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• McLAUGHLIN v. PHILIP MORRIS, et. al. (PDF) 

In sum, because we find that numerous issues in this case are not susceptible to generalized proof but would require a more individualized inquiry, we conclude that the predominance requirement of Rule 23 has not been satisfied. We recognize that a court may employ Rule 23(c) (4) to certify a class as to common issues that do exist, "regardless of whether the claim as a whole satisfies Rule 23(b) (3)'s predominance requirement." In re Nassau County Strip Search Cases 461 F.3d at 227. Nevertheless, in this case, given the number of questions that would remain for individual adjudication, issue certification would not "reduce the range of issues in dispute and promote judicial economy." Robinson v Metro-N. Commuter R.R. 267 F.3d 147, 168 (2d Cir. 2001). Certifying, for example, the issue of defendants' scheme to defraud, would not materially advance the litigation because it would not dispose of larger issues such as reliance, injury, and damages. See id at 167 n.12. We therefore decline plaintiffs' request for issue certification.

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While redressing injuries caused by the cigarette industry is 'one of the most troubling . . . problems facing our Nation today', . . . not every wrong can have a legal remedy, . . . at least not without causing collateral damage to the fabric of our laws. Plaintiffs' putative class action suffers from an insurmountable deficit of collective legal or factual questions.
JOHN M. WALKER, JR., Circuit Judge, for the Appeals panel in Schwab.