W.D. Texas Analyzes Certification of Issues Class; Denies Motion for Class Certification

Per Norwoodv.RaytheonCo., 237 F.R.D. 581 (W.D. Tex. Sept. 11, 2006):

Plaintiffs seek to represent a class of putative plaintiffs consisting of "[a]ll radar technicians, operators, and/or mechanics who have suffered and/or are suffering certain illnesses, injuries and/or death as a direct and proximate result of exposure" to radiation caused by Defendants' "design, manufacture and distribution of Radar Devices." The proposed class would include those asserting independent or derivative claims based on "their personal relationship with persons who suffered injuries and/or death as a result of exposure to ionizing radiation emitted from Defendants' RADAR devices, including, without limitation, spouses, parents, children, dependents, other relatives or significant others."

In order to be certified, every class action must meet the four prerequisites found in Rule 23(a). Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 623 (5th Cir.1999). . . . In addition, a class must satisfy the requirements of Rule 23(b) in one of three ways. Fed. R. Civ. P. 23(b). Plaintiffs attempt to certify the proposed class pursuant to Rule 23(b)(3). The proponents of a Rule 23(b)(3) class must show that the proposed class meets two additional requirements, known as "predominance" and "superiority . . . . Plaintiffs seek the certification of an issues class pursuant to Rule 23(c)(4). . . . If the Court were to certify an issues class, the remaining issues would be adjudicated on an individual basis. . . . The fact that Plaintiffs seek to certify an issues class pursuant to Rule 23(c)(4) affects the predominance inquiry. The Fifth Circuit has clearly mandated that proponents of class certification cannot circumvent the predominance requirement "through the nimble use of [Rule 23](c)(4)." Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir.1996).

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To briefly summarize . . . [w]eighing Plaintiffs' proffered common issues against the remaining individual issues, the Court concludes that the common issues do not predominate. This determination is based on its findings that (1) numerous individual factual and legal issues must be adjudicated, (2) the complexity of adjudicating the individual issues is compounded by variations in state and foreign laws, and (3) the Court cannot determine that Plaintiffs' proffered issues will be central to the litigation.

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Although the proposed class meets the requirements of Rule 23(a), it does not meet the requirements of Rule 23(b)(3). Specifically, the complexity of the numerous individual factual and legal determinations are compounded by variations in state and foreign laws, so that the Court cannot conclude that common issues predominate. In addition, the fact that this is not a negative value suit, in combination with multiple manageability problems, causes the Court to conclude that class adjudication is not superior. Thus, the Court is of the opinion that Plaintiffs' Renewed Motion for Class Certification should be denied.