Amicus Files Third Circuit Brief on Important Class Issue

One of the things we like to do is flag for our readers interesting arguments raised by amicus on important appeals. The Product Liability Advisory Council recently submitted a brief to the Third Circuit. weighing in on the surprising and troubling certification of a class of consumers in a vitamin case. Carrera v. Bayer Corp. et al., No.12-2621 (3d Cir. 2012).

The implicit requirement of ascertainability is an important but sometimes overlooked prerequisite to class certification. A plaintiff must offer a definition of a class that is precise, objective and presently ascertainable. A threshold requirement to a Rule 23 action is the actual existence of a class which is sufficiently definite and identifiable. See, e.g., Kline v. Sec. Guards, Inc., 196 F.R.D. 261, 266 (E.D. Pa. 2000); Reilly v. Gould, Inc., 965 F. Supp. 588, 596 (M.D. Pa. 1997); Clay v. Am. Tobacco Co., 188 F.R.D. 483 (S.D. Ill. 1999). The initial inquiry on class definition is distinct from the analysis required by Federal Rule of Civil Procedure 23. See, e.g., Sanneman v. Chrysler Corp., 191 F.R.D. 441, 446 n. 8 (E.D. Pa. 2000). This notion means, in part, that the court can see sufficient administrative feasibility in determining whether a particular person belongs to a class -- that the court can identify class members in a practical and non-burdensome manner. A “proposed class must be sufficiently identifiable,” and it must be “administratively feasible to determine whether a given individual is a member of the class.”Mueller v. CBS, Inc., 200 F.R.D. 227, 233 (W.D. Pa. 2001). A class may not be ascertainable if it will require individual inquiry into each class member’s particular situation to determine whether that plaintiff suffered the injury alleged. Similarly, a class is not ascertainable if membership depends on a particular subjective state of mind. And even when plaintiffs offer ostensibly objective criteria for membership, the court must be able to apply that objective criteria to determine who is in the class without addressing numerous fact-intensive questions. Certification is denied when determining membership in the class essentially requires a mini-hearing as to each prospective class member. E.g., Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 478 (D.N.J. 2009); Solo v. Bausch & Lomb Inc., 2009 WL 4287706, (D. S.C. Sept. 25, 2009) (class not appropriate for certification where determining class membership would require “fact-intensive mini-trials”).

Here, the trial court certified a class of Florida residents who purchased One-A-Day WeightSmart, a multivitamin that Bayer stopped selling in January 2007 – more than five years ago. As the
experience of the named plaintiff vividly illustrated, PLAC noted, membership in the class could not be demonstrated through objective documentation. Obviously, most consumers do not keep receipts or packaging from small-value, one-use products consumed years ago, and  plaintiff could not substantiate his own purchases (or offer any evidence that anyone else’s purchases could be substantiated).

Instead, noted the amicus, plaintiff proposed to prove class membership – for himself and for
the alleged members of the class – through self-serving statements whose veracity Bayer would have no ability to challenge. As the district court’s brief order described it, plaintiff and the other class members who lack objectively verifiable evidence that they ever purchased WeightSmart could still “establish” class membership by way of “claim forms or affidavits.” The order apparently made no provision for any substantive challenge to these proposed forms or affidavits; rather, the court viewed such submissions as “sufficient” in themselves to “verify claims.”

This one-sided procedure clearly violates a defendant's fundamental right to present individualized defenses, a right that is protected by the Due Process Clause. That right cannot be vitiated merely because the case is a putative class action or because the claims at issue have low dollar values.

Nor is the right to challenge class membership a mere technicality, noted PLAC. The named plaintiff himself had no definitive evidence that he purchased the product at issue in his suit. To the contrary, there was a real question, flagged by PLAC, whether he ever bought WeightSmart, given his erroneous recollection of the product’s packaging and the time period when it was on the market. Other potential class members would face similar challenges in proving that they purchased WeightSmart. Contrary to the district court's view, these were not minor manageability issues that should not prevent certification of a class.  That view, noted PLAC, confused Bayer’s fundamental rights with minor procedural issues that can be disregarded in service of class certification.

PLAC correctly pointed out the real danger in decisions like this: establishing a rule of law that defendants can be held liable to consumers without any real proof that those consumers purchased the defendants’ products, and sending a message that administrative convenience can override the basic due-process right to defend oneself in litigation.


 

Product Seller (Still) Has No Duty To Protect From Criminal's Use Of Product

Country music fans among our readers may recall the Garth Brooks' song "Longneck Bottle."  That tune, from his CD "Sevens," reached No. 1 on the country charts in 1997.  In it, the singer pleads for the long neck bottle to stay clear of his hand.  Today's post might be sub-titled, "longneck bottle stay clear of my face."  In Gann v. Anheuser-Busch Inc., No. 11-00017 (Tex. App. 7/26/12), a plaintiff asserted liability against the maker of a longneck glass beer bottle for injuries allegedly suffered when she was struck in the face by a bar patron wielding the bottle as a weapon.

While celebrating a friend’s birthday "at a bar known for its violence," according to the court, Gann was assaulted by a patron wielding a Budweiser “longneck” glass beer bottle. She sued for an alleged design defect in the bottle, with the typical strict liability and negligence counts.  The trial court granted summary judgment to defendants, and plaintiff appealed.

In a strict products liability action in which a claimant alleges a design defect, a Texas claimant must prove by a preponderance of the evidence that: (1) the defect renders the product “unreasonably dangerous;” (2) the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery; and (3) there was a safer alternative design. TEX.CIV.PRAC.&REM.CODE ANN. § 82.005(a)(West 2011); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). To determine whether a product was defectively designed so as to render it unreasonably dangerous, the courts apply a risk-utility analysis that requires consideration of the following factors:
(1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use;
(2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive;
(3) the manufacturer’s ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs;
(4) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and
(5) the expectations of the ordinary consumer.

Defendant made an interesting threshold, no-duty, argument, that rings true to MassTortDefense. As a matter of law, Anheuser-Busch had no legal duty to design the longneck bottle against purposeful and criminal misuse because it satisfied its one and only legal duty: to design the bottle to ensure that the bottle was safe for its intended and ordinary use – storing beer.
In support of its argument, Anheuser-Busch cited to Venezia v. Miller Brewing Co., 626 F.2d 188 (1st Cir. 1980), a case we used when teaching products liability in law school. In Venezia, the federal appeals court applied Massachusetts law to hold that the plaintiff, who was injured by the broken shards of the beer bottle he deliberately threw against a pole, could not recover from Miller Brewing under a theory of negligent design, because the deliberate misuse of the beer bottle could not be characterized as an intended or ordinary use of the beer bottle. 626 F.2d at 189, 191-92.  The Texas court of appeals felt that it need not address this issue of duty however, given the other fatal flaws in plaintiff's case.

Specifically, plaintiff argued that beer bottles are used commonly in assaults in the local community, that the longneck portion of the bottle is merely cosmetic, and that Anheuser-Busch also can use stubby glass bottles and plastic bottles as suitable containers for beer. However, contrary to her assertion, Gann failed to produce evidence raising a genuine issue of fact that the risk of injury from the longneck bottle outweighed its utility, and therefore that the bottle was defectively designed so as to render it unreasonably dangerous. Specifically, plaintiff failed to adequately address: (1) whether manufacturing a stubby glass bottle or plastic bottle is sufficiently economically feasible; (2) whether eliminating the allegedly unsafe character of a longneck bottle significantly impaired its usefulness or significantly increased its costs; and (3) what the expectations of the ordinary consumer are with regard to this kind of bottle.

Turning to the negligence count, the threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Generally, no person has a legal duty to protect another from the criminal acts of a third person. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). (One exception to this rule may apply when a person controls the premises where the criminal acts occur.)   Whether a duty exists is a question of law for the court to decide from the facts surrounding the occurrence at issue. (Other courts may analyze this issue as one of causation, with the criminal act of the third-party breaking the chain of causation from defendant's alleged negligence to plaintiff's alleged injury.)

Plaintiff argued that because defendants did not contest that the use of longneck bottles as weapons in bars has happened, and thus was arguably foreseeable (cue "Friends in Low Places"?), the defendants then had a legal duty to protect her from being assaulted in such a situation. Even conceding that it is reasonably foreseeable that a longneck bottle might be used as a weapon, plaintiff failed to show why the general principle that no person has a legal duty to protect another from the criminal acts of a third person was inapplicable in this case. Mere foreseeability that a legal product might be used in a crime does not create a duty that overshadows the intervening criminal act. Summary judgment affirmed. 
 

Federal Court Rejects Truck Class Action Because Defendant Actually Has Right To Defend

A federal court recently rejected plaintiffs' class certification bid in a suit against Ford Motor Co. relating to diesel engines in some vehicles. Corder v. Ford Motor Co., No. 3:05-CV-00016 (W.D. Ky., 7/25/12).

Corder brought an action against Ford for allegedly violating the Kentucky Consumer Protection Act (“KCPA”). Corder alleged that the diesel engines installed in model year 2003 F-Series Super Duty Trucks and Excursions were "highly problematic."  Plaintiff then allegedly purchased a model year 2004 Ford F-250 Super Duty Truck with what he claimed was a “2003 engine” that did not have the improvements that were in the “2004 engine” According to plaintiff, non-disclosure of installation of the “2003 engine” in his model year 2004 truck was an unfair, false, misleading, or deceptive act within the meaning of the KCPA.

Ford noted that it makes running changes to its vehicles, including the engines, throughout the year. Purchasers of 2004 model year trucks built prior to October of 2003 received multiple slightly different engines, and all of those engines were improved over engines installed on most 2003 vehicles.

Following initial discovery, Ford moved for summary judgment. The trial court granted the motion, finding that Corder had not shown that Ford’s actions were false, misleading, or deceptive within the meaning of the KCPA, nor had Corder shown that he suffered an “ascertainable loss,” as is required to maintain a private action under the KCPA. The Sixth Circuit disagreed. Corder v. Ford Motor Co., 285 F. App’x 226 (6th Cir. 2008).  Upon remand, Corder filed a motion to certify a national class, but the district court found that a national class was not viable because the laws of each of the states in which the putative class members purchased their vehicles would have to be applied, which would lead to significant problems of individualized proof and manageability.

Plaintiff then amended, seeking to represent a class of only Kentucky residents. The court concluded that Rule 23(b)(3) was still not met. In order to meet the demand of Rule 23(b)(3) that common issues predominate, a plaintiff must show that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, predominate over those issues that are subject only to individualized proof. Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007). The predominance requirement in Rule 23(b)(3) guards against certifying class actions that could overwhelm or confuse a jury or compromise a party’s defense. Thus,  certification is not appropriate unless it is determinable from the outset that the individual issues can be considered in a manageable, time-efficient, and fair manner.

For Ford to be liable for damages under the KCPA, plaintiff had to establish that: (1) the person purchased or leased a Ford vehicle in question primarily for personal, family, or household purposes; (2) the person suffered an ascertainable loss; and (3) the loss was a result of an unfair, false, misleading or deceptive act or practice.

In this case, the need to determine the primary purpose for each customer’s purchase required an individualized inquiry that would overwhelm any alleged common issues. The trucks
at issue were not the type of product about which it may be inferred that all, or even the vast majority, were purchased primarily for a personal, family, or household purpose.  Indeed there was evidence suggesting that a large number of the purchasers of the trucks at issue bought them primarily for commercial use. And the Ford Design Analysis Engineer stated that it was “designed for heavy-duty use, including commercial use, and was too large to fit in many home garages."  The court noted that the burden on a class certification motion belongs to the plaintiff, In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 678 F.3d 409, 416 (6th Cir. 2012), but Corder offered no evidence controverting the suggestion that numerous customers purchased their trucks either partially or wholly for commercial purposes. Litigation of that issue would  require individualized inquiries into numerous class members. Clearly, the question of why any particular customer purchased the pickup truck was not something that can be resolved on a classwide basis.

Moreover, this element was a subjective one by its terms, focusing on the reasons underlying a
particular person’s reasons for purchasing a truck. Indeed, the statute did not restrict claims
to those purchasers whose only purpose was personal, family, or household related, but required
only that such a purpose be the primary one. That a purchaser can have a commercial purpose for the purchase of a truck, so long as that is only a secondary purpose, made the individualized inquiries and their resolution by a jury all the more detailed and complicated.

So far, a solid but not particularly uncommon analysis.  What is especially worthwhile for readers of MassTortDefense is that  plaintiff, as is growing more common, suggested that the court could simply use questionnaires, claim forms, or “judicial notice” to resolve the primary use inquiry. But none of those suggestions allowed for Ford to do what Ford was entitled to do: litigate the issue before a jury with respect to each customer for whom the relevant facts and inferences to be drawn therefrom are disputed. The requirement that a person have purchased a product primarily for personal, family, or household use prior to a finding of liability under KRS § 367.220 is an explicit element of the statute. Ford, of course, had every right to demand a full litigation of that element of the cause of action, and for each putative class member no less. The Rules Enabling Act forbids interpreting the Federal Rules of Civil Procedure, including Rule 23, to “abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). Accordingly, a court could not certify a class action under the premise that Ford would not be entitled to fully litigate that statutory element in front of a jury, at least for those class members where the facts and inferences to be drawn therefrom are disputed. See Wal-Mart v. Dukes, 131 S.Ct. at 2561 (“Because the Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or modify any substantive right,’ a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims”).

While plaintiff also argued that an “appropriate trial plan” would allow for resolution of the necessary individualized inquiries, he did not provide any detailed suggestion as to what sort of appropriate trial plan would allow for the resolution of the potentially numerous individualized inquiries without overwhelming the trial and the jury. Simply put, plaintiff could not meet his burden of showing that class certification was appropriate by making conclusory statements about questionnaires, judicial notice, or an appropriate trial plan.

 

 

TSCA "Reform" Bill Moves To Senate Floor

Over the past several years, Congress has wrestled with chemical safety and possible ways to modernize TSCA. Chemical business leaders, public officials, scientists, doctors, academics, and liberal environmental organizations have expressed support for varied methods of reforms to this principal toxic substance law. 

Recently, a U.S. Senate committee advanced yet another bill that would revise the decades-old  regulation for chemicals. The Senate Committee on Environment and Public Works voted 10-8 (along party lines) to move S. 847, the so-called Safe Chemicals Act, to the Senate floor.

The bill would require the Environmental Protection Agency to establish new minimum data sets for chemical substances; identify required testing of any chemical substances; create various hurdles for a manufacturer before making any new chemical substance;  update a list of chemical substances warranting placement within one of three priority classes regarding risk management; and, importantly, requires substance manufacturers and processors to bear the burden of proving that chemical substances meet applicable safety standards.  The bill would also establish an Internet-accessible, public database of information on the toxicity of, use of, and exposure to chemical substances.  The bill would also drastically narrow the conditions under which data about chemical substances may be treated as confidential business information.

The chemical Industry remains committed to working with the Senate Committee on Environment & Public Works to pursue reform of TSCA, but views this as a partisan markup of a bill that is inconsistent with balanced reform.  Specifically, the bill would establish an unworkable safety standard, and would require an enormous amount of additional government resources to implement. The bill would also dramatically increase the time it would take for EPA to review new chemicals and undermine long-standing protections of trade secrets, seriously hampering innovations in new products and technologies.

 

 

EPA Releases Draft BPA Report

Last week, the EPA released a draft analysis of chemicals that may substitute for bisphenol A's use in thermal paper -- that's the material often used in sales receipts, supermarket labels, parking tickets, airline tickets, and similar items.

Readers may recall that in 2010, EPA released a chemical action plan that summarized hazard, exposure, and use information on bisphenol A (BPA) and identified various actions EPA was considering.  Part of that action plan was to help industries consider alternative chemicals and provide a basis for informed decision-making by developing an in-depth comparison of potential human health and environmental impacts of chemical alternatives. Representatives from industrial, academic, governmental, and non-governmental organizations worked with EPA to select and evaluate alternatives to BPA in thermal paper and develop this report.

By way of background, BPA (a topic we have posted on before) is a high production volume (HPV) chemical with a U.S. volume estimated at 2.4 billion pounds in 2007 and an estimated value of almost $2 billion. It is a monomer used in manufacturing most polycarbonate plastics, the majority of epoxy resins, and other chemical products such as flame retardants.  Approximately 94% of BPA is used as a monomer to make polycarbonate plastic and epoxy resins. Although most human exposure to BPA is believed to come from food and beverage packaging made from these materials, less than 5% of the BPA produced is used in food contact applications.  BPA-based materials are also used in automotive and other transportation equipment, optical media such as DVDs, electrical/electronics equipment, construction, linings inside drinking water pipes, thermal paper coatings, foundry casting, and elsewhere.  It has been an extraordinarily useful product.

The BPA in Thermal Paper Alternatives Assessment is an evaluation of potential hazards associated with thermal paper developers that are likely to be functional alternatives to BPA. Thermal paper systems include a developer and other components such as dyes and sensitizers. (EPA recognized that a change in the developer may require additional adjustments to the system.) This draft report summarizes the outcomes of the alternatives assessment, and aims to improve understanding of the potential environmental and human health impacts of BPA and alternative developers in thermal paper throughout their life cycles. Importantly, this draft report does not identify functional chemicals with no or even low concern for all human health and environmental hazard endpoints; all of the alternatives are associated with some trade-offs. For example, a chemical may have a lower concern for human health but a higher concern for aquatic toxicity. Finding and choosing substitutes is not always as easy as plaintiff attorneys and advocacy groups try to suggest.

Comments on EPA's draft alternatives assessment are due Oct. 1, 2012, at baier-anderson.caroline@epa.gov.
 

Federal Court Denies Class Certification in Licensing Case

A New York federal court rejected a class certification motion recently in a suit over Scholastic Corp.'s alleged use of photographs in publications for one of its reading skills programs. See Palmer Kane LLC v. Scholastic Corp., No.1:11-cv-07456 (S.D.N.Y. 7/16/12).

It's a copyright case, which is not one of our typical areas of focus, but the class issues are illustrative more broadly.  As an aside, your humble blogger recalls fondly when, as a wee lad, the monthly Scholastic flyer was distributed in grade school, and there was an opportunity to pick out a new book to read. Defendant Scholastic has, since its founding in 1920, been a designer and developer of educational publications and services.

Plaintiff brought this purported class action alleging that Scholastic committed copyright infringement on images it allegedly used in certain of its books by printing more copies of the books than was allowed under the licenses it held, or by publishing the books prior to obtaining a license. The "READ 180" program at issue had multiple components geared toward students, teachers and school administrators: printed workbooks, instructional software, electronic books, paperback books and videos. The printed components of the materials that made up the READ 180 program contained thousands of illustrations and photographs. 

Plaintiffs sought certification of a class allegedly impacted by excessive or unauthorized uses of the images. In response, defendant offered evidence of Scholastic's complex process for obtaining licenses for images used in READ 180.

In evaluating a motion for class certification, the district court is required to make a definitive assessment of Rule 23 requirements, notwithstanding their overlap with merits issues, and must resolve material factual disputes relevant to each Rule 23 requirement.  What matters to class certification is not the raising of common questions--even in droves--but, rather the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the real potential to impede the generation of common answers. E.g., Salon FAD v. L'Oreal USA, Inc., No. 10 Civ. 5063, 2011 WL 4089902, at *5 (S.D.N.Y. Sept. 14, 2011). 

Here, plaintiff could not show that a class can be certified under the predominance requirement of Rule 23(b) (3). The court determined that the core of plaintiff's allegations was that Scholastic exceeded the scope of licenses that it negotiated with agents of rights holders or rights holders themselves. Because in order to answer whether Scholastic in fact held a license to use those images would necessarily involve, and depend upon, inquiries into a multitude of individual  relationships and interactions (between Scholastic and the rights owner; between Scholastic and the licensing agent; between the rights owner and the licensing agent), common questions of law or fact did not predominate over individual questions and a class action would not fairly and efficiently adjudicate these issues.

For example, as to some images, defendant entered into what Scholastic called "Preferred Vendor Agreements" that set out terms of the two parties' licensing arrangement with respect to future images.  But these agreements were far from uniform, differing as to usage rights, print run limitations, invoicing practices and the reuse of images --  all key issues.  Moreover, the Preferred Vendor Agreements were a product of negotiations between different personnel at Scholastic and the photo houses. Any inquiry into their terms would a review of representations that were individualized and could vary case by case.

Other agreements, not covered by a PVA, also raised individual issues. Each license obtained by Scholastic may have had different limitations placed on it by its rights holder and/or licensing agent--making an inquiry into the nature of the alleged infringements difficult (and maybe impossible) to resolve on a class-wide basis. The individualized inquiries necessary to determine the breadth of the licenses granted by each individual rights holder, often as a product of individual negotiation processes, was yet another factor militating against granting class certification.
 

Thus, plaintiff failed to demonstrate by a preponderance of the evidence that it could prove its claims on a class-wide scale, by referring to generalized proof. Accordingly, its motion to certify a class was denied.

The key here for our readers is when the facts involving plaintiffs' interactions with defendant appear complicated, use that complexity to full advantage on the issues of commonality and predominance.

 

State Supreme Court Adopts Consumer Expectation Test for Alleged Food Defects

Our readers know that for nearly 50 years, an ongoing issue in product liability law has been the definition of "defect" within the strict liability context. A subtext to this ongoing discussion has been the appropriate test to apply to food products.  Earlier this month,  the “reasonable consumer expectation” test was adopted for food claims by the Maine Supreme Judicial Court in a strict liability claim involving a boneless turkey product. See Pinkham v. Cargill Inc., No. 2012 ME 85 (Me., 7/03/12).

Plaintiff allegedly consumed a hot turkey sandwich during his break.  Defendant  allegedly manufactured the boneless turkey product in the sandwich.  In the middle of or immediately after eating the sandwich, Pinkham allegedly experienced severe and sudden pain in his upper abdominal area and thought that he might be suffering from a heart attack. His doctors later determined that in their opinion he most likely had an “esophageal tear or perforation.” Plaintiff sued, alleging that this was a result of bone in the boneless turkey.

Although 50 percent of all turkey consumed in 1970 was during the holidays, today that number is around 31 percent as more people enjoy turkey year-round. In 2010, U.S. consumption of turkey was 16.4 pounds per person.  And turkey is now a $16 billion annual industry, according to the National Turkey Federation.  Readers will recall that our own Ben Franklin proposed the turkey as the national bird, at least in a letter he wrote to his daughter Sarah on January 26, 1784.

Back to the litigation. Defendant moved for summary judgment. After considering the motion, the trial court granted the motion in favor of Cargill, noting that Maine had not yet established which test to use when evaluating a strict liability claim for an allegedly defective food product pursuant to Maine’s strict liability statute, 14 M.R.S. § 221. The court recognized that, prior to the enactment of the state's strict liability statute, courts used a test similar to the “foreign-natural” doctrine when addressing an injury caused by a food product in an implied warranty of merchantability case. E.g., Kobeckis v. Budzko, 225 A.2d 418, 423 (Me. 1967). Readers will recall that the “foreign-natural” doctrine provides that in general a food producer is not liable for anything found in the food product that naturally exists in the ingredients. E.g., Newton v. Standard Candy Co., 2008 U.S. Dist. LEXIS 21886, at *6 (D. Neb. Mar. 19, 2008).  The major alternative has been the “reasonable expectation” test: which provides that regardless of whether a substance in a food product is natural to an ingredient thereof, liability will lie for injuries caused by the substance where the consumer of the
product would not reasonably have expected to find the substance in the product. E.g., Jackson v. Nestle-Beich, Inc., 589 N.E.2d 547, 548 (Ill. 1992).

The trial court proposed to evaluate the summary judgment motion under both the traditional
“foreign-natural” doctrine and the more recent  “reasonable expectation” test. The lower court concluded that, because bone is naturally found in turkey, and because the average consumer would reasonably expect to find bone fragments up to two millimeters in size in processed “boneless” turkey product (which the doctor had), the contents of the food bolus discovered in plaintiff's esophagus did not demonstrate that the product was defective, as a matter of law.

The supreme court noted that the state's strict liability approach was rooted in the Second Restatement.  It observed that the Restatement comments define “[d]efective condition” in part as a product that is “in a condition not contemplated by the ultimate consumer.” Restatement (Second) of Torts § 402A cmt. g. The comments also define “[u]nreasonably dangerous”: “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Id. cmt. i.  Relying on these comments, the court moved to the reasonable expectations test.

Applying that standard, the supreme court ruled that plaintiff had provided sufficient evidence that an alleged defect in the boneless turkey product he consumed might have caused his surgery-requiring injury. There was a genuine issue of material fact as to whether the turkey product caused the injury. One doctor testified that he believed that the injury was a “perforation secondary to a foreign body.”  There was direct evidence of the presence of the smaller pieces of bone or cartilage.  While there was no direct evidence of a larger piece of bone, the court thought a jury could conclude that a larger piece of bone could have been present in the turkey product Pinkham consumed, but may have passed, undetected, from Pinkham’s throat.

Whether a consumer would reasonably expect to find a particular item in a food product is normally a question of fact that is left to a jury.  The court concluded that the trial court could not find as a matter of law that a food bolus containing one-to-two-millimeter bone fragments is not defective.  The question of whether a consumer would reasonably expect to find a turkey bone or a bone
fragment large and/or sharp enough to cause an esophageal perforation in a “boneless” turkey product "s one best left to the fact-finder" said the court.

 

Medical Monitoring at Issue in Oklahoma Federal Court

Readers know that medical monitoring is a recurring topic here at MassTortDefense.  Here is one to keep an eye on, as a defendant recently asked the Oklahoma federal court to reject plaintiffs' claim for medical monitoring in a putative class action. Mitchell McCormick, et al. v. Halliburton Co., et al., Np. 5:11-cv-0127 (W.D. Okla.).

Plaintiffs, about three dozen residents of Duncan, Okla., are seeking, inter alia, medical monitoring, establishment of a class-wide medical registry, and payment for medical research to assist alleged disease identification, prevention and treatment, based on allegations  that defendants exposed the town's residents to toxic substances.

Defendants have moved to dismiss, arguing that there is no cognizable claim for a medical monitoring remedy under Oklahoma law. Defendants noted the absence of any Oklahoma statutes or state court decisions recognizing or even suggesting the availability of medical monitoring, and the important public policy considerations that disfavor medical monitoring relief. Specifically, medical monitoring for uninjured plaintiffs (1) encourages highly speculative claims and equally conjectural awards; (2) diverts scarce medical resources away from truly injured individuals who need them most; (3) subjects defendants to open-ended liability; and (4) places significant strain on a judicial system that is generally ill-equipped to formulate and then supervise complex medical monitoring regimes.

Such fears are reflected in the prevailing trend in other jurisdictions to reject such claims. See Rhodes v. E.I. duPont de Nemours & Co., 657 F. Supp. 2d 751, 774 (S.D. W. Va. 2009) (noting post-Buckley trend); Norwood v. Raytheon Co., 414 F. Supp. 2d 659, 667 (W.D. Tex. 2006) (discussing “the recent trend of rejecting medical monitoring as a cause of action” in light of Buckley); see also Zarov et al., A Medical Monitoring Claim for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?, 12 DEPAUL J. HEALTH CARE L. 1, 2 (2009).

The defendants cited additional authority: Hinton v. Monsanto Co., 813 So. 2d 827, 830 (Ala. 2001) (“To recognize medical monitoring as a distinct cause of action . . . would require this Court to completely rewrite Alabama’s tort-law system, a task akin to traveling in uncharted waters, without the benefit of a seasoned guide. We are unprepared to embark upon such a voyage.”); Badillo v. Am. Brands, Inc., 16 P.3d 435, 441 (Nev. 2001) (en banc) (“[W]e hold that Nevada common law does not recognize a cause of action for medical monitoring”); Wood v. Wyeth-Ayerst Labs., Div. of Am. Home Prods., 82 S.W.3d 849, 857 (Ky. 2002) (“We are supported in rejecting prospective medical monitoring claims (in the absence of present injury) by both the United States Supreme Court and a persuasive cadre of authors from academia. These authorities explain that, while well-intentioned, courts allowing recovery for increased risk and medical screening may be creating significant public policy problems.”); Henry v. Dow Chem. Co., 701 N.W.2d 684, 703 (Mich. 2005) (“To recognize a medical monitoring cause of action would essentially be to accord carte blanche to any moderately creative lawyer to identify an emission from any business enterprise anywhere, speculate about the adverse health consequences of such an emission, and thereby seek to impose on such business the obligation to pay the medical costs of a segment of the population that has suffered no actual medical harm.”); Paz v. Brush Engineered Materials, Inc., 949 So. 2d 1, 5-6 (Miss. 2007) (refusing to recognize a claim for medical monitoring allowing a plaintiff to recover medical monitoring costs for mere exposure to a harmful substance without proof of a current actual bodily injury); Lowe v. Philip Morris USA, Inc., 183 P.3d 181, 187 (Or. 2008) (“[W]e hold that negligent conduct that results only in a significantly increased risk of future injury that requires medical monitoring does not give rise to a claim for negligence.”). 

But see Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424, 431 (W. Va. 1999); Meyer v. Fluor Corp., 220 S.W.3d 712, 717-18 (Mo. 2007); Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891, 901 (Mass. 2009).

 

State Supreme Court to Consider Comparative Negligence Doctrine

Here's a case to watch, especially for those with tort cases in Maryland. Coleman v. Soccer Assoc. of Columbia, et al. (Md., Sept. Term 2012, No. 9). The Court of Appeals of Maryland is considering whether to replace the longstanding contributory negligence doctrine with a comparative fault scheme.

A number of organizations, including the American Tort Reform Association and the Chamber of Commerce, have weighed in with an amicus brief to the Maryland supreme court.  These amici note that such a fundamental change ought to be a decision of the legislature; warn of the ripple effect of such a change on a number of other state statutes that utilize the concept of contributory negligence, and on the many related state common law doctrines such as last clear chance, assumption of the risk, joint and several liability, etc.

Medical Monitoring Claim Rejected by Federal Court

Readers know that medical monitoring claims are a focus of MassTortDefense.  In a recent case, a federal trial court granted summary judgment on a medical monitoring claim with an opinion that makes a salient point.  See Sahu v. Union Carbide Corp., 2012 WL 2422757 (S.D.N.Y. June 26, 2012.)

Plaintiffs filed suit as members of a putative class against Union Carbide Corporation, seeking monetary damages and medical monitoring for injuries allegedly caused by exposure to soil and drinking water polluted by wastes allegedly produced by the Union Carbide India Limited plant in Bhopal, India.  After years of discovery and tens of thousands of pages of document produced, defendants were able to move for summary judgment as to all theories of liability.  Specifically, plaintiffs brought negligence, public and private nuisance, and strict liability claims against UCC, seeking compensatory and punitive damages, as well as medical monitoring, for injuries allegedly caused by the Bhopal Plant operations.  But our focus in this post is on the medical monitoring claims.

Plaintiffs in the "Medical Monitoring Class” sought  a “court-ordered medical monitoring program for the early detection of various illnesses which they may develop as a result of exposure to the contaminants and pollutants to which they have been exposed"   The court rejected the claim, noting that medical monitoring was not a feasible remedy,  and was one which would face insurmountable hurdles: locating thousands of people who have resided 8,000 miles away in Bhopal, India, over a span of more than thirty years would be nearly impossible. Plaintiffs sought  relief on behalf of themselves, their families, their minor children, and a putative class of similarly situated people who “continue to reside in the municipal wards and residential areas in the vicinity of the UCIL plant and continue to be exposed to toxins” from contaminated soil and groundwater. Administration of such a program would require identification of every resident considered to be living “in the vicinity” of the Bhopal Plant site, and then further identification of those residents who “continue to be exposed to toxins.” To confirm exposure, it would be necessary to test the soil and drinking water supply throughout Bhopal. Literally construed, plaintiffs' complaint seemed to seek medical monitoring for every current resident of the Bhopal area—an impossible task.

This analysis is a refreshing counterpoint to the alarming feature of some recent medical monitoring decisions, in which the difficulty of identifying and ascertaining class members is somehow de-coupled from class certification and from the elements of the medical monitoring claim, and somehow relegated to an "administrative" feature of the relief program.

SHB Product Liability Defense Law Firm of the Year


If our readers will permit a little bragging, Who’s Who Legal: The International Who’s Who of Business Lawyers has named Shook, Hardy & Bacon its 2012 Product Liability Defense Law Firm of the Year.

“Shook, Hardy & Bacon once again stands out as the world’s leading firm in this discipline, and the caliber and expertise of its lawyers are globally recognized by clients and peers alike,” said Callum Campbell, editor-in-chief of Who’s Who Legal.

Quite proud of my new shop!

 

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Class Certification Denied Under Ascertainability Analysis

We typically focus on appellate decisions regarding class certification, but wanted to note for you a recent lower court federal decision in case involving a proposed class of patients who claim they were implanted with a medical device for treating acid reflux . See Haggart v. Endogastric Solutions Inc., No. 2:10-cv-00346 (W.D.Pa. 6/28/12).


Readers will want to note the discussion of ascertainability. The implicit requirement of ascertainability is an important but sometimes overlooked prerequisite to class certification. A plaintiff must offer a definition of a class that is precise, objective and presently ascertainable. A threshold requirement to a Rule 23 action is the actual existence of a class which is sufficiently definite and identifiable. See, e.g., Kline v. Sec. Guards, Inc., 196 F.R.D. 261, 266 (E.D. Pa. 2000); Reilly v. Gould, Inc., 965 F. Supp. 588, 596 (M.D. Pa. 1997); Clay v. Am. Tobacco Co., 188 F.R.D. 483 (S.D. Ill. 1999). The initial inquiry on class definition is distinct from the analysis required by Federal Rule of Civil Procedure 23. See, e.g., Sanneman v. Chrysler Corp., 191 F.R.D. 441, 446 n. 8 (E.D. Pa. 2000). This notion means, in part, that the court can see sufficient administrative feasibility in determining whether a particular person belongs to a class -- that the court can identify class members in a practical and non-burdensome manner. A “proposed class must be sufficiently identifiable,” and it must be “administratively feasible to determine whether a given individual is a member of the class.”Mueller v. CBS, Inc., 200 F.R.D. 227, 233 (W.D. Pa. 2001). A class may not be ascertainable if it will require individual inquiry into each class member’s particular situation to determine whether that plaintiff suffered the injury alleged. Similarly, a class is not ascertainable if membership depends on a particular subjective state of mind. And even when plaintiffs offer ostensibly objective criteria for membership, the court must be able to apply that objective criteria to determine who is in the class without addressing numerous fact-intensive questions. Certification is denied when determining membership in the class essentially requires a mini-hearing as to each prospective class member. E.g., Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 478 (D.N.J. 2009); Solo v. Bausch & Lomb Inc., 2009 WL 4287706, (D. S.C. Sept. 25, 2009) (class not appropriate for certification where determining class membership would require “fact-intensive mini-trials”).
 

Here, plaintiff claimed that defendant had misrepresented implantation of a medical device for treatment of acid reflux — describing it as “reversible” rather than “revisable.”  Plaintiff offered one class definition as “all individuals who have undergone the [procedure] . . . and who have relied upon representations” related to its reversibility and/or revisability,  This, the court said, was "simply a non-starter."  The determination of class membership under this definition would require the court to adjudicate on a person-by-person basis whether each proposed class member relied on defendant’s representations. That is, class membership would not be ascertainable without the imposition of serious administrative burdens incongruous with the efficiencies expected in a class action.

Plaintiff then went to an alternate class defined as “all individuals who have undergone the EsophyX procedure in the United States since September 24, 2007.” But this very broad proposed class failed the typicality requirement owing to marked differences as to information received and relied upon, the legal theory underlying plaintiff’s claims, and other factors.  Specifically, there would be numerous, inevitable questions regarding the information received by individual patients - from their physicians or other sources - and their reliance on particular representations. While named plaintiff was unhappy, plaintiff conceded that most patients undergoing an EsophyX procedure have had a successful result.  Putative class members received information regarding the procedure primarily from their physicians, which information likely varied for reasons related to both the physicians themselves and the individual patient’s medical circumstances; the amount and content of information received by a patient directly from defendant’s marketing or other materials likely differed from plaintiff’s and as between putative class members as well; and individual decisions to undergo the procedure were likely influenced by and premised on varying individual considerations -- all of which also undercut predominance.

Motion for class certification denied.

State Supreme Court to Review "Trial by Formula" Short Cuts In Class Action

The Pennsylvania Supreme Court agreed earlier this month to review an important class action issue: the use of "trial by formula" as a vehicle to overcome the un-manageability and predominance of individual issues in a proposed class action. Braun et al. v. Wal-Mart Stores Inc. et al., No. 551 EAL 201 (Pa. 7/2/12).

The case involves the appeal of an award for Wal-Mart employees who allegedly worked off the clock by skipping rest and meal breaks.

The state Supreme Court indicated it would review: Whether, in a purported class action tried to verdict, it violates Pennsylvania law (including the Pennsylvania Rules of Civil Procedure) to subject Wal-Mart to a “Trial by Formula” that relieves Plaintiffs of their burden to produce class-wide “common” evidence on key elements of their claims.

There is a huge difference between deciding that aspects of an adequate representative's claim are typical of other class members', and extrapolating from representative's claims to the class as a whole on issues that are admittedly not common.  We noted for readers before that this procedural short cut, which can deny defendants due process and a right to adjudicate and defend against each claim, was criticized in the federal class context in the U.S. Supreme Court's decision in Dukes v. Wal-Mart Stores Inc. The U.S. Supreme Court was clear: "We disapprove that novel project." Because the Rules Enabling Act forbids interpreting federal Rule 23 to abridge,enlarge or modify any substantive right, a class cannot be certified on the premise that the defendant will not be entitled to litigate its defenses to individual claims.

The same issue applies to the trial plans proposed by many mass tort plaintiffs, which try to use the class rule to prevent defendants from ever having an opportunity to litigate individual defenses as to individual class members. Now we may start to see if plaintiffs can evade this by proceeding at a state class level in cases not removable under CAFA.

Happy Independence Day

No substantive post today, but a Happy Birthday to the USA!  We hope that all our readers enjoy the holiday, reflecting on the birth of this wonderful nation.  We are taking in the local parade and the fireworks tonight (weather permitting).

 

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Appeals Court Vacates Asbestos Plaintiff Jury Verdict

The Florida court of appeals recently reversed a $6.6 million judgment for the plaintiff in an asbestos case raising interesting issues of the law applicable to design and warning defects. See Union Carbide Corp. v. Aubin,  No. 3D10-1982 (3d DCA 6/20/12).

Plaintiff Aubin worked construction and alleged he routinely handled and was otherwise exposed to joint compounds and ceiling textures that contained asbestos. He contracted mesothelioma and sued.  At trial, plaintiff presented studies purportedly linking defendant's product to a higher degree of danger with respect to the development of asbestosis than other types of asbestos, but he failed to introduce any evidence suggesting it was more dangerous than other asbestos fibers with respect to the contraction of cancer or peritoneal mesothelioma. Also at trial, the parties offered contrasting evidence as to whether Union Carbide adequately informed intermediary manufacturers about the dangers of asbestos. Defense representatives testified that along with an OSHA-mandated warning label, Union Carbide regularly updated its clients regarding the dangers of asbestos as such dangers came to light. Conversely, plaintiff claimed that because there were no warnings on the end product, he was unaware of the dangers associated with the liberation of asbestos fibers into the air, and, therefore, allegedly did not wear any respiratory masks or protective gear while working around the asbestos.

Relying on the component parts doctrine recognized by the Restatement (Third) of Torts: Products Liability § 5 (1997), adopted by the 3d DCA in Kohler Co. v. Marcotte, 907 So. 2d 596, 598-99 (Fla. 3d DCA 2005), defendant moved for a directed verdict on plaintiff's strict liability and negligence claims. That motion was denied. At the charge conference, Union Carbide also requested jury instructions regarding the Third Restatement’s component parts doctrine, The trial court denied Union Carbide’s requests, choosing instead to deliver the special instructions that were requested by plaintiff. The key instruction read: “An asbestos manufacturer, such as Union Carbide Corporation, has a duty to warn end users of an unreasonable danger in the contemplated use of its products.”  The requested context was not provided.

The court of appeals concluded that the trial court erred, first, in determining that Aubin’s claims were governed by the Second Restatement rather than the Third Restatement and, as a result, erred in denying Union Carbide’s motion for a directed verdict with respect to Aubin’s design defect claim. Second, the trial court erred in instructing the jury that Union Carbide had a duty to warn end-users without also instructing the jury that a defendant could have discharged this duty by adequately warning the intermediary manufacturers, and reasonably relying on them to warn end-users. Accordingly, the court remanded for a new trial as to the warning defect claim.

Specifically, the trial court erred as a matter of law in determining that Aubin’s claims were governed by Sections 388 and 402 of the Second Restatement.  In Kohler, the court had adopted the component parts doctrine articulated in Section 5 of the Third Restatement as the governing law for products liability claims arising out of a defendant’s sale of a component part to a manufacturer who then incorporates the component into its own products. Kohler, 907 So. 2d at 598-99. This Appeals Court’s adoption of the Third Restatement was later reaffirmed and extended in Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So. 3d 976, 997 (Fla. 3d DCA 2010), which rejected the Second Restatement’s “consumer expectations” test as an independent basis for finding a design defect, determining instead that, after Kohler, the appropriate standard is the “risk-utility/risk-benefit” test articulated in Section 2 of the Third Restatement.

Regarding the warnings claim instructions, reversible error exists where the trial court delivers an instruction that reasonably might have misled the jury.   Plaintiff Aubin had requested, and the trial court granted, the special instruction: “An asbestos manufacturer, such as Union Carbide Corporation, has a duty to warn end-users of an unreasonable danger in the contemplated use of its products.” While this requested special instruction was "technically accurate," it was, standing alone, misleading because Florida law provides that this duty may be discharged by reasonable reliance on an intermediary. Recognizing that Aubin’s requested instruction was misleading, Union Carbide requested that Aubin’s special instruction be supplemented with an explanation of how the duty to warn could have been discharged by Union Carbide. The trial court rejected Union Carbide’s request, and delivered Aubin’s instruction without further explanation. This was also error.

The court of appeals explained that under both the Third Restatement and the Second Restatement, the determination as to whether a manufacturer like Union Carbide may rely on intermediaries to warn end-users is to be analyzed by the trier of fact, and the standard to be  employed is one of “reasonableness.” The Third Restatement provides several factors to guide the analysis, and these factors are substantially the same as those set forth in the Section 388 of the Second Restatement under comment n.  The trial court, however, did not instruct the jury on any of these factors. 

Because the trial court’s instruction communicated to the jury that Union Carbide had a duty to warn end-users, but did not inform the jury that Union Carbide could have discharged its duty by adequately warning the intermediary manufacturers and reasonably relying on them to warn end-users, the court of appeals concluded that the instruction given was misleading and entitled defendant to a new trial.

Supreme Court to Review Issue of Daubert at Class Certification Stage

The U.S. Supreme Court agreed last week to hear argument in a case in which the lower courts wrestled with the issue whether, at the class certification stage, a district court must resolve Daubert issues. See Comcast Corp. v. Behrend, U.S., No. 11-864 (cert. granted 6/25/12). The Court indicated it was interested in the question "whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a classwide basis."

Readers will recall that in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011)  the Supreme Court in dicta referenced the question. Justice Scalia observed that the district court had "concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings," but the majority replied that "we doubt that is so." 131 S. Ct. at 2554. Thus, Dukes strongly suggested that it was appropriate for defendants to make the expert challenge at the class certification stage, and important for the court to resolve the issue then; the Comcast litigation may see the Court turn that persuasive dicta into binding precedent. 

Most district courts have been following the dicta. Historically, the Circuits have split.  The 8th and 9th Circuits call for an expert inquiry at this stage, and in American Honda, which we commented on here, the Seventh Circuit previously held that where an expert’s report or testimony is critical to class certification, a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on the class certification motion. 600 F.3d at 815–16. Later, the Seventh Circuit reaffirmed its holding from American Honda, ruling that it was error for a district court to decline to rule on a Daubert motion at the class certification stage. Messner v. Northshore Univ. Healthsystem, 2012 U.S. App. LEXIS 731, *17 (7th Cir. Jan. 13, 2012).

The 3rd Circuit went in another direction. The district court in Comcast originally certified a class; following the court of appeals' decision in Hydrogen Peroxide, 552 F.3d 305, the district court granted in part Comcast‘s motion to reconsider its certification decision.  After further briefing, plaintiffs got the case re-certified after convincing the district court that they could show that they had an expert methodology to prove damages on a classwide basis. On the current appeal, the Third Circuit agreed that the lower court had applied the "rigorous analysis,"  adding that at the class certification stage, "we are precluded from addressing any merits inquiry unnecessary to making a Rule 23 determination.”  The Petitioners argued that the Third Circuit affirmed the certification order after expressly declining to consider several “merits” issues necessary to determine whether, as required by Rule 23(b)(3), common questions predominate over individual ones.

So the Comcast case may give the Supreme Court a chance to further explain what exactly a rigorous analysis should entail, especially with respect to alleged class-wide damages. The focus on damages, which some have viewed as narrowing the issue presented, still is a question that arises not just in antitrust cases, but also in mass torts, which are front and center for our readers.