                IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                _______________

                                   No. 95-30725
                                 _______________



                            DIANNE CASTANO, et al.,

                                                       Plaintiffs-Appellees,


                                      VERSUS

                THE AMERICAN TOBACCO COMPANY, et al.,

                                                       Defendants-Appellants.


                           _________________________

            Appeal from the United States District Court
               for the Eastern District of Louisiana
                      _________________________
                             May 23, 1996


Before SMITH, DUHÉ, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:



      In what may be the largest class action ever attempted in

federal court, the district court in this case embarked “on a road

certainly less traveled, if ever taken at all,” Castano v. American

Tobacco Co., 160 F.R.D. 544, 560 (E.D. La. 1995) (citing EDWARD C.

LATHAM, THE POETRY   OF   ROBERT FROST, “THE ROAD NOT TAKEN” 105 (1969)), and

entered a class certification order.           The court defined the class

as:

      (a) All nicotine-dependent persons in the United States
      . . . who have purchased and smoked cigarettes manufac-

                                        1
       tured by the defendants;

       (b) the estates, representatives, and administrators of
       these nicotine-dependent cigarette smokers; and

       (c) the spouses, children, relatives and “significant
       others” of these nicotine-dependent cigarette smokers as
       their heirs or survivors.

Id. at 560-61.          The plaintiffs limit the claims to years since

1943.1

       This matter comes before us on interlocutory appeal, under

28 U.S.C. § 1292(b), of the class certification order.                          Concluding

that the district court abused its discretion in certifying the

class, we reverse.



                                              I.

                              A.    The Class Complaint

       The     plaintiffs2      filed     this     class     complaint       against      the

defendant tobacco companies3 and the Tobacco Institute, Inc.,


       1
           The court defined “nicotine-dependent” as:

       (a) All cigarette smokers who have been diagnosed by a medical
       practitioner as nicotine-dependent; and/or
       (b) All regular cigarette smokers who were or have been advised by
       a medical practitioner that smoking has had or will have adverse
       health consequences who thereafter do not or have not quit smoking.
Id. at 561. The definition is based upon the criteria for “dependence” set forth
in AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th
ed.).
       2
         The original class plaintiffs were Ernest R. Perry, Sr., T. George
Solomon, Jr., and Dianne A. Castano. The class representatives include Perry,
Gloria Scott, and Deania Jackson, all current cigarette smokers. Dianne Castano
is a class representative on behalf of her deceased husband, Peter Castano.
       3
        The defendant tobacco companies are The American Tobacco Company, Inc.,
R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, Phillip
Morris, Inc., Liggett & Meyers, Inc., Lorillard Tobacco Company, Inc., and United
                                                                          (continued...)

                                              2
seeking compensation solely for the injury of nicotine addiction.

The gravamen of their complaint is the novel and wholly untested

theory that the defendants fraudulently failed to inform consumers

that nicotine is addictive and manipulated the level of nicotine in

cigarettes to sustain their addictive nature.             The class complaint

alleges nine      causes    of   action:    fraud   and    deceit,   negligent

misrepresentation, intentional infliction of emotional distress,

negligence      and   negligent    infliction     of   emotional     distress,

violation of state consumer protection statutes, breach of express

warranty, breach of implied warranty, strict product liability, and

redhibition pursuant to the Louisiana Civil Code.

         The plaintiffs seek compensatory4 and punitive damages5 and

attorneys’ fees.6          In addition, the plaintiffs seek equitable

relief for fraud and deceit, negligent misrepresentation, violation

of consumer protection statutes, and breach of express and implied

warranty.       The equitable remedies include a declaration that

defendants are financially responsible for notifying all class

members of nicotine’s addictive nature, a declaration that the


(...continued)
States Tobacco Company. Prior to oral argument, Liggett & Meyers, Inc., filed
in this court a motion conditionally to dismiss, without prejudice, its appeal
because of a pending settlement with the plaintiffs. We have declined to enter
the requested dismissal.
     4
       The plaintiffs seek compensatory damages for fraud and deceit, negligent
misrepresentation, intentional infliction of emotional distress, breach of
express and implied warranty, strict products liability, and redhibition.
      5
        The plaintiffs seek punitive damages for fraud and deceit, intentional
infliction of emotional distress, negligence, and negligent infliction of
emotional distress.
     6
       The plaintiffs seek attorneys’ fees for violations of consumer protection
statutes and redhibition.

                                       3
defendants manipulated nicotine levels with the intent to sustain

the addiction of plaintiffs and the class members, an order that

the defendants disgorge any profits made from the sale of ciga-

rettes, restitution for sums paid for cigarettes, and the estab-

lishment of a medical monitoring fund.

       The plaintiffs initially defined the class as “all nicotine

dependent persons in the United States,” including current, former

and    deceased    smokers    since   1943.        Plaintiffs    conceded   that

addiction would have to be proven by each class member; the

defendants    argued   that      proving   class    membership    will   require

individual mini-trials to determine whether addiction actually

exists.

       In response to the district court’s inquiry, the plaintiffs

proposed a four-phase trial plan.7             In phase 1, a jury would

determine common issues of “core liability.”             Phase 1 issues would

include8   (1) issues of law and fact relating to defendants’ course

of    conduct,    fraud,   and   negligence   liability     (including      duty,

standard of care, misrepresentation and concealment, knowledge,

intent); (2) issues of law and fact relating to defendants’ alleged

conspiracy and concert of action; (3) issues of fact relating to

the    addictive    nature/dependency       creating    characteristics       and

properties of nicotine; (4) issues of fact relating to nicotine



       7
         The district court did not adopt the plaintiffs’ trial plan, but its
order certifying the class incorporates many elements of it.
       8
        For purposes of clarity, those issues that the district court did not
certify as common have been left out of this summary of the plaintiffs’ trial
plan.

                                       4
cigarettes as defective products; (5) issues of fact relating to

whether defendants’ wrongful conduct was intentional, reckless or

negligent; (6) identifying which defendants specifically targeted

their advertising and promotional efforts to particular groups

(e.g. youths, minorities, etc.); (7) availability of a presumption

of reliance; (8) whether defendants’ misrepresentations/suppression

of   fact    and/or    of   addictive       properties       of   nicotine     preclude

availability     of    a    “personal      choice”     defense;      (9)    defendants’

liability for actual damages, and the categories of such damages;

(10) defendants’ liability for emotional distress damages; and

(11) defendants’ liability for punitive damages.

      Phase 1 would be followed by notice of the trial verdict and

claim forms to class members.              In phase 2, the jury would determine

compensatory damages in sample plaintiff cases.                           The jury then

would    establish     a    ratio    of    punitive        damages   to    compensatory

damages, which ratio thereafter would apply to each class member.

      Phase 3 would entail a complicated procedure to determine

compensatory damages for individual class members.                      The trial plan

envisions     determination         of    absent    class    members’      compensatory

economic and emotional distress damages on the basis of claim

forms,      “subject   to    verification          techniques     and     assertion    of

defendants’     affirmative         defenses       under    grouping,      sampling,   or

representative procedures to be determined by the Court.”

      The trial plan left open how jury trials on class members’

personal injury/wrongful death claims would be handled, but the

trial plan discussed the possibility of bifurcation.                        In phase 4,


                                             5
the court would apply the punitive damage ratio based on individual

damage awards and would conduct a review of the reasonableness of

the award.



                    B.    The Class Certification Order

     Following extensive briefing, the district court granted, in

part, plaintiffs’ motion for class certification, concluding that

the prerequisites of FED. R. CIV. P. 23(a) had been met.9               The court

rejected certification, under FED. R. CIV. P. 23(b)(2), of the

plaintiffs’ claim for equitable relief, including the claim for

medical monitoring.        160 F.R.D. at 552.     Appellees have not cross-

appealed that portion of the order.

     The court did grant the plaintiffs’ motion to certify the

class under FED. R. CIV. P. 23(b)(3),10 organizing the class action

issues into four categories: (1) core liability; (2) injury-in-

fact,     proximate      cause,   reliance     and   affirmative        defenses;



     9
         Rule 23(a) states:

                   One or more members of a class may sue or be sued
             as representative parties on behalf of all only if
             (1) the class is so numerous that joinder of all members
             is impracticable, (2) there are questions of law or fact
             common to the class, (3) the claims or defenses of the
             representative parties are typical of the claims or
             defenses of the class, and (4) the representative
             parties will fairly and adequately protect the interests
             of the class.
       10
          Rule 23(b)(3) states, in pertinent part, that a class action may be
maintained 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.

                                        6
(3) compensatory damages; and (4) punitive damages. Id. at 553-58.

It then analyzed each category to determine whether it met the

predominance and superiority requirements of rule 23(b)(3).             Using

its power to sever issues for certification under FED. R. CIV.

P. 23(c)(4), the court certified the class on core liability and

punitive damages, and certified the class conditionally pursuant to

FED. R. CIV. P. 23(c)(1).



                       1. Core Liability Issues

     The court defined core liability issues as “common factual

issues [of] whether defendants knew cigarette smoking was addic-

tive, failed to inform cigarette smokers of such, and took actions

to addict cigarette smokers.         Common legal issues include fraud,

negligence,   breach   of   warranty      (express    or   implied),   strict

liability,    and   violation   of     consumer      protection   statutes.”

160 F.R.D. at 553.

     The court found that the predominance requirement of rule

23(b)(3) was satisfied for the core liability issues.             Without any

specific analysis regarding the multitude of issues that make up

“core liability,” the court found that under Jenkins v. Raymark

Indus., 782 F.2d 468 (5th Cir. 1986), common issues predominate

because resolution of core liability issues would significantly

advance the individual cases.        The court did not discuss why “core

liability” issues would be a significant, rather than just common,

part of each individual trial, nor why the individual issues in the

remaining categories did not predominate over the common “core


                                      7
liability” issues.

      The only specific analysis on predominance analysis was on the

plaintiffs’ fraud claim.        The court determined that it would be

premature to hold that individual reliance issues predominate over

common issues.     Relying on Eisen v. Carlisle & Jacquelin, 417 U.S.

156 (1974), the court stated that it could not inquire into the

merits of the plaintiffs’ claim to determine whether reliance would

be an issue in individual trials.          160 F.R.D. at 554.       Moreover,

the court recognized the possibility that under state law, reliance

can be inferred when a fraud claim is based on an omission.

Accordingly, the court was convinced that it could certify the

class and defer the consideration of how reliance would affect

predominance.

      The court also deferred substantial consideration of how

variations in state law would affect predominance.            Relying on two

district court opinions,11 the court concluded that issues of fraud,

breach   of   warranty,     negligence,   intentional    tort,   and   strict

liability do not vary so much from state to state as to cause

individual    issues   to   predominate.      The   court   noted   that   any

determination of how state law variations affect predominance was

premature, as the court had yet to make a choice of law determina-

tion.    As for the consumer protection claims, the court also

      11
         The court cited In re Asbestos Sch. Litig., 104 F.R.D. 422, 434 (E.D.
Pa. 1984) (discussing the similarity of negligence and strict liability in U.S.
jurisdictions), aff’d in part and reversed in part sub nom. School Dist. of
Lancaster v. Lake Asbestos, Ltd. (In re Sch. Asbestos Litig.) (“School
Asbestos”), 789 F.2d 996, 1010 (3d Cir.), cert. denied, 479 U.S. 852, and cert.
denied, 479 U.S. 915 (1986), and In re Cordis Cardiac Pacemaker Prod. Liability
Litig., No. C-3-90-374 (S.D. Ohio Dec. 23, 1992) (unpublished) (discussing
similarities among negligence, strict liability, and fraud).

                                      8
deferred analysis of state law variations, because “there has been

no showing that the consumer protection statutes differ so much as

to make individual issues predominate.”      Id.

     The court also concluded that a class action is superior to

other methods for adjudication of the core liability issues.

Relying heavily on Jenkins, the court noted that having this common

issue litigated in a class action was superior to repeated trials

of the same evidence.     Recognizing serious problems with manage-

ability, it determined that such problems were outweighed by “the

specter of   thousands,   if   not   millions,   of   similar   trials    of

liability proceeding in thousands of courtrooms around the nation.”

Id. at 555-56.



         2. Injury-in-fact, Proximate Cause, Reliance,
         Affirmative Defenses, and Compensatory Damages

     Using the same methodology as it did for the core liability

issues, the district court refused to certify the issues of injury-

in-fact, proximate   cause,    reliance,   affirmative    defenses,      and

compensatory damages, concluding that the “issues are so overwhelm-

ingly replete with individual circumstances that they quickly

outweigh predominance and superiority.” Id. at 556. Specifically,

the court found that whether a person suffered emotional injury

from addiction, whether his addiction was caused by the defendants’

actions, whether he relied on the defendants’ misrepresentations,

and whether affirmative defenses unique to each class member

precluded recovery were all individual issues.        As to compensatory

damages and the claim for medical monitoring, the court concluded

                                     9
that such claims were so intertwined with proximate cause and

affirmative defenses that class certification would not materially

advance the individual cases.



                            3. Punitive Damages

       In certifying punitive damages for class treatment, the court

adopted the plaintiffs’ trial plan for punitive damages: The class

jury would develop a ratio of punitive damages to actual damages,

and the court would apply that ratio in individual cases.                 As it

did with the core liability issues, the court determined that

variations in state law, including differing burdens of proof, did

not preclude certification.            Rather than conduct an independent

review of predominance or superiority, the court relied on Jenkins

and on Watson v. Shell Oil Co., 979 F.2d 1014 (5th Cir. 1992),

vacated for rehearing en banc, 990 F.2d 805 (5th Cir. 1993), appeal

dismissed,    53   F.3d   663   (5th    Cir.   1994),   for   support   of   its

certification order.12



                                        II.

      A district court must conduct a rigorous analysis of the

rule 23 prerequisites before certifying a class.              General Tel. Co.

v. Falcon, 457 U.S. 147, 161 (1982); Applewhite v. Reichold Chems.,



      12
         The panel opinion in Watson has no precedential weight in this circuit.
While the case was awaiting rehearing en banc, it settled. According to the
Internal Operating Procedure accompanying 5TH CIR. R. 35, “the effect of granting
a rehearing en banc is to vacate the previous opinion and judgment of the Court
and to stay the mandate.” See de Aguilar v. Boeing Co., 47 F.3d 1404, 1411 (5th
Cir.), cert. denied, 116 S. Ct. 180 (1995).

                                        10
67 F.3d 571, 573 (5th Cir. 1995).             The decision to certify is

within the broad discretion of the court, but that discretion must

be exercised within the framework of rule 23.                Gulf Oil Co. v.

Bernard, 452 U.S. 89, 100 (1981).          The party seeking certification

bears the burden of proof.       Horton v. Goose Creek Ind. Sch. Dist.,

690 F.2d 470, 486 (5th Cir. 1982), cert. denied, 463 U.S. 1207

(1983); In re American Medical Sys., 75 F.3d 1069, 1086 (6th Cir.

1996) (concluding that district court reversed the proper burden of

proof by asking defendants to show cause why the court should not

certify the class).

      The district court erred in its analysis in two distinct ways.

First, it failed to consider how variations in state law affect

predominance and superiority. Second, its predominance inquiry did

not include consideration of how a trial on the merits would be

conducted.

      Each of these defects mandates reversal.              Moreover, at this

time, while the tort is immature, the class complaint must be

dismissed, as class certification cannot be found to be a superior

method of adjudication .13



                         A. Variations in State Law

      Although    rule   23(c)(1)    requires    that   a   class   should   be


      13
         The defendants raise a number of additional challenges to the district
court’s order, including claims that individual issues predominate, that the use
of a punitive damage ratio violates due process, that a multi-state class action
inevitably will violate Erie R.R. v. Tompkins, 304 U.S. 64 (1938), and that
bifurcation of core liability issues in a class action violates article III of
the Constitution. Given our conclusion that this matter cannot proceed as a
class action in any event, we find it unnecessary to address those issues.

                                      11
certified “as soon as practicable” and allows a court to certify a

conditional class, it does not follow that the rule’s requirements

are lessened when the class is conditional.    As a sister circuit

explained:

     Conditional certification is not a means whereby the
     District Court can avoid deciding whether, at that time,
     the requirements of the Rule have been substantially met.
     The purpose of conditional certification is to preserve
     the Court’s power to revoke certification in those cases
     wherein the magnitude or complexity of the litigation may
     eventually reveal problems not theretofore apparent. But
     in this case the District Court seemed to brush aside one
     of the requirements of Rule 23(b)(3) by stating that at
     this time “analysis of the individual versus common
     questions would be for the Court to act as a seer.”
     However difficult it may have been for the District Court
     to decide whether common questions predominate over
     individual questions, it should not have sidestepped this
     preliminary requirement of the Rule by merely stating
     that the problem of individual questions “lies far beyond
     the horizon in the realm of speculation.”

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

     In a multi-state class action, variations in state law may

swamp any common issues and defeat predominance.   See   Georgine v.

Amchem Prods., 1996 WL 242442, at *2 (3d Cir. May 10, 1996)

(decertifying class because legal and factual differences in the

plaintiffs’ claims “when exponentially magnified by choice of law

considerations, eclipse any common issues in this case.”); American

Medical Sys.,   75 F.3d at 1085 (granting mandamus in a multi-state

products liability action, in part because “[t]he district court

. . . failed to consider how the law of negligence differs from

jurisdiction to jurisdiction”).

     Accordingly, a district court must consider how variations in

state law affect predominance and superiority. Walsh v. Ford Motor


                                  12
Co., 807 F.2d 1000 (D.C. Cir. 1986) (Ruth Bader Ginsburg, J.),

cert. denied, 482 U.S. 915 (1987).       The Walsh court rejected the

notion that a district court may defer considering variations in

state law:

     Appellees see the “which law” matter as academic. They
     say no variations in state warranty laws relevant to this
     case exist. A court cannot accept such an assertion “on
     faith.” Appellees, as class action proponents, must show
     that it is accurate. We have made no inquiry of our own
     on this score and, for the current purpose, simply note
     the general unstartling statement made in a leading
     treatise: “The Uniform Commercial Code is not uniform.”

Id. at 1016-17 (footnotes omitted).

     A district court’s duty to determine whether the plaintiff has

borne its burden on class certification requires that a court

consider variations in state law when a class action involves

multiple jurisdictions. “In order to make the findings required to

certify a class action under Rule 23(b)(3) . . . one must initially

identify the substantive law issues which will control the outcome

of the litigation.”    Alabama v. Blue Bird Body Co., 573 F.2d 309,

316 (5th Cir. 1978).

     A requirement that a court know which law will apply before

making a predominance determination is especially important when

there may be differences in state law.         See In re Rhone-Poulenc

Rorer, Inc. (“Rhone-Poulenc”), 51 F.3d 1293, 1299-1302 (7th Cir.)

(mandamus)   (comparing   differing    state   pattern   instructions   on

negligence and differing formulations of the meaning of negli-

gence), cert. denied, 116 S. Ct. 184 (1995); In re “Agent Orange”

Prod. Liability Litig., 818 F.2d 145, 165 (2d Cir. 1986) (noting

possibility of differences in state products liability law), cert.

                                  13
denied, 484 U.S. 1004 (1988).        Given the plaintiffs’ burden, a

court cannot rely on assurances of counsel that any problems with

predominance or superiority can be overcome.          Windham v. American

Brands, Inc., 565 F.2d 59, 70 (4th Cir. 1977), cert. denied, 435

U.S. 968 (1978).

       The able opinion in School Asbestos demonstrates what is

required from a district court when variations in state law exist.

There, the court affirmed class certification, despite variations

in state law, because:

       To meet the problem of diversity in applicable state law,
       class plaintiffs have undertaken an extensive analysis of
       the variances in products liability among the jurisdic-
       tions. That review separates the law into four catego-
       ries. Even assuming additional permutations and combina-
       tions, plaintiffs have made a creditable showing, which
       apparently satisfied the district court, that class
       certification does not present insuperable obstacles.
       Although we have some doubt on this score, the effort may
       nonetheless prove successful.

789 F.2d at 1010; see also Georgine, 1996 WL 242442, at *12 & n.13

(distinguishing School Asbestos because it involved few individual-

ized questions, and class counsel had made a credible argument that

the applicable law of the different states could be categorized

into   four   patterns);   Walsh,   807   F.2d   at   1017   (holding   that

“nationwide    class   action   movants   must   creditably   demonstrate,

through an ‘extensive analysis’ of state law variances, ‘that class

certification does not present insuperable obstacles’”).

       A thorough review of the record demonstrates that, in this

case, the district court did not properly consider how variations

in state law affect predominance.         The court acknowledged as much

in its order granting class certification, for, in declining to

                                    14
make a choice of law determination, it noted that “[t]he parties

have only briefly addressed the conflict of laws issue in this

matter.”        160 F.R.D. at 554.         Similarly, the court stated that

“there has been no showing that the consumer protection statutes

differ so much as to make individual issues predominate.”                  Id.14

      The district court’s review of state law variances can hardly

be considered extensive; it conducted a cursory review of state law

variations and gave short shrift to the defendants’ arguments

concerning variations.           In response to the defendants’ extensive

analysis of how state law varied on fraud, products liability,

affirmative defenses, negligent infliction of emotional distress,

consumer protection statutes, and punitive damages,15 the court

           14
           The defendants contend that this statement shows that the court
erroneously placed the burden on them to show that the various state statutes
differ, rather than on the plaintiffs to show that they do not. See American
Medical Systems, 75 F.3d at 1085.
      15
         We find it difficult to fathom how common issues could predominate in
this case when variations in state law are thoroughly considered. The Georgine
court found that common issues in an asbestos class action did not predominate:

                      However, beyond these broad issues, the class
                members’ claims vary widely in character. Class members
                were exposed to different asbestos-containing products,
                for different amounts of time, in different ways, and
                over different periods. Some class members suffer no
                physical injury or have only asymptomatic pleural
                changes, while others suffer from lung cancer, disabling
                asbestosis, or from mesotheliomaSSa disease which,
                despite a latency period of approximately fifteen to
                forty years, generally kills its victims within two
                years after they become symptomatic.        Each has a
                different history of cigarette smoking, a factor that
                complicates the causation inquiry.
                      . . .
                      These factual differences translate into signifi-
                cant legal differences.      Differences in amount of
                exposure and nexus between exposure and injury lead to
                disparate applications of legal rules, including matters
                of causation, comparative fault, and the types of
                                                                   (continued...)

                                          15
examined a sample phase 1 jury interrogatory and verdict form, a


(...continued)
            damages available to each plaintiff.
                  Furthermore, because we must apply an individual-
            ized choice of law analysis to each plaintiff’s claims,
            the proliferation of disparate factual and legal issues
            is compounded exponentially. . . . In short, the number
            of uncommon issues in this humongous class action, with
            perhaps as many as a million class members, is colossal.
1995 WL 242442, at *11 (citations omitted).
      The Castano class suffers from many of the difficulties that the Georgine
court found dispositive. The class members were exposed to nicotine through
different products, for different amounts of time, and over different time
periods. Each class member’s knowledge about the effects of smoking differs, and
each plaintiff began smoking for different reasons.      Each of these factual
differences impacts the application of legal rules such as causation, reliance,
comparative fault, and other affirmative defenses.
      Variations in state law magnify the differences. In a fraud claim, some
states require justifiable reliance on a misrepresentation, see Allgood v. R.J.
Reynolds Tobacco Co., 80 F.3d 168, 171 (5th Cir. 1996); Burroughs v. Jackson
Nat’l Life Ins. Co., 618 So. 2d 1329, 1332 (Ala. 1993), while others require
reasonable reliance, see Parks v. Morris Homes Corp., 141 S.E.2d 129, 132 (S.C.
1965). States impose varying standards to determine when there is a duty to
disclose facts. See Sugarhouse Fin. Co. v. Anderson, 610 P.2d 1369, 1373 (Utah
1980) (finding no duty when transaction was made at arm’s length); Dodd v. Nelda
Stephenson Chevrolet, Inc., 626 So. 2d 1288, 1293 (Ala. 1993) (using a flexible
standard based on the transaction and relationship of the parties).

       Products liability law also differs among states. Some states do not
recognize strict liability. E.g., Cline v. Prowler Indus., 418 A.2d 968, 979-80
(Del. 1980). Some have adopted RESTATEMENT (SECOND) OF TORTS § 402A. E.g., O.S.
Stapley Co. v. Miller, 447 P.2d 248, 251-52 (Ariz. 1968). Among the states that
have adopted the Restatement, there are variations. See 5 STUART M. SPEISER ET AL.,
THE AMERICAN LAW OF TORTS §§ 18.31, 18:34-18:35 (Law Co-op 1996).

      Differences in affirmative defenses also exist. Assumption of risk is a
complete defense to a products claim in some states.          E.g., S.C. CODE ANN.
§ 15-73-20 (Law Co-op 1976). In others, it is a part of comparative fault
analysis. E.g., COLO. REV. STAT. § 13-21-111.7 (1986). Some states utilize “pure”
comparative fault, e.g., ARIZ. REV. STAT. ANN. § 12-2503-09 (1984); others follow
a “greater fault bar,” e.g., CONN. GEN. STAT. ANN. § 52-572h (West 1988); and still
others use an “equal fault bar,” e.g., ARK. CODE ANN. § 16-64-122 (Michie 1991).

      Negligent infliction of emotional distress also involves wide variations.
See Douglas B. Marlow, Negligent Infliction of Mental Distress: A Jurisdictional
Survey of Existing Limitation Devices and Proposal Based on an Analysis of
Objective Versus Subjective Indices of Distress, 33 VILL. L. REV. 781 (1988).
Some states do not recognize the cause of action at all. See Allen v. Walker,
569 So. 2d 350, 352 (Ala. 1990). Some require a physical impact. See OB-GYN
Assocs. v. Littleton, 386 S.E.2d 146, 148 (Ga. 1989).
      Despite these overwhelming individual issues, common issues might
predominate. We are, however, left to speculate. The point of detailing the
alleged differences is to demonstrate the inquiry the district court failed to
make.

                                        16
survey of medical monitoring decisions, a survey of consumer fraud

class   actions,    and   a   survey   of   punitive   damages    law   in   the

defendants’ home states.         The court also relied on two district

court opinions granting certification in multi-state class actions.

      The district court’s consideration of state law variations was

inadequate.      The surveys provided by the plaintiffs failed to

discuss, in any meaningful way, how the court could deal with

variations in state law.        The consumer fraud survey simply quoted

a few state courts that had certified state class actions.                   The

survey of punitive damages was limited to the defendants’ home

states.      Moreover, the two district court opinions on which the

court relied did not support the proposition that variations in

state law could be ignored.16          Nothing in the record demonstrates

that the court critically analyzed how variations in state law

would affect predominance.

      The court also failed to perform its duty to determine whether


        16
          Both the plaintiffs and the district court cite Cordis and School
Asbestos for the definitive proposition that state law does not vary enough in
negligence, strict liability, or fraud to prevent certification. See Castano,
160 F.R.D. at 554.    Putting aside the obvious objection that a court must
independently analyze the case before it to determine predominance, such reliance
is misplaced.

      In Cordis, the court specifically recognized that there are differences in
the law of strict liability and fraud in different jurisdictions. The court
certified the class despite those differences because the differences did not
eliminate predominance in that particular case.      Such a finding cannot be
reflexively applied to the case sub judice.

      The same is true of School Asbestos.       Like the court in Cordis, the
district court there found little variation in state negligence law. The Third
Circuit agreed that the variations in strict liability would not make the class
unmanageable. 789 F.2d at 1009. See also Georgine, 1996 WL 242442, at *12 &
n.13 (acknowledging that the court in School Asbestos certified the class despite
variations in state law, but limiting the reach of the decision to cases where
variations can be broken down into a small number of patterns). It is a stretch
to characterize these two cases as standing for the proposition that state law
does not vary on negligence, strict liability, or fraud.

                                       17
the   class   action    would   be   manageable    in   light   of   state   law

variations.     The court’s only discussion of manageability is a

citation to Jenkins and the claim that “[w]hile manageability of

the liability issues in this case may well prove to be difficult,

the Court finds that any such difficulties pale in comparison to

the specter of thousands, if not millions, of similar trials of

liability proceeding in thousands of courtrooms around the nation.”

Id. at 555-56.

      The problem with this approach is that it substitutes case-

specific analysis with a generalized reference to Jenkins.                   The

Jenkins court, however, was not faced with managing a novel claim

involving eight causes of action, multiple jurisdictions, millions

of plaintiffs, eight defendants, and over fifty years of alleged

wrongful conduct.        Instead, Jenkins involved only 893 personal

injury asbestos cases, the law of only one state, and the prospect

of trial occurring in only one district. Accordingly, for purposes

of the instant case, Jenkins is largely inapposite.

      In summary, whether the specter of millions of cases outweighs

any manageability problems in this class is uncertain when the

scope of any manageability problems is unknown.             Absent considered

judgment on    the     manageability    of   the   class,   a   comparison    to

millions of individual trials is meaningless.



                                B. Predominance

      The district court’s second error was that it failed to

consider how the plaintiffs’ addiction claims would be tried,


                                       18
individually or on a class basis.            See 160 F.R.D. at 554.          The

district court, based on Eisen v. Carlisle & Jacquelin, 417 U.S.

156, 177-78 (1974), and Miller v. Mackey Int’l, 452 F.2d 424 (5th

Cir. 1971), believed that it could not go past the pleadings for

the certification decision.           The result was an incomplete and

inadequate predominance inquiry.

      The crux of the court’s error was that it misinterpreted Eisen

and Miller.     Neither case suggests that a court is limited to the

pleadings when deciding on certification. Both, instead, stand for

the unremarkable proposition that the strength of a plaintiff’s

claim should not affect the certification decision.              In Eisen, the

Court held that it was improper to make a preliminary inquiry into

the merits of a case, determine that the plaintiff was likely to

succeed, and consequently shift the cost of providing notice to the

defendant.     417 U.S. at 177.       In Miller, this court held that a

district court could not deny certification based on its belief

that the plaintiff could not prevail on the merits.                   452 F.2d

at 427.

      A district court certainly may look past the pleadings to

determine whether the requirements of rule 23 have been met.17


     17
        See Falcon, 457 U.S. at 160 (“Sometimes the issues are plain enough from
the pleadings . . . and sometimes it may be necessary for the court to probe
behind the pleadings before coming to rest on the certification question.”);
Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (reasoning that “the class
determination generally involves considerations that are ‘enmeshed in the factual
and legal issues comprising the plaintiff’s cause of action.’”); id. at 469 n.12
(“‘Evaluation of many of the questions entering into determination of class
action questions is intimately involved with the merits of the claims. The
typicality of the representative’s claim or defenses . . . and the presence of
common questions of law or fact are obvious examples.          The more complex
determinations required in Rule 23(b)(3) class actions entail even greater
                                                               (continued...)

                                       19
Going beyond the pleadings is necessary, as a court must understand

the claims, defenses, relevant facts, and applicable substantive

law in order to make a meaningful determination of the certifica-

tion issues.      See MANUAL   FOR   COMPLEX LITIGATION § 30.11 (3d ed. 1995).

      The district court’s predominance inquiry demonstrates why

such an understanding is necessary.               The premise of the court’s

opinion is a citation to Jenkins and a conclusion that class

treatment    of    common      issues    would    significantly   advance    the

individual trials.       Absent knowledge of how addiction-as-injury

cases would actually be tried, however, it was impossible for the

court to know whether the common issues would be a “significant”

portion of the individual trials.                The court just assumed that

because the common issues would play a part in every trial, they

must be significant.18         The court’s synthesis of Jenkins and Eisen

would write the predominance requirement out of the rule, and any

common issue would predominate if it were common to all the


(...continued)
entanglement with the merits.’”); Love v. Turlington, 733 F.2d 1562, 1564 (11th
Cir. 1984) (“While it is true that a trial court may not properly reach the
merits of a claim when determining whether the class certification is warranted,
this principle should not be talismanically invoked to artificially limit a trial
court’s examination of the factors necessary to a reasoned determination of
whether a plaintiff has met her burden of establishing each of the Rule 23 class
action requirements.”); Huff v. N.D. Cass Co., 485 F.2d 710, 713 (5th Cir. 1973)
(en banc) (“It is inescapable that in some cases there will be overlap between
the demands of [rule] 23(a) and (b) and the question of whether plaintiff can
succeed on the merits.”).
      18
         The district court’s approach to predominance stands in stark contrast
to the methodology the district court used in Jenkins. There, the district judge
had a vast amount of experience with asbestos cases. He certified the state of
the art defense because it was the most significant contested issue in each case.
Jenkins, 109 F.R.D. at 279. To the contrary, however, the district court in the
instant case did not, and could not, have determined that the common issues would
be a significant part of each case. Unlike the judge in Jenkins, the district
judge a quo had no experience with this type of case and did not even inquire
into how a case would be tried to determine whether the defendants’ conduct would
be a significant portion of each case.

                                         20
individual trials.19

      The court’s treatment of the fraud claim also demonstrates the

error inherent in its approach.20          According to both the advisory

committee’s notes to Rule 23(b)(3) and this court’s decision in

Simon v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 482 F.2d 880



           19
             An incorrect predominance finding also implicates the court’s
superiority analysis: The greater the number of individual issues, the less
likely superiority can be established. American Medical Sys., 75 F.3d at 1084-85
(distinguishing a single disaster mass tort from a more complex mass tort). The
relationship between predominance and superiority in mass torts was recognized
in the Advisory Committee’s note to rule 23(b)(3), which states:
      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 to liability, would be present, affecting the
      individuals in different ways. In these circumstances an action
      conducted nominally as a class action would degenerate in practice
      into multiple lawsuits separately tried.
FED. R. CIV. P. 23(b)(3) advisory committee’s note (citation omitted), reprinted
in 39 F.R.D. 69, 103 (1966). See also Georgine, 1996 WL 242442, at *12-*13
(relying on the Advisory Committee’s note); American Medical Sys., 73 F.3d at
1084-85.

      The plaintiffs assert that Professor Charles Allen Wright, a member of the
Advisory Committee has now repudiated this passage in the notes. See H. NEWBERG,
3 NEWBERG ON CLASS ACTIONS § 17.06 (3d ed. 1992).    Professor Wright’s recent
statements, made as an advocate in School Asbestos, must be viewed with some
caution. As Professor Wright has stated:
            I certainly did not intend by that statement to say that a
      class should be certified in all mass tort cases. I merely wanted
      to take the sting out of the statement in the Advisory Committee
      Note, and even that said only that a class action is “ordinarily not
      appropriate” in mass-tort cases.     The class action is a complex
      device that must be used with discernment. I think for example that
      Judge Jones in Louisiana would be creating a Frankenstein’s monster
      if he should allow certification of what purports to be a class
      action on behalf of everyone who has ever been addicted to nicotine.
Letter of Dec. 22, 1994, to N. Reid Neureiter, Williams & Connolly, Washington,
D.C.
      20
          The court specifically discussed reliance in the context of a fraud
claim. Reliance is also an element of breach of warranty claims in some states,
see, e.g., Modern Farm Serv., Inc. v. Ben Pearson, Inc., 308 F.2d 18, 23 (5th
Cir. 1962) (Arkansas); Caruso v. Celsius Insulation Resources, Inc., 101 F.R.D.
530, 536 (M.D. Pa. 1984), and an element of consumer protection statutes in
others, see, e.g., Louisiana ex rel. Guste v. General Motors Corp., 370 So. 2d
477, 489 (La. 1979).

                                      21
(5th Cir. 1973), a fraud class action cannot be certified when

individual reliance will be an issue.           The district court avoided

the reach of this court’s decision in Simon by an erroneous reading

of Eisen; the court refused to consider whether reliance would be

an issue in individual trials.

      The problem with the district court’s approach is that after

the class trial, it might have decided that reliance must be proven

in individual trials.         The court then would have been faced with

the difficult choice of decertifying the class after phase 1 and

wasting judicial resources, or continuing with a class action that

would have failed the predominance requirement of rule 23(b)(3).210.
Rule 23(b)(3) states:



      An action may be maintained as a class action if . . . the court
      finds that the questions of law or fact common to the members of the
      class predominate over any questions affecting only the individual

      members, and that a class action is superior to other available
      methods for the fair and efficient adjudication of the controversy.



      Rule 23(c)(4) states:


      When appropriate . . . an action may be brought or maintained as a

      class action with respect to particular issues, . . . and the
      provisions of this rule shall the be construed and applied accord-



     21
        Severing the defendants’ conduct from reliance under rule 23(c)(4) does
not save the class action. A district court cannot manufacture predominance
through the nimble use of subdivision (c)(4). The proper interpretation of the
interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as
a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is
a housekeeping rule that allows courts to sever the common issues for a class
trial.

                                      22
                22
       ingly.



                                         III.

       In addition to the reasons given above, regarding the district

court’s procedural errors, this class must be decertified because

it     independently         fails     the      superiority         requirement      of

rule     23(b)(3).      In   the     context    of    mass   tort    class   actions,

certification        dramatically     affects      the   stakes     for    defendants.

Class     certification      magnifies       and     strengthens     the    number   of

unmeritorious claims.         Agent Orange, 818 F.2d at 165-66.              Aggrega-

tion of claims also makes it more likely that a defendant will be

found liable and results in significantly higher damage awards.

MANUAL   FOR   COMPLEX LITIGATION § 33.26 n.1056; Kenneth S. Bordens and

Irwin A. Horowitz, Mass Tort Civil Litigation: The Impact of

Procedural Changes on Jury Decisions, 73 JUDICATURE 22 (1989).

       In addition to skewing trial outcomes, class certification

creates insurmountable pressure on defendants to settle, whereas

individual trials would not.            See Peter H. Schuck, Mass Torts: An

Institutional Evolutionist Perspective, 80 CORNELL L. REV. 941, 958



 See In re N.D. Cal. Dalkon Shield IUD Prods. Liability Litig., 693
F.2d 847, 856 (9th Cir. 1982) (balancing severed issues against the
remaining individual issues), cert. denied, 459 U.S. 1171 (1983);
see also Jenkins, 109 F.R.D. at 278 (comparing state of the art
defense to individual questions of exposure and degree of injury in
a class action certified only on the common issue of the state of
the art defense). Reading rule 23(c)(4) as allowing a court to
sever issues until the remaining common issue predominates over the
remaining individual issues would eviscerate the predominance
requirement of rule 23(b)(3); the result would be automatic
certification in every case where there is a common issue, a result
that could not have been intended.

                                          23
(1995).        The risk of facing an all-or-nothing verdict presents too

high a risk, even when the probability of an adverse judgment is

low.        Rhone-Poulenc, 51 F.3d at 1298.    These settlements have been

referred to as judicial blackmail.23

        It is no surprise then, that historically, certification of

mass tort litigation classes has been disfavored.24 The traditional


       23
        In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig.,
55 F.3d 768, 784-85 (3d Cir.), cert. denied, 116 S. Ct. 88 (1995); Rhone-Poulenc,
51 F.3d at 1299-1300. See also Georgine, 1996 WL 242442, at *10 n.10 (rejecting
the argument that the possibility of settlement should be factored positively in
applying rule 23(b)(3)). But see In re A.H. Robins Co., 880 F.2d 709, 740 (4th
Cir. 1985) (treating the fact that certification may foster settlement as a
positive factor when applying rule 23(b)(3)) (dicta), cert. denied, 493 U.S. 959
(1989).
      24
         At the time rule 23 was drafted, mass tort litigation as we now know it
did not exist. Schuck, supra, at 945. The term had been applied to single-event
accidents. Id. Even in those cases, the advisory committee cautioned against
certification. See supra note 19. As modern mass tort litigation has evolved,
courts have been willing to certify simple single disaster mass torts, see
Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1987), but have
been hesitant to certify more complex mass torts, see Georgine, 1996 WL 242442,
at *12-*14, *19 (discussing the trend in certification and decertifying an
asbestos class action); American Medical Sys., 75 F.3d at 1084-85. See also
Rhone-Poulenc, 51 F.3d 1293 (decertifying class); In re Joint E. & S. Dist.
Asbestos Litig., 14 F.3d 726 (2d Cir. 1993) (vacating limited fund class action);
In re Bendectin Prod. Liability Litig., 749 F.2d 300 (6th Cir. 1984) (granting
mandamus reversing class certification); Dalkon Shield IUD Prods. Liability
Litig., 693 F.2d at 856 (decertifying class for lack of commonality and
superiority); Harding v. Tambrands Inc., 165 F.R.D. 623, ___, 1996 WL 138057,
at *5 (D. Kan. 1996) (denying certification of nationwide class of persons
alleging toxic shock syndrome); Kurczi v. Eli Lilly & Co., 160 F.R.D. 667 (N.D.
Ohio 1995) (denying nationwide class certification); Hurd v. Monsanto Co., 164
F.R.D. 234 (S.D. Ind. 1995) (refusing to certify class of persons alleging PCB
exposure at one plant); Bethards v. Bard Access Sys., Inc., 1995 WL 75356 (N.D.
Ill. 1995) (recommending denial of class certification in products liability
action regarding catheters); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258 (S.D.
Cal. 1988) (denying class certification in flea and tick spray products liability
action); In re Tetracycline Cases, 107 F.R.D. 719 (W.D. Mo. 1985) (denying
certification because class action is not superior method of adjudication);
Mertens v. Abbott Laboratories, 99 F.R.D. 38 (D.N.H. 1983) (denying certification
of class in DES litigation); Ryan v. Eli Lilly & Co., 84 F.R.D. 230 (D.S.C. 1979)
(denying certification of class of women who took synthetic estrogen during
pregnancy); Yandle v. PPG Indus., 65 F.R.D. 566 (E.D. Tex. 1974) (denying
asbestos claims class certification). But see Central Wesleyan College v. W.R.
Grace & Co., 6 F.3d 177 (4th Cir. 1993) (affirming certification of class of
colleges in suit against asbestos manufacturer); Agent Orange, 818 F.2d at 166-67
(certifying class despite manageability difficulties because of centrality of
military contractor defense); School Asbestos, 789 F.2d 996; In re Teletronics
Pacing System, Inc., Acufix Atrail “J” Leads Prod. Liability Litig., No. C-1-95-
                                                               (continued...)

                                       24
concern over the rights of defendants in mass tort class actions is

magnified in the instant case.        Our specific concern is that a mass

tort cannot be properly certified without a prior track record of

trials from which the district court can draw the information

necessary to make the predominance and superiority requirements

required by rule 23.      This is because certification of an immature

tort results in a higher than normal risk that the class action may

not be superior to individual adjudication.

       We first address the district court’s superiority analysis.

The court acknowledged the extensive manageability problems with

this   class.      Such   problems    include    difficult    choice    of   law

determinations, subclassing of eight claims with variations in

state law, Erie guesses, notice to millions of class members,

further subclassing to take account of transient plaintiffs, and

the difficult procedure for determining who is nicotine-dependent.

Cases with far fewer manageability problems have given courts

pause.    See, e.g., Georgine, 1996 WL 242442, at *19; In re Hotel

Tel., 500 F.2d at 909.

       The district court’s rationale for certification in spite of

such problemsSSi.e., that a class trial would preserve judicial

resources in the millions of inevitable individual trialsSSis based


(...continued)
094 (S.D. Ohio, Nov. 17, 1995) (certifying class against manufacturer of alleged
defective pacemaker leads) (unpublished); In re Copley Pharmaceutical, Inc., 161
F.R.D. 456 (D. Wyo. 1995) (certifying nationwide class for limited threshold
liability issues regarding prescription drug albuterol, but refusing to certify
class for individual issues of liability and causation or punitive damages);
Craft v. Vanderbilt Univ., No. 3:94-0090 (M.D. Tenn. July 14, 1994) (certifying
class for exposure to a radioactive isotope in medical experiments)
(unpublished); In re Cordis Cardiac Pacemaker Prod. Liability Litig., No. C-3-90-
374 (S.D. Ohio Dec. 23, 1992) (unpublished).

                                       25
on pure speculation.        Not every mass tort is asbestos, and not

every mass tort will result in the same judicial crises.25                   The

judicial crisis to which the district court referred is only

theoretical.

      What the district court failed to consider, and what no court

can determine at this time, is the very real possibility that the

judicial crisis may fail to materialize.26           The plaintiffs’ claims


      25
          There is reason to believe that even a mass tort like asbestos could
be managed, without class certification, in a way that avoids judicial meltdown.
See Georgine, 1996 WL 242442, at *21 (suggesting methods, short of a nationwide
class action, that would be more efficient than individual trials); John A.
Siliciano, Mass Torts and the Rhetoric of Crisis, 80 CORNELL L. REV. 980, 1010-12
(1995) (suggesting that stringent “gate keeping” by courts at the outset would
have prevented asbestos from becoming a monstrous mass tort). In a case such as
this one, where causation is a key element, disaggregation of claims allows
courts to dismiss weak and frivolous claims on summary judgment.

      Where novel theories of recovery are advanced (such as addiction as
injury), courts can aggressively weed out untenable theories. See, e.g., Allgood
v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996) (rejecting
failure-to-warn claim against tobacco companies based on inadequate proof of
reliance and, alternatively, on “common knowledge” theory). Courts can use case
management techniques to avoid discovery abuses. The parties can also turn to
mediation and arbitration to settle individual or aggregated cases.
     26
        The plaintiffs, in seemingly inconsistent positions, argue that the lack
of a judicial crisis justifies certification; they assert that the reason why
individual plaintiffs have not filed claims is that the tobacco industry makes
individual trials far too expensive and plaintiffs are rarely successful. The
fact that a party continuously loses at trial does not justify class
certification, however. See American Medical Systems, 75 F.3d at 1087 and n.20
(granting mandamus in part because judge’s comments that class treatment was
warranted because the defendant had greater litigation resources than the
plaintiff demonstrated a bias in favor of certification by the judge). The
plaintiffs’ argument, if accepted, would justify class treatment whenever a
defendant has better attorneys and resources at its disposal.

      The plaintiffs’ claim also overstates the defendants’ ability to outspend
plaintiffs. Assuming arguendo that the defendants pool resources and outspend
plaintiffs in individual trials, there is no reason why plaintiffs still cannot
prevail. The class is represented by a consortium of well-financed plaintiffs’
lawyers who, over time, can develop the expertise and specialized knowledge
sufficient to beat the tobacco companies at their own game. See Francis E.
McGovern, An Analysis of Mass Torts for Judges, 73 TEX. L. REV. 1821, 1834-35
(1995) (suggesting that plaintiffs can overcome tobacco defendants’ perceived
advantage when a sufficient number of plaintiffs have filed claims and shared
discovery). Courts can also overcome the defendant’s alleged advantages through
coordination or consolidation of cases for discovery and other pretrial matters.
See MANUAL FOR COMPLEX LITIGATION at §33.21-25.

                                       26
are based on a new theory of liability and the existence of new

evidence.       Until plaintiffs decide to file individual claims, a

court cannot, from the existence of injury, presume that all or

even any plaintiffs will pursue legal remedies.270. See Allgood v. R.
J. Reynolds Tobacco Co., No. 95-20363, 1996 WL 146250, at *2 (5th Cir. Apr. 16,
1996) (holding that common knowledge is a defense to a duty to warn and warranty

claim).28    Nor can a court make a superiority determination based on

such speculation.      American Medical Sys., 75 F.3d at 1085 (opining

that superiority is lacking where judicial management crisis does

not exist and individual trials are possible).

      Severe manageability problems and the lack of a judicial

crisis are not the only reasons why superiority is lacking.                 The

most compelling rationale for finding superiority in a class

actionSSthe existence of a negative value suitSSis missing in this

case.       Accord Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809

(1985); Rhone-Poulenc, 51 F.3d at 1299.

      As he stated in the record, plaintiffs’ counsel in this case

has promised to inundate the courts with individual claims if class

certification is denied.       Independently of the reliability of this

self-serving promise, there is reason to believe that individual


     27
        There are numerous reasons why plaintiffs with positive-value suits opt
out of the tort system, including risk aversion to engaging in litigation,
privacy concerns, and alternative avenues for medical treatment, such as
Medicaid.   See McGovern, supra, at 1827-28.     In a case where comparative
negligence is raised, plaintiffs have the best insight into their own relative
fault.

   Ultimately, a court cannot extrapolate, from the number of
potential plaintiffs, the actual number of cases that will be
filed. See id. at 1823 & n.8 (contending that only 10 to 20% of
persons who suffer harm actually invoke the tort litigation
process).

                                      27
suits are feasible.   First, individual damage claims are high, and

punitive damages are available in most states.          The expense of

litigation does not necessarily turn this case into a negative

value suit, in part because the prevailing party may recover

attorneys’ fees under many consumer protection statutes. See Boggs

v. Alto Trailer Sales, 511 F.2d 114, 118 (5th Cir. 1974) (acknowl-

edging that the availability of attorneys’ fees is a common basis

for finding non-superiority).

     In a case such as this one, where each plaintiff may receive

a large award, and fee shifting often is available, we find Chief

Judge Posner’s analysis of superiority to be persuasive:

     For this consensus or maturing of judgment the district
     judge proposes to substitute a single trial before a
     single jury . . . . One jury . . . will hold the fate of
     an industry in the palm of its hand. . . . That kind of
     thing can happen in our system of civil justice . . . .
     But it need not be tolerated when the alternative exists
     of submitting an issue to multiple juries constituting in
     the aggregate a much larger and more diverse sample of
     decision-makers. That would not be a feasible option if
     the stakes to each class member were too slight to repay
     the cost of suit . . . .      But this is not the case
     . . . . Each plaintiff if successful is apt to receive
     a judgment in the millions. With the aggregate stakes in
     the tens or hundreds of millions of dollars, or even in
     the billions, it is not a waste of judicial resources to
     conduct more than one trial, before more than six jurors,
     to determine whether a major segment of the international
     pharmaceutical industry is to follow the asbestos
     manufacturers into Chapter 11.

Rhone-Poulenc, 51 F.3d at 1300.     So too here, we cannot say that it

would be a waste to allow individual trials to proceed, before a

district   court   engages   in   the   complicated   predominance   and

superiority analysis necessary to certify a class.

     Fairness may demand that mass torts with few prior
     verdicts  or judgments be litigated first in smaller

                                   28
      unitsSSeven single-plaintiff, single-defendant trialsSS
      until general causation, typical injuries, and levels of
      damages become established. Thus, “mature” mass torts
      like asbestos or Dalkon Shield may call for procedures
      that are not appropriate for incipient mass tort cases,
      such as those involving injuries arising from new
      products, chemical substances, or pharmaceuticals.

MANUAL   FOR   COMPLEX LITIGATION § 33.26.

      The remaining rationale for superioritySSjudicial efficiency29SS

is also lacking.         In the context of an immature tort, any savings

in judicial resources is speculative, and any imagined savings

would be overwhelmed by the procedural problems that certification

of a sui generis cause of action brings with it.

      Even assuming arguendo that the tort system will see many more

addiction-as-injury claims, a conclusion that certification will

save judicial resources is premature at this stage of the litiga-

tion.     Take for example the district court’s plan to divide core

liability from other issues such as comparative negligence and

reliance. The assumption is that after a class verdict, the common

issues will not be a part of follow-up trials.             The court has no

basis for that assumption.

      It may be that comparative negligence will be raised in the

individual trials, and the evidence presented at the class trial

will have to be repeated.         The same may be true for reliance.30      The



      29
         See Sterling, 855 F.2d at 1196 (“The procedural device of Rule 23(b)(3)
class action was designed not solely as a means for assuring legal assistance in
the vindication of small claims but, rather, to achieve the economies of time,
effort, and expense.”).
         30
          See, e.g., Allgood, 80 F.3d at 171 (holding that under Texas law,
reliance is an essential element of both affirmative fraud and fraudulent
concealment).

                                        29
net result may be a waste, not a savings, in judicial resources.

Only after the courts have more experience with this type of case

can a court certify issues in a way that preserves judicial

resources.   See Jenkins, 782 F.2d 468 (certifying state of the art

defense because experience had demonstrated that judicial resources

could by saved by certification).

     Even assuming that certification at this time would result in

judicial efficiencies in individual trials, certification of an

immature tort brings with it unique problems that may consume more

judicial resources than certification will save.     These problems

are not speculative; the district court faced, and ignored, many of

the problems that immature torts can cause.

     The primary procedural difficulty created by immature torts is

the inherent difficulty a district court will have in determining

whether the requirements of rule 23 have been met.   We have already

identified a number of defects with the district court’s predomi-

nance and manageability inquires, defects that will continue to

exist on remand because of the unique nature of the plaintiffs’

claim.

     The district court’s predominance inquiry, or lack of it,

squarely presents the problems associated with certification of

immature torts.    Determining whether the common issues are a

“significant” part of each individual case has an abstract quality

to it when no court in this country has ever tried an injury-as-

addiction claim. As the plaintiffs admitted to the district court,

“we don’t have the learning curb [sic] that is necessary to say to


                                30
Your Honor ‘this is precisely how this case can be tried and that

will not run afoul of the teachings of the 5th Circuit.’”

     Yet, an accurate finding on predominance is necessary before

the court can certify a class.              It may turn out that the defen-

dant’s conduct, while common, is a minor part of each trial.

Premature certification deprives the defendant of the opportunity

to present that argument to any court and risks decertification

after considerable resources have been expended.

     The    court’s   analysis       of   reliance     also     demonstrates    the

potential judicial inefficiencies in immature tort class actions.

Individual trials will determine whether individual reliance will

be an issue.    Rather than guess that reliance may be inferred, a

district   court   should     base    its      determination     that   individual

reliance does not predominate on the wisdom of such individual

trials.    The risk that a district court will make the wrong guess,

that the parties will engage in years of litigation, and that the

class ultimately will be decertified (because reliance predominates

over common    issues)   prevents         this   class      action   from   being a

superior method of adjudication.

     The   complexity    of   the     choice     of   law    inquiry    also   makes

individual adjudication superior to class treatment.                    The plain-

tiffs have asserted eight theories of liability from every state.

Prior to certification, the district court must determine whether

variations in state law defeat predominance.                  While the task may

not be impossible, its complexity certainly makes individual trials

a more attractive alternative and, ipso facto, renders class


                                          31
treatment not superior.          See Georgine, 1996 WL 242332, at *21

(recommending that Congress solve the problems inherent in multi-

state class actions by federalizing choice of law rules, but

rejecting    such    legislation     when   it   masquerades   as   judicial

innovation).

     Through individual adjudication, the plaintiffs can winnow

their claims to the strongest causes of action.31          The result will

be an easier choice of law inquiry and a less complicated predomi-

nance inquiry.       State courts can address the more novel of the

plaintiffs’ claims, making the federal court’s Erie guesses less

complicated.     It is far more desirable to allow state courts to

apply and develop their own law than to have a federal court apply

“a kind of Esperanto [jury] instruction.”           Rhone-Poulenc, 51 F.3d

at 1300; MANUAL     FOR   COMPLEX LITIGATION § 33.26 (discussing the full

cycle of litigation necessary for a tort to mature).

     The full development of trials in every state will make

subclassing an easier process.         The result of allowing individual

trials to proceed is a more accurate determination of predominance.

We have already seen the result of certifying this class without

individual adjudications, and we are not alone in expressing

discomfort with a district court’s certification of a novel theory.


      31
         State courts are more than capable of providing definitive statements
regarding the validity of addiction-as-injury claims.    See, e.g., Joseph E.
Seagram & Sons v. McGuire, 814 S.W.2d 385 (Tex. 1991) (accepting “common
knowledge” theory and holding no cause of action for alcohol addiction claim
based on products liability, misrepresentations, negligence, breach of implied
warranties of merchantability and fitness, violations of consumer protection
statutes, and conspiracy); see also Allgood, 80 F.3d at 171-72 (rejecting
failure-to-warn claim against tobacco companies based on inadequate proof of
reliance and, alternatively, on “common knowledge” theory) (citing Joseph E.
Seagram).

                                      32
See Rhone-Poulenc, 51 F.3d at 1300.

     Another factor weighing heavily in favor of individual trials

is the risk that in order to make this class action manageable, the

court will be forced to bifurcate issues in violation of the

Seventh Amendment.      This class action is permeated with individual

issues,    such   as   proximate   causation,    comparative    negligence,

reliance, and compensatory damages.          In order to manage so many

individual issues, the district court proposed to empanel a class

jury to adjudicate common issues.         A second jury, or a number of

“second” juries, will pass on the individual issues, either on a

case-by-case basis or through group trials of individual plain-

tiffs.

     The Seventh Amendment entitles parties to have fact issues

decided by one jury, and prohibits a second jury from reexamining

those facts and issues.32     Thus, Constitution allows bifurcation of

issues that are so separable that the second jury will not be

called upon to reconsider findings of fact by the first:

     [T]his Court has cautioned that separation of issues is
     not the usual course that should be followed, and that
     the issue to be tried must be so distinct and separable
     from the others that a trial of it alone may be had
     without injustice.     This limitation on the use of
     bifurcation is a recognition of the fact that inherent in
     the Seventh Amendment guarantee of a trial by jury is the
     general right of a litigant to have only one jury pass on
     a common issue of fact. The Supreme Court recognized
     this principle in Gasoline Products . . . . The Court
     explained . . . that a partial new trial may not be
     “properly resorted to unless it clearly appears that the
     issue to be retried is so distinct and separable from the
     others that a trial of it alone may be had without

      32
         “[N]o fact tried by jury, shall be otherwise re-examined in any Court
of the United States. . .” U.S. CONST. amend. VII.

                                     33
     injustice.”   Such a rule is dictated for the very
     practical reason that if separate juries are allowed to
     pass on issues involving overlapping legal and factual
     questions the verdicts rendered by each jury could be
     inconsistent.

Alabama v. Blue Bird Body Co., 573 F.2d 309, 318 (5th Cir. 1978)

(citations and footnotes omitted).

     The   Seventh   Circuit    recently    addressed   Seventh   Amendment

limitations to bifurcation.         In Rhone-Poulenc, 51 F.3d at 1302-03,

Chief Judge Posner described the constitutional limitation as one

requiring a court to “carve at the joint” in such a way so that the

same issue is not reexamined by different juries. “The right to a

jury trial . . . is a right to have juriable issues determined by

the first jury impaneled to hear them (provided there are no errors

warranting a new trial), and not reexamined by another finder of

fact.”   Id. at 1303.

     Severing a defendant’s conduct from comparative negligence

results in the type of risk that our court forbade in Blue Bird.

Comparative   negligence,      by   definition,   requires   a    comparison

between the defendant’s and the plaintiff’s conduct.                 Rhone-

Poulenc, 51 F.3d at 1303 (“Comparative negligence entails, as the

name implies, a comparison of the degree of negligence of plaintiff

and defendant.”).     At a bare minimum, a second jury will rehear

evidence of the defendant’s conduct.           There is a risk that in

apportioning fault, the second jury could reevaluate the defen-

dant’s fault, determine that the defendant was not at fault, and

apportion 100% of the fault to the plaintiff.        In such a situation,

the second jury would be impermissibly reconsidering the findings


                                       34
of a first jury.      The risk of such reevaluation is so great that

class treatment can hardly be said to be superior to individual

adjudication.33

      The plaintiffs’ final retort is that individual trials are

inadequate because time is running out for many of the plaintiffs.34

They point out that prior litigation against the tobacco companies

has taken up to ten years to wind through the legal system.               While

a compelling rhetorical argument, it is ultimately inconsistent

with the plaintiffs’ own arguments and ignores the realities of the

legal system.      First, the plaintiffs’ reliance on prior personal

injury cases is unpersuasive, as they admit that they have new

evidence and are pursuing a claim entirely different from that of

past plaintiffs.

      Second, the plaintiffs’ claim that time is running out ignores

the reality of the class action device.              In a complicated case

involving multiple jurisdictions, the conflict of law question




       33
          The plaintiffs argue that any risk that a bifurcation order would
violate the Seventh Amendment is speculative, as the plaintiffs may prevail on
causes of action that either do not require bifurcation or do not contain issues
that are so intertwined that the Seventh Amendment will be implicated.        In
essence, plaintiffs’ argument boils down to a repudiation of the class
complaint’s negligence and strict products liability claims.
        34
           This contention is disingenuous at best.       At oral argument, the
plaintiffs asserted that time is of the essence, because plaintiffs who die
cannot partake in a medical monitoring fund. What the plaintiffs failed to
mention was that the district court refused to certify a medical monitoring fund,
and the plaintiffs have not cross-appealed that decision. Moreover, for the
remainder of the claims a plaintiff’s family or estate can sue based on
survivorship statutes.     The plaintiffs’ class complaint envisions survivor
lawsuits. In fact, the named plaintiff in this case, Dianne Castano, is a non-
smoker who is suing both for the wrongful death of her husband and as a
representative in a survival action.


                                       35
itself could take decades to work its way through the courts.35

Once that issue has been resolved, discovery, subclassing, and

ultimately the class trial would take place.             Next would come the

appellate process.       After the class trial, the individual trials

and appeals on comparative negligence and damages would have to

take place.     The net result could be that the class action device

would lengthen, not shorten, the time it takes for the plaintiffs

to reach final judgment.




                                      IV.

      The district court abused its discretion by ignoring varia-

tions in state law and how a trial on the alleged causes of action

would be tried. Those errors cannot be corrected on remand because

of the novelty of the plaintiffs’ claims.                Accordingly, class

treatment is not superior to individual adjudication.

      We have once before stated that “traditional ways of proceed-

ing reflect far more than habit.         They reflect the very culture of

the jury trial. . . .”       In re Fibreboard Corp., 893 F.2d 706, 711

(5th Cir. 1990).       The collective wisdom of individual juries is

necessary before this court commits the fate of an entire industry


        35
           The plaintiffs rely on School Asbestos for the proposition that
variations in state law do not preclude predominance. Putting that issue aside,
the case is instructive for what happened after the Third Circuit remanded to the
district court. Almost nine years after the first complaint was filed, and eight
years after the court of appeals had affirmed certification, the conflict of law
issues had yet to be resolved. See In re Sch. Asbestos Litig., 977 F.2d 764, 771
(3d Cir. 1992) (granting mandamus to disqualify judge but refusing to address
whether district court’s trial plan properly resolved any problems with
variations in state law because new judge may adopt a different trial plan).

                                       36
or, indeed, the fate of a class of millions, to a single jury.   For

the forgoing reasons, we REVERSE and REMAND with instructions that

the district court dismiss the class complaint.




                                37
