1 No. 76-1514-S (D. Mass. July 30, 1979).

2 Fed. R. Civ. P. 23.

3 The following drug firms have been named as defendants in the Payton suit: Abbott Laboratories of Illinois; Eli Lilly & Co. and Miles Laboratories of Indiana; Ortho Pharmaceutical Corp. and Merck & Co. of New Jersey; Parke-Davis & Co. of Michigan; Rexall-Drug Co., Upjohn & Co., E.R. Squibb & Sons, and Sandoz Inc., all of Delaware.

4 See, e.g., Sindell v. Abbott Laboratories, Inc., 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980); Abel v. Eli Lilly & Co., No. 77-3421 (Mich. Ct. App. 1979).

5 Hammond & McLaughlin, Judge Rules Mass. Women May Sue Drug Firms over DES Risks, Boston Globe, Aug. 1, 1979, at 58, col.I.

6 See Herbst, , Ulfelder, & Poskanzer, , Adenocarcinoma of the Vagina: Association of Maternal Stilbestrol Thearapy with Tumor Appearance in Young Women, 284 New Eng. J. Med. 878 (1971)Google Scholar. The association between in utero exposure to DES and clear cell adenocarcinoma is well established, but the risk now; appears to be smaller than was originally feared. The risk is now set at approximately one out of every 100,000 women to age 24. Hammond & McLaughlin, supra note 5. Recent studies suggest that DES even may have jeopardized the ability of the daughters exposed in utero to give birth. Dr. Herbst has published a paper in the Journal of Reproductive Medicine which indicates this tentative finding. He states: “There appear to be increased risks of prematurity and pregnancy loss among women exposed in utero compared to those unexposed. In fact, problems with reproduction may be statistically more frequent than cancer—it may affect more people. But we’re not sure yet.” Brozan, DES May Endanger 2d-Generation Births, N.Y. Times, Feb. 15, 1980, at B2, col. 7. The fact that the inherited effects of DES may prevent conception or interrupt pregnancy in some cases unfortunately means more problems for DES daughters. But this research is only preliminary, and the results have no effect on the Payton suit.

7 Memorandum Supporting Certification of the Plaintiff and Defendant Class Actions at 9, Payton v. Abbott Laboratories, No. 76-1514-S (D. Mass. July 30, 1979). Although the plaintiff class is limited to those women exposed to DES who have not developed cancer, see note 41 infra and accompanying text, many of them may have developed adenosis, or an abnormal non-malignant cellular growth in the vagina. The extent to which they have experienced actual physical injury may be relevant to the question of individual damages, see notes 122-43 infra and accompanying text.

8 The plaintiffs in the DES cases assert that by 1947 there was already evidence in the scientific literature of the relationship between hormone use and cancer in laboratory animals. See Sheiner, , DES and a Proposed Theory of Enterprise Liability, 46 Fordham L. Rev. 963, 971 n.25 (1978).Google Scholar

9 See notes 51 - 91 infra and accompanying text.

10 See notes 92 - 182 infra and accompanying text.

11 Fed. R. Civ. P. 23 (c)(l) is discussed in text accompanying notes 27-34 infra.

12 Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 (8th Cir. 1948).

13 Miller, Comment: Of Frankenstein Monsters and Shining Knights: Myth, Reality and the ’Class Action’ Problem, 92 Harv. L. Rev. 664, 669 (1979). According to the Advisory the original rule had proved obscure and uncertain; the revision was an attempt to clarify the procedure in a more functional manner and provide “guidance to the courts in managing class actions. The amended rule

39 F.R.D. 99 (1966).

14 41 F.R.D. 147 (S.D.N.Y. 1966) (dismissed as class action), rev’d, 391 F.2d 555 (2d Cir. 1968), 52 F.R.D. 253 (S.D.N.Y. 1971) (class certified), 54 F.R.D. 565 (S.D.N.Y. 1972) (defendants required to bear 90% of the costs of notice), rev’d, 479 F.2d 1005 (2d Cir.) (dismissed because unmanageable as class action), 417 U.S. 156 (1974) (vacated and remanded with instructions to dismiss the class action as so defined). The notice requirement presented the greatest obstacle to this suit brought on behalf of all odd-lot traders on the New York Stock Exchange against defendant brokerage firms.

15 In The Contemporary Function of the Class Suit, H. Kalven and M. Rosenfield explained the factors present in securities suits which pointed to the need for class action treatment:

8 U. CHI. L. REV. 684, 684 (1940-41).

16 The class action device is similarly applicable to the situation of a “small businessman who has been the victim of a monopoly in restraint of trade.” Id.

17 Actions brought under section 1983 and title VII, 42 U.S.C. §§ 2000e to 2000e-17 (1976), account for the largest share of class action litigation in the federal courts.“ Cohen, , “Not Dead but Only Sleeping“: The Rejection of the Death Knell Doctrine and the Survival of Class Actions Denied Certification, 59 B.U.L. Rev. 257, 275 n.108 (1979)Google Scholar. This is not meant to imply that certification in these categories of cases is by any means automatic, but rather that courts have been more willing to grant class status in these cases after determining that the particular facts would allow it.

18 Memorandum in Support of Defendant’s Motion for Certification of Class Action Order under 28 U.S.C. § 1292(b), Payton v. Abbott Laboratories, No. 76-1514-S (D. Mass. July 30, 1979).

19 For a discussion, see Sheiner, supra note 8.

20 No. 77 C 1431 (N.D. 111. June 12, 1979).

21 It is estimated that approximately 100 DES suits are pending against drug manufacturers. Chatoff, Cancer Victim Wins Lawsuit, Sunday Record (Bergen County, N.J.), Aug. 26, 1979, at A-3, col. 2.

22 Until quite recently, the only DES case that went to trial resulted in a verdict for the defendant, based on the jury’s failure to accept the plaintiff’s identification of the injury-producing product. See Barros v. E.R. Squibb & Sons, Inc., No. 75-1226 (E.D. Pa. Jan. 27, 1978). In July, 1979, the New. York State Supreme Court held the Eli Lilly Co. liable for $500,000 in damages awarded to Joyce Bichler, a victim of DES-linked cancer. The case, Bichler v. Eli Lilly & Co., No. 15,600 (Bronx, N.Y. Sup. Ct. 1974), was pursued on a previously untested legal premise, joint enterprise liability, or common responsibility for adequate testing and safety control procedures among manufacturers. This means that when the manufacturer of a specific unsafe product is not known, all manufacturers of, that product can be held responsible. The recovery allowed in Bichler on the theory that defendants acted in concert is expected to be appealed. Brozan, Woman Wins Suit in DES Case, N.Y. Times, July 17, 1979, at Cll, col.4. Joint enterprise liability became an even more established theory when the Michigan Court of Appeals reversed Abel v. Eli Lilly & Co., No. 77-3421, on December 5, 1979, holding that the plaintiffs had stated a cause of action against several manufacturers of DES even though precise identification could not be made. See generally, Sheiner, supra note 8. A recent ruling by the California Supreme Court in Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980) established a theory of recovery based on a market share approach, in which each manufacturer’s liability would be approximately equivalent to the damage caused by the DES it produced. Granelli, Novel Tort Theory Upheld, Nat’l L. J., Apr. 7, 1980, at 3, col.l. The joint enterprise concept or a variant thereof may be tested in New Jersey in the case of Ferrigno v. Eli Lilly & Co., No. L-41104-75 (NJ. Super. L. Div., Hudson County, filed June 24, 1976), in which the plaintiffs will cite all the major manufacturers in an attempt to prove that their cancerous or precancerous conditions were caused by DES. The judge has not yet made a decision on the specific theory which may be asserted by plaintiffs in Ferrigno. Telephone interview with Clerk of the Superior Court of New Jersey, May 20, 1980.

23 In August, 1979, a federal jury in Chicago awarded $800,000 to Anne Needham, a vaginal cancer victim, whose mother was given DES manufactured by White Laboratories of Kenilworth, N.J., later acquired by Schering-Plough. After deliberating less than an hour, the jury made the largest award to date in a DES case. Ms. Needham had filed a one million dollar suit. N.Y. Times, Aug. 26, 1979, at 26, col.3.

24 Memorandum and Order on Class Certification at 11, Payton v. Abbott Laboratories, No. 76-1514-S (D. Mass. July 30, 1979) [hereinafter cited as Memorandum].

25 Miller, supra note 13, at 680.

26 In re Antibiotics Antitrust Actions, 333 F. Supp. 267, 289 (S.D.N.Y. 1971) (Judge Lord).

27 Fed. R. Civ. P. 23(c)(l). “[F]airness to the parties and to absent members of the asserted class requires that the class decision be made at the outset, even though less information is then available, to clarify the scope of the action early in the litigation.“ Cohen, supra note 17, at 265-66.

28 Fed. R. Civ. P. 23(c)(l).

29 “The plaintiffs’ motion for certification of a plaintiff class is conditionally ALLOWED … .” Memorandum, supra note 24, at 1.

30 E.g., Ford, , Federal Rule 23: A Device For Aiding The Small Claimant, 10 B.C. Indust. & Comm. L. Rev. 501, 510 (1968-69)Google Scholar.

31 In re Folding Carton Antitrust Litigation, 75 F.R.D. 727, 731 (N.D. III. 1977). The court noted that Rule 52(a) of the Federal Rules dealing with findings by the court does not require findings of fact on a motion for class action determination, citing Jnterpace Corp. v. City of Philadelphia, 438 F.2d 401, 404 (3d Cir. 1971). Contra, Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.), cert, denied, 419 U.S. 885 (1974).

32 In re Hotel Telephone Charges, 500 F.2d 86, 90 (9th Cir. 1974).

33 This is so despite the fact that defendants have requested an interlocutory appeal of the conditional certification order under Title 28, U.S.C. § 1292(b). This section provides that

The defendants in Payton wanted the court to amend its July 30th Order to include the findings listed in 1292(b). In an extensive memorandum supporting this motion the defendants argued that the court’s class order rests on “several identifiable and novel legal judgments about both the meaning of Rule 23 and the substantive law underlying the class members’ claims” and that the court has “based its view of both its power to certify the class and the benefits to accrue from certification on erroneous legal judgments.” The memorandum outlined the questions which the Order raised and the potential costs of erroneous class certification. However, Judge Skinner issued a statement at the end1 of January, 1980 indicating that he would not accept defendants’ appeal at that time. Interview with David Fine, of Baker & Fine, in Cambridge, MA, May 19, 1980. For a general discussion of interlocutory appeals from class action determinations, see Cohen, supra note 17.

34 C.f., Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972) (trial judge incorrectly applied Rule 23 criteria and denied motion for class certification. The court noted that “[t]he genius of Rule 23 it that the trial judge is invested with both obligations and a wide spectrum of means to meet those obligations.” 454 F.2d at 1367).

35 The 1966 amendments to Rule 23 were designed to assure that members of the class would be identified before trial on the merits and would be bound by all subsequent orders and judgments. American Pipe & Construction Co. v. Utah, 414 U.S. 538, 547 (1973). The Rule does not clearly state that every judgment in every class action will bind all class members. It does provide that the judgment “shall include and describe those whom the court finds to be members of the class,” and who have not asked to be excluded from a (b)(3) action. Fed. R. Civ. P. 23(c)(3). Thus a court conducting an action cannot predetermine its res judicata effect, which must be tested in a later action. But the binding effect of class actions was clearly intended if due process of law has been afforded to all of the class members. Wright, C., Law Of Federal Courts 354 (3d ed. 1976)Google Scholar. See also notes 171-81 infra and accompanying text. Thus, “[t]he definition of the class has become crucial under amended Rule 23 because of the binding effect upon all class members whether represented or not.” Donelan, , Prerequisites To A Class Action Under New Rule 23, 10 B.C.Tndust. & Comm. L. Rev. 527, 529 (1968-69)Google Scholar.

36 Oscar Gruss & Son v. Geon Industries, 75 F.R.D. 531, 534 (S.D.N.Y. 1977).

37 Dolgow v. Anderson, 43 F.R.D. 472, 491 (E.D.N.Y. 1968) (citing 3A Moore’s Federal Practice ¶ 23.04 at 3418).

38 Recent research has indicated that the sons of women who took DES may also have been affected by the drug. A few studies have suggested that abnormalities of the genito-urinary tract, possibly even sterility, may be linked to DES. Chatoff, Cancer Victim Wins Lawsuit, Sunday Record (Bergen County, N.J.), Aug. 26, 1979, at A-3, col.2. As the plaintiffs in Payton brought suit on behalf of all “women” similarly situated, this Note will not undertake a consideration of a male class action.

39 It seems that satisfaction of this criterion can be assumed if a potential class member meets all the others, as there is no way to clearly establish where the mother was at the exact time the fetus was exposed.

40 The fairness of this restriction may be questionable. Professor Wright has noted a longstanding rule that in a class action only the citizenship of the named representative is to be considered, and that subsection (b)(3), if not all of Rule 23, would be unworkable in a diversity case, such as the present one, if the citizenship of all members of the class had to be taken into account. C. Wright, supra note 35, at 355. In any event, this is the area in which plaintiffs proposed a broader definition of the class.

41 Memorandum, supra note 24, at 1.

42 This binding effect applies to all those who meet the class definition, regardless of whether the judgment is favorable to the class. Thus, class members will either share in the judgment, if plaintiffs win, or be foreclosed from further suit in the event that the plaintiffs lose on the class issues. 2 Newburc, Class ActionS, § 2755 (1977).

43 This is in keeping with the rule that in diversity actions the state law will define the substantive interest of the members of the class and the capacity to sue or be sued of the named representative(s). C. Wright, supra note 35, at 345. The defendants had argued that under the proposed plaintiff class the named plaintiffs could not properly bind class members to Massachusetts law, because the choice of law problem indicated an absence of common questions, undercut the typicality of the named plaintiffs’ claims, and cast doubt on the adequacy of the named plaintiffs’ representation. Memorandum, supra note 24, at 1 n.l. See notes 51-91 infra and accompanying text.

44 The defendants also argued that Massachusetts law was less advantageous for the plaintiffs than that of other jurisdictions in which the defendants may be subject to suit. This may be true, for the Massachusetts Supreme Judicial Court does not, for example, sanction strict liability in tort other than liability for breach of warranty under the Uniform Commercial Code. Memorandum, supra note 24, at 1 n.l; Mass. Gen. Laws Ann. ch. 106, §§ 2-314 - 2-318 (West 1958); Swartz v. General Motors Corp., 1978 Mass. Adv. Sh. 1867, 378 N.E.2d 61 (1978). The defendants also objected that the class was inadequately denned, because the class membership of a given plaintiff will depend on evidence of her mother having taken DES and of the plaintiff having a condition related to DES. Judge Skinner wrote that

Memorandum, supra note 24, at 16 n.4.

45 Judge Skinner cited several authorities supporting the proposition that no other law will be available to class members. The cases included Klaxon Co. v. Stentor Co., 313 U.S. 487, 496 (1941) (in a diversity case, the federal court must apply the choice of law rule of the forum state), and Saharceski v. Marcure, 366 N.E.2d 1245, 1248 (Mass. 1977) (a recent approach wherein the Massachusetts Supreme Judicial Court looked to “the established relationship of the parties, their expectations, and the degree of interest of each juridiction whose law might be applied.“)

46 “When appropriate … an action may be brought or maintained as a class action with respect to particular issues … .” Fed. R. Civ. P. 23 (c)(4)(A).

47 The issues are: (1) whether, in the circumstances alleged in this action, fear and anguish are, under Massachusetts law, compensable injuries; (2) whether, in the circumstances alleged in this action, having been put at an increased risk of developing cancer is, under Massachusetts law, a compensable injury; (3) whether, if without DES a class member would not have been born, she may, under Massachusetts law, maintain an action for injury from exposure to DES; (4) whether and when, in the circumstances alleged in this action, Massachusetts has recognized a cause of action for injury to a fetus; (5) whether and when the defendants were negligent in manufacturing and marketing DES for use by pregnant women to prevent miscarriages; (6) whether, under Massachusetts law, the defendants may be held strictly liable to plaintiffs; (7) whether, under Massachusetts law, the defendants may be held absolutely liable to the plaintiffs for having allegedly tested DES on them without their consent; (8) whether a private right of action exists under the Federal Food, Drug and Cosmetics Act, 21 U.S.C. §§ 301, 331, and 352; (9) whether and when, in producing, marketing, and promoting DES as a miscarriage preventative, the defendants engaged in a joint enterprise; (10) whether and when the defendants combined and conspired in their acts and omissions relating to DES; (11) whether, if the defendants did not combine, conspire, or engage in a joint enterprise, a defendant may be held liable to a class memberwho cannot identify the maker of the DES to which she was exposed; (12) whether and for what periods claims of plaintiff class members under the foregoing theories of liability are barred by statutes of limitations; and (13) whether and for what periods statutes of limitations bar claims for: a) breach of express warranties and representations; b) breach of implied warranties of fitness, safety, and efficacy; and c) fraudulent misrepresentation. Memorandum, supra note 24, at 2 and 3. In their Memorandum in Support of Defendant’s Motion for Certification of Class Action Order Under Title 28, U.S.C. § 1292(b), supra note 46, the defendants questioned whether Rule 23(c)(4)(A) authorizes the use made by the court of the limited issues class action device. Among other objections, they pointed out that many of the above issues will depend heavily on the facts and circumstances of individual cases, and that Rule 23(c)(4)(A) should be used only in the context of an action in which the common questions predominate over all individual questions presented. See notes 98-143 infra and accompanying text.

48 Hon. William H., Becker, The Class Action Conflict: A 1976 Report, 75 F.R.D. 167, 189 (1978)Google Scholar.

49 This Note defines “liability” as the resolution of class issues and “damages“ as the resolution of individual issues in the Payton class action.

50 Memorandum, supra note 24, at 5. The legal and factual prerequisities will be the resolution of the common issues Judge Skinner enumerated when he certified the class. See note 47 supra. These common issues need only be litigated once. This may prompt readers to question whether class action certification has a bearing on the merits of the case. Cohen notes:

Cohen, supra note 17, at 264-65.

51 Fed. R. Civ. P. 23(a)(l). See note 150 infra and accompanying text. “The raison d’etre of the class suit doctrine is necessity, which in turn depends upon the question of number.” 3B Moore’s Federal Practice ¶ 23.05 (2d ed. 1980). The numerosity requirement was designed to protect members of a small class from being deprived of their rights without a day in court. Wright, supra note 35, at 347.

52 Newburc, supra note 42, at 171.

53 “Groups of as many as 350 have been held too small for a class action, while groups of 25 or more have been hekd sufficient.” Wright, supra note 35, at 346-47. In the developing case law the absolute number of individuals in the class has not been controlling. Donelan, supra note 35, at 530. As Judge Weinstein noted in Dolgow v. Anderson, 43 F.R.D. 472, 492: “[t]he fact that plaintiffs cannot state the exact numbers of people in the … class or identify them by name is irrelevant.” :

54 3B Moore’s Federal Practice ¶ 23-272 (2d ed. 1980).

55 The plaintiffs concluded from studying surveys and estimates in the medical literature that there are between 500,000 and 2,000,000 women in the U.S. who were exposed to DES in utero. They multiplied those figures by the percentage of the national population in Massachusetts to arrive at the estimated range in this state. The plaintiffs also contacted approximately 25 medical projects, clinics and practitioners in the greater Boston area treating or monitoring DES daughters. Their search revealed a minimum of 2,339 readily identifiable women in the Boston area alone who were almost certainly exposed to the drug in utero. Memorandum, supra note 24, a t 4.

56 Id. at 4-5.

57 See I Newburg, supra note 42, at 173. See also Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452 (E.D. Pa. 1968).

58 Id. See, e.g., Sol S. Turnoff Drug Distributors, Inc. v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 51 F.R.D. 227, 229 (E.D. Pa. 1970), wherein the court noted in passing that the class of drug retailers and wholesalers, which included several thousand members, met the 23(a)(l) requirement.

59 Fed. R. Civ. P. 23(a)(2).

60 See Oscar Gruss & Son v. Geon Industries, Inc., 75 F.R.D. 531, 534 (S.D.N.Y. 1977). The 23(a)(2) requirement will not be met if the named representatives fail to show that any one question involved in the case also pertains to any other member of the purported class. William Goldman Theatres, Inc. v. Paramount Film Distributing Corp., 49 F.R.D. 35, 39 (E.D. Pa. 1969). There is authority which suggests that the 23(a)(2) requirement of common questions of law or fact will always be met when the further tests of Rule 23(b) are satisfied. Vernon J. Rockier & Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335, 340 n.9 (D.C. Minn. 1971).

61 See note 47 supra.

62 Fed. R. Civ. P. 23(a)(3). The representatives are the named plaintiffs who sue on behalf of the absentee class members.

63 Comment, Class Actions: Defining the Typical and Representative Plaintiff Under Subsections (a)(3) and (4) of Federal Rule 23. 53 B.U.L. REV. 406, 413 (1973).

64 See generally 7 Wright, C. & Miller, A., Federal Practice And Procedure § 1764 (1972)Google Scholar [hereinafter cited as Wright & Miller].

65 Some courts have indicated that Rule 23 (a)(3)’s typicality requirement is really a requirement that the representative plaintiff’s claim not be antagonistic to those available to the remainder of the class. Katz v. Carte Blanche Corp., 52 F.R.D. 510 (D.C. Pa. 1971); Cannon v. Texas Gulf Sulphur Co., 47 F.R.D. 60 (S.D.N.Y. 1969). However, lack of antagonism is used also to demonstrate compliance with the adequacy of representation requirement of Rule 23(a)(4), and in fact, was used as a test for this latter requirement by Judge Skinner. Thus, it has been suggested that the 23(a)(3) typicality requirement is merely a further particularization of the requirement that the named representatives adequately represent the interests of the entire class. C. Wright, supra note “35, at 346 n. 14, citing Mersay v. First Republic Corp. of America, 43 F.R.D. 465, 468 (S.D.N.Y. 1968); Degnan, , Adequacy of Representation in Class Actions, 60 Cal. L. Rev. 705, 716 (1972)Google Scholar. Similarly, it has been suggested that if the claim of the representative, in order to be typical, must stem from the same fact pattern or be based upon the same legal theory, then (a)(3) merely duplicates the common question requirement of (a)(2). See Comment, supra note 63. Thus, many courts have failed to analyze or define the Rule. 23(a)(3) prerequisite, and have found it satisfied with minimal discussion. See, e.g., Research Corp. v. Pfister Associated Growers, Inc., 301 F. Supp. 497 (D.C. III. 1969), appeal dismissed sub nom. Research Corp. v. Asgrow Seed Co., 425 F.2d 1059 (7th Cir. 1970). Judge Skinner, however, took the Rule 23(a)(3) requirement seriously, and engaged in fairly extensive analysis of the standard that the plaintiffs in Payton must meet.

66 Wright & Miller, supra note 64, § 1764.

67 Wright & Miller, supra note 64, at 142 (1979 Supp.).

68 Memorandum, supra note 24, at 5.

69 This would occur if there are “periods of legal significance in which no named plaintiff was exposed to DES.” Id. at 6.

70 This stems from the nature of the DES problem—the time lag between the mothers’ ingestion of the drug and the appearance of abnormalities in the second generation. See generally Sheiner, supra note 8. See also notes 194-99 infra and accompanying text. This inability to pinpoint the specific manufacturer of the injury-producing product is thus a common problem which has precluded recovery by plaintiffs against individual defendants in DES cases. See, e.g.. Gray v. U.S., 445 F. Supp. 337 (S.D. Tex. 1978) (in a damage suit brought against Lilly and the U.S. for FDA approval of DES, the court granted Lilly’s motion for summary judgment, stating that it is a fundamental principle of products liability law that a plaintiff must prove as an essential element of the case that a defendant manufacturer actually made the particular product which caused the injury); McCreery v. Eli Lilly & Co., 150 Cal. Rptr. 730 App., 87 Cal. 3d 77 (1978) (plaintiff with benign condition of the cervix could not maintain strict liability action against one of at least 142 manufactures of DES at the time of her conception, where neither her mother nor her mother’s doctor could recall the manufacturer of the particular- medication taken by her mother, and pharmaceutical records had been destroyed). The new joint enterprise liability theory utilized in a DES class action suit against multiple defendants, if accepted by the court, should remedy the problem faced by DES daughters whose inability to identify the specific manufacturer involved previously was fatal to their case. See note 22 supra.

71 489 F.2d 461 (9th Cir. 1973).

72 Id. at 465. Accord, Leonard v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 64 F.R.D. 432 (S.D.N.Y. 1974). But cf. Haas v. Pittsburgh Naf’l Bank, 60 F.R.D. 604 (W.D. Pa. 1973), aff’d in part and rev’d in part, 526 F.2d 1083 (3d Cir. 1975) (district court originally held class action maintainable even where plaintiffs would be unable in their own right to bring an action against all defendants, but after the La Mar decision was rendered, the district court required the addition of a nominal plaintiff with standing or a cause of action against the other defendant and the Third Circuit upheld this order to cure the La Mar defect).

73 Wright & Miller, supra note 64, § 1764 (1979 Supp.).

74 Id.

75 489 F.2d at 470. These are elements of the joint enterprise theory, one of the theories asserted by the plaintiffs, and included in the class issues listed by Judge Skinner. See note 47 supra.

76 See Sheiner, supra note 8, at 969 n.22. This conspiracy exception allowed the typicality requirement to be satisfied in Krehl v. Baskin-Robbins Ice Cream Co., 78 F.R.D. 108 (CD. Cal. 1978). Judge Skinner explained his view of the use of these conspiracy theories in the Payton case:

Memorandum, supra note 24, at 6-7.

77 See LaMar, 489 F.2d at 464.

78 Memorandum, supra note 24, at 6.

79 Fed. R. Civ. P. 23(a)(4).

80 Comment, supra note 63.

81 417 F.2d 1122 (5th Cir. 1969).

82 I find that the plaintiffs’ counsel are capable of competent and vigorous prosecution of this action, that the action is not collusive, and that, on the issues for which I have certified this class action, the interests of the named plaintiffs and absentee class members are not antagonistic, but shared.

83 Freeman, , Current Issues in Class Action Litigation, 70 F.R.D. 251 (1976)Google Scholar.

84 Dolgow v. Anderson, 43 F.R.D at 93, citing Carroll v. American Federation of Musicians, 372 F.2d 155, 162 (2d Cir. 1967). A judgment in a class action will not be held to be binding on absent, unnamed class members unless there has been compliance with Rule 23 and due process requirements. Keene v. U.S., 81 F.R.D. 653 (S.D.W.Va. 1979).

85 Dolgow v. Anderson, 43 F.R.D. at 93.

86 Comment, supra note 63, at 410.

87 Cannon v. Texas Gulf Sulphur Co., 47 F.R.D. 60 (S.D.N.Y. 1969). In Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y. 1968) the judge rejected the arguments regarding the capacity of plaintiff’s lawyer to represent such a large class, stating that counsel was admitted to practice in both state and federal courts and that he was impressed by his “competence and fervor” in the arguments and briefs which he had presented. The court indicated that a lawyer’s task “is not more difficult whether he is representing one person or a class of a million. In either case, he will have to prove the same allegations if he is to prevail.“ Ford, supra note 30, a t 510 (citing Dolgow v. Anderson, 43 F.R.D. at 496).

88 Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966). One district court has taken the view that fair representation will be assured if the named representatives share the interests of all class members with respect to the substantive issues in the suit, notwithstanding variations in procedural preferences. United States v. Trucking Employers, Inc., 75 F.R.D. 682, 687-88 (D.D.C. 1977). The “substantive theory” of representation, applicable to the class issues enumerated by Judge Skinner in Payton, supra note 47, preserves the utility of class actions, according to the Trucking Employers court. The representation requirement is satisfied when the trial judge determines that substantive issues exist which are common to every member of the class, because in advocating their own interests the named representatives will necessarily be advocating the interests of absentees. Since grouping litigants with common interests is a major purpose for which the class action device was developed, a class certification motion under this theory of representation will be granted in more circumstances where it is otherwise appropriate. At the same time, the theory ensures fairness, especially where, as in the Massachusetts DES case, absentees will receive notice of their rights and of both procedural and substantive developments in the lawsuit.

89 489 F.2d at 466.

90 Id.

91 Becker, supra note 48, at 188.

92 Fed. R. Civ. P. 23(b).

93 The plaintiffs moved for certification of the plaintiff class under Rule 23(b)(l)(A), (b)(l)(B), (b)(2), and (b)(3). Judge Skinner’s reasons for finding that the Massachusetts DES class action suit does not apply to subdivisions (b)(l)(A), (b)(l)(B) or (b)(2) are well documented. It is not necessary to analyze these subdivisions here, but the case law and literature supports Judge Skinner’s interpretation. See generally La Mar v. H. & B. Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973); Advisory Committee’s Notes accompanying Rule 23, 39 F.R.D. 98 (1966). It is sufficient to note that the primary reason that the other subdivisions are inappropriate relates to the type of remedies that the plaintiffs request in Payton. The plaintiffs seek six remedies, of which the first four are phrased as prayers for declaratory or injunctive relief: (1) a declaratory judgment that the acts of the defendants in producing DES for use by pregnant women to prevent miscarriages were wrongful and unlawful; (2) an injunction ordering the defendants to notify girls, women and doctors of facts about DES; (3) an injunction ordering the defendants to establish free clinics for examining plaintiff class members; (4) an injunction forbidding “mass-market testing” of drugs by the defendants; (5) monetary judgments for compensatory and punitive damages; and (6) an injunction ordering the defendants to establish an insurance fund, or to pay a sufficiently large sum, to compensate class members who might suffer later from any cancer that DES has induced. Memorandum, supra note 24, at 9. Judge Skinner found that appropriate final relief in the Payton personal injury action relates predominantly to money damages, and issues relevant to the question of money damages would not warrant certification under the other subdivisions of Rule 23(b).

94 Fed. R. Civ. P. 23(b) sanctions a class action suit if “the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.“

95 Advisory Committee’s Notes accompanying Rule 23, 39 F.R.D. at 102-03.

96 Under the other subdivisions of Rule 23(b),

Fed. R. Civ. P. 23(b). These subdivisions require more clear-cut factual determinations regarding the proposed class action, whereas (b)(3) leaves more general discretion to the judge to “find” that the predominance and superiority requirements are met.

97 See, e.g., Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) (en bane), cert, denied, 435 U.S. 968 (1978). Actually, most of the reported cases in which class action status has been granted under amended Rule 23 have been (b)(3) actions. Many of these involved antitrust or securities fraud claims. Wright, supra note 35, at 352. See notes 15-16 supra and accompanying text.

98 Advisory Committee’s Notes accompanying Rule 23, 39 F.R.D. at 103.

99 See e.g., Rosenfeld v. A.H. Robins Co., Inc., 63 A.D.2d 11, 407 N.Y.S.2d 196 (1978) (individual determinations would be required on several key issues); In re Hotel Telephone Charges, 500 F.2d 86 (9th Cir. 1974) (material variations in the representations made or in the kinds or degrees of reliance by the plaintiffs). But see Miller, supra note 13, in which the precedential value of these cases is interpreted narrowly. The author explains that Rosenfeld was litigated in a state court where mixed reactions have greeted products liability class actions, and that In re Hotel Telephone Charges was litigated during a period of “palpable antipathy” to class actions, as between approximately 1969 and 1974 federal courts were very ready to deny certification. La Mar, 489 F.2d 461 (9th Cir. 1973), was also decided during this period.

100 No. 77 C 1431 (N.D. 111. June 12, 1979).

101 Memorandum, supra note 24, at 12. In their September 20, 1979 Memorandum in Support of Defendants’ Motion for Certification of the Class Action Under Title 28, U.S.C. § 1292(b), Payton v. Abbott Laboratories, No. 76-1514-S (D.Mass. July 30, 1974), the defendants reiterated an argument they had made several times since the plaintiffs proposed class certification, namely, they challenged the genuine predominance of the common questions over the individual ones in this action. In arguing that predominance did not exist, defendants asserted that the court’s order on class certification “has reduced the predominance requirement to a dead letter.“

102 3B Moore’s Federal Practice ¶ 23.45[2] (2d ed. 1980). See notes 59-61 supra and accompanying text.

103 Id.

104 “In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.” Advisory Committee’s Notes accompanying Rule 23, 39 F.R.D. at 103.

105 Bentkowski v. Marfuerza Compania Maritima, S.A., 70 F.R.D. 401 (E.D. Pa. 1976) and American Trading & Production Corp. v. Fischbach & Moore, Inc., 47 F.R.D. 155 (N.D. 111. 1969) are two mass accident cases in which the courts certified classes under Rule 23(b)(3). The defendants in Payton distinguished these cases as involving contemporaneous injuries at one location, a distinction that Judge Grady drew in the Mink case, as noted previously. Similarly, Rosenfeld v. A.H. Robins, Inc., 63 A.D.2d 11, 407 N.Y.S.2d 196 (1978), distinguishes mass tort class actions from products liability actions. In response to such arguments Judge Skinner writes:

Memorandum, supra note 24, at 14.

106 Causey v. Pan American World Airways, Inc., 66 F.R.D. 392, 397 (E.D. Va. 1975) (Judge Merhige).

107 Yandle v. PPG Industries, Inc., 65 F.R.D. 566 (E.D. Tex. 1974); Ferrigno v. Eli Lilly & Co., No. L-41104-75 (N.J. Super., L. Div., Hudson County, class certification denied, Apr. 27, 1979); Rosenfeld v. A. H. Robins Co., Inc., 63 A.D.2d 11, 407 N.Y.S.2d - 196 (1978).

108 Mink v. University of Chicago, No. 77 C 1431, at 4 (N.D. 111. June 12, 1979).

109 Id. at 3.

110 As Judge Grady accurately points out, “[t]he situation is similar to actions involving claims of fraud against an entire class arising out of oral misrepresentations. Certification is often improper because different representations have been made to every member of the proposed class.” Id. (citing Winokur v. Bell Federal Savings and Loan Assoc, 58 F.R.D. 178 (N.D. 111. 1972)).

111 Although the plaintiffs in Payton also allege a battery theory in that defendant drug manufacturers “tested” the cancer danger of DES on the population of pregnant women without their consent, the situation giving rise to the Payton suit was not explicitly a medical experiment, nor is battery the only theory on which the plaintiffs sue.

Plaintiffs’ Proposed Class Action Notice, Payton v. Abbott Laboratories, No. 76-1514-S (D. Mass. July 30, 1979) (document of Baker & Fine, Cambridge, Mass., October, 1979).

112 Memorandum, supra note 24, at 12.

113 Id.

114 See 3B Moore’s Federal Practice ¶ 23.45[2] (2d ed. 1980); 7A C. Wright & A. Miller, Federal Practice and Procedure § 1778. The quantitative measure was used in In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 333 F. Supp. 278 (S.D.N.Y. 1971).

115 E.g., Siegel v. Chicken Delight, Inc., 271 F. Supp. 722 (N.D. Cal. 1967), mandamus granted on other grounds, Chicken Delight, Inc. v. Harris, 412 F.2d 830 (9th Cir. 1969). The Payton defendants have argued that even the “common nucleus of operative facts” test does not mean that the presence of a few significant common questions without regard to the remaining individual questions constitutes predominance, citing Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 323 (5th Cir. 1978); Windham v. American Brands, 565 F.2d 59 (4th Cir. 1977), cert, denied, 435 U.S. 968 (1978). Memorandum in Support of Defendant’s Motion to Certify the Class Action Under Tit. 28, U.S.C. § 1292(b).

116 3B Moore’s Federal Practice ¶ 23.45[2] (2d ed. 1980).

117 The “pragmatic” standard is exemplified by Wright and Miller’s statement that “when common questions represent a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is a clear justification for handling the dispute on a representative rather than on an individual basis.” 7A C. Wright and A. Miller, supra note 114, § 1778 (1972).

118 Memorandum, supra note 24, at 15.

119 7A C. Wright And A. Miller, supra, note 114, § 1778 (1972).

120 3B Moore’s Federal Practice ¶ 23.45[2] (2d ed. 1980).

121 Id.

122 Memorandum, supra note 24, at 20. Plaintiffs’ counsel expressed the hope that accidefendants would feel pressure to settle, thereby eliminating the need for bifurcated trials. Rather, he envisioned the fashioning of a streamlined administrative procedure to process all claims. Interview with David Fine, of Baker & Fine, in Cambridge, Mass. (October 15, 1979). In this regard, it is interesting to note Arthur Miller’s comment that “[o]nce the case is certified as a class action, the size of the potential liability takes on a frightening dimension, although defendants have fared well in the few damage class actions that have been tried. Nonetheless the specter of crushing liability increases a case’s settlement value and as a result may encourage plaintiff’s counsel to seek class action status.” Miller, supra note 13, at 679 n.63. This aspect of the class action prompted Milton Handler’s comment that antitrust class actions are “legalized blackmail”. See Handler, , The Shift from Substantive to Procedural Innovations in Antitrust Suits, 71 Colum. L. Rev. 1, 9 n.104 (1971)Google Scholar. Settlement nonetheless may be a likely result in the Massachusetts DES case because defendant drug manufacturers could face astronomical judgments. In support of this predition, it may be valuable to note the fact that class damage actions rarely go to trial, but rather usually are settled before that stage. Dam, , Class Actions: Efficiency, Compensation, Deterrence, and Conflict of Interest, 4 J. Legal Studies 47, 59 (1975)Google Scholar. However, some class action suits for damages have been tried. See, Patrick, & Cheever, , Rule 23 and the Class Action for Damages: A Reply to the Report of the American College of Trial Lawyers, 28 Bus. Lawyer 1097, 1108 (1973)Google Scholar.

123 See note 124 infra.

124 See, e.g., Rosenfeld v. A.H. Robins Co., Inc., 63 A.D. 2d 11, 407 N.Y.S.2d 196 (1978) (such severance not practical where proceeding is likely to “splinter into individual trials“); Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) (en bane), cert, denied, 435 U.S. 968 (1978) (severing of issues would not solve problem where proof of injury and damages would assume a highly individualized character and the court would be swamped by an overwhelming deluge of mini-trials). The Payton defendants have argued that Judge Skinner’s finding of predominance seems to rely primarily on the proposition that while class-wide disposition of the thirteen issues, supra note 47, will not prove any ultimate issue in any class member’s claim, it will significantly reduce the costs of trying individual claims. They contend that Judge Skinner satisfied the predominance requirement by severing the individual issues and focusing solely on the common questions, in reliance on Moore ¶ 23.45[2], supra note 121. The defendants question Judge Skinner’s interpretation of Moore, however, arguing that mere severance does not satisfy Rule 23 requirements.

125 Rosenfeld v. A.H. Robins Co., Inc. 63 A.D.2d at 19-20, 407 N.Y.S.2d at 201.

126 See, e.g., Hernandez v. Motor Vessel Skyward, 61 F.R.D. 558 (S.D. Fla. 1973), aff’d, 507 F.2d 1278 (5th Cir. 1975), a mass food poisoning case wherein certification was limited to the issue of defendant’s negligence, which was subject to a clearcut determination, but the individual issues on which the likelihood of individual defenses was recognizable were not allowed to be litigated on a class-wide basis.

127 See, e.g., In re Folding Carton Antitrust Litigation, 75 F.R.D. 727 (N.D. 111. 1977), rejecting the argument that the nature of the folding carton industry makes it impossible for class issues to predominate, despite contentions of the infinite diversity of the product, marketing practices, and pricing: “Contrary to defendants’ position, a liability determination is not contingent upon a carton-by-carton analysis of every sale made under the alleged conspiracy to fix prices. Such an analysis, at best, goes to the damages to be awarded once liability has been demonstrated.“; Eisen v. Carlisle & Jacquelin, 391 F.2d at 565: “[U]nder both the old and amended Rule 23, antitrust violations practised upon large groups of individuals have been held to involve sufficient common questions of law or fact to merit treatment as class actions.“

128 Sheiner, supra note 8, at 969 n.22. The author cited the fact that certification in the mass accident cases has been limited to those issues where the courts believed common questions of law and fact predominated and uniformity of result would ensue.

129 Id. The author cites these as reasons for the uniform denial of class action certification in cases of personal injury in products liability suits. Thus, this is a common argument for defendants to make when faced with proposed plaintiff class actions in drug products liability suits. The defendants in Payton, for example, have stressed that because of this variation in individual fact patterns, it is impossible to adjudicate the liability (if any) of defendants to class members in a unitary proceeding.

130 in a letter to Judge Skinner, plaintiffs pointed out the relevance of the trial in Bichler v. Eli Lilly & Co., No. 15,600 (Bronx, N.Y. Sup. Ct. 1974), to the then pending motion for class certification. In addition to demonstrating how special verdicts and interrogatories may be used to isolate common questions (six of the Bichler jury issues were addressed to common issues that would apply uniformly to members of the plaintiff class in Payton, see N.Y. Times, July 17, 1979, supra note 22), plaintiffs contended that it demonstrates the feasibility of bifurcated trials in adjudicating issues separately (in the first trial, plaintiff Bichler tried to identify Lilly as the specific manufacturer responsible for her injury).

Letter from Baker & Fine to Judge Skinner, at 2 (July 20, 1979).

131 Fed. R. Civ. P. 42(b).

132 Warner v. Rossignol, 513 F.2d 678, 684 (1st Cir. 1975) (dictum).

133 Moss v. Associated Transport, Inc., 344 F.2d 23, 26 (6th Cir. 1965).

134 state of Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 319 (5th Cir. 1978), quoting Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1324 (5th Cir. 1976) (citation omitted).

135 283 U.S. 494 (1931).

136 Id.at 500.

137 The plaintiffs in Payton asked for substantial punitive damages in their prayers for relief. According to the Judge, because their request requires a unified assessment of the defendants’ culpability, it would ordinarily preclude trying issues separately before different juries. See, United Air Lines v. Weiner, 286 F.2d 302, 306 (9th Cir. 1961), cert, denied, 366 U.S. 924 (1961). It would therefore be impossible to maintain this suit as a class action, because the complexity of the DES action will require a second round of damage trials. But because in Massachusetts punitive damages may not be awarded except as authorized by statute, bifurcation is permissible under the facts of the Massachusetts suit. Memorandum, supra note 24, at 23 (citing Caperci v. Huntoon, 397 F.2d 799, 801 n.2 (1st. Cir. 1968), cert, denied, 393 U.S. 940 (1968); Lowell v. Massachusetts Bonding & Ins. Co., 313 Mass. 257, 269, 47 N.E.2d 265, 272 (1943); Boott Mills v. Boston & Maine Railroad, 218 Mass. 582, 589, 106 N.E. 680, 684 (1914); Ellis v. Brockton Publishing Co., 198 Mass. 538, 543-44, 84 N.E. 1018, 1020 (1908); Note, Punitive Tort Damages in New England, 41 B.U.L. REV. 389, 390, 396 n.52 (1961)).

138 565 F.2d 59 (4th Cir. 1977).

139 Id. at 68.

140 Note, Damages in Class Actions: Determination and Allocation, 10 B.C. Indust. & Comm. L. Rev. 615, 617 (1968-69).

141 See, e.g., Handler, supra note 122, at 9. Lyons, , Manageability of Class Actions Under S. 3475: Congress Confronts the Policy Choices Revealed in Rule 23(b)(3) Litigation, 68 Kentucky L. Rev. 216 (1980)Google Scholar notes that damages will become a difficult problem at the calculation stage; for example, the defendant(s) will take issue with each claim and the plaintiffs may have insufficient records (particularly in a DES action). Id. at 234. The Windham court analyzed judicial responses to this question in the following way:

565 F.2d at 68 (citations omitted).

142 See, eg., In re Folding Carton Antitrust Litigation, 75 F.R.D. 727 (N.D. 111. 1977); Hill v. A-T-O, Inc., 80 F.R.D. 68 (E.D.N.Y. 1978); Helfand v. Cenco, Inc., 80 F.R.D. 1 (N.D. 111. 1977).

143 Mink v. University of Chicago, No. 77-C-1431 at 6 (citing In re Transit Company Tire Antitrust Litigation, 67 F.R.D. 59, 74 (W.D. Mo. 1975)).

144 The Rule offers four factors to be taken into account in making the superiority and predominance determinations:

Fed. R. Civ. P. 23(b)(3). These factors are not presumed to be exhaustive. Advisory Committee’s Notes accompanying Rule 23, 39 F.R.D; 98, 104 (1966). However, as they are suggested in the Rule, this footnote briefly will analyze them and their application to the Payton case:

One might generally assume that interest in individual litigation would be high in Payton because of the size of the potential damage award for each plaintiff. The plaintiffs base their claim of federal jurisdiction on Title 28, U.S.C. §§ 1331 and 1332, which requires that “the matter in controversy” exceed “the sum or value of $10,000, exclusive of interests and costs … .” Miller, supra note 13, at 690-91, points out that “[b]ecause of the jurisdictional amount limitations … the typical diversity-based Rule 23(b)(3) action involves substantial claims stemming from a mass accident, or personal injuries caused by a defective product, such as the drug DES, or a pollutant such as asbestos.“ See notes 194-200 infra and accompanying text. According to Zahn v. International Paper Co., 414 U.S. 291 (1973), each class member must meet the jurisdictional minimum of $10,000 in order for the suit to be maintained as a class action. Judge Skinner has determined that this requirement is satisfied in Payton, at least for the time being, because he has not found to a legal certainty that the claim of any member of the plaintiff class is less than the jurisdictional amount. Memorandum supra note 24, at 23-24. The defendants contended that members of the plaintiff class did not satisfy the required minimum, and that it was impossible to separate members of the class who met it from those who did not in light of the nature of this particular action., However, Judge Skinner applied the test of St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 288-89 (1938), which states that the judge must find “to a legal certainty” that a claim is less than the required jurisdictional amount in order to dismiss it for want of the jurisdictional minimum. Thus it could be argued that in a DES case, where there are such high stakes for each plaintiff involved—that is, the damages are so substantial—there would be less need for class certification because of the incentive for each DES daughter to file suit to obtain compensation for her own injury. Cf., Sheiner, supra note 8, (the author compares personal injury actions in products liability suits to property damage actions in products liability suits, and suggest that a factor contributing to the greater number of class actions allowed in the latter category was that “the amount of damages“ therein “made it unlikely that individual actions would be brought if class actions were not certified,” (citing Vasquez v. Superior Ct., 4 Cal. 3d at 810, 484 P.2d at 970, 94 Cal. Rptr. at 802 (1971)). The author was referring to the small amount of damages claimed in property damage products liability suits, which is not the case in a personal injury products liability suit involving exposure to DES. However, the facts presented by the plaintiffs to Judge Skinner indicated that only ten individual DES suits have been brought by plaintiffs who might meet the Payton class definition. Given the estimated size of the class—up to 54,000 members—the Judge found the number “ten” to be insignificant. “The apparent interest of counsel in some of the individual cases in supporting and perhaps joining this action diminishes its significance even further.” Memorandum, supra note 24, at 16. In light of the plaintiffs’ statistics the Judge found that the interest of the class members in individually controlling the prosecution of separate actions was minimal, and therefore a class action was desired by injured individuals. This decision makes practical sense because a major concern in certifying this class action suit is the liability issue, which otherwise would have to be borne repeatedly by single litigants at enormous financial costs. Thus, a finding of superiority has been held warranted where many of the plaintiffs would not be able to secure relief on their own because of the costs of discovery and trial. In re Folding Carton Antitrust Litigation, 75 F.R.D. 727 (N.D. 111. 1977) (citing Ungar v. Dunkin’ Donuts of America, Inc., 68 F.R.D. 65, 148 (E.D. Pa. 1975), rev’d on other grounds, 531 F.2d 1211 (3d Cir.), cert, denied, 429 U.S. 823 (1976)). On the other hand, there does not appear to be a “death knell” justification for class certification where each plaintiff has the financial ability to continue the suit and intends to do so whether or not the class action is maintained. See Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) (en bane), cert, denied, 435 U.S. 968 (1978). The guidelines also suggest that the court take into account any pending litigation by or against the individuals involved in the proposed class suit. Fed. R. Civ. P. 23(b)(3)(B). As indicated above, the Court is aware of only ten individual suits brought by Massachusetts DES daughters against drug manufacturers. The dearth of pending litigation over the DES controversy in Massachusetts indicates that the class certification minimally disrupts other litigation. Thus, the extent of existing litigation poses no bar to the Massachusetts DES class action, and, supports Judge Skinners’ finding of predominance and superiority.

In addition, if the particular court is not the appropriate forum in which to hear the case, then the predominance and superiority requirements cannot be fulfilled. Fed. R. Civ. P. 23(b)(3)(C). However, there are important reasons for allowing cases such as diversity-based DES class actions in the federal courts: “they often implicate federal policies” and “they frequently entail the formulation and enforcement of complex and nontraditional remedies that require multistate administration. Miller, supra note 13, at 691. In addition, the composition of the class defined by Judge Skinner, see notes 38-45 supra and accompanying text, makes the litigation of the claims in the U.S. District Court, District of Massachusetts, highly desirable.

The manageability of a proposed class action is another critical factor for the court to consider, Fed. R. Civ. P. 23(b)(3)(D). The burden of the class action device, not only on the court and its calendar, but on the party opposing the class, should be considered here. The court in Philadelphia Electric Co. v. Anaconda American Brass Co., 43 F.R.D. 452, 459 (E.D. Pa. 1968) suggested that in analyzing the superiority of the class action device,

A conflict arises with a class as numerous as the one in Payton. Potential management problems loom large because of the class size, yet precisely because of the size it is more advantageous for the adversaries and the courts to have common issues resolved in one action. The issue of manageability “encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974). However, the Judge’s continuing power to shape the action as well as to revoke certification if the burden on the court becomes too heavy supports Judge Skinner’s present determination that the class action is manageable, and therefore a superior method of litigating the suit. See also notes 161-166 infra and accompanying text.

145 3B Moore’s Federal Practice ¶ 23.45[3] (2d ed. 1980).

146 Id.

147 Memorandum, supra note 24, at 11.

148 3B Moore’s Federal Practice ¶ 23.45[3] (2d ed. 1980).

149 See notes 51-58 supra and accompanying text.

150 See Donelan, supra note 35.

151 Intervention is a procedure by which one not made a party can protect himself from being excluded from an action that might be detrimental to him, or an action where he might be able to inexpensively litigate his own claim, C. Wright, supra note 35, § 75.

152 3B Moore’s Federal Practice ¶ 23.45[3] (2d ed. 1980).

153 Id.

154 Id.

155 See Herrmann v. Atlantic Richfield Co., 65 F.R.D. 585, 591 (W.D. Pa. 1974):

Similarly, Kalven & Rosenfield, supra note 15, at 687-88, suggested that “[i]n most situations such spontaneity cannot arise because the various parties who have the common interest are isolated, scattered, and utter strangers to each other.” This is particularly true in a (b)(3) class action, as here, where the class members generally “enjoy less affinity with each other than other types of class actions under 23(b). Note, Federal Rules of Civil Procedure 23: A Defendant Class Action With a Public Official As The Named Representative, 9 Valparaiso U. L. Rev. 357, 389 (1974-75).

156 3B Moore’s Federal Practice ¶ 23.45[3] (2d ed. 1980).

157 A test case is an action chosen out of a considerable number of suits, concurrently pending in the same court, similar in their circumstances, embracing the same questions, and to be supported by the same evidence. The chosen action is the first to go to trial, and its decision serves as a test of the right of recovery in the others, as all parties agree to be bound by its result. Black’s Law Dictionary 1643 (4th ed. 1951) (listed under “test action“). As opposed to a class action wherein the process is overseen by a judge, the direction of a test case is accomplished by the adversaries.

158 Judge Skinner’s response to this argument—“I see no reason why the same logic should not vanquish the specter of an overwhelming onslaught of individual trials after adjudication of the class issues“—is unassailable. After all, with individual damage trials as envisioned by the court, both parties will have the necessary information with which to negotiate. Memorandum, supra note 24, at 15.

159 “Unless the two sides each have sufficient private power to enforce an agreement to abide by the outcome of the test case and sufficient trial resources to secure a full and competent hearing, this apparatus cannot ensure that all the group’s claims will receive adequate, uniform disposition.” 3B Moore’s Federal Practice ¶ 23.45[3] (2d ed. 1980).

160 Memorandum at 15.

161 See Dolgow v. Anderson, 43 F.R.D. 472, 484 (E.D.N.Y. 1968), wherein the court noted that “these alternative devices presuppose ‘a group of economically powerful parties who are obviously able, and willing to take care of their own interests individually through individual suits or individual decisions about joinder or intervention’” (quoting Frankel, Amended Rule 23 From a Judge’s Point of View, 32 ANTITRUST L.J. 295, 298 (1966)).

162 Memorandum, supra note 24, at 15.

163 in re Folding Carton Antitrust Litigation, 75 F.R.D. 727 (N.D. 111. 1977).

164 Id.

165 Id.

166 Id. at 733. The same court concluded that the other available methods of handling the action involved “duplicative, expensive, and time-consuming suits without any countervailing benefits.“

167 In determining that undertaking a class action suit would be worthwhile in this situation, Judge Skinner also evaluated an option founded on collateral estoppel, defined by Black’s Law Dictionary as “the collateral determination of a question by a court having general jurisdiction of the subject.” He dismissed this alternative, however, because in Massachusetts the party to be collaterally estopped must have been a party to the earlier action in which the issue was litigated (citing Rudow v. Fogel, 78 Mass. Adv. Sh. 2810, 382 N.E.2d 1046 (1978)). Therefore, a suit between one plaintiff and the defendants would not preclude a second plaintiff from litigating the same issues.

168 Fed. R. Civ. P. 23(c)(2). See generally, Eisen v. Carlisle & Jacquelin 417 U.S. 156 (1974). Rule 23(d)(2) states that, in conducting a class action, “the court may make appropriate orders … requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action… .“

169 C. Wright, supra note 35, at 353.

170 Id.

171 Id.

172 Jones, D. and Weldon, C., Lawyer’s Ready Reference To Class Actions 43 (1972)Google Scholar. Judge Skinner directed that notice to class members include the following information in as simple and direct a form as possible:

Memorandum, supra note 24, at 19. In their Proposed Class Action Notice, the plaintiffs objected to the “caution” in point number 6, arguing that it does not mention the offsetting benefits of participation in the class action, such as cost savings, reduced attorney’s fees, elimination of statute of limitations problems, early trial, and the availability of the best expert witnesses.

173 C. Wright, supra note 35, at 354.

174 Hansberry v. Lee, 311 U.S. 32, 42 (1940).

175 339 U.S. 306 (1950). .

176 Id. at 313.

177 This is in accordance With the Supreme Court’s holding in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) mandating individual notice to those members of a (b)(3) class who are identifiable through reasonable effort. The Court determined that notice by publication is not permissible, notwithstanding the high cost of individual notice. 417 U.S. at 173-177.

178 Memorandum, supra note 24, at 18.

179 The plaintiffs’ proposed form of notice was submitted to the Court for Judge Skinner’s approval. They proposed an alternative, less expensive form of notice. In the first phase of their suggested alternative, recipients could signify receipt by mailing back a pre-addressed stamped postcard enclosed within the mailing envelope and affixed in a highly visible manner to the notice document. In the second phase, notice would be re-sent by certified mail, return receipt requested, to those potential class members who failed to return the postcards within a specified period of time. The defendants objected to this postcard alternative, claiming that it is an opt-in mechanism which makes class membership turn on an affirmative responsive action by potential members. In actions involving very large classes of plaintiffs seeking recovery in damages, a few courts have held that class members may be required to take some affirmative action to maintain their status. E.g., In re Antibiotic Antitrust Actions, 333 F. Supp. 267 (S.D.N.Y. 1971). This is contrary to Rule 23(c)(2)(B) which specifically provides that a judgment in a (b)(3) action will include all members who do not request exclusion. (However, after defendants’ liability has been established it is appropriate to send class members a second notice requiring them to file statements of their individual claims by a certain date.) C. Wright, supra note 35, at 354-355. The plaintiffs contended, however, that they “made the twophase mailing proposal in the firm belief that it more than meets the standards of Rule 23, and is in fact superior to mailing which uses certified mail exclusively.” They also argue that this alternative saves money which can instead be used to identify potential class members. Plaintiffs’ Memorandum on the Class Notice Procedure and Opposing Defendant’s Motion to Impose a System of Censorship and Surveillance over Plaintiffs’ Freedom of Speech, Nov. 19, 1979, Payton v. Abbott Laboratories, No. 76-1514-S (D. Mass. July 30, 1979). At the end of January, 1980, Judge Skinner approved the final form of notice for the Payton case. It was modified to provide notice by first class mail to women who contact the office of the plaintiffs’ counsel, and by certified mail, return receipt requested, to those DES daughters who do not contact the office. The former method has been the exclusive one to date. Interview with David Fine, Baker & Fine, in Cambridge, Massachusetts, May 19, 1980.

180 Memorandum, supra note 24, at 18-19.

181 Jones And Weldon, supra note 172.

182 This project is headed by Judith Sutphen (a professional consultant in women’s health issues) and a board of advisors comprised of representatives from women’s health groups and from the named plaintiffs. It is affiliated with the’ National Women’s Health Network and several other similar organizations. ‘

183 See notes 104-06, 126, 128 supra and accompanying text.

184 See notes 105, 107, 108, 129, 144 (citing Sheiner, supra note 8) supra and accompanying text.

185 See note 55 supra. Estimates of the number of women exposed to DES vary. See also Sheiner, supra note 8, at 965 nn.6 & 7.

186 See note 7 supra and accompanying text. Adenosis has developed in approximately thirty-four percent of DES daughters. Hammond & McLaughlin, supra note 5.

187 See note 6 supra and accompanying text. Dr. Herbst’s report documented observation of a rare form of cancer—clear cell adenocarcinoma of the vagina—in women aged 15 to 22 years. Cancers of this site and histologic type were almost unknown in women of that age group. The rarity of the forms of cancer makes it easier to establish the legal causal relationship between the disease and DES exposure, see Sheiner, supra note 8, 964 n.5; in medical terms Dr. Herbst described it as a “highly significant association.“ He also found a high prevalence of benign adenosis of the vagina in the group of patients he studied. Later studies confirmed these results, and related the abnormal occurrences to DES.

188 Lyons, supra note 141.

189 Id. See note 144 supra. .

190 Id.

191 Chatoff, supra note 21.

192 1978 N.Y. Laws, ch. 715.

193 See note 34 supra and accompanying text.

194 See Sheiner, supra note 8, at 974-75 n.36.

195 N.Y. Times, Apr. 22, 1980, at Dl, col. 4.

196 “The (asbestos) suits charge that since the 1930’s, when suspicions of asbestos as a harmful substance were first documented, the asbestos industry has distorted and suppressed evidence of disease and has failed to establish adequate safety standards.” Id. Cf., Sheiner, supra note 8, at 987 n.136.

197 N.Y. Times, Apr. 22, 1980, at D4, col. 4.

198 This is where the joint enterprise theory of liability will be useful. See Sheiner, supra note 8, at 974 n.36. See also notes 22 and 70 supra and accompanying text.

199 Id.

200 “In our contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer,” according to the majority opinion in Sindell v. Abbott Laboratories, Inc. Granelli, supra note 22.

201 See notes 98-103 supra and accompanying text.

202 See notes 123-130 supra and accompanying text.

203 Lyons, supra note 141, citing Partain v. First Nat’l Bank of Montgomery, 59 F.R.D. 56, 61 (M.D. Ala. 1973).

204 [D]istrict judges are now exploiting the arsenal of procedural powers set out in subdivisions (c) and (d) of the rule, which largely went unnoticed for a number of years following rule 23’s revision. More judges are aware that there are possibilities other than an across-the-board grant or denial of certification. Instead of wielding a meat axe, courts increasingly are operating with a scalpel. As a result, district judges frequently redefine classes to improve manageability; grant partial certification when appropriate to take advantage of the economics of group adjudication on at least some issues; bifurcate the adjudication of liability from the remedy phase in certain cases to improve efficiency; insist on a high level of legal skill to improve the quality of representation, which serves to reduce the risk of collateral attack; establish subclasses when antagonism or conflicts exist within the group; and employ efficient management techniques during the precertification period to achieve an early determination of that issue.

Miller, supra note 13, at 680.

205 Memorandum, supra note 24, at 11.

206 Plaintiffs’ Memorandum, Payton, supra note 179.