The federal courts have ruled consistently for about three years now that personal injury claims that arise from prolonged exposures to toxic substances can’t be aggregated in class actions, since the basic elements of a tort claim in personal injury cases -- proof of injury, whether defendant’s conduct was the proximate cause of the injury, and plaintiff’s contributing behavior -- must be flushed out at separate trials, which defeats the whole purpose of having class actions in the first place. In the landmark Castano decision, the first tobacco class action to be reviewed by a federal court, the 5^th Circuit ruled that class actions were not superior or manageable to the alternative of trying the claims one by one. The court found that differences in state tort laws were too vast to permit a national class action of addicted smokers. In response to the 5^th Circuit ruling, the Castano PLC shifted gears, and filed state-wide class actions in each of some 40 courts, mostly in state courts but some in federal court wee the courts were perceived as plaintiff-friendly. After several initial class certifications — not surprising since well-connected plaintiff counsels can usually steer their claims to judges inclined to view their claims favorably --- a slew of federal courts, and more recently state appellate courts, have ruled that even limiting the claims to just state residents wouldn’t allow the class to withstand the scrutiny imposed by federal Rule 23 governing class certifications (or the state equivalent of Rule 23 governing state class actions).

Last summer, the U.S. Supreme Court issued a decision known as Amchem, which decertified a settlement class of asbestos victims, essentially closing the door on tobacco class actions as well. The Supreme Court held that parties seeking class certification must pass all four threshold tests under Rule 23(a), and then fit into one of four categories under Rule 23(b): The Rule 23(a) tests are numerosity, commonality, typicality, and adequacy of representation. Of the four categories of Rule 23(b), the one used by nearly all tobacco classes is Rule 23(b)(3), referred to as the "superiority" test. A class of this type must satisfy a two-pronged test. (1) The court must find that questions of law or fact common to the class predominate over questions affecting individual members; and (2) The court must find that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Rule 23 spells out four "pertinent" factors to guide courts in determining whether a class meets these criteria. The list includes a) Interests of members of the class in controlling separate actions; b) Extent and nature of any litigation already commenced; c) Desirability of concentrating the litigation of the claims in the particular forum; and d) Difficulties likely to be encountered in the management of a class action.

Following the lead of the U.S. Supreme Court in Amchem, three federal courts have decertified state-only class actions of persons with nicotine-dependency or tobacco injuries — Barnes in Pennsylvania, Ruiz in Peurto Rico, and Smith in Missouri. Two state courts have similarly decertified state-only tobacco class actions — Reed in Washington D.C., and just two weeks ago Hoskins/Frosina in New York. The New York class action was noteworthy since it consisted of five separate class actions — one for each manufacturer — to overcome the manageability and superiority issues. Still, the NY appellate court threw out the cases in their entireties, and suggested that the proposed classes were unmanageable, citing the tobacco companies’ "due process right to cross-examine each [class] member, a task that would take hundreds of years."

Because the tobacco class action came to the Court of Appeals on a petition for a writ of certiorari – which is an extraordinary procedure used when a party does not have an automatic right to appeal – the tobacco companies have to satisfy a rather difficult standard of proof. In considering a petition for writ of mandamus, the Court of Appeals would require the class to be decertified only if the following two conditions are met: (1) Allowing the class action to proceed to trial without reviewing the class certification issue would inflict irreparable harm on the tobacco companies; and (2) Judge Angeletti abused his discretion in certifying the class so far as to have usurped his power. In contrast to the standard of review on an interlocutory appeal, the court cannot reverse Judge Angeletti’s decision just because they do not agree with the outcome. In In re Rhone Poulenc, the 7^th Circuit Court of Appeals, a federal court, considered the hemophiliac class certification under a petition for a writ of mandamus, and ordered the class decertified. We believe that the Maryland Court of Appeals is likely to find the two requirements for a writ of mandamus satisfied and to decertify the class because the basic requirements for a class action under Maryland’s equivalent of Rule 23 have not been met. Specifically, we expect the appellate court to rule that the requirements of predominance and superiority were not satisfied: the smokers to be included in the class have many relevant individual differences in their cases (statute of limitations, cause of injury, comparative fault), there are no individual suits pending in the Maryland courts; and tobacco is still an immature tort (courts need more experience trying individual cases before going the class action route).

Judge Angeletti, of the state circuit court, certified one class of all Maryland residents who have suffered or died from smoking-related illnesses to pursue claims for damages, and a second class of nicotine-dependent persons to pursue a medical-monitoring claim. Judge Angeletti did not cite any Maryland cases that certified mass tort class actions, but relied predominately on federal case law interpreting Rule 23 to decide that class certification was appropriate. This seemed incongruous, since the U.S. Supreme Court and several federal courts have found mass tort class actions inappropriate for class certification over the past few years. In reviewing the Amchem asbestos class certification last year, the Supreme Court said that individual issues predominated over common issues, even when one considered the fact of settlement (which simplifies the case), so that class certification was not appropriate. The Supreme Court held that Rule 23’s predominance requirement could not be met where "class members were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods." Over the past few years, several federal appellate courts and district courts have similarly decertified class actions in mass tort cases: the 5^th Circuit in Castano; the 3^rd Circuit in Georgine; the 6^th Circuit in the penile implant case, the 7^th Circuit in In re Rhone-Poulenc; and the 9^th Circuit in the epilepsy drug class. During that same time period, a dozen federal district courts have denied class certification in mass tort cases.

In his ruling, Judge Angeletti relied on older, distinguishable cases, rather than on these most recent cases that have found that individual issues predominate in mass tort class actions. In finding that common issues predominated, Judge Angeletti minimized the differences between class members’ claims. For example, he summarily found that because the class definition is limited to Maryland residents who have experienced the effects of their injury/dependence in Maryland, only the law of Maryland would apply to all class members. But Maryland law says that in tort actions, the court should apply the law of the state where the tortious injury was suffered. For one of the certified classes, the injury is nicotine dependence. Clearly, many current Maryland residents who qualify for class membership became nicotine dependent while living elsewhere. For the other certified class, the injury is the tobacco-related illness from which they suffer or died. Maryland law thus requires that the court apply the law of the state in which each plaintiff became ill. Again, many class members became ill in a state other than Maryland.

In trying to figure out what the Maryland Court of Appeals will do, we should take into account that court’s approval of a consolidation — which is a joinder — of 8,555 pending asbestos cases for trial on the common issues. In that case, ACandS, Inc. v. Godwin, the court held a trial on several common issues, including state of the art and punitive damages. The trial plan provided for thousands of separate trials to resolve all of the individual issues. However, we think the court will distinguish the asbestos consolidation because: (1) there were no individual tobacco claims actually pending in the Maryland courts, and thus no litigation crisis to resolve; (2) actions for smoking-related injuries are not a mature tort yet; (3) smoking claims involve even more individual issues than asbestos claims; (4) the requirements for class certification are harder to meet than those for consolidation; and (5) a statewide tobacco class action would require far more than 8,555 individual trials after the common issues phase is resolved.

The Maryland Declaration of Rights, Article 23, contains the same guarantee as the 7^th amendment, that parties are entitled to have related facts and issues decided by one jury and that a second jury is prohibited from reexamining those facts and issues. According to Judge Angeletti’s trial plan, a jury will decide common issues regarding the defendants’ conduct in Phase I of the trial. In Phase III, different juries will address individual issues such as injury-in-fact, addiction, proximate cause, reliance, assumption of the risk and contributory negligence. The tobacco companies argue that the Phase III liability trials will necessarily revisit issues decided by the Phase I jury. Several of the federal appeals courts, such as the 5^th Circuit in Castano, have held that allowing a second jury to "redecide" issues already considered in an earlier "common issues" trial may violate the 7^th amendment right to have interrelated issues tried by a single jury. We think the Maryland appeals court will agree with the federal circuit courts that have held that different juries cannot decide overlapping issues.

The tobacco companies challenge the certification of a medical-monitoring class, arguing that Maryland law does not recognize a claim for medical monitoring. They also argue that certification of a class seeking injunctive relief is only appropriate where injunctive relief is the primary relief sought, which is certainly not true in this case. The Court of Appeals could order Judge Angeletti to decertify this class because, as Angeletti admitted, Maryland law has never recognized the claim of medical monitoring.

The Engle trial plan is as follows: Phase I consists of common issues (defendant’s conduct and efforts to conceal the dangers of tobacco; general public’s awareness of smoking’s dangers). After Phase I, the same jury will decide the issue of punitive damages; the judge has so far suggested that the jury will determine a punitives multiplier that would be applied in Phase II and III to any compensatory damages awarded to any individual class member. Phase II will be a full-blown trial for the six class representatives. Phase III will deal with the individual issues associated with each class member’s claim - proof of injury, proximate cause of injury, statute of limitations, and other affirmative defenses. These individual claims, which could number 100,000 -- 200,000 or even more, will be farmed out to all Florida courts. To the best of our knowledge, no mass tort involving personal injuries sustained over a prolonged period has ever made it into the individual trial stage following a common issues trial. In past situations of this nature, defendants have either lost the common issues trial and then settled, or the class has been decertified before the individual trials begin, such as in the Spitzfaden breast implant action in Louisiana state court noted above.

We are constantly asked this question: Why won’t the appellate courts in Florida intervene in the Engle class action, the way that the courts in New York, Maryland, and Louisiana have intervened? For one, the Third District Court of Appeals, which has jurisdiction over the trial court hearing Engle, is known as one of most liberal courts in Florida, three years ago, the 3^rd DCA, as it is known, refused to throw out the Engle class action and instructed Judge Kaye to reinstate the Broin class action after Judge Kaye had denied class certification. The industry asked the Florida Supreme Court for a mandamus review on Engle two years ago — prior to the U.S. Supreme Court Amchem ruling and prior to the recent state class decertification rulings in Barnes, Ruiz, Smith, and Frosina. Without comment, the Florida Supreme Court declined. Assuming the Maryland and Louisiana high courts both decertify their respective state tobacco class actions, we believe the Florida Supreme Court will similarly decertify the Engle class as unmanageable after Phase I or Phase II. The alternative of course, is for the Florida Supreme Court to refuse to hear the Engle appeal again, which would lead the trial court to embark on a process that creates some 100,000 — 200,000 new tobacco claims that would likely wreak havoc on the Florida court system. Absent the Engle class action, all but 500 or so of these 100,000 — 200,000 claims -- filed separately by Wilner and Acosta as individual claims -- would not exist.