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
SUMMARY

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 ... (see full summary)

 
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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

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