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Civil Procedure Keyed to Marcus
In the Matter of Rhone-Poulenc Rorer, Inc
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This suit arises out of the infection of a substantial fraction of the hemophiliac population of this country by the AIDS virus, because the blood supply was contaminated by the virus. Hemophiliacs depend on blood solids that contain clotting factors, whose absence is the cause of the disease. The blood solids are concentrated from blood obtained from donors. Thus, if one of the donors is infected with the AIDS virus, the probability that the blood solids manufactured from this blood will be infected is high. Plaintiffs presented evidence that over 2,000 hemophiliacs have died of AIDS and that half or more of the remaining hemophiliacs may be HIV-positive. Three hundred lawsuits, involving some 400 plaintiffs, have been filed, 60% of them in state courts, and 40% in federal district courts under diversity jurisdiction. Plaintiffs base their claim on two theories of liability. The first theory is that Defendants’ failure to take effective measures was negligent and caused hemophiliacs to be infected with Hepatitis B. The second theory of liability stated that Defendants were negligent in the screening of donors, and in taking measures to prevent contamination of blood solids by HIV. The trial judge based his decision to certify the suit as a class action on the rendition of the jury of a special verdict that would answer a number of questions bearing on whether the Defendants are negligent under either of the Plaintiffs’ theories. The trial judge’s experimentation with an innovative procedure for streamlining the adjudication of the mass torts far exceeded the permissible bounds of discretion in the management of federal litigation. Defendants filed with the court of appeals a Petition for Writ of Mandamus requesting the court to direct the district judge to rescind his order certifying the case as a class action.
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