Mass tort and consumer product class actions are on the rise as courts grow more willing to certify classes solely on the issue of liability. In the past, certification of such class actions was rare, because courts generally forced the named plaintiff to demonstrate that common issues predominated across an entire claim before any portion of the action could be certified. Recently, some courts have held that FRCP 23(c)(4), which states, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues,” allows for the resolution of liability on a class-wide basis, regardless of how individualized other aspects of the claim may be. In other words, one jury could be asked to determine whether a product is defective on a class-wide basis, and that decision could apply to every individual purchaser’s claims across the state or country. Courts have also certified issue classes on settlements, cause-in-fact, and punitive damages.

The Second, Fourth, and Seventh Circuits all have approved the certification of issue classes regardless of whether the entire claim was subject to class treatment. The Ninth Circuit also has suggested certification of only common issues may be appropriate. While the Fifth Circuit has shown a reluctance to so diminish the requirements of commonality and predominance, it recently approved an issue class consolidating claims of economic loss and property damage resulting from the Deepwater Horizon Gulf of Mexico oil spill.

Liability issue classes can present many risks and dangers to mass tort and consumer product defendants. Severing a defendant’s conduct from each plaintiff’s conduct could result in a verdict on liability without considering mitigating principles such as comparative negligence. Additionally, the law governing liability varies widely from state to state. Nationwide issue classes fail to properly account for such variance, placing defendants at the risk of facing a more relaxed liability standard than would otherwise apply for state-specific individual claims. Finally, issue classes are arguably unconstitutional under the Seventh Amendment, which only allows bifurcation of issues that are so separable that the second jury will not reconsider findings of fact by the first jury.