Class Certification Denied in Auto Case

A federal court has declined to certify a proposed class of Ford Focus drivers who allege a suspension defect in their cars. Daniel v. Ford Motor Co., No. 2:11-02890 (E.D. Cal. 6/17/13).

Plaintiffs generally alleged that the 2005 to 2011 Ford Focus vehicles had a rear suspension “alignment/geometry defect” which leads to premature tire wear, which in turn leads to safety hazards such as decreased control in handling, steering, and stability. Plaintiffs sought to certify a class consisting of “[a]ll individuals who purchased or leased any 2005 through 2011 Ford Focus vehicle in
California and who currently reside in the United States.”

Before certifying a class, the trial court recognized it must conduct a “rigorous analysis” to determine whether the party seeking certification has met the prerequisites of Rule 23. See Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 588 (9th Cir.2012) (quoting Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir. 2001)).

After motion practice, plaintiffs were left with warranty claims. Predominance was the key issue, and let's focus on the causation element -- the need for plaintiffs to show that the breach of warranty caused their alleged injury.

The court noted that when a warranty requires that a claimant show that something like tire wear (a condition caused by many things) is caused by a defect in the vehicles, the claims for breach of that warranty do not easily satisfy the Rule 23(b)(3) predominance test.  A determination whether the defective  alignment caused a given class member’s tires to wear prematurely would require proof specific to that individual class member.  Tires deteriorate at different rates depending on where and how they are driven; so, whether a set of tires wore out prematurely, and as a result of the alleged alignment defect, are individual causation/injury issues that make class-wide adjudication inappropriate.  

While named plaintiff presented evidence that her rear tires experienced the type of tire wear allegedly associated with the alleged suspension defect, even her experts admitted that driving habits, failure to properly maintain the vehicle, and other actions by a vehicle’s owner can cause or contribute to premature tire wear.  Resolving whether the alleged suspension defect caused the tire wear in the named class representative's vehicle would not resolve the same question for other class members who might have experienced different types of tire wear caused by different factors.


Therefore, concluded the court, whether the alleged suspension defect caused the proposed class members’ injuries was not a common question. Given the centrality of the causation issue, individual questions would predominate over questions allegedly common to the class; the court denied plaintiffs’ motion for class certification under Rule 23(b)(3).

 

Firm Named Product Liability Firm of the Year

If our readers will accept a wee bit of bragging, it was very nice to see that Who’s Who Legal: The International Who’s Who of Business Lawyers has named Shook, Hardy & Bacon its 2013 Product Liability Defense Law Firm of the Year.

Who’s Who Legal  recognized 21 SHB partners as leading product liability defense attorneys, including Mark Behrens, Walt Cofer, Michelle Fujimoto, William Geraghty, Frank Kelly, Madeleine McDonough, Andrew See, and your humble blogger.

The complete listing will be published in the 2013 edition of Who’s Who Legal: The International Who’s Who of Product Liability Defence Lawyers, as well as the 2014 edition of Who’s Who Legal: The International Who’s Who of Business Lawyers, which covers 32 practice areas in more than 100 countries.

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State Supreme Court Takes Controversial Asbestos Case

The California Supreme Court agreed last week to review an asbestos case involving an important failure to warn theory. See Webb v. Special Electric Co. Inc., No. S209927 (Cal., 2013).

Plaintiff Webb was diagnosed with mesothelioma, which he attributed to his exposure to asbestos products, including Transite pipe allegedly manufactured by Johns-Manville at its plant in Long Beach,
California, which allegedly contained asbestos supplied to it by Special Electric.  Transite pipe was four inches in diameter, and came in five-foot and sometimes ten-foot lengths. It was typically used for water-heater venting. Webb alleged he used no gloves or respiratory protection when handling the pipe. 

After trial, the lower court decided it would hear Special Electric's motions for nonsuit and directed verdict, both of which argued, inter alia, that Special Electric had no duty to warn Johns-Manville of the dangers of asbestos, either because Johns-Manville had been warned of those dangers, or because the dangers were obvious and known to Johns-Manville, a sophisticated user of asbestos. Special Electric argued also that it had no duty to take measures to warn allegedly unsophisticated downstream users of products containing its asbestos, such as Webb, because Special Electric could rely on Johns-Manville to provide those warnings. The trial court agreed, concluding that "telling Johns-Manville about asbestos is like telling the Pope about Catholicism." In so doing, the trial court relied on the well-settled rule that sophisticated users of dangerous products need not be warned about dangers of which they are already aware, derived from Restatement Second, Torts, section 388.

Plaintiff appealed, and the court of appeals reversed. Much of the discussion was on procedural issues (timing and notice, etc.) but our focus is on the alternative ruling on the merits.  The court of appeals agreed that Johns-Manville was a sophisticated user of asbestos, one which needed no warning about its dangers. But, nevertheless, reversed, finding that whether all the asbestos shipped to Johns-Manville had warnings, whether the warnings were adequate, and whether reasonable efforts to warn downstream
users could have been undertaken by Special Electric, were issues of fact. The jury found that Webb had
been exposed to asbestos sold or supplied by Special Electric; that the risks of its asbestos products were known or knowable to Special Electric; and that the risks of Special Electric‘s asbestos products presented a substantial danger to consumers, that ordinary consumers would not recognize. Special Electric‘s duty to warn foreseeable potential users such as Webb, said the court, arose as a matter of law, as seen from the jury‘s fully supported findings.  Because Special Electric‘s duty existed as a matter of law, the jury was entitled to—and did—find from the evidence that Special Electric breached that duty and that its breach was a substantial factor in causing Webb‘s harm, whether some other factors (such as superseding cause) terminated Special Electric‘s share of liability, and the appropriate apportionment of liability between the various actors.

The state Supreme Court will consider the issues now, and tell us what happened to the sophisticated user doctrine.  The concern is that the court of appeals appears to be saying that it can be a tort to fail to tell a customer something they already know, and that it can also be a tort to fail to impose on a direct customer a contractual duty to do something with their customer they already have a tort duty to do. On causation, the dissent offered a cogent analogy: if a defendant in an automobile collision breached the duty of care by driving a car with nonfunctioning headlights, then the plaintiff cannot prove causation merely by demonstrating that the defendant’s car caused the plaintiff‘s injuries when they collided. Rather, the plaintiff must show that the defendant’s driving with nonfunctioning headlights caused the plaintiff’s injuries (because, for example, the accident happened in the dark of night rather than in broad daylight). The case arguably can be limited to unique facts, procedural posture, and some strange jury instructions, but perhaps the high court will clarify that the California courts cannot ignore the sophisticated user doctrine and its impact on duty to warn. 

 

Advisory Group Recommends Cost/Benefit Analysis for CPSC Regulations

We have posted before about the impact of regulations on clients and indirectly on product litigation. Earlier this month the Administrative Conference of the United States, a federal advisory council, gave its approval to a policy recommendation encouraging independent regulatory agencies to apply formal cost-benefit analysis to their rule-making efforts. One affected agency would be the Consumer Product Safety Commission.

Readers may know that the ACUS is an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures. Its membership is composed of federal officials and experts with diverse views and backgrounds from both the private sector and academia.

Several independent regulatory agencies are not subject to the benefit-cost analysis requirements of various Executive Orders or legislation.  The ACUS undertook a project to examine the possible use of benefit-cost analysis at independent regulatory agencies and to highlight any innovative practices those agencies could use. The group adopted a recommendation encouraging agencies to voluntarily adopt certain practices that other agencies have developed when conducting regulatory analyses for major rules. The recommendation, first, identifies various policies and practices used in several regulatory agencies and offers a series of proposals to encourage their use in other agencies. For example, it recommends that each independent regulatory agency develop written guidance on the preparation of benefit-cost and other types of regulatory analyses.

Second, the recommendation highlights a series of analytical practices that OMB has promulgated in the past. For example, it recommends that agencies’ analyses be as transparent and reproducible as practicable, subject to the limitations of law and applicable policies (including preventing the disclosure of proprietary information or trade secrets, or other confidential information). The recommendation does not
seek to establish a one-size-fits-all approach to regulatory analysis, and recognizes that each agency must tailor the analyses it conducts to accord with relevant statutory requirements, its own regulatory priorities, and the potential impact of the analysis on regulatory decision-making to ensure proper use of limited agency resources. 

Note that during the debate on the measure, at least one CPSC commissioner argued against requiring a cost-benefit analysis.

Following the report, Senate Bill 1173 was introduced to require independent agencies to analyze the costs and benefits of new regulations and to tailor new rules to minimize unnecessary burdens on the economy. "The Independent Agency Regulatory Analysis Act of 2013" would apply to any proposed new rule with an economic impact of $100 million or more annually. Sponsors argue there is no good reason the independent agencies should not conduct the same important review other executive agencies must.


 

Supreme Court Declines to Review Defense Win in Drug Case

The Supreme Court declined earlier this month to review a decision by the Second Circuit affirming a defense verdict in the Fosamax litigation.  See Secrest v. Merck, Sharp & Dohme Corp., U.S., No. 12-1318, cert. petition denied 6/3/13).  The case explicates an interesting and somewhat rare evidentiary issue.

Readers may recall that a jury in the Southern District of New York handed down a defense verdict for Merck in October, 2011. One of the key evidentiary issues was the trial court's decision to exclude one of the expert witnesses for plaintiff under the so-called “sham issue of fact” doctrine. Dr. Epstein initially was designated a fact witness, and deposed as such.  After Merck moved for summary judgment, Dr. Epstein was designated as an expert, and he was re-deposed, and changed his testimony.  The second time around the witness testified that plaintiff took Fosamax in 2004 and 2005, but earlier had said he did not know about her alleged usage.

Because the physician’s expert testimony contained contradictions that were unequivocal and inescapable, unexplained, arose after the motion for summary judgment was filed, and were central to Secrest’s failure-to-warn claim, the Second Circuit held that the District Court did not err in determining that there was no genuine dispute of material fact raised by the later testimony.  The Supreme Court refused to entertain plaintiff's appeal.

Specifically, the District Court was entitled to disregard Dr. Epstein’s new testimony relating to his knowledge based on the “sham issue of fact” doctrine, which prohibits a party from defeating summary judgment simply by submitting an affidavit that contradicts the party’s previous sworn testimony. See Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). Although courts more typically apply the sham issue of fact doctrine where a party submits an affidavit that contradicts the party’s own prior statements, it may also apply when a party attempts to use evidence from an expert witness to defeat summary judgment.


Here, said the Second Circuit, the doctrine applied to stop Secrest from manufacturing a factual dispute by submitting testimony from an expert whom she tendered, where the relevant contradictions between the first and second depositions were unequivocal and inescapable, unexplained, arose after the motion for summary judgment was filed, and were central to the claim at issue.  See Rivera v. Rochester Genesee Reg’l Transp. Auth., No. 11-762-cv, 2012 WL 6633938, at *7 (2d Cir. Dec. 21, 2012) (concluding that summary judgment was inappropriate because the inconsistencies in the plaintiff’s testimony were not “real, unequivocal, and inescapable contradiction[s]”).  Here, Dr. Epstein’s February 2011 expert deposition testimony inescapably and unequivocally contradicted the testimony he gave in August, 2008.

Also, the relevant contradiction was not only unequivocal but was left unexplained – indeed, was inexplicable – so the trial court could properly determine that plaintiff had manufactured a sham issue of fact. See Rojas, 660 F.3d at 105-06; AEP Energy, 626 F.3d at 735-36. Finally, the sham issue of fact doctrine applied here, continued the Second Circuit, because the relevant contradictions in Dr. Epstein’s testimony were central to Secrest’s failure-to-warn claim. Applicable Florida law required Secrest to show that her treating physician would have recommended that she cease taking the drug if a different, adequate warning had been provided. Here, no reasonable juror could find that Dr. Epstein would have recommended that Secrest cease taking Fosamax if he did not even know she was taking it at the relevant time. 

The Supreme Court then denied plaintiff's cert petition. 

 

 

Another Plaintiff Fails to Obtain Class Certification for Claims About Products Not Actually Purchased

We've posted before about the curious phenomenon of plaintiffs suing about the labeling on a product they never even purchased.  Recently class certification was denied in yet another case alleging false labeling on a product the named plaintiff did not buy  See Major v. Ocean Spray Cranberries Inc., No. 12-03067 (N.D. Cal., 6/10/13). We flag this case for our readers, because of the court's emphasis on the Rule 23(a) element of typicality instead of the equally applicable notion of standing.

Plaintiff alleged that she purchased several of defendant’s products in California. Her Complaint stated that Plaintiff purchased various “Ocean Spray juices and drinks” that were allegedly improperly labeled "No Sugar Added," or were bearing improper nutrient content claims, or had misrepresentations that the products were free from artificial colors, flavors or preservatives.  She alleged the usual causes of action, including violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq. (counts 1–3); violation of the False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17500 et seq., (counts 4–5); violation of the Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq. (count 6); restitution based on unjust enrichment or quasi-contract (count 7); and breach of warranty (8).

She sought certification of a class of similar purchasers. Rule 23(a)(3) requires that a named plaintiff’s claims be typical of those that would be advanced by the proposed class. Fed. R. Civ. P. 23(a)(3). The test for Rule 23(a) typicality in the Ninth Circuit is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. See Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010); Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 539 (N.D. Cal. 2012).

In the context of cases involving several products at issue —like this one— district courts have held that the typicality requirement has not been met where the named plaintiff purchased a different product than that purchased by unnamed, absent class, plaintiffs. Wiener, 255 F.R.D. at 666; see also Gonzalez v. Proctor & Gamble Co., 247 F.R.D. 616 (S.D. Cal. 2007); Lewis Tree Serv., Inc. v. Lucent Techs. Inc., 211 F.R.D. 228 (S.D.N.Y.2002); Kaczmarek v. Int’l Bus. Machs. Corp., 186 F.R.D. 307, 313 (S.D.N.Y. 1999).

With that standard in mind, here the court found that plaintiff, the proposed class representative, had not met her burden of showing that her claims are typical of those of the proposed class members pursuant to Rule 23(a)(3).  The primary reason behind the court’s determination that the typicality requirement had not been met is that plaintiff’s proposed classes were so broad and indefinite that they encompassed products that she herself did not purchase. See Wiener, 255 F.R.D. at 666. In her deposition, plaintiff asserted that she purchased five of the defendants’ products. But the putative class definitions that plaintiff wanted the court to certify would have included a whole host of other products that plaintiff had nothing to do with. For example, the putative class would include any of defendant’s products “represented to contain no artificial colors, flavors or preservatives but which contained artificial colors, flavors or preservatives.”  The putative class also included entire lines of products; as an example, any product from the “Sparkling” line of products. However, in both of these examples, plaintiff failed to make an allegation that she purchased all of such products, all the products in these product lines. As such, the claims of the unnamed plaintiffs who purchased products plaintiff herself did not buy were not fairly encompassed by the named plaintiff’s claims.

The second basis of the finding that plaintiff's claims failed to meet the Rule 23(a) typicality requirement is the fact that the labels and nutrition claims on each of the products at issue was unique to that product itself. For example, plaintiff based her mislabeling causes of action with regard to the Diet Sparkling Pomegranate Blueberry drink product, in part, on the claims made on the specific label of this specific drink product -- language that included specific claims about blueberries, applicable only to drinks containing blueberries. The evidence needed to prove plaintiff’s claim that the Diet Sparkling Pomegranate Blueberry drink contained false or misleading labeling was not probative of the claims of unnamed class members who purchased products within the “Sparkling” line that did not contain blueberries. 

Certification denied.

 

Judge Nominated for Vacant State Supreme Court Slot

For our readers with litigation in Pennsylvania:

Pennsylvania Governor Tom Corbett announced last week that he will nominate state Superior Court (appeals) Judge Correale F. Stevens to fill the vacancy on the Pennsylvania Supreme Court created by the resignation of former Justice Orie Melvin.

Judge Stevens is a graduate of Dickinson Law School and has been President Judge of the Superior Court since 2011. If confirmed by the state Senate, he would serve on the Supreme Court until January 2016, with an election to fill the vacancy taking place in November 2015.

Currently, the Supreme Court is split 3-3 between Republican and Democratic justices.  There are a number of important issues before the Court, including the possible adoption of the Third Restatement of Torts in the Tincher case.

 

Supreme Court Remands Two Class Actions in Light of Comcast

Earlier this week I spoke at a CLE seminar on the topic of class actions, and part of my focus was the recent Supreme Court decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).  Since that decision, the Court has granted cert, vacated, and remanded for reconsideration two class action cases involving allegations of defects in washing machines:  Whirlpool Corp. v. Glazer, No. 12-322 (U.S. 4/1/13); Sears, Roebuck & Co. v. Butler, No. 12-1067 (U.S. June 3, 2013).


In Glazer, the lower court had certified a class of purchasers of washing machines despite admitted variations in laundry habits; differences in remedial efforts; variation in service performed on the machines.  And despite the fact that a reported 97% of the class had never complained of a problem or suffered the alleged defect. 678 F.3d 409 (6th Cir. 2012).

In Butler, the lower court had granted certification of two classes of more than 100,000 members in six states who purchased 20 different models of machines; again many never had the problem alleged.

So where does Comcast, ostensibly an antitrust case, fit here?  The Court reaffirmed that a class action is an exception to the rule of individual adjudication. And to get there, Rule 23 is not merely a pleading standard. Just as Dukes made clear that a rigorous analysis of the Rule 23(a) prerequisites, such as commonality, is required, the same principles apply to Rule 23(b) elements, such as predominance. And a court cannot refuse to consider class certification arguments just because those arguments also might be relevant to the merits of plaintiffs' claims.

In Glazer the district court made noises about some of the defense arguments on certification going to the merits, and the Sixth Circuit had about two sentences on predominance -- suggesting the absence of the rigorous analysis required.

In Butler, 702 F.3d 359 (7th Cir. 2012), the Seventh Circuit suggested predominance was met because it would be more efficient to resolve the question whether the machines were defective in a single class trial; predominance is a question of efficiency.  That would seem to run afoul of Rule 23, which incorporates efficiency in the notion of superiority, but not as a definition of or synonym for predominance. Indeed the Advisory Committee notes suggest that efficiencies flow only when predominance is present. Prior Court opinions instruct that predominance implies a notion of cohesion.  And the Butler court's treatment of the need for individual damages trials seems flatly inconsistent with the Comcast Court's statements on the need for proof on a class-wide basis.

 Two to keep an eye on.

 

 

Committee Approves Amendments to Civil Rules

Earlier this month, the Federal Courts' Committee on Rules of Practice and Procedure approved for publication a package of proposals that would, if enacted, impact the scope of discovery under the Federal Rules of Civil Procedure.

The agenda for the committee's June, 2013 meeting is here. The various proposals would appear to narrow discovery and try to curb some of the abuses that have occurred in recent years.  Many of these ideas came out of the 2010 Duke Conference as methods for reducing cost and delay in civil litigation.

Some highlights: New Rule 4(m) would be revised to shorten the time to serve the summons and complaint from 120 days to 60 days. The desired effect will be to get the action moving in half the time. The amendment responds to the commonly expressed view that four months to serve the summons and complaint is too long.

Rule 16(b)(2) now provides that the judge must issue a scheduling order within the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared. The recommended
revision, however, cuts the times to 90 days after any defendant is served or 60 days after any defendant appears. 

Another proposal  would add a new Rule 16(b)(3)(v), permitting a scheduling order to "direct that before moving for an order relating to discovery the movant must request a conference with the court." Many courts now have local rules similar to this proposal. Experience with these rules shows that an informal pre-motion conference with the court often resolves a discovery dispute without the need for a motion, briefing, and order. The practice has proved highly effective in reducing cost and delay.

Currently, Rules 30 and 31 establish a presumptive limit of 10 depositions by the plaintiffs, or by the defendants, or by third-party defendants, and a time limit. Rule 33(a)(1) sets a presumptive limit of "no more than 25 written interrogatories, including all discrete subparts." There are no presumptive numerical limits for Rule 36 requests to admit. The new proposals reduce the limit on interrogatories to 15. They add to Rule 36, for the first time, presumptive numerical limits of 25 RFA (other than genuineness of documents). The proposals would reduce the presumptive limit on the number of depositions from 10 to 5, and would reduce the presumptive duration to 1 day of 6 hours. Rules 30 and 31 would continue to provide that the court must grant leave to take more depositions "to the extent consistent with Rule 26(b)(1) and (2)." 

The proposed rule changes would re-emphasize the notion of proportionality in Rule 26: discovery must be proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’s resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. This newly added proportionality language stems from the committee’s finding that the current rule’s “reasonably calculated” approach to the proper scope of discovery is too broadly interpreted.

Also, new proposed Rule 37(e) would provide certain protections against sanctions for the failure to produce any type of evidence (whether electronic or other evidence).  A party seeking sanctions would have to show both substantial prejudice and willful or bad faith conduct; or that the conduct irreparably denied a party any meaningful opportunity to present or defend against a claim. The amendments also seek to address the issue of parties who might otherwise be inclined to engage in burdensome and expensive “over-preservation.” 

Next step is a comment period that will extend into early 2014. It will important to keep an eye on the progress of these amendments.

Another Un-natural "Natural" Claim Dismissed

We have posted before about the disturbing trend of plaintiffs parsing food labels to find something to complain about -- not that the product is unhealthy or harmful or doesn't taste good -- but a "gotcha" game raised to the level of a consumer fraud act violation or a breach of warranty class action.  So we like to note when common sense prevails in this arena.  A federal court recently held that a food manufacturer cannot be in breach of an express warranty for using the term "natural" on its label when that same label discloses the identity and presence of any ingredients the plaintiffs claim were not "natural."   See Chin v. General Mills Inc., No. 12-02150 (D.Minn. 6/3/13).


General Mills produces, markets, and sells a line of Nature Valley products, including “Protein Chewy Bars,” “Chewy Trail Mix Granola Bars,” “Yogurt Chewy Granola Bars,” “Sweet & Salty Nut Granola Bars,” and “Granola Thins.” By all accounts these are excellent products that taste great and offer nutritious ingredients. Plaintiffs were consumers who allegedly purchased one or more of the Nature Valley products. The plaintiffs alleged the products were deceptively labeled as “100 percent Natural” because they contained fructose corn syrup and high maltose corn syrup.  Plaintiffs alleged they relied on the representations, and would not have purchased the products or paid as much if they had known of the actual ingredients. Plaintiffs sought a national class, and sub-classes for New York and New Jersey.

The first problem was that plaintiffs sought relief for alleged representations made on bars that they never purchased; plaintiffs lacked Article III standing for these products and plaintiffs could not represent a class of consumers who purchased products that the named plaintiffs did not purchase. The named plaintiffs in a class action may not rely on injuries that the putative class may have suffered, but instead, said the court, must allege that they personally have been injured. Lewis v. Casey, 518 U.S. 343, 357 (1996); Thunander v. Uponor, Inc., 887 F. Supp. 2d 850, 863 (D. Minn. 2012).

The express warranty claim failed because the term “100% Natural” on a label cannot be viewed in isolation and must be read in the context of the entire package, including the ingredient panel. The specific terms included in the ingredient list must inform the more general term “Natural.” The specific terms determine the scope of the express warranty that was allegedly made to the plaintiffs. And here, a defendant cannot be in breach of an express warranty by including in the product an ingredient that it expressly informed consumers was included.  It is typical of plaintiffs in these cases to elevate one word or phrase in a label, while ignoring all the other information provided the consumer.

Finally, the fraud based claims were dismissed for failure to satisfy the heightened pleading requirements of Rule 9(b). Plaintiffs failed to plead how they were deceived by the “100% Natural” statement. Plaintiffs did not allege with any specificity what they believed “100% Natural” to mean.

Motion to dismiss granted.

 

 

Third Circuit Affirms Asbestos Dismissals

Readers know that too often the necessary administrative procedures set in place in a mass tort are enforced on a one-way basis, costing defendants money and resources without requiring plaintiffs to comply with necessary discovery in a timely fashion.  The Third Circuit recently affirmed a lower court decision to exclude from an MDL workers allegedly exposed to asbestos at work when these plaintiffs failed to provide full asbestos exposure histories. See In Re: Asbestos Products Liability Litigation (NO. VI), numbers 12-2061-12-2072 (3d Cir. 2013).  

MDL 875 once included more than 150,000 plaintiffs and more than eight million claims. By the time Judge Robreno inherited the MDL in 2009, thousands of cases had been settled or otherwise resolved. Judge Robreno has been overseeing the progress and resolution of the remaining cases since then.  In the asbestos MDL No. 875, the court had issued Administrative Order 12, which required plaintiffs to submit medical diagnoses or expert opinions based on certain data, interpreted to include exposure history. The order was issued in 2007 and was intended to accelerate the handling of the significant numbers of cases in this MDL by screening out cases in which causation cannot be demonstrated, and to avoid unnecessary burdens on defendants by requiring plaintiffs to provide certain medical and exposure information at the outset of the case.

The district court dismissed several cases in 2012, holding that the plaintiffs' submissions regarding their alleged medical conditions did not meet Administrative Order 12.  Specifically, Judge Robreno determined that the Plaintiffs' submissions were fatally flawed in that they failed to include specific histories of Plaintiffs' exposure to asbestos. Plaintiffs' counsel disputed that interpretation of the order as requiring a complete occupational history of asbestos exposure, and offered simply a diagnosis of an asbestos-related disease. At no point did Plaintiffs offer supplemental AO 12 submissions with more complete exposure histories. 

The Third Circuit agreed that the language of AO 12 is broad, but saw no reason not to defer to the District Court's interpretation of AO 12 that requires plaintiffs' submissions to include asbestos exposure history. Based on the language in AO 12 that requires plaintiffs to submit medical diagnoses or opinions based on objective and subjective data, as well as based on statements from reputable medical organizations that emphasize the importance of exposure history, the District Court interpreted AO 12 submissions to include exposure history. And it was not an abuse of discretion – especially given the District Court's experience overseeing the MDL proceedings – to require a complete occupational and environmental exposure history.