In June, I read the Seventh Circuit's Bridgestone/Firestone decision, upholding the idea that a federal district court can issue an injunction to prevent the issue of nationwide class certification from being relitigated in state court, while leaving the door open for state-wide class certification in state court. This week, I read that in West Virginia, in this opinion, the state Supreme Court reversed the denial of class certification in state-wide Rezulin litigation. In Ohio, the 12th District Court of Appeals affirmed state-wide class certification regarding OxyContin, in this opinion. The latter two decisions seem to fly in the face of the bulk of the federal case which rejects class certification in personal injury cases.
These cases make me think that plaintiffs' counsel will continue to avoid federal court while seeking state-wide classes in state court - except, that is, for in states like Virginia, which has no state law procedure for class actions (and until recently would not even let a group of mass tort victims join together in one case). See Heirs of Roberts v. Coal Processing Corporation, 235 Va. 556, 559, 369 S.E.2d 188, 189 (1988) (trial court concluded “class actions are impermissible in actions at law in Virginia”); Almeter v. Virginia Dept. of Taxation, 53 Va. Cir. 429, 2000 WL 1687589 at *1 n.1 (City of Richmond Cir. Ct.) (“Class actions are not generally allowed”); In re American Dollar Exchange, Inc., 27 Va. Cir. 428, 430, 1992 WL 197040 at *3 (Campbell County Cir. Ct.) (“no class action procedure”); Skeen v. Indian Acres Club of Thornburgh, Inc., 27 Va. Cir. 167, 172-73, 1992 Va. Cir. LEXIS 166 at *12 (Spotsylvania County Cir. Ct.) (law against class actions is “unmistakably clear”); Pendergraph v. Woodlawn County Club, Inc., 22 Va. Cir. 203, 204, 1990 Va. Cir. LEXIS 338 at *2 (Fairfax County Cir. Ct.) (“plaintiff may not proceed ‘on behalf of others similarly situated’”); King v. Virginia Birth-Related Neurological Injury Compensation Program, 22 Va. Cir. 156, 159, 1990 WL 751353 at *3 (City of Richmond Cir. Ct.), aff’d, 242 Va. 404, 410 S.E.2d 656 (1991) (“no provision in Virginia law which allows class actions”); Evitt v. Lake Holiday Country Club, Inc., 13 Va. Cir. 360, 362, 1988 WL 619347 at *2 (Frederick County Cir. Ct.) (“no class action procedure”); Miller v. Nat’l Wildlife Federation, 1987 WL 488717 at *1 (Loudon County Cir. Ct.) (“no class action statute or rule similar to Rule 23”); Bracey v. City of Richmond, 1985 WL 306797 at *2 (City of Richmond Cir. Ct.) (“we do not have class action suits”); Kuhn v. West Alexandria Properties, Inc., 22 Va. Cir. 439, 444, 1980 Va. Cir. LEXIS 63 at *10-11 (City of Alexandria Cir. Ct.) (no “Virginia case law, rule of court or provision in title 8.01 of the Virginia Code which would authorize the maintenance of a class action at law”); compare SINCLAIR & MIDDLEDITCH, VIRGINIA CIVIL PROCEDURE 178, 304 (3d ed. 1998) (no class actions comparable to Rule 23); BRYSON, BRYSON ON VIRGINIA CIVIL PROCEDURE 193 (3d ed. 1997) (same); Revisers’ Note to Code § 8.01-281 (“This section does not provide for class actions”); Revisers’ Note to Code § 8.01-364 (“the section . . . is not intended to authorize the bringing of ‘class actions’”).