Zinser
Zinser v. Accufix Research Institute, Inc.
Opinion
Lead Opinion
Gould, J.
Opinion by Judge RONALD M. GOULD; Dissent by BETTY B. FLETCHER.
This is a products liability action involving pacemakers containing the allegedly defective ENCOR Bipolar Passive Fixation Pacing Lead Model 380-854 (“854 lead”). Plaintiff-Appellant Robin Zinser (“Zinser”) filed a class action complaint alleging negligence, products liability, negligent misrepresentation, fraud and deceit, breach of express warranty, breach of implied warranty, and infliction of emotional distress against defendant Aceufix Research Institute (“ARI”), formerly Te-lectronics Pacing Systems. Zinser also alleged that defendants Pacific Dunlop Limited (“Pacific Dunlop”) and Nucleus Limited (“Nucleus”) were derivatively liable for damages caused by ARI.
The district court denied class certification, holding that Zinser failed to meet her burden of proving that a class should be certified pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”) (b)(1)(A), (b)(1)(B), (b)(2), or (b)(3). Zinser appeals, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pacemakers containing the 854 lead were implanted in a population of 10,549 patients in 48 states throughout the United States. Approximately 8,200 of…
Dissenting Opinion
Fletcher, J.
I respectfully dissent. In deciding all of the issues against Zinser and in favor of ARI, the majority opinion seriously distorts federal class action law by collapsing the Rule 23(b)(1)(A) certification inquiry into that of Rule 23(b)(2). In the process, the majority opinion virtually ignores the holding of the Ohio district court in a parallel suit against the same defendants, see In re Telectronics Pacing Sys., Inc., 172 F.R.D. 271 (S.D.Ohio 1997), as well as that of the Sixth Circuit, which declined to disturb the relevant certification decisions of the district court. 1 The net result, I fear, is that thousands of potential plain *1198 tiffs in this case will have no practical means of redress for their injuries.
As I understand it, the Encor 854 leads are essentially the same ones (or at least are alleged to suffer from the same defects, including the J-shaped design flaw) implicated in Telectronics. Zinser cites evidence that ARI’s own studies have found a rising incidence of 854 lead fractures and that it has finally decided to recall the product, even though it initially refused to do so (and permitted continued implantation of the potentially defective leads) at the…