The federal rules of civil procedure provide that when actions involving a common question of law or fact are pending before the court, the court may[i]:

• join for a hearing or trial any or all matters at issue in the actions;
• consolidate the actions; or
• issue any other orders to avoid unnecessary cost or delay.

If an action is to be maintainable as a class action, it must meet the test of USCS Fed Rules Civ Proc R 23 (b)(3).  To satisfy that test the court must find that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and effective adjudication of the controversy[ii].

The factors to be considered in determining whether a class action is superior to other available methods for the proper adjudication of a controversy include[iii]:

• the interest of members of the class in individually controlling the prosecution or defense of separate actions;
• the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
• the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
• the difficulties likely to be encountered in the management of a class action.

A mass accident resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses to liability, would be present affecting the individuals in different ways[iv].  An action conducted nominally as a class action would degenerate in practice into multiple suits separately tried.

In accident cases, the realities of litigation often suggest that the class procedure is not superior to more commonplace devices; in some cases, individual questions of liability and defense overwhelm the common questions.

However, under some circumstances, mass-accident litigation may and ought to be maintained as a class action.  The paradigm situation in which such treatment would be appropriate is one where[v]:

• the class action is limited to the issue of liability,
• the class members support the action, and
• the choice of law problems are minimized by the accident occurring and/or substantially all plaintiffs reside within the same jurisdiction.

In Pan American World Airways, Inc. v. United States Dist. Court for Cent. Dist., 523 F.2d 1073, 1077 (9th Cir. Cal. 1975), the court held that notification of all potential plaintiffs regarding the status of consolidated actions involving airline crashes which were pending before the court, is neither required by the due process clause nor permitted by any ascertainable source of judicial authority.  Also, since such persons would not be adversely affected by such actions, they need not be notified.

[i] USCS Fed Rules Civ Proc R 42.

[ii] Berger v. Purolator Products, Inc., 41 F.R.D. 542 (S.D.N.Y. 1966).

[iii] USCS Fed Rules Civ Proc R 23 (b)(3).

[iv] Floyd v. City of Phila., 1 Phila. 268 (Pa. C.P. 1978).

[v] Id.