The Institute in the Courts
The U.S. Supreme Court recently cited Restatement Third, Torts: Liability for Physical and Emotional Harm § 29 and Comment b in holding that the proper jury charge in a Federal Employers’ Liability Act case did not incorporate “proximate cause” standards developed in nonstatutory common-law tort actions, but instead tracked the language Congress employed—i.e., that a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury. The court, discussing the “notoriously confusing” nature of the term “proximate cause,” and studies showing that jurors frequently misunderstood proximate-cause instructions, said it was not surprising that the Restatement Third eschewed the term, instead limiting liability to “harms that result from the risks that made the actor’s conduct tortious.” CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 180 L. Ed. 2d 637 (June 23, 2011).
The Third Circuit Court of Appeals recently looked to the Institute’s Principles of the Law of Aggregate Litigation for guidance in regard to the factors to be considered in determining whether to certify an “issue only” class on liability. In an action by village residents against a chemical company concerning residents’ alleged exposure to vinyl chloride, the federal district court denied class certification both for plaintiffs’ proposed medical-monitoring class and for their property-damage class, each of which failed for the same reason—the “common” evidence for trial did not adequately typify the specific individuals who composed the two classes, and thus individual issues predominated over common issues. The Third Circuit cited the principles and factors set forth in Principles of the Law of Aggregate Litigation §§ 2.02–2.05 and 2.07–2.08 before affirming the district court’s finding that liability was inseverable from other issues that would be left for follow-up proceedings, i.e., fact of damages, amount of damages, causation, and extent of contamination.
The court noted that, in choosing to follow the “sound guidance” of the Principles, as well as the approach taken in an earlier decision by the court, it would join neither camp in a circuit disagreement over the extent to which the ability to certify issue classes altered the predominance requirement. The court cited § 2.02, Comment d, in holding that evidence of exposure of hypothetical, composite persons could not be substituted for evidence of exposure of actual class members in order to gain class certification. Gates v. Rohm and Haas Co., 655 F.3d 255 (3d Cir., August 25, 2011).