The defense has done a good job of preventing class certification of drug and device mass torts. Individual issues of usage, causation, reliance, injury, etc. predominate over alleged common issues. It has gotten to the point where it is hard for drug and device hacks to find an interesting class cert decision. For that, we must turn to other issue areas, as in the recent case of Jones v. Brg Sports, 2019 U.S. Dist. LEXIS 128493 (N.D. Ill. Aug. 2, 2019), in which plaintiffs attempted to certify classes of high school and college football players from 18 states who alleged that they were injured while wearing Riddell helmets. (This litigation is different from the NFL concussion lawsuit taking place in Philly a few blocks east of us on Market Street.) The defendant in Jones filed a motion to strike the class allegations because they did not satisfy the requirements of Fed. R. Civ. P. 23(b)(3). The defendant angled for a categorical ruling — i.e., that no personal injury mass tort could support class certification. The court would not go that far, but the judge wrote a very strong, clear opinion denying class certification. (This is the same judge who oversaw the testosterone MDL. He does not mind deciding things. He also does not mind being quite clear and, er, strong, about what he is deciding.)
The plaintiffs argued that the predominant and common issue in the case was whether the helmets had been badly designed. End of story. But that is not the end of the story. It is not the beginning of the end. It is not even the end of the beginning, The court saw that the “core of this case” rests on individual issues such as injury and causation, and each plaintiff used the helmet “for different lengths of time, at various levels of play and in different positions on the field, sustaining different numbers of concussions and other injuries, and receiving varying medical care.” (This judge writes like he knows football. Hmmm. A Chicago judge writing about football concussions – must be a Bears fan.).
The Jones judge was also swayed by the variations in governing law. There are very real tort law differences among the 18 states. Consequently, “the complexity of the individualized factual issues bears [aha! We knew he was a Bears fan] a synergistic relationship with the state-by-state variations in the legal schemes, resulting in innumerable individualized inquiries that destroy both predominance and superiority and thus preclude certification under Rule 23(b)(3).” This concussion class action has been sacked, and the trial judge is like Khalil Mack. (Or, for those of you who have orbited the Sun a few more times, think of the great Deacon Jones. If you want to have a laugh, go on YouTube and look for Deacon’s discussion of his head-slap technique. You will encounter one of the all-time great intersections between the violence of football and the inanity of political correctness. Go ahead. We’ll wait. You owe it to yourself.) (Oddly, this is not the first time this blog has linked to an Deacon Jones video. In this 2013 post, we hearkened back to an old Parkay commercial.)
The plaintiffs tried to save their class action(s) in the usual way, first, by asking for more discovery, and second, by asking for “issue certification” under Rule 23(b)(3). Nope and nope. The court concluded that “no amount of discovery or further narrowing of class definitions will ameliorate these problems.” As for issue certification, the Jones court followed one of our favorite cases, In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995), and held that the proposed bifurcation would unduly up the stakes, and would artificially amalgamate the laws of different jurisdictions, run roughshod over individual issues, and quite possibly violate the defendant’s Seventh Amendment right, “because later juries would necessarily have to reassess duty and breach when assessing issues including comparative negligence and proximate causation.”
The plaintiffs sought class certification purely as a pressure device, and the judge was having none of it. If you want to see brutal pressure, go to Soldier Field and watch the Monsters of the Midway. But such pressure has no place in a courtroom. Still, we’d like to think that the Jones court delivered a nice head-slap to the plaintiffs.