunctive relief. The injunction question raises “no issues which focus on the activities or circumstances of individual class members. ‘ Although such individual questions would be present when the suit also seeks ancillary monetary relief for individual claimants, subdivision (a)(2) does not require that each question of law or fact be common to all class members. Finally, the nature and scope of the relief mandated by the risk of injury created by the specific product defect also presents a common question as to all class members.
3. Typicality of Claims or Defenses-Rule 23(a)(3)
Rule 23(a)(3) imposes a further requirement that “the claims or defenses of the representative parties be typical of the claims or defenses of the class”. This prerequisite also is satisfied in all injunctive products liability class suits since they are based upon a single alleged defect and seek identical relief as to each class member. Moreover, although individual claims for ancillary relief will include amounts for medical expenses, lost earnings, property damages, or wrongful death that will vary from claimant to claimant, subdivision (a)(3) is satisfied so long as all such claims stem from a single event or are based on the same legal or remedial theory.
4. Adequacy of Representation-Rule 23(a)(4)
Finally, rule 23(a)(4) imposes the obligation that the representative party “fairly and adequately protect the interests of the class.” Whenever class treatment fails to ensure adequately the protection of the interests of absentees1 who will be bound by the judgment, there is a failure of due process.) Subdivision (a)(4), therefore, imposes a minimum obligation that the representative party have substantial claims, that all claims be vigorously prosecuted, and that the class representative have the financial wherewithal for protracted litigation.
Failure to satisfy subdivision (a)(4) has been the basis of several district court decisions denying class action status to injunctive products liability suits. In Weeks v. R.C.A. Corp., an action was brought by the survivor of a mobile home owner who was killed in the fire resulting from the implosion of an allegedly defective color television set manufactured and sold by one of the defendants. The plaintiff sought damages on her own behalf and on behalf of her deceased husband. Additionally, the plaintiff sought class action status for an order enjoining the defendant from continuing to manufacture or to sell other similarly defective products. The court dismissed the class complaint reasoning that, because the named plaintiff no longer owned such a television set and was no longer directly exposed to the alleged risk of injury, she therefore lacked standing to seek injunctive relief on behalf of such an amorphous class.
The Weeks decision is in accord with other cases holding that a plaintiff may not represent a purported class of which that plaintiff is not a member. Among these cases is Rheingold v. E. R. Squibb & Sons, Inc., an action brought by a consumer of a certain prescription drug, diethylstilbestrol (DES), taken during pregnancy to prevent miscarriage. Plaintiff alleged that the female children born to all consumers of that drug were exposed to the risk of developing vaginal cancer. Plaintiff sued for injunctive relief on behalf of her own daughter and all other female children similarly situated against several defendants, each of which had manufactured and sold the drug. The named plaintiff thereby sought to represent the interests of female children born to consumers of drugs that had been manufactured by one or more of the multiple defendants. Because some members of the class might have been exposed to the risk of injury by a defendant different from the particular manufacturer of the DES consumed by the named plaintiff, the court denied class status for lack of proper standing.
It is submitted, however, that the Weeks and Rheingold decisions did not focus upon the question of the named party’s ability to represent the class members and turned on confused interpretations of rule 23. Both courts failed to distinguish between the issues of class membership and adequacy of representation. The Weeks decision appears to have overemphasized the significance of the representative’s failure to continue to own a defective television set. The representative plaintiff had suffered the loss of her spouse and her home allegedly as a result of the product defect complained of. She was still, albeit less directly, exposed to the risk of injury presented by the remaining defective television sets owned by other consumers. It would appear, therefore, that she was both capable and highly motivated to represent the proposed class.
The Rheingold decision suffers from the same error. By failing to appreciate the significance of the fact that all class members were exposed to the same risk of injury arising from the same defective product, the court manipulated the concept of class membership to deny class status, yet never reached the factors relevant to the separate inquiry prescribed by rule 23(a)(4).
Although express language of rule 23(a) requires that the named party be a member of the proposed class, the issue of class membership should not be dispositive of the named party’s ability to represent the class. The courts should employ a two-step process. They should first determine whether the named party is a member of the proposed class, and then examine his ability to represent absentee members. In attempting to resolve the second question, the courts should focus upon whether the named party has substantial claims, the financial wherewithal for a protracted litigation, and whether there exists any actual or potential conflict between the interests of the representative party and those of the class members. It is submitted that through this two-step process, adequacy of representation would be examined more thoroughly, and absentee members would receive greater protection.
The corresponding requirement in the California class action statute to that imposed by rule 23(a)(4) has been more clearly construed in the area of injunctive products liability suits. In Anthony v. General Motors Corp.,the plaintiffs were held to be adequate representatives of all owners of certain 1960-1965 models of the defendant’s trucks equipped with allegedly defective disc wheels, notwithstanding the named plaintiffs’ failure to own vehicles manufactured in each suspect model year. The court responded to the defendant’s argument that the plaintiffs were not members of the class they purported to represent by observing:
The gravamen of plaintiffs’ case is the contention that all wheels of the type involved contain an inherent defect which may cause them to fail …. It is patent from the record before us that that issue is one which will require an elaborate and probably a protracted trial. It is exactly the sort of common issue for which class actions are designed.
By thus focusing on the inherent risk of injury in such products distributed in the stream of trade, the Anthony court did not attach undue significance to the fact that the named plaintiffs each owned only one model of the defendant’s truck. Accordingly, plaintiffs were found to be members of the proposed class. Any question concerning the adequacy of the named plaintiffs’ representation of the interests of the absentee claimants required a separate examination of the factors noted above.
Ultimately, adequacy of representation will depend upon the facts of each individual suit. Yet, it is submitted that the central concern of such inquiries is properly upon adequacy of representation as it relates to the scope of and need for the requested relief, rather than on artificial conflicts created by misconceptions concerning membership in and definitions of the classes.
B. Actions Under Rule 23(b)(1)
1. Rule 23(b)(1)(A)
An action that satisfies the four prerequisites of rule 23(a) may be certified as a class suit under rule 23(b)(1)(A) when individual actions brought by or against potential class members “would create a risk of inconsistent or varying adjudications …which would establish incompatible standards of conduct for the party opposing the class.” The scope of rule 23(b)(1)(A) is the subject of some judicial controversy.
Several mass accident decisions have interpreted the rule broadly and granted certification under this subsection on the theory that, without class status, the respective defendants in those actions would be exposed to multiple individual suits and possible conflicting judgments as to liability.160 Other mass accident cases have, however, expressly repudiated such a reading of rule 23(b)(1)(A). Interpreting “incompatible standards of conduct” narrowly to refer only to “conduct required of the defendant in fulfilling judgments in separate actions,” these cases have held that mass accidents are not appropriate for certification under rule 23(b)(1)(A).
It would appear, however, that injunctive products liability suits stand on substantially different footing from other mass accident class actions and are well within the rule’s intendment. One example would be a series of actions seeking to prescribe various design modifications in order to reduce or to eliminate the risk of injury associated with a single product defect. Indeed, specific standards were proposed by the class representative in City of Chicago v. General Motors Corp., and it is not unreasonable to suppose that standards that might have been proposed in individual suits for the same relief could have varied greatly.
Moreover, the drafters suggested that this subdivision might be the appropriate class action category for suits brought to invalidate a bond issue, to abate a common nuisance, or to declare the rights and duties of riparian land owners. These actions, as well as injunctive products liability suits, all endeavor to impose various affirmative duties of conduct upon the respective defendants. The potential for incompatible standards of conduct stems from the differing obligations a court might impose upon a defendant. Thus, the fact that the defendant could be held liable for damages as to one plaintiff and not liable as to another, a situation which courts following the narrow reading of rule 23(b)(1)(A) have held not within the meaning of the rule, 168 is not relied upon for certification in these actions.
2. Rule 23(b)(1)(B)
Class status may be permitted under rule 23(b)(1)(B) when the prosecution of separate suits by individual class members “would as a practical matter be dispositive of the interests of the other members not parties to the adjudications” or when prosecution of separate suits would “substantially impair or impede the ability of the remaining claimants to protect their interests. The drafters suggested that the first part of this subdivision would be the appropriate category for an action by policyholders against a fraternal benefit organization to bar its financial reorganization or for an action by shareholders to declare a dividend, and that the latter clause would be appropriate for an action by creditors to set aside a fraudulent conveyance by a debtor.
In a strict financial sense, the refusal to certify an injunctive products liability suit as a class action acts only to leave absentee class members seeking the same relief with “the same complexity and expense as if no prior actions had been brought,” and does not alone qualify those actions for class status under either clause of rule 23(b)(1)(B). In addition, although one may argue that the prosecution of individual products liability suits may “substantially impair or impede” the ability of class members to bring their claims, it appears that certification would be improper under the latter clause of subdivision (b)(1)(B). However, the prosecution of separate suits for injunctive relief by products liability claimants would, as a practical matter, be dispositive of the interests of the remaining class members and thus argue for certification under the initial clause of rule 23(b)(1)(B).
First, by maintaining class actions, products liability plaintiffs would be entitled to have the court weigh the interests of the entire class as actual parties to the suit in determining the propriety of equitable relief. Conversely, any award of injunctive relief to an individual products liability plaintiff would necessarily affect other similarly situated consumers. Second, prosecution of individual products liability suits will also create stare decisis effects that extend to those controversies involving similar or related product defects. Finally, it should be noted that remedial consequences to other consumers of defective products are specifically contemplated by the riskspreading and deterrent objectives of products liability theory. Certification of such suits as class actions under the initial clause of rule 23(b)(1)(B) would, therefore, be entirely consistent with this substantive law theory.
C. Actions Under Rale 23(b)(2)
Products liability plaintiffs may also seek equitable relief on behalf of large classes of consumers under rule 23(b)(2). Class suits may be permitted under this subdivision when the prerequisites of rule 23(a) have been satisfied and “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” The drafters suggested that this subsection was well suited for civil rights and antitrust cases.
Although there is much overlap between the categories of class suits defined by subdivisions (b)(1) and (2), certification under the latter is limited to those class actions seeking primarily injunctive relief. Certification under subdivision (b)(2) is determined with respect to the appropriateness of injunctive relief based upon the defendant’s past conduct, as documented by the evidentiary record. Certification under subdivision (b)(1), on the other hand, depends upon the defendant’s future obligations or the prospective rights of other claimants, matters that are much less capable of demonstrative proof. Thus, whenever equitable relief is appropriate, rule 23(b)(2) would afford greater access to class treatment of injunctive products liability suits.
Rule 23(b)(2), however, does not permit certification of a class whose members have independent tort claims arising out of the same occurrence and whose representatives assert only liability for damages. Thus, although individual compensatory recoveries may be available in products liability suits certified as class actions, under this subdivision such monetary relief cannot be the predominant type of remedy sought. Thus far the representative plaintiffs in products liability class suits have sought highly specified injunctive relief. Other class representatives, however, may seek to avoid the insurmountable criteria for certification of damage actions under rule 23(b)(3) by conducting such suits under rule 23(b)(2) in the form of equitable actions. Whenever a complaint presents claims for both equitable relief and compensatory damages, close scrutiny will be required to determine the plaintiff’s true motivation.
On balance it would appear that rule 23(b)(2) offers the most promise for certification of products liability suits as class actions. The requirement that the party opposing the class must have failed to perform some legal duty with respect to the class as a whole will always be satisfied by the class question in all such actions–whether the defendant has breached a legal duty to the consumer class by distributing a defective and dangerous product in the stream of trade. Consequently, preventive injunctive relief for the benefit of that consumer class will often be the most “adequate” of all alternative remedies.
The imposition of a standard of strict liability is justified by the societal need to minimize product-related injuries and by the desire to distribute the economic burdens of unavoidable injuries more equitably among all consumers. Class treatment of products liability claims would appear to be entirely consistent with the realization of these social goals:
Class action procedures assist courts in giving full realization to substantive policies in two ways. First, to the extent that they open courts to claims not ordinarily litigated, class actions enable courts to enforce policies underlying causes of action in circumstances where those policies might not otherwise be effectuated. Second, to the extent that they enable courts to see the full implications of recognizing rights or remedies, class action procedures assist courts in judging precisely what outcomes of litigation would best serve the policies underlying causes of action …. Courts are more likely to see both the significance of the claims of a plaintiff and the consequences of imposing liability upon a defendant, and thus are more likely to arrive at a substantively just conclusion …. Moreover, the interests of absentees, who may be affected by the litigation regardless of its class nature, are given representation in the litigative process, and thus are more likely to be given their due.
This Comment has endeavored to explore the possible ways in which injunctive products liability suits are particularly appropriate controversies for class treatment. No categorical barriers appear to exist to certification of these suits as federal class actions. Such actions will generally satisfy the four prerequisites of rule 23(a) and, under the appropriate factual circumstances, appear to fit within either of the two categories of injunctive class actions contained in rule 23. Indeed, injunctive class suits can play a vital role in complementing the substantive theory of products liability law and, at the same time, ameliorate the principal defects in the individual claims system.
Joseph DeCarlo, Jr, 1978.
Click to download the full paper.