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Quarterly Volume 56 Index QFDCC UARTERLY AN INTRODUCTION TO THE CLASS ACTION FAIRNESS ACT OF 2005 William C. Roedder, Jr. THE SUPERSIZING OF A MERICA: OBESITY’S POTENTIAL IMPLICATIONS FOR THE INSURANCE INDUSTRY Helen Johnson Alford and James W. Lampkin II MALINGERING OF PSYCHIATRIC PROBLEMS, BRAIN DAMAGE, CHRONIC PAIN, AND CONTROVERSIAL SYNDROMES IN A PERSONAL INJURY CONTEXT Steve Rubenzer LIFE AFTER BALLARD: MOLD LITIGATION IN THE NEW MILLENNIUM W. Stephen Benesh TAKING THE LAST STEP IN INSURANCE LAW’S MOST SIGNIFICANT EVENT: THE END OF FIRST-PARTY INSURANCE BAD FAITH IN CALIFORNIA John Cross WATER SPORTS AND RECREATIONAL LIABILITY ISSUES (COME ON IN, THE WATER’S FINE!) David M. Louie and Rhonda L. Ching FDCC QUARTERLY VOLUME 56 INDEX VOL. 56, NO. 4 SUMMER, 2006 FEDERATION OF DEFENSE AND CORPORATE COUNSEL PRESIDENT BOARD OF DIRECTORS DAN D. KOHANE 2005-2007 2006-2008 1300 Liberty Building JANET L. BROWN COLIN V. CROLY Buffalo, NY 14202 P.O. Box 2593 15 St. Botolph Street 716-849-8900 101 Southhall Lane, Suite 375 London, England EC3A 7NJ Orlando, FL 32802 E-mail: [email protected] EDWARD M. KAPLAN F. THOMAS CORDELL 9 Capitol Street 201 North 4th Street P.O. Box 1256 PRESIDENT-ELECT P.O. Box 533 Concord, NH 03302-1256 Chickasha, OK 73023 WAYNE B. MASON MICHAEL T. LUCEY 1717 Main Street, Suite 5400 STEPHEN E. GOLDMAN 275 Battery Street Dallas, TX 75201 280 Trumbull Street San Francisco, CA 94111-3305 469-227-4602 Hartford, CT 06103-3597 E-mail: [email protected] SARAH J. TIMBERLAKE MICHAEL I. NEIL 105 N. Hudson, 10th Floor 1010 2nd Avenue, Suite 2500 P.O. Box 1937 San Diego, CA 92101-4906 Oklahoma City, OK 73102-5405 SECRETARY-TREASURER STEVEN L. BARNEY VICE PRESIDENTS 303 Howard Street ROBERT W. FOSTER, JR. EDWARD B. RUFF III Petoskey, MI 49770 1320 Main Street One South Wacker Drive 231-348-6416 Columbia, SC 29201 Suite 2500 E-mail: [email protected] Chicago, IL 60606-4673 RENE J. MOULEDOUX P.O. Box 2180 RICHARD K. TRAUB Houston, TX 77252 100 Metroplex Drive, Suite 203 BOARD CHAIR Edison, NJ 08817 STEPHEN P. PATE LEWIS F. COLLINS, JR. 1301 McKinney Street, Suite 5100 GALE WHITE 777 South Harbour Island Boulevard Houston, TX 77010-3095 1800 One Liberty Place One Harbour Place, #500 Philadelphia, PA 19103-7395 Tampa, FL 33602 TIMOTHY A. PRATT 813-281-1900 1200 Main Street THOMAS A. WILLIAMS E-mail: [email protected] One Kansas City Place 801 Broad Street Kansas City, MO 64105-2118 Chattanooga, TN 37402-2621 VICTORIA H. ROBERTS 4722 North 24th Street, Suite 200 Phoenix, AZ 85016 EXECUTIVE DIRECTOR CLE COORDINATOR FDCC QUARTERLY MARTHA J. (MARTY) STREEPER FRANCIE BERG EDITORIAL OFFICE 11812-A North 56th Street 3714 22nd Avenue South Marquette University Law School Tampa, FL 33617 Minneapolis, MN 55407 P.O. Box 1881 813-983-0022 612-339-5863 Milwaukee, WI 53201-1881 813-988-5837 Fax 612-339-1529 Fax 414-288-7095 E-mail: [email protected] E-mail: [email protected] 414-288-5914 Fax E-mail: [email protected] PUBLICATIONS COMMITTEE EDITOR-WEB SITE CHAIR BRUCE D. CELEBREZZE Editor-in-Chief SUSAN M. POPIK One Embarcadero Center, 16th Floor John J. Kircher 650 California Street, 19th Floor San Francisco, CA 94111-3765 Professor of Law San Francisco, CA 94108 415-781-7900 Marquette University Law School 415-352-3000 E-mail: [email protected] E-mail: [email protected] Associate Editor LIAISON-QUARTERLY Prof. Christine M. Wiseman EDITOR-FLYER JAMES A. GALLAGHER, JR. Vice President for Academic Affairs JOHN S. REA 350 Fifth Avenue, Suite 4810 Creighton University 2645 Wooster Road New York, NY 10118-4398 Cleveland, OH 44116 516-742-2500 Student Editors 440-331-3853 E-mail: [email protected] Krisstina L. Ebner EDITOR-BROCHURE Pamela M. Heinrich MARY K. GOGOEL Benjamin W. Proctor 515 King Street, Suite 340 Alexandria, VA 22314 703-739-3300 E-mail: [email protected] QFDCC UARTERLY SUMMER, 2006 VOLUME 56, NUMBER 4 CONTENTS AN INTRODUCTION TO THE CLASS ACTION FAIRNESS ACT OF 2005 William C. Roedder, Jr. ........................................................................................... 443 THE SUPERSIZING OF A MERICA: OBESITY’S POTENTIAL IMPLICATIONS FOR THE INSURANCE INDUSTRY Helen Johnson Alford and James W. Lampkin II .................................................... 465 MALINGERING OF PSYCHIATRIC PROBLEMS, BRAIN DAMAGE, CHRONIC PAIN, AND CONTROVERSIAL SYNDROMES IN A PERSONAL INJURY CONTEXT Steve Rubenzer ........................................................................................................ 499 LIFE AFTER BALLARD: MOLD LITIGATION IN THE NEW MILLENNIUM W. Stephen Benesh .................................................................................................. 525 TAKING THE LAST STEP IN INSURANCE LAW’S MOST SIGNIFICANT EVENT: THE END OF FIRST-PARTY INSURANCE BAD FAITH IN CALIFORNIA John Cross .............................................................................................................. 545 WATER SPORTS AND RECREATIONAL LIABILITY ISSUES (COME ON IN, THE WATER’S FINE!) David M. Louie and Rhonda L. Ching .................................................................... 591 FDCC QUARTERLY VOLUME 56 INDEX .............................................................................. 623 Cite as: 56 FED’N DEF. & CORP. COUNS.Q. ___ (2006). The Federation of Defense & Corporate Counsel Quarterly (USPS 189-180) (ISBN 0887-0942) is published quarterly for $60.00 per year by the Federation of Defense & Corporate Counsel, Inc., 11812 North 56th Street, Tampa, FL 33617. Periodicals postage paid at Tampa, Florida and additional mailing offices. POSTMASTER: Send address changes to the Executive Director, 11812 North 56th Street, Tampa, FL 33617. No article may be reproduced without the express written permission of both FDDC and the author. Copyright, 2006, by the Federation of Defense & Corporate Counsel, Inc. FDCC 2007 Winter Meeting Planning is well underway. The venue is beautiful, rooms are luxurious and the meeting and greeting spaces are wonderful. You will find this a great place to relax and enjoy time with your FDCC friends. Our theme will be “Yesterday, Today and Tomorrow” and we will have elements of each throughout the week. February 25 - March 4, 2007 Fairmont Scottsdale Princess Scottsdale, Arizona CLASS ACTION FAIRNESS A CT An Introduction to the Class Action Fairness Act of 2005 William C. Roedder, Jr. I. STATUS OF CLASS ACTIONS PRIOR TO FAIRNESS ACT PASSAGE Although this section will focus on Alabama, its changing attitude regarding class actions is not atypical of other jurisdictions in the United States. Not long ago, Alabama was a venue favored by plaintiffs’ counsel for the filing of class actions and the site of very large verdicts.1 However, even prior to the Federal government’s implementation of the Class Action Fairness Act (“the CAFA”), the judiciary of the state of Alabama took sub- stantial measures to eliminate the inequities that existed previously in the landscape of Alabama class actions. The Alabama judiciary has since utilized heightened scrutiny of class certifications as the mechanism to police class actions, thereby destroying the class action before it has a chance to form. Heightened scrutiny has been especially prevalent when plaintiffs attempt to certify a class seeking to recover damages pursuant to Alabama Rule of Civil Procedure 23(b)(3). In order to certify a class under Rule 23(b)(3), Alabama law requires that the claims of the class members contain a common question that predominates over individual ques- tions; in addition, the class action must be the superior method of resolving all the claims. Recent Alabama Supreme Court decisions have refused to certify class actions for a myriad 1 Leonard Nelson, Is Alabama a Jurisdiction out of Control? - That Depends, 27 CUMB. L. REV. 987 (1996-97). 443 FDCC QUARTERLY/SUMMER 2006 William C. Roedder, Jr. is with McDowell Knight Roedder & Sledge, L.L.C., in Mobile, Alabama. His practice includes the defense of all types of civil litigation. Mr. Roedder gradu- ated from Cumberland School of Law, cum laude, and is a past president of the Federation of Defense and Corporate Counsel. He served on the Board of the Defense Research Institute and is currently President-Elect of Lawyers for Civil Justice. Mr. Roedder is listed in “The Best Lawyers in America” and “Who’s Who in America.” of reasons. Claims for fraudulent suppression,2 breach of fiduciary duty,3 conspiracy,4 and unjust enrichment5 have been reversed for failing to satisfy the predominance requirement. Alabama courts also have refused to certify classes where the defendants offer defenses6 or counterclaims7 that may be unique to individual plaintiffs. By eliminating class actions at the certification stage, the Alabama judiciary has made significant progress in creating a state forum that is fast becoming more fair and equitable for corporate defendants. II. OVERVIEW OF THE FAIRNESS ACT President Bush signed the Class Action Fairness Act into law on February 18, 2005.8 The purpose of the law was to correct current problems with existing class action litigation, which largely occurs in state courts. Congress viewed the major problems as those associ- ated with “magnet” state courts and copy-cat litigation.9 2 See Regions Bank v. Lee, 905 So. 2d 765 (Ala. 2004). 3 Id. 4 Funliner of Ala., L.L.C. v. Pickard, 873 So. 2d 198 (Ala. 2003); Avis Rent A Car Systems, Inc. v. Heilman, 876 So. 2d 1111 (Ala. 2003). 5 Id. 6 U-Haul Co. of Ala., Inc. v. Johnson, 893 So. 2d 307 (Ala. 2004). 7 Gen. Motors Acceptance Corp. v. Massey, 893 So. 2d 314 (Ala. 2004). 8 Pub. L. No. 109-2, 119 Stat. 4-14 (2005). 9 S. REP. NO. 109-14, 109th Cong., 1st Sess., at 13-14 (2005). 444 CLASS ACTION FAIRNESS A CT “Magnet” state courts are those in which plaintiffs’ attorneys are allowed to certify virtually any class. These “magnet” state courts abridge the due process rights of corporate defendants and ignore or override the laws of other states that should apply to the class claims.10 The CAFA legislation is designed to expand the removal of interstate class actions from state court to federal court on diversity jurisdiction grounds.11 Congress also sought to eliminate inefficient copy-cat litigation in state courts.
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