As published in Reuters – By Brent Ceryes and Patrick A. Thronson
November 18, 2021 – Since the Supreme Court’s 1997 ruling in Amchem Products, Inc. v. Windsor, it has been widely — and falsely — claimed that personal injury cases cannot be successfully litigated as class actions.
Fortunately for plaintiffs today, issue certification under Federal Rule of Civil Procedure 23(c)(4) has evolved in recent years to become a viable pathway for class certification and case resolution in personal injury and property damage cases.
By employing this tool, plaintiffs can be more successful in obtaining justice in cases involving widespread harm with common factual issues, but where individual damages may be too low to pursue on an individualized basis.
Rule 23(c)(4) states that “when appropriate, an action may be brought or maintained as a class action with respect to particular issues.”
This is known as issue certification. Put simply, it creates an alternative path for class certification by allowing a large or complicated case to be divided into smaller pieces to make it more efficient and manageable.
Where common factual or legal issues are shared by numerous plaintiffs (or defendants), Rule 23(c)(4) allows a court to set those particular issues for trial, leaving individualized issues (e.g., damages) for later, individualized proceedings.
This approach can streamline litigation — including in certain toxic tort cases, consumer protection cases, and other matters that involve common elements of liability — providing access to justice where otherwise there would be none.
One early interpretation of Rule 23(c)(4) held that when plaintiffs sought to certify particular issues under Rule 23(b)(3), the case as a whole had to meet the “predominance” criteria of Rule 23(b)(3). Castano v. Am. Tobacco Co. (Fifth Circuit, 1996).
In other words, a court would have to find that questions of law or fact common to class members predominate over any questions affecting individual members, regardless of whether those individual questions were included among the issues certified.
Fortunately, case law has since progressed. Today, a consensus of the federal circuits permits litigants to meet the predominance requirement of Rule 23(b)(3) by showing that common questions of fact or law predominate only as to the issues sought to be certified, rather than as to the case as a whole.
Federal circuits have affirmed district courts certifying the issue of liability as well as individual elements of liability (or the applicability of defenses) in personal injury and property damage cases, as well as threshold issues.
Under the right circumstances, this approach can provide otherwise unavailable access to justice for groups of people harmed by a common tortious act or series of acts, whose cases might not be economically viable through individual litigation.
Courts have also held that this technique does not run afoul of the Seventh Amendment’s Reexamination Clause. 2 Newberg on Class Actions § 4:92 (5th ed.)
Even though the tide has turned for issue class actions, issue certification remains misunderstood and underutilized among plaintiffs’ lawyers. Too few attorneys are using this tool to their advantage despite its clear benefits.
Issue certification allows for a more “efficient adjudication of the controversy” which benefits everyone involved — plaintiffs and their attorneys, experts who would otherwise have to appear in court potentially hundreds of times, defendants, and already-overburdened court systems.
Instead of hundreds or thousands of claims being litigated individually, with separate juries examining the same documents, considering the same expert testimony, and potentially reaching disparate results, certification avoids this redundancy and results in a substantial savings of time and litigation expense for all parties.
Of course, with this greater efficiency comes a more distilled litigation risk to plaintiffs and defendants.
The jury could find in favor of the plaintiffs or the defendants on these common issues, potentially resulting in a defense verdict that could bind all class members.
However, particularly in cases that might otherwise never be filed due to economic realities, these litigation risks may be necessary, and are shared equally by both parties.
Certain lower dollar cases, including some personal injury cases, can benefit greatly from issue certification. For example, in many environmental cases in the past, personal injury claims have been abandoned — even when the facts suggested there were valid claims — because they could not be litigated on a class-wide basis.
Certification of common liability issues, leaving individualized damages for later proceedings, can provide greater access to the courts for those affected by groundwater contamination, air pollution or other tortious acts, because the claims do not have to be homogeneous for the class to get certified.
In these circumstances, following trial on common liability issues, manageable and cost-effective “mini-trials” may proceed, allowing individualized consideration of each class member’s personal injuries.
Particularly as economic and technological factors make our world smaller, the tortious acts of businesses and individuals often result in widespread economic and non-economic harm.
In some cases, the harm to an individual may be sufficiently large to justify what is often hundreds of thousands, if not millions, of dollars in litigation expenses to bring a case to trial. Commonly, however, it is not.
In the absence of tools like class certification, and issue certification in particular, our justice system would fail to provide fair recourse to these victims, even where the aggregate damages in a case may be enormous.
Without these tools, corporations could engage in dangerous conduct that harms large groups of people without being held accountable by our civil justice system.
Today, issue certification is advancing the interests of justice for plaintiffs, and giving needed case management tools to federal courts, by opening a door for smaller and more diverse cases that might otherwise not be economically viable to pursue, given the high costs of litigation.
Particularly in situations where many people have been harmed by a common course of conduct, plaintiffs’ lawyers should consider whether issue certification may be appropriate, and continue to advocate for its application before judges, rules committees, and legislatures, as necessary.
Phil Federico is a partner at Baird Mandalas Brockstedt & Federico where he helps lead the Mass Tort / Class Action and Environmental Law practices, transitioning into these areas after beginning his career as a medical malpractice litigator.
Phil has led and been involved in historic and groundbreaking litigation with verdicts and settlements exceeding one billion dollars.
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