MEMORANDUM
SUPREME COURT : QUEENS COUNTY
IA PART 18
___________________________________
x
WILLIAM GEIGER AS ADMINISTRATOR OF
INDEX NO.10687/97
THE ESTATE OF ANITA GEIGER, WILLIAM
GEIGER, MURIEL HOFFMAN and BENNETT
BY: BERKE, J.
GOTTLIEB, individually and on behalf
of others similarly situated,
DATED:JUNE 21,1999
Plaintiffs,
- against -
THE AMERICAN TOBACCO COMPANY,
AMERICAN BRANDS, INC., LORILLARD
INC., LORILLARD TOBACCO COMPANY,
PHILIP MORRIS INCORPORATED, PHILIP
MORRIS COMPANIES, INC., RJR NABISCO,
INC., R.J. REYONDS TOBACCO COMPANY,
LIGGETT GROUP, INC., now known as
Brooke Group, Ltd., LIGGETT & MYERS
TOBACCO COMPANY, BROWN & WILLIAMSON
INDUSTRIES, INC., BROWN & WILLLIAMSON
TOBACCO CORPORATION, THE COUNCIL FOR
TOBACCO RESEARCH-USA, INC. and THE
TOBACCO INSTITUTE, INC.,
Defendants.
_________________________________x
The court has before it a cross motion by the plaintiffs for an order pursuant to CPLR 902 determining that this action may proceed as a class action.
The plaintiffs are individuals or representatives of individuals or the spouses of individuals who allegedly contracted lung or throat cancer from the smoking of cigarettes. Their complaint attempts to assert thirteen causes of action against cigarette manufacturers and related entities, the first for failure to warn prior to 1969, the second for failure to warn after 1969, the third for fraud and deceit, the fourth for negligent misrepresentation, the fifth for negligent and defective design, the sixth for strict products liability, the seventh for breach of express warranty, the eighth for breach of the implied warranty of merchantability, the ninth for breach of the implied warranty of fitness for a particular purpose, the tenth for loss of consortium, the eleventh for wrongful death, the twelfth again for loss of consortium, and the thirteenth again for wrongful death.
Paragraph 7 of the complaint defines the proposed class as: "(a) all persons in the State of New York who have smoked cigarettes manufactured by the defendant tobacco companies and have contracted lung and/or throat cancer as a result of having smoked said cigarettes [and] (b) the estates, representatives, administrators and spouses of all persons in the State of New York who have smoked cigarettes manufactured by the defendant tobacco companies [and who have] contracted lung and/or throat cancer as a result of having smoked said cigarettes [and who have] died from said cancer." The term "throat cancer" includes laryngeal, pharyngeal, and tongue cancer. The plaintiffs' attorney affirms "there will be approximately 65,000 class members for the years 1994 to 1998, and the number will grow by approximately 13,000 in each year subsequent ***." (Finz affirmation, March 22, 1999, p 5.) The estimate given here by the plaintiffs' attorney does not include thousands of spouses who would sue for loss of consortium.
By decision and order (one paper) dated July 24, 1997, Mr. Justice Lerner denied a motion by the defendants to dismiss the complaint for, inter alia, failure to state a cause of action and granted on an interim basis a cross motion by the plaintiffs for class certification. The defendants appealed. By decision and order dated July 6, 1998, the New York State Supreme Court, Appellate Division, Second Department, dismissed the second cause of action and partially dismissed the fourth, eighth and ninth causes of action. The Appellate Division also deleted that part of the lower court's order which granted the plaintiffs' cross motion for class certification and remitted the matter for further proceedings. The Appellate Division stated: "The record is insufficient to make an informed determination as to all of the prerequisites to certification of a class action. However, given, inter alia, the scope and complexity of the issues presented, we find it appropriate to remit the matter for limited discovery and/or a mini-hearing on the issue of class certification ***." (Geiger v American Tobacco Company, 252 AD2d 474.)
The parties appeared before this court on September 15, 1998 for a preliminary exploration of the matters in dispute and the procedures for making an appropriate record. Approximately two weeks later, the plaintiffs made an offer of proof for class certification concerning the criteria set forth in CPLR 901(a) to which the defendants responded. The parties agreed to conduct depositions and to submit affidavits rather than to hold a "mini-hearing."
On February 19, 1999, the defendants took the deposition of named plaintiff William Geiger, the administrator of the estate of Anita Geiger, who is suing both as a representative and as an individual for loss of consortium. Geiger testified that Anita Geiger was born on September 11, 1936 and that they began dating when she was seventeen. She was then smoking up to a pack of Lucky Strikes or Camels per day. They got married in 1954, and later in life she smoked up to a pack of Winstons and Parliaments per day. Anita Geiger read newspapers and magazines and watched news programs on television, but the witness did not know what his wife may have read about nicotine published by tobacco companies. Anita Geiger never told her husband that it was impossible for her to quit smoking, and he could not recall her ever attempting to stop smoking for any period of time prior to her last illness. Anita Geiger stopped smoking in May 1995, and she died on August 14, 1995 from lung cancer.
The defendants took the deposition of named plaintiff Muriel Hoffman, who suffers from lung cancer, on March 8, 1999. The plaintiff, born December 13, 1941 in Greenpoint, New York, completed two and one-half years of high school, and she has held clerical and manufacturing jobs, none of which caused her to contract an illness. She tried her first cigarette at age 13, and she started smoking Winstons regularly at about age 16. She never smoked a pipe or used chewing tobacco. By 1961, as children came, she smoked a pack of cigarettes per day. Between 1961-1976 she smoked two packs a day at times, and in the early 90's her habit reached three packs a day. At various times, she has smoked Newports and Winstons, and she now smokes up to two packs a day of Marlboros. The plaintiff switched to Marlboro in 1996 "because I got cancer smoking Winston. I thought I would try a Marlboro." (Tr., p. 53.) A doctor told her to stop smoking when she was in her forties because she had developed bronchitis several times a year. The plaintiff made several unsuccessful attempts to stop smoking from 1960-1995, trying various methods. However, she did stop smoking during her pregnancies, allegedly because of morning sickness. The plaintiff tried low tar cigarettes, but gave them up because "they weren't satisfying." (Tr., p. 55.) The plaintiff, who reads magazines and watches television news programs, has seen health warnings such as "Smoking Causes Lung Cancer." Neither of her parents died of lung cancer, but one brother had lung cancer and another had oral cancer.
The defendants took the deposition of named plaintiff Bennett Gottlieb on March 15, 1999. The plaintiff, born in 1946, has lived in New York State his entire life, except for four years he spent in service. The plaintiff, a high school graduate, took several college courses, and he received a certificate from Polyclinic Hospital School of Radiological Technologies. The Island Medical Center employs him as the Administrative Director of Radiology, and he has taken chest x-rays of patients. Gottlieb began smoking at about age 14, not telling his parents until he turned 16. He wanted to be "hip," to be "cool." Within months of his first cigarette, he was smoking every day, choosing Marlboros or Kents, and as an adult, he smoked a pack a day. He smoked Marlboros from around 1962 to 1996, even though he knew at some point that the tar and nicotine rating for that brand was the highest. He testified that he probably became addicted when he had his first cigarette (tr., p. 42), though he later testified that he isn't sure of the date that he became incapable of stopping. (Tr., p. 48.) The plaintiff tried various methods to quit smoking, including hypnosis, which were unsuccessful, though he did manage to stop smoking in 1990 for six weeks when he had gall bladder surgery. The plaintiff finally stopped smoking on January 11, 1996, and when asked what "special technique" he used to quit on that day, the plaintiff replied "eight hours of radical neck dissection." (Tr., p. 71.) Gottlieb's continued abstention has been motivated by 37 radiation treatments, 30 hyperbaric treatments, and loss of teeth, salivary glands, and taste buds. Gottlieb has had periodontal disease. The plaintiff's attorney directed the witness not to answer questions about an alleged notation in his medical records concerning weekly marijuana use.
The plaintiffs did not conduct any depositions, choosing instead to submit affidavits. Among the salient points purportedly established by plaintiffs' medical experts are the following: (1) epidemiological studies of large populations are used to demonstrate that a chronic exposure to a substance causes disease, (2) tobacco smoke contains more than forty established carcinogens, (3) current smokers are seventeen times more likely to suffer from lung cancer and throat cancer than nonsmokers, (4) cigarettes are a defective product without benefit to society or the individual, (5) information that smoking is harmful to health was available to cigarette manufacturers from at least the 1930's, (6) smokers do not have an adequate perception of the risks of smoking, and (7) those who are able to quit smoking are rare. The plaintiffs also submitted an affidavit from Norwood S. Wilner, an attorney and the lead counsel in the trial of four tobacco cases, who alleges that "the vast majority of the time on each trial was spent on generic issues which did not differ trial to trial." The plaintiffs also placed into the record an affidavit from the Honorable Milton Mollen, formerly the Presiding Justice of the Appellate Division of the Supreme Court of the State of New York, Second Department, who states: "As of December 8, 1998, there were approximately 178,000 tort cases pending in the Supreme Court throughout New York State, with almost 120,000 of these in New York City ***. The court system is struggling to maintain its level of dispositions under this ever increasing burden." Mr. Justice Mollen observes that the class proposed in this case exceeds 50,000 members composed of individuals who allegedly sustained lung or throat cancer from cigarettes or their representatives plus "tens of thousands of spouses of those in the class who have derivative actions." Mr. Justice Mollen finds that "[a]n influx of 50,000 or more additional complex tort cases, all essentially containing similar allegations, would completely overburden the courts and jury system," He concludes that "the mechanism to avoid this predicament is to certify a class of individuals and convene one trial to dispose of as many issues common to all the claims as possible."
In addition to the depositions of the named plaintiffs, the defendants have also submitted, inter alia, affidavits from various experts and depositions from other trials. Although these materials are too voluminous for summary here, the following allegations may be noted: (1) lung cancer may have various causes such as genetic predisposition, occupational exposures, and environmental exposures, (2) lung cancer commonly travels from other sites in the body, (3) alcohol consumption, periodontal disease, and use of marijuana are risk factors associated with throat cancer, (4) the diagnosis of dependence always requires an individual assessment of the individual smoker, (5) the public had an awareness that tobacco use was habit forming and carried health risks dating back to colonial times, (6) manufacturers, instead of manipulating the level of nicotine, have long offered consumers a great variety of cigarettes with different nicotine levels, and (7) an estimated fifty million smokers in the United States have stopped smoking since the Surgeon General's report of 1964.
On April 12, 1999, this court heard oral argument on the cross motion, which was largely devoted to whether there were any particular issues in the case which could be given class action treatment pursuant to CPLR 906. Toward the end of oral argument, the plaintiffs' attorneys offered to "withdraw" their fraud cause of action for the purposes of class action certification. The plaintiffs subsequently also withdrew from class action consideration causes of action for negligent misrepresentation and breach of express warranty. (See plaintiffs' sur-reply memorandum of law, p. 3.) The plaintiffs purport to "simplify issues for trial" by withdrawing those causes of action where reliance is an element.
There are five criteria under CPLR 901 which must be met and at least five additional factors under CPLR 902 which must be given consideration before a class action may be certified. (See, Askey v Occidental Chemical Corp., 102 AD2d 130 [Fourth Dept, 1984].)
CPLR 901, "Prerequisites to a class action" provides in relevant part:
a. One or more members of a class may sue or be sued as representative parties on behalf of all if:
1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. the representative parties will fairly and adequately protect the interests of the class; and
5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
CPLR 902, "Order allowing class action" provides in relevant part:
The action may be maintained as a class action only if the court finds that the prerequisites under section 901 have been satisfied. Among the matters which the court shall consider in determining whether the action may proceed as a class action are:
1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;
2. The impracticability or inefficiency of prosecuting or defending separate actions;
3. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
4. The desirability or undesirability of concentrating the litigation of the claim in the particular forum;
5. The difficulties likely to be encountered in the management of a class action.
"CPLR 902 provides that the court may permit a class action to be maintained only if it finds that all of the prerequisites under CPLR 901 have been satisfied ***." (3 Weinstein-Korn-Miller, NY Civ Prac, par. 902.06 [emphasis added].) The plaintiffs have the burden of showing that the criteria of CPLR 901 and 902 are met. (Ackerman v Price Waterhouse, 252 AD2d 179; Small v Lorillard Tobacco, Co., 252 AD2d 1; Canavan v Chase Manhattan Bank, 234 AD2d 493; Askey v Occidental Chemical Corp., supra.) "A motion for class certification which is predicated on general, conclusory allegations should be denied ***." (Askey v Occidental Chemical Corp., supra, 138; Canavan v Chase Manhattan Bank, supra.)
"New York's class action statute (CPLR 901-909) has much in common with Federal rule 23 ***. The prerequisites to the filing of a New York class action are virtually identical to those contained in rule 23." (In the Matter of Colt Industries Shareholder Litigation, 77 NY2d 185, 194.) State courts rely upon federal case law applying Rule 23 in determining whether a class action may be certified under CPLR Article 9. (See, e.g., Stern v Carter, 82 AD2d 321; Friar v Vanguard Holding Corp., 78 AD2d 83.)
Two federal appellate courts applying Rule 23 have unanimously denied class certification in tobacco cases similar to the one at bar. (See, Barnes v American Tobacco Co., 161 F3d 127 [3rd Cir, Nov. 12, 1998]; Castano v American Tobacco Co., 84 F3d 734 [5th Cir, May 23, 1996].) At least seven federal district courts have also denied class certification pursuant to Rule 23 in similar tobacco cases. (See, Emig v American Tobacco Co., Inc., 184 FRD 379 [D. Kansas, Dec. 21, 1998]; Insolia v Phillip Morris, Inc., 97-C-0347 [W.D. Wisc., Dec. 16, 1998]; Ruiz v American Tobacco Co., 180 FRD 194 [D.P.R., March 17, 1998]; Walker v Liggett Group, Inc., 175 FRD 226 [S.D. W. Va., Aug. 5, 1997]; Arch v American Tobacco Co., Inc., 175 FRD 469 [E.D. Penn, June 3, 1997]; Smith v Brown & Williamson Tobacco Corp., 174 FRD 90 [W.D. Mo., May 22, 1997]; Lyon v American Tobacco Co., 1997 US Dist. Lexis, 18365 [S.D. Ala.].)
As far as state courts are concerned, the New York State Supreme Court, Appellate Division, First Department, in Small v Lorillard Tobacco Co. (252 AD2d 1) held on October 27, 1998 that class certification was not warranted in a tobacco action cast as a consumer fraud case. A judge of the New Jersey Superior Court has also denied class action certification in a case similar to the one at bar. (See, Cosentino v Phillip, Morris, Inc., No. MID-L-5135-97, October 22, 1998, recon, February 11, 1999.)
The plaintiffs have cited the decisions of only two state courts which have permitted tobacco cases to proceed as a class action. In Broin v Philip Morris Companies, Inc. (641 So. 2d 888, March 15, 1994), the District Court of Appeal of Florida, Third District, certified a class of nonsmoking flight attendants who allegedly suffered injury caused by the inhalation of second-hand smoke in airplane cabins. The case is of limited precedential value because while the court applied a commonality test, the court gave little, if any, consideration to the predominance test. Moreover, the court gave no consideration to whether causation is an individual issue, and the court simply shrugged off individual Statute of Limitations and choice of law problems as "of no moment." (Broin v Philip Morris Companies, Inc., supra, 891.) These problems are, of course, very significant. (See, Castano v American Tobacco Co., supra.)
In R.J. Reynolds Tobacco Co. v Engle (672 So. 2d 39, January, 1996), the District Court of Appeal of Florida, Third District, certified a class of Florida citizens and residents who had suffered or died from diseases caused by their addiction to cigarettes. The Appellate Division, First Department, criticized this case on the ground that "there was no analysis of why the common issues predominated over individual issues" and noted that the case was ultimately dismissed because of federal preemption. (Small v Lorillard Tobacco Co., supra, 7.) According to the Appellate Division, First Department, "the action was ultimately dismissed as preempted by the Federal Cigarette Labeling and Advertising Act (Engle v R.J. Reynolds Co., Fla. Cir Ct, Mar. 28, 1997, Solomon, J.)." (Small v Lorillard Tobacco Co., supra, 7.)
In Scott v American Tobacco Co. (725 So. 2d 10, Nov. 4, 1998), the Court of Appeal of Louisiana, Fourth Circuit, certified a tobacco case brought on a claim of medical monitoring. "In the instant case," the court wrote, "we are concerned basically with one substance only, nicotine, and one effect only, addiction." (Scott v American Tobacco Co., supra, 13.) However, most jurisdictions are of the view that addiction is a highly individual issue (see, e.g., Barnes v American Tobacco Co., supra; Castano v American Tobacco Co., supra), and the Louisiana court's impression that the tobacco case involved a mass tort arising from a common cause finds no support in other reported cases. A tobacco case does not involve a mass tort arising from a single accident or catastrophic event. Moreover, in the Louisiana medical monitoring case, a plaintiff would have to prove that as a proximate result of exposure to a substance, he suffered a significantly increased risk of contracting a serious latent disease. This is a far less difficult and far less individualistic burden of proof than that faced by a plaintiff in the case at bar where proximate causation of his specific disease must be proven.
Turning back to the law of this jurisdiction, the court notes that the Appellate Division, Second Department, has stressed the commonality, predominance, and superiority criteria of CPLR 901 in its more recent class action decisions. (See, e.g., Karlin v IVF American, Inc., 239 AD2d 562; Komonczi v Fields, 232 AD2d 374.) The second prerequisite of CPLR 901 concerns "questions of law or fact common to the class which predominate over any questions affecting only individual members." (Emphasis added.) In their complaint, the plaintiffs purport to identify some of the common issues in this case as follows:
a. whether cigarettes cause lung cancer;
b. whether cigarettes cause throat cancer;
c. whether and when the defendants knew or should have known that cigarettes cause lung cancer;
d. whether and when the defendants knew or should have known that cigarettes cause throat cancer;
e. whether the defendants knowingly and intentionally entered into a common scheme or plan to conceal information and misrepresent information about cigarettes, particularly the addictive nature of nicotine and the cancer causing properties of tar;
f. whether the tobacco companies have controlled and manipulated the levels of nicotine in their cigarettes;
g. whether the acts of the defendants constitute negligence, gross negligence, fraud, misrepresentation, breach of warranties and failure to warn;
h. whether the tobacco companies' cigarettes are defectively designed;
i. whether the plaintiffs and those similarly situated are entitled to compensatory, punitive and exemplary damages.
Regarding issues a and b, numerous other courts have concluded that causation in a tobacco case does not present a common issue. (See, e.g., Small v Lorillard Tobacco Co., supra; Barnes v American Tobacco Co., supra; Castano v American Tobacco Co., supra; Emig v American Tobacco Co., supra; Arch v American Tobacco Co., Inc., supra.) Both Emig (supra) and Arch (supra) rely on In re Agent Orange Product Liability Litigation (818 F2d 145, 165 [1987]), where the Court of Appeals, Second Circuit, stated that the "relevant question, therefore is not whether Agent Orange has the capacity to cause harm, the generic causation issue, but whether it did cause harm and to whom. That determination is highly individualistic ***." (Emphasis in original.) The Appellate Division, Second Department, reached a similar conclusion years earlier in Rosenfeld v A.H. Robins Co., Inc. (63 AD2d 11, 1978), where class action certification was denied in the Dalkon Shield case: "Assuming, for the sake of argument, that in the instant litigation it were to be proved that the Dalkon Shield had been defectively designed, it could not be inferred therefrom that each and every woman who suffered pelvic or uterine injury following the use of the Dalkon Shield suffered that injury as a result of her use of said shield. The injuries may have resulted from a variety of factors completely unrelated to the use of the Dalkon Shield ***." (Rosenfeld v A.H. Robins Co., Inc., supra, 17 [emphasis in original].) The Appellate Division found that causality had to be determined "on a case-by-case basis." (Rosenfeld v A.H. Robins Co., Inc., supra, 17.)
Like the injuries alleged in Agent Orange (supra) and Rosenfeld (supra), lung cancer has many risk factors such as heredity, alcohol, occupational exposure, environmental exposure, diet, and smoking, and throat cancer has diverse risk factors such as periodontal disease, marijuana use, and tobacco use. As the depositions in this case show, each of these risk factors would have to be explored on a case-to-case basis. Plaintiff Gottlieb, for example, had periodontal disease and may have smoked marijuana. As the depositions also show, the victims of cancer did not all smoke the same brand or combination of brands, did not smoke the same quantities of cigarettes, and did not smoke for the same periods of time. Just the risk factor arising from the use of tobacco alone will require exploration on an individual basis. In sum, the issue of causality is certainly not a common one.
Insofar as issues c, d, e, and f are concerned, the plaintiffs' abrupt withdrawal of the fraud, negligent misrepresentation, and breach of express warranty causes of action from class action consideration undermines, in whole or in part, their contention about commonality. After the Appellate Division's CPLR 3211 order and after the plaintiffs' withdrawals, the only causes of action remaining for class consideration are the first (failure to warn prior to 1969), the fifth (negligent and defective design), the sixth (strict products liability), the eighth, in part, (breach of implied warranty of merchantability), the ninth, in part, (breach of implied warranty of fitness for a particular purpose), and the derivative claims. The plaintiffs did not show that scienter and deception remain in this case as allegedly significant common issues after the withdrawal of their central fraud claim. Moreover, a conspiracy must rest on an intentional tort (see, Cresser v American Tobacco Co., 174 Misc 2d 1; Portnoy v American Tobacco Co., 1997 WL 92040; Lindsay v Lockwood, 163 Misc 2d 228), and the plaintiffs did not adequately show that a viable intentional tort remains in their case. At best for the plaintiffs, they have muddied the record concerning whether conspiracy remains in this case as a common issue, and, if it does not, then further question arises concerning whether the non-manufacturing defendants (the parent companies and trade organizations) may be held in.
Item g (negligence, etc.) is little more than a list of causes of action. The plaintiffs, who have the burden of persuasion on this motion, did not show here that there are particular issues pertaining to these causes of action which are common to the class. Item h (defective design) is not a common issue. There are numerous brands of cigarettes which differ in design and content. Item i, entitlement to compensatory and punitive damages, is not a common issue. (See, Karlin v IVF American, Inc., supra; Komonczi v Fields, supra.)
The court notes that addiction is not a common issue (see, e.g., Small v Lorillard Tobacco Co., supra; Barnes v American Tobacco Co., supra), since individual inquiry would have to be made into, e.g., attempts to quit smoking and since credibility would have to be assessed for each plaintiff. The Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed. 1994), published by the American Psychiatric Association, gives several "criteria for substance dependence," all of which the defendants would have the right to examine on a case-by-case basis:
Criteria for Substance Dependence
A maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of the substance to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of the substance
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for the substance (refer to Criteria A and B of the criteria sets for Withdrawal from the specific substances)
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3) the substance is often taken in large amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control substance use
(5) a great deal of time is spent in activities necessary to obtain the substance (e.g., visiting multiple doctors or driving long distances), use [of] the substance (e.g., chain-smoking), or recover[y] from its effects
(6) important social, occupational, or recreational activities are given up or reduced because of substance use
(7) the substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worse by alcohol consumption)
Even assuming that there are some common issues present in this case, the plaintiffs completely failed to show that they "predominate." (See, CPLR 901[a][2]; Karlin v IVF American, Inc., supra; Komonczi v Fields, supra.) "[T]he existence of a common issue does not by itself suffice to establish the predominance of issues common to the putative class necessary to justify a class action." (Gordon v Ford Motor Co., ___ AD2d ___, 687 NYS2d 369 [First Dept, April, 1999].) In Gordon (supra), the existence of a common issue, whether 1988 and 1989 year model Lincoln Continentals were defectively designed, did not satisfy the predominance test where individual issues pertaining to about 60,000 members of the putative class would become the focus of the litigation.
"The fundamental issue under CPLR 901(a)(2) is whether the proposed class action asserts a common legal grievance, i.e., whether the common issues predominate over or outweigh subordinate issues that pertain to individual members of the class. When such predominance is established, it follows that the economies of time, effort, and expense, envisioned by the class action format, may be achieved ***. The use of a predominance test was not meant to create any rigid criteria in determining whether a class action should proceed. It is rather a pragmatic, functional and ad hoc test to determine whether the proposed class members are more bound together by a mutual interest in the adjudication of common questions than they are divided by the individual members' interest in matters peculiar to them." (3 Weinstein-Korn-Miller, NY Civ Prac, par 901.11.) "[P]redominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." (Amchem Products, Inc. v Windsor, 521 US 591, 117 S Ct 2231, 2249 [1997].) The United States Supreme Court applied the predominance test in Amchem (supra) and stated: "Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard." (Amchem Products, Inc. v Windsor, supra, 2250.) The presence of numerous individual issues may "overwhelm" the common issues (Georgine v Amchem Products, Inc., 83 F3d 610, 630, affd sub nom Amchem Products, Inc. v Windsor, supra) and undermine class cohesion. (See, Amchem Products, Inc. v Windsor, supra.)
While in Friar v Vanguard Holding Corp. (supra, 97), decided in 1980, the Appellate Division, Second Department, focused the predominance test on whether the use of a class action would result in economies of time, effort, and expense and achieve uniformity of decision as to persons similarly circumstanced, approximately two years later, in Kleinberg v Frankel (89 AD2d 556), the Appellate Division, Second Department, distinguished Friar v Vanguard Holding Corp. (supra) and stated upon its denial of class certification, "there is no issue common to the suggested class which, if resolved, would decide the most significant issue in all of the cases to be encompassed by the class ***." (Kleinberg v Frankel, supra, 557.) "The proceeding would inevitably 'splinter into individual trials' *** and would not 'achieve economies of time, effort, and expense and promote uniformity of decision as to persons similarly situated.'" (Kleinberg v Frankel, supra, 557, quoting Strauss v Long Is. Sports, 60 AD2d 501, 507 and Friar v Vanguard Holding Corp., supra, 97.) The more recent decisions of the Appellate Division, Second Department, concerning class certification show that the court's predominance test is directed toward the cohesiveness of the class, and those cases which presented significant, individual issues did not qualify for class action treatment. (See, e.g., Aprea v Halzeltine Corp., 247 AD2d 564; Karlin v IVF American, Inc., supra; Komonczi v Fields, supra.)
In the case at bar, the number and significance of individual issues overwhelm those which are arguably common to the class. (See, e.g., Small v Lorillard Tobacco Co., supra; Barnes v American Tobacco Co., supra; Castano v American Tobacco Co., supra.) Near the very beginning of each lung plaintiff's case, there may be a complex issue as to which type of lung cancer he suffers from, since, according to one of defendants' medical experts, there are various types of the disease, not all of which have been consistently associated with smoking. (Affidavit of David H. Goldstein, M.D., p. 2.) The very significant issues of addiction and causation are individual in nature. (See, e.g., Barnes v American Tobacco Co., supra; Rosenfeld v A.H. Robins Co., Inc., supra.) The affirmative defenses raised by the defendants such as Statute of Limitations (see, Rosenfeld v A.H. Robins, Co., Inc., supra) and assumption of risk (see, Arbegast v Board of Education, etc., 65 NY2d 161) must be adjudicated on a case-by-case basis. Comparative fault will also have to be weighed for each individual plaintiff. (See, Rosenfeld v A.H. Robins Co., Inc., supra; Barnes v American Tobacco Co., supra.) Choice-of-law problems also require individual analysis where members of the putative class did not contract cancer in New York. (See, Schultz v Boy Scouts of America, 65 NY2d 189; Castano v American Tobacco Co., supra.) Entitlement to compensatory and punitive damages will have to be proven on an individual basis, and the trivial sums envisioned by the sponsors of the class action legislation will not be involved. Particular causes of action asserted by the plaintiffs have their own individual issues. For example, under strict products liability, each plaintiff will have to prove that each type of cigarette he smoked contained a defect at the time he smoked. (See, Barnes v American Tobacco Co., supra.) A cause of action for breach of implied warranty of merchantability involves individual proof that the product was not fit for its ordinary purpose. (See, Gordon v Ford Motor Co., supra.) Although there are undoubtedly many more individual issues than those noted above, further inquiry would be pointless. Clearly, individual issues overwhelm any allegedly common issues that remain in this case.
Concerning predominance, the court also observes that the economies envisioned by the Friar decision may be largely illusory in this case. Issues tried in common in a class action may reappear later in the case as individual issues are tried. (See, Castano v American Tobacco Co., supra.) For example, assuming causation could be tried in a class manner, the same evidence would have to be considered in connection with comparative fault. No economy will be achieved if two juries have to hear much the same evidence, and, indeed, the Castano court found a Seventh Amendment problem in having two different juries decide the same issue.
The predominance criterion (CPLR 901[a][2]) and the superiority criterion (CPLR 901[a][5]), to which the court now turns, obviously overlap since the greater the number of individual issues the less likely superiority can be established. The Castano court addressed the difficulty of making a superiority determination in a case involving an "immature tort." "Our specific concern is that a mass tort cannot be properly certified without a prior track record of trials from which the district court can draw the information necessary to make the predominance and superiority analysis required by rule 23. This is because certification of an immature tort results in a higher than normal risk that the class action may not be superior to individual adjudication." (Castano v American Tobacco Co., supra, 747.) "Take, for example, the district court's plan to divide core liability from other issues such as comparative negligence and reliance," the Court of Appeals continued. "The assumption is that after the class verdict, the common issues will not be part of the follow-up trials. The court has no basis for that assumption. It may be that comparative negligence will be raised in the individual trials and the evidence presented at the class trial will have to be repeated. The same may be true for reliance. The net result may be a waste, not a savings, in judicial resources. Only after the courts have more experience with this type of case can a court certify issues in a way that preserves judicial resources." (Castano v American Tobacco Co., supra, 749.)
In an attempt to establish, inter alia, superiority, the plaintiffs have submitted the affidavit of Norwood S. Wilner, an attorney who was the "lead counsel in the trial of four (4) tobacco related cases," but his affidavit does not establish the kind of "track record" that would justify class certification. He refers to four tobacco cases that went to verdict, but he does not say what the verdicts were. Indeed, on page 29 of the defendants' joint memorandum, in discussing causation, the defendants refer to one of Wilner's cases, Karbiwynk v R.J. Reynolds Tobacco Co. (No. 95-04697-CA, Dist Ct Jacksonville), as having gone to a defense verdict. The plaintiffs have not shown that an adequate number of tobacco cases have been tried with favorable results, and obviously the merits of this immature mass tort should first be adequately tested on an individual basis before the commencement of an enormous class action. Moreover, not only have there been relatively few trials, this court has not had any motions for summary judgment submitted to it whereby unmeritorious causes of action, if any, in the tobacco cases may be pruned. (The tobacco defendants have submitted a few CPLR 3211 motions.) Cases from other jurisdictions show that pruning by way of summary judgment or directed verdict is possible. (See, e.g., Allgood v R.G. Reynolds Tobacco Co., 80 F3d 168 [defendants awarded summary judgment dismissing failure to warn claim on "common knowledge" defense]; Roysdon v R.J. Reynolds Tobacco Co., 849 F2d 230 [directed verdict for defendant on defective product claim]; Marks v R.J. Reynolds Tobacco Co., 965 F Supp 857 [defendants awarded summary judgment on defective design and express warranty causes of action].) The plaintiffs in these tobacco cases typically bring a "shot-gun" type of complaint, and a squandering of judicial resources will occur if a class is certified before causes of action are adequately tested for merit through motion practice or before causes of action have been shown through practical experience useless to try.
Wilner's affidavit also does not provide a reliable track record because he asserts "the only individual issues are entitlement to damages, diagnosis of the plaintiff's disease and attribution to cigarette smoke, and analysis of defect for the major brands smoked by the plaintiff." As the depositions of the named plaintiffs in this case show, there are numerous other issues, as, for example, Statute of Limitations and comparative fault.
The Castano court observed that superiority cannot be found on the basis of speculation that there are thousands of individuals ready to file tobacco cases. The plaintiffs' claim of superiority rests on the allegation that a class action is superior to thousands of individual suits, but these individual suits may fail to materialize. Indeed, this court has seen only a relative few filed, and they are, for the most part, lying relatively dormant. Class action treatment of a tobacco case may, by itself, cause the judicial crisis that the plaintiffs' bar purports to abhor. Moreover, the sheer number of the huge class that the plaintiffs herein propose to create hinders, rather than advances, their contention on superiority. As the Appellate Division, First Dept, recently found in Gordon v Ford Motor Co. (supra): "Given the enormity of the potential class, possibly numbering as many as 60,000 persons, the necessity of conducting such individual inquiries would become the predominant focus of the litigation, rendering the litigation extremely difficult if not impossible to manage, and an inefficacious means of adjudicating any underlying common issue respecting defective design ***." In the absence of any realistic plan for managing the proposed class action, in the absence of any realistic showing that a large increase in judicial resources would become available to handle the thousands of individual, complex tort cases that a class action would splinter into, and, to repeat, in the absence of an adequate track record, this court cannot find that the superiority criterion has been satisfied.
Finally, the court is mindful of CPLR 906, "Actions conducted partially as class actions," which provides in relevant part: "When appropriate, 1. an action may be brought or maintained as a class action with respect to particular issues ***." The purpose of CPLR 906 and of Federal Rule 23(a)(4), after which the state statute is modeled, is to allow the advantages and economies of trying issues common to the class on a representative basis to be realized even though individual issues would have to be separately litigated. (See, Emig v American Tobacco Co., supra; 7B Wright-Miller-Kane, Federal Practice and Procedure: Civ 2d, ' 1790.) Partial certification is inappropriate when it does not materially advance the disposition of a case. (Emig v American Tobacco, supra [partial certification denied].) In the case at bar, certification of a class with respect to particular issues is not appropriate because few, if any, truly common issues remain in the case after the plaintiffs' withdrawal of certain causes of action and because some issues alleged to be common would subsequently reappear at the individual trials. In deciding whether to certify questions on a class-wide basis, the problem of reappearing issues must be carefully considered so that the defendants' Seventh Amendment right to have only one jury decide an issue is respected. (See, Castano v American Tobacco Co., supra; In the Matter of Rhone-Poulenc, Rorer Inc., 51 F3d 1293 [7th Cir, 1995].) The plaintiffs herein have given little or no consideration to that problem.
Rosenfeld v A.H. Robins, Co., Inc. (supra), the Dalkon Shield case decided by the Appellate Division, Second Department, is not in plaintiffs' favor in regard to CPLR 906. The appellate court stated: "Nor do we find this to be a proper case for partial class action certification pursuant to CPLR 906. While some factual issues could perhaps be resolved in a class action format, these issues are thoroughly intertwined with those which must be determined individually. Furthermore, in view of the limited scope of the issues which can be resolved on a class-wide basis, the judicial economy to be reaped and the advantages for litigants of a partial class action will be relatively small." (Rosenfeld v A.H. Robins Co., Inc., supra, 20.)
In comparison to Rosenfeld v A.H. Robins, Co., Inc., (supra), the case at bar presents a far greater number of individual issues. The proposed class in the Dalkon Shield case amounted to only an estimated 2,525 women, while the proposed class herein greatly exceeds 65,000 members. The plaintiffs herein have asserted multiple causes of action against multiple defendants. If the number of individual issues in Rosenfeld v A.H. Robins, Co., Inc. (supra) deterred the appellate court from certifying the action partially or in full, the case at bar certainly does not invite class action treatment in any manner.
To sum up, this case fails to satisfy the predominance and superiority prerequisites of CPLR 901. The application for class certification was brought before an adequate track record for tobacco cases was made in this jurisdiction, and the application was made in a case where the precipitous withdrawal of certain causes of action increased class certification problems. At best for the plaintiffs in this type of tobacco case, the application for class certification was brought in the wrong action at the wrong time.
Accordingly, the cross motion is denied.
Settle order.
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J.S.C.