Smith v. Brown & Williamson Tobacco Corp.

174 F.R.D. 90, 1997 U.S. Dist. LEXIS 9849, 1997 WL 381264
CourtDistrict Court, W.D. Missouri
DecidedMay 22, 1997
DocketNo. 96-0459-CV-W-3
StatusPublished
Cited by48 cases

This text of 174 F.R.D. 90 (Smith v. Brown & Williamson Tobacco Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Brown & Williamson Tobacco Corp., 174 F.R.D. 90, 1997 U.S. Dist. LEXIS 9849, 1997 WL 381264 (W.D. Mo. 1997).

Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

SMITH, District Judge.

Pending is Plaintiffs’ Motion for Class Certification. For the reasons set forth below, the motion is denied.

7. BACKGROUND

Plaintiff Barbara Smith (“Smith”) was born in 1927; she smoked her first cigarette in 1942 when she lived in Nashville, Tennessee. Plaintiffs Depo. at 9, 90. From 1949 to 1990, her cigarette of choice was Kools, which are manufactured by Defendant; prior to that time she smoked cigarettes manufactured by a different company, and the record does not reflect her brand-preference after 1990. Plaintiffs Depo. at 92-96; Tr. at 4. She stopped smoking in 1992 after being diagnosed as suffering from lung cancer. Tr. at 4. She is currently a resident of Missouri, but the record does not establish when she moved to this state. Plaintiffs First Amended Complaint sets forth thirteen counts, asserting various theories of recovery for injuries allegedly incurred from smoking cigarettes manufactured by Defendant Brown & Williamson Tobacco Corporation (“Defendant”).1 Plaintiff has also requested certification of a plaintiff class, and a hearing was held on March 6, 1997 to permit the parties to present evidence and arguments relating to this request.

In response to cases decided after her complaint was filed, Plaintiff has (understandably) changed the definition of the proposed class. At present, Plaintiff proposes certification of the following class:2

All persons in the State of Missouri who have suffered personal injury as a result-of smoking cigarettes designed, manufactured or sold by Brown & Williamson Tobacco Company, including the estates, representatives, administrators, heirs and survivors of these injured persons.

If this class is certified, Plaintiff would assert the following claims against Defendant: (1) strict liability for sale of unreasonably dangerous product, (2) failure to warn (prior to 1970), (3) strict liability based on design defect, (4) negligent testing and research, (5) breach of express warranty of safety, and (6) breach of implied warranty of merchantability and safety. In addition, Plaintiff has requested punitive damages and an order requiring medical monitoring of the class members; these requests are set forth in separate counts. Plaintiff has declared that she would dismiss the remaining five counts if the class is certified.3

[93]*93In response to the Court’s request, Plaintiff filed a proposed trial plan. In Phase One, Plaintiff proposes trying all common issues, which she identifies as consisting of the following:

(1) whether Defendant’s cigarettes are addictive or cause disease;
(2) whether safer and/or non-addictive designs were available;
(3) whether Defendant was negligent;
(4) whether Defendant failed to warn of health dangers;
(5) whether Defendant knew that its cigarettes are addictive or hazardous;
(6) whether Defendant breached express or implied warranties;
(7) whether Defendant’s conduct justifies an award of punitive damages; and
(8) whether Defendant should provide a fund to pay for medical monitoring.

Plaintiff proposes submitting interrogatories to the jury in order to permit specific findings with respect to each brand of cigarette (along with each change made to each brand) and each advertising campaign used for each brand. Plaintiff also suggests that Phase One is appropriate for resolution of some of Defendant’s defenses. If the jury determines in Phase One that punitive damages are appropriate, Phase Two will be used to let the jury determine the amount of punitive damages to be awarded. Finally, Plaintiff proposes that Phase Three be used to litigate “individual” matters, including causation, reliance, damages to be awarded to each class member and (presumably) comparative fault.4

II. DISCUSSION

In order to maintain a class action, Plaintiff must satisfy four prerequisites, all of which are set forth in Rule 23(a):

(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.

Upon satisfying these four prerequisites, Plaintiff must demonstrate that her claims qualify under one of the three subparts of Rule 23(b). Plaintiff contends that her medical monitoring claim can satisfy Rule 23(b)(1)(A) or Rule 23(b)(2) and that the remainder of her claims satisfy Rule 23(b)(3). Rule 23(b)(1)(A) permits certification of a class if there is a risk that separate adjudications will result in “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class,” and Rule 23(b)(2) applies if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Rule 23(b)(3) permits creation of an “opt-out” class if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”

At the outset, the Court notes that the parties have occasionally supported their positions by trying to prove whether class actions are generally appropriate in mass tort actions.5 This inquiry is a red herring. The [94]*94term “mass tort” describes a wide variety of cases; a products liability claim could be a mass tort, but so would be the claims asserted by a class composed of occupants of a building that collapses — yet the inquiry would be dramatically different in both cases. Cf. Castano v. American Tobacco Co., 84 F.3d 734, 746 n. 23 (5th Cir.1996); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1196-97 (6th Cir.1988). It is inappropriate to grant or deny class certification in this case based simply on the truth or falsity of whether mass tort cases are amenable to certification. The only way to decide the issue in the context of this case is to examine the claims Plaintiff wishes1' to assert and determine whether they can be presented in a manner that complies with Rule 23’s requirements.

A. Rule 23 (a)

As set forth more fully below, the Court concludes that Plaintiff has not satisfied the general requirements set forth in Rule 23(a).

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Cite This Page — Counsel Stack

Bluebook (online)
174 F.R.D. 90, 1997 U.S. Dist. LEXIS 9849, 1997 WL 381264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-brown-williamson-tobacco-corp-mowd-1997.