In Re American Medical Systems, Inc. Pfizer, Inc.

Petitioners American Medical Systems (“AMS”) and Pfizer, Inc., defendants below, both seek a writ of mandamus directing the district court to vacate orders conditionally certifying a class in a products liability suit involving penile prostheses. This court has held that class certification is generally not the kind of subject matter for which mandamus relief is available on the grounds that class certification decisions are reviewable on direct appeal. 1 However, on the extraordinary facts of this ease we find that the district judge’s disregard of class action procedures was of such severity and frequency so as to warrant its issuance here.

I.

Since 1973, AMS, a wholly-owned subsidiary of Pfizer, has manufactured and marketed penile prostheses, which are used to treat impotence. The plaintiffs, respondents in this proceeding, all use or have used AMS’ products.

Plaintiff Paul Vorhis was implanted with an AMS penile prosthesis on April 25, 1989. It failed to function in January of 1993, and Vorhis had the prosthesis replaced with an AMS 700 Ultrex prosthesis in May 1993. This second prosthesis caused him pain and discomfort, and plaintiff had it removed in August of 1993 and replaced with a third AMS prosthesis, with which he is presently satisfied. Vorhis filed this action against defendant AMS in the Southern District of Ohio on December 5, 1994, individually and on behalf of others similarly situated who suffered damages as a result of the implantation of penile prostheses manufactured by AMS. The complaint alleges strict product liability, negligence, breach of implied and express warranties, fraud and punitive damages, and seeks a declaratory judgment for medical monitoring.

On December 29, 1994, Vorhis filed a motion for class certification. On January 5, 1995, the district judge entered an order setting a hearing for January 27, 1995, later extended to February 24,1995.

On January 20, 1995, AMS moved to stay or defer a ruling on the class certification question, based on virtually identical actions that had been previously filed. AMS informed the district judge that Miles v. American Medical Sys., Inc. & Pfizer Inc., No. C-94 — 1808 (N.D.Cal.), filed in May of 1994, 2 was *1075 scheduled for hearing on the class certification question scheduled on March 3, 1995, 3 and that three other earlier actions, now consolidated in district court in Minnesota, 4 had a class certification hearing date of May 5, 1995. On February 14, 1995, AMS also filed a motion to dismiss based on lack of personal jurisdiction or to transfer based on improper venue. The district judge never ruled on either motion.

After expedited discovery, AMS submitted a brief in opposition to the class certification motion on February 17, 1995. Plaintiff filed his reply brief on February 23,1995.

At the class certification hearing, the district judge indicated that he was concerned principally with the question of whether Vorhis was an appropriate class representative, and directed AMS to proceed first. AMS challenged Vorhis’ suitability as a class representative on several grounds. First, AMS pointed out that Vorhis had a history of psychiatric problems, for which he received total and permanent disability benefits from the State of Ohio. AMS introduced reports prepared by Vorhis’ psychiatrist and psychologist showing that Vorhis suffered from memory loss, impaired concentration, and a lack of common sense, all factors which AMS maintained would interfere with plaintiff’s ability to make rational decisions on behalf of other members of the purported class. AMS also contended that Vorhis was an unsuitable representative because his need for the prosthesis stemmed from a unique condition, Peyronie’s disease, or curvature of the penis. Third, AMS argued that because Vorhis had a problem with only one of the ten types of prostheses AMS manufactured, he could not represent those who had problems with the other kinds of devices.

In response to AMS’ first argument, plaintiff offered the deposition testimony of his treating psychiatrist, Dr. Edelstein, who opined that Vorhis was competent to withstand the rigors of trial. As to defendant’s third argument, plaintiff countered that the basic design of all ten devices was the same. Plaintiff pointed to a section 510(k) notice document 5 for the AMS 700 Ultrex Penile Prosthesis (the second AMS prostheses used by Vorhis) stating that all but one of the device’s components were indistinguishable to those previously marketed. Vorhis did not directly respond to AMS’ second argument.

The judge made no factual findings but took the matter under advisement. However, at the conclusion of oral argument, the district judge queried:

THE COURT: “Do you agree that if [plaintiff’s counsel] adds class plaintiffs, that argument’s [regarding Vorhis’ psychological fragility] moot?”

[AMS’ COUNSEL]: “If those class plaintiffs are appropriate, absolutely.”

On February 28, 1995, the district judge issued a two-page order stating, “based upon the information currently available to it, that class certification appears to be the most efficient and appropriate manner in which to handle this matter,” and promised a “further order outlining the reasoning supporting that conclusion” to follow. The order was conditional, subject to decertification at any time, and conditioned further “upon class counsel acting to amend the complaint within thirty (30) days ... in order to add additional plaintiffs who qualify as appropriate class representatives and who are free of the alleged infirmities on which Defendant’s objections *1076 to the suitability of the current Plaintiffydass representative are premised.” Id.

On March 10, 1995, Vorhis filed an amended complaint, adding three additional plaintiffs as class representatives and Pfizer as an additional defendant. 6 AMS and Pfizer were both served with the amended complaint on March 13, 1995. Plaintiff neither sought nor obtained leave of court to add Pfizer as a defendant, as required by Federal Rule of Civil Procedure 15(a).

Without any further discovery, briefing, or argument, the district judge issued an amended order of class certification on March 16,1995. The judge found that all the prerequisites of Fed.R.Civ.P. 23(a) 7 had been met, and that the class was maintainable under Fed.R.Civ.P. 23(b)(3) 8 because common questions of law or fact predominated. As to “numerosity,” the court held:

It is asserted that the class to be certified consists of 15,000 to 120,000 persons. The United States Court of Appeals for the Sixth Circuit has previously held that a class of 35 was sufficient to meet the numerosity requirement. Afro American Patrolmen’s League v. Duck, 503 F.2d 294 (6th Cir.1974).

Amended Order dated March 16, 1995, at 2. Regarding “commonality,” the judge stated:

As persons who have undergone implantation of Defendants’ inflatable penile prostheses [Plaintiffs] appear to have a common right to assert a claim against Defendants.

Id. at 3. For the third requirement of subsection (a), “typicality,” the judge held:

The proposed representatives of the class assert claims that are typical of the class in *1077 that all .plaintiffs allege injury from the American Medical Systems, Inc./Pfizer, Inc. inflatable penile prostheses manufactured and distributed by Defendants. These claims are similar enough to those of the class that the representatives will adequately represent such class. General Telephone v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364 [2370], 72 L.Ed.2d 740 (1982).

For purposes of the determination of liability at least, the claims of the representatives are the claims of the class. (Footnote omitted.)

Id. On the question of “adequate representation,” the judge opined that

This Court has considered the qualifications of Plaintiffs’ counsel and considers that they have sufficient experience and ability to fairly and adequately protect the interests of the class. Senter v. General Motors, 532 F.2d 511 (6th Cir.1976).

Id. Finally, the judge found the class maintainable under Rule 23(b)(3), stating:

There is an assertion here that there may be thousands of persons who are in the same position as Plaintiffs. Plaintiffs have asserted causes of action in fraudulent and negligent misrepresentation, failure to warn, negligence, strict liability and breach of warranty, both expressed and implied. Without determining the merits of Plain-. tiffs’ claims, it is clear that a class action is far superior to numerous individual determinations of the same rights.

Id. at 4. The district judge therefore certified the class as:

All persons residing in the United States, who have had inflatable penile prostheses developed, manufactured and/or sold by Defendant American Medical Systems, Inc. and/or Defendant Pfizer, Inc. implanted in their bodies.

Id. (Attachment A).

In the notice attached to the class, the district judge named Vorhis as one of the parties that was bringing the class action lawsuit on behalf of all members of the class.

On March 13, 1995, AMS filed a petition for writ of mandamus pursuant to 28 U.S.C. § 1651 and Fed.R.App.P. 21 asking this Court to set aside the district court’s order of February 28. AMS filed a supplemental petition on March 21, 1995, in response to the amended order certifying the class. Pfizer submitted a separate petition for writ of mandamus on March . 21, 1995, challenging the March 16 amended order of certification which made it a defendant only three days after it had been served and without any opportunity.to be heard. On April 7, 1995, this court, pursuant to Fed.RApp.P. 21, issued an order requesting a response from the district judge and directing all other parties to respond to the defendants’ petitions for writ of mandamus. 9

Meanwhile, defendants sought a stay of the March 16 amended order of class certification in the district court, which was denied on March 24, 1995. .This court also granted a stay of the March 16 order, to the extent that it directed notice to the members of the class.

II.

The All Writs Statute creates an exception to the final judgment rule, which rule is the “dominant principle” of federal appellate jurisdiction. 9 James W. Moore & Bernard J. Ward, Moore’s Federal Practice ¶ 110.26 (2d ed. 1995). Section 1651(a) authorizes “[t]he Supreme Court and all courts established by Act of Congress” to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The writ provides some flexibility in instances where rigid enforcement of the final judgment rule would result in injustice. 9 Moore, supra, ¶ 110.26.

The Supreme Court, surveying its precedent on the subject, recently described the various uses of the writ:

“The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its *1078 duty to do so.” Roche v. Evaporated, Milk Assn. 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). See also Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661, 98 S.Ct. 2552 [2556], 57 L.Ed.2d 504 (1978); Kerr v. United States District Court, for Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119 [2123], 48 L.Ed.2d 725 (1976); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269 [273], 19 L.Ed.2d 305 (1967)____ Although “we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of ‘jurisdiction,’” Kerr, supra, at 402, 96 S.Ct. 2119 [at 2124], 48 L.Ed.2d 725; see Will v. United States, supra, at 95, 88 S.Ct. 269 [at 273], 19 L.Ed.2d 305, we have required that petitioners demonstrate a “clear abuse of discretion,” Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145 [148], 98 L.Ed. 106 (1953), or conduct amounting to “usurpation of [the judicial] power,” De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130 [1133], 89 L.Ed. 1566 (1945), to be entitled to issuance of the writ. To ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek, see, e.g., Kerr, supra, at 403, 96 S.Ct. 2119 [at 2124], 48 L.Ed.2d 725; Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188 [190], 66 L.Ed.2d 193 (1980)(per curiam), and carry “the burden of showing that [their] right to issuance of the writ is ‘clear and indisputable,”’ Bankers Life, supra, at 384, 74 S.Ct. 145 [at 148], 98 L.Ed. 106, quoting United States [ex rel. Bemardin] v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286 [287], 43 L.Ed. 559 (1899).

Mallard v. United States Dist. Court, 490 U.S. 296, 308-09, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989).

This Court adopted the following framework for determining the propriety of mandamus relief in In re Bendectin Prod. Liab. Litig., 749 F.2d 300 (6th Cir.1984):

(1)The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired.

(2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first).

(3) The district court’s order is clearly erroneous as a matter of law.

(4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules.

(5) The district court’s order raises new and important problems, or issues of law of first impression.

Id. at 304 (quoting Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977)). These guidelines need not all point in the same direction for issuance of the writ to be proper. Id. at 306 (footnote omitted). “ ‘[A] proper disposition will often require a balancing of conflicting factors.’ ” Id. at 304 (quoting Bauman, 557 F.2d at 655). Thus, the factors in Bendectin are considerations to be balanced, not prerequisites that must all be met.

Petitioners maintain that a writ should issue because the district court: 1) did not satisfy the Sixth Circuit’s standard for class certification; 2) did not have a factual record establishing the elements of Rule 23; 3) certified a class action although it found that the only named plaintiff is not an adequate class representative; 4) did not define the class; 5) entered the order in disregard of preexisting scheduling orders in earlier-filed federal cases presenting the same issue; 6) made an oft-repeated error; and 7) reached a result that will have adverse consequences for medical care and judicial administration.

III.

A.

We begin our analysis by considering whether the lower court committed patent error (the third Bendectin factor). We address in tandem petitioners’ contentions that the lower court disregarded the standards for class certification and certified a class despite the absence of an adequate factual record establishing the elements of Rule 23.

The Supreme Court has required district courts to conduct a “rigorous analy *1079 sis” into whether the prerequisites of Rule 23 are met before certifying a class. General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). The trial court has broad discretion in deciding whether to certify a class, but that discretion must be exercised within the framework of Rule 23. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 101 S.Ct. 2193, 2200, 68 L.Ed.2d 693 (1981); Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1029 (6th Cir.l977)(“district court has broad discretion in determining whether a particular case may proceed as a class action so long as it applies the criteria of Rule 23 correctly”); Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 62-63 (S.D.Ohio 1991)(same). See generally In re NLO, Inc., 5 F.3d 154, 157 (6th Cir,1993)(district court’s inherent power to manage docket must be exercised in manner that is in harmony with the Federal Rules of Civil Procedure).

A class is not maintainable as a class action by virtue of its designation as such in the pleadings. Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir.1970). Although a hearing prior to the class determination is not always required, “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Falcon, 457 U.S. at 160, 102 S.Ct. at 2372. This court has stated that:

Mere repetition of the language of Rule 23(a) is not sufficient. There must be an adequate statement of the basic facts to indicate that each requirement of the rule is fulfilled. Maintainability may be determined by the court on the basis of the pleadings, if sufficient facts are set forth, but ordinarily the determination should be predicated on more information than the pleadings will provide____ The parties should be afforded an opportunity to present evidence on the maintainability of the class action.

Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir.1974) (citation omitted).

The party seeking the class certification bears the burden of proof. See Falcon, 457 U.S. at 161, 102 S.Ct. at 2372; Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). Subsection (a) of Rule 23 contains four prerequisites which must all be met before a class can be certified. Once those conditions are satisfied, the party seeking certification must also demonstrate that it falls within at least one of the subcategories of Rule 23(b). We shall examine each of these factors individually.

1.

The first subdivision of Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” “The reason for [the impracticability] requirement is obvious. Only when joinder is impracticable is there a need for a class action device.” 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3.01, at 3-4 (3d ed. 1992). There is no strict numerical test for determining impracticability of joinder. Senter, 532 F.2d at 523 n. 24 (and citations therein). Rather, “[t]he numerosity requirement requires examination of the specific facts of each case and imposes no absolute limitations.” General Tel. Co. v. EEOC, 446 U.S. 318, 330, 100 S.Ct. 1698, 1706, 64 L.Ed.2d 319 (1980). When class size reaches substantial proportions, however, the impracticability requirement is usually satisfied by the numbers alone. 1 Newberg, supra, § 3.05, at 3-26.

In the original complaint, Vorhis alleged that although he was unable to state the exact size of the class, “members of the class number at least in the thousands.” The first amended complaint modified that estimate to “over 150,000.” The district judge’s finding of a class of 15,000 to 120,000 persons may not be unreasonable, especially since AMS has been producing penile prostheses for over twenty years, and has the largest share of the penile implant market. See Senter, 532 F.2d at 523 (district judge may consider reasonable inferences drawn from facts before him at early stage in proceedings in determining whether class is sufficiently numerous to make joinder impracticable). Defendant, moreover, does not contest this factor. Although the district judge made no findings but merely rubberstamped the plaintiffs’ assertions that such potential class members truly exist, we do not hold that this *1080 factor is not established because petitioners do not contest it.

2.

Rule 23(a)(2) requires that for certification there must be “questions of law or fact common to the class.” The commonality requirement is interdependent with the impracticability of joinder requirement, and the “tests together form the underlying conceptual basis supporting class actions.” 1 Newberg, supra, § 3.10, at 3-47. As the Supreme Court described in Falcon:

The class-action was designed as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 2557-2558, 61 L.Ed.2d 176. Class relief “is ‘peculiarly appropriate’ when the ‘issues involved are common to the class as a whole’ and when they ‘turn on questions of law applicable in the same manner to each member of the class.” Id. at 701, 99 S.Ct., at 2557. For in such eases, “the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” Ibid.

457 U.S. at 155, 102 S.Ct. at 2369. The commonality test “is qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.” 1 Newberg, supra, § 3.10, at 3-50. See also Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.l988)(“mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant’s liability have been resolved does not dictate the conclusion that a class action is impermissible”). But, as we shall see, there is an important check on this requirement under Rule 23(b)(3).

Plaintiffs’ complaint 10 and class certification motion 11 simply allege in general terms *1081 that there are common issues without identifying any particular defect common to all plaintiffs. Yet AMS introduced uncontradicted evidence 12 that since 1973 AMS has produced at least ten different models, and that these models have been modified over the years. 13 Plaintiffs’ claims of strict liability, fraudulent misrepresentation to both the FDA and the medical community, 14 negligent testing, design and manufacture, and failure to warn will differ depending upon the model and the year it was issued.

Proofs as to strict liability, negligence, failure to warn, breach of express and implied warranties will also vary from plaintiff to plaintiff because complications with an AMS device may be due to a variety of factors, including surgical error, improper use of the device, anatomical incompatibility, infection, device malfunction, or psychological problems. 15 Furthermore, each plaintiffs urologist would also be required to testify to determine what oral and written statements were made to the physician, and what he in turn told the patient, as well as to issues of reliance, causation and damages. See generally In re Northern Dish of Calif, Daikon Shield IUD Prods. Liab. Litig., 693 F.2d 847, 854 (9th Cir.1982)(on issues of negligence, strict products liability, adequacy of warnings, fraud and conspiracy, “commonality begins to be obscured by individual case histories”), ce rt. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983).

The amended complaint reflects that the plaintiffs received different models and have different complaints regarding each of those models. In the absence of more specific allegations and/or proof of commonality of any factual or legal claims, plaintiffs have failed to meet their burden of proof on Rule 23(a)(2).

This failure of proof highlights the error of the district judge. Despite evidence in the record presented by the nonmoving party that at least ten different models existed, testimony from a urologist that there is no “common cause” of prostheses malfunction, and conclusory allegations by the party with the burden of proof on certification, we find not even the hint of any serious consideration by the judge of commonality. Moreover, although not dispositive, it is noteworthy that a Judicial Panel on Multidistrict Litigation denied consolidation of all federal AMS penile prostheses case pursuant to 28 U.S.C.

*1082 § 1407, 16 concluding that “the degree of factual commonality among the actions in this litigation [does not] rise[] to a level that warrants Section 1407 transfer.” In re Penile Implants Prod. Liab. Litig., MDL No. 1020 (J.P.M.L. Sept. 30, 1994). The district judge was made aware of this ruling, and still did not give the question of commonality any discernible degree of scrutiny.

3.

Rule 23(a)(3) requires that “claims or defenses of the representative parties [be] typical of the claims or defenses of the class.”

Typicality determines whether a sufficient relationship exists between the injury to the' named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff’s injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiffs claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.

1 Newberg, supra, § 3-13, at 3-76 (footnote omitted). See also General Tel. Co. v. EEOC, 446 U.S. at 330, 100 S.Ct. at 1706 (“typicality requirement is said to limit the class claims to those fairly encompassed by the named plaintiffs’ claims”); Senter, 532 F.2d at 525 n. 31 (“[t]o be typical, a representative’s claim need not always involve the same facts or law, provided there is a common element of fact or law”). A necessary consequence of the typicality requirement is that the representative’s interests will be aligned with those of the represented group, and in pursuing his own claims, the named plaintiff will also advance the interests of the class members. 1 Newberg, supra, § 3.13, at 3-75.

Vorhis’ claim relates to a previous AMS penile prosthesis which, several years after insertion, allegedly could not be inflated due to a possible leak in the input tube of a CX device. This in turn may have been caused by rear-tip extender surgery Vorhis had in 1990, in an attempt to increase penile length that was lost through surgery to correct a curvature of his penis. Based on what little we have to go on, it is hard to imagine that Vorhis’ claim is typical of the class certified in this case.

Because the district judge issued its amended order of certification before discovery of the plaintiffs other than Vorhis, we have less information about them. However, we know from the amended complaint that each plaintiff used a different model, and each experienced a distinct difficulty. York claims that his 700 inflatable penile prosthesis fails to fully inflate. Kennedy alleges that his Ultrex inflatable penile prosthesis malfunctioned because the cylinders and pump leaked. Finally, Gordy maintains that his Hyrdoflex failed, and that his current implant, the Dynaflex prosthesis, inflates on one side only. These allegations fail to establish a claim typical to each other, let alone a class.

Once again, it should have been obvious to the district judge that it needed to “probe behind the pleadings” before concluding that the typicality requirement was met. See Falcon, 457 U.S. at 160, 102 S.Ct. at 2372. Instead, the district judge gave no serious consideration to this factor, but simply mimicked the language of the rule. This was error. Id. at 158-59, 102 S.Ct. at 2371 (reversing certification for failure of proof on typ