ISSUES & OVERVIEW
Two recent litigation trends are causing major concern among defense counsel: class action abuse and "junk science," both of which can result in significant exposure for your clients. Fortunately, reforms are underway that can reduce this exposure. These reforms deserve your consideration and support.
Recent years have seen a tremendous increase in the number of consumer claims, product liability claims, and mass tort litigations filed as class actions in state court. Plaintiffs’ counsel prefer filing these cases in state rather than federal court because state courts tend to be less rigorous and exacting in determining whether class action certification is appropriate. State court judges are often less experienced in handling class actions and other complex litigation than federal court judges and, therefore, may give the petition for certification a more cursory review before certifying the class. The flood of consumer class actions that we have witnessed in the last few years can be attributed, in large part, to lax state court standards for class certification.
A number of significant legislative and administrative reforms are being considered to curb class action abuse. For example, federal legislation has been proposed that would change diversity standards to permit most class actions involving nationwide classes to be removed to the federal courts. The proposed legislation would facilitate removal by permitting small individual claims to be aggregated to meet the threshold for federal jurisdiction. Today, removal is impossible for many consumer claims worth hundreds of millions or even billions of dollars because no individual claim meets the federal jurisdictional requirement.
At the same time, procedural rules are being considered that would permit the automatic appeal of class certification orders and impose more stringent pleading requirements. These reforms represent important steps toward assuring that the certification process protects the rights of defendants.
Another type of class action abuse occurs when requests for class certification or approval of settlements, although based on the same facts, are treated differently by different courts. The Federal Advisory Committee on the Civil Rules is considering an amendment to Rule 23(c)(1)(D) to deal with this problem. The amendment would permit a federal district court that refused to certify a class to direct that no other court may certify a substantially similar class to pursue similar claims unless circumstances have changed. A related provision amending Rule 23(e)(5) would preclude another court, state or federal, from approving a class action settlement that has been rejected by a federal court unless circumstances have changed.
"Junk science" is another area of great concern to defense counsel. Those of us who are involved in complex commercial or mass tort litigation are often confronted by expert witnesses whose testimony is admitted on astoundingly flimsy grounds. Admitting such testimony often results in either unfounded liability awards or damage awards where actual harm is speculative, if not nonexistent. Exacting standards for expert testimony are essential for the promotion of sound science. Progress toward limiting the admissibility of "junk science" has been made as a result of the United States Supreme Court’s landmark decisions in the Daubert and Kumho Tire cases. However, the law on the admissibility of expert testimony is still evolving and must be closely monitored. The Atlantic Legal Foundation promotes sound science and the rule of law in the courtroom. Its amicus briefs supported by panels of experts and scientists (including Nobel Prize winners) have played an important role in a number of the landmark "junk science" cases. I urge your readers to support the excellent work of The Atlantic Legal Foundation.
Philip R. Sellinger