880 F2d 709 In Re Ah Robins Company Incorporated
880 F.2d 709
58 USLW 2006, 13 Fed.R.Serv.3d 1239
In re A.H. ROBINS COMPANY, INCORPORATED, Debtor.
Nos. 88-1755, 88-1757, 88-1766 and 88-3604.
United States Court of Appeals,
Argued Dec. 6, 1988.
Decided June 16, 1989.
Irving R.M. Panzer, Joseph Francis McDowell, III (Cullity, Kelley & McDowell, Manchester, N.H., Sidney L. Matthew, Tallahassee, Fla., John T. Baker, Denver, Colo., Bragg & Dubofsky, P.C., Boulder, Colo., Robert E. Manchester, Manchester Law Offices, P.A., Bradley Post, Post, Syrios & Bradshaw, Wichita, Kan., James F. Szaller, Cleveland, Ohio, Brown & Szaller, Co., LPA, on brief), for appellants.
John G. Harkins, Jr. (Deborah F. Cohen, Philadelphia, Pa., Richard B. Herzog, Gerald P. Norton, Mark Schattner, Pepper, Hamilton & Scheetz, Washington, D.C., on brief), Joseph Stuart Friedberg (Joseph S. Friedberg, Chartered, Ronald I. Meshbesher, Meshbesher, Singer & Spence, Ltd., Minneapolis, Minn., John A. Cochrane, Cochrane & Bresnahan, P.A., St. Paul, Minn., Herbert B. Newberg, Martin J. D'Urso, Herbert B. Newberg, P.C., Philadelphia, Pa., James Hovland, Krause & Rollins, Minneapolis, Minn., Douglas W. Thomson, Thomson, Hawkins & Ellis, Theodore I. Brenner, Bremner, Baber & Janus, W. Scott Street, III, A. Peter Brodell, Williams, Mullen, Christian & Dobbins, Richmond, Va., on brief), for appellees.
Before RUSSELL, WIDENER, and CHAPMAN, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
This diversity suit by seven individual claimants, suing on their own behalf and as the proposed class representatives of all injured Dalkon Shield claimants, seeks recovery against Aetna Casualty and Surety Company (Aetna) for injuries resulting from the use of an allegedly defective intrauterine device known as the Dalkon Shield. Aetna was neither the manufacturer nor the vendor of the device; it was the products liability insurance carrier of A.H. Robins Company, Inc. (Robins), the manufacturer and distributor of the device. It is the theory of the plaintiffs that Aetna's conduct, while acting in its role as insurance carrier, was such that it rendered itself liable as a joint tortfeasor with Robins for any injuries sustained by persons using the device. The plaintiffs sought class certification of the suit. During consideration whether to give final certification of the suit, the parties entered into a settlement of the action conditioned on certification. After a duly-noticed hearing, the District Court granted in separate orders final class certification of the action and approval of the settlement of the action so certified. The appeal challenges the two orders. Since the two orders from which the appeals are taken are intimately connected, the two appeals have been consolidated. We affirm both the class certification and the settlement orders.I.
In the early 1960's, Dr. Hugh Davis, a gynecologist on the staff of the Johns Hopkins Hospital and the Johns Hopkins Medical School, developed an intrauterine device which has been generally described as a Dalkon Shield. In conjunction with some associates, Dr. Davis, in the mid 1960's, began to manufacture and sell on a small scale the Dalkon Shield. This limited operation continued until early 1970 when A.H. Robins Co., Inc. (Robins), which was a well-recognized and successful manufacturer and marketer of pharmaceutical products, acquired the exclusive right to manufacture and market the Dalkon Shield. In his findings in connection with this purchase by Robins of exclusive rights in the manufacture and sale of the Dalkon Shield, the District Judge said:
Prior to that time (i.e., the purchase of the Dalkon Shield), Robins had never marketed any kind of a birth control product and had no gynecologist on its medical staff. Nevertheless, Robins did no further testing, readily accepted the figures of the inventor's testing, and aggressively promoted the device to the medical profession and, uniquely for such a device, to the general public.
Robins, however, did not begin the marketing of the device until early 1971. Whether as a result of the promotional efforts of Robins or not, the product received wide public acceptance, and its sale was brisk. Between 1971 and mid-1974 when sales were discontinued, some 2,200,000 Dalkon Shields were sold. These sales generated a gross revenue for Robins of $11,240,611.00 and a gross profit of $505,499.00.1
The product, however, had hardly been introduced into the market before what the District Court herein described as "an extraordinary volume" of complaints of injuries suffered by reason of its use began to surface. By 1973, the complaints had reached such a level that Robins felt compelled to send its first "Dear Doctor" letter to the medical profession advising the profession of a septic abortion problem arising out of the use of the device along with a suggestion for reducing the risk of such problem. The complaints from users of the device, however, continued at such a pace that by mid-1974 Robins finally withdrew the product from the market. Robins did not, though, issue any product recall until September 1980, when it addressed its second "Dear Doctor" letter to the medical profession. In this letter it recommended that the devices be removed from all continuing users, even those with no manifest problems, and it noted, as summarized by the District Court, that "long-term users of all IUD's had a higher risk of exposure to actinomyces, a virulent strain of microorganism implicated as a cause of pelvic inflammatory disease." However, there was no realistic recall of the Dalkon Shield until 1984.
The early complaints of injury from the use of the device quickly generated lawsuits against Robins in various parts of the country. Aetna Casualty and Surety Company (Aetna), as the products liability insurance carrier, was obligated to defend the suits filed against Robins in that connection. The first action to come to trial against Robins charging injuries from the use of the Dalkon Shield arose in the state court in Kansas and resulted in a verdict in February 1975 in favor of the plaintiff in the amount of $85,000, including a $75,000 punitive damage award. This verdict was widely publicized and the filing of actions against Robins quickened.2 This multiplication of suits--such, for instance, as approximately two hundred at the same time in the Northern District of California3 and in the District of Maryland,4--posed a serious problem of manageability for the courts before which the suits were pending.
Many of the courts referred the multiplicity of suits in their district for consolidated pre-trial proceedings under the direction of the Judicial Panel on Multi-District Litigation in the hope that such action might reduce the difficulties of disposing expeditiously of the mounting Dalkon Shield case burden. See In re A.H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation, 406 F.Supp. 540 (J.P.M.D.L.1975); 419 F.Supp. 710 (J.P.M.D.L.1976); and 438 F.Supp. 942 (J.P.M.D.L.1977). After the entry of a number of such orders of transfer, the Judicial Panel finally concluded that their previous orders accepting transfers had accomplished as much as could be achieved in reducing pre-trial proceedings and it began vacating later transfer orders, returning the cases for further proceedings to the respective transferor courts. In re A.H. Robins Co., Inc. "Dalkon Shield" IUD Products Liability Litigation, 453 F.Supp. 108 (J.P.M.D.L.1978); and 505 F.Supp. 221 (J.P.M.D.L.1981). While these proceedings before the Judicial Panel had aided the problems of discovery in the Dalkon Shield cases, they did nothing to relieve the clogging of court calendars by the constantly increasing stream of Dalkon Shield cases to be tried, nor did they reduce substantially the trial time of the cases. It was manifest that other measures were required if this overloading of the courts with Dalkon Shield cases was to be relieved.
District Judge Miles Lord of the Minnesota District Court, to whom had been assigned in the late 1970's and early 1980's a large number of Dalkon Shield cases, determined to try his hand at expediting the disposition of such cases as were before him. He consolidated a large number of such suits and appointed a lead counsel to handle discovery. He prodded the counsel so appointed to proceed aggressively, and he named two masters to sift through all the material discovered and to prepare a report for counsel and the court based on all material discovered and any developed in their independent investigations. The masters did conduct considerable independent investigations. Thus, they reviewed carefully the relevant records in the files of Robins and inquired into the possible involvement of Aetna with Robins in the defense planning and activity. All of this discovery, along with that developed by lead counsel, was catalogued by lead counsel appointed by the Court. The suits in litigation before Judge Lord, however, were at this point settled for $38 million and no further proceedings were had in Judge Lord's court (and that of his successor). The lead counsel in this litigation before Judge Lord withdrew from any subsequent Dalkon Shield litigation but made available to counsel in other cases the discovery developed in that case.
Other courts took another tack in an effort to manage expeditiously and fairly the mass of Dalkon Shield cases. They turned to the class action procedure provided by Rule 23, Fed.R.Civ.P. The great volume of cases which were inundating the court system and the similarity of the issues in all the cases, it was thought, provided a proper basis for class treatment both in the interests of the parties and of the courts. The first case in which this procedure was invoked was Rosenfeld v. A.H. Robins Co., Inc., 63 A.D.2d 11, 407 N.Y.S.2d 196 (N.Y.App.Div.), appeal dismissed, 46 N.Y.2d 731, 413 N.Y.S.2d 374, 385 N.E.2d 1301 (1978). In that case, the plaintiffs sought class certification under a New York statute modeled after Rule 23, and Robins, oddly enough, opposed such certification. The motion court denied certification and, on appeal, that decision was affirmed. The court, in affirming that decision, stated that:
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 the Special Terms correctly denied plaintiffs' motion for class certification.
407 N.Y.S. at 201.
The court added as the rationale for this conclusion that "[t]he difficulties involved in determining the causality of injuries of this sort cannot be overstated." Ibid. at 201. It also denied partial certification because the issues which would have been pertinent in such a certification were "so thoroughly intertwined with those which must be determined individually." Ibid. at 201. It is obvious from these comments that it was the problem of individual causality which motivated the court in its denial in this case of class certification.
The next stab at class certification arose in In re Northern District of California "Dalkon Shield" IUD Products Liability Litigation, 526 F.Supp. 887 (N.D.Cal.1981) vacated, 693 F.2d 847 (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983). In that case, the District Judge, confronted with a mass of Dalkon Shield cases pending for trial in his court, concluded that a class certification was an appropriate--in fact, the only--available procedure for expediting the fair disposition of such suits and preventing a waste of judicial resources in trying individually cases in which there would be an endless repetition at great length of many of the same facts. He accordingly proceeded on his own motion to certify a nationwide class action on the issue of punitive damages under Rule 23(b)(1)(B) and a statewide (California) class action on the issue of liability under Rule 23(b)(3). He supported his decision with a cogently reasoned opinion. However, on appeal, that decision was reversed. 693 F.2d 847 (9th Cir.1982).
The Court of Appeals, in reversing the District Court's certification sought to divide the certification issue into two broad classes: One deals with the class (b)(3) certification of the issue of liability for the manufacture and sale of a defective product; the second relates to the District Court's certification under the "limited fund" doctrine of the claim for punitive damages under (b)(1)(B). On the first point, the Court of Appeals said that, despite the fact that the certification under (b)(3) was "limited to the issue of liability," "Robins' overall liability, under some of the theories [of liability], cannot be proved unless each plaintiff also proves that Robins' breach of duty proximately caused her particular injury." 693 F.2d at 853, 856. It recognized that Rule 23(c)(4)(A) authorizes and encourages separating issues for certification where economies of trial may be achieved, but dismissed the use of such authority in this case because "[t]he complexity of issues peculiar to individual claims militates against grouping all plaintiffs into a class for only part of their recovery" and "[t]he few issues that might be tried on a class basis in this case, balanced against issues [such as causation and damages] that must be tried individually, indicate that the time saved by a class action may be relatively insignificant. A few verdicts followed by settlements might be equally efficacious."5 Ibid. at 855, 856. It then added this somewhat contradictory sentence: "We do not preclude further consideration by the District Court of motions to certify a more limited class or subclasses under Rule 23(b)(3)," Ibid. at 856, seemingly suggesting that if the District Court would further break the issue down certification might be appropriate. It proceeded to add that the petitioner for class certification had failed to satisfy the "typicality" requirement of subsection (a)(3) or the "superiority" requirement of (b)(3). For this conclusion the Court of Appeals relied on the Advisory Committee's Note to (b)(3) and on La Mar v. H & B Novelty and Loan Co., 489 F.2d 461 (9th Cir.1973) and McDonnell Douglas Corp. v. U.S. District Court for the Central Division of California, et al., 523 F.2d 1083 (9th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1506, 47 L.Ed.2d 761 (1976), two cases which held that the "flexible" language of Rule 23 itself had, in the interest of manageability, to be reined in with constraining limitations, which were not expressed in the Rule.6 The Court of Appeals appears to have found also that the (a)(4) requirement of "adequate representation" was not met. In that regard, it stated that "[n]o plaintiff has appeared in this appeal in support of class certification," "no plaintiff [had] accepted" the role of class representative, "none of the attorneys already involved [was] willing to serve as class counsel" and the District Court had been forced to appoint counsel to maintain the class action. 693 F.2d at 850-51. The appointed counsel had resigned and the replacement had not started to represent the class.7 693 F.2d at 850-51. However, in concluding this phase of its opinion, the Court of Appeals ambiguously said:
We are not necessarily ruling out the class action tool as a means for expediting multi-party product liability actions in appropriate cases, but the combined difficulties overlapping each of the elements of Rule 23(a) preclude certification in this case. 693 F.2d at 851.
In reversing the certification of the punitive damages claim under (b)(1)(B), the Court of Appeals held apparently that to qualify for certification under the "limited fund" doctrine, the movant for certification must prove the fact that the fund is inadequate to pay all claims "inescapably," 693 F.2d at 851, and it found that the District Court had erred in finding to the contrary in entering an order of certification of the punitive damage claim under (b)(1)(B).8
In 1984, Robins itself thereafter filed an action seeking class certification of the claim for punitive damages in all Dalkon Shield suits in the Eastern District of Virginia. In re Dalkon Shield Punitive Damages Litigation, 613 F.Supp. 1112 (E.D.Va.1985). Certification was denied. The District Judge construed the decision by the Ninth Circuit Court of Appeals in In re Northern District of California Dalkon Shield Products Liability Litigation, supra, (693 F.2d 847), as having held that Rule 23(a) with its requirements of commonality, typicality and adequate representation were not met in the negligence and warranty claims for punitive damages against Robins and concluded that such decision barred under familiar principles of collateral estoppel this subsequent request for certification of the propriety of punitive damages awards in Dalkon Shield cases.
The final effort at maintaining a class action against Robins before the filing of the action which is the subject of this appeal occurred in early 1985. At that time counsel who later filed this action instituted in the District Court of Virginia a proposed class action against Robins. The complaint in that action included the same general allegations which had been made in earlier attempts at maintaining a class action in the Dalkon Shield litigation but added an important new averment. It alleged that at the time the action was filed, Robins was insolvent and that the value of outstanding claims, filed and unfiled, exceeded Robins' value, thereby exposing filing victims to economic prejudice at the hands of more timely filed claims. The action sought a gross judgment, the proceeds from which would be equitably distributed among Dalkon Shield claimants under an alternative dispute resolution process.9 Robins opposed the suit and denied insolvency. Though a hearing was had by the District Court on the motion for class certification, no order on that motion was issued prior to the filing by Robins of the Chapter 11 proceedings. The motion has remained dormant since.
During the period of these proceedings before the Judicial Panel and the attempts at class certification as already detailed, the flood of suits against Robins by Dalkon Shield claimants had continued unabated. By 1985 "an average in excess of seventy (70) cases per week were being filed," usually seeking "both compensatory and punitive damages."10 Moreover, large verdicts were being returned against Robins. Illustrative of that was a case in the same court before which the first verdict in a Dalkon Shield case in mid-1975 was returned. In 1985, with the same counsel representing the plaintiff, a verdict of $9.1 million (of which $7.5 million was awarded as punitive damages) was returned against Robins. In short, beginning with an award of $85,000 in 1975, awards in the Dalkon Shield cases escalated by 1985 with verdicts such as this latest verdict to over $9 million. Such suits understandably were taking their toll on Robins' resources.
Under these circumstances, it was but natural that some Dalkon Shield claimants and their counsel would have become apprehensive of the ability of Robins to meet the liabilities being asserted in all the pending Dalkon Shield cases. Another "deep pocket" had to be sought and a number of the claimants focused on Aetna as this other "deep pocket." Various suits were begun prior to the filing or immediately after the filing by Robins of its Chapter 11 petition against Aetna charging liability on its part as a tortfeasor with Robins.
Typical of such suits was Bast, et al. v. A.H. Robins Co., Inc., 616 F.Supp. 333 (E.D.Wis.1985). In that case, the Dalkon Shield plaintiffs sought, in the words of the Court, "to impose direct liability for their injuries upon Aetna Casualty and Surety Company, the A.H. Robins Company's insurance carrier," under a claim that Aetna had, by its actions, made itself a joint tortfeasor equally liable as Robins. They alleged virtually the same substantive claims as did the plaintiffs in the case before us, to wit, negligence, express and implied warranty, misrepresentation and fraud, all garnished with a RICO claim. The Court found the complaint flawed because the plaintiffs had failed to "aver the existence of a duty of care owed the plaintiffs by Aetna, and resultant injuries proximately caused by such breach." 616 F.Supp. at 334. It, therefore, dismissed the action.
A few weeks after Bast was dismissed, and about a week before Robins filed its Chapter 11 petition, a similar case came before the District Court in the other district of the same state. Campbell, et al. v. A.H. Robins Co., Inc., 615 F.Supp. 496 (W.D.Wis.1985). The complaint in this action charged the same negligence, warranty, misrepresentation, conspiracy, fraud and RICO counts as had Bast. Aetna filed a motion to dismiss and the Court granted the motion. In dismissing the suit, the Court said that all the claims were "faulty for the simple reason that an insurer owes no duty of care to injured third parties under Wisconsin law." In the same vein, the court said that "there must be allegations of how a defendant may have breached such duties, and how the plaintiffs' injuries may have been caused by the defendant." 615 F.Supp. at 500 (citation omitted). It added too that "retrospective liability of co-conspirators does not operate to make the late-entering conspirator responsible for the already completed substantive offenses of his cohorts." Ibid. It dismissed the RICO claim as "deficient in two respects: the complaint does not allege a causal connection between the racketeering offenses attributable to Aetna and the injuries that plaintiffs suffered; and the complaint does not, and cannot, allege an injury to 'business or property' as required by 18 U.S.C. Sec. 1964(c)." Ibid. (footnote omitted).
Other suits against Aetna were filed seeking to charge it as a joint tortfeasor with Robins in the Dalkon Shield litigation. So far as we can ascertain, motions for dismissal in all such actions were filed by Aetna and, such as had been heard and ruled on, had been granted. See Bathurst v. Aetna Casualty and Surety Co., No. 85-C-0324 (E.D.Wis.1985) and Dyes v. Aetna Casualty and Surety Co., No. C-85-3932A (N.D.Ga.1985).11
In addition to all these attempts at class action certification, either total or partial, and attempted suits against Aetna, there had been a running dispute between Aetna and Robins on the extent of the coverage under Aetna's policy. This difference apparently existed from the very beginning of the Dalkon Shield litigation. In 1979 Aetna had filed a declaratory action to resolve some of these disputes and differences. In October, 1984, a settlement was agreed upon in this litigation after extensive negotiations. In a compromise settlement of the dispute, Aetna agreed, among other things, to provide a small additional coverage above its claimed limits of $300 million. By mid-1985, there was argument between Robins and Aetna over the amount of remaining liability, if any, under Aetna's policy available for payment of judgments entered in the Dalkon Shield litigation.
By this time, Robins had been frustrated in every effort to reduce the expenses of defending the individual suits being filed through the use of the class action device. The costs of defense, the disruption that all the individual trials was placing on its executive force, and the expense of discharging some of the judgments were putting great financial strain on Robins. Its funds had been so depleted by the suits that its unrestricted funds had been reduced to $5 million and "financial institutions were unwilling to lend it money." It had actually experienced considerable difficulty in collateralizing as a condition of appeal the judgment in the case where the plaintiffs had recovered in early 1985 a $9.1 million judgment. Faced with its obvious financial deterioration, a deterioration which gave every indication of accelerating, Robins felt its only avenue for paying equitably and fairly all the claims was through a Chapter 11 proceeding. So on August 22, 1985, Robins filed in the Eastern District Court of Virginia its Chapter 11 petition. By the time Robins filed this petition it and/or its insurance carrier had settled 9,238 claims for approximately $530,000,000. Despite these settlements, Robins, at the time it filed for relief, still faced over five thousand pending cases in state and federal court. In re A.H. Robins Co., Inc., supra, 89 B.R. at 557.
A few months after the Chapter 11 petition was filed, seven Dalkon Shield claimants, suing individually and as the class representative of all Dalkon Shield claimants, filed this action against Aetna alone to recover for the injuries allegedly suffered by them as a result of the use of the Dalkon Shield. The plaintiffs (hereafter often referred to as the Breland plaintiffs) asked at the outset of their complaint that the action be certified as a class suit on behalf of the whole class of Dalkon Shield claimants, which class they averred should be divided into two such classes identified as Class A and Class B. Class A members were those claimants who had complied with all the requirements for proof as a claimant in the Robins bankruptcy proceedings, and Class B members were those who had failed to so comply. Alleging compliance with the prerequisites of Rule 23, they asked that the action against Aetna be certified as a class action against Aetna on behalf of both Classes A and B under Rule 23(b)(1)(A) and (B), without opt-out rights on the part of any member of either Class. They proffered allegations of justification for this action. They then separated their substantive claims into two categories. The first was characterized by them as their "Limited Fund Contract Claim." This claim related to Aetna's liability under its Robins policy. In 1984, after several years of haggling between Robins and Aetna, an agreement, as we have already said, was reached which changed in some particulars Aetna's obligation under its policy to the prejudice of those entitled to avail themselves of rights under it. It was the premise of the Breland plaintiffs that the Dalkon Shield claimants were third-party beneficiaries under the policy and as such had a common, undivided interest in the value of the policy. They sought "vitiation" of this 1984 agreement between Robins and Aetna. This was the subject of the "limited fund" claim.
The second claim of the Breland plaintiffs was for recovery of damages against Aetna as a joint tortfeasor for all injuries sustained by the two Dalkon Shield Classes of claimants by reason of the use of the Dalkon Shield. The plaintiffs alleged as a basis for their charge against Aetna as a joint tortfeasor that from "the time the Defendant [Aetna] agreed to insure Robins and continuing up to the present, Defendant became an active participant in all stages of the development, testing, promotion, and marketing of the product as well as being inexorably involved in the palliation of the public and the medical profession." They followed with a statement of the same claims of liability under negligence, strict liability, express and implied warranty, fraud, and conspiracy plus the standard RICO averments that were becoming routine allegations in the suits filed by Dalkon Shield claimants against Robins.
In its answer to this complaint, Aetna admitted at the outset federal jurisdiction "over this action pursuant to 28 U.S.C. Sec. 1334(b) and 11 U.S.C. Sec. 105 because this action arises in and is related to In re A.H. Robins Company, Inc. Chapter 11 Case No. 85-01307-R," and expressly conceded the accuracy of plaintiffs' allegations in paragraph 26 of their [the plaintiffs'] complaint, which was in these words:
The class is severely prejudiced and adversely affected unless a single class action is permitted to be maintained in which class representatives under strict court guardianship are in a position to bind the class and Aetna in a unitary proceeding against Aetna. The equitable underpinnings for the certification of mandatory Rule 23(b)(1) class actions are satisfied under these extraordinary circumstances.
It added affirmatively in that connection "that Aetna [itself] would be severely prejudiced if forced to respond to multiple suits filed by class members. The application of incompatible standards to Aetna would impair Aetna's ability to engage in the consistent, continuing course of conduct relative to its duties and obligations as an insurer."
On the merits of the claims, Aetna denied specifically all allegations of the complaint charging liability on its part along with Robins in the Dalkon Shield cases as a joint tortfeasor, stating affirmatively that
Aetna's action and activities complained of by plaintiffs are based on Aetna's relationship with Robins as its insurer, and not on any direct conduct or contact between Aetna and any of the plaintiffs claiming injury from use of the Dalkon Shield. No action by Aetna caused any injury to any plaintiff as a matter of fact or of law.
It said in further explication of this defense that it was "neither a manufacturer nor a seller of the Dalkon Shield and, therefore, is not subject to strict liability."
With the joinder of issues in the action, the plaintiffs moved promptly for class certification in accordance with the allegations of their complaint. The District Court heard such motion on October 30, 1986. In its order entered some weeks after the hearing, the court found that "the requirements for class action certification under Federal Rules of Civil Procedure 23 [had] been" met and it conditionally certified the action. However, consistent "with the Court's determination by [its] Order of November 4, 1986, to lift the stay in this action to permit Plaintiffs to proceed with discovery" and "to assure that the class will have the benefit of all such discovery," it made its certification "subject to further consideration in light of discovery developments, whether this action should continue to be maintained as a class action, and if so, in what form."
In the meantime, a number of Dalkon Shield claimants, by counsel, filed for leave to intervene at the hearing on the motion for final certification in order to oppose class certification. The District Court granted the right to intervene for the purpose of filing briefs in opposition to class certification as well as "to present oral argument before the Court prior to the disposition of the class certification motion before this Court."
While the discovery was continuing under the District Court's order for conditional certification, the Official Dalkon Shield Claimants' Committee filed a motion with the District Court for leave to file its own complaint against Aetna. That motion was granted and the Committee proceeded to file its complaint. The Committee's complaint followed substantially the Breland plaintiffs' complaint on its broad claim against Aetna but it injected into the controversy an entirely new issue of considerable complexity. This additional allegation was that "[a]s a result of the joint negligence of Aetna and Robins, Aetna is liable to Robins for contribution for its pro-rata share of those damages already paid by Robins to Dalkon Shield users." Aetna responded to this complaint, admitting the insurance policy issued by it to Robins and that Robins had "expended in excess of $200,000,000 pre-petition with respect to Dalkon Shield claims"12 but denying absolutely on a number of grounds any claim that it was a joint tortfeasor along with Robins in the Dalkon Shield case. It, too, added an affirmative claim of a right to contribution from Robins in the event it was found liable as a joint tortfeasor. This latter claim was stated in paragraph 20 of Aetna's answer to the Committee's complaint as follows:
In the event, however, Aetna is liable to Robins for contribution or for other form of relief (all such liability being expressly denied by Aetna), then, as to any amounts which Aetna is required to pay to Dalkon Shield claimants (other than under the policies of insurance issued by Aetna to Robins) on account of injuries related to the Dalkon Shield, Robins is liable to Aetna for contribution as to all such payments to the extent based on conduct by Aetna found sufficient to give rise to a right by Robins to contribution.
This action of the Committee was consolidated with the Breland suit without objection and was disposed of in the orders granting certification and approving the settlement, all as subsequently discussed.
As discovery on the certification issue proceeded, considerable inquiry on the part of counsel for the Breland plaintiffs into all dealings between Robins and Aetna, including the files of Robins and those of Aetna, was conducted. At the same time, discussions of a possible settlement between the plaintiffs in Breland and Aetna were engaged in by counsel for the parties. The parties recognized that the Breland case and the Robins reorganization would necessarily involve some coordination if a feasible settlement were to be achieved. Such a coordination would require as an essential step a final class certification in the Breland case. To expedite certification, Aetna stipulated of record that "if Breland were certified, and if claims resolution in Breland could be coordinated with the claims resolution process which would be required in the Robins reorganization proceedings, [it] would agree not to litigate separately any of the non-common issues of individual medical causation and individual amounts of damages." This stipulation left open either for trial or for settlement the issue whether Aetna could be held liable as a joint tortfeasor with Robins; all other issues--the non-common ones of individual causation and damages--were to be resolved along with the similar claims in the Robins reorganization under a claims resolution procedure for the disposition of such claims.
A settlement figure on the common issue of Aetna's possible liability as a tortfeasor was extensively discussed. The discussion ranged somewhere "between zero and $300 million in cash." However, it became "obvious," as the Breland counsel wrote Aetna's counsel, "that somebody is going to buy Robins," and, though the parties to the Breland suit had "agreed in principle to a solution," he (the Breland counsel) felt that any final attempt at settlement should "wait until we see what type of proposal is seriously made by a serious suitor that has a chance of becoming a feasible plan of reorganization prior to our finally resolving our lawsuit." When American Home Products Corporation (Home Products) later entered the picture as a "serious suitor" for Robins, the negotiations in the consolidated suits of the Breland plaintiffs and the Claimants' Committee and the discussions of a Plan of Reorganization of Robins, based primarily on an offer of American Home, began to merge and take shape, looking to a combined settlement of all Dalkon Shield litigation.
While discussions had been proceeding between Aetna and the Breland plaintiffs, the parties in the bankruptcy reorganization of Robins had fortunately been working at the same time on a Plan of Reorganization. As a basis for any plan of reorganization it was necessary that an estimation be made of the unliquidated claims against the debtor under Section 502(c) of the Bankruptcy Code, which directs that "[t]here shall be estimated for purposes of allowance under this section--(1) any contingent or unliquidated claim, the fixing or liquidation of which, as the case may be, would unduly delay the administration of the case." An estimation under this section contemplates a full adjudication.13 The estimation of the unliquidated claims in this case was arrived at after testimony by expert witnesses, taken in a proceeding before the District Judge, where all parties were represented by counsel and had participated. The result of the hearing was an estimation made by the District Judge on the basis of the full record before him. The Dalkon Shield claims constituted substantially all the unliquidated claims involved in the estimation. The value of such unliquidated Dalkon Shield claims was fixed in the District Judge's estimation order at an "aggregate" dollar amount or value of $2.475 billion. The District Judge announced to all parties interested in the reorganization that no plan of reorganization would be considered which failed to provide this amount for the full payment of all Dalkon Shield claims.
At this point the American Home Products Corporation (American Home) made an offer that gave promise of enabling the debtor to meet this requirement of the District Judge. It proposed a merger of Robins with a subsidiary of American Home, which, with the assistance of its parent company, would as an incident of the merger provide, among other things, a sum, which, supplemented with some other anticipated contributions would, provide a fund of $2.475 billion for the full satisfaction of the unliquidated Dalkon Shield claims. One expected to make some contribution was Aetna. The reason for such inclusion was American Home's insistence that its contribution was contingent on a settlement by all Dalkon Shield claimants of their claims against any party. This insistence on American Home's part was a desire to assure the new company to be formed by the merger against any Dalkon shield liability. It may be that American Home felt that if Aetna were left out and Dalkon Shield claimants prevailed on its joint tortfeasor claim against Aetna, Aetna would acquire a right of contribution against Robins or its successor under the laws of a majority of the states.14 American Home apparently demanded that the new company, Robins and American Home, be protected against that risk. It accordingly became clear to the parties in the bankruptcy, as it had to the parties in the Breland case, that the negotiations for settlement of the suit of the Breland plaintiffs and of the Claimants' Committee had to be merged into a comprehensive procedure for the liquidation of all Dalkon Shield claims against Robins and Aetna. This made it essential that the settlement of the Breland case be tied to the Plan of Reorganization of Robins, and that is what the parties in the two proceedings did.
The procedure adopted to achieve this merger of the Breland action and the Plan of Reorganization of Robins began with the formulation of what was intended as the Final Plan of Reorganization of Robins. This Plan of Reorganization contemplated the creation of a Trust Fund to consist of $2.475 billion, to be funded primarily by payments made by American Home in connection with its acquisition by merger of Robins and by contributions of Aetna.15 Since it was manifest that Robins' liability in the Dalkon Shield litigation was direct while that of Aetna's liability as a possible joint tortfeasor was rather tenuous, if at all, the contribution of Robins through its merger with American Home's subsidiary and that of Aetna would vary markedly, and it did. The contribution of Aetna was to consist of a net of $75 million and of four policies of insurance, one of which was to be in the total amount of $250 million to be used "in the event there [were] not sufficient funds of the Trust (including investment income) to make further payments on claims" and the other to consist of an approved policy or policies of insurance in the amount of $100 million to pay Class B claimants whose claims were "ineligible for such recovery on a nonsubordinated basis." Aetna was to pay the premiums on all such insurance. Upon the approval of the Plan of Reorganization and the Certification and Settlement in the Breland suit, and the payments and transfers of insurance contracts to the Trust Fund required under the Plan and Settlement, the claims of all Dalkon Shield claimants against both Robins and Aetna were to be converted into claims solely against the Trust Fund established to pay in full their claims as proved under the procedure provided in the Plan, and Robins, Aetna and American Home and a successor company and the individuals contributing to the fund were to be released absolutely from any liability to Dalkon Shield claimants.
The Trust itself was to be operated by five trustees named in the Plan. The trustees were to create a Claims Resolution Facility which would resolve the liability due to each Dalkon Shield claimant. The issue of liability in each case would be resolved, if possible, by negotiations between the Facility acting for the Trust and the claimant and her attorney, if she had an attorney. If resolution of the claim could not be accomplished through negotiation, then the claim in every case would be resolved either by binding arbitration or by a jury trial at the option of the claimant. Should any claimant elect to settle her claim by suit, venue of such trial "[would] be unchanged by the Chapter 11 case" and the "right to a jury trial [would] be preserved," with "[a]ll claims and defenses ... available to both sides in a trial." See Exhibit Vol. III, pp. 1952-53.16 Under Aetna's stipulation, already described, this provision meant that questions of individual causation and damages in both the Robins bankruptcy and in the Breland case would be resolved by the above proceedings.
Considerable testimony was taken--much of it before the District Court itself--on the propriety of certification and of the Settlement. The parties' in interest engaged in extensive cross-examination of the witnesses in the various proceedings. A full record of such proceedings is included in the Joint Appendix herein. Some of the records considered in the matter were made before the Claimants Committee's action was filed, but a great part was after that filing. In addition, the discovery developed as a result of the proceedings before Judge Lord as well as the report of the masters appointed by Judge Lord in that proceeding was made a part of the record. Moreover, the masters testified in person in connection with their investigations and reports. At the conclusion of the receipt of testimony and admission of exhibits, lengthy arguments of counsel both for and against certification and of the Settlement were heard by the District Court.
On the basis of the record and the arguments, oral and written, by the parties, the District Court made its findings and conclusions separately on both the motion for class certification and the motion to approve the Settlement. It is essential in reviewing these decisions to remember that we are reviewing two decisions, both made substantially on the same factual record but dealing separately with the different issues in the two appeals. However, before we discuss the two appeals on their merits, we must address a jurisdictional issue, which, if upheld, would require the dismissal of the entire action.
The appellants have raised a threshold claim that this action fails the jurisdictional test established for a diversity action in federal court. The jurisdictional flaw is said to be the failure of the action to meet the jurisdictional amount test under 28 U.S.C. Sec. 1332.17 The appellants base this contention on Zahn v. International Paper Co., 414 U.S. 291, 301, 94 S.Ct. 505, 512, 38 L.Ed.2d 511 (1973), in which the Supreme Court said that "[e]ach plaintiff in a Rule 23(b)(3) class action ... must satisfy the jurisdictional amount, and any plaintiff who does not must be dismissed from the case." We address this jurisdictional issue first, as we should.
Unquestionably, all the named plaintiffs in this case meet the jurisdictional amount test for federal diversity jurisdiction. Each plaintiff alleges a claim in excess of $10,000.18 Such an allegation was sufficient at the time to establish jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). But it is the appellants' construction of Zahn that not only must the named plaintiffs in a proposed class action suit meet the jurisdictional amount but that all unnamed class claimants must likewise do so. Under this argument, it would be necessary to find on the record that the 300,000 Dalkon Shield claimants met the jurisdictional test. We do not understand, however, that the appellants assert that the plaintiffs herein must establish by direct proof that the claims of the unnamed class members meet the jurisdictional amount, nor would prevalent authority sustain such contention, if made. The courts which have considered the jurisdictional amount requirement in the mass tort class action context have ruled that the court will dismiss on this ground only if it can be said "to a legal certainty" that the claims of the unnamed claimants fail the jurisdictional amount test. This was the decision of the court in the first decision to address this point in a mass tort case, the decision which is generally regarded as the guiding authority in this connection. Payton v. Abbott Labs., 83 F.R.D. 382, 395 (D.Mass.1979).19
Payton, on its facts, has striking similarity with this case. It involved claims by a class of women suing for injuries caused by exposure to diethylstilbestrol (DES), manufactured and sold by the defendant pharmaceutical manufacturer. The defendant objected to class certification on the ground "that members of the plaintiff class [did] not satisfy that [the jurisdictional amount] minimum and that, in the context of this action, separating members of the class who meet the jurisdictional minimum from those who do not is impossible."20 The Court, in deciding the issue in that case, looked first to St. Paul Indemnity, which had said that "[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal" for want of the jurisdictional amount, 303 U.S. at 289, 58 S.Ct. at 590, and, applying that principle, denied the motion of the defendant to dismiss, saying
Plaintiffs' claimed damages are unliquidated and subject to a jury's evaluation of many subjective factors. I cannot now find to a legal certainty that the claim of any member of the plaintiff class is less than the jurisdictional amount. 83 F.R.D. at 395.
In In re No. District of Cal. "Dalkon Shield" IUD Products, 526 F.Supp. 887, 910-11 (N.D.Cal.1981), in which there was, as we have said, a class certification of Dalkon Shield claimants, the District Court apparently sua sponte noted that it might be argued in denial of jurisdiction as do the appellants here that "each class member, named or unnamed" may not have a claim meeting "the amount in controversy requirement." The court, however, dismissed such possible jurisdictional objection. In so doing, it relied, as did Payton, on St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938), with its rule requiring a finding of "legal certainty" for its dismissal on the jurisdictional issue. On appeal, the decision of the District Court on the merits was reversed, but the appellate court did not disapprove of the jurisdictional ruling made by the District Court. That court did not even notice the point in its decision, even though the District Court in its opinion had ruled on the point. In fact, it is not clear from the opinion that the appellants even raised the point. In any event, since this jurisdictional defect, if sound, would have made unnecessary consideration of the other points on appeal and should have been considered by the Court sua sponte if of merit, it seems safe to assume that the Court of Appeals agreed with this part of the District Court's ruling. See In re No. District of Cal. "Dalkon Shield" IUD Products, 693 F.2d 847 (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983).
In In re Agent Orange Prod. Liability Litigation, 818 F.2d 145, 163 (2d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988), which was a class action suit on behalf of all former servicemen claiming injuries as resulting from the use of Agent Orange by the military forces in Vietnam, the same question arose whether the plaintiffs class satisfied the standard established by Zahn. In answering this question, the court noted the rule in St. Paul Mercury Indemnity to which we have already referred. It applied that rule and dismissed the point with this statement:
Appellants do not argue that any class members made bad faith damage claims. Nor do they offer us any basis for determining whether such claims clearly are for less than the jurisdictional amount. Instead, they claim the District Court failed to carry out an obligation to police the damage claims. No such affirmative obligation exists, however, absent some apparent reason to make inquiry. Plaintiffs made what must be assumed to have been good faith allegations that each of them was entitled to at least $10,000 in damages. Defendants did not challenge the bona fides of these claims, and the District Court thus had no reason to inquire further.
The author of the comment, Federal Mass Tort Class Actions: A Step Towards Equity and Efficiency, 47 Alb.L.Rev. 1180, 1189-90, n. 36 (1983), suggests as the proper rule to be applied in the mass tort situation that the action will be permitted to proceed against a jurisdictional amount challenge if the class plaintiffs themselves all meet the jurisdictional amount requirement since it "would be consistent with the rule that once federal jurisdiction in a class action has been fixed by the parties of record, subsequent intervenors do not need to meet the jurisdictional amount." Ibid., 1190 n. 36. This rule would not be inconsistent with the literal reading of Zahn, since that decision said simply that, if any class member's claim was less than the jurisdictional amount, that class member's claim should be dismissed. However, it is not necessary to go this far in order to dispose of this challenge to the maintenance of the action herein. Applied as it was by the court in Payton and the other cases, St. Paul clearly sustains jurisdiction here. Thus, there have been countless suits, both in federal and state courts, to recover for injuries caused by the use of the Dalkon Shield. So far as a hasty review of the reported cases has indicated, not one suit has been filed in which the plaintiff sought less than the then jurisdictional amount. In the face of such a record, it would appear to be indisputable that it cannot be said to a "legal certainty" that the jurisdictional amount herein was not satisfied. We accordingly dismiss appellants' claim of lack of jurisdictional amount herein under St. Paul Mercury Indemnity.
We turn now to the challenge of the certification order. This order was issued in what is emerging to be one of the most difficult management problems confronting the courts today, particularly federal courts, i.e., that posed by the mass tort suit. Mass tort suits are generally divided into two classes. Note, Federal Mass Tort Class Actions: A Step Toward Equity and Efficiency, 47 Alb.L.Rev. 1180, 1183 (1983); 3 Newberg on Class Actions, Sec. 17.21, pp. 394-47 (2d ed. 1985). The first is concerned with what is designated as the mass accident suit, in which a large number of persons are injured as a result of a single accident. A familiar instance of such a tort is an airplane crash or the failure of a building as in In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir.1982), cert. denied, 459 U.S. 988, 103 S.Ct. 342, 74 L.Ed.2d 383 (1983). The other type of mass tort action, of which this case is an outstanding example, is one arising out of the sale, on a national or international market to thousands of persons, of an alleged defective product, from the use of which has caused many persons to have suffered injury. In some of these products liability cases, the number of persons involved may be enormous. The number of potential plaintiffs, in this case, for instance, are in the hundreds of thousands. In most instances, this type of mass tort will generate far more cases than the normal accident type.
Within recent years, the proliferation in the development and distribution of new products and remedies and the complaints of injuries from the use of these products have brought an accelerating avalanche of mass products liability suits primarily in federal courts which represents what is, as we have already observed, probably the most important and difficult management problem facing the federal court system today. Professor Seltzer has well summarized the size of the problem:
Mass tort litigation in the 1980's has reached unprecedented levels. Thousands of personal injury lawsuits have been filed against manufacturers of such mass-marketed products as asbestos, formaldehyde, diethylstilbestrol (DES), Agent Orange, automobiles, tampons and intrauterine contraceptive devices [IUD's].21
The Note, Class Certification in Mass Accident Cases under Rule 23(b)(1), 96 Harv.L.Rev. 1143 (1983), is to the same effect:
Mass accidents are a recurring phenomenon of modern technological society. It is not unusual for hundreds or thousands of injuries to be caused by a sudden event--an airplane crash or a structural building failure--or by a product defect in a widely used drug. Victims typically seek redress for such injuries by initiating individual suits. As a result, the judicial system becomes crowded with multiple claims concerning one basic course of conduct, with each victim seeking to maximize his own recovery and each defendant attempting to reduce his potential liability. As each party acts to further a narrow perception of his own best interests, the collective interests of the parties, society, and the judicial system may be ignored. Ibid. (footnote omitted)
The burden on the courts that these mass torts imposes and the tremendous public and private costs arising from the endless trials of the same issues in repeated court actions covering the same facts in great detail are illustrated by a recent analysis of only one aspect of the cost of such litigation to the parties in the Agent Orange mass tort litigation:By way of illustration, in the Agent Orange litigation, solely with respect to the government contract defense, the defendants took more than 200 depositions of former or current government employees. Assume that the depositions were performed by outside counsel and that each deposition took two days. Assume that the defendants' counsel each spent one day preparing for each deposition and another day summarizing and reviewing. Assume that the law firms used teams of two attorneys with an hourly billing rate for each attorney of $150. The calculation begins with: 200 depositions X 4 days X 8 hours = 6400 hours. The next step is 6400 hours X 14 attorneys (2 for each defendant) X $150 per hour = a total cost for attorneys of $13,440,000 for deposition costs for this aspect of the suit, leaving out transcript fees, travel costs, and other expenses. This cost would be multiplied several times over in the taking of depositions of the plaintiffs, the defendants, their physicians, and expert witnesses.22
Judge Rubin of the Fifth Circuit, in an article titled Mass Torts and Litigation Disasters, 20 Ga.L.Rev. 429, 430 (1986) has said:
These mass tort claims have a number of similarities: they result in the filing of many suits; they produce high litigation costs; they are generally resolved only after great delay; they affect not only the litigants but other users of the court system; and their total human and economic costs affect all of society.
Judge Rubin then reviewed one example of such mass torts, i.e., the asbestos litigation and made this comment based on a Rand Corporation report:
Asbestos litigation [for instance] has resulted in far more expense than in recovery of damages for injured persons. A Rand Corporation study estimated that injured persons receive less than thirty-seven percent of the total amount spent on litigation. Almost two-thirds of the total expenditures are for attorneys' fees and other litigation expenses.
When account is also taken of the toll of such cases on the court system itself, it is evident that the proper functioning of the courts and the fair and efficient administration of justice for other litigants whose right to a judicial determination are inevitably delayed inordinately by the clogging of the court system by mass tort actions tried individually and the societal costs of the endless repetition of these suits in separate trials at substantial costs to the judicial system mean that a mechanism for deciding expeditiously, efficiently and relatively inexpensively these actions without the delays of individual suits is demanded. This demand has been well pointed up by one of the recent groups of mass tort suits. In In re Bendectin Products Liability Litigation, 102 F.R.D. 239, 240 (S.D.Ohio 1984),23 Judge Rubin, commenting on the waste of judicial time involved in individual disposition of one mass tort products case in this court estimated that "[f]or the identified ... cases, a full trial on each would probably require at least 30 trial days. Two Bendectin cases have already been tried. One required two trials of 44 and 45 days each. The other required 20 trial days. Assuming 200 trial days available per year per Judge, disposition of the present Bendectin cases at the trial level alone might require 21,000 trial days or the equivalent of 105 Judge years, i.e., one Judge for 105 years or 105 Judges for one year." Ibid., at 240 n. 3.
There is no clearer statement of the critical situation in the operation of the judicial system created by the mass tort litigation explosion than the language in a recent article co-authored by the lead counsel for the appellants in this very case:
The public is crying out for better solutions to mass tort litigation than separate, redundant trials in thousands of related cases. Why should hundreds, or even thousands, of trials take place in which the same issue of a defendant's liability is litigated over and over again? Why should some plaintiffs recover compensatory and punitive damages, while other plaintiffs in other trials recover much less, or nothing at all, even though the issues of liability and causation are the same? Why should a defendant be put to the expense of parading the same witnesses on the stand in hundreds of different trials to demonstrate over and over again the same evidence that its product was correctly designed and engineered? Is it fair that defendants are exposed to multiple punitive damage claims?
Panzer & Patton, Utilizing the Class Action Device in Mass Tort Litigation, 21 Tort & Insurance Law Journal, 560, 561 (1986).
The class action, as this article suggests, is the manifest fair and expeditious procedure for disposing of the mass tort litigants. It has been for years the recognized procedure for dealing with cases which have a marked similarity to those flowing from mass torts. The class action was judicially developed first in the equity courts and later accepted and applied by the law courts. Drawing on English and state procedural decisions, the Supreme Court over a century ago stated in Smith v. Swormstedt, 57 U.S. (16 How.) 288, 303, 14 L.Ed. 942 (1853) and restated later in Hartford Life Ins. Co. v. IBS, 237 U.S. 662, 672, 35 S.Ct. 692, 59 L.Ed. 1165 (1915) and Hansberry v. Lee, 311 U.S. 32, 41-42, 61 S.Ct. 115, 118, 85 L.Ed. 22 (1940) the circumstances justifying the use of such procedure in federal court proceedings. In Hansberry, that court declared that the class action device was an "invention [or innovation] of equity [designed] to enable ... [the court] to proceed to a decree in suits [or judgment] where the number of those interested in the subject of the litigation is so great that their joinder as parties in conformity to the usual rules of procedure is impracticable." To the same effect, see General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982). In Falcon, the Supreme Court said:
The class action device was designed as "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-701 [99 S.Ct. 2545, 2557, 61 L.Ed.2d 176]. Class relief is "peculiarly appropriate" when the "issues involved are common to the class as a whole" and when they "turn on questions of law applicable in the same manner to each member of the class." Id., at 701 [99 S.Ct. at 2557].
The procedure to be followed by a federal court in such a case is now embodied in Rule 23 of the Federal Rules of Civil Procedure as adopted in 1938. The formulation of the practice in this Rule was intended to embody the standards and purposes substantially already established in the federal decisions beginning with Smith.24 Rule 23 was revised in 1966 in its present form but without change in its purpose. It would seem reasonable to assume that the Rule was intended to be applied with the same flexibility and in the same spirit of "invention" as earlier prompted the adoption of the procedure. We accordingly turn to a review of the Rule itself as well as of the decisions which have applied it in cases such as mass tort suits or similar suits.
Under the Rule, certification of a class action, whether a mass tort action or not, requires that the action meet the requirements of a two-step test. As a first step, an action must satisfy all four of the prerequisites mandated by subsection (a) of the Rule. These requisites are: (1) numerosity of parties; (2) commonality of legal and factual issues; (3) typicality of the claims and defenses of the class representative; and (4) adequacy of representation. Assuming qualifications under (a) have been met, the next step demands that the action fit within at least one of the three categories of actions identified in subsection (b) of the Rule. An action may qualify under (b)(1), the first of such categories, "if individual adjudication of the controversy would prejudice either the party opposing the class, (b)(1)(A), or the class members themselves, (b)(1)(B)." Zimmerman v. Bell, 800 F.2d 386, 389 (4th Cir.1986); Intern. Woodworkers v. Chesapeake Bay Plywood, 659 F.2d 1259, 1269 (4th Cir.1981). Subsection (b)(2) covers suits for injunctive or declaratory relief. The final category, (b)(3), applies where there are common issues of law or fact and the class action device has superiority over any other available procedure for disposing fairly and efficiently of the controversy.
Though not specified in the Rule, establishment of a class action implicitly requires both that there be an identifiable class and that the plaintiff or plaintiffs be a member of such class. 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d Sec. 1760, pp. 115 et seq. (2d ed. 1986); Roman v. ESB, Inc., 550 F.2d 1343, 1348 (4th Cir.1976). Moreover, often an action may qualify under both (b)(1) and (b)(3). In such a situation, certification is to be made under (b)(1). 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d Sec. 1772, 425 (2d ed. 1986); 3B Moore's Federal Practice, Sec. 23.31, p. 236 (1987 ed.); Robertson v. National Basketball Ass'n., 556 F.2d 682, 685 (2d Cir.1977); Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 (9th Cir.1976); Meyer v. Citizens & Southern Nat'l Bank, 106 F.R.D. 356, 363 (D.Ga.1985). The rationale for such decision is stated by Moore thus:
If an action can be maintained under (b)(1) and/or (b)(2), and also under (b)(3), the court should order that the suit be maintained as a class action under (b)(1) and/or (b)(2), rather than under (b)(3), so that the judgment will have res judicata effect as to all the class (since no member has the right to opt out in a (b)(1) or (b)(2) suit), thereby furthering policy underlying (b)(1) and (b)(2) class suits.25
Too, if the action includes multiple claims, one or more of which might qualify as a certifiable class claim, the court may separate such claims from other claims in the action and certify them under the provisions of subsection (c)(4). See 1 Newberg on Class Actions, Sec. 4.20, pp. 310-1 (2d ed. 1985). This subsection provides that "an action may be maintained as a class action as to particular issues only.... Two or more issues, for instance, may be represented in a single action." Among such separate issues, for instance, may be a "limited fund" in which all members of the class have a common interest: such a class is recognized in the Comments of the Advisory Committee as qualifying under subdivision (b)(1)(B). In re Bendectin Products Liability Litigation, 749 F.2d 300, 306 (6th Cir.1984) ("The District Court was therefore not clearly erroneous as a matter of law to hold that a limited fund is a justification for a class action under a Rule 23(b)(1)(B)"); Coburn v. 4-R Corp., 77 F.R.D. 43, 45 (E.D.Ky.1977); Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558, 561, n. 8 (S.D.Fla.1973, aff'd without opinion, 507 F.2d 1278 (1975). However, to repeat: each subclass must independently meet all the requirements of (a) and at least one of the categories specified in (b). Roby v. St. Louis Southwestern Ry. Co., 775 F.2d 959, 961 (8th Cir.1985). Moreover, when an action is certified under (b)(1), whether (A) or (B) or under (b)(2), all party members become mandatory class members without any opt-out rights, Kyriazi v. Western Elec. Co., 647 F.2d 388, 393 (3d Cir.1981); if certified under (b)(3), however, any class member may opt out. The burden of establishing that a case meets the requirements for class certification under the Rule rests on the party seeking certification. Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir.1974). The assessment required for a certification, though, is the responsibility of the District Court, which is to make its decision after "a rigorous analysis" of the particular facts of the case. The "District Court has wide discretion in deciding whether or not to certify a proposed class," and its decision may be reversed "only for abuse of discretion." Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 471-72 (5th Cir.1986).
After the Rule was approved, the early view was that Rule 23 should be given "a liberal rather than a restrictive interpretation." See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir.1968), rev'd on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Moss v. Lane Co., 50 F.R.D. 122, 125 (W.D.Va.1970), aff'd in pertinent part, 471 F.2d 853 (1973). The decisions on the proper standard of construction under this view were that "if there is to be an error made, let it be in favor and not against the maintenance of the class action," Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir.1968), cert. denied, 394 U.S. 928, 89 S.Ct. 1194, 22 L.Ed.2d 459, (1969); Wright v. Stone Container Corp., 524 F.2d 1058, 1061-62 (8th Cir.1975). But despite the clear mandate in the first Section of the Rules that such Rules "[should] be construed to secure the just, speedy, and inexpensive determination of every action," some courts decided to depart from this liberal construction of Rule 23 and to adopt a standard of construction of the basis of the standard of "strict scrutiny." Roby v. St. Louis Southwestern Ry. Co., supra, 775 F.2d at 961. The reason for this departure from the liberal and flexible construction of Rule 23 and for the adoption of the "strict scrutiny" standard was stated in La Mar v. H & B Novelty & Loan Company, 489 F.2d 461, 468 (9th Cir.1973). In that case, the Court based its strict construction of the Rule on its "belief that restrictions on the flexible language of Rule 23 [was] a necessary contribution to the effort to avoid the intractable problems of massive class actions and to maintain a wholesome degree of difference between the judicial and administrative functions " (Italics added).26 It declared that such construction was one "of prudence and caution" in line with what it declared was the "tone of the Advisory Committee's Note" (referring to the Advisory Committee's Note on Rule 23(b)(3)). 489 F.2d 465, 466.27
The "belief" that the class action procedure should be sharply reined in prompted the court which decided La Mar later to create two rules intended to accomplish this purpose of constraining the use of the class action device. It is important to remember that neither limitation, designed purposefully to hobble the use of the class action device, was said to be justified in the language of the Advisory Committee's Note; these limitations were judicially imposed to justify a constrained use of the Rule mistakenly adopted in the belief that the manageability of mass tort litigation was beyond the resources of the courts. The first of the limitations found expression in Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1340 (9th Cir.1976), where it was held that suits for damages were not appropriate for class action certification.28 It cited in support of this principle La Mar, supra, which in turn had relied in large part on this statement in the Advisory Committee's Note on (b)(3):
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 of liability, would be present, affecting the individuals in different ways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.
For its second limitation, it held in McDonnell Douglas Corp. v. U.S. District Ct., C.D. of California, 523 F.2d 1083 (9th Cir.1975), that the fact that one judgment in favor of one plaintiff in a mass tort situation and a judgment against the plaintiff in another suit in the mass tort situation would not be the type of inconsistency referred to in Rule 23(b)(1)(A).29
It is evident that these cases which have sought to circumscribe drastically the courts in the use of the class action device find their rationale in the Advisory Committee Note on (b)(3) of Rule 23 for their result. That Note was written in connection with the 1966 version of the Rule. Since that time, it has become recognized that the reluctance to use class actions in mass tort cases, as stated in cases such as La Mar and its progeny, represents an unnecessary limitation on the efficient case management in federal courts of mass torts. As a consequence of this changed attitude, commentators have expressed their dissatisfaction with the constraints which the Advisory Committee's Note and the decisions of the Ninth Circuit would place on the use of Rule 23 in the mass tort context. Thus, Newberg on Class Actions states:
Mass torts in modern-day jurisprudence are taking a fresh look at the value of Rule 23 class actions. The economies of time, effort, and expense of the class device cut across categorical tort lines and ought not to be obscured by the narrow application of circumstanes or by undue emphasis on traditional interests in one-to-one litigation.
I was an ex officio member of the Advisory Committee on Civil Rules when Rule 23 was amended, which came out with an Advisory Committee Note saying that mass torts are inappropriate for class certification. I thought then that was true. I am profoundly convinced now that that is untrue. Unless we can use the class action and devices built on the class action, our judicial system is simply not going to be able to cope with the challenge of the mass repetitive wrong that we see in this case and so many others that have been mentioned this morning and afternoon.
[Quoting from Statement by] Prof. Charles Alan Wright In Re: School Asbestos Litigation Master File 83-0268 (ED Pa) Class Action Argument, July 30, 1984, Tr. 106.30
Mr. Newberg in an article published in Trial, February Issue 1986, at page 53, under the title Mass Tort Class Actions, expressed in somewhat extended form the same view:31
Mass tort class actions are rapidly emerging as a way to handle claims resulting from negligent acts or defective or toxic products affecting groups of similar parties. The historical barriers to class actions in the negligence field are fast giving way. Why? The problems of trying to resolve personal injury claims of often tragic proportions on anything but an individual basis still exist, do they not? Yes, but....
Two benchmarks herald the arrival of mass tort class actions. First, the emerging judicial acceptance of class suits involving mass torts is undoubtedly the result of cumulative effects of mass production, with its attendant imperfections, in the context of a growing population and a court system with finite growth dimensions. The other arises from a single event--the Johns-Manville bankruptcy proceedings.
Society relies on the tort system, as enforced by private damage actions, to prevent or deter mass accidents and torts, and to compensate their victims. As mass production increases, there will inevitably be an increase in personal and economic injuries arising from mass accidents and from the mass distribution of defective or toxic products. Lawsuits seeking redress for these injuries will also inevitably multiply.
Many courts are now abandoning their historical reluctance to certify mass tort class actions in light of what is often an overwhelming need to create an orderly, efficient means for adjudicating hundreds or thousands of related claims. It is not surprising that the Manual for Complex Litigation, Second, has a section dealing with class actions in mass disasters and other complex tort cases. More and more tribunals now recognize that a central judicial tool for coordinating many related tort claims is the class action.
In the Tentative Draft No. 1 issued by The American Law Institute Complex Litigation Project and prepared for consideration at the 1989 Annual ALI Meeting, the Committee on the Federal Intrasystem Consolidation, of which Professor Arthur Miller was the Reporter, declared (Pages 36-37):
Rule 23 provides for the adjudication of the claims or defenses of an entire class of similarly situated parties in a single action. The Federal Rule is intended to eliminate or reduce the threat of repetitive litigation, to prevent inconsistent resolution of similar cases, and to provide an effective means of redress for individuals whose claims are too small to make it economically viable to pursue them in independent actions. Despite Rule 23's ambitious goals, multiparty, multiforum cases often are not certified for class treatment because its requirements have been read quite restrictively by some federal courts. Large scale tort actions involving personal injuries rarely are certified. In the past, this may be due primarily to the federal courts' reliance on the statement in the 1966 Advisory Committee Note that
[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 also 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 degenerate in practice into multiple lawsuits separately tried.
Fed.R.Civ.P. 23(b)(3), Advisory Committee Note (1966). Although this reasoning may be criticized as shortsighted, it nonetheless has been influential. In addition, concerns about how to handle individual issues and large numbers of claimants have served to restrict class certification in nationwide products liability cases, as well as in consumer, securities, and antitrust actions. Recent years, however, have seen some weakening in the resistance to the certification of mass tort class actions. E.g., Jenkins v. Raymark Indus., Inc., 782 F.2d 468, rehearing en banc denied, 785 F.2d 1034 (5th Cir.1986); In re School Asbestos Litigation, 104 F.R.D. 422 (E.D.Pa.1984), vacated in part, aff'd in part, 789 F.2d 996 (3d Cir.1986), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986). Nonetheless, the full procedural advantages of class actions have not been realized.
Among the cases which the courts were said to have "read the requirements of Rule 23 narrowly," the Draft identified In re Northern District of California Dalkon Shield IUD Prods. Liability Litigation, 693 F.2d 847, (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983); La Mar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir.1973); In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir.), cert. denied, 459 U.S. 988, 103 S.Ct. 342, 74 L.Ed.2d 383 (1982). Page 40 of the Draft. Later, the Draft observes (page 43):
Several commentators have decried the courts' narrow approach to the Rule, arguing it should be interpreted more broadly to achieve unitary adjudication.
It cites in support Professor Miller's article, An Overview of Federal Class Actions: Past, Present and Future 45 (Fed.Jud.Center 1977); 96 Harv.L.Rev. 1143 (1983) and 47 Alb.L.Rev. 1180, 1199 (1983), already discussed.
It will be observed that the principal reason assigned by the Advisory Committee for its cautionary comment on mass torts in the 1966 Notes was that individualized proof of damages in such a case was not practical in a class action format. The authors in 7B C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Sec. 1784, at 78-82 (2d ed. 1986), found this reasoning not persuasive, saying:
Rule 23 provides more than enough flexibility and room for judicial innovation so that the question of damages can be determined through individual trials on that issue pursuant to "equitable procedures" devised by the court.
One possibility is to try the damage issue only once, making a single award for the class, and then develop an expeditious administrative means of dividing the lump sum among the class members. This approach has been employed in judicially approved settlements under Rule 23(e) and the courts could look for guidance to some of the procedures that have been developed in that context.
Utilizing procedures to distribute a lump sum recovery is judicially economical since it eliminates the need for separate trials on damage issues. In a case involving an extremely large plaintiff class whose members only have small individual claims, the savings in time and expense for all will be considerable. Occasionally this will be achieved at the expense of some traditional procedural safeguards, most notably jury trial. Nonetheless, simplifying the process of establishing individual claims may be the only way of making it economically feasible for class members to come forward and assert their rights and some of the procedural patterns that are considered fundamental when the litigation involves the single plaintiff and a single defendant will have to be abandoned. (Footnotes omitted).
Moreover, Professor Arthur Miller in a perceptive article published in 1979, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the "Class Action Problem", 92 Harv.L.Rev. 664, warned against the tendency in some of the decisions to disregard the effect of the changing pattern of litigation on the application of the Rule and suggested an innovative application of the Rule dealing with this changing pattern of litigation as represented by the mass torts. He wrote:
It is important in understanding the class action debate to realize that the "big case" phenomenon transcends the class action. The "big case" is an inevitable byproduct of the mass character of contemporary American society and the complexity of today's substantive regulations. It is a problem that would confront us whether or not rule 23 existed. Indeed, it is becoming increasingly obvious that the traditional notion of civil litigation as merely bilateral private dispute resolution is outmoded. Since our conception of the roles of judges and advocates is based on this traditional view, the ferocious attack on the class action may reflect anxiety over the growing challenge to the model's immutability.
Even in its current elaborated form, rule 23 really must be thought of as a procedural skeleton requiring fleshing out by judges and lawyers experimenting with it in an ever-increasing range of circumstances and in a variety of innovative ways....
The procedural complexities that can emerge under rule 23 are extraordinarily variegated in character. Class actions tend therefore to be processed in a highly individualistic fashion, making the extrapolation of general propositions from judicial opinions difficult and overall evaluation risky; procedural techniques employed in one case may be ill suited in another context. Every rule 23 decision, therefore, must be viewed through the prism of its particular facts, some of which may not even appear in the court's opinion. 92 Harv.L.Rev. at 668, 677 (footnote omitted).
Another commentator has chided appellate courts32 for failing to recognize the seriousness of the mass tort problem and for failing to abandon their narrow approach to the use of the class action device in the handling of mass tort litigation. Mullenix, Class Resolution of the Mass-Tort Case: A Proposed Federal Procedure Act, 64 Tex.L.Rev. 1039 (1986). She said:
Confronted with the realities of this growing, nationwide mass-tort litigation crisis, an increasing number of judges and commentators have urged a more flexible application of Rule 23 in the mass-tort context in order to better serve the interests of justice. Yet these judicial and scholarly pleas continue to fall on deaf appellate ears as the circuit courts persist in construing narrowly the Rule 23 class action procedure.33 64 Tex.L.Rev. at 1043 (footnotes omitted).
It is obvious that there is a movement towards a more liberal use of Rule 23 in the mass tort context. This new attitude has found expression in a number of recent cases which recognize that the mass tort phenomenon has created a pressing "[n]ecessity ... to change and invent," Jenkins v. Raymark Indus. Inc., 782 F.2d 468, 473 (5th Cir.1986), with the result that, as one court has correctly concluded, "the trend has been for courts to be more receptive to use of the class action in mass tort litigation," In re School Asbestos Litigation, 789 F.2d 996, 1009 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117, 479 U.S. 915, 107 S.Ct. 318, 93 L.Ed.2d 291 (1986). This approach, with its skepticism on the current validity of the reasons suggested in the earlier 1966 Advisory Committee Notes on which the Ninth Circuit had rested its limited restrictions as stated in La Mar, Green and McDonnell Douglas, was explained in Jenkins:
Courts have usually avoided class actions in the mass accident or tort setting. Because of differences between individual plaintiffs on issues of liability and defenses of liability, as well as damages, it has been feared that separate trials would overshadow the common disposition for the class (citing Advisory Notes). The courts are now being forced to rethink the alternatives and priorities by the current volume of litigation and more frequent mass disasters (citing authority). If Congress leaves us to our own devices, we may be forced to abandon repetitive hearings and arguments for each claimant's attorney to the extent enjoyed by the profession in the past. Be that as time will tell, the decision at hand is driven in one direction by all the circumstances. Judge Parker's plan is clearly superior to the alternative of repeating, hundreds of times over, the litigation of the state of the art issues with, as that experienced judge says, "days of the same witnesses, exhibits and issues from trial to trial." 782 F.2d at 473.
The decision in Jenkins involved a mass asbestos case. In all asbestos cases, a primary defense had evolved about the "state of the art" at the time of the happening of the alleged tort. Evidence on that issue, the District Court found, "would vary little as to individual plaintiffs while consuming a major part of the time required for their trials."34 782 F.2d at 471. The District Court concluded that "[c]onsiderable savings, both for the litigants and for the court, could thus be gained by resolving [this 'state of the art' defense] and other defense-related questions, including product identification, product defectiveness, gross negligence and punitive damages, in one class trial " Ibid. (Italics added). It accordingly "certified the class as to the common questions, ordering them resolved for the class by a class action jury. The class jury would also decide all the individual issues in the class representatives' underlying suits; individual issues of the unnamed members would be resolved later in 'mini-trials' of seven to ten plaintiffs." Ibid. The District Court said further that "[a]lthough the class action jury would evaluate the culpability of defendants' conduct for a possible punitive damage award, any such damages would be awarded only after class members had won or settled their individual cases." Ibid. Such were the circumstances under which the class certification was granted by the District Court in that case. The defendants on appeal challenged the certification under (b)(3). The Court of Appeals, after observing that "[t]he purpose of class actions is to conserve 'the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion" Ibid. at 471, (quoting from General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 2369, 72 L.Ed.2d 740 (1982), and recognizing the innovativeness of the District Court's procedure, affirmed that Court's action, saying that "in light of the magnitude of the problem and the need for innovative approaches, we find no abuse of discretion in this court's decision to try these cases by means of a Rule 23(b)(3) class suit." 782 F.2d at 475.
The School Asbestos case was a consolidated suit instituted by various school districts in several states to recover the costs of testing and removing asbestos material from their buildings. It is another decision in which the court engaged in "rethinking" the use of class actions in mass tort suits. In that case, the District Court certified a nationwide mandatory class for punitive damages and an opt-out class (i.e. (b)(3)) for compensatory damages. On appeal, the certification of a mandatory class for punitive damages on the record then before the Court was vacated with the statement that "we hold open the possibility of a 23(b)(1)(B) punitive damage class in more appropriate circumstances," 789 F.2d at 1008, but the certification for compensatory damages under (b)(3) was affirmed. In approving the (b)(3) certification, the Court recognized, as we have observed, that "the trend has been for courts to be more receptive to use of the class action in mass tort litigation." 789 F.2d at 1009. After taking note of the Advisory Committee Note on the mass tort case, the Court then dismissed the modern applicability of such comment thus:
Although that statement continues to be repeated in case law, (i.e., Advisory Note to (b)(3) of Rule 23) there is growing acceptance of the notion that some mass accident situations may be good candidates for class action treatment. An airplane crash, for instance, would present the same liability questions for each passenger, although the damages would depend on individual circumstances. Determination of the liability issues in one suit may represent a substantial savings in time and resources. Even if the action thereafter "degenerates" into a series of individual damage suits, the result nevertheless works an improvement over the situation in which the same separate suits require adjudication on liability using the same evidence over and over again. See Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558 (S.D.Fla.1973).
Reassessment of the utility of the class action in the mass tort area has come about, no doubt, because courts have realized that such an action need not resolve all issues in the litigation. See Fed.R.Civ.P. 23(c)(4)(A). If economies can be achieved by use of the class device, then its application must be given serious and sympathetic consideration. 789 F.2d at 1008-09.
After expressing agreement with the reasoning in Jenkins, the court in School Asbestos further commented:
Manageability is a practical problem, one with which a District Court generally has a greater degree of expertise and familiarity than does an appellate court (omitting citation). Hence, a District Court must necessarily enjoy wide discretion, and we are not inclined to reverse a certification before the District Judge has had an opportunity to put the matter to a test. 789 F.2d at 1011.
Finally, in upholding the (b)(3) certification, the Court concluded its opinion with this statement:
We acknowledge that our reluctance to vacate the (b)(3) certification is influenced by the highly unusual nature of asbestos litigation. The District Court has demonstrated a willingness to attempt to cope with an unprecedented situation in a somewhat novel fashion, and we do not wish to foreclose an approach that might offer some possibility of improvement over the methods employed to date. Ibid.
A highly publicized example of this new thinking is also provided by In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 718 (E.D.N.Y.1983). That was an action by a class of former military servicemen or their families seeking recovery of both compensatory and punitive damages for injuries suffered by them while serving in Vietnam as a result of the use by the military forces of a certain herbicide. A primary defense asserted by the manufacturers of the herbicide was the government contract defense. After notice and hearing, the District Court certified all issues, other than punitive damages for trial and disposition, under (b)(3); it certified the punitive damage issue under (b)(1)(B). After certification, the parties submitted a proposed settlement of the action. In granting such certification, the court noted the common issues involved in the government contract defense asserted by the defendants and in the claim of causation, the immense size of the plaintiff class, and the likelihood that certification might "encourage settlement of the litigation." 100 F.R.D. at 720-21. It found that in the previous cases where certification had been denied in this type of case, the courts had relied for their action on the Comment of the Advisory Committee already quoted, and it seems to have dismissed the Comment as applicable to the "mass accident" type of mass torts but not to "a mass products liability based upon a series of discrete events." 100 F.R.D. at 722. In response to the defendants' request that certification be confined to the issue of the government contract defense, the court found such proposal was "not a workable one," that it was impossible to try that issue without litigating the issue of causation, and that the common question in the case predominated over any issues affecting individual members. 100 F.R.D. at 723. In resolving the certification issue, it emphasized the importance of certification as related to settlement of the action:
... the court may not ignore the real world of dispute resolution. As already noted, a classwide finding of causation may serve to resolve the claims of individual members, in a way that determinations in individual cases would not, by enhancing the possibility of settlement among the parties and with the federal government.35
It accordingly certified the case on all issues other than punitive damages under (b)(3)36 and on punitive damages under (b)(1)(B).
On appeal, the Court of Appeals affirmed. In re Diamond Shamrock Chemicals Co., 725 F.2d 858 (2d Cir.), cert. denied, 465 U.S. 1067, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984). On the (b)(3) certification, the court found that
it seems likely that some common issues, which stem from the unique fact that the alleged damage was caused by a product sold by private manufacturers under contract to the government for use in a war, can be disposed of in a single trial. The resolution of some of these issues in defendants' favor may end the litigation entirely. Moreover, since these issues may involve extensive documentary and testimonial evidence, Chief Judge Weinstein found that obviating a retrial in countless individual cases will lead to substantial economies in the use of judicial and private resources. 725 F.2d at 860-61.
It explicated this conclusion with the comment that "there [were] substantial grounds at this stage to support [the District Court's] conclusion that the common issues predominate and that a class action is the most efficient means of adjudicating them." Ibid. at 861. It found in particular that "[t]he unique common issues take the case out of the general rule that '[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 of liability, would be present, affecting the individuals in different ways.' " Ibid., quoting the Advisory Committee Note. Later, on appeal from final judgment, the grant of certification under (b)(3) was reaffirmed, though with some expressions of skepticism of the difficulties of managing expeditiously mass tort suits, finding that "class certification was justified under Rule 23(b)(3) due to the centrality of the military contractor defense. First, this defense is common to all of the plaintiffs' cases, and thus satisfies the commonality requirement of Rule 23(a)(2)." In re "Agent Orange" Products Liability Litigation, 818 F.2d 145, 166-67 (2d Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988). Because of this ruling, it found no need to consider at the time the question of the punitive damage claim.
One of the most instructive cases in this connection was cited by the appellants in support of their objection to class certification, Federal Skywalk Cases. The action in that case concerned claims arising out of the Skywalk disaster in the Hyatt Regency Hotel in Kansas City, Missouri on July 17, 1981. There the District Court had certified a Rule 23(b)(1) mandatory class action on the issues of liability for compensatory damages, liability for punitive damages and amount of punitive damages. On appeal, the Court of Appeals found that the mandatory class action was barred by the Anti-Injunction Statute, 28 U.S.C. Sec. 2283, but in so ruling, it recognized the complex issues faced by the District Court and commended the District Court's "creative efforts," but concluded that the certification could not "stand on the facts before it." Federal Skywalk Cases, 680 F.2d 1175 (8th Cir.1982), cert. denied, 459 U.S. 988, 103 S.Ct. 342, 74 L.Ed.2d 383 (1982). However, by limiting its opinion to the facts before it, the Court of Appeals left open the possibility that some future mandatory certification in the action might be better received. The subsequent developments in the Skywalk case appear in 97 F.R.D. 380 (W.D.Mo.1983) with a comment on those late developments in an article co-authored by Judge Wright, who had written the earlier District Court opinion, and Joseph Colussi, titled The Successful Use of the Class Action Device in the Management of the Skywalks Mass Tort Litigation, 52 UMKC L.Rev. 141, 141-43 (1984), in which they made this interesting comment on the denouement of the Skywalk litigation:
Several commentators have recently suggested that the appellate court decision in the Skywalk mass tort case vacating certification of a mandatory class action struck the death knell for the use of the class action procedure in the management of mass tort litigation. The manner in which the Skywalks litigation was managed and resolved in the wake of that appellate court decision, however, demonstrated that the opposite is true. What many observers of the Skywalks litigation have failed to recognize is that the litigation was ultimately managed and resolved through the use of the class action procedure. After the mandatory class action was vacated by the appellate court, two nearly identical voluntary class actions were certified and settled in the federal and state trial courts. The certification and settlement of those two voluntary class actions performed the same management function and permitted the claims of all litigants to be resolved in the same equitable and efficient manner that would have resulted if the mandatory class action had not been vacated.
The experience of the Skywalks litigation has made clear that the mandatory class action device is the only procedure presently available to state and federal courts which allows for the equitable and efficient management of mass tort litigation. Though the appellate court ruling in the Skywalks litigation did not prevent the eventual equitable and efficient management of that mass tort case through the use of the class action device, the ruling unwittingly sanctioned forum shopping and inequitably parceled the burden of mass tort litigation management between state and federal trial courts. The appellate court effectively placed the full responsibility of mass tort management on its state court brethren.
It may be definitely said--respecting the language of School Asbestos, supra--that the "trend" of the authorities is clearly in the direction of a more liberal approach to the certification of the mass tort action.
It is to be noted that a number of the decisions we have discussed involved settlements of the proposed class action. This raises the question whether class certification for settlement purposes is permissible under Rule 23. The appellants argue flatly that certification for such purposes is impermissible. However, despite this statement of appellants, certification for such purposes finds strong support in a number of various Law Review comments. Nielson, Was the 1966 Advisory Committee Right?: Suggested Revisions of Rule 23 to Allow More Frequent Use of Class Actions in Mass Tort Litigation, 25 Harv.J. on Legislation 461, 480 (1988), for instance, recognized a "trend" in favor of such certification:
In recent years, several federal judges have explicitly recognized the effect of class certification on the likelihood of prejudgment settlement in mass-tort suits, and have apparently allowed such recognition to influence their decision to certify class actions.
Professor Transgrud, though he took a somewhat skeptical view of mass-tort certifications generally, felt that certification "as a pretrial joinder device to facilitate group settlements [was] both proper and desirable," adding
Its use is proper because Federal Rule of Civil Procedure 23 provides that the court may certify a common question class action when it will prove "superior to other available methods for the fair and efficient adjudication of the controversy." A judicially supervised and approved class action settlement, like a judicially supervised trial, is a means of hearing and determining judicially, in other words, "adjudicating," the value of claims arising from a mass tort. As a result, if conditional certification of the case as a common question class action for settlement purposes would enhance the prospects for a group settlement, then Rule 23 authorizes certification.
Transgrud, Joinder Alternatives in Mass Tort Litigation, 70 Cornell L.Rev. 779, 835 (1985).
Recent court decisions have also spoken approvingly of the class certification of mass-tort actions for purposes of settlement in conformity with these academic comments. These decisions confirm that the promotion of settlement may well be a factor in resolving the issue of certification. Thus, in Agent Orange, Chief Judge Weinstein wrote, (100 F.R.D. at 723):
Finally, the court may not ignore the real world of dispute resolution. As already noted, a classwide finding of causation may serve to resolve the claims of individual members, in a way that determinations in individual cases would not, by enhancing the possibility of settlement among the parties and with the federal government.
Similarly, in In re School Asbestos Litigation, 789 F.2d at 1009, the Court said:
Concentration of individual damage suits in one forum can lead to formidable problems, but the realities of litigation should not be overlooked in theoretical musings. Most tort cases settle, and the preliminary maneuverings in litigation today are designed as much, if not more, for settlement purposes than for trial. Settlements of class actions often result in savings for all concerned.
The only federal court decision which has actually granted class certification for settlement purposes in a mass-tort action is In re Bendectin, 102 F.R.D. 239, 240 (S.D.Ohio 1984). In that case, Judge Rubin, in granting certification for settlement purposes, said:
The Bendectin litigation is but one example of massive product liability lawsuits involving large numbers of plaintiffs, protracted trials and substantial litigation costs. The traditional court system is simply unequipped to handle such [mass tort] litigation in a conventional manner without materially depleting the judicial resources available for all other litigation. It is theoretically possible to assign sufficient judicial time to hear these cases promptly but only at the cost of further delay in an already overburdened system. The cost to the parties of litigating these cases under current procedures is such that few plaintiffs could afford the expense or the delay. Justice is not served by erecting tollgates at the courthouse door.
There is a solution. The resolution of disputes does not necessarily require trial. Within the judicial authority of this Court is a means whereby the parties might be assisted in reaching a prompt and equitable disposition of the entire problem. That solution involves limited use of Rule 23 of the Federal Rules of Civil Procedure. A class certification would enable any proposed settlement to be presented to all class members and by them either accepted or rejected.
On appeal, the certification was invalidated, 749 F.2d 300 (6th Cir.1984). The ground for denial was that the action failed to qualify for certification under (b)(1) because of the limitation in the use of the class action decision stated in McDonnell Douglas, and under the "limited fund" doctrine. The Court, however, was careful to point out that it was not determining that class certification for settlement purposes of the mass tort in that case was impermissible. To emphasize this fact, the Court declared at p. 305, n. 10:
We do note that there is precedent for the proposition that a class can be certified for settlement purposes only. See, e.g., In re Beef Industry Antitrust Litigation, 607 F.2d 167 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981). The Beef Industry case involved the certification of a temporary settlement class prior to certification of a class for trial. In this case, the District Judge certified a class for settlement purposes after having rejected the same class for trial purposes. The District Judge therefore implicitly held that the standards for certifying a class are different depending on whether the class is for settlement or whether it is for trial. Because we decide the case on other grounds, we do not consider whether this holding is correct.37
As Bendectin had recognized, courts in cases involving numerous parties, though not mass-tort cases, had granted class certification for settlement purposes. Judge Wisdom in In re Beef Industry Antitrust Litigation, 607 F.2d 167 (5th Cir.1979), cert. denied, 452 U.S. 905, 101 S.Ct. 3029, 69 L.Ed.2d 405 (1981), carefully considered all angles of the question of class certification to promote settlement and, in his convincing opinion, found certification under proper circumstances to be in order. That decision has been followed in other cases, perhaps the most notable one being Weinberger v. Kendrick, 698 F.2d 61, 72-73 (2d Cir.1982), in which Judge Friendly, speaking for the court, said:
The hallmark of Rule 23 is the flexibility it affords to the courts to utilize the class device in a particular case to best serve the ends of justice for the affected parties and to promote judicial efficiencies. Temporary settlement classes have proved to be quite useful in resolving major class action disputes. While their use may still be controversial, most Courts have recognized their utility and have authorized the parties to seek to compromise their differences, including class action issues through this means.
See also In re Mid-Atlantic Toyota Antitrust Litigation, 564 F.Supp. 1379, 1388-90 (D.Md.1983); In re First Commodity Corp. of Boston, etc., 119 F.R.D. 301, 306-08 (D.Mass.1987).
Though, as we have said, these cases were not mass-tort suits, there seems to be no real reason why the precedent established by the cases, just cited, should not be equally applicable to the mass-tort. If not a ground for certification per se, certainly settlement should be a factor, and an important factor, to be considered when determining certification. That is all the District Court did in this case. Its action in considering this circumstance would appear to have been appropriate.
In summary, we take it as the lessons to be gleaned from the authorities already cited and discussed to be (a) that the "trend" is once again to give Rule 23 a liberal rather than a restrictive construction, adopting a standard of flexibility in application which will in the particular case "best serve the ends of justice for the affected parties and ... promote judicial efficiency"; (b) that the Advisory Committee's Note suggestion that suit for damages is "not appropriate" for class certification has proved unworkable and is now increasingly disregarded; (c) that the theory that the Rule should be constrained by establishing judicially, without support in the Rule itself, limitations on its use such as were stated in La Mar, Green, and McDonnell Douglas have been outdated by the increasing phenomenon of the mass products tort action and by the growing body of recent class action decisions and comments favoring class actions in the mass tort context; (d) that, in order to promote the use of the class device and to reduce the range of disputed issues, courts should take full advantage of the provision in subsection (c)(4) permitting class treatment of separate issues in the case and, if such separate issues predominate sufficiently (i.e., is the central issue), to certify the entire controversy as in Agent Orange; and (e) that it is "proper" in determining certification to consider whether such certification will foster settlement of the case with advantage to the parties and with great saving in judicial time and services; and (f) that the mass tort action for damages may in a proper case be appropriate for class action, either partially on in whole.
We accordingly now turn to an attempt to apply these lessons to the facts of this case.
The overriding fact to be observed in attempting to apply these rules for class certification here is the uniqueness of this case. It is not simply a case by a numerous group or class suing one or more tortfeasors in one action to recover for a single set of wrongful acts. This is a case in which literally hundreds of thousands of claimants are involved as proposed class parties. It is a suit that breaks down into a number of separate and distinct issues, each of which is susceptible of independent proof, analysis and resolution and several of which arise out of the same factual background, pose a like legal issue and provide a basis for a separate certification. The first of these separate issues is one for the rescission or, as it is described in the complaint herein, a "vitiation" of a 1984 agreement between Robins and Aetna on the coverage afforded Robins under Aetna's policy. The differences between Robins and Aetna which this settlement disposed of, grew out of certain extra sums allegedly due "on account of defense costs and related items" over and above the stated face amount of the contract of insurance by Aetna to Robins. The agreement which settled the difference provided that Aetna would increase coverage to the extent of several hundreds of millions of dollars beyond the face limits of the policy. The Breland plaintiffs challenge the correctness of this settlement made by Robins with Aetna. They assert that they, as the representatives of the class of Dalkon Shield claimants, were third-party beneficiaries of the policy between Aetna and Robins and that they should have been involved in the settlement but were not and that their interest and the interest of all members of the class they seek to represent were prejudiced by such settlement. They wish to reopen the settlement and to seek apparently some additional sum in settlement from Aetna, thereby creating a fund in which all Dalkon Shield claimants would have a common interest. This is a classic type of "limited fund" embraced within the authorization of subsection (b)(1)(B) of Rule 23. The District Court properly certified the issue under (b)(1)(B) and (c)(4), and we do not understand the appellants to contest this ruling.38
The second issue represents the point which is critical and in dispute in this appeal. That issue poses the question whether Aetna may be subjected to liability in the Dalkon Shield litigation as a joint tortfeasor. The theory on which the Breland plaintiffs premise this right against Aetna has as its basis the claim that Aetna went beyond its duty as the insurance carrier for Robins and became an "active participant in all stages of the development, testing, promoting, and marketing of the product [Dalkon Shield]...." It alleged that Aetna's conduct in this regard made it a joint tortfeasor equally liable with Robins in all the Dalkon Shield suits. This contention goes to the very heart of the plaintiffs' case here and overhangs the other issues in the litigation. It occupies the same place in this litigation as the military contractor defense did in Agent Orange and as the "state of the art" did in Jenkins. If the Dalkon Shield plaintiffs were to be unable to establish that basic issue in their favor, there would be no Dalkon Shield liability for Aetna and no trial herein would be required on the defectiveness of the Dalkon Shield. Further, there would be no dispute for resolution herein over causation or damages in these cases. It was accordingly very much in the interests of both Aetna and Dalkon Shield claimants as well as in the public interest that this issue common to every Dalkon Shield case be resolved through a class certification rather than through an interminable procession of thousands of individual cases. If that issue could be disposed of in a class certified context, the courts might well be saved the trial anew of thousands of Dalkon Shield claims.
Whether Aetna is liable as a joint tortfeasor in Dalkon Shield litigation will depend on an analysis of a common nucleus of facts that will not vary in the individual cases. The bulk of these facts, it seems apparent from those in the record, will be documentary. Most of those facts on which the determination of joint tortfeasor on Aetna's part is to be made are detailed already in the record on appeal. Assuming no certification, that legal determination will be made in each individual case by the court before whom the individual case may be tried. Absent class certification, the risk of conflicting decisions on that issue could be anticipated in practically every individual case against Aetna that would be tried. That threat of conflicting legal standards and results could well create a chaotic situation in this case. There are over 300,000 claims and possibly the same number of suits (assuming there is no certification). It would be intolerable that whether liability could exist might vary from state to state on the legal standard that each particular court, hearing a Dalkon Shield case against Aetna, would apply to this common nucleus of relevant facts. It would thus be possible that one plaintiff, suing in State A, would be permitted to recover against Aetna as a joint tortfeasor but in sister State B, another plaintiff, equally entitled to relief, would not be permitted to recover. This is the very situation to which the lead attorney for the plaintiffs on this appeal, along with his co-author, referred in his article, already cited, when he said that in the mass tort context the public cry was:
Why should hundreds, or even thousands, of trials take place in which the same issue of a defendant's liability is litigated over and over again? Why should some plaintiffs recover compensatory and punitive damages, while other plaintiffs in other trials receive much less, or nothing at all, even though the issues of liability and causation are the same?39
The writer in 96 Harvard Law Review at 1154, 1155 commented in the same vein:
Two goals of tort law should be predictability and uniformity.... But if various factfinders reach inconsistent conclusions about the same set of facts, the defendant (and others in similar circumstances) is left without any guidance concerning the legality of its conduct, which may serve important legitimate aims.... But defendants and plaintiffs alike have compelling interests in consistent liability determinations, interests that can and should be addressed. Therefore, certifying (b)(1)(A) classes to promote these interests, even in cases in which there is no danger of conflicting equitable decrees, is fully compatible with the language and policy of the rule [Rule 23].
There is another important circumstance. Under Aetna's stipulation, a certification and resolution of the issue of Aetna's liability as a tortfeasor would, if the decision were adverse to Aetna, result in a resolution of all individual issues of causality and damages through a Claims Resolution Facility, obviating an endless procession of separate individual suits with varying results (some possibly in the few cases where the claimant elected for a jury trial rather than arbitration under the procedure to be followed under the Claims Resolution procedure) in suits heard in courts all over the country.
When an issue central to all the claims can be resolved by a class certification for all claims in the Dalkon Shield context without requiring a trial of the underlying Dalkon Shield liability claims and can be done with fairness to all Dalkon Shield claimants against Aetna, as it could be under the plan for the resolution of the non-common issues, it would be unfair alike to the litigants and to the societal interest in maintaining an efficient court system to refuse class certification. The likelihood of conflicting decisions and varying decisions of liability based on the standards of law applied to identical facts by different courts provide the very conditions contemplated in Rule 23(b)(1)(A) for class certification herein.
There is still another circumstance that pleads for certification of the issue of Aetna's liability as a joint tortfeasor. If Aetna is forced to go to trial on every individual Dalkon Shield case on the issue whether it is a joint tortfeasor and assuming that some of the individuals prevail both on that issue and that on the issue of recovery in a few of such cases, Aetna would, under the rule prevailing in a majority of the States be entitled to contribution by Robins. Such claim for contribution could be a contingent, unliquidated claim entitled to treatment in the Robins bankruptcy. To dispose of that claim, the court having jurisdiction over the bankruptcy would be required to delay the bankruptcy proceedings until the right to and the amount of the claim of contribution could be exactly ascertained through an "estimation" as mandated under Section 502(c) of the Bankruptcy Code.
Further, it is possible that even if this issue of Aetna's liability as a tortfeasor were resolved in favor of Aetna's liability, the burden of Dalkon Shield cases on the courts would still have been rendered more manageable by the courts because of a certification. Aetna has stipulated in the record herein that, if this case is certified as a mandatory class action under (b)(1)(A), and "if the liability issue were resolved against Aetna in Breland unfavorable to Aetna," [i]t would "agree not to litigate separately any of the non-common issues of individual medical causation and individual counts of damages. Instead these issues, if reached, would be resolved for class members through the Claims Resolution Facility", which would be coordinated with the Claims Resolution procedure to be provided in the Robins reorganization proceedings. It is interesting that this procedure for disposing of the case is not novel; it follows largely the suggestion made in 7B C. Wright, A. Miller & M. Kane at 80 and 81, already discussed herein, and, as formulated by the courts in Jenkins and Skywalk II. The process begins under the Wright-Miller-Kane model with a trial "only once" of the damage issue, making a single award for the class, and "with the development of an expeditious administrative means of dividing the lump sum among the class members."40 Similarly, in the Robins reorganization, the procedure begins as we have seen, with a judicially determined "estimation," made on the basis of a full hearing and after arguments of counsel, of a sum which would fully compensate every qualifying Dalkon Shield claimant for her injury. To accomplish that result, the Plan of Reorganization creates a Trust which in turn was to establish a claims resolution facility. Each Dalkon Shield claimant would file her claim with the Trust or facility, which, in turn, would following some discussions, make an offer of settlement. If the claimant accepted the settlement offer, that would constitute full and complete settlement of her claim against Robins, Aetna, American Home and all others. Should she not wish to accept, she has the option of deciding her claim by arbitration or by a jury trial at her option. If the claimant opts for a jury trial, the suit shall be against the Trust, the "[v]enue shall be unchanged by the chapter 11 case" and "[a]ll claims and defenses shall be available to both sides at a trial." That was the combined procedure to be followed for resolving all Dalkon Shield claims against both Robins and Aetna, as well as any other parties involved. This procedure accords with what the Supreme Court in General Telephone Co. v. Falcon, 457 U.S. at 155, 102 S.Ct. at 2369, declared to be the purpose of class actions, especially in the mass tort context, to ensure "the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion." [citation omitted] As the Court in Jenkins said, "in the light of the magnitude of the problem and the need for innovative approaches," 782 F.2d at 475, we find no abuse of discretion on the part of the District Judge in his certification herein under these circumstances.
There is a final reason why certification is warranted in this case. As a result of the conditional certification made by the District Judge, the parties in the Breland action were enabled to develop a settlement of this controversy--a settlement which has been approved by approximately 95% of all voting claimants. As Professor Transgrud, in the article already cited and quoted has correctly stated, class certification "is proper because Federal Rules of Civil Procedure 23 provides that the court may certify a common question class action when it will prove 'superior to other available methods for the fair and efficient adjudication of the controversy.' " See also Schuster, Precertification of Class Actions: Will California Follow the Federal Lead, 40 Hastings L.J. 863, 873 (1989).
The appellants, however, would find the certification invalid because it fails to provide an opt-out right in favor of claimants under the procedure established. They assert that Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), proscribes any class certification, which does not provide the class members with the right to opt out. Shutts, however, has been the subject of considerable discussion by commentators. Many of the commentators take the view that Shutts held "that a state court can bind absent class plaintiffs to a judgment for money damages (only) if it provides the absent parties the minimal procedural protections of adequate representation, notice of the action, and an opportunity to opt out of the litigation." A view which would put in jeopardy non opt-out certification. Note, Phillips Petroleum Company v. Shutts: Procedural Due Process and Absent Class Members: Minimum Contacts Is Out--Is Individual Notice In?, 13 Hastings Const. L.Q., 817, 821 (1986); Note, Phillips Petroleum Company, v. Shutts: Multistate Plaintiff Class Actions: A Definite Forum, But Is It Proper?, 19 John Marshall L.Rev. 483, 485 (1986). The most careful and thoughtful comment on the decision, however, is in Miller & Crump, Jurisdiction and Choice of Law in Multistate Class Actions after Phillips Petroleum Co. v. Shutts, 96 Yale L.J. 1 (1986). The authors are not entirely certain of the effect of the decision on the mandatory class certification with its no opt-out provision. The authors said that "[t]here is no neat and logical means of resolving the question whether mandatory actions survive Shutts. The answer depends upon the view one takes of Shutts itself and of the need for mandatory classes. It also depends upon the characteristics of the particular class action." Ibid. at 52 (footnote omitted). Professor Mark Weber, in an article titled Preclusion and Procedural Due Process in Rule 23(b)(2) Class Actions, 21 Univ. of Mich.J. of Law Reform 347 (1988), indicates a situation in which a mandatory class action which did not include an opt-out provision might qualify under Shutts. He wrote:The problem of the Rule 23(b)(2) class action is that binding absent class members without giving them notice and the right to opt out violates due process. The problem is clear under the apparently applicable standards of Phillips Petroleum Co. v. Shutts. Indeed, the only way in which the binding Rule 23(b)(2) class action might be seen not to be a violation of due process is if one follows Mathews v. Eldridge and weighs the harm to the interests of absentees with the cost of the alternative safeguard of notice and the right to opt out. 21 Mich.J. of Law Reform at 394 (footnote omitted).
Fortunately, however, Shutts--if taken as requiring an opt-out provision in any class certification, and assuming without deciding, that opt-out could not be validated here under the Mathews v. Eldridge standard--is satisfied in this case. The requirement of an opt-out provision if proven, is based on principles of due process. Chief Justice Rehnquist made this quite clear in his opinion in Shutts. In this case the Trust created by the parties for the resolution of all Class A claims on individual causation and damages does not in express terms include an opt-out provision but in effect it does. The Plan gives every such class member the right to elect to have her claim settled in a trial with all the procedural rights normally attaching to a jury trial. That is everything that an express opt-out provision could give a class member if such right is required under due process.
Due process, the courts have often declared, "is a flexible concept," intended to ensure "fundamental fairness." Walters v. Nat. Ass'n. of Radiation Survivors, 473 U.S. 305, 320, 105 S.Ct. 3180, 3189, 87 L.Ed.2d 220 (1985). See also Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). It is not a matter of semantics, not a matter of whether the talismanic word "opt-out" is used but whether the right given exists in effect. Walters, 473 U.S. at 321, 105 S.Ct. at 3189. Certainly, the procedure provided every class member here fairly meets the standard of "fundamental fairness" which due process demands. It follows that Shutts, if applicable, is fully complied with in this case.41
The appellants also posit that every class certification by a District Court has been reversed by the Court of Appeals and argue that such uniformity among the authorities should induce us to deny certification in this case. They list four decisions in support of this contention. In re Bendectin Products Liability Litigation, 749 F.2d 300 (6th Cir.1984); In re Northern District of California, Dalkon Shield I.U.D. Products Liability Litigation, 693 F.2d 847 (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983); In re Federal Skywalk Cases, 680 F.2d 1175 (8th Cir.), reversing 93 F.R.D. 415 (W.D.Mo.1982), cert. denied, 459 U.S. 988, 103 S.Ct. 342, 74 L.Ed.2d 383 (1982); and In re Temple, 851 F.2d 1269 (11th Cir.1988).42 We do not find that these cases support appellants' broad statement. For instance, Temple expressly disclaimed any intention to hold that "a products liability or mass accident suit could never be the proper subject of a class action." 851 F.2d at 1273 n. 7 (emphasis in original). It then cited Dalkon Shield, 693 F.2d at 853 (noting "that mass torts caused by a single transaction, i.e., a plane crash, might be proper subject of a class action"), and Jenkins v. Raymark Indus. Inc., 782 F.2d 468, 475 (5th Cir.1986) (noting that the single issue of "state of art" defense certifiable in non-mandatory context), 851 F.2d at 1273 n. 7, as mass tort cases in which certification had been had. Actually, class action certification was denied in Temple because of lack of commonality on the part of the proposed class members; a contention not made in this case. 851 F.2d at 1273. In Bendectin, the first case cited by appellants, the Court of Appeals expressly refused to decide whether class certification for settlement purposes was permissible under Rule 23 and decided the case on the ground that the action did not qualify under (b)(1) because of the limitation placed on the use of Rule 23(b)(1)(A) in McDonnell Douglas, already discussed, and because it did not produce sufficient proof of a limited fund. 749 F.2d at 305-06. For reasons already given, we believe McDonnell Douglas is outdated as a proper limitation on the use of (b)(1)(A). We have already discussed Dalkon Shield and pointed out the differences between that decision and this case. Properly construed, Dalkon Shield may be said to have gone off on lack of a proper class representative, according to Agent Orange, supra. Skywalk 's final end as set forth in 97 F.R.D. 380 (W.D.Mo.1983) is not noted by the appellants. The most significant error of the appellants, however, is that, in making the broad statement that no Court of Appeals had sustained a mass tort certification, they completely disregarded School Asbestos, Jenkins, and Agent Orange, as well as the later decision in Skywalk, all of which sustained a mass tort certification.
The appellants also assert that the Breland plaintiffs are not proper and adequate class representatives. This contention is based on the claim that there are claimants who object to class certification and the settlement which the Breland plaintiffs as class representatives submitted to the District Court for approval. Appellants' argument would deny class certification if any number of members of the class, however small, objected. Class certification cannot be defeated simply because a few claimants--actually, their attorneys--feel that they would fare better by pressing as quickly as they could their individual suits than they would if the suit were to be prosecuted for the benefit of all claimants. Certainly, in the mass tort situation, there is a substantial societal interest. The burden placed on the judicial system resulting from every products liability litigation entails great public and private expense, encumbers the court calendars, and prejudices other litigants by unusual delays in their litigation. As we have already said, judges in such cases are required to try case after case where the same documentary evidence is produced, where the same expert witnesses and their tests are exhaustively developed, where there is extended direct and cross-examination, and required, as by rote, to repeat the same instructions to a jury. To permit a small number of claimants who are seeking actually to promote their own interests largely at the expense of the other claimants to frustrate a class certification in such a case is unthinkable.43
And what has been said here is equally applicable to the objection to the action of the class representative in submitting a proposed settlement to the District Court for approval. That proposed settlement was submitted to all the claimants and all claimants were given notice of a hearing on the proposed settlement where any claimant could raise such objection as she might have to the settlement. That procedure was followed by the objecting claimants. At the hearing, there was extensive testimony taken with attorneys for the objecting claimants participating and being heard. After the hearing the settlement was submitted to all the claimants and an overwhelming majority (almost 95%) of the Class A claimants and almost 98% of the Class B claimants voted in favor of the settlement. Should a class certification and a class settlement be dismissed simply because a minimal number of the claimants voting objected? Must the federal courts be forced to try individually thousands of individual cases presenting the same issues of liability and causation year after year, with an intolerable burden on the court system and the judiciary and with great delay in the resolution of the individual claims, when there is a ready remedy for expeditious adjudication and fair recovery available for the full 100% of claimants through a properly constructed class action when the objections are so limited? We think not, and we dismiss this objection to the class certification herein.
The appellants also find error in the certification in this case because the District Court, in finding compliance with (b)(1), failed to indicate whether it was certifying under (1)(A) or (1)(B). This objection is without merit. As Wright, Miller & Kane points out, it is unimportant whether certification is under (A) or (B) "inasmuch as actions under clause (A) and clause (B) are treated in the same manner for purposes of the other portions of Rule 23 and nothing turns on which provision is held controlling." 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 1772, at 424-25 (2d ed. 1986).
In conclusion, we affirm the class certification herein. It is clear from the record that the determinative, critical issue in this case was whether Aetna was liable as a joint tortfeasor; it overshadows all other issues. Just as the military defense was central to the case in Agent Orange, so the question whether Aetna was a joint tortfeasor here was the critical issue common to all the cases against Aetna, and one which, if not established, would dispose of the entire litigation. See 818 F.2d at 166-67. Such an issue satisfies the commonality requirement of Rule 23(a)(2), as well as the other prerequisites of subsection (a). Moreover, the action qualifies under subsection (b)(1)(A) as well as (3). Manifestly the class action as a method of adjudicating that overshadowing issue is superior to any alternative form of adjudication. Further, the resolution of this issue, if required to be made in the thousands of individual suits in different courts, would involve the risk of varying and contradictory legal decisions on what was precisely the same factual record. The result would be chaotic. This is a situation which would unquestionably qualify under (b)(1)(A). It is of no moment that this action qualifies under (b)(3) or that the District Court in this case may have certified this action under (b)(3) instead of (b)(1). In fact, it is "very common for an action to fall under Rule 23(b)(1) and one of the other categories in Rule 23(b)." 7A C. Wright, A. Miller & M. Kane, supra, at 425.44 Were we not satisfied that there was authority under (b)(1)(A) for certification, we could, it is true, affirm the decision of the District Court as permissible under (b)(3). We realize that it was under (b)(3) that Jenkins and School Asbestos made their class certification, and the District Judge could have followed those decisions. It is, however, of no moment that the District Judge did not grant certification on this ground; it would be appropriate for us to affirm the certification herein as a (b)(3) since the decision of the court below can be affirmed on any ground supported by the record, whether raised below or by the parties in the proceedings before us, if one concluded that this action could not be certified under (b)(1). Thigpen v. Roberts, 468 U.S. 27, 29-30, 104 S.Ct. 2916, 2918, 82 L.Ed.2d 23 (1984); Schweiker v. Hogan, 457 U.S. 569, 585, 102 S.Ct. 2597, 2607, 73 L.Ed.2d 227 (1982); Stern v. Merrill, Lynch, Pierce, Fenner & Smith, 603 F.2d 1073, 1093 (4th Cir.1979); Blackwelder v. Millman, 522 F.2d 766, 771 (4th Cir.1975); Charley's Taxi Radio Dispatch v. SIDA of Hawaii, 810 F.2d 869, 874 (9th Cir.1987); Colorado Flying Academy, Inc. v. United States, 724 F.2d 871, 880 (10th Cir.1984), cert. denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986). The basic difference between a mandatory certification under (b)(1)(A) and a certification under (b)(3) is that there is no opt-out requirement on the former but there is in the latter. As we have already pointed out, there is in practice, though not in express language, an opt-out provided by the right of a dissatisfied class claimant to choose a jury trial for resolution of her individual causation and damages claims. Accordingly, while the District Court might have certified this case under (b)(3), it acted in accordance with the general rule applicable in such a situation to certify under (b)(1)(A) (See C. Wright, A. Miller, & M. Kane, supra, Sec. 1772, at 425, and other authorities cited on page 728 herein). For reasons already given, we are of opinion that the District Judge had the right to base his certification on (b)(1). We accordingly affirm the class certification as made herein by the District Court.
We turn now to consider the appeal from the order of the District Court approving the settlement herein.
Under Flinn v. FMC Corporation, 528 F.2d 1169 (4th Cir.1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976), a case cited by both parties as the guide for our decision on this phase of the appeal, the review of the decision of a District Court approving a proposed settlement of a class action is one for "clear abuse of discretion." 528 F.2d at 1172. Flinn declares that the most important fact to be considered in conducting such a review is "whether the trial court gave proper consideration to the strength of the plaintiffs' claim on the merits." Ibid. The reviewing court should consider in evaluating whether the trial court had given proper consideration to the strength of the plaintiffs case "the extent of discovery that [had] taken place, the stage of the proceedings, the want of collusion in the settlement, and the expense of counsel who [had] represented the plaintiffs in the negotiation" in the record before the trial court. Ibid. at 1173. The trial court should also give proper consideration to the attitude of the class members themselves to the settlement. It is not, however, to be assumed that a settlement is "unfair or unreasonable because a large number of class members oppose it" or that the settlement "may only amount to a fraction of the potential recovery." Ibid. It would have been in order for the trial court to grant to any objector to the settlement the right to be heard, to cross-examine witnesses or to submit evidence, but the trial court may limit the proceedings to "whatever is necessary to aid in reaching an informed, just and reasoned decision," Ibid. and specifically the trial court "should not 'turn the settlement hearing into a trial or a rehearsal of the trial.' " Ultimately, the rule to be applied is that
[s]o long as the record before it is adequate to reach "an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated," and "form an educated estimate of the complexity, expense and likely duration of such litigation, ... and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise," Ibid.
If that procedure is followed, a trial court has acted properly in determining whether to approve the proposed settlement or not. We think that the District Judge in this case followed those principles in reaching his decision. Under such circumstances, he did not abuse his discretion in approving the settlement.
It is important to recognize that this case is closely tied in with the bankruptcy of Robins. Both this case and the Robins bankruptcy were before the same District Judge. Under the proposed settlement, the resolution of individual causation and damages for Dalkon Shield claimants seeking recovery from Robins and Aetna is through the same mechanism. The Robins Plan of Reorganization and the Breland settlement are intended to provide full payment of all compensatory damages suffered by all Dalkon Shield claimants who have properly filed claims. The Plan creates a Trust Fund which will be sufficient to achieve this goal. Neither the appellants nor anyone else has asserted that such fund is insufficient.45 When the parties have funded the trust, Robins, Aetna and any successor corporations are relieved of any further liability, and this is proper since Dalkon Shield claimants will be paid by the Trust the full value of their claims. Aetna has made a minimal contribution to that fund. But that is not all that Aetna has done to assure the full payment of all Dalkon Shield claimants: It has provided an extra fund of $325 million to protect the Trust against any deficiency that may occur in the Trust Fund. That undertaking of Aetna is the "icing on the cake" for the Dalkon Shield claimants, who, when the Robins Plan of Reorganization and the Breland settlement are approved, can begin promptly to collect compensatory damages for their injuries. The Plan of Reorganization and the Breland settlement are interdependent. Failure of approval of either the Plan of Reorganization or the Breland settlement would derail hopelessly the carefully negotiated and crafted Plan and Settlement and leave the Dalkon Shield claimants to the vagaries, expenses and delay of further extended litigation. It is understandable that, under these circumstances, about 95% of the claimants who voted on the Settlement voted in favor. Such a strong showing of support for the Plan by those most interested should not be lightly disregarded.
Of course, this expression of the feelings of claimants cannot relieve the trial judge of his obligation to review and make his own informed and reasoned judgment on the fairness of the settlement. The most important consideration, as declared by Flinn, 528 F.2d at 1173, in reviewing a class action settlement, is whether the District Court gave proper consideration to the strength of the Breland claim on the merits. The District Judge, in reaching his decision in this case, had before him a record that had been accumulated over many years. He had the extensive discovery conducted before the Judicial Panel on Multi-District Litigation over a period of years. He had available the records developed as a result of the discovery conducted in the actions pending before Judge Lord in the District of Minnesota, as well as the investigations and reports of the two masters appointed by Judge Lord. Counsel for the Breland plaintiffs had thoroughly examined in Hartford Connecticut, the files of Aetna, and in Richmond Virginia, Robins' files. They had made copies of the relevant items in such files and collated them in various volumes. These examinations by the Breland plaintiffs covered a period of several months and entailed the services of a team of lawyers numbering at times as many as seven or ten.46 All this was brought to the attention of the District Court either by the filing of the requisite documents or papers themselves or by the testimony or representations during argument by Breland counsel. Some forty-two depositions were included in the record. The trial judge received exhaustive briefs and heard at length counsel on the legal aspects of the Breland plaintiffs' claim. He took the testimony of a number of witnesses in open court. The conclusion seems inescapable, in our opinion, that the District Judge conducted a most exacting inquiry into the strength of the Breland plaintiffs' case and stated an informed and reasoned conclusion on that issue.
It is the appellants' position, though, that the record will show that counsel for the class did not adequately investigate this case or conduct appropriate discovery. From the discovery already conducted before this suit was brought and the extensive investigation by counsel after this suit was instituted as already detailed, it appears to us, as it apparently did to the trial judge, the Breland Court had covered thoroughly the facts involved herein.47 The report of the investigations by class representatives' counsel was set forth in a "Memorandum Settlement" submitted by Mr. Friedberg and Mr. Meshbesher as counsel for the Breland plaintiffs. Later Mr. Friedberg and other counsel engaged with him in developing the Breland case and in formulation on behalf of the Breland class the settlement, testified in person and were extensively cross-examined by counsel for the appellants. In addition, depositions of other counsel were submitted in the record. All this supported the statements in the Memorandum submitted in support of the Settlement. Counsel for the Breland plaintiffs aggressively and at great expense appear to have investigated every possible avenue for relevant evidence that might support the Breland suit.
What we have discussed relates to the relevant factual record which counsel for the Breland plaintiffs zealously developed and analyzed and which was before the District Judge. We now look to the legal basis for the Breland suit against Aetna. There was no evidence that Aetna had any connection with the manufacture, labeling or marketing of the Dalkon Shield by Robins as developed either by Judge Lord's masters or by the Breland counsel (or, for that matter, the appellants). Nor is there any evidence that Aetna took any part in the decision not to recall the Dalkon Shield in 1974; that decision was made by Robins, apparently on the advice of its counsel. There was no evidence of the making of false misrepresentation of any kind to Dalkon Shield claimants by Aetna that involved any prejudice to such claimants and there was thus no basis for a fraud action against Aetna. This case is accordingly clearly distinguishable from West v. Western Cas. and Sur. Co., 846 F.2d 387 (7th Cir.1988), in which the agent of the insurance carrier was found to have induced the plaintiff West by false representation to delay filing a suit which could have been prejudicial to the interests of the insurer. Aetna had no dealings with any Dalkon Shield claimants, assumed no duty to such claimants and could not be liable to Dalkon Shield claimants under accepted insurance law. This was the very ground for the decision in Bast and Campbell discussed on pages 715 and 716 herein, and similar cases. The District Court in this case reached the same conclusion.
The only actions as charged against Aetna in this regard related to conduct of counsel paid by Aetna, as it was required to do under its contract with Robins, to represent the latter in certain Dalkon Shield litigation. This contention raises the question whether an insurance carrier in such a case can be regarded in law to be the employer of the counsel, for whose actions the carrier may be liable under respondeat superior. It is universally declared that such counsel represents the insured and not the insurer. Repeated opinions issued by the American Bar Association [ABA], as illustrated by ABA Comm. on Ethics and Professional Responsibility, Informal Opinion 1476 (1981) declare: "When a liability insurer retains a lawyer to defend an insured, the insured is the lawyer's client." See also the following opinions in ABA/BNA Lawyers' Manual on Professional Conduct (1984): Connecticut, Informal Opinion 83-5, at 801:2059; Delaware Opinion 1981-1 at 801:2201; Michigan Opinion CI-866 at 801:4856. See also Point Pleasant Canoe Rental v. Tinicum TP., 110 F.R.D. 166, 170 (E.D.Pa.1986); Gibson v. Western Fire Ins. Co., 210 Mont. 267, 682 P.2d 725, 736 (1984). The acts of counsel retained by Aetna to defend its insured Robins cannot be imputed to Aetna under any rule of respondeat superior.
It appears at another point in the appellants' catalogue of objections to the settlement to be the position of the appellants that Aetna knew of the deficiencies in the Dalkon Shield and failed to tell claimants of such. They would characterize this failure to be an actionable fraud. Such an argument assumes that an insurance carrier which, in reviewing with its insured a claim against the latter learns that its insured was at fault in some particular, owes a duty to advise the claimant of such dereliction on the part of its insured. Obviously, the carrier has no such duty and no court, so far as we know, has ever so held. See Nipper v. California Automobile Assigned Risk Plan, 19 Cal.3d 35, 136 Cal.Rptr. 854, 560 P.2d 743, 749 (1977) ("[w]e are aware of [no authority] which suggests that an insurer ... either stands in a special relationship with the applicant or his potential victims, or alternately owes any affirmative duty of inquiry or disclosure regarding the applicant.")
The appellants, in their brief, refer critically to the alleged fact that certain damaging files of Robins were either destroyed or were planned to be destroyed. There is, however, no evidence, either direct or circumstantial, in the record to indicate that Aetna knew of or participated in such action. When it later did hear that there had been some discussion of the possible destruction of certain Dalkon Shield records by house counsel, it is apparent, from the record on which the appellants base this assertion, that Aetna promptly demanded as a condition of renewing its policy that the Robins official who had allegedly proposed such plan be removed from any connection with the Dalkon Shield files in litigation. It is thus plain that Aetna neither participated nor did it later do any act to condone such proposed or actual destruction of records. This record is simply devoid of any evidence of any wrongful conduct on Aetna's part or participation in this incident on the part of Robins (assuming, without deciding that there was such an incident).
Nor did the appellants offer any evidence or point to any fact in the record which established or indicated collusion between counsel for the Breland plaintiffs and Aetna. Breland counsel aggressively pursued this case. They did so at great expense. After this exhaustive review of the Robins and Aetna records, it is obvious that they recognized they had found no "smoking gun" but it was not because they had not tried relentlessly to discover one. The negotiations for settlement that later developed appear to have been conducted on the part of Breland counsel with complete fidelity to their responsibility.
Finally, appellants discount the settlement as a "nuisance settlement." It was a settlement that involved a potential liability on Aetna's part of $425 million. Considering the expense of defending individually all the Dalkon Shield claims, the settlement figure might be thought of as the "nuisance" value of the Breland plaintiffs' claim to Aetna which had to bear the expense of such litigation, but this in no way taints the settlement, when the record indicates clearly that the Breland plaintiffs had but a tenuous, if at all, chance of success on this claim. Further, the settlement, coupled with that offered in the Robins Reorganization Plan, assured every Breland plaintiff of full payment of her proven claim, with an added contingent provision supplied by Aetna to protect against any possible deficiency in the Trust. Moreover, a settlement involving the acceptance of a possible liability of $425 million is not an insignificant settlement. Moreover, in every settlement, the amount is directly related to the strength of the plaintiffs' case. This is indicated by the settlement of $1,800 million of claims in the San Juan hotel fire for $100 million. See note 41. It is difficult to see what more the Breland action, if continued, could have availed the Dalkon Shield claimants. Without further elaboration, we hold the District Court did not err in approving the settlement of the class action.
The judgments of the District Court granting class certification and approving the settlement are accordingly
ADDENDUM APPEAL NUMBER APPELLANT DALKON SHIELD NUMBER 881755 Mary Albert 252684 Carol Angus 215751 Judith Beaule 62242 Janis Belcher 237565 Daniel Belcher 237566 Karen Belcher 237564 David Belcher 243035 Melanie Bennett 183837 Nancy Benson 191191 Jean Boeckler 122207 John Boeckler 122208 Janet Bruce 296254 Melody Cannon 228522 Barbara L. Carr 20475 David W. Carr 244903 Helen Carty 78400 Sandra Cassier 7647 Patrick Cassier 7646 Victoria Charnock 228521 Ellen Chodes 42705 Elizabeth Cote 26935 Brenda Davis 111886 Marion DuFord 78493 Deborah Fallon 80309 John Fallon 80310 Dawn Gebo 7306 Janet Gregory 79226 Frank Gregory 79225 Sarah E. Haskell 78399 Pamela Hockenhull 78909 Patricia Johnson 78581 Mary E. Jordan 291790 April WeeksKorn 78397 Leonard Korn 78398 Debora Lamont 96144 Beverly McClure 80313 Katherine Maher 19424 Elaine Nizza 228523 Donna Oberg 77966 Diane Pinard 7113 Jeanne Robey 237567 Paul Robey 237568 Pamela Saxby 78580 Shellie Shapiro 78583 Howard Shapiro 78582 Sharon Lee Spern 187651 Rebecca Steinbach 281041 Jeannette Sweet 85890 Beverly Tonkin 184469 Donna Tshanakas 222583 Nicholas Tshanakas 222584 Daphne Whitmore 78910 Linda Bisson 172492 Anne Soucy 286513 Sally Adams 225908 Randy Adams 225886 Charlotte Allen 227324 Charles Allen 225896 Jan Allen 225897 Barbara Bill Klinger 225899 Linda Brust 225323 Virginia Bryan Roberts 225901 Gwendolyn E. Buettner 70274 Carolyn Campbell 225900 Lynn Crosby 225902 William Franklin Crosby 233041 Mary Kathryn Deemer 235677 John Deemer 225885 Donna Faremouth 260787 Charles Faremouth 260788 Cindy Franco 225884 Fred Franco 231644 Elena Friedman 225893 Darleene L. Frink 226609 Kenneth Frink 225964 Diane Goshorn 113174 Christiane J. Guignard 219368 Linda Harre 225883 William Harre 225894 June Ellen Harris 225895 Carol Harterink 225903 Anton Harterink 225904 Rosanne Heard 225905 Jimmie Dale Heard 225906 Atha Henderson 225907 Jill Campion Huff 233339 Pamela Johnson 7353 Ted Johnson 7356 Wanda Lancaster 6020 Deborah Jean Lenzi 225485 Betty Leobold 225486 William D. Leobold 235694 Susan Lippner 225890 Robert Lippner 225889 Victoria L. McCord 225888 Cheryl McFarland 192508 Dayna McKendree 225887 Diane Mance Zywotko 225892 Carol Mitchell 225891 Susan Nehrig Cole 46096 Paul Nehrig 46097 Deloris A. Nicolaou 255933 Sherry Peavy 225322 Kenneth Peavy 225488 Flora Poe 109594 Brenda Reilly 225489 Gerald Reilly 225490 Patricia Scolaro 225491 Edward Scolaro 235693 Wanda Joe Selvanik 225492 Michael Selvanik 225487 Janice Denise Simmons 7355 Merrick Simmons 7354 Martha E. Sims 225483 Eslyn South 189220 Tracy Staneart 176376 Debra Renee Thompson 225321 Denise B. Wax 225946 Dan Wax 234731 Rachael O. Thompson 200369 Edwin L. Wilbur 202442 Sharon Malloy Wilber 201016 Harold E. Kerkhoff, Jr. 200370 Robert F. Grant, Deceased 200373 Robert W. Adams 200368 Gillian L. Adams 200367 Mr. R.S. Shaw 285422 Blanche M. Shaw 202439 Donna M. Kerkhoff 200375 Kathleen A. Denise 62658 Jim H. James 200366 Beatrice D. Sewell 200374 Kenneth R. Livingston 200883 Gloria W. Livingston 200372 Harvey H. Friedman 200371 Arlene Whitaker James 200365 Phyllis B. Puckett 225059 Rhalda S. Friedman 202440 Joyce F. Grant 202441 Barbara A. Purvis 202438 881757 Carolyn Abernethy 227352 Barbara Ackerman Agnes S. Adams 138145 Deirdre Adams 304924 Janet Adams 239853 Katherine Adams (Shaw) 24580 Mary Adams 293804 Olive J. Adams 205634 Pauline Adams 209345 Morenike Adejumo 283378 Georgette M. Adlington 204639 Maureen Ahern 216306 Annie Aitken 283379 Sandra Aldridge 102304 Iona M. Alexander 215468 Marie A. Ali 241349 Christine Allen 209349 Emelda Allen 216276 Gail Frances Allen Josephine Allen 1437 June W. Allen 285351 Marie Stella Allen 204671 Maureen Allen 88623 Patricia M. Allen 283383 Anita C. Almond 283385 Jacqueline A. Almond 205660 Lucia Alvarez de Toledo 226897 Elizabeth Amies 210903 Doreen Amos 283390 Joan Anderson 283392 Lilieth C. Anderson 205673 Norma Anderson 230534 Veronica Ann Anderson 203532 Trina Andrashi (Guessous) 283912 Gillian Monaghan Andrews 226869 June Andrews Mary Annette 42298 Jean M. Anslow 209353 Patricia Apsimon 202246 Leonie Archer 204551 Yvonne A. Archibald 203552 Brenda Arkless 203493 Patricia A. Armstrong 205636 Maureen W. Arnfield 283396 Joan Arnold 283398 Joyce Arnott 283400 Shelia E. Arsenault 239840 Mary Asprey 207057 Janet Asson 282918 Agnes Aston 203470 Barbara Atkins 299237 Eunice M. Atkins 239806 Patricia Atkins 231499 Betty Atkinson 207059 Sylvia Atkinson 283404 Betty Auger 203586 Susan Aultman 70842 Margaret Averill 205687 Judith Avril 283406 Trudi Axford 283408 Patricia Baber 282961 Ram Dai Bacchus 205684 Linda Backerman Gail Bacon 42036 Carole Badrick 239791 Janet Bailey 283414 Peter J. Bailey 283415 Janet Doreen Bailey 283410 Patricia Bailey Irene Bain 283416 Hazel Bainbridge 283417 Betsy Baird 283419 Robert Baird 283420 Christine Baker 283421 Joy M. Baker 207061 Gillian Bambury 299222 Rosalind Banfield 283423 Margaret B. Bannister 283425 Kathleen Barber 297495 Susan M. Barber 283426 Alexandra J. Barbosa 49764 Patricia Barford (Hudson) 226898 Ann E. Barham 203639 Jennifer Barley 207970 Eileen Barlow 204560 Sandra Barnard 283428 Elaine Barone 305202 Susan Bashford 48510 Megan Bashir 283432 Carole Baskin 283434 Pauline Basson (Reid) 209346 Pauline Bate 226854 Janet Patricia Bates 203509 Pauline M. Bates 205642 Christine BatesBrownsword Heather C. Bathers 203513 Rosezella Battle Janet Baughan 216283 Ruth Baynton 209196 Karen Beach 283440 Janine Maeve Beadle 105984 Madeline A. Beattie 203670 Chantal Beaudry 185103 Janet Sue Beckwith 84367 Jean Bedford 215449 Jamila Begum 299223 Kaniz Begum 207975 Magsood Kahn Begum 203625 Mary E. Behan 283444 Danielle Belanger 237706 Denise Belford 243649 Jennifer Belsham 283446 Helen Benham 15107 Jacqueline D. Bennett 215444 Myrtle Bennett 283448 Sandra A. Bennett 249668 Elizabeth A. Benson 283450 Doreen Bentley 226847 Katreane Bernard 283452 Cathryn Berr Valerie Berriman 299224 Georgia Berring 207019 Patricia Berry 283454 Patricia Bibbo Manzoor Bibi 299240 Daphne Bickley 283458 Janus Bidawid 287358 Susan Bills 215463 Mairi Binns 283462 Deborah (Lynn) Bino 249212 Carol Birch 283464 Margaret Patricia Birch 204564 Ann Bish 283466 Norma Bishop 283468 Tracey Biss 283470 Dorothy Blackham 216270 Anna Blaiklock 283472 Maureen Blair 15809 Mary Lou Blake 287359 Noreen Blake Christine Blakemore 283474 Jennifer Ann Blanch 215462 Ann Blau 251536 Bonnie Bleiweiss 287360 Eunice Blewer 203675 Ethel Bloomer Patricia H. Bloomfield 283477 Barbara Bloyce 195255 Loretta Jayne Bluck 283479 Sydney Blum 263517 Lynda Lee Bockler 80029 Ruth Boddy 283481 Pauline M. BolleMead 132591 Carole G. Bolt (Wilkes) 203564 Ann Bolton 283482 Winifred Helen Bolton 283483 Shelia Bones 283485 Patricia Bonner 234413 Mary B. Bonthron 283487 Joanne Mary Booth (Stanton) 208023 Lucey Bourne 203464 Sylvannie L. Bourne 282903 Pauline Anne Bowater 239834 Maureen Bowden 223638 Verlaine Bowden 283493 Betty Bowers 209339 Joyce Bowler 29264 Pamela Bowling 283497 Gloria Bowman 227354 Winifred Boyce 205638 Margaret Boyle 224824 Carolyn E. Bradburn 224857 Evelyn M. Bradbury 203682 Betty Constance Bradley 205632 Janet Alice Bradley 203582 Christine A. Brady 205647 Jennifer A. Brady 283502 Margaret M. Brady 203527 Margaret P. Brady 307353 V.E. Braga 285684 Linda Braid Margaret Bramble 283504 Pamela Ann Branden 283506 Trudie Branford 283508 Norma Brannan 207063 Ida Brassard 227355 Raymond Brassard 227356 Pamela Braun 237436 Berenice Brennan 204586 Cathryn Brennan 153187 Kathleen Brennan 283512 Sharon L. Brennan 283514 Joyce Marylou Brett 209369 Denise Brewer 294001 Mary Bridgeman 249546 Linda Bridgewood 205680 Diane Brimmer 231066 Veronica Brimsted 234425 Julia Alica Brindley 283517 Sandra Brindley 283519 Denise Brinig 283521 Elsada Bristol 231502 Francesca E. Bristow 203525 Patricia Bristow (Sutherland) 287461 Shirley Britt 287361 Wendy Elizabeth Brooke 204644 Jennifer Brookes 209186 Brenda Brooks (Mynard) 224845 Richmal Broomfield 203521 Elizabeth Brophy 283523 Reta F. Brothers Alma Brown 283525 Jennifer Brown 209335 Patricia Brown 216290 Patricia I. Brown 203475 Susan Brown (Hinman) 84652 Anne Browne 209175 Pearline Browne 282904 Ann Broyles (Louise) 286359 Jean Brunt 283527 Christine Bryan 217994 Sophie Buamah 283529 Moira Buchan 283531 Jo Ellen Buchanan Jan Buckley Elsie Buhler 291265 Christine Bull 204638 Marion Burford 153188 Marion Burgess 283538 Patricia A. Burgess 283540 Sheenagh Burgess 283544 Joan Burke 283545 Margaret Burke 216274 Audrey H. Burton 283549 Doreen Burton 203482 Leslie Burton 283550 Mary Burton 283551 Mavis Bush 283553 Georjeau Busha 287398 Anne C. Butcher 217302 Valery E. Butler 231495 Anne Butterworth 283557 Glynis Byatt 142274 Bettina H. Byras 84421 Ann Marie Byrne Rita Josephine Byron 224849 Linda Cabena 249659 Marjorie Cairney 84424 Lorraine Cakebread 285686 Susan Calder 207996 Dr. Fiona Caldicott 215451 Pauline E. Calladine 299163 Kathy Callaway Sandra K. Caller 283561 Valerie Calvert 224834 Christine Camp Margaret Campayne 283564 Evelyn A. Campbell 283566 Hilma Campbell 203500 Jeanette Campbell 283570 Judith L. Campbell Nancy Campbell Tina Campbell 207067 Yvonne Campbell Mary Ann Canning 239795 Valerie Canning 204670 ElseMarie Carlander 283573 Barbara Carnaby 283575 Georgina C. Carnegie 283577 Sandra J. Carpenter 287365 Sandra M. Carpenter 207984 Bridget Teresa Carroll 283578 E. Carroll 283580 Elizabeth Ann Carter Margaret E. Carter 204597 Margaret Cartlidge 226899 Margaret Ann Carton 207048 Janet D. Cartwright Lurline Carty 283582 Marianne Carven Jacqueline Casey 283584 Jane Casey 203533 Mary Sheila Cashmore 204598 Margaret Casserly 209364 Kathleen Cassettari 283586 Carole A. Cassie 209264 Mary Frances Castle 283590 Iona Castro 283592 Margaret A. Caswell 204642 Christine Cave 203611 Ann Cawley 283593 Ruth Evelyn Cecil 287366 Doreen Chalke 605808 Catherine B. Challender 283595 Edna Challinor 239784 Kathleen Chambers 283597 Cheryl Chambers 241355 Mary Champagne 287367 Raymond Champagne 287368 Maria L. Chandler (Holt) 284877 Shirley Chant 215397 Patricia M. Chaplain 42281 Jacqueline Chapman 224821 Lily Chapman 204664 Jose Charles 283603 Marion Charles 282933 Caroline O. Charlton 212449 Valerie Chattoe 216291 Zohra S. Chaudry 204667 Margaret M. Checkley 203569 Mary Cherrington 283606 Marcia Chessell 283608 Carol Chew 203612 Louise Ching 283610 Janet Chioffi Maureen R. Chittock 283611 Gillian D. Chitty 283613 Brenda Victoria Choat 283615 Marilyn Chong Barbara P. Chorley 207974 Dallas Christodoulou (Bonell) 255186 Madelaine Church (aka CanaleParola) 283571 Alison Clark 247714 Ann Clark 203555 Doreen M. Clark 215457 Gillian Clark 239808 Judith Ann Clark 283617 Lee Christine Clark 283619 Pamela Clark 239816 Patsy Clark Sylvia Clark 216315 Ann D. Clarke 241360 Dorothy Clarke 203551 Florence J. Clarke 203540 Joyce E. Clarke 216296 June Clarke 204652 L. Clarke 283619 Olen Jane Clarke (estate) 283621 Patricia Clarke 247048 Linda Claxton 205663 Sylvia Clay 283623 Kerry Claytor Nancy Cleary 207020 Edwin Cleary 207021 Carol Faye Clements 287370 Violet R. Clews 204660 June Cliffe 283625 Mavis Una Clinton 283626 Joan W. Clulow 209206 Irene Cobb 120967 Mary Ann Cockerton 283628 Christine Cocksey 283630 John Cocksey 283631 Linsay Marcia Cohen 283632 Diane Cole 283634 Janice Cole 283636 Nikki Cole 287372 Teresa M. Cole 209344 Betty Coleman 288372 Mary G. Colley 204678 Margaret Collins 203601 Theresa Coltman 283640 Greta Connelly 234526 Margaret Conner Pauline Conolly 63312 Elizabeth Conran 283642 Karen Conti 285688 Audrey Conway 283644 Beatrice S. Cook 207973 Catherine Cook 307352 Wendy R. Cook 226903 Margaret K. Coomber 283646 Catherine Coombes 153068 Elaine Coombes 605809 Christine Coombs 204646 Beatrice Cooper Dorothy P. Cooper 216294 Gay Maxine Cooper 31333 Patricia Cooper 224837 Theresa Cooper 283652 A. Corbett 283653 Josephine A. Corcoran 216330 Lenore Corfe Christine Corfield 283654 Sue Corfield 170937 Margaret H. Corlett 203665 Margaret Cornwell 286351 Nicolina Cortiglia 283662 Mary Cotterill 216288 Josephine V. Cottingham 283663 Maureen Coughlan 294002 Christine Ann Coulson 283665 Barbara I. Court 208014 Alice Couture 231074 Caroline Cowell 283667 Ursula Cowley 299164 Ira Cox 283669 Joyce E. Cox 188092 Margaret Cox 205670 Janet Crabb 282905 Jackie Craig 287373 Lynette Crannis 285690 Mary B. Craven 203579 Browyn Crawford Margaret Creber 153190 Margaret Credaro 285693 Laura J. Cremin 217837 Lavinia Croft 283671 Patricia V. Croshaw 85056 Kathleen G. Cross 239864 Ursula Cross 265028 Ann Crossan 283673 Cynthia Crowley 303907 Angela Culbert 283677 Sandra Evelyn Culhane 307349 Elaine Cumley 207022 Mairead Cummins 12819 Marion Cummins 247715 Philomena Cummins 195260 June Rita Cumper 283681 Catherine Cunnane 239857 Dawn Iris Cunningham 283685 Ellen Marie Cunningham 127234 Mary F. Cunningham 288491 Anne W. Curtis 239793 Marilyn Curtis 287374 Barbara Cuthbert 84491 Jean Daff 283687 Johanna Dahn 207995 Shirley Joy Dallas 283689 Debbie Dameron Susan Mary Daniels 204641 Lynda Dare 283691 Valerie J. Darneille 283692 Shelia Dart 155669 Beryl Davey 283695 Christine E. Davidson 203598 Tina Davidson Avril Davies 209191 Elaine P. Davies 204654 Katherine Davies 239827 Patricia E. Davies 293756 Joyce Davis 203635 June Davis 203628 Kaye Davis 153191 Valerie J. Dawkins 203578 Rosemary E. Dawson 283697 Ann De Bont 203511 Louisa De La Falaise 207981 Dorothy P.A. De'Souza 283715 Patricia DeAngelo 204388 Susan DeGavre Carolyn DeRijke 207024 Bernadette Dean 205631 Jacqueline Dean 203562 Theresa Dean 305204 Jacqueline K. DeanLewis 283699 Pamela Deane 283701 Mary B. Delaney 231497 Janice Delany 283703 Amanda Dellar 283705 Angela Dempsey 283706 Pamela Denney 283708 Joyce Densham 226881 Maureen Dent 283710 B.H. Deputron Dianne Derrick 283713 Elise J. Desabrais Michelle Detrice 204578 Shelia Devaney 138170 Christine Devine 283718 Barbara Dhalai 203545 Patricia Diaz 283719 Rosemary Dickson 283721 Christopher Dickson 283722 Moira Dimech 153192 Joanne Dinatale 269143 Linda Dingman 106964 Gail I. Dixon 283727 Jennifer E. Dixon 203517 Rosemary Ann Doble 226861 Mary Docherty 283731 Alison Gay Doggart 283733 Margaret J. Doherty 212603 Mary Donnelly 205669 Annie Donoghue 209208 Annie J. Donoghue 224833 Joan Doogood 209616 Amanda Dore 283737 Patricia Dorkins 234416 Dorothy Douglas 283739 Clara Douglass 84510 Susan Dow 287377 Norma Dowd 142277 Susan Dowie 226857 Beryl L. Dowling 88572 Winifred Downes 283741 Audrey J. Downey 203623 Joyce Doyle 283743 Sylvia M. Duffy 203575 Joanne K. Dugdale 203658 Joyce DunbarBrunton 283745 Patricia F. Dunderdale 240973 Christine Dunleavy 227357 Patricia Dunne 202220 Mary E. Dunster 287378 Hillary A. Durochia 41108 Josephine E. Durrant 205689 Linda Durrant 226809 Michelle Dutot 283747 Patricia Dyer 142278 Margaret Ealand 295359 Barbara Eastbury 239866 Brenda Easthope 209197 Gloria Eaton 215464 Patricia Ann Eaton 224852 Margaret Eatough 283750 Teresa M. Eatough 283752 Jillian Ede 189032 Betheda Edmonds 249121 Elizabeth Edwards 209202 Ellen N. Edwards 239848 Josephine A. Edwards 203515 Sheryl Edwards 283754 Catherine M. Egan 226868 Janice Egglestone 283756 Mary Rose Elgie 283758 Vassoulla Elia 226845 Barbara L. Elliman 203473 Rosalind Elliott 142279 Gay (Brown) Ellis 231082 Eugenie Ellis 283760 Lorraine Ellis 208765 Avril Dawn Elms 283764 Jennifer Ann Elvy 283766 Janet S. Emery 204595 Sally P. Emms 283768 Cheryl L. English 285695 Yvonne Enright 283769 Doris Epstein 84532 Ingrid EriksenWilson 207055 James EriksenWilson 207056 Janice Esom 283773 Nancy Rose Estry 283777 Caroline Evans 299165 Mary A. Evans 283781 Sheila Evans 283779 Susanne Evans 212389 Janet C. Everill 282906 Pauline B. Everitt 299244 Joan M. Eveson 226840 Patricia V. Ewart 283783 Janice Renee Fairweather 119690 Shirley D. Faloon 249569 Julie Falzarano 287380 Gwyneth Fanning 84541 Ian Fanning 84542 Anne Faraday 216304 Donna Faremouth Charles Faremouth Jerilyn Farinella 286358 Mary Ann Farrell 283785 Ruth Farrell 287381 Margaret F. FarringtonWood 283787 Sabina Faust 285696 Sylvia Jeannette Feaver 283789 Janet Fell 204593 Dorothy M. Fellows 205656 Teresa Maron Felton Susan Lee Fenney 291638 Paula Fenton 283793 Annette Ferlin 207028 Margaret J. Ferris 84556 Margaret W. Ferris 224823 Christine M. Finney 204661 Heather Ann Firkin 283795 Ann Elizabeth Fish 209327 Janice Fishburn 285698 Linda Fitzackerley 283797 Sandey Fitzgerald 84563 Valerie Fitzgibbons 205674 Thelma Fitzpatrick 283799 Elizabeth Fivet 283801 Mavis Flastig 283803 Susan M. Flegg 203520 Helen Fletcher 285700 Alice Foran 249661 Anne S. Ford 283805 Elizabeth Ford 142281 Peter Ford 142282 Margaret Ann Forrest 283807 Geraldine Forristal (Mary) 148621 Avril Forsdyke 205688 Irene C. Forshaw 283809 Jean Foster 204571 Joan M. Foulsham 204581 Jeanette Fournier 270165 Anne Fowler 295363 Valerie Ann Fowler 283811 Elizabeth Fox 226885 Helen Elizabeth Fox 283813 Sheila Fox 283817 Shirley Foxall 282965 Betty Frances 285692 Cristine Elizabeth Francis 207071 Dorothy Francis 282966 Rosemary D. Francis 283819 Sheila Francis 203678 Doreen Franklin 224828 Brenda A. FranklynStokes 283821 Joyce Fraser Carol Frederick Brenda Freeman 203571 Pauline Freeman 70777 Valerie Freeman 299225 Mary D. Freer 243652 Sandra G. French 155772 Susan French 283823 Annaliese Fritz 101994 Georgia Furminger 287383 Lesley D. Fyfe 153193 Catherine Gaffney 223767 Loraine Gager 153195 Sylvia GaleBurkitt 283829 Andrea Gallagher 239805 Gloria Joan Gallant Russlaine A. Galliers 231510 Judith Gapp 283831 Barbara A. Garcia 203469 Alison M. Gardiner 299226 Linda Ann Gardner 205651 Diane Garner 283833 Peggy A. Garrett 287384 Betty C. Gauntlett 208003 Kathleen Gavaghan 203499 Jean A. Gaynor 283835 Ann Gear Christine A. Gebhardt 283837 Patricia L. Gee 283839 Anna Marie Gent 293839 Valerie Gentry 283841 Rita Gerry 205640 Sandie Gervasio 287385 Joan Gethin 216331 Patricia Ann Giannasi 283842 Carolyn Gibbins 283843 Margaret Gibbons 283845 Gwyneth Gibson Joan Gibson 283849 Joy Gibson 285701 Polly Gibson 270179 Rosemary Gibson 216284 G.A. Gilani 226875 Brenda M. Gilbert 204563 Alexandra Gildea 283851 Jean Giles 209328 Lillian Giles 203661 Judy Gilgunn 283853 Michael Gilgunn 283854 Raj Gill 208019 Heather Gilroy J.P. Ginesi 283855 Judy Girard 153196 Suzanne Girard 287387 Theresa M. Gladwin 204655 Marcia Glenwright 207029 Ann C. Glover 204566 Marie Glucksman 283856 Jacqueline Glynn 203668 Josephine Glynn 224822 Rita Goddard 216307 Jane Godfrey 257757 Teresa Lorraine Godfrey 283858 Karen Goff (Smeaton) 285461 Mercedez Gomez 283860 J.A. Goodeve 283862 Marie Goodrich 245142 Joy M. Goodwin 283864 Margaret P. Goodwin 205649 Sandra Goodyear 283865 Ester McBride Gordon 283867 Barbara Gorringe 295353 Margaret Gossmann 270183 Lena Gott 143619 Dorothy A. Gough 216312 Judith Goulden 283869 Elizabeth Goulding 283871 Susan Goulding 283873 Ann Govern 218087 Philippa Gow 227358 Susan Gower 202214 Rita Goyette Donna Graham 225129 Priscilla Graham 283877 Valerie Graham 204672 Veronica Grant 282968 Deborah Graves 84601 Beverly Gray 287388 Doreen Gray 283879 Elaine Gray 249654 Mary Catherine Gray Mary Charlotte Gray 234379 Pamela Gray 283883 Anna Green 283885 Robert Green 283886 Euvine Green 239783 Gillian Green 203669 Hazel Janice Green 283889 Judith M. Green (Letts) 141351 Lynette Green 205650 M. Green 283891 Margaret Green 283893 Ruth Gregory 283896 Melcilyn Grey 209356 Betty Griffin 204592 Joyce Griffiths 204662 Christine Grigg 203539 Jean Grinter 283900 Janet Pamela Grinyer 283902 Linda Mary Grinyer 283904 Vilma Grizzle 204584 Marie Ann Grogan 204679 Pauline Groombridge 283906 Brenda Ground 283908 Luella Gulley 287389 Maureen Anita Haddon 203514 Gloria E. Hadley 239854 Leslie Haines 84614 William Haines 84615 Annette E. Hairsine 203681 Elizabeth A. Hale 203478 Sandra Haliben Ann J. Hall 283913 Jean Hall 283915 Marjorie Hall 293758 Mary P. Hall 283916 Phyllis Hall 283918 Sheila Hall 209185 Shirley E. Hall 283920 Mary I. Hallahan 239807 Gillian Halter 203679 Razia A. Hameed 203617 Alison Hamilton 283921 Kathleen Hamilton 283923 Maryann Hammond 207031 Clifton Hammond 207032 Jill M. Hampson Patricia R. Hancock 283924 Susan Handy 203581 Margaret Handyside 153197 Janet Hanks Bridget H. Hanley 209180 Wendy Ann Hannabuss 283926 Margaret Hannan 283928 Shirley Hannon 305246 Lorna Hanrahan 227359 Evelyn Hanson 209326 Rosemarie Hanson 11494 Patricia Ann Hara 181073 Mary Harding 215453 Pauline Harding 204549 Joyce Hardy (Fox) 283815 K. Hardy 188150 Margaret E. Hardy 283931 Ann Harman 205644 Catherine Harouche 239835 Dianne Harper 284817 Audrey Harris 283412 Hilary Harris 226860 Janet M. Harris 203602 June M. Harris 216209 Norma J. Harris 284821 Pauline T. Harris 284823 Anne Harrison 282970 Astrea Harrison 284825 Barbara Harrison 284826 Keith Harrison 284827 Maureen Harrison 203604 Pauline Harrison 203556 Elizabeth Harvey 284831 Jan Harvey 231097 Patricia G. Harvey 299040 Rosemary Harvie 112718 Suzan Harwood 234423 Aileen Haskell 284832 Margaret Hassan 203657 Mary Edwina Hassett 284834 Pamela Hasson 284836 Irene Haunton 249666 Patricia A. Haverty 203580 Barbara Hawkins 284838 Robin Hayden 287392 Jennifer G. Haye 299228 Jeannette A. Hayes 204673 Valerie Hayes 203653 Mary Josephine Haynes 203486 Rose O. Hayter 216286 Margaret R. Hayward 205657 Marjorie Hayward 284840 Florence Betty Haywood 284842 Adair He 288414 Margaret Head 205646 Kathleen Margaret Heal 284843 Anne Healey 284847 Susan Healey 284845 Anne M. Hedges 245654 Linda Hemphill Jeanette Hasel Hencher 284849 Dorothy A. Henderson 5294 Cellastine Hendley 204582 Jean E. Henry 239775 Stephanie Hensher 284851 Christine Herbert 207977 Vera D. Herbert 226856 Theresa Hewat 284855 Sandra Hewes 216311 Joan A. Hewett (estate) 284857 Cynthia Hewitt 227361 Olive Hewitt 249669 Sheila Hewson 282909 Barbara Ann Hewston 203594 Charlotte Hickcox 287393 Bridget M.C. Hickey 284859 Marion Hickman 205683 Hazel M. Highfield 284861 Margaret Hiley 204621 Elizabeth Hill 299230 Gillian Hill Kathleen Paula Hill 284863 Sheila Hill 203607 Susan Hill 284864 Lynn Hind 282972 Carole Ann Hine 203465 Susan HinmanBrown 14418 Magdalena P. Hinton 284866 Margaret H. Hinton 216282 Mavis Hinton 282897 Joan E. Hitchco 208025 Sheila A. Hitchinson 239823 Pauline Hobby 207077 Dorothy M. Hobley 208013 Elizabeth Hodges 285703 Valerie Hodges 284870 Michael Hodges 284871 Helen K. Hodgetts 239773 Joan M. Hodgson 284872 Patricia Hodgson 207991 S. Hodgson 203655 Diane Hogan 227363 Linda Holby 287394 Ginette Holdcroft 209329 Patricia Holding 203541 Patricia Ann Holland 216281 Roseanne Hollingbery 142283 Anthony Hollingbery 142284 Beverley Marie Holloway 284874 Susan M. Holloway 223710 Judith Holt 207033 David Holt 207034 Deree Holton 286354 Patricia M. Hope 284879 Ruth J. HopkinsGreen 282473 Muriel Hopwood 224847 Ann Horne 284881 Sandra Horth 70824 Marlene McKeown Hoskins 209340 Marilyn Houlberg 287395 Jacqueline House 203468 Mary L. Houston 203663 Jean Howarth 284883 Rose Miriam Howat 284884 Janet Howells 284885 Linda S. Hubbard 203568 Christine A. Hudson 215446 Anne Hughes (Odling) Diana Hughes 142285 Florence Hughes 291650 Kim Jean Hughes 153199 Lesley Hughes 207994 Mary Hughes 247718 Philomena Ann Hughes 284887 Shirley Hughes 207972 Janet Humphreys 209198 Frances Hunt (Howells) 284896 Lydia M. Hunt 203531 Margaret R. Hunter 284899 Mary Elizabeth Rita Hurt 284901 Dorothy Hutchings 153201 Margaret Hutchison 231108 Dennis Hutchison 231109 Sandra Hynes 284903 Ann V. Ikin 284905 Christine Iles 216305 Edna M. Ind 231504 Pauline Insull 203620 Margaret Anne Isdale 203508 Margaret O. Ison 205699 Janet Ives 284907 Janice E. Iveson 284909 Megan Jacka 231511 Cherri Jackson 287396 June Anne Jackson 203528 Suzanne Jackson 285705 Davina Jacobs 84681 Phillipa D. Jacobs 282973 Susan Maxine Jacobs 217238 Irene Jacques 284912 Suvinder Kaur Jagdev 282925 Angela James 153203 Anne T. James 205652 Audrey James Barbara Anne James 284914 Catherine M. James 284916 Christine James 284918 Molly James Wendy M.A. James 284920 Begum Jan 216313 Karen Jan 17184 Meewa Jan 239799 Jennifer Mary Jeans 284922 Anita Jefferies 203491 Caroline Jeffries 205698 Nusrat Jehan 282924 Anne G. Jelbert 209351 Linda Jelfs 209199 Enid Jenkins 227365 May Jenkins 284924 Patricia N. Jenkins 239825 Sandra Jenkins 209177 Shirley Jenkins 203503 Tessa Jenkinson 284926 Evelyn Jenks 284928 Anne Jennings 284930 Jane Jennings 284932 Maureen Jennings 284934 Marie Jerrold 284936 Mary Phoebe Jessop 284937 Angela Johns 284938 Avril M. Johnson 204657 Beverly Johnson Elaine Johnson 284940 Josephine Johnson 224836 Patricia Johnson 239782 Patsy Johnson 204648 Vera A. Joiner 226886 Anne Q. Jones 249662 Barbara A. Jones 209345 Carol A. Jones 284942 Carolyn J.P. Jones 284944 Christine H. Jones 205629 Claire A. Jones 226859 Gail Georgina Jones 188155 Hilda Jones 204674 Jacqueline Jones 203557 Jane Jones 284946 Lesley K. Jones Linda Jones 284948 Linda A. Jones 203561 Queenie Jones 284950 Valerie E. Jones 204677 Jeanne Margaret Jordan 284952 Suzanne Jordan 284953 Phyllis Joyce Barbara Jury 284954 Joyce Justice 287397 Deborah Kako 207035 Marjo Kalo 131607 Barbara Kane 284946 Daljit Kaur 203498 Gurdial Kaur 243654 Jagir Kaur 299041 Joginder Kaur 205690 Surinder Kaur 239838 Linda Kayne 284958 Mumtaz Begum Kazi 204565 Brenda Teresa Keane 288421 Lynne Kear 284959 Betty Keeffe 203603 Angela Keeling 284963 Maureen A. Keen 23731 Johanna Kelleher 284967 Alice Kelly 204969 Doris Kelly 299249 Elizabeth Kelly 205703 Isla Kelly Jennifer Kelly 282974 Kristine Kelly (estate) 17628 Margaret A. Kelly 284971 Margaret M. Kelly 212429 Carol Kelsey 153204 Karen Kelsey 231114 Elizabeth Ann Kempson 226897 Jacqueline Kennedy 204645 Mary I. Kennedy 203471 Sandra Kennedy 287400 Susan Kennedy 203593 Sarah Kenny 239787 Karen Luwanna Kerkhoff 207036 Patricia Mary Kershaw 284975 Angela Kerwin 284977 Lal Zara Khan 203609 Chandra Khiani 212359 Sue Kibbe 192611 Kathleen Anne Kidley Anne Marie Killingback 295361 Valerie Killingbeck 284981 Valerie G. Kilpatrick 203627 Frances King 205681 June M. King 204640 Marianne King 153205 Sylvia Frances King 204663 Gwendoline Rose Kingston 203616 Mary P. Kinnavane 284983 G.M. Kirkpatrick 284985 Bernadette Knight 284987 Christine Knight 284989 Jean Knight 284991 Joan Knight 204590 Carol Knott Carole KnowlesBaker 255198 Estelle S. Kohn 287405 Rosemary Komraus 287406 Elisabeth Ellen Kondal 284995 Kathleen G. Korpa Georgina A. Kosniowska 284997 Darshna Kour 204567 Ronee Krakowiak 24230 David Krasner Irene Krause 287407 Eleanor LaFave 227367 Ingrid LaTrobe 285017 Barbara Labrow 284999 Debra M. Ladwig (Morchower) 231141 Sylvia Laing 285001 Angela Lamb 285003 Evelyn A. Lambert 285005 Cecily Lamberti 62248 Annette Lambourne 285007 F.A. Lancaster 285009 L.V. Lane 285010 Shelley M. Lane 204694 Shirley Lane Susan Joyce Lane (O'Dwyer) 19002 June Lang 285011 Sheila Lang 257758 M. Langley 285014 Sandra G. Langston 203501 Beverly Lapacek 285708 Teresa Larkin 285015 Roseanne Lasorsa 199867 Eileen J. Lathan 204651 Ruth Lathan 203588 Maureen Launchbury 216317 Lesley Lavelle 203467 Yvonne Lawes 207083 Michael Lawes 207084 Maureen A. Lawless 204659 Elizabeth W. Lawlor 209174 Barbara Lawrence 285020 Betty A. Lawrence 237084 Christina Lawrence 282926 Gillian Lawrence 285022 Norma Lawrence 285023 Audrey O. Layton 226839 Dorothy Ann Lazenby 285025 Norma A. Lea 231505 Christine Ann Lee 205654 Elizabeth Lee 285027 Pauline Lee 285029 Valerie S. Leeney 204594 Rita Leese 299031 Rose May Leese 285033 Barbara Leigh 285035 Stella C. Leigh 226877 Suzanne Levay 120889 Sandra E. Levitz (Lunner) 17084 Alexandra R.M. Lewis 285038 Ann Lewis 24878 Dorothy V. Lewis 203606 Elaine M. Lewis 285040 Gabrielle Lewis 285046 Gwendoline Lewis 299250 Jacqueline Lewis 285044 Janet Lewis 243655 Kathleen M. Lewis 224855 Lynda Lewis 285048 Mary Lewis Pamela Mary Lewis (estate) 285042 Yvonne Lewis 203664 Eunice Leyland 285050 Christine Liggins 605810 Patricia A. Limoge 287410 Raymond W. Limoge 287411 June P. Lincoln 285052 Elizabeth W. Lindsay 224830 Carley D. Lines 285712 Jacqueline Littleford 224841 Lael Livak 287414 Frances LivingstonRa 285056 Anita J. Llewellyn 215460 Janet Lloyd 204649 Yvonne Lloyd 216285 Bernadette Lodge 120792 Glennis Swift Loe 285710 Maureen Loeffler 84777 Sandra Longmire 249483 Vivienne Longstaff 285058 Carol S. Love (Palombi, C.) 285061 Carol Love 285059 Audrey Lowe (estate) 94949 Christine Lucas 285063 Doreen Lucas 285065 Jennifer Lucas Elizabeth Luck 285067 Jennifer Lumley 283657 Gillian Lumsdon 239781 Christine Lutterman 285069 Gloria J. Lyford 58299 Sheila Lynch 285071 Teresa Carmel Lynch 285072 Deirdre Lynn (aka Kerrigan) 98009 Mary Lyons 299032 Elizabeth MacDonald 132000 Wendy MacKenzie 285073 Dimity Mackie 285714 Elaine Macnamara 23847 Jean Madden 285075 Jean R. Maddocks 285077 Mary Ann Maguire 282482 Sarah Maguire 243656 Joyce E. Maber 209212 M. Malik 285079 Shelagh Mallalieu Pamela Mallinson 241350 Ann Malone 285081 Patti Maloney 270256 Sheila Malsbury 226884 Christine Mann Pat Mann 285083 Valerie M. Mann 285085 Yvonne Marchant 285087 Elizabeth Marcotte 249225 Amy Marcus 207042 Joan Mardner 205675 Ester Margolis Gwyneth M. Marison 285089 Irina Markova 84797 Dorothy Marsden 285091 Elizabeth Ann Marshall 285093 Nola Marshall 285095 Sheila Marshall 208237 Gloria Martell 288343 Barbara Martin 285097 Celia Martin 285099 Eileen Martin 216278 Elaine Martin 285101 Elizabeth Martin 195931 Glennis Maxine Martin 60021 Jillian M. Martin 247719 Julie Martin (estate) 285105 Pamela Martin 216308 Gloria Martins 209355 Lynne Maselan 227369 Lachmi Masih 203642 Furruck Masood 209183 Patricia Margaret Massocchi 285107 Brenda Masters 285109 Vera Mather 219508 Carol Matthewman 285110 Janet Maughan Teresa Maughan Martha J. Maund 285184 Valerie Maw 285112 Mary May 285114 Renee Y. May Carole McAllister 153206 Julia McAllister 287416 Denni McCann 249235 Janet Martha McCann 285116 Marie T. McCann 209209 Shirley McCann 209348 Christine McCarthy 285117 Donna McCarthy 287417 Lloyd McCarthy 287418 Susan McChesney 257759 Pauline McClenaghan 216300 Janice McCrae Irma McCray Heather McCrory 28050 J.M. McCullough (Brookes) 216323 Christine McDermott 285118 Esmerelda McDonald 204668 Rose Joan McEnery 282898 Isabella Fiske McFarlin Amelia C. McGann 205677 Annie McGann 285120 Linda McGeever 247720 Sarah McGettigan 203574 Jean McGill 285121 Hilary E. McGrath 215454 Patricia Marie McGrath 216318 Pauline McGrath 285122 Ann P. McGuigan 224851 Rita McHale 285124 Marilyn McKay 203629 Yevonne McKay 285126 Patricia McKenna 285128 Delsada McKenzie 299251 Edna T. McKnight 203548 Sarah McKnight 285130 _______ Elizabeth McLennan 287419 Mary T. McLennan 287420 Keith McLennan 287421 Susan McLeod Annie McManus 282910 Eileen M. McNally 241354 Maureen McNally 207964 Eileen McNeill 285132 Sharon McNicol 287422 Jeanette McQuaker 203518 Sarah McSweeney 285134 Anne Meddings Emma Meekins 287423 Ted B. Meekins 287424 Mubarka Mehta 239796 Stella L. Mellor 282976 Sandra L. Melnyk C. Mendonea 285136 Susan Mero (Birtles) 10780 Helen Merrigan 285138 Ellen J. Merrins 239840 Bobbi Mersereau 84826 Janet Messenbird 207085 Maira Miczek 12311 Elizabeth Maud Middlemist 285140 Margaret T. Middleton 285142 Susan H. Middleton 207976 Amanda Midlam 29745 Yvette MilazzoBrombacher 285143 Leo MilazzoBrombacher 285144 Sheila B. Miles 226746 Sheila L. Miles 203497 Margaret M. Millage 204554 Icilda V. Miller 299252 Marion E.L. Miller 285145 Susan Miller 84835 Louis Miller 84836 Hazel B. Millington 205694 Janet Millman 243658 Sylvia Millns 285149 Pauline Mills 285151 Rosemary J. Mills 204653 Dawn Milner 226858 Sonia Milsom 285153 Clarice Mitchell 203680 Frances Mitchell 285155 Linda J. Mitchell 247721 Veronica Mitchell 285157 Wendy Moger 299044 Mary Theresa Molloy 239810 Stella Monday (Nathan) 302221 Marie Monk 285159 Elizabeth Ann Moody 295344 Margaret Moody 285161 Virginia Moody 261342 Margaret Moon 285163 Jean Mooney 285165 Jacqueline Moorcroft 203526 Ann Moore 203638 Claudia Moore 293210 Doreen D. Moore 285167 Henrietta J. Moore 285170 Jean Moore 285169 Jennifer Mary Moore Leigh Moore 237518 Vera L. Moore 204669 Elizabeth Ann Moran 285173 Kathleen Moran 207043 Christine P. Moreton 203596 Vera K. Moreton 209204 Doreen M. Morgan 203479 Elizabeth L. Morgan 204562 Susan M. Mornington 207978 Edith Nkhala Morothoane 285175 Jean Morris 207985 Joan A. Morris 209362 Mary A. Morris 299253 Maureen Morris 285176 Shawn Morse 137391 Luisa Mosa 84847 Jack Mosa 84848 Valerie A. Moscow 285178 Susan E. Moseley 239829 Betty A. Moss 204650 Margaret Mott 287425 June Mottershead 285180 Marcia Moulton 84849 Mary Moulton 285182 Susan Mowll 285186 Catherine Moyes 285188 Heather Muco 285719 Lynn Mudd 282978 Morag G. Muego 285190 Susan Mulhall 241239 Sandra Mullany 204637 Theresa Mullen 216329 Carol Mullet 285192 Sylvia A. Mulligan 285194 Norma Mumby 285198 Pamela Mumford 203492 June Y. Munro 285196 Gail Murfin 203472 Joan Mary Murfin 285200 Brenda Murphy Deidre Veronia Murphy 285202 Diana E. Murphy 205639 Jane Murphy 285204 Linda Murphy 121051 Wendy Murphy 285721 Joanne T. Myers Cynthia Nadeau 197219 Janet Naim 285206 Marian Nankivell 285722 Deborah J. Nason 84858 Rawza Nasser 231489 Delia Nassim 285208 National Women's Health Network 6584 Winifred Neal 203554 Doreen O. Neale 285210 Doreen Neary 203537 M.T. Neate 285212 Thelma Needham 285214 Nola Nelson 285723 C.A. Denise Neve 285216 Margaret Newboult 295355 Kathryn Newbound 285218 Ann Newby 208001 Carol Ann Newell 226905 Jeanette Newman 285220 Mildred Newton 285222 Rita Newton 285224 Susan T. Nichols 285225 Mary Nieporte Patricia Nightswander Pamela Nightingale 285227 Mary Nisbett 203504 Rita Nobbs 285229 Beatrice E. Nock 282912 Gillian Nock 204602 Joan Nolan Josephine A. Norman 203570 June Norman 203674 Pauline Marie Norman 42317 Barbara Normand 287426 Kathleen Norton 203605 Irene Notley 209343 Patricia Novikoff 183368 Mark Novikoff 183369 Marilyn Nuske 153210 Sarah V. Nutley 285232 Susan Margaret Nuttall 285230 Susan Nutter 270855 Glenda J. Nye 38262 Eileen Bridget O'Brien Florence M. O'Brien 209195 Kathleen S. O'Brien 203649 Margaret O'Callaghan 243659 Kathryn Marie O'Connor 287429 Connie O'Dell (O'Driscoll) 285236 Marie O'Donoghue 224827 Margaret O'Flaherty 203560 Esther Elizabeth O'Gorman 285238 Margaret A. O'Hagan 204604 Yvonne O'Hara 285240 Veronica S. O'Neil 282928 Carmel O'Neill 153212 Linda C. O'Neill 203463 Norma O'Neill 204603 Kathleen O'Reilly 7119 Theresa O'Reilly Timothy O'Reilly Susan O'Shaughnessy 227371 Suzanne Okrent 285242 C. Oladipo 285244 Joan Oleskevich Christine Oliver 205705 Mary Ollerenshaw 204605 Barbara Oreton 203618 Patricia A.F. Osborne 285247 Patricia A.L. Osborne 203587 Eunice Owen 28593 Gaynor Owen (estate) 285248 Jennifer Owen 285250 Ruth Owens Lisa Padilla Elise Padmore 203603 Sarah Page 325462 Eileen E. Palmer 204607 Laurann Pandelakis 84888 George Pandelakis 84889 Janette A. Panek 239839 Sheena Panton 285256 Ellen Pareis 287431 Madhu Ben Parekh 226888 Barbara Parker 287433 Maureen Parker 285259 Sandra Parker 210461 Christine Parkes 204609 Maureen Elizabeth Parkes 227107 Susan Ann Parkin (Disney) 283723 Rachel M. Parkins 203549 Rosemary P. Parkinson 205679 Marlene K. Parry 209357 Mary Parry 285260 Kathleen M. Partridge 203507 Patricia Partridge 285262 Monica Patel 203572 Jacqueline A. Patterson 285264 Janet Pattison 285266 Jennifer Patullo 153213 Bianca Pauza 153214 Barbara Payne 205665 Susan Payne 240985 Gillian Peach 224829 Judy Peacocke 30956 Diane S. Pearce Mary Pediani 285268 Elizabeth Pellett 216336 Jennie Pelotte 287435 Sheila Pender 285270 Kathy Penfield John Penfield Janice Penny 285272 Jean Pennycook 106702 Catherine J. Pepper 209182 Jennifer Pepper 287437 Julie Jean Mary Percy 285274 Annette June Perkin 285275 Sally Perkins 285277 Antoinette Perks 285278 Lesley Perks 208017 C. Perry 285280 Gilde Perry 285282 Susan Peterken 207088 Johanna Petersen 84904 Kathryn Peterson 84905 Sharon Pfeifer 287438 Diane I. Phillips 208008 Pearlyn Phillips 299034 Erica G. Philpotts 226904 Judith Phipps 285284 Tina L. Piddington 216302 Susan Myra Pilton 295357 Linda Pinchera 285286 Sylvia Pinfield 209352 Sheila Pinner 216303 Marilyn A. Piri 209368 S.K. Pitman 285288 Linda C. Pitt 209341 Lynne Plant 285290 Rhonda Plant 153216 Lyndon Plante 84914 Christine M. Pointon 285292 Maria Pollakis 120891 Penelope Pollock 285293 Joanne Pomeranz 287440 Murial Poole 204606 Wendy A. Pope 285295 Heather Popham 285297 Diana M. Porter 239779 Helen Porter 285299 Pauline Porter 285301 Eileen Potter 209319 S. Pottinger 285303 Alice J. Potts 282949 Margaret Pover 285307 Everett Pover 285308 Christine Powell 216275 Margaret Powell 285309 Pamela Powell 299233 Margaret Power 205648 Farida Pradhan 287441 Anne Pratt 285310 Jean Preedy 149520 Andrea Prentice 227373 Audrey E. Price 249667 Mary Price 207090 Maureen Price 234415 Martine A. Prichard 203613 Agnus Primus 203615 Alvarene Prince 203543 Linda S. Prince 203577 Jennifer Pritchard 285313 Hazel M. Prosser 241357 Jean Lesley Prosser 204610 Jennifer Pugh 207966 Elizabeth M. Purnell 102096 Andrea Quail 7042 Norma B. Rabaiotti 285315 Stella J. Rabbits 204596 Diana Rabone 226907 Lucy Raby 285317 Sheila Race Naomi L. Radovan 207999 Gladys Ragland 291649 Sharon R. Rainbird 203495 Jean Rainville 287443 E.M. Ramsay 282982 Elaine Randall 224848 Margaret W. Rankin 207967 Gayle Raphanel 84926 Lynda J. Ratcliff 28152 Ivy Ravenhill 215445 Janet Rawe 207046 Pauline Reading 285320 Sheryl Reardon 285322 Janine Records 287446 Katherine Reece 285326 Patricia A. Reece 209363 Diane Reed 203590 Gillian P.M. Rees 285328 Mary Ellen Regen 216292 Deirdre Reid 241351 Heather Reid 285330 Julia Reidy 606331 Margaret Ann Reidy 265562 Helen Remphrey 153217 Coral Rendall 285332 Mary Reohorn 285334 Mary Ann Restall 216299 Jennifer Revis 285336 M.O. Reynolds 285338 Brenda Rheeston 203524 Catherine Rhodes 239802 Christine Rice 257760 Carol Richards 285340 Elaine Richards 239859 Angela Patricia Richardson 285342 Jean Richardson 285344 Pearl Richardson 203538 Angela Ride 224839 Joyce Rigby 231500 Emma Rikert 106182 Sandra Robbins 285349 Susan Robbins 216289 Valerie Roberston 285353 Margaret Roberts 207048 Margaret R. Roberts 285347 Linda Robertson 287448 Peter Robertson 287449 June Rose Robinson 209200 Pamela A. Robinson 285359 Sheila Robinson 285361 Susan Robinson 209324 Rosemary Robjohn 282985 Anne Roddick 285363 Christy Ann Rodgers 227374 Norma Roe 203502 Caroline Roeves 285364 Annie Rogers 299259 Kathleen Rogers 285366 Peter Rogers 285367 Linda Rogers 208247 Margaret Rogers 204611 Mary Linda Rogers 208247 Roberta Rogers Maureen Rood 285368 Janet Rooney 285370 Joyce Rose 181805 Edna Ross 285374 Jacqueline Ross 188921 Jean Ross 257761 Kathleen M. Ross 285376 Ruth M. Ross 285379 Pauline RossWhite 285380 Hilary Caryl Rothwell 285382 Valerie Round 239817 Isobell H. Rouse 205680 Janice Rouse 295341 Kerry A. Rowe 285726 Barbara A. Rowley 205655 Christine Rowley 285386 Rita Roxburgh 285388 Angela Roy 84954 Dahn Roy 84955 Nora P. Roy 215441 Roseanne Ruiz Aldolphe Ruiz Patricia K. Rumens 285390 June K. Russell Miriam Russell Diane Rust 285392 Celia Ryan 299235 Maura Ryan 248356 Anna Ryder 84964 Irene Sabbar 231507 Paula Sacchinelli Nicholas Sacchinelli Kathleen Sackett 282953 Mari Said 248238 Diane Sait 285394 Marcia Salmond Sheila Salt 231508 Janet Salzman 204521 Linda Sameja 239845 Fiona M. Sandercock 285728 Rhoda H. Sanders 51169 Helen Sanderson Alwyn Sandiford 285396 Dr. Patricia M. Santer 285398 Jane SasonowWhite 291643 Jane Savoie Ann E. Sawyer 241356 Helga Scaiffe Dawn M. Scarrott 204634 Yvonne Schaloske 227375 Jacqueline Schaverein Janet Schebella 84973 Betty H. Schilling 209358 Mary Schobert 249318 Cheralyn A. Schofield Peggy L. Schrader Maria J.H. Schreuder 285400 Elizabeth H. Schwartz 203483 Amanda Scott 285403 Philip Scott 285404 Joan Scott 285405 Lydia Scott 207049 Martha Scott 285407 Rowena Scott 285409 V.A. Scott 282987 Vera Ellen Scott 205691 Doreen M. Seager 205664 Elizabeth Seagrim 285730 Ann Seamarks 285412 Monica Ann Sedgwick 227377 Sandra A. Sedgwick 226835 Christina Ann Seery 204636 Margaret M. Seery 209187 Sheila Selling 285416 Gabriele R. Semrau 285418 Betty I. Seviour 203564 Eileen Shanahan 204557 Cynthia Sharp Dawn Sharp 84986 Janet Sharp 249326 Sandra Marie Eileen Sharp 170983 Alison M. Sharpe 226872 Patricia Sharpe 307552 Ann P. Sharples 282915 Carol Ann Sharples 216321 Barbara Shaughnessy 203542 Blanche Shaw Helen Shaw 204552 Rosalind Shaw 239833 Susan J. Shaw 285425 Linda Sheedy 204635 Jane Sheehan 282988 Mary Sheehy 285427 Patricia Sheekley 285428 Sheila Sheldon 285430 Andrea Shelling 285434 Elaine Shepard 83479 Jennifer Shepherd 203519 Shirley Shepherd 203474 Mary Jacqueline Sheppard 209322 Dorothy E.A. Sheridan 285436 Janet Shields 207050 Esther Shifra 207960 Marquerite Alwyn Shorland 285437 E.N. Shorrock 285438 Anita Shurey 285439 Rita Sidaway 299260 Mary Elsie Sidebotham 282955 Nirmal Sikand 216334 Beverly Anne Silk 248266 June Sillitoe Mina Silvester 209178 Barbara Simkiss 226895 Anne M. Simmonds 285443 Susan Simmonds 208027 Lynn Simms 215447 Norma Simms 215443 Valerie Simms 282916 Angela Simpson 208026 Ann W. Simpson 285444 Lynn Simpson 285446 Moira Simpson 285448 Mary Ann Sinfield 285450 Anastasia Sinnott 203648 Penelope Skelbeck 285452 Christine Skelton Patricia Skidmore 285453 Beverly Skwira Anita D. Slater 204633 Diana Slater 285455 John Slater 285456 Gail S. Slater 295348 Gillian Slater 285457 Susan Slater 224831 Valerie K. Slayter 203659 Margaret Sleator 285459 June Small 216337 Marjorie Small 205702 Janice Smart 231509 Jean Smethurst 285462 Catherine Smid 287455 Charles J. Smid 287454 Ann J. Smith 203476 Barbara Smith 287456 Carole Ann Smith 285464 Christine Smith 203480 Christine A. Smith 204570 Cynthia Diane Smith 285465 Elizabeth Smith 285467 Frances M. Smith 207092 Glenis M. Smith 209211 Holly L. Smith 285469 Hyacinth Smith 203597 Jean Smith 210948 Josephine Martina Smith 285471 Joyce Smith 215465 June Smith 285473 Lucille Smith 208005 Mabel Iris Smith Margaret Smith 216319 Marilynn Smith 285474 Mary R. Smith 226864 Maureen Smith 216320 Norma Smith 203608 Patricia K. Smith 204632 Shirley A. Smith 285476 Thelma Smith 231493 Theresa Smith 207982 Wendy Smith 203490 Terrina Snelson 239842 Galina Solodchin 285477 Margaret J. Songhurst 285481 Mairi Sosna 285482 Marjorie P. Southan 207965 Leslie Southwell Ronald Southwell Mildred Ann Spain Andrea Spalding 204568 Elsa A. Spaull 204630 Alice Speid 285484 Eileen Spence 285486 Christine Torode Spencer 226876 Jeannette Spencer 205682 Susan E. Spencer 209360 Sylvia Spencer 285488 Clarinda M. Spinelli 287458 Patricia Squire 224832 Margaret R. Squirrell 285490 Catherine Stahan Joy Staley 285492 Caroline A. Stanbury 285494 Stephanie Standberg 287459 S.C. Stanford 208018 Frances Stanley 203676 Margaret R. Stanley 239861 Suzanne Stanley 209201 Laila Stansfield 142287 Daphne Startup 207094 Janette P. Stebbens 209207 Anneliese Stedeford 226887 Jacqueline Pamela Steele 226708 Mary Steele 285498 Marta Stefan 285500 Bernadette Mary Stephens 285501 Cristine M. Stevens 17476 Jacqueline Stevens 194934 Pamela M. Stevens 204550 Maureen Stevenson 234419 Jean Stirling 285506 Shireen Stoddart 285507 Charity Norton S. Stokes 223635 Barbara Margaretta Stone 285508 Laurie Stone Sheila Stone 285510 Debbie Stone Sheila Stoneman 285512 Mary Stovell 285514 Betty Clare Streator Sheila Strong 203633 Linda Stuchbury 285517 Karen Sturtivant 285516 Doreen Sullivan 285519 Justine Sullivan Regina Sullivan Valerie Sullivan 285521 Elizabeth Summerfield 203466 Diana M. Summers 239786 Joan Sumner 203530 Ellen Surlak 207052 Hansaben Surti 249664 Christine I. Sutcliffe 203535 Helene Louise Sutcliffe 285523 Maria Ann Sutherland Anne Sutton 226841 Georgia Sutton 85028 Mary Rose Swain 204573 Elaine Sweeney 224853 Greta Sweeney 226874 Susan Sweeney 285525 Carole Swingell 203660 Deborah Syme 287462 Lorraine Syme 285527 Evi Szakolcai 287464 Judith Taber 8595 Maureen Tabrett 285529 Alexandrina Taggart 239768 Jean Alice Tart 203558 Christine R. Taylor 203650 Elizabeth Taylor 285530 Jean Taylor 285532 Linda Taylor 187656 James Taylor 183998 Marilyn Taylor 285533 Ruth Maureen Taylor 285535 Susan Taylor Debbie Teague 102641 Susan Teece 285537 June C. Tetley 239788 Mary A. Thatcher 153218 Joan Yvonne Theriault 105067 Audrey Thomas 204601 Clara D. Thomas 22684 Dorothy Thomas 204627 Pamela M. Thomas 208029 Shirley Thomas Veronica Eileen Thomas 285539 Maureen S. Thomason 204624 Anne S. Thompson 249538 Beryl Thompson 285541 Claire M. Thompson Gaye Thompson 293998 Janis Thompson 285543 Jayne E. Thompson 209184 Linda Thompson Nora Thompson 153220 Molly Thorkildsen 270937 Pauline Thorne 204623 Janet Thornley 209332 Freda Thurgood 204587 Vivien Tierney 54010 Kay Tilbrook 216268 Mary Frances Till 285545 Susan Till 209333 Charlotte Timms 207053 Carole Tod 287468 Christine Tombs 239794 Susan Elizabeth Tomlin 285547 Susan Tongue Elizabeth M. Toomey 285549 Georgina Toon 239850 Margaret M. Torres 285551 Sarah Trainor 239815 S.C. Trendall 285555 Shirley P. Trimble 239819 Christine Trueman 239865 Glenda J. Truman 605813 Erica Tubb 285733 Esther Tuckley June A. Tudor 241353 Janet M. Tuffin 257763 B.M. Tunnicliff 285557 Mavis Turburfield 153284 Dorothy Ann Turner Irene S. Turner 231501 Jackie Turner 285503 Maureen Turner 285559 Doreen Twedell 207096 Susan B. Tye 149551 Mary B. Tyler 204620 Maureen A. Tyler 299236 Janet Underwood 205672 Jill M. Urwin 285561 Ann Vallantine 285563 Audrey Valunes Myra Jane Van Heck 142289 Beryl M. Vann 285565 Maria Vassiliou 285567 Annette Vaughan 209370 Gwendolyn Vaughan 285569 Julie Vaughan 285571 Dorothy E. Venn 285573 Suzanne Venus 285735 Jane Veress 285575 Joyce Vickers 285577 Patricia M. Viggers 208016 Rossana Villella 207098 Ann Vincent 209336 Janet June Vincent 203600 Nerelyn Virgo 215456 Jillian E. Vodden 299262 Christine Ann Voisey 285579 Dilys C. Vokes 204619 Susan Volman 249370 Rosemary Vukmanich 287470 Sheila Wadham 295874 Janice Wagoner Catherine A. Wain Maureen Wainman 204577 Joan M. Waite 209354 Elizabeth Waite 285581 Elizabeth Wake 285583 Patricia Waldie (Knowles) 184784 Barbara M. Waldron 205474 Janet Waldron 209350 Denise Mary Wales 285585 Angela Ann Walker 234007 Caroline J. Walker 205645 Linda S. Walker 216314 Marjorie Walker 234417 Mary Walker 207100 Pauline Walker 285587 Valerie Walker Patricia Wall 205662 Dawn Wallace Dorothy Wallace 285591 Sue Walliser 208930 Dorothy Lofthouse Walmsley 285593 Marlene Walmsley 208020 Mary Walmsley 285596 Harriot Walsh 282917 Kathleen B. Walsh 205635 Pauline Walsh 203672 Carole Ann Walton 203534 Veronica Warburton 285600 Ellen M. Ward 203671 Joylon Ward 209342 Julia Ward 18381 Margaret Ward 204618 Dawn Warfield 204561 J. Wark Barbara M. Warrilow 204615 Barbara Waterhouse 305472 Beryl Waterhouse 285602 Carol Ann Watkins 204616 Donna Watkins 285404 Margaret P. Watkins 203632 Angela Watson 285608 Gillian Dorothy Watson 67177 Kim Watson 299269 Linda M. Watson 285610 Maureen Watson 285611 Annette Williams 226871 Christine Williams 209192 Colleen Ann Williams Gaye Williams 153224 Jeannette Williams 181793 Judith Williams 248182 Mary Williams 207054 Rosalie Williams 3450 Susan I. Williams 204613 Sheila Willis 215440 Denise A. Willmore 204617 Jennifer Wills 285737 Alison J. Wilson 285637 Barbara Wilson 285639 Dr. Janet Wilson 295351 Janis Bell Wilson 285641 Kara Jane Wilson 285643 Louise Lorella Wilson 285644 Margaret Wilson 203510 Maria Wilson 285646 Marlene C. Wilson 153226 Mary Rose Wilson 285648 Phyllis Wilson 285649 Susan L. Wilson 285651 Sylvia Wilson 285653 Eileen Winant 285655 Joan Winder 285657 Janet Windibank 265607 Beatrice Gail Windsor Dale Francis Windsor Marlene Winfield 285661 Hazel M. Winter 285662 Hazel D. Winter 208009 Claire A. Wintertingham 285664 Florence Wisener 287476 Ann Withington Linda Wolstencroft 285667 Linda M. Wontor 7989 Carol Roma Wood 285671 Joan M. Wood 243661 Mary M. Wood Sandra Wood 226851 Barbara Woods 285673 Helen Woodward 285674 Hilary D. Woodward 240984 Jean M. Woollaston 239824 Joy Ann Workman 239797 Joy Lee Worle (Lee) 285028 Ellen Worlledge 285677 Carol A. Worrall 209321 Barbara Wright 205671 Patricia Wright 142290 Rosemary Wright 208012 Jackie Wyartt 203643 Audrey Wyatt 21068 Jennifer Wyatt 239826 Barbara Yates 209347 Vicki Barbara Yerby 276081 Sheona York 208004 Bernadette Young 605814 Diane K. Young 270978 Ingrid Young 216298 Jolene Young Leslie Young 285682 Jill B. Zagurskas 216279 Josephine Durkan 606285 Nancy Ewing 325934 Sarah Fleming 245549 Ellen Goldberg 292906 Margaret Elizabeth Haines 265591 Yvonne Hall 36894 Rosa Halperin Virginia Henry Serene Jenkinson 9392 Dorothy Lanier Shelley Irene Lane Joan Leithead Winifred Lewis 209155 Hilary Margaret MacDonald 226700 Sara MacLurg Barbara Malson 264744 Margo Mancusi Amy McLaughlin Khaleelah AbdulBadee 270695 David Adams 270819 Mary Ellen Adams 270820 Khadijah AliBey 171411 June F. Allen (Rusnak) 270734 Linda Diane Allen 19674 Theadora Averiett 152808 Laura J. Baldwin 270672 Sandra Ann Barcus 270818 Deborah Lynch Barton 189756 Pennicia Beasley 235592 Paula Kaye Bender 190653 Patricia Bevan 17578 Rebecca Ann Bishop 168927 Sherri Ann Blackford 18081 Alan C. Blake 270816 Beverly Jane Blake 270817 Celia Borack 270815 Robert Borack 270814 Linda Sue Branden 270714 Wilhemina Brinson 45805 Renee Brownlee 170570 Regina Butin 137344 Jeanette Cave 137805 Ronald Cerny 270811 Sandra Cerny 270812 Joyce Christopher 270699 Anthony J. Cirino 270717 Virginia Cirino 270716 Vicki Clifford 8660 Nancy Cobedesh 10437 Charlotte Coffee 270810 Mary J. Colaric 225183 Fannie Coleman 123393 Cynthia Ann Collier 270681 Melvin D. Collier 270680 Anita Cummings 151453 Ellen J. Curran 270723 Margaret F. Czarnitzki 270709 Alma Davis 270674 Bertha Davis 270683 Brent Davis 270673 Linda Sue Davis 6150 Shirlean Dean 129854 Kathryn M. DeChant 270694 Patricia Devereaux 319244 Ronald Orient Donatelli 270676 Virginia Donatelli 270677 Marquita Dotson 270696 Doris DoveLucas 270726 Gail Maury Draper 270668 Dean Duffey 270809 Susan Duffey 270808 Barbara Eccles 24447 Louise Echt 35557 Letha Naomi Elkins 37459 Ernest S. Ertel 270719 Linda Ertel 270718 Marilyn Feinberg 270725 Elva Ferguson 174987 Beverly Fisher 270712 James Fisher 270713 Sandra Foland 270669 Ruth FrameAdams 270665 L.C. FrameAdams 270688 Karen Frazier 85808 Claudio GalloGodoy 270806 Sheila GalloGodoy 270807 Barbara Galloway 270731 Melvin Galloway 270732 John P. Getker 189543 Susan Getker 189842 Barry Gibberman 270804 Nancy Gibberman 270805 Judy Goldstein 168393 Zenovy Golembiowsky 270803 Audria Golembiowsky 270802 Cynthia S. Goodwin 270690 Arthur Griffin 270801 Valeria K. Griffin 270800 Deborah Hanna 9012 Donna Harper 237965 Laura Healey 189603 Michael Healey 189602 Billie Lynn Hill 270692 Claudia Hill 27751 Charles Hitner 189604 Valdee D. Hitner 189605 Trina Holloway 270703 Felton Holloway 270704 Adeline Holt 270798 Ralph Davis Holt 270799 Judith Ann Hopkins 270797 Johnnie Howell 308685 Ruby Howell 270711 LaVerne Hunter 270796 Nelson Carver Hunter 270795 Joyce Hurst 270793 Thomas Hurst 270794 Carol Jacobs 301415 Edward Jakubs 270736 Linda Jean Jakubs 270735 Mamie Delores James 270671 Judy Jarzembak 181641 Ginny E. Johnson 189606 Daniel S. Jones 270708 Debra Jones 270670 Katrina Jones 270707 Donna Elaine Jordan 189609 Linda Kamandulis 270720 Michael A. Kamandulis 270721 Jo Ann L. Kellam 270740 Susan Kennedy 270792 Linda Kimbleton 270742 Henry Kimbleton 270743 Betty Ann Moore 270705 James Moore 270706 Marianne Moore 270739 Phyllis A. Morrison 289230 Shirley Mullins 194004 Pauline A. Newton 264311 Eva Nell Nicely 17297 Marilyn Nickerson 270684 Grace Noble 86994 Avonell Mays Norman 84217 Judith Oskowski 270679 Leonard Oskowski 270678 Renee Owens 270722 Sheryn Janette Perry 270702 Sandra Pertee 270663 Virgil Pertee 270662 Gail M. Peterson 270729 Gary G. Peterson 270730 Fannie L. Phillips 4175 Jefferica Poindexter 270667 Patricia Pollard 14719 Robert Powell 270775 Sharon Powell 270774 Gary W. Reece 270772 Judith Ann Reece 270773 Margaret G. Reid 129847 Marian Reid 270689 Jenny Reliford 270771 Sharon L. Richard 270697 Darlene J. Roach 69044 Judith L. Rosen 270727 Morton Rosen 270728 Novimbrino Angela Rumbeau 270733 Islene Runningdeer 189615 Robert Salsgiver 270770 Kathleen Salsgiver 270769 Jane Satchel 270698 Virginia Schulman 80722 Dennis Scott 189617 Jo Ann Scott 189983 Judith Anne Scott 189616 Norman D. Scott 189982 Linda Mae Searcy 192360 Jacqueline Shelton 218397 Dale Shockling 270767 Carolyn Shockling 270768 Yvonne Simpson 106628 Dora Ann Sipe 189993 Barbara Sizemore 173198 Catherine Teresa Smith 270826 Donald C. Smith 190106 Elizabeth A. Smith 270766 Helen A. Smith 190107 Wayne Smith 270825 Wanda Denise Stanton 190099 Barbara Strowder 270765 David Sturgeon 270764 Joann Lee Sturgeon 270763 Rayneen Tisovic 170896 Pamela Townley 198575 Cheryl Urszeni 270762 Steven Alexander Urszeni 270760 Steven Urszeni 270761 Harry Van Arsdale 270758 Patricia Lee Van Arsdale 270759 Kenneth Van Streader 270827 Patricia Ann Van Streader 270828 Johnny Waller 270790 Marcolina Waller 270821 Dona G. Ward 199342 Jo Anne Warren 270822 Jo Ann Whyte 270823 Doreen E. Williams 24157 Jeraldine Williams 297365 Staria Wims 270824 Bonnie Yappel 270831 Debbie L. Yates 25679 Nora Yisreal 270701 Janelle Yonley 270666 881766 Diane Pinard 7113 Dawn Gebo 7306 Sandra Cassier 7646 Patrick Cassier 7647 883604 Alexia Anderson 225182 Barbara Anderson 231938 Philip Anderson 268170 Paula C. Bannow 11228 John Bannow 271718 Diana R. Beard 10440 Robert Davis Beard 271192 Sherry Bergman 15385 Charles Bergman 271992 Marsha Brown 71237 Jeannette Bulinski 15584 Gregg Gundersen 272541 Wendy R. Busch 10864 Lillian Castillo 122920 Elizabeth Chamberlayne 48517 Carol Cooke 10446 Donna Cornelisse 15383 Denise Crowell 10865 Mike Crowell 271721 Jacki Dasso 10454 John Thompson 271720 Sharon Ebert 223890 Dennis Ebert 271532 Laura B. Emerson 16301 Gary S. Emerson 263135 Carol Evans 11339 Dennis S. Evans 271538 Melinda F. Evans 10448 Hawley Roger Evans 272532 Carla Magdanz Everett 15585 Barbara Ferguson 10862 Charles Ferguson 262197 Nancy C. Franz 15382 Roger A. Franz 258077 Julia Bloch Frey 163423 Janette S. Gamet McMahon 11344 George McMahon 272764 Mary C. Graham 15386 Ronald Graham 274584 Xenia Graves 11341 Cheryl A. Gruse 11334 Roberta Guildner 10501 Ava Hamilton 11343 Delmar Hamilton 262660 Delores M. Haro 228508 Lori Haugland 206197 Mary R. Hein 16655 William Hein 272766 Janet Heitzmann 10449 Mary Frances Hilko 243918 Lucy Judson 10444 Craig Alan Yeager 272765 Betty Kenzel 10443 Richard E. Kenzel 263118 Judy Kurtz 10452 Judith Lavezzi 6088 Susanne Leuthauser 11337 Truman Leuthauser 262311 Harriet Elizabeth Mann 223977 Sharon L. Mazotti 223979 Daniel Mazotti 268168 Sandra R. Merrill 10451 Roy R. Merrill 262312 Laurel Ruth Mifflin 255908 John Mifflin 273601 Nathan Mifflin 254594 Sandra D. Miller 11342 John K. Miller 268162 Peggy Morgan 11336 Barbara R. Nowak 10445 Mary Ann Perkins 10447 Russell Perkins 263117 Ravonda L. Potter 10450 Roger Jay Potter 271533 Kathy Quinton 16300 Judith Anne Ramsay 10442 Charles E. Ramsay 271723 Pamela S. Reiter 11340 Peter Reiter 274587 Ella Ruth Rogers 9295 Elaine Rogers 16298 Donis Rogers 265558 Christine Seiffert 171920 Stefanie Selden 9271 Judy Sheppard 25992 M. Lee Sheppard 268166 Jessica A. Simkulet 11335 Janet Singletary 16654 Roger Singletary 268167 Evelyn M. Snyder 16302 Andrew Snyder 15387 Marcia Steel 16303 Mary Stewart 15387 Charles D. Stewart 265520 Karon Tiger 234904 Thelma L. Tilman 236252 Durcille Trolinger 206281 Jo Susan Verspohl 13063 Ronald Verspohl 272554 Carol J. Waltz 16299 Ronald F. Waltz 268165 Kathleen A. Watson 199542 Larry Watson 291814 Abby Weinstein 166871 Barry Weinstein 258076 Diane West 10408 Martha Whitehead 199551 Marlyin Wilson 25436 Vicki Woodard 10441 Tom George 171536 Deirdre J. Zietz 15384 Leonard E. Zietz 260920 Rebecca L. Adair 239633 Gary A. Adair 239634 Sharon C. Angel 145182 Gene R. Angel 304529 Katharine K. Beattie 106539 Fareda E. Belcher 239629 Floyd Belcher 106540 Linda M. Black 239635 William R. Black 239636 Mary A. Bonner 37245 Robert I. Bonner 239637 Johnsie C. Brown 117778 Joseph T. Brown, Jr. 326617 Vicki L. Brown 106541 Randy L. Brown 106542 Juanita L. Brown 106543 Shirley Mae Burroughs 106550 Robert Burroughs 106551 Beverley Davisson 106544 William A. Davisson 106545 Jason W. Davisson 106546 Debra G. Dean 12776 Mary Ann Evertson 106547 Robert W. Evertson 106548 Sandra L. Flynn 106549 Joyce Frieders 106569 Charles D. Frieders 106570 Patricia Graber 269036 Patricia J. Heuseveldt 239639 Ronald W. Heuseveldt 239640 Heather Hull 106571 Kenneth L. Hull 106572 Patty E. Hutton 106553 Leon D. Hutton 106554 Amy Marie Hutton 106552 Charlotte S. James 269035 Kay M. Kincade 243662 Paul W. Kincade 243663 Bonlyn G. Qulick 251829 Anna Louise Luhman 106555 Kersten Males 106575 William Males 106576 Roberta C. Martin 106573 Keith A. Martin 106574 Sarah E. McLeod Kirk 106556 David C. McInnis 106557 Billie Rae Mercer 106558 Sandra J. Mertens 106559 Ronald G. Mertens 106560 Kay Diane Milligan 6205 William D. Milligan 6206 Betsy A. Munson 106577 Judith A. Nichols 106561 James R. Nichols 106562 Kathleen K. Pope 106578 Rita M. Raaf 106579 Richard D. Raaf 106580 Courtney L. Raaf 106581 Elizabeth W. Rinehart 239641 Richard R. Rinehart 239642 Gaylene P. Schommer 106563 John W. Schommer 106564 Rachel H. Scott 106565 David L. Scott 106566 Janet L. Scott 106582 Janice A. Sell 239643 Steven K. Sell 239644 Fay Annetta Smith 106583 Rhonda J. Smith 212510 Peggy A. Sneegas 239645 Roger A. Sneegas 239646 Rebecca J. Stafford 297307 Sonja G. Sweek 106584 Nancy J. Taylor 106567 Mary Ann Thomas 106585 Steven J. Thomas 106586 Elizabeth E. Tomaszewicz 239648 George R. Tomaszewicz 239649 Patricia Ann Tronsgard 106568 Catherine L. Wood 239630 Joda D. Wright 239631
These figures are taken from the opinion in In re A.H. Robins Co., Inc., 89 B.R. 555, 557 (E.D.Va.1988)
There appears to have been considerable recruiting of claimants by attorneys. In one case, the recruiting prompted a proceeding under the Ohio Code of Professional Responsibility. The attorney had successfully secured 106 claims through his advertising. For the Supreme Court decision on the practice, see Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985)
See In re Northern District of California "Dalkon Shield" IUD Products Liability Litigation, 526 F.Supp. 887 (N.D.Cal.1981), vacated, 693 F.2d 847 (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983)
This sentence suggests that settlement was the method by which these mass torts should be solved. It indicated that a few trials might provide a basis for such settlement. At the time there had been a score of verdicts in Dalkon Shield litigation. This basis for settlement was present. But was the court suggesting a class certification for settlement purposes? The opinion is unclear. We discuss this point later on in this opinion
McDonnell Douglas held (1) that "[n]one of these subdivisions, [of (b)(1)(A), (b)(1)(B) or (b)(2) ] permits certifications of a class whose members have independent tort claims arising out of the same occurrence and whose representatives assert only liability for damages," and (2) the " 'incompatible standards of conduct' of subdivision (b)(1)(A) must be interpreted to be incompatible standards of conduct required of the defendant in fulfilling judgments in separate actions" and "a judgment that defendants were liable to one plaintiff would not require action inconsistent with a judgment that they were not liable to another plaintiff" did not satisfy this standard
Both of these rules, the first of which is stated at page 1085, 523 F.2d, and the second at page 1086, are premised in La Mar, supra, in which the court had said it had to depart from the "flexible" language of the Rule itself and to fashion its own set of principles that would render the Rule inapplicable to damage suits. As we shall see, the "trend of the decisions" is contrary to this limiting construction of the Rule as stated in La Mar and McDonnell Douglas. See School Asbestos Litigation, 789 F.2d 996, 1009 (3d Cir.1986). We discuss these cases in more detail later herein.
As we see later, several courts consider this the real basis for the court of appeal's decision. In Agent Orange, 100 F.R.D. 718, 726 (E.D.N.Y.1983), Judge Weinstein said: "The Court's decision [in In re Dalkon Shield, 693 F.2d 847] was based largely on the fact that no plaintiff or defendant supported certification."
In re Temple, 851 F.2d 1269, 1273, n. 7 (11th Cir.1988), the court construed In re Dalkon Shield as approving class action certification of "mass torts" situations, though not of "products liability" actions. Thus Temple states: "[s]ome courts have noted that mass torts caused by a single transaction, i.e., a plane crash, might be proper subject of a class action. In re Dalkon Shield, 693 F.2d at 853," impliedly finding that a products liability case was not proper. The reason assigned by In re Dalkon Shield for its distinction between the mass torts and products liability suit in this regard was that in the mass torts "the cause of the common disaster is the same for each of the plaintiffs"; whereas in the products liability action, "individual issues may outnumber common issues. No single happening or accident occurs to cause similar types of physical harm or property damage." 693 F.2d at 853. This distinction, however, is not applicable to this case. The defectiveness of the Dalkon Shield is the issue of causation in every Dalkon Shield case, just as the crash of the plane is the common cause in the mass torts action construed by the Court.
The District Court had found a "limited fund" where recovery of punitive damages in one case carried the risk of prejudicing the rights of other claimants to recover punitive damages on two facts primarily: "(1) At the time there were 1,573 suits involving claims for compensatory damages of "well over $500 million", and (2) [t]he potential for the constructive bankruptcy of A.H. Robins, a company whose net worth is $280,394,000, raised the unconscionable possibility that large numbers of plaintiffs who are not first in line at the courthouse door will be deprived of a practical means of redress." In In re Northern District of Cal, Dalkon Shield IUD Products Liability Litigation, 521 F.Supp. 1188, 1191 (N.D.Cal.1981). As we note later, the idea that one seeking class certification under the limited fund doctrine must prove the inadequacy of the fund to be "inescapable" has been repudiated in other decisions. See In re Bendectin Products Liability Litigation, 749 F.2d 300, 306 (6th Cir.1984), later discussed with extensive citation of other precedents
It is interesting that at this early stage, counsel contemplated disposing of individual issues of causation and damages through a "dispute resolution" mechanism, the same procedure established in the Robins Plan of Reorganization and the Breland settlement, which we later discuss
In re A.H. Robins Co., Inc., 89 B.R. 555, 557 (E.D.Va.1988)
It was represented to this Court, without contradiction, that 144 of like cases had been filed against Aetna. Motions for dismissal were made in all of them by Aetna. Forty of the motions had been heard. Four had been voluntarily dismissed, and in the remaining 36, the trial court had granted the motion to dismiss, and that dismissal had not been appealed
It would seem that Aetna had paid already the full limits of its policy ($300 million), and Robins had paid over $200 million of its own funds in settlement of judgments or compromise. This explains why Robins had to advance the appeal bond in the last Kansas suit in which a $9 million deposit of bond was required (we referred earlier to this fact)
The process of estimation under the Bankruptcy Code is accurately explained in the Note, The Manville Bankruptcy: Treating Mass Tort Claims in Chapter 11 Proceedings, 96 Harv.L.Rev. 1121 at 1128-29 and 1132-33 (1983):
The liquidation of contingent claims is governed by the estimation provision of the Bankruptcy Code, section 502(c). The term "estimation" is misleading insofar as it suggests a mere guess or a lack of procedure; estimation in bankruptcy can be a full adjudication. Normally, the process of estimating individual claims is carried out before the bankruptcy judge. The unusual nature of the Manville case, however, may permit the bankruptcy court to read section 502(c) in a way that would allow it to lift the automatic stay on outside litigation and leave the estimation of individual asbestos claims to other courts, as long as the bankruptcy court estimated Manville's total asbestos-related liability, placed a limit on that liability, and established a compensation fund for recovery by present and future asbestos claimants.
Under this reading, the bankruptcy court would estimate Manville's total liability by statistical means. It could employ epidemiological studies to determine the future incidence of asbestos-related disease, and then study the data from the 3500 claims against Manville that have already reached judgment or settlement to determine the average cost of each claim. The estimation of Manville's aggregate liability, a process entirely distinct from the estimation of individual claims, would not directly determine the recovery rights of any individual.
* * *
The historical background and policy of section 502(c) support a reading that would permit the bankruptcy court to estimate only the aggregate of claims. The old Bankruptcy Act permitted courts to decline to allow claims "not capable of liquidation or of reasonable estimation" or whose liquidation or estimation "would unduly delay the administration of the estate or any proceeding under this Act." The new requirement that the court estimate all claims is one of many reforms in the Bankruptcy Code that are intended to implement the Code's broad policy of affording the debtor the most complete relief and the freshest start feasible by disposing of all possible claims during the bankruptcy proceeding. Congress wished to eliminate the possibility that after the completion of reorganization the debtor would still be faced with the uncertainty of contingent debts that could ruin the financial stability achieved in the reorganization proceedings. Congress' goals would be achieved equally well by assigning a dollar value to the whole of the asbestos plaintiffs' claims as by assigning a dollar value to each individual claim. In either case, Manville would exit from the reorganization certain of all of its liabilities and able to carry on its business without the fear that pending or future asbestos-related claims would endanger its financial condition. (Italics added).
For other discussion of the estimation process under 502(c), see 3 Collier on Bankruptcy, p 502.03, pp. 502-71 to 503-75 (15th ed. 1979) and Kaufman, Procedures for Estimating Contingent or Unliquidated Claims in Bankruptcy, 35 Stan.L.Rev. 153 (1982).
In the majority of the states, especially in those states where the Uniform Contribution Among Tortfeasors Act has been adopted, the laws provide for contribution so that all tortfeasors are required to pay their fair share of the damages recovered. See, e.g., Rabatin v. Columbus Lines, Inc., 790 F.2d 22, 25-26 (3d Cir.1986); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1140-41 (5th Cir.1985); Greyhound Lines, Inc. v. Cobb County, Ga., 681 F.2d 1327 (11th Cir.1982); Raisler v. Burlington Northern Ry. Co., 219 Mont. 254, 717 P.2d 535 (1985); Rowland v. Skaggs Companies, Inc., 666 S.W.2d 770 (Mo.1984) (en banc ); Sitzes v. Anchor Motor Freight, Inc., 169 W.Va. 698, 289 S.E.2d 679 (1982); Petersen v. Tolstow, 184 N.J.Super. 84, 445 A.2d 84 (1982); Schauer v. Joyce, 54 N.Y.2d 1, 444 N.Y.S.2d 564, 429 N.E.2d 83 (1981); Blackledge v. Harrington, 291 Or. 691, 634 P.2d 243 (1981). This rule regarding contribution can apply even where the liability of the parties rests on different grounds. Monsen v. DeGroot, 130 Ill.App.3d 735, 86 Ill.Dec. 199, 475 N.E.2d 5 (1985), aff'd, Hopkins v. Powers, 113 Ill.2d 206, 100 Ill.Dec. 579, 497 N.E.2d 757 (1986); Florida Farm Bureau Cas. Co. v. Batton, 444 So.2d 1128 (Fla. Dist. Ct.App.1984); Wolfe v. Ford Motor Co., 386 Mass. 95, 434 N.E.2d 1008 (1982). Moreover, the provision for contribution can arise whether the other tortfeasor is sued or not. Greenemeier by Redington v. Spencer, 694 P.2d 850 (Colo.Ct.App.1984), aff'd, 719 P.2d 710 (Colo.1986) (en banc )
A dwindling minority of jurisdictions does, however, continue to deny contribution among joint tortfeasors. See, e.g., Gray v. City of Kansas City, Kan., 603 F.Supp. 872 (D.Kan.1985); Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). Even of this limited number, however, some states have, by statutes recently enacted, legislated contribution. See, e.g., Holcomb v. Holcomb, 70 N.C.App. 471, 320 S.E.2d 12 (1984); Jaswell Drill Corp. v. General Motors Corp., 129 N.H. 341, 529 A.2d 875 (1987). This legislation can further complicate actions for contribution. Ordinarily, the substantive right of contribution is determined by the law at the time of the tort and not by the time suit may be filed; in short, if right of contribution is created by statute, the right is normally prospective and does not apply to torts which occurred earlier. Korn v. G.D. Searle & Co., 81 B.R. 1 (D.N.H.1987); Glass v. Stahl Specialty Co., 97 Wash.2d 880, 652 P.2d 948 (1982). We note, too, that there may be many claims which under Claims Resolution Facility procedure may elect to have a trial, the venue of which may not be in the courts of Virginia. In these cases, the appropriate law of contribution or apportionment will be determined by the rule in the state in which such cases would be tried. There would accordingly be a real risk of conflicting decisions on apportionment and contribution. Fortunately, the Settlement in this case and the Plan of Reorganization in the Robins Chapter 11 proceedings, if approved, remove this issue as a problem.
There were to be some minimal contributions by several individuals who were officers and directors of Robins. These individuals were to be included in the settlement
On punitive as distinguished from compensatory damages, the Plan of Reorganization provided that
any portion of any Dalkon Shield Claim that is a Claim for punitive damages is a Disallowed Claim; provided, however, that holders of Dalkon Shield Claims subject to the Claims Resolution Facility are entitled to receive from the Claimants Trust any sums payable in lieu of punitive damages pursuant to the Claims Resolution Facility.
Article VII, 7.02(a)(iv), Exhibit Vol. III, p. 1920.
The argument disregards Aetna's contention that jurisdiction exists under Section 1334(b) and Section 105 of the Bankruptcy Code. We, however, find no need to address these alternative grounds for jurisdiction since we are of the opinion that jurisdiction properly attaches under Section 1332
This was the jurisdictional amount when the suits were filed
This decision was modified on a point unrelated to that which is relevant here. 100 F.R.D. 336 (D.Mass.1983)
The last portion of this sentence is a literal application of Zahn, which did not order the dismissal of the action in that case on jurisdictional grounds, but ordered only the dismissal of those class members who did not meet the jurisdictional amount
Seltzer, Punitive Damages in Mass Tort Litigation: Addressing The Problems of Fairness, Efficiency and Control, 52 Fordham L.Rev. 37, 37-38 (1983)
Sand, How Much Is Enough? Observations in Light of the Agent Orange Settlement, 9 Harv.Envtl.L.Rev. 283, 297-98 (1985)
This suit was reversed on grounds later discussed herein. 749 F.2d 300 (6th Cir.1984). The graphic description by Judge Rubin of the tremendous cost to the judicial system of the mass tort suits, tried separately, is not disputed, however
Smith v. Swormstedt, supra, 57 U.S. (16 How.) 288, 14 L.Ed. 942 (1853)
3B Moore's Federal Practice, p 23.31, pp. 236-237 (2d ed. 1987)
It is manifest in the language of the case that the court recognized that the language of the Rule itself provided a "flexible" standard, which could respond to changing conditions in the litigation area
This departure by some courts from the earlier liberal application of Rule 23 has been well described in 7A C. Wright, A. Miller & M. Kane, supra, Sec. 1754 at 52-54:
The years since amended Rule 23 took effect have revealed that the notion that the courts should adopt a liberal attitude toward the certification of class actions has undergone some change. As problems in managing class actions began to surface, the courts began to construe the requirements of Rule 23 more strictly in order to reduce the number of class actions (citing La Mar v. H & B Novelty & Loan Company, as an example).
Much of this restrictive attitude can be traced to mounting criticisms lodged at class actions. Unfortunately, much of that criticism was made without any information supporting it. Thus, various empirical studies were undertaken in order to better evaluate both the successes and failures of current Rule 23. Somewhat interestingly, one study, carried out for the United States Senate Commerce Committee revealed that many of the claimed abuses and problems caused by class actions for damages actually occur in only a small percentage of the cases.
Class actions now appear to be moving into a third and more enlightened stage in which the courts, aware of the difficulties inherent in class relief, carefully scrutinize the cases for compliance with the requirements of Rule 23; they are not content merely to certify an action as a proper class suit and then suggest that all the problems raised by the parties may be adjusted or handled at a later stage. At the same time, however, the requirements are construed in light of the objectives of the rule--to provide for the expeditious handling of disputes and to allow a remedy for those for whom it would be unrealistic to expect to resort to individual litigation.
Newberg on Class Actions has properly criticized this limitation:
Some courts have gone further and have held that Rule 23(b)(1)(A) was not designed to encompass class suits that seek damages relief. Such a limitation not only is unsupported in the language of the subdivision but also is contrary to the prevailing precedents which construe the various class categories of Rule 23(b). This construction of Rule 23(b)(1)(A) has been generally rejected or not followed by prevailing precedents. Moreover, cases in which the plaintiffs are seeking recovery from a limited fund readily qualify under Rule 23(b)(1)(B) and commonly qualify also under Rule 23(b)(1)(A).
Newberg on Class Actions, Section 4.04, pp. 276-77
We have in two earlier cases taken note of this limitation in the use of Rule 23, but we have never based our decision in any case on such limitation. Thus, in Lukenas v. Bryce's Mountain Resort, Inc., 538 F.2d 594 (4th Cir.1976), we were only concerned with whether a damage suit could qualify under (b)(2), which relates to declaratory or injunctive action. We, however, expressly chose not to decide the case on that point. See, 538 F.2d at 596. In Zimmerman v. Bell, 800 F.2d at 389, we said that Rule 23 is "not normally posed by a request for money damages." This was merely a dictum without actual relevance to the decision in that case.
Newberg on Class Actions also comments on this limitation:
The most commonly used and accepted limitation on Rule 23(b)(1)(A) is that this subdivision was not designed to cover class situations where some members recover and others do not. The rationale is that such application of Rule 23(b)(1)(A) would be too broad. Because they speak in terms of recovery for members, presumably these decisions are referring to damages or monetary recovery, though injunctive and equitable relief can be part of a class member's recovery in a broad sense. In any event, carried to its logical end, this articulated limitation could conceivably be construed as precluding the application of Rule 23(b)(1)(A) in virtually every situation. More likely, courts invoking this limitation are saying that if Rule 23(b)(1)(A) is properly going to be applicable, there must be present some discrete, usually inarticulated, circumstances, but the court will not invoke this subdivision simply because separate actions may reach different results which will affect the right of individual litigants to recover.
Newberg on Class Actions, Section 4.04, pp. 276-77
See also 96 Harv.L.Rev., supra, at 1154-55 criticizing the placing of this construction on the use of (b)(1)(A):
Two goals of tort law should be predictability and uniformity. As a practical matter, until the legality of a particular course of conduct has been adjudicated, potential defendants are guided only by a general standard, such as "reasonable conduct," and by analogous cases decided under that standard. What may appear to be inconsistent adjudications in similar situations can generally be rationalized because of differences in the facts. But if various fact finders reach inconsistent conclusions about the same set of facts, the defendant (and others in similar circumstances) is left without any guidance concerning the legality of its conduct, which may serve important legitimate aims. To be sure, the loss of guidance may be less problematic than being ordered by two courts to perform simultaneous conflicting tasks. But defendants and plaintiffs alike have compelling interests in consistent liability determinations, interests that can and should be addressed. Therefore, certifying (b)(1)(A) classes to promote these interests, even in cases in which there is no danger of conflicting equitable decrees, is fully compatible with the language and policy of the rule.
See also the Court's comments In Re School Asbestos Litigation, 789 F.2d 996 (3d Cir.1986), where the Court commented that the inconsistency in verdicts in a mass tort context made litigation look "more like roulette than jurisprudence," Ibid. at 1001 n. 3, and "[t]he asbestos litigation [in particular] often resembles the casinos 60 miles east of Philadelphia, rather than a courtroom procedure." Ibid. at 1001.
3 Newberg on Class Actions, Sec. 17.06, p. 373 (2d ed. 1980)
Mr. Newberg is a counsel for the appellees in this proceeding, but it would seem his discussion, as quoted here, preceded his connection with this case
The reason for singling out appellate courts for criticism in this regard is that District Courts which are more intimately involved in mass tort litigation and the problems caused by such suits for court management and administration have shown a much greater willingness to utilize the class action device in this context than courts of appeals
Later, Professor Mullenix offers an olive branch to the courts by absolving them of any "fault" and in assigning the fault to Rule 23 itself. Thus she wrote:
Clearly, the fault lies not in the courts or commentators, but in the requirements of Rule 23. Assuming, as many jurists and commentators agree, that the class action mechanism is superior to any other currently available method for adjudicating mass-tort claims, then either Rule 23 should be retailored to the mass-tort case, or Congress should enact a federal procedure act designed to accommodate the special problems of contemporary mass-tort litigation. 64 Tex.L.Rev. at 1043-44 (footnotes omitted).
This comment is somewhat contradictory of the author's earlier statement in which she concluded the fault lay in the persistence of the circuit courts "in construing narrowly the Rule 23 class action procedure."
This summary of the District Court's conclusion is taken from the Court of Appeals' opinion on appeal of the District Court's opinion
Ibid. There was a settlement had in the case after certification
It disapproved a (b)(2) certification
See the recent San Juan mass accident case, which has as its basis a settlement, as set forth later in note 40 at page 743
On page 4 of their brief in this court, the appellants, after referring to this "limited fund" claim in the complaint, stated: "We are not concerned here with that matter."
See Panzer & Patton, supra, 21 Tort & Ins. Journal at 561
It seems that in a number of mass accident cases, the courts have recently followed much the procedure suggested in the district court opinions in Bendectin and Skywalk II and as recommended earlier by C. Wright, A. Miller & M. Kane, supra
Thus, an AP report published in New York Times on May 12, 1989, p. 8, reported the acceptance in the San Juan hotel fire case by the federal judge in charge of the negotiations of a settlement therein involving 2,300 plaintiffs seeking damages in 264 separate suits against 230 defendants with an ad damnum clause totaling $1.8 billion in damages. The federal judge sustaining the settlement, Judge Bechtle of the Eastern District of Pennsylvania, had been appointed to handle the cases by Chief Justice Rehnquist, according to the AP article. The article stated that the judge had "accepted a plan to pay up to $100 million to settle hundreds of law suits stemming from the fire at the Dupont Plaza Hotel on New Year's Eve, 1986, that killed 97 people." The court explained that the agreement of settlement "was binding on all parties if certain conditions that were not specified were met" but one of plaintiffs' counsel said that the conditions "generally dealt with deadlines for the defendants to pay their share of the settlement." It will be observed that the plan of settlement arrived at an overall award, which was then to be awarded among the plaintiffs. Similarly, it would seem the amount of the award was determined by the weight--or, more appropriately lack of weight--of the plaintiffs' case against the named defendants. Three members of the International Brotherhood of Teamsters had been "convicted of murder in 1987 for setting the fire," which had caused the accident. The liability of the defendants who had no connection with the claim or the three parties was, as is Aetna's liability as a tortfeasor in this case, tenuous, thus the limited amount of the settlement by those parties. Further, all the claimants were subjected to the class settlement, making the settlement in the nature of a mandatory class certification.
The same article states that Judge Bechtle "had presided in a similar case involving the 1980 fire at the MGM Grand Hotel in Las Vegas that killed 54 people. The settlement in that case was $200 million.
It is manifest from this that the courts have already begun to follow the procedure suggested in 7B C. Wright, A. Miller & M. Kane at Sec. 1784, discussed previously herein, in the mass accident case. There is no logical reason for not using it also in the mass tort product case.
An earlier news article indicated that this procedure has also awakened consideration at the legislative level. Thus in the New York Times for August 7, 1984, Section D, page 2, column 1, it is said:
There has been a lot of talk in Congress and even a little action--about unclogging the courts by setting up some sort of out-of-court claims-handling facility to resolve product liability problems involving substances that have injured hundreds, or thousands, of people.
Much of the Congressional concern was prompted by the more than 20,000 asbestos-related lawsuits now swamping the courts. In both the House and the Senate, legislation has been introduced to take those cases out of the courts and instead handle them through a fund offering fixed payments for different levels of injury. Those proposals are stalled, but there is some movement on separate legislation that would create an out-of-court mechanism to compensate people injured by toxic substances.
It may be suggested that there must be some negotiation between the Trust or its designated Resolution Facility and the claimant before an offer is made by the Trust in settlement of the claim. It is after this that the right accrues to a resolution of the claim by either arbitration or a jury trial at the option of the claimant. Such minimal delay in the right to settle a claim by arbitration or trial does not implicate due process rights. The negotiations have no binding effect and may not be considered in a jury trial if the claimant elects to utilize such method of settling her claim. The delay in this case is much less than that required under the medical malpractice legislation, which has recently been enacted in many states under which medical malpractice claims must be submitted to a medical panel before suit. These have been found constitutionally valid in Davison v. Sinai Hospital of Baltimore, Inc., 617 F.2d 361 (4th Cir.1980); see also Woods v. Holy Cross Hospital, 591 F.2d 1164 (5th Cir.1979)
On remand, the district court refused to grant Raymark's motion to certify a mandatory plaintiff class pursuant to Rule 23(b)(1)(B). Waldron v. Raymark Indus., Inc., 124 F.R.D. 235, 236 (N.D.Ga.1989). The district court added: "Although this court would like to see a mechanism by which asbestos victims would be fairly and promptly compensated, this court, regretfully, concludes that the law does not allow a class action pursuant to Rule 23(b)(1)(B) to be that mechanism." Ibid. at 239
We would note that in Waldron, the court refused to approve certification of a mandatory plaintiff class for purposes of the Rule 23(b)(1)(B) "limited fund" class action certification. Thus, Waldron is entirely different from, and has no application to, the certification of the present class under Rule 23(b)(1)(A).
Judge Spencer Williams in Mass Tort Class Actions: Going, Going, Gone?, 98 F.R.D. 323 (1984), has well answered the argument that class certification must yield to the right of the individual plaintiff to control his or her case. He wrote:
With surprising regularity, the primary opponents of class treatment of mass tort litigation are the plaintiffs' lawyers. These lawyers argue that the class action device was intended for situations when individual litigants would be incapable or unlikely to bring their own suit, due either to difficulties or expense of proof or the insubstantiality of the potential recovery on individual claims. Of course, this argument is totally specious; the critics' stake obvious. Every member of a federal class certified under Rule 23 must have a claim for recovery in excess of $10,000,00. Moreover, such an interpretation ignores the primary justification offered by Rule 23's drafters i.e., that the class action device was intended to foster judicial economy and efficiency. In fact, litigants are often deprived of this so-called "right" to control their own case by many of life's, as well as the law's harsher realities. 98 F.R.D. at 329-30 (footnotes omitted).
He added, by way of a note, this newspaper item:
Almost everyone who has had contact with plaintiffs of tort litigation at the trial court level would admit that, ultimately, everyone and everything but the injured plaintiff controls the litigation. See, e.g., Chen, Product Safety, Liability Suits: Few Guidelines, L.A. Times, October 6, 1982, pp. 19, 26-27. 98 F.R.D. at 33 n. 23.
There is another reason for a mandatory certification herein as opposed to one under (b)(3). There is a settlement in this case; that settlement binds all members of the class. It does not mean, though, that any dissatisfied claimant cannot have a jury trial on her claim: she has a right of election either to arbitrate or to have a jury trial on her claim. Every claimant has all the rights she can expect of the judicial system, even if the certification were under (b)(3) and not under (b)(1)(A)
The failure of the appellants to contest the adequacy of the estimation on the basis of which the Plan of Reorganization was premised is understandable. After all, in 1981 in the Dalkon Shield litigation in 521 F.Supp. at 1191 the value of Robins was said to be approximately $280,394,000; Robins, however, under the Plan is paying $2.475 billion to the Dalkon Shield claimants, quite an increase (almost ten times) from the earlier figure of $280 million arrived at in 1981
As an aside, it should be borne in mind that Aetna is obligated to pay the class counsel. Thus, the fund available to the claimants will not be diminished by attorneys' fees for the class representatives' counsel
In this regard, it is important to review again the investigation conducted under Judge Lord's direction into the matter of Aetna's liability. That Judge Lord was concerned with the question of Aetna's possible liability is manifested by his order as reported in Dean v. A.H. Robins Co., Inc., 101 F.R.D. 21, 26 (D.Minn.1984). The authorized discovery extended specifically to the relations of Aetna and Robins in regard to the issues in this case. Thus, the court's order required discovery of, among other items, their documents, records, and memoranda:
G. All correspondence, memoranda or other documents received or prepared by A.H. Robins or its representatives concerning the underwriting (purchase, cancellation, termination or analysis of past or future claims or premiums) applicable to the insurance or self-insurance of Dalkon Shield claims;
H. All correspondence, memoranda or other documents received or propounded by A.H. Robins or its representatives concerning either partial or complete denials of coverage (or reservations of rights to deny coverage) by Aetna Casualty and Surety Company concerning Dalkon Shield claims;
I. All correspondence, memoranda or other documents exchanged between Aetna and A.H. Robins concerning the safety or characteristics of the Dalkon Shield, the warning of Dalkon Shield hazards, dangers of defects or the recall of the Dalkon Shield at any level of distribution;
J. All opinions, tests, examinations or studies regarding the safety of the Dalkon Shield and authored by experts or consultants retained in any of the individual lawsuits initiated against the Robins Company for the period June 1, 1974 to the present.
It is thus plain that Judge Lord and the Masters appointed by him did inquire into and investigate the strength of the Dalkon Shield claimants' case.