The Pesky Persistence of Class Action Tolling in Mass Tort Multidistrict Litigation

• Author: Jeremy T. Grabill
• Position: Associate, Phelps Dunbar LLP, New Orleans, Louisiana
• Pages: 433-481

The Pesky Persistence of Class Action Tolling in Mass

Tort Multidistrict Litigation

Jeremy T. Grabill*

ABSTRACT

Notwithstanding the fact that personal injury claims are no

longer certified as class actions for purposes of adjudication (i.e., as

“litigation classes”), the class action tolling doctrine is alive and

well in various jurisdictions across the country, and it is a feature of

state law that transferee courts must grapple with in mass tort

multidistrict litigations (MDLs). The pesky persistence of the class

action tolling doctrine allows individual statutes of limitations for

potential plaintiffs to be tolled in many jurisdictions by virtue of the

mere filing of a putative personal injury class action in a related

case. In contemporary mass tort MDLs, which are increasingly

being resolved by non-class aggregate settlements, it is simply not

true that “a little tolling never hurt anyone.” Rather, by permitting

and/or encouraging potential plaintiffs to sit in the shadows and not

come forward to assert their claims, the class action tolling doctrine

can delay and altogether undermine efforts to resolve modern mass

tort litigation by creating disabling uncertainty about current and

future plaintiff populations.

This Article argues that transferee courts should reexamine their

current tendency to defer consideration of class action issues in

mass tort MDLs; instead, transferee courts should issue an

“omnibus class action pretrial order” at the inception of any MDL

that contains at least one putative personal injury class action. That

omnibus order can rely on the long line of well-established

precedent rejecting certification of personal injury litigation classes

and should do at least four things: (i) strike all current and future

personal injury class allegations from all current and future

complaints in the MDL; (ii) deny all current and future requests for

personal injury claims to be certified as litigation classes; (iii)

Copyright 2014, by JEREMY T. GRABILL.

* Associate, Phelps Dunbar LLP, New Orleans, Louisiana. J.D. 2006,

Tulane University School of Law; B.A. 2003, Cornell University. By way of

disclosure, from 2006 through 2008, I served as a law clerk to the Honorable

Eldon E. Fallon, United States District Court for the Eastern District of Louisiana,

during which time Judge Fallon presided over several of the cases referenced

herein. More recently, I have been involved in the multidistrict litig ation arising

from the BP Deepwater Horizon oi l spill as counsel for sev eral of the so-called

Emergency Respo nder and Clean-up Responder Defe ndants. The vie ws expressed

in this Article are mine alone and do not represent the views of my current or past

employers, those firms’ clients, or the judge for whom I clerked.

434 LOUISIANA LAW REVIEW [Vol. 74

explicitly provide that the purpose of the order is to suspend any and

all tolling of the applicable statute(s) of limitations that might

otherwise occur as a result of the class action tolling doctrine; and

(iv) make clear that the parties are not precluded from subsequently

seeking certification of one or more settlement classes. Such an

order would short-circuit any harmful impact the class action

tolling doctrine might otherwise impose without precluding the

parties from subsequently seeking to use the class action device to

implement a global settlement. Ultimately, this is a modest

modification of current MDL practice that should be implemented in

mass tort cases.

TABLE OF CONTENTS

I. Introduction ............................................................................. 435

II. The Demise of Personal Injury Litigation Classes and the

Emergence of Mass Tort Multidistrict Litigation .................. 442

A. Personal Injury Litigation Classes Are No Longer

Certified ............................................................................. 443

1. Lack of Class Cohesion .............................................. 444

2. Choice-of-Law Complexities ..................................... 449

3. Discomfort with All-or-Nothing Adversarial

Proceedings ................................................................. 451

B. Contemporary Mass Tort Multidistrict Litigation ........... 455

1. Pretrial Management Techniques ............................... 457

2. Modern Methods for Achieving Global

Resolution ................................................................... 460

a. Private Mass Tort Settlements ............................. 461

b. Class Action Settlements ...................................... 461

III. The Pesky Persistence of the Class Action Tolling

Doctrine ............................................................................... 463

A. American Pipe and Its Progeny ........................................ 464

B. Class Action Tolling in Personal Injury Litigation .......... 467

C. Class Action Tolling Can Undermine Efforts to

Resolve Mass Tort Litigation ........................................... 470

IV. MDL Transferee Courts Should Short-Circuit the Class

Action Tolling Doctrine .......................................................... 473

2014] CLASS ACTION TOLLING IN MASS TORT MDL 435

A. Omnibus Denial of Class Action Status for Putative

Litigation Classes .............................................................. 474

B. Parties Can Subsequently Seek Certification of

Settlement Classes ............................................................ 477

C. CAFA Consider ations ....................................................... 478

V. Conclusion ............................................................................... 481

I. INTRODUCTION

Courts may authorize the use of class actions in two essential

ways—the claims of one or more class representatives may be

certified for purposes of adjudication (“litigation classes”) or for

purposes of settlement (“settlement classes”).1 Although mass tort

litigation continues to be occasionally resolved via class action

settlements,2 it is essentially unquestionable that personal injury

claims can no longer be certified as litigation classes.3 As the

1. See, e.g., Thomas E. Willging & Emery G. Lee III, From Class Actions to

Multidistrict Consolidations: Agg regate Mass-Tort Litigation After Ortiz, 58 U.

KAN. L. REV. 775, 793 (2010) (noting that “the settlement class . . . appears to

have displaced the litigation class as the dominant form of class certification,”

although “the existing empirical evidence is consistent with the thesis that class

certification [in general] has become less likel y” following the U.S. Supreme

Court’s decision in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)). In federal

court, the class certification analysi s under Rule 23 of the Federal Rules o f Civil

Procedure differs slightly depending on whether the parties are seeking

certification of a litigation class or a settle ment class. See infra Part II.B.2.b.

Stepping back from the distinctio n between litigation classes and s ettlement

classes for a moment, “[t]he paradigmatic application of the modern class action

[as a procedural vehicle] . . . is to make civil claims marketable that otherwise

would not be brought on an individual basis.” Richard A. Nagareda, Class

Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 99 (2009).

2. See infra Part II.B.2.b.

3. See In re Am. Med. Sys., Inc., 75 F.3d 1069, 1089 (6th Cir. 1996)

(identifying “a national trend to deny class certification in drug or medical product

liability/personal injury cases”). The discussion of “personal injury” claims in this

Article should be understood to include claims for monetary damages arising from

both non-fatal and fatal injuries. It should also be noted here that issues concerning

tolling for non-personal injury claims are beyond the scope of this Article, largely

because certain non-personal injury claims may still be amenable to class

certification in mass tort litigati on. See, e.g., In re Whirlpool Corp. Front-Loading

Washer Prods. Liab. Litig., 722 F.3d 838 (6th Cir. 2013) (affirming certification of

a class of consumers that had purchased allegedly defective washing machines);

Pella Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010) (affirming certification of

two consumer fraud classes in defective window litigation and noting that “[w]hile

consumer fraud class actions present problems that courts must carefully consider

before granting certification, there is no t and should not be a rule that the y never

can be certified”); Donovan v. Philip Morris USA, Inc., No. 06-12234, 2012 WL