OpenJurist

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,
Fourth Circuit.

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:

1

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.

2

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:

3

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.

4

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

5

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.

6

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.

7

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.

8

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.

II.

9

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:

10

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.

11

407 N.Y.S. at 201.

12

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.

13

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).

14

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:

15

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.

16

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

17

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.

18

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.

III.

19

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.

IV.

20

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.

21

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.

22

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).

23

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

V.

24

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.

VI.

25

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.

VII.

26

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.

27

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.

28

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:

29

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.

30

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."

31

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

32

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.

33

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."

VIII.

34

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."

35

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."

36

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:

37

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.

38

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.

IX.

39

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.

40

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.

X.

41

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.

42

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.

43

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.

44

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.

XI.

45

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.

46

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.

XII.

47

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.

48

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

49

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

50

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.

51

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).

52

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:

53

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.

54

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.

XIII.

55

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.

56

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:

57

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

58

The Note, Class Certification in Mass Accident Cases under Rule 23(b)(1), 96 Harv.L.Rev. 1143 (1983), is to the same effect:

59

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)

60

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

61

Judge Rubin of the Fifth Circuit, in an article titled Mass Torts and Litigation Disasters, 20 Ga.L.Rev. 429, 430 (1986) has said:

62

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.

63

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:

64

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.

65

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.

66

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:

67

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?

68

Panzer & Patton, Utilizing the Class Action Device in Mass Tort Litigation, 21 Tort & Insurance Law Journal, 560, 561 (1986).

69

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:

70

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].

71

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.

XIV.

72

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.

73

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:

74

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

75

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).

XV.

76

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

77

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):

78

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.

79

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

80

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:

81

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.

82

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.

83

[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

84

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

85

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....

86

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.

87

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.

88

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.

89

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):

90

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

91

[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.

92

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.

93

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):

94

Several commentators have decried the courts' narrow approach to the Rule, arguing it should be interpreted more broadly to achieve unitary adjudication.

95

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.

96

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:

97

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.

98

....

99

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.

100

....

101

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).

102

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:

103

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.

104

....

105

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....

106

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).

107

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:

108

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).

109

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:

110

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.

111

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.

112

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:

113

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).

114

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.

115

After expressing agreement with the reasoning in Jenkins, the court in School Asbestos further commented:

116

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.

117

Finally, in upholding the (b)(3) certification, the Court concluded its opinion with this statement:

118

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.

119

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:

120

... 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

121

It accordingly certified the case on all issues other than punitive damages under (b)(3)36 and on punitive damages under (b)(1)(B).

122

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

123

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.

124

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.

125

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:

126

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.

127

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.

128

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.

XVI.

129

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:

130

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.

131

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

132

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.

133

Transgrud, Joinder Alternatives in Mass Tort Litigation, 70 Cornell L.Rev. 779, 835 (1985).

134

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):

135

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.

136

Similarly, in In re School Asbestos Litigation, 789 F.2d at 1009, the Court said:

137

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.

138

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:

139

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.

140

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.

141

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:

142

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

143

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:

144

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.

145

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).

146

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.

XVII.

147

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.

148

We accordingly now turn to an attempt to apply these lessons to the facts of this case.

XVIII.

149

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

150

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.

151

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:

152

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

153

The writer in 96 Harvard Law Review at 1154, 1155 commented in the same vein:

154

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].

155

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.

156

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.

157

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.

158

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.

159

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).

160

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).

161

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.

162

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

163

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.

164

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

165

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.

166

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).

167

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.

168

We turn now to consider the appeal from the order of the District Court approving the settlement herein.

XIX.

169

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

170

[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.

171

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.

172

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.

173

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.

174

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.

175

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.

176

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.

177

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.")

178

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).

179

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.

180

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.

181

The judgments of the District Court granting class certification and approving the settlement are accordingly

182

AFFIRMED.

183

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
1

These figures are taken from the opinion in In re A.H. Robins Co., Inc., 89 B.R. 555, 557 (E.D.Va.1988)

2

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)

3

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)

4

Kontoulas v. A.H. Robins Co., 745 F.2d 312 (4th Cir.1984)

5

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

6

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.

7

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.

8

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

9

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

10

In re A.H. Robins Co., Inc., 89 B.R. 555, 557 (E.D.Va.1988)

11

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

12

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)

13

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).

14

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.

15

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

16

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.

17

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

18

This was the jurisdictional amount when the suits were filed

19

This decision was modified on a point unrelated to that which is relevant here. 100 F.R.D. 336 (D.Mass.1983)

20

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

21

Seltzer, Punitive Damages in Mass Tort Litigation: Addressing The Problems of Fairness, Efficiency and Control, 52 Fordham L.Rev. 37, 37-38 (1983)

22

Sand, How Much Is Enough? Observations in Light of the Agent Orange Settlement, 9 Harv.Envtl.L.Rev. 283, 297-98 (1985)

23

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

24

Smith v. Swormstedt, supra, 57 U.S. (16 How.) 288, 14 L.Ed. 942 (1853)

25

3B Moore's Federal Practice, p 23.31, pp. 236-237 (2d ed. 1987)

26

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

27

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.

28

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).

1

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.

29

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.

1

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.

30

3 Newberg on Class Actions, Sec. 17.06, p. 373 (2d ed. 1980)

31

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

32

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

33

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."

34

This summary of the District Court's conclusion is taken from the Court of Appeals' opinion on appeal of the District Court's opinion

35

Ibid. There was a settlement had in the case after certification

36

It disapproved a (b)(2) certification

37

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

38

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."

39

See Panzer & Patton, supra, 21 Tort & Ins. Journal at 561

40

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.

41

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)

42

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).

43

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.

44

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)

45

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

46

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

47

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.