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Should the “maturity” of a proposed class action enter into a court’s consideration of whether to certify a class? And, if courts should consider the maturity factor, what exactly does this mean? The concept of “maturity” entered class action jurisprudence in the mid-1990s, but a recent 11th Circuit decision has questioned the continuing vitality of the maturity factor in the class certification process. MATURITY IN MASS TORT LITIGATION: A LIFE CYCLE Prior to the mid-1990s, virtually no federal court discussed the maturity of a proposed class action when evaluating class certification. However, after two decades of experience with mass tort litigation, commentators recognized that mass tort cases progressed through a life cycle from a nascent mass tort into a full-blown, mature mass tort. By 1995, Manual for Complex Litigation (Third) recognized the distinct concepts of incipient and mature mass tort litigation. See Manual for Complex Litigation (Third) � 33.26 (1995). In discussing the maturity concept, the manual stated: “Fairness may demand that mass torts with few prior verdicts or judgments be litigated first in smaller units — single-plaintiff, single-defendant trials — until general causation, typical injuries, and levels of damages can be established.” Thus “mature” mass torts like asbestos or Dalkon Shield may call for procedures that are not appropriate for incipient mass tort cases, such as those involving injuries from new products, chemical substances or pharmaceuticals. The 7th U.S. Circuit Court of Appeals was the first federal court to acknowledge the relevance of maturity for class certification. In the tainted-blood products litigation, Judge Richard Posner reversed certification of a nationwide class action in part because the trial court certified the class when only a handful of individual cases had been tried to jury verdicts, and the defendants prevailed in 12 of the 13 cases. See In the Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1299 (7th Cir. 1995). Thus, the 7th Circuit concluded that this small sample of actually tried cases was insufficient to establish a consensus of judgment supporting classwide certification. In addition, the court noted that the plaintiffs’ action was based on at least one novel “serendipity” theory of tort law. Id. at 1300. In rejecting class certification, the 7th Circuit recognized that the maturing of individual judgments, through a larger sample of litigated cases, could usefully guide a court in its class certification inquiry. Instead, the trial court had disregarded the scant litigation record: “For this consensus or maturing of judgment the district judge proposes to substitute a single trial before a single jury instructed in accordance with no actual law of any jurisdiction.” Rhone-Poulenc, id. at 1300. Soon after the 7th Circuit acknowledged the maturity concept, the 5th Circuit explicitly endorsed the relevance of the maturity concept in a class certification analysis. Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996). In Castano, the 5th Circuit reversed certification of a nationwide class of all nicotine-addicted people in the United States. In concluding that the district court had improperly certified the class, the 5th Circuit adopted the language of “immature mass tort,” and recognized the difference between mature and immature mass torts. Castano, at 749. The 5th Circuit linked the maturity inquiry to the “superiority” requirement for certification of a Fed. R. Civ. P. 23(b)(3) class action. Castano, at 747-749. Rule 23(b)(3) requires that a court find that common questions of law or fact predominate over individual questions, and that the proposed class action is superior to other means for resolving the dispute. The court held that superiority was lacking because the district court failed to consider whether there was an actual, as opposed to a speculative, judicial crisis relating to tobacco litigation. Citing Posner’s language, the Castano court stated that “the certification of an immature mass tort results in a higher than normal risk that the class action may not be superior to individual adjudication.” Castano, at 747. In addition, the 5th Circuit held that the remaining rationale for superiority — judicial efficiency — was lacking. Castano, at 749. The maturity factor gained traction in other subsequent class litigation. Thus, in an attempt to certify a medical-monitoring class of cigarette smokers, a Pennsylvania federal district court denied certification in part based on the lack of maturity of the medical-monitoring cause of action. Arch v. The American Tobacco Co., 175 F.R.D. 469, 494 (E.D. Pa. 1997). The court determined that the plaintiffs’ medical-monitoring claim (and putative intentional exposure to a hazardous substance claim) were relatively new causes of action. Id. The court held that “[b]ased just on the relative ‘maturity’ of these particular causes of action, the court could determine that these torts are immature. The concept of the immature tort however goes far beyond this simplistic analysis.” Id. The court explained that in the context of a Rule 23(b)(3) action, “the immature tort theory has a much broader meaning then its mere name would suggest.” An immature tort could refer to a new cause of action, or an old cause of action applied to a new situation. In Castano, as in Arch, the cause of action was not novel; the immature nature of the plaintiffs’ claim arose out of the fact that the plaintiffs were applying old causes of action to a new situation (the “addiction as injury” theory of liability). Because of the novel theory and lack of a track record of individually litigated cases, the court was unable to make an informed analysis of the superiority requirement. Arch, at 494-95. Federal courts have continued to analyze the maturity factor as part of the superiority analysis. Thus, in denying certification of a proposed class of property owners allegedly injured by a wood preservative (chromated copper arsenate), a Florida district court determined that the proposed action was an immature mass tort not suitable for class certification. Jacobs v. Osmose, 213 F.R.D. 607, 618 (S.D. Fla. 2003). The court noted that there was no track record of cases in which plaintiffs alleged property damage as a result of treated wood. Thus, “[w]ith the universe of outcomes for this type of litigation still largely unknown, it would not be appropriate for this Court to make a blind guess as to the matter’s manageability.” Osmose, at 618. Notwithstanding federal recognition of the maturity concept, the 11th Circuit surprisingly rejected the maturity concept in a September 2004 class certification decision. See Klay v. Humana Inc., 382 F.3d 1241, 1272-73 (11th Cir. 2004). The district court had certified a nationwide class of physicians alleging Racketeer Influenced and Corrupt Organizations Act claims against health maintenance organization defendants. The defendants argued that the RICO claims presented an immature mass tort that subverted class certification. The 11th Circuit declined to consider whether the Klay plaintiffs’ claims were sufficiently innovative to count as “immature” under the Osmose standards. Instead, the court seized the opportunity to issue a broadside rebuke of the maturity concept. The court declared: “None of our cases has ever held the ‘maturity’ of a tort to be a proper consideration in the certification decision.” Klay, at 1272. The court further rejected the idea that maturity was a legitimate consideration in the superiority determination. The 11th Circuit held that there was no reason why federal courts could not make the certification decision based on the pleadings and evidence; nor was there any Rule 23 basis for arbitrarily foreclosing plaintiffs from pursuing innovative theories in a class action. Id. The court indicated that a class action may be the only way many people can enforce their rights, even if those rights are innovative or “immature.” “Furthermore, if an ‘immature tort’ truly raises a variety of new and complicated legal questions, then those questions constitute significant common issues of law.” Id. ‘KLAY’ MOUNTS FRONTAL ATTACK AGAINST MATURITY CONCEPT Although the concept of maturity has been established in federal jurisprudence for at least a decade, the Klay decision mounted a frontal attack against the maturity concept and its relevance for class certification. The maturity concept also seems to have mysteriously disappeared from the 4th edition of Manual for Complex Litigation (2004), in those sections relating to class action or mass tort litigation. Instead, the fourth edition discusses the maturity concept only as it relates to multidistrict litigation transfers pursuant to 28 U.S.C. 1407. In this regard, the manual cites cases where the MDL panel rejected defendants’ lack-of-maturity arguments. Instead, the panel has held that it need not wait until litigation matures before ordering a transfer of cases to an MDL court. See Manual at � 22.344, citing In re Propulsid Prods. Liab. Litig., No. 1355, 2000 U.S. Lexis 11651, at 3-4 (J.P.M.L. Aug. 7, 2000). Finally, although the 11th Circuit has called the maturity concept into doubt, the 7th Circuit seems to endorse the concept’s vitality, although in another guise. In the Bridgestone/Firestone litigation, the 7th Circuit rejected certification of a nationwide class of tire owners, based in part on a lack of superiority. In reaching this conclusion, the court eschewed the “central planning” model of a class action, preferring instead a “market economy” approach of individual litigation as a better predictor of the suitability of aggregating claims in a class action. In re Bridgestone/Firestone Inc., 288 F.3d 1012, 1020 (7th Cir. 2002); see also Henry Schein Inc. v. Stromboe, 102 S.W.3d 675, 700 (Texas 2003). The 7th Circuit’s market approach is a variation on the theme that it may not be appropriate to certify class action in the absence of a sufficient track record of individually tried cases: i.e., a lack of maturity. Linda S. Mullenix holds the Morris and Rita Atlas Chair in Advocacy, University of Texas School of Law. She can be reached at [email protected].

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