In re Telectronics Pacing Systems, Inc.

ORDER GRANTING IN PART PLAINTIFFS’ RENEWED MOTION FOR CLASS CERTIFICATION

This matter is before the Court on Plaintiffs’ Renewed Motion for Class Certification (doc. 211), Teleetronies’ Memorandum in Opposition (doc. 271), Plaintiffs’ Reply (doc. 284) and Teleetronies’ Supplemental Memorandum (doc. 288). The Court held oral argument on the motion on February 3, 1997. The Court granted the Parties an additional *275two weeks to supplement their arguments. Plaintiffs filed a post-hearing brief (doc. 346), as did Telectronies (doc. 348) and Pacific Dunlop Limited and Nucleus Limited (doc. 349). Telectronies also submitted a memorandum concerning a recently a decided case (doc. 351).

In order to make this Order easier to read, the Court provides this outline of the structure of the Order.

I. Background

A. The Parties

B. The “J” Lead Controversy

C. Procedural History

D. Class Structure

II. Elements of Rule 23(a)

A. Rule 23(a)(1) Numerosity

B. Rule 23(a)(2) Commonality

C. Typicality & Adequacy of Representation

III. Elements of Rule 23(b) and Medical Monitoring Class

A. Class Certification of Medical Monitoring pursuant to Rule 23(b)(1)(A)

B. Class Certification of Medical Monitoring pursuant to Rule 23(b)( )(B)

C. Class Certification of Medical Monitoring pursuant to Rule 23(b)(3)

IV. Negligence and Strict Liability Subclasses and Rule 23(b)

A. Do Common Issues Predominate?

B. Is Class Treatment Superior?

1. Negligence Subclasses

2. Strict Liability Subclasses

V. Punitive Damages

VI. Conclusion

For the fourth time in little more than a year,1 this Court addresses the question whether class certification is appropriate in this case. There has been much discussion regarding the need to reform or improve how federal courts deal with mass tort litigation. While we agree changes might be appropriate, the district courts are left to fight the battles and resolve the Parties disputes’ with the tools provided by Congress and our appellate courts. Thus, we must grant or deny certification on the basis of the federal rules as written today and interpreted by the Sixth Circuit and the Supreme Court.

In deciding this question, the Court is mindful of the applicable law and rules, the procedural and substantive legal rights of the Parties and the ethical concerns raised by adjudication of mass tort claims. Recently, several Circuit Court’s have been highly critical of the use of class actions in mass tort and product liability cases. While we recognize the difficulties inherent in diversity based-class actions as outlined by the Circuit Courts, we continue to believe that class action provides the fairest, most efficient and economical means of dealing with these types of cases. We believe courts must play an important role in the efficient resolution of mass tort action. This is especially so where, as here, there is a danger that the expense of litigation and potential for large damage awards threaten to bankrupt the defendant and leave some class members without a remedy. See Marc Z. Edell, Resolution of Mass Tort Litigation: Practitioner’s Guide to Existing Methods and Emerging Trends, C949 ALl-ABA 37 (1994) (noting that class actions have value in conserving resources of plaintiffs, defendants and the courts).

We also strongly disagree with those Circuit Courts which have allowed their apparent economic biases to influence their interpretation of the requirements of Rule 23. For example, in Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir.1996), the Fifth circuit found that class certification of all nicotine dependent individuals was not superior under Rule 23(b)(3) because of the strategic effect class certification has upon the defendants’ chances.

In the context of mass tort class actions, certification dramatically affects the stakes for defendants. Class certification magni*276fies and strengthens the number of unmeritorious claims. Aggregation of claims also makes it more likely that a defendant will be found liable and results in significantly higher damage awards.

Id. at 746 (citations omitted); See also Matter of Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir.1995). To credit the Fifth Circuit’s statement is to also state that its converse — denying class certification makes it less likely defendants will be found liable or responsible for lower damage awards — is true. Plaintiffs in individual actions will have to bear a greater share of the cost and risk for maintaining their action as compared to plaintiffs in a class action. Often an individual action pits a single plaintiff relying on his or her own resources to fund the litigation against the vast resources of a large manufacturer and the large law firms which represents it.

Obviously, the procedural rules affect the outcome of litigation. -These Circuit Courts seemed to ignore the essence of Rule 23 because of their philosophical disagreement with the effects of Rule 23.

I

Background

A. The Parties

This is a products liability action concerning pacemakers containing the Accufix Atrial “J” Lead. Plaintiffs in this action are recipients of the Accufix Atrial “J” Lead Pacemaker Model 330-801 and Model 329-701 (“J Lead”).

Defendant, TPLC, Incorporated (“TPLC”), is a Delaware corporation engaged in the business of designing, manufacturing, and marketing medical devices including the Accufix Atrial “J” Lead pacemakers at issue in this case. They manufactured the “J” Lead pacemakers Models 330-801 and 329-701 from 1988 until 1994. Defendant, Telectronics Pacing Systems, Incorporated (“TPSI”), is also a Delaware corporation. TPSI’s sole business is to hold certain industrial property rights, real estate and the equity interest in TPLC.

Defendants, Pacific Dunlop Limited (“PDL”) and Nucleus Limited (“Nucleus”) (collectively the “Australian Defendants”), are Australian corporations. Nucleus is a holding company involved in the medical products industry. Nucleus owns a group of companies that, design, manufacture and sell pacemakers and defibrillators around the world under the trade name “Telectronics Pacing Systems” or “Telectronics.” TPLC and TPSI are the two Telectronics Companies that operate in the United States (hereinafter TPLC and TPSI are referred to as either “TPLC” or “Telectronics”).

In 1988, PDL purchased Nucleus and thus became beneficial owner of TPLC and TPSI. It is in the business of manufacturing, marketing and distributing industrial and consumer products on a worldwide basis. PDL is organized into five core business areas (automotive, distribution, consumer products, building and construction and health care) consisting of over 225 separate corporate affiliates and subsidiaries and has annual sales worldwide of approximately $5.5 billion.

B. The “J” Lead Controversy

A pacemaker is a device that uses electrical impulses to reproduce or regulate the rhythms of the heart. Dorland’s Illustrated Medical Dictionary, (28th ed.1994). It is driven by a battery and connected to the heart by leads and electrodes. Id.

The heart pacing system at issue consists of three main parts: a pulse generator, leads, and a programmer. Pacemaker Models 330-801 and 329-701 utilize a retention wire to hold the atrial lead in the shape of a “ J”. The lead’s retention ware is a filament of one of two metal alloys, Elgiloy or MP35N. (TPSI, Letter of Duane A. Schultz, Vice President Clinical and Regulatory Affairs, Premarket Notification to FDA, December 18, 1989). Both Elgiloy and MP35N are nickel-cobalt based alloys which are “virtually equivalent in composition, chemical and physical properties.” Id.

The retention wire is encased in polyurethane insulation and bends back and forth within the system. The bending has caused the retention wire to break in some instances and poke through the polyurethane. The *277retention wire is not electrically active in the pacing circuit. Consequently, it has nothing to do with the conduction of the' electrical signal or the operation of the pacing system. A fracture, however, can cause serious injury to the heart or blood vessels if it pokes through the polyurethane.

Approximately 25,000 pacemakers with “J” Leads were implanted in hearts of United States residents. Between December 1988 and February 1993, TPLC received reports of at least seven fractures of “J” Lead retention wires. On October 21,1994, TPLC notified the Food and Drug Administration (“FDA”) that it was recalling all unsold leads. Telectronies’ President, James W. Dennis, then sent a letter to all doctors on November 3, 1994, notifying them that TPLC was voluntarily recalling all un-implanted Accufix Atrial “J” Lead pacemakers, Models 330-801 and 329-701.

By August 1996, TPLC had received notice of at least thirty-two injuries due to fractures, including six deaths. (Def. Ex. 12A, TPLC Dear Doctor Letter of August 23, 1996). Additionally, eight others have died while having their lead extracted. (Id.) On February 10, 1995, TPLC estimated the incidence of suspected fracture at 12%. (Pl.Ex. 10, Letter of Graham Vale and attachments). Other TPLC documents indicate that the fracture rate may be as high as 20%. (Def.Ex. 12A).

In response to the fracture problem, TPLC has done three things to control the situation. First, TPLC has established the Accufix Research Institute (“ARI”) to manage the lead recall. The ARI communicates with doctors and patients concerning patient management recommendations. ARI is conducting a Multi-Center study (“MCS”) involving twelve hospitals to monitor a subset of leads over time. ARI analyzes the data from the MCS to assess the risk of injury from the “J” wire fracture as well as the risk of injury from lead extraction.

Secondly, TPLC formed a Physicians Advisory Committee (“PAC”) to provide advice concerning clinical management of lead patients. The PAC reviews information from the MCS and other sources. The PAC then makes recommendations to the ARI concerning patient care.

Upon the PAC’s recommendation, Teleetronics sent a letter to doctors advising them that implantees should receive screening for fractures every six months. (Pl.Ex. 8, TPLC Dear Doctor Letter of January 23, 1995). The letter stated in part:

The “J” shaped retention wires in the Accufix Atrial leads can fracture. There are various classifications of fracture. However, patient injury can occur only after the fractured wire has protruded through the outer lead insulation. Fluoroscopy can detect a fracture prior to this happening.

Therefore, Telectronies is now recommending the fluoroscopic screening of all patients implanted with these leads for fracture of the “J” shaved retention wire.

(Id.) (emphasis in original).

Finally, TPLC has agreed to “reimburse reasonable unreimbursed medical expenses for screening and Lead extraction that are consistent with patient management guidelines.” (McConchie Affidavit at 119).

C. Procedural History

Plaintiffs, Elise and Eugene Owens, filed the lead action in this casé on February 13, 1995, alleging injury due to a defective “J” lead. Plaintiffs allege that it was TPLC’s negligent manufacture or design of the “J” Lead that causes the retention wire to fracture. The Panel on Multi-District Litigation (“MDL Panel”) selected this Court as the transferee court for all claims involving the Accufix “J” Lead. Presently, over 400 eases are pending before this Court for pretrial proceedings.

The Court appointed a Plaintiffs’ Steering Committee (“PSC”) to coordinate discovery and other pretrial proceedings on behalf of Plaintiffs in the cases transferred to this Court. The Court ordered the PSC to file a Master Complaint. On July 20, 1995, Plaintiffs filed an Amended and Consolidated Master Class Action Complaint asserting thirteen claims for relief: strict liability, negligence, failure to warn, breach of implied warranty, breach of express warranty, fear of *278future product failure, intentional infliction of emotional distress, negligent infliction of emotional distress, fraud, misrepresentation, medical monitoring, loss of consortium, and punitive damages, (doc. 37).

The Court initially certified a worldwide class of all “J” Lead implantees for the common issues of medical monitoring, negligence, strict liability, fraud, misrepresentation, and breach of warranty, (doc. 89). On February 23, 1996, the Court decertified the international class, (doc. 137). TPLC moved to have the Court reconsider the class certification in light of the Sixth Circuit’s decision in In re American Medical Systems, 75 F.3d 1069 (6th Cir.1996). On July 16, 1996, the Court granted the motion to reconsider and decertified this case as a class action (hereinafter Decertification Order), (doc. 189).

D. Class Structure

Plaintiffs have now filed a Renewed Motion for Class Certification. Plaintiffs, however, have moved to certify only four causes of action as a class action: medical monitoring, negligence, strict liability and punitive damages. Furthermore, Plaintiffs seek to certify this action against only TPLC and TPSI; they have not sought certification against the Australian Defendants.

Plaintiffs seek to certify a nationwide class on claims of medical monitoring, negligence, strict liability and punitive damages. State products liability law encompasses several different causes of action.

“That branch of the law commonly called “products liability” is often spoken of as a unitary, coherent body of statute and precedent when in fact there are at least three common theories of recovery for damages sustained as a result of a defective product. In a “products liability” case, a plaintiff may seek recovery, as did this plaintiff,, upon (1) a theory of negligence; (2) a theory of “strict liability,”; or (3) a theory of breach of warranty, either express or implied.”

Ragland Mills, Inc. v. General Motors Corp., 763 S.W.2d 357, 359 (Mo.App.1989) (citations omitted). However, not all states permit all three causes of action in products lability actions. See e.g., O.R.C. § 2307.71 et seq. (establishing strict liability as the exclusive remedy in all products liability actions); Washington Water Power Co. v. Graybar Elec. Co., 112 Wash.2d 847, 774 P.2d 1199, 1204 (1989) (finding that Washington Product Liability Act, RCWA 7.72.010(4), preempts common-law causes of action for harms caused by product defects).

In our Decertification Order, we found that Plaintiffs must demonstrate how .this case can be managed as a class action in light of the variations in state law. Furthermore, we required Plaintiffs to come forward with exact definitions of subclasses, its representatives, and the reasons each subclass meets the requirements of Rule 23. Consequently, Plaintiffs have proposed ten subclasses (Subclass 6 contains three sub-subclasses) which take into account the variations of state law.

First, Plaintiffs propose one nationwide subclass for all medical monitoring claims. It is defined as follows:

SUBCLASS ONE: all persons who have had the Accufix atrial “J” pacemaker leads, Model 330-801 and Model 329-701 placed in their bodies whose leads have not been explanted and who seek the establishment of a medical monitoring and research program.

The medical monitoring program which Plaintiffs seek would provide diagnostic testing for each class member, as well as conduct research on better methods of detecting fractured leads and determine safer methods for removing the fractured leads.

Plaintiffs seek to certify two negligence subclasses. Subclass Two would represent “J” Lead implantees who reside in states whose law permits a cause of action for negligence in a product liability action and allows the introduction of the state-of-the-art evidence.2 Subclass Three would be made up of *279“J” Lead implantees residing in states whose law does not allow introduction of state-of-the-art evidence in negligence actions.

Plaintiffs have proposed four strict liability subclasses. Subclass Four consists of implantees from states which follow Restatement (Second) of Torts Section 402A3 and which allow the introduction of state-of-the-art evidence. Subclass Five consists of implantees from states which follow Restatement (Second) of Torts Section 402A and which do not allow the introduction of state-of-the-art evidence.4 Subclass Six consists of implantees from states which follow a modified version of Restatement (Second) of Torts Section 402A and which allow the introduction of state-of-the-art evidenced Subclass Six is further divided into three sub-subclasses based upon whether the state requires a showing that the product is defective, unreasonably dangerous of both. Subclass Seven consists of three states which follow the Greenman v. Yuba Power Products, formulation of strict liability.5

Plaintiffs propose three subclasses covering claims for punitive damages. Plaintiffs have divided the classes based upon level of culpability which must be shown in order to justify punitive damages.

Finally, Plaintiffs have chosen not to seek certification of the remaining causes of action: fraud, loss of consortium, breach of warranty, misrepresentation and infliction of emotional distress.

II

Elements of Rule 23(a).

In order to certify a case as a class action Plaintiffs must first show that the proposed class meets the requirements of Rule 23(a).

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.

Fed.R.Civ.P. 23(a). Thus under Rule 23(a), there are four prerequisites to maintaining a class action: numerosity, commonality, typicality and adequacy of representation.

A. Rule 23(a)(1) — Numerosity

Under Rule 23(a)(1), the putative class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). No strict numerical test exists to determine when a class is so numerous that joinder is impracticable. American Medical Systems, 75 F.3d at 1079. “When class size reaches substantial proportions, however, the impracticability requirement is usually satisfied by the numbers alone.” Id. “Satisfaction of the numerosity requirement does not require that joinder is impossible, but only that plaintiff will suffer a strong litigational hardship or inconvenience if joinder is required.” Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 63 (S.D.Ohio 1991) (citations omitted).

We find that the putative class, including each subclass, meets the numerosity requirement of Rule 23(a)(1). The proposed medical monitoring subclass would include the majority of the 25,000 United States recipients of the “J” Lead pacemaker; in other words, all recipients of the “J” lead who have not had their lead extracted would be members of this class.

*280As for the two negligence subclasses, Plaintiffs point out that approximately 22,000 “J” Lead recipients reside in States represented by Subclass Two and 785 reside in States contained in Subclass Three. Additionally, each of the proposed strict liability subclasses contains over 1000 members. Furthermore, Defendants do not challenge that Plaintiffs’ proposed subclasses meet the numerosity requirement. Therefore, we find that the numerosity requirement of Rule 23(a) is satisfied. See In re AMS, 75 F.3d at 1079 (“when class size reaches substantial proportions [ ] the impracticability requirement is usually satisfied by numbers alone.”).

B. Rule 23(a)(2) — Commonality

Rule 23(a)(2) requires a showing that there are “questions of law or fact common to the class____” Fed.R.Civ.P. 23(a)(2). “The commonality test ‘is qualitative rather than quantitative, that is, there need be only a single issue common to all members of the class.’ ” American Medical Systems, 75 F.3d at 1080 (citing Herbert Newberg, et al., 1 Newberg on Class Actions, § 3-10 at 3-50 (3d. ed.1992); see also Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1988) (stating that “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.”)).

There are several issues common to the medical monitoring subclass. One common question is whether, and to what extent, the “J” Lead recipients require medical monitoring. Second, Telectronies has raised two defenses which are common to all class members: (1) that it is providing an adequate monitoring program already, and (2) that the FDA, not the courts, has ultimate authority over Telectronies’ response to the “J” Lead problem. Thus, the medical monitoring class satisfies the “commonality” prong of Rule 23(a).

The Court finds that there are several issues common to the proposed negligence and strict liability subclasses. This proposed class involves two models of pacemakers which are nearly identical. The “J” Leads all allegedly fail for the same reason — metal fatigue. (Telectronies Pacing Systems’ Memorandum from Larry Wettlaufer and Mark Christensen, November 1, 1994, at 116.) Thus, whether Telectronies’ conduct caused this fatigue failure or whether the “J” Leads are defective are a questions common to all class members.

In addition, Telectronies has asserted defenses common to all class members that relate to FDA regulations and the Medical Devices Act, which apply to all implantees whose devices were “approved” pursuant to FDA regulations. See In re “Agent Orange” Product Liability Litigation, 100 F.R.D. 718, 728 (E.D.N.Y.1983) (finding common issues predominated where critical defenses affected all class members equally).

C. Typicality & Adequacy of Representation

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

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 his or her claims are based on the same legal theory.... The typicality requirement may be satisfied even if there are factual distinctions between the named plaintiffs and those of other class members.

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983) (citations omitted); see also Senter v. General Motors Corp., 532 F.2d 511, 525 n. 31 (6th Cir.1976) (“To be typical, a representative’s claim need not always involve the same facts or law, provided there is a common elemént of fact or law.”). While a representative’s claims need not mimic the claims of every class member, the named plaintiff must advance the interests of the class members. American Medical Systems, 75 F.3d at 1082; The plaintiffs bear the burden of establishing that the representatives’ claims are typical of the class’ claims. American Medical Systems, 75 F.3d at 1082.

*281Rule 23(a)(4) requires that the representative parties fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). “This prerequisite is essential to due process, because a final judgment in a class action is binding on all class members.” American Medical Systems, 75 F.3d at 1083 (citing Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940)) (other citations omitted) (emphasis added).

In Senter, the Sixth Circuit articulated two criteria district courts must use to determine the adequacy of the representation: “1) the representative must have common interests with the unnamed members of the class, and 2) it must appeal’ that the representatives will vigorously prosecute the interests of the class through qualified counsel.” 532 F.2d at 525 (citation omitted).

The typicality requirement of Rule 23(a)(3) is interrelated with the adequacy or representation requirement of Rule 23(a)(4). See General Telephone Co. v. Falcon, 457 U.S. 147, 157-58 n. 13, 102 S.Ct. 2364, 2371 n. 13, 72 L.Ed.2d 740 (1982).

The commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiffs claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.

Given this relationship numerous courts have analyzed the two criteria together. See 1 Newberg, supra § 3.22 at 3-129 (citing-cases). In this ease, Telectronics’ challenges to the typicality and adequacy of the class representatives significantly overlap,

In our Decertification Order, we found that the claims of the unnamed plaintiffs’ cases than on the similarity of the legal and primary reason we found the claims of the proposed class representatives from Ohio were atypical is that Ohio is one of the minority of states that does not recognize negligence as a cause of action in a products liability action. See Jenkins v. Raymark Industries, 782 F.2d 468, 472 (5th Cir.1986) (“The ‘typicality’ adequacy-of-representation requirement, although the remedial theories behind their claims.”). Thus we found that in order to be typical, a class representative’s theories of recovery must be similar to the absent class members’. See Falcon, 457 U.S. at 158 n. 13, 102 S.Ct. at 2371 n. 13 (stating that both the commonality and typicality requirements ensure that the “plaintiffs claim and the class’ claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence”).

Plaintiffs have rectified this problem by adding a number of class representatives. Plaintiffs now provide proper class representatives for each subclass because each subclass is represented by an individual whose home state’s law permits the cause of action identified by the subclass. For example, the proposed class representatives for Subclass Two reside in states which recognize a negligence cause of action in a products liability case. Thus, by creating subclasses based upon causes of actions and providing class representatives whose home state’s law recognizes the cause of action represented in the subclass, Plaintiffs have remedied the problem which made the original class representatives atypical — namely representing absent class members whose claims differed from their own.

However, Telectronics argues that many of the proposed class representatives are still either atypical or inadequate as class representatives.

First, TPLC asserts that several class representatives’ claims are inadequate class members for the medical monitoring subclass because they have had their lead removed, and therefore, no longer require monitoring. We agree that Cecilia Plummer, Bruce Hopkins, Shelly Truskowski and James Lloyd are not adequate representatives for the medical monitoring class because their leads have already been extract*282ed. They no longer have a need for medical monitoring because the explantation of their leads eliminated the danger of injury due to a fractured lead.

Secondly, TPLC asserts that several of the putative class representatives would be inadequate representatives for the negligence and strict liability subclasses because their leads have not fractured, and therefore, they cannot state a claim. For example, TPLC argues that Ms. Plummer is not acceptable as a class representative because she cannot prevail on her claim “since there is no proof that TPLC has breached a duty with regards to the Lead, which was working properly when it was removed, and was undamaged at the time of the extraction.” (doc. 271 at 45). While the Court must probe behind the pleadings in order to determine if class certification is proper, it is inappropriate for the Court to examine the merits of the claim in doing so. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 180, 94 S. Ct. 2140, 2153-54, 40 L.Ed.2d 732 (1974) (“[T]he question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”). Thus, a class representative cannot be found inadequate merely on the basis of the strength of his or her claims. On the other hand, Ms. Plummer is aware of her duty as class representative and is wiling to travel to Cincinnati to perform her duty. Thus, she is an adequate class representative.6

Thirdly, TPLC argues that certain class representatives’ claims are atypical because of unusual factual circumstances related to their claims. For example, TPLC asserts that Jamie Baldwin has had other medical problems and Chad Baker might have been injured playing football. These minor factual distinctions are insufficient to conclude that these representatives’ claims are atypical. See Senter, 532 F.2d at 525 n. 31 (“To 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.”).

Fourthly, Telectronies argues that many of putative class representatives are inadequate because they lack detailed knowledge of the legal and factual bases of their claims. TPLC relies on our Decertification Order, which found that Lawrence Cheyne, Q.T. Edwards and Eugene Owens to be inadequate class representatives because they were unaware of their roles as a class representatives or were unaware of their duties as class representatives, (doe. 189 at 34-35). Telectronies, however, has unreasonable expectations regarding what the proposed class representatives must know about their role as representatives and the legal basis for their claims. For example, Telectronies asserts that Helen West is an inadequate representative because she did not state that she represents a strict liability subclass. Instead, Ms. West states that she thought that “Telectronies owes us a commitment. That ... if indeed we do have to have the leads replaced is that they’re going to be there ready to pay for it.” (West Depo. at 68). Such a statement indicates to the Court that Ms. West will vigorously prosecute her claims against Telectronies. The Court finds no fault with Ms. West because she may be unaware of the technical intricacies of all of the class action causes of action. The class representative’s complete understanding of the legal basis for the class claims is not required by Rule 23. Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 366, 86 S.Ct. 845, 847-48, 15 L.Ed.2d 807 (1966) (reversing dismissal of class claims where plaintiff “did not understand the complaint at all, ... could not explain the statements made in the complaint [and] ... had a very small degree of knowledge as to what the lawsuit was about ....”); but c.f. Nilsson v. Coughlin, 670 F.Supp. 1186, 1191 (S.D.N.Y.1987) (denying class certification motion by pro se prisoner based upon inadequacy of representation due to lack of legal knowledge). In fact, it is unrealistic to require a class action representative to have an in-depth grasp of the legal theories of recovery behind his or her claim. *283It is more important that the representative actively seeks vindication of his or her rights and engages competent counsel to prosecute the claims. See In re American Medical Systems, 75 F.3d at 1083 (“ ‘[I]t must appear that the representative will vigorously prosecute the interests of the class through qualified counsel.’ ”) (quoting Senter, 532 F.2d at 525) (emphasis added).

Finally, Telectronics asserts that many of the new proposed class representatives are per se inadequate class representatives because they have not themselves filed an individual action against any of the Defendants. Telectronics argues that class representatives must sue the defendant individually in order to act as a class representative. Rule 23 states that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all....” Fed.R.Civ.P. 23(a). Telectronics contends that Federal Rules of Civil Procedure imply that “party” means active participant in the litigation.

While it seems unusual that a class representative has not sued individually, the Court finds no requirement in Rule 23 that they do so.7 There is no dispute that the proposed class representative are members of the class. Generally, class members can be passive and are not required to intervene in the class action. Manual for Complex Litigation (Third), § 30.16. When, and if, required the court may substitute new class representatives. 1 Newberg supra § 3.42. (“Under Rule 23, the court may create subclasses, limit the class scope ... [or] invite interventions to bolster or substitute for class representation.”); see also United States Parole Commission v. Geraghty, 445 U.S. 388, 415-16 n. 8, 100 S.Ct. 1202, 1218-19 n. 8, 63 L.Ed.2d 479 (Powell, J., dissenting) (“If the named plaintiffs own claim becomes moot after certification, the court can reexamine his ability to represent the interests of class members. Should it be found wanting, the court may seek a substitute representative or even decertify the class.”). Thus, Rule 23 seems to contemplate the possible substitution of non-parties as class representatives. Furthermore, the class representatives, whether named in an individual action or not, will be bound by any judgment in the class action. Accordingly, we find it is unnecessary for a class member to have filed an individual action in order to qualify as a class representative.8

Finally, we note that courts make an inquiry into the adequacy of the class representatives in order to protect the rights of absent class members, not to ensure that the party opposing certification is satisfied with the representatives. See Kirkpatrick v. J.G. Bradford & Co., 827 F.2d 718, 728 (11th Cir.1987) (reversing district court for setting too high a standard for adequacy because such a standard “could prevent vindication of the legal rights of the absent class members under the guise of protecting those rights.”). Thus, we find that the putative class representatives’ claims are typical. Furthermore, based upon our review of the putative class representatives’ affidavits and depositions, we find that they meet the test for adequacy outlined in Senter, 532 F.2d at 525. Lastly, the Court finds class counsel are qualified and will adequately represent the interests of the class.

In conclusion, we find that Plaintiffs have shown that their proposed subclasses meet the numerosity and commonality requirements of Rule 23(a). We also find that Plaintiffs’ proposed class representatives satisfy the typicality and adequacy prongs of Rule 23(a), except that the proposed class representatives who have had their implants removed are atypical of the claims for medical *284monitoring. However, this inadequacy finding does not affect Plaintiffs putative medical monitoring subclass because several other proposed subclass representatives are adequate.

Ill

Elements of Rule 23(b) and Medical Monitoring Class

Having found the conditions of Rule 23(a) are met, we now move to whether the class proponent has shown that the proposed class satisfies at least one of the three subsections of Rule 23(b). In re AMS, 75 F.3d at 1079.

In order for a class action to be maintainable, the putative class must also satisfy one of the three subsections of Rule 23(b), in addition to the requirements of Rule 23(a). Rule 23(b) states as follows:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making-appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds'that the questions of law or fact common to the members of the class predominate over an