be the site of defendants' tortious conduct. The nature of the tort alleged and the assertion of a theory of collective liability make the defendants' total contacts too diffuse to serve as a basis for anchoring the choice-of-law determination. If defendants' negligent conduct is not specific sales of specific guns, but their having collectively fostered the growth of an underground handgun market, the site of the tortious conduct may be too nebulous to pin down to a particular state.
The parties have not briefed the choice-of-law issue and have not moved to have a particular state's law apply. On the question of collective liability, however, the center of gravity is in New York where the plaintiffs are located, and not within the nebulae of defendants' locations or alleged conduct. As Professor Korn has noted, New York courts tend to give New York plaintiffs the protection of New York law. See Korn, supra, at 780 (noting courts' well-known preference for applying forum state's law). Defendants have not charged that plaintiffs acquired residence here to establish venue in this state or to provide for application of New York tort law.
If the locations of the actual shootings were found to have substantial weight, New York law would apply in Ms. Hamilton's case, while a strong case could be made for applying either New York or California law in Ms. Johnstone's case. It is worth noting that on questions of collective liability in tort, the highest court of both New York and California have been national innovators and have adopted substantially similar approaches. See Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. 2d 338 (1989); Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 602, 163 Cal. Rptr. 132, 139, 607 P.2d 924, 931, cert. denied, 449 U.S. 912, 101 S. Ct. 285, 66 L. Ed. 2d 140 (1980). The outcome reached might well be the same.
C. Law of Summary Judgment
The moving party bears the burden on a motion for summary judgment of demonstrating that there is "no genuine issue as to any material fact" and that the movant is therefore entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2727, at 121 (2d ed. 1983). In deciding whether to grant a motion for summary judgment, "all ambiguities and inferences to be drawn from the underlying facts should be drawn in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Henderson v. Center for Community Alternatives, 911 F. Supp. 689, 694 (S.D.N.Y. 1996) (citing Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986); Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993). Courts must act with caution in granting summary judgment. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513.
Summary judgment requires development of an adequate factual basis. 10A Wright, Miller & Kane, supra, § 2725, at 85. Denial of summary judgment is, however, inappropriate if the factual issues are settled but the case involves a difficult question of law. See, e.g., Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 728 n.13 (5th Cir. 1976); Schwartzberg v. Califano, 480 F. Supp. 569, 578 (S.D.N.Y. 1979); see also 10A Wright, Miller & Kane, supra, § 2725, at 84-85.
Resolution of new and complex questions of law frequently require concrete and thorough factual development. See, e.g., American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir. 1967), cert. denied, 404 U.S. 1063, 92 S. Ct. 737, 30 L. Ed. 2d 752 (1972), see also 10A Wright, Miller & Kane, supra, § 2725, at 85-89. As one court noted, the denial of summary judgment involves not only pure questions of law, but also the exercise of judicial discretion on the question of whether a final decision on the legal question "should be postponed until it can be founded on a more complete factual record." Jecies v. Matsuda, 503 F. Supp. 580 (S.D.N.Y. 1980) (citing Virgil v. Time, Inc., 527 F.2d 1122 (9th Cir.) cert. denied, 425 U.S. 998, 96 S. Ct. 2215, 48 L. Ed. 2d 823 (1975)).
Courts are particularly reluctant to grant summary judgment in negligence cases. See 10A Wright, Miller & Kane, supra, § 2729, at 194-97 (citing two studies demonstrating rarity of application of summary judgment in negligence). The existence of nonexistence of negligence is determined by the "jury's application of a 'reasonable man standard,' and therefore, some genuine issues of fact almost always are presented." Mertens v. Agway, Inc., 278 F. Supp. 95, 99 (S.D.N.Y. 1967) (citations omitted).
D. Law Applicable to Collective Liability
The New York State Court of Appeals has been a leading innovator in the field of product liability. As the Court noted in Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982), "products liability law cannot be expected to stand still where innocent victims face 'inordinately difficult problems of proof.'" Bichler, 55 N.Y. at 580-81, 450 N.Y.S.2d at 779 (quoting Caprara v. Chrysler Corp., 52 N.Y.2d 114, 123, 436 N.Y.S.2d 251, 255, 417 N.E.2d 545, 549 (1981)). New York has been at the forefront of tort law in recognizing theories of collective liability.
Four distinct theories of collective liability that relax the traditional "causation-in-fact" requirement of negligence and product liability law have been recognized or expressly adopted in New York: alternative, enterprise, concerted action, and market share. See Hall v. E. I. DuPont De Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972) (enterprise, or industry-wide, liability); Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182 (1982) (concert of action); Hymowitz v. Eli Lilly & and Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. 2d 338 (1989) (market share).
Alternative liability applies "where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it." Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948); Restatement (Second) of Torts, § 433B(3); see also Bichler, 55 N.Y.2d at 580 n.5, 450 N.Y.S.2d at 780 n.5, 436 N.E.2d at 186 n.5. The burden of proof as to causation in such a case is reversed and placed upon each actor to prove that he did not cause the harm. Alternative liability generally requires joining all possible culpable defendants in the action. See Shackil v. Lederle Laboratories, 116 N.J. 155, 166, 561 A.2d 511, 516 (1989); Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 602, 163 Cal. Rptr. 132, 139 607 P.2d 924, 931, cert. denied, 449 U.S. 912, 101 S. Ct. 285, 66 L. Ed. 2d 140 (1980).
Enterprise liability is used to hold all manufacturers in a specific industry liable where the individual manufacturer whose product caused the harm cannot be identified and where the industry jointly controlled the risk. See Hall v. E.I. DuPont De Nemours & Co., 345 F. Supp. 353 (E.D.N.Y. 1972); see also Bichler, 55 N.Y.2d at 580 n.5, 450 N.Y.S.2d a 780 n.5, 436 N.E.2d at 186 n.5. This joint control usually involves the use of a trade association or other form of agreement or custom through which industry-wide practices or safety standards are determined. See Hall, 345 F. Supp. at 374.
A theory of "concerted action" establishes collective liability where the evidence shows that all defendants had an understanding, express or tacit, to participate in a common plan to commit a tortious act. See Hymowitz v. Eli Lilly & and Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. 2d 338 (1989); see also Restatement (Second) of Torts § 876 (1965). Mere parallel activity is insufficient to establish collective liability under a concerted action theory. See Hymowitz, 73 N.Y.2d at 506-07, 541 N.Y.S.2d at 946-47.
In Bichler, the Court of Appeals upheld a jury charge allowing recovery under a concerted action theory where "although acting independently, [defendants'] acts had the effect of substantially encouraging or assisting the wrongful conduct of the other." 55 N.Y.2d at 582-84, 450 N.Y.S.2d at 781-82. As the Court noted, however, it affirmed the charge because counsel failed to adequately preserve the question for review. 55 N.Y.2d at 583-84, 450 N.Y.S.2d at 781-82. The Court did not engage in a thorough consideration of whether New York law would permit the theory of concerted action embodied in the charge. Subsequently, in Hymowitz, the Court rejected the more expansive theory of concerted action found in the Bichler charge, holding that a common agreement, tacit or otherwise, is necessary to establish liability for concerted action. Hymowitz, 73 N.Y.2d at 506-07, 541 N.Y.S.2d at 946-47. The Court of Appeals did not hold that concerted action is not a viable theory under New York law, but only that its requirements were not met in DES cases. Id. 73 N.Y.2d at 507-08, 541 N.Y.S.2d at 948.
As the Hymowitz decision illustrates, New York law remains dynamic on the issue of collective liability. The Court of Appeals has been willing to adapt basic theories of collective liability to unique circumstances. While rejecting a concerted action theory where there was no common plan, Hymowitz adopted a market share theory for liability in DES cases. See Hymowitz, 73 N.Y.2d at 508, 541 N.Y.S.2d at 947; see also Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 163 Cal. Rptr. 132, 607 P.2d 924, cert. denied, 449 U.S. 912, 101 S. Ct. 285, 66 L. Ed. 2d 140 (1980). The Court of Appeals noted the defendants' parallel activity, the identical, generic quality of the product across all manufacturers, and the latent injuries it caused as key factors in adopting the theory. 73 N.Y.2d at 508, 541 N.Y.S.2d at 947.
In adopting market share liability, the court stressed that it was tailoring its market share theory to a unique situation. See id. ("We stress, however, that DES is a singular case . . ."). The case demonstrates, however, the Court of Appeals' inclination to fashion new bases of collective liability where the facts and circumstances demand them in protecting the reasonable expectations of safety held by the public. Given the court's history, it would be unwarranted to assume that the New York Court of Appeals would not adopt or modify New York tort theory in response to new circumstances that warrant such treatment. See Christopher J. McGuire, Note, Market-Share Liability After Hymowitz and Conley: Exploring the Limits of Judicial Power, 24 U. Mich. L. Ref. 759, 761 (1991) (market share theory may not be limited to DES but instead encompasses a particular set of defendant identification problems).
The New York Court of Appeals continues to break new ground and refine the state's products liability law. See, e.g., Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995) (implied warranty is a separate and distinct cause of action from design and manufacturing defect).
In addition to these four theories that the New York Court of Appeals has either adopted or acknowledged, appellate courts in other states have adopted other variants of collective liability. See, e.g., Shackil v. Lederle Laboratories, 219 N.J. Super. 601, 530 A.2d 1287 (App.Div. 1987), rev'd, 116 N.J. 155, 561 A.2d 511 (1989) (risk-modified market share liability); Collins v. Eli Lilly & Co., 116 Wis. 2d 166, 342 N.W.2d 37, cert. denied, 469 U.S. 826, 105 S. Ct. 107, 83 L. Ed. 2d 51 (1984) (modified market share liability); Martin v. Abbott Laboratories, 102 Wash. 2d 581, 689 P.2d 368 (1984) (same); see also McGuire, Note, supra at 765-67 (discussing Collins and Martin); Andrew M. Nace, Note, Market Share Liability: A Current Assessment of a Decade-Old Doctrine, 44 Vand. L. Rev. 395, 407-12 (discussing Collins, Martin, and other variants).
For example, a New Jersey superior court applied what it called "risk-modified market share liability" in a case involving the diphtheria, pertussis, and tetanus ("DPT") vaccine. See Shackil v. Lederle Laboratories, 219 N.J. Super. 601, 530 A.2d 1287 (App.Div. 1987), rev'd, 116 N.J. 155, 561 A.2d 511 (1989). Under this theory, a defendant's liability for its market share is reduced not only through exculpation, but by a showing that, to the extent the product at issue is not -- unlike DES -- fungible or generic, its product created a reduced risk relative to its market share. See id. The New Jersey Supreme Court reversed not for doctrinal reasons but on the grounds that imposition of collective liability in that case would frustrate "overarching public-policy and public-health considerations" by threatening the vaccine's availability, and because an adequate statutory scheme of compensation for victims was already in place. 116 N.J. at 158, 561 A.2d at 512. The Court explicitly left open the possibility that it might adopt the theory in another case. 116 N.J. at 189, 561 A.2d at 528 ("This case, the Court's first exposure to market-share liability, may therefore come to represent the exception rather than the rule.").
As Hymowitz illustrates, New York has looked to other states for collective liability theories that best fit particular cases where no theory previously adopted in New York was deemed suitable. See Hymowitz, 73 N.Y.2d at 508-12, 541 N.Y.S.2d at 948-50 (reviewing decisions of other state courts in crafting New York's market share theory).
A number of factors are common to all theories of collective liability. First, problems unique to the case must make it impracticable to prove which defendant caused the injury. See Hymowitz, 73 N.Y.2d at 504-07, 541 N.Y.S.2d at 945-47; see generally Symposium: The Problem of the Indeterminate Defendant: Market Share and Non-Market Share Liability, 55 Brooklyn L. Rev. 863 (1989); see also David Leebron, An Introduction to Products Liability: Origins, Issues and Trends, 1990 Ann. Surv. Am. L. 390, 428-32. Second, all defendants sought to be held collectively liable must have engaged in tortious activity that could have caused the injury. See Sheffield v. Eli Lilly & Co., 144 Cal. App. 3d 583, 599, 192 Cal. Rptr. 870, 889 (1983) (rejecting market share liability in manufacturing defect case because it would be unfair to hold innocent manufacturers liable for an injury caused by one tortfeasor). Third, the problems of proof must be related to the conduct (or the product) itself. See Hymowitz, 73 N.Y.2d at 507, 541 N.Y.S.2d at 947 (noting necessity for market-share because DES' latency and generic quality creates "curtain" behind which manufacturers otherwise could hide); Sheffield, 144 Cal. App. 3d at 594, 192 Cal. Rptr. at 877 (delay in discovering alleged causation not related to nature of product or act or omission of non-tortfeasor defendants). Finally, an important consideration in adopting theories of collective liability has been the absence of another effective remedy or procedure through which individual victims may be compensated. See, e.g., Shackil, 116 N.J. at 180-86, 561 A.2d at 523-27 (rejecting risk-modified market share theory because statute provides victim compensation).
At bottom, adoption by a state's highest court of a theory of collective liability is a policy decision. As the Hymowitz court noted:
It would be inconsistent with the reasonable expectations of a modern society to say to these plaintiffs that because of the [unique factors identified in the case] the cost of injury should be borne by the innocent and not the wrongdoers. . . . Consequently, the ever-evolving dictates of justice and fairness, which are at the heart of our common law system, require formation of a remedy . . . .
73 N.Y.2d at 507, 541 N.Y.S.2d at 947; see also Shackil, 116 N.J. at 158, 561 A.2d at 512 (public-policy and public-health considerations). In predicting what the New York Court of Appeals would do in the area of collective liability for negligent marketing of handguns, a federal court must look both to developed precedent and to underlying policy considerations that have motivated the state.
E. Application of Law to Facts
Collective liability provides both a basis for establishing a defendant's liability where proof of causation is impossible and a method of apportioning damages between liable codefendants. It is not necessary to consider here how the New York Court of Appeals would apportion damages if it were to apply a theory of collective liability in this case. Instead, the question posed on this motion for summary judgment is whether it is clear that the Court of Appeals would deny plaintiffs the chance to hold defendants liable under any collective liability theory.
Plaintiffs are proceeding on a theory of negligence concerning the manner in which defendants marketed the handguns. Discovery in the present case has thus far proceeded on the limited question of collective liability, but not on the underlying negligence claim. Until discovery on that point is completed, it is difficult to determine what activity or nonactivity plaintiffs will identify as negligent. Summary judgment on this theory is not appropriate until general discovery is complete and the issues are fully briefed.
It is also difficult to know what the basis will be of the alleged collective liability until the underlying negligence theory is fleshed out. It is nevertheless possible to determine that sufficient questions of material fact exist at this stage, or may likely be developed in further discovery, to deny summary judgment on the collective liability issue.
The heart of the plaintiffs' theory, apparently, is the claim that defendants' negligence in methods of marketing handguns and flooding the handgun market has fostered the development of an extensive underground economy in handguns. Through this underground market, it is suggested, youths may readily illegally obtain handguns which they then use, resulting in the deaths of individuals such as the decedents represented by the plaintiffs in this court.
No one doubts that the problem of youths and handguns is a serious one. As one observer has commented:
Part of the problem . . . [is] the sheer availability of guns. Young people in our inner cities know that there is a war going on; millions have been caught up in the many small battles that make up the war on America's streets. Most young people are interested in surviving the war, but the price they pay is being prepared to kill or be killed almost every day.
As the number of guns available has increased so have the odds that they will be shot in a confrontation.
Geoffrey Canada, Fist Stick Knife Gun: A Personal History of Violence in America 68 (1995). As already indicated in Part I, supra, the problem of youths and firearms is widely acknowledged to be of major national concern. The Justice Department reports that weapons offenses arrest rates for teenage males have increased dramatically in comparison with the population at large, and that 23% of those arrested for weapons offenses in 1993 were under the age of 18. See Bureau of Justice Statistics, Selected Findings: Weapons Offenses and Offenders 3 (Nov. 12, 1995). Juvenile arrests for weapons offenses increased 100% between 1985 and 1993. Id.
Viewing the facts and drawing inferences in the light most favorable to the plaintiffs, it is possible that plaintiffs will be able to show that a substantial cause for the killings that are at the heart of this suit is the operation of a large-scale underground market. No one claims that defendants intended their guns to be used illegally to hurt anyone. There may, however, come a point that the market is so flooded with handguns sold without adequate concern over the channels of distribution and possession, that they become a generic hazard to the community as a whole because of the high probability that these weapons will fall into the hands of criminals or minors prohibited from possession under state and federal law. But see Note, Handguns and Products Liability, 97 Harv. L. Rev. 1912, 1920-24 (1984) (opposing "defect in distribution" theory as basis for strict liability for handgun manufacturers). While in individual cases the exact manufacturer may be identified, plaintiffs might establish through discovery that a particular manufacturer's negligence alone would have been insufficient to foster the growth of the underground gun market to the extent that the individual shooter could obtain that manufacturer's gun. Thus, it may be argued, only the collective action of the handgun industry makes the individual shootings giving rise to this suit possible even when the manufacturer of the gun used in the shooting was known.
Plaintiffs have already produced some material through discovery that hints at support for such a theory. The SAAMI pledge adopted by many defendants, and the meaning given to that pledge by individual representatives of several of the defendants, arguably suggests a collective view within the industry that responsible sales meant only that sales to dealers had to comply with federal law, i.e., were restricted to those with licenses from the federal government.
If the underlying cause of the injuries is the unchecked growth of the underground handgun market, and not an individual negligent sale of a particular gun by a particular defendant to a particular licensed dealer, then the New York Court of Appeals might find a market share theory or some variant to be viable even if the manufacturer of the gun used to commit the killing were known. The New York Court of Appeals well might, for policy reasons, adopt a Hymowitz -type theory, or one of the theories espoused by other state courts such as those in Sindell or Shackil that would allow for exculpation or adjustments for risk contribution at variance with actual market share. See Hymowitz v. Eli Lilly & and Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 493 U.S. 944, 110 S. Ct. 350, 107 L. Ed. 2d 338 (1989) (no exculpation); Shackil v. Lederle Laboratories, 219 N.J. Super. 601, 530 A.2d 1287 (App.Div. 1987), rev'd, 116 N.J. 155, 561 A.2d 511 (1989) (modification for risk contribution); Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 602, 163 Cal. Rptr. 132, 139 607 P.2d 924, 931, cert. denied, 449 U.S. 912, 101 S. Ct. 285, 66 L. Ed. 2d 140 (1980) (allowing exculpation).
If negligence lies not in the creation and fostering of the underground gun market, but in the individual sale of a handgun, market share liability might still be a viable theory where the defendant is unknown. It is the nature of illegal handgun use that the shooter is likely to dispose of the gun so as to minimize the chances of being caught. Depending upon what is available to law enforcement investigators where the gun is not retrieved, it will be possible only in some instances, and then to varying degrees, to narrow the field of possible handgun manufacturers. On much different facts and for different reasons than those in the DES cases, difficulties in defendant identification unique to the product and to manufacturer may arise. The New York court of Appeals might choose to adopt, for reasons of public policy, a theory of collective liability. Most appropriate might be a form of market share liability that provided for exculpation.
It does not appear that the New York Court of Appeals would make use of either concerted activity or enterprise liability theories. The former, as Hymowitz makes clear, requires evidence of a tacit agreement as to the tortious conduct. Hymowitz, 73 N.Y.2d at 506-07, 541 N.Y.S.2d at 946-47. Plaintiffs have not produced any facts suggesting the existence of an agreement among the defendants as to how to market the guns. The latter theory requires joint control of the risk through use of a trade association or some other method of standard-setting. Plaintiffs allege joint coordination of policy positions, but that relates to lobbying activities, not to actual marketing. Given the facts as thus far developed, the theories the New York Court of Appeals would most likely adopt, if it were to adopt any, are some form of either market share or alternative liability.
As the foregoing discussion illustrates, it would be premature to conclude that the New York Court of Appeals would decline to adopt any theory of collective liability in this case. Many of the elements the Court of Appeals relied upon in Hymowitz may be present in this case, some by analogy. Further factual development is required before a court can decide whether plaintiffs may maintain an action predicated on collective liability. See American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir. 1967), cert. denied, 404 U.S. 1063, 92 S. Ct. 737, 30 L. Ed. 2d 752 (1972); Jecies v. Matsuda, 503 F. Supp. 580 (S.D.N.Y. 1980).
VII. Class Action Certification
Plaintiffs seek certification of a class under Rule 23(c)(4)(A) of the Federal Rules of Civil Procedure. That class would consist of persons killed or injured in unlawful handgun shootings and the representatives of such persons.
The underlying purpose of the class action mechanism is to foster "judicial economy and efficiency by adjudicating, to the extent possible, issues that affect many similarly situated persons." In re Joint Eastern and Southern District Asbestos Litig., 129 Bankr. 710, 802 (citing Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S. Ct. 2545, 2557-58, 61 L. Ed. 2d 176 (1979). It is universally recognized that in pursuing these goals a district court is afforded broad discretion in determining whether an action should be certified under Rule 23. See, e.g., City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295, 298 (2d Cir. 1969); In re Joint E. & S. Asbestos Litig., 129 Bankr. at 816 (E.&S.D.N.Y. 1991); In re Tetracycline Cases, 107 F.R.D. 719, 735 (W.D.Mo. 1985) (citing cases and treatises); 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1759, at 111 (2d ed. 1986).
For a plaintiff-class action to be maintained, four prerequisites must be met: numerosity such that joinder is impractical, common questions of law or fact, typicality of claims or defenses, and the extent to which plaintiffs' are representative of the class. See Fed. R. Civ. P. Rule 23(a). In addition to these prerequisites, Rule 23(b) provides a choice of additional criteria, one of which must be applicable for a court to certify a class. See Fed. R. Civ. P. Rule 23(b). Most relevant of the criteria under 23(b) is that the court may certify a class if it finds that common questions of law or fact predominate over questions affecting individual members. Fed. R. Civ. P. Rule 23(b)(3).
Rule 23(c)(4) provides that "when appropriate (A) an action may be brought or maintained as a class action with respect to particular issues . . . ." Fed. R. Civ. P. Rule 23(c)(4)(A). Certification is not appropriate if, despite the presence of a common issue, certification would not make the case more manageable or serve the varied interests Rule 23 seeks to advance.
Plaintiffs propose certification as a class persons killed or injured in unlawful handgun shootings and representatives of such persons. They propose class resolution of issues regarding the joint conduct or concerted action of the defendants in marketing the handguns. They have not demonstrated that all the prerequisites have been met to permit class certification, or that interests of judicial economy and efficiency would be served by certification. Proposed classmembers stand in different positions relative to defendants' conduct.
Plaintiffs argue that issues involving joint conduct will be the same for all members of the proposed class. Whether that joint conduct caused each classmember's injury, however, is another matter. In effect they propose class certification for the questions of duty and breach under negligence, and individual treatment for causation and damages. Courts often bifurcate the liability and damages portions of litigation. See, e.g., In re Joint E. & S. Asbestos Litig., 878 F. Supp. 473, 489-90 (E.&S.D.N.Y. 1995); In re Tetracycline Cases, 107 F.R.D. at 735.
It makes little sense to bifurcate in this case. Establishing that defendants jointly breached a duty to plaintiffs in the manner the guns were marketed can be just as easily accomplished through consolidation of a small number of cases with similar fact patterns for determination of legal issues. When there are scientific issues of general causation, as in mass torts cases, certification of a class for a limited purpose may be desirable. There are no equivalent causal issues in the instant case.
Assuming that plaintiffs can prove at trial that defendants collectively breached a duty, they must still establish that this breach caused each plaintiff's injury. Many proposed classmembers may be injured through the illegal use of firearms by underage assailants, yet it would seem that plaintiffs must at least tie the youth's possession of the gun to the operation of the underground handgun market attributable to the defendants' mode of marketing. There has been no showing to date that resolution of the issues sought for class certification would advance the interests of judicial economy and efficiency. Certification is denied with leave to renew.
Defendants' motion for summary judgment dismissing plaintiffs' product liability and fraud claims is granted. Defendants' motion for summary judgment on plaintiffs' theory of collective liability for negligence is denied. The parties may renew motions upon the completion of full discovery. Plaintiffs' application for class certification is denied.
Jack B. Weinstein
United States Senior District Judge
Dated: Brooklyn, New York
August 12, 1996
© 1992-2004 VersusLaw Inc.