On this appeal we are called upon to interpret the recently enacted class action statute CPLR article 9 (L 1975, ch 207). The underlying action sounds in products liability and involves an intrauterine device (IUD) known as the Dalkon Shield. The device was manufactured by defendant, A. H. Robins Co., Inc. (A. H. Robins), between 1970 and 1975. Plaintiff, a former user of the Dalkon Shield, alleges that the IUD was defectively designed and that it caused her injury. She further alleges that the defendant breached certain express and implied warranties with regard to the Dalkon Shield. Plaintiff seeks damages on behalf of herself and the class she purports to represent, which class is defined as those New York women who suffered "pelvic infection, uterine abscessing
Special Term denied plaintiff's application for class action certification, whereupon the instant appeal was taken. The order appealed from should be affirmed.
The defendant began marketing the Dalkon Shield during November of 1970, after purchasing the rights to the product in June of 1970 from the Dalkon Corporation which had developed the device. A Dalkon Shield could only be obtained through a licensed physician, who would normally explain to the patient the advantages and disadvantages of using the IUD prior to her making a decision. If the patient then chose to have a Dalkon Shield inserted, the physician would perform certain fitting procedures and insert the device. Product brochures issued by A. H. Robins were distributed to users through their physicians.
As part of its program for marketing the Dalkon Shield, A. H. Robins advertised intensively in medical journals and, in addition thereto, the inventor of the Dalkon Shield, Dr. Hugh J. Davis, undertook to explain the advantages of his IUD in a series of articles which were also published in medical journals. By 1974 the Dalkon Shield was being used by approximately 2.2 million women in the United States, many of whom reside in New York. At that time, however, a series of medical studies began to appear which indicated that the Dalkon Shield was unsafe and ineffective and that it had resulted in an increased incidence of pelvic infection among large numbers of women. Following public criticism and an investigation by the Federal Food and Drug Administration, A. H. Robins permanently suspended distribution of the Dalkon Shield in January, 1975.
Thereafter, more than 670 products liability actions were commenced nationwide against A. H. Robins, more than 150 of those being brought in the Federal courts. Pursuant to section 1407 of title 28 of the United States Code, the Federal actions were consolidated for the purpose of conducting joint, pretrial proceedings (Matter of Robins Co. "Dalkon Shield" IUD Prods. Liab. Litigation, 406 F.Supp. 540 [Jud Pan Mult Lit, 1975]). The Federal panel had concluded (p 542) that joint discovery would be advantageous because of the "commonality of factual issues concerning the design, testing, manufacture, labeling
The instant litigation is one of 72 similar actions which have been brought in the New York State courts. Plaintiff suggests, however, that the majority of the prospective plaintiffs have yet to commence any action and estimates that the proposed class she purports to represent may include as many as 2,525 New York women. Plaintiff's bill of particulars alleges that the Dalkon Shield was manufactured without adequate control over the production process and specifies three particular design defects which she contends resulted in pelvic disease, pelvic infection, uterine perforation and other injuries to its users.
On application by the plaintiff for class action certification, the appropriateness of a class action was considered by Madam Justice BURSTEIN at Special Term. She found that to determine the issue of liability as to individual class members would require an inquiry "into the facts and circumstances of each individual case" and, ultimately, that as many as 4,000 additional parties (including physicians and hospitals) would have to be joined. She therefore concluded that plaintiff's purported class failed to satisfy two of the requirements for a class action set forth in CPLR 901:
As a consequence, class action certification was denied.
This court has never before been called upon to consider the applicability of our revised class action statute in a products liability case.
Our new statute, enacted in 1975, was patterned after rule 23 of the Federal Rules of Civil Procedure and, while the legislative history of our own statute is virtually silent upon
More directly in point on the present question, two well-known tort attorneys and authors who presently represent a number of Dalkon Shield plaintiffs have considered the feasibility of class action treatment in the products liability area and have been less than enthusiastic in their conclusions. Thus, Alfred S. Julien, who represents plaintiffs in 10 of the New York Dalkon Shield cases, has been critical of the restrictive views taken by the New York Courts in class action cases decided under the prior law (see NYLJ, May 31, 1972, p 1, col 1), but has concluded that personal injury (as opposed to property damage) product liability cases are not amenable to class action treatment in view of the "[d]ifficult questions of
We emphatically agree with our dissenting brother that, although our own statute was patterned after Federal rule 23, we are not constrained to follow the restrictive views of the Federal courts (or the Federal Advisory Committee), on the problem at issue. Indeed, were this a case where the liability issue could be isolated and treated on a class-wide basis (e.g., a typical common disaster or mass tort case), there would be strong reasons for certifying the proposed class, although the question of damage would necessarily have to be left for individual determination. Thus, in the case of an airplane crash, to use the most frequently cited example, it would be possible in many cases to isolate a single causative factor which was responsible for the injury or death of all of the class members. It is clear, however, that in the instant action liability cannot be determined with regard to the entire class. Admittedly, it would be possible to determine several important factual issues on a class basis, including (1) the existence of a defect or defects in the Dalkon Shield, (2) the nature of the representations and warranties made with respect to the device and (3) whether the warranties and representations were false. But assuming, arguendo, that these issues were to be decided in plaintiffs' favor, individual determinations would still be required on several "key" issues, among them (1) whether the injuries to individual class members were, in fact, caused by the defect or defects and (2) whether the individual class members detrimentally relied on the false representations or warranties. Moreover, defendant has raised as affirmative defenses the Statute of Limitations and contributory
The difficulties involved in determining the causality in injuries of this sort cannot be overstated. For example, in Vincent v Thompson (50 A.D.2d 211), this court considered the case of a child who had become ill following the administration of a vaccine known as Quadrigen. An earlier Federal decision had established that the Quadrigen vaccine was, in fact, defective, resulting in serious injuries to the plaintiff in that case. In Vincent, plaintiff sought to invoke the doctrine of collateral estoppel based on the Federal decision, but, in an opinion by Mr. Justice SHAPIRO, we rejected plaintiff's argument noting, inter alia, that her symptoms had differed from those of the plaintiff in the earlier action. Since it was not apparent that the plaintiff's injury was caused by the defective drug, the issues in the two cases were not identical and collateral estoppel could not properly be invoked.
The same considerations militate against class action treatment in the case at bar. 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, including, perhaps, the peculiarities of her individual physique or the negligent conduct of the user or her physician. The complexities of the causality problem are highlighted by a recent nisi prius decision in California concerning a Dalkon Shield action. In Askeland v Robins Co. (Super Ct, Cal, No. 330633, filed Feb. 7, 1978), the court found, after a lengthy trial, that there were factors in plaintiff's background which created a risk of pelvic infection and concluded that plaintiff had not proved that the Dalkon Shield was the cause of her injury. The Askeland decision thus illustrates the importance of determining causality on a case-by-case basis.
In order to prevail in an action based on representations made in advertising, a plaintiff must prove knowledge of, and reliance upon, the representations alleged (Randy Knitwear v American Cyanamid Co., 11 N.Y.2d 5, 12; Strauss v Long Is. Sports, 60 A.D.2d 501). Although it has been suggested that a court could determine, on a class-wide basis, whether a given warranty has been breached, leaving the question of reliance and damages to be determined in individual lawsuits (cf. Siegel, New York Practice, § 142, p 182), this court has only recently warned of the difficulties inherent in such an approach and has rejected it (Strauss v Long Is. Sports, supra). As the court (per Mr. Justice MARGETT) observed in Strauss (60 A.D.2d 506-507):
In Strauss, a New York Nets season ticket holder sought to recover the cost of his tickets because the Nets had traded the team's superstar, Julius Erving (Dr. J.) prior to the opening of the 1976-1977 NBA season. Strauss alleged that in deciding to purchase their tickets, he and others had relied on Nets' advertising touting Dr. J. Strauss sought an order declaring his action to be a proper class action on behalf of Nets season ticket holders who had purchased their tickets for the 1976-1977 season subsequent to the first-advertised presence of Julius Erving, but prior to the first public announcement that Erving had been traded, and who bought their tickets, at least in part, because of their expectation that Julius Erving would be playing for the Nets if not injured. We held (reversing Special Term) that neither a class action, nor a partial class action, would be appropriate in that case, stating, inter alia (p 507):
Also relevant to this discussion is the opinion of the Appellate Division, First Judicial Department, in Ross v Amrep Corp. (57 A.D.2d 99), in which the plaintiff sought to certify as a class persons who had relied upon various false representations in purchasing land from the defendant. The court (per Mr. Justice SILVERMAN) noted, inter alia (p 103), that "the falsity of each of these representations is a common question with respect to those purchasers to whom the particular misrepresentation was made. But we do not think that on this complaint those common questions can fairly be said to predominate" (emphasis supplied).
In view of the complicated issues of fact which must be resolved on an individual basis, it is our opinion that common questions of law and fact do not predominate in this action and that Special Term correctly denied plaintiff's motion for class action certification. Nor do we find this to be a proper case for a 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. It should be noted, in this regard, that many Dalkon Shield plaintiffs will not be required to bear the full expense of litigating their claims on an individual basis. Some have already taken advantage of the joint discovery in the consolidated Federal pretrial proceedings by joining the "Dalkon Shield" group,
Accordingly, the order appealed from should be affirmed.
This court is affirming an order of Special Term which denied plaintiff's motion for either plenary or partial class action certification and required her to amend her complaint to delete all class action allegations therefrom. I would reverse and grant plaintiff's motion to the extent of determining that this action may be conducted partially as a class action in accordance with the provisions of CPLR 906, and I would remand the matter to Special Term for further proceedings pursuant to CPLR article 9.
Did Special Term correctly refuse to certify this case as a plenary or partial class action?
This case is one of more than 670 cases which have been brought nationwide against the defendant, A. H. Robins Co., Inc. (Robins), alleging personal injuries brought about as a result of the use of a contraceptive intrauterine device (IUD) sold by it and known as the Dalkon Shield. It was clinically tested from September, 1968 to November, 1969; it was then supplied commercially to the medical profession by the Dalkon Corporation. On June 12, 1970 Robins, a manufacturer and distributor of pharmaceuticals and other products, acquired all rights to the Dalkon Shield. Robins initiated its own program to test the product and began to market it. Between June 12, 1970 and June 28, 1974, approximately 2.2 million Dalkon Shields were inserted in women in the United States. On the latter date, Robins voluntarily suspended distribution of the shield.
A Dalkon Shield could be inserted only by a physician, who normally obtained the device from a surgical supply house. Each Dalkon Shield package contained labeling instructions and materials that described its advantages and disadvantages. It was the physician's responsibility to explain to the prospective wearer these advantages and disadvantages and, if the decision was made to have the Dalkon Shield inserted, to perform certain preliminary fitting procedures outlined in the labeling instructions.
There is evidence to suggest that use of the shield has resulted in a wide variety of injuries to users, including unwanted pregnancies, septic abortions, uterine perforation, hemorrhage, inflammation and various forms of pelvic infection.
Plaintiff, Doris Rosenfeld, purchased a Dalkon Shield on or about September 1, 1972 and had it implanted by her gynecologist. In March, 1975 plaintiff was admitted to a hospital and treated for uterine infection, uterine abscessing and related bleeding. She alleges that these injuries resulted from her use of the IUD. As a result of these injuries, it became necessary for plaintiff to undergo a hysterectomy in April, 1975.
The complaint alleges that the shield was defectively designed and that the defendant misrepresented its safety and suitability in its advertisements and catalogues. Certification of the following limited class was sought: "All patients of gynecologists or of clinics under the supervision of gynecologists
This class, the parties agree, may include as many as 2,525 women.
THE FEDERAL LITIGATION
More than 150 of the Dalkon Shield cases were brought in Federal district courts. Those cases were consolidated (pursuant to the provisions of section 1407 of title 28 of the United States Code) for the purpose of conducting co-ordinated pretrial proceedings (Matter of Robins Co. "Dalkon Shield" IUD Prods. Liab. Litigation, 406 F.Supp. 540 [Jud Pan Mult Lit, 1975]).
LITIGATION IN NEW YORK STATE
Seventy-two Dalkon Shield cases have been brought in the New York State courts. Seventeen have been settled, leaving a total of 55 cases still pending. Defendant's counsel on this motion represents or has represented it on five of the settled cases and 48 pending cases. In those 53 cases, 77 physicians
Plaintiff's bill of particulars alleges, inter alia, that the device was defectively molded of an overrigid substance which had "an inherent and latent dangerous tendency to cause a shearing between the endometrium and the chonioamnion" which, in many cases, resulted in a type of bleeding which required hospitalization; further, because of its alleged defective design, the device tended to erode causing perforation of the uterine wall and this, too, often required hospitalization. It was allegedly further defective for its unique design of a single tail with bundled monofilaments enclosed within a tin plastic sheath in which the tail became a collection point for harmful bacteria resulting in infections. Overall (it is alleged), about 27% of the women who were hospitalized required surgery.
It is plaintiff's position that the impropriety of design and the misleading literature prepared and distributed by defendant are common issues which call for disposition under the recently liberalized New York statutes for class actions, or at least for an action conducted partially as a class action as to those issues. Plaintiff's motion papers allege that plaintiff is qualified as a proper representative of a duly constituted class and that she complies with the requisites of CPLR 901.
CPLR 901 (subd a) states:
Defendant argues that the issues involved in the various actions are so diverse that to make any aspect a class action would be totally impracticable. Those issues, it says, constitute "a ludicrous, unthinkable array" which would make a "sheer insanity of class certification". It did not so contend, however, when some of the plaintiffs in the suits against it sought individual pretrial examinations.
Further, and with reference, in general, to "mass torts", defendant points out that the progenitor of CPLR article 9 was rule 23 of the Federal Rules of Civil Procedure. In that connection, it cites the Advisory Committee Note to the 1966 revision of rule 23, which stated (as reprinted in 39 FRD 98, 103): "A `mass accident' resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses to liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would
THE DECISION OF SPECIAL TERM
The learned Justice at Special Term acknowledged that there were "questions of fact and law common to all members of the proposed class", but she opined that the granting of class status would mean that "the trier of fact would be required to inquire into the facts and circumstances of each individual case [and therefore] [t]he result of such an inquiry would be the de facto conduct of multiple fact trials within the framework of the primary class action." She thus concluded that the "questions of law and fact common to the members of the proposed class do not outweigh or predominate over the myriad foreseeable questions that are personal and individual to each member of the class." She then noted the different stages of the 72 pending actions against defendant in New York State and noted that 97 additional parties (such as physicians, hospitals, etc.) were parties defendant in the cases still pending. She added that projecting these statistics to the "approximately 2,525 Dalkon-Shield related injuries in this State concerning which suit has not yet been commenced" would cause approximately 4,000 additional parties ultimately to be added. In denying plaintiff's motion the court finally said that "such uncertainty and speculation militates against the required showing that a class action would be superior to other available methods for the fair and efficient adjudication of the controversy (CPLR § 901 [a])."
In coming to that conclusion, however, the court apparently did not consider the appropriateness of partial class action certification under CPLR 906. That section states:
In 1960, 15 years prior to the enactment of the liberalized class action statute in this State, Professor (now Judge) JACK B. WEINSTEIN, in an article in the Buffalo Law Review (vol 9, p 469) decried the applicability of class action suits to mass tort actions, saying: "Theoretically, the [liberalized class action] rule proposed in this paper for New York, providing a traditional class action which binds the class whether the decision is favorable or unfavorable, could be utilized in negligence cases. There are, however, serious objections to using class actions where an accident has resulted in injury to many persons. The economics of the contingent fee in tort litigation — and settlement practices of public insurers and self-insurers — today insures effective legal service for any injured person who wants a lawyer. Permitting a class action would create an unseemly rush to bring the first case and provide, through notice to all injured persons, a kind of legalized ambulance chasing. As a matter of practice, disasters usually do not result in a large number of separate trials. Cases are referred to specialist attorneys who represent a number of parties, actions are consolidated, and settlement negotiations dispose of most claims. Where insurance coverage and assets of the defendant are less than prospective recoveries, the pressure to cooperate in settlement negotiations is too great to resist. Both the plaintiff's bar and defendant's bar in the negligence field are so closely knit that, as a practical matter, they can informally provide most of the advantages of class actions."
The views then expressed by Judge WEINSTEIN may possibly not be the same today, particularly in view of the larger compass of the New York statute (see 2 Weinstein-Korn-Miller, NY Civ Prac, par 906.02). Regardless of that fact, however, I believe that the facts in this case clearly call for partial class action certification under CPLR 906 and would even be proper under the Federal class action statute.
As stated at Ann. 28 ALR Fed 719, 722-723: "Despite the Advisory Committee's view of Rule 23 in the case of mass accidents, responsible commentators have not hesitated to take a directly contrary view. (See 3B Moore, Federal Practice ¶ 23.45; 7A Wright & Miller, Federal Practice & Procedure: Civil § 1783.) Nor have the courts been awed by the Advisory
In Wright and Miller, Federal Practice and Procedure (vol 7A, § 1783, pp 116-118), in rejecting the views expressed in the afore-mentioned Advisory Committee Note, the authors say (pp 116-118):
In a recent article entitled Dealing with Disasters: Some Thoughts on the adequacy of the Legal System, by Professor
There is no indication that CPLR article 9 was intended by the Legislature to be a slavish adoption of Federal rule 23 (the effect of which, as indicated, has not been to rule out its applicability to mass torts). Clearly, the application of CPLR article 9 to actions pending in the New York State courts would be far less cumbersome than the application of class action status under the Federal rule which would necessarily include residents of different states. In actions pending in this State there are no problems of diversity of citizenship or jurisdictional minimum and no choice-of-law questions. Those problems are encountered in the Federal courts.
I have sent for and examined the legislative bill jacket dealing with the adoption of CPLR article 9. It reveals no commentary indicating that its provisions were intended to exclude mass torts.
In Weinstein-Korn-Miller, New York Civil Practice (and despite the caveat of Judge WEINSTEIN'S 1960 commentary at 9 Buffalo L Rev 469, quoted above), it is stated (vol 2, par 906:02):
The latest and most authoritative comment on the New York class action statute is that of Professor David D. Siegel in New York Practice (§§ 140-141, pp 177-180):
The facts in this case call for enucleation of the issues of defective design and failure to warn because the proof of liability here involves sophisticated evidence that the device was indeed inherently defective. We would be naive indeed if we did not take cognizance of the fact that the amassing of such proof and the obtainment of expert witnesses are enormously expensive and may be more than any one individual lawsuit can profitably stand. In that vein I note Governor Carey's memorandum in signing article 9 into law (NY Legis Ann, 1975, p 426): "In many instances, an individual's own damages resulting from a pattern of illegal behavior by another may not be sufficient to justify the costs of litigation although the aggregate damages of all others similarly injured by the illegal behavior certainly would. Under present law, unless the individual thus injured is willing and able to press his legal claim as a matter of principle despite the financial loss, there is no economic deterrent to poor workmanship, deceptive or unconscionable trade practices and illegal conduct."
The intent, pregnant in that commentary, is broad enough to include personal injury actions of the same type where the cost of proof in an individual case might readily exceed any possible recovery. (See Rabin, 30 Stanford L Rev 295.) That that is the case here is made more than crystal clear when we note that among other things, Robins has agreed that more
The enactment of CPLR 906 has made available a machinery for the fair and expeditious disposition of mass litigation. It should be given a construction which is consonant with its broad wording and apparent intent and avoids what happened in the MER/29 lawsuits. MER/29 was a prescription drug designed to lower body cholesterol, but which, upon use, caused cataracts, hair loss, etc. There, approximately 5,000 people were injured by the use of the drug, and 1,500 lawsuits were filed (Rheingold, The MER/29 Story — An Instance of Successful Mass Disaster Litigation, 56 Cal L Rev 116). Where such mass litigation can be avoided it should be, and CPLR 906 is ideally suited for that purpose. The rule is simply a device to make adjudications more efficient by aggregating instances of similar litigation — a principle not at all revolutionary — and it should not be hobbled by a narrow construction of its intended purposes (see, in this connection, the comprehensive opinion by BLOOM, J., in Gilman v Merrill Lynch, Pierce, Fenner & Smith (93 Misc.2d 941).
While the issues pertaining to individual cases are too diverse and complex for treatment in an overall class action, the issues of defective design and failure to warn are severable and common to all actions and are, therefore, appropriate for determination in a partial class action. Such a partial certification would serve to protect the more than 2,500 New York State class members who have not pursued individual actions against this defendant and thus the provisions of CPLR 906 would be utilized for one of its enlightened purposes.
The majority apparently accepts the conclusion (albeit by dictum) that mass torts, such as airplane crashes, are amenable to class action treatment, but denies it to the mass selling of an identical product, allegedly defective, which was accompanied by identical sales literature. But, it is in the latter case, not the former, that class action treatment is most needed. In the latter case, proving the product's defect and the misleading nature of the accompanying literature would require sophisticated proof which might well be beyond the financial means of any individual plaintiff. In the former case the liability issue is of minimum difficulty, and the damages are normally of a maximal amount. As Governor Carey indicated
There is nothing in the history of article 9, and certainly nothing in its content, that would segregate products liability cases from other types of negligence actions in the consideration of class action certification. It cannot be denied that if defendant were to concede that the shield was defective and that its literature did not sufficiently warn of the dangers, that the cost of litigation that would be borne by each injured user of the shield would then be enormously decreased, even though the issues of proximate cause, reliance, Statute of Limitations and contributory negligence might yet remain for determination. It is indeed ironic to deny such relief in its hour of greatest need and even more ironic to do so, in part, as the majority does, on contentions made by attorneys specializing in the negligence field, no matter how pre-eminent they may be.
For the reasons aforestated, I believe that this court's affirmance of the order of Special Term fails to give this
Order of the Supreme Court, Nassau County, dated November 30, 1977, affirmed, with $50 costs and disbursements.
Further, defendant, in a later proceeding before the panel and in answer to an allegation that possible medical malpractice by certain physicians who had inserted the Dalkon Shield deprived the cases of the feature of commonality, stated: "[T]he underlying facts upon which plaintiff predicates [her] claim for relief are common to other Dalkon Shield actions * * * The presence of the petitioning physicians * * * does not * * * alter or destroy the common factual denominator."
The court (Matter of Robins Co. "Dalkon Shield" IUD Prods. Liab. Litigation, 419 F.Supp. 710, 712), in overruling the contentions against commonality, said: "These arguments are not persuasive. In our earlier opinion, we recognized that the actions in this litigation vary in certain respects, including the nature of the injuries suffered, disparate legal theories and the presence of different defendants. See In re A. H. Robins Co., Inc., supra, 406 F.Supp. at 542. An analysis of the complaints in the above-captioned actions, however, demonstrates that each action shares the same factual questions concerning the design, testing, manufacture, labeling and inspection of the Dalkon Shield that predominated in the previously transferred actions."