Mass Tort Defense

State Committee Misses Opportunity for Class Action Reform

Sean Wajert — Mon, 14 May 2012 08:54:03 -0500

Readers of MassTortDefense recognize that one of the most challenging jurisdictions for potential class actions defendants is California, given the substantive law, some state courts' take on certification issues, and the aggressive plaintiffs' bar. It is no surprise that advocates of a balanced and appropriate role for class actions have from time to time attempted legislative reform in this state.

One idea that has been proposed is a requirement that class action advertisements (and there are plenty) include appropriate disclosures that potential plaintiffs could be liable for attorneys’ fees if a defendant prevails.

Unfortunately, the state Assembly's Judiciary Committee last week rejected such a proposal in a vote along party lines. Proposed A.B. 1954 would have required ads soliciting plaintiffs for a class action to disclose that they might be held responsible for part of a defendant's legal fees if the defendant prevails under certain conditions. The legislation also would have permitted the state's Department of Consumer Affairs to impose a fine of up to $2,000 for an ad that failed to include the notice provision.

Supporters of the bill expressed concern about what they see as a flood of class action solicitations, which are seen as a serious impediment to doing business in California. The bill was supported by the Civil Justice Association of California and the California Building Industry Association, as well as the California Chamber of Commerce. Our readers know that some potential plaintiffs see class actions like purchasing a lottery ticket - no risk, high reward. Opponents argued that in the state, orders directing named plaintiffs of a class to pay for a prevailing defendant’s fees happens only in rare cases. But it can and does happen, and what's wrong with letting potential plaintiffs know this? Such a bill would increases transparency and thus protect consumers; it might cut down on the number of "shakedown" class actions that only disclose promises of huge settlements without the potential other side of the coin.

A New Beginning

Sean Wajert — Mon, 07 May 2012 09:40:09 -0500

I am very excited to announce to our faithful readers that your humble blogger has joined a new law firm. As of today, I am a partner in the national litigation practice of Shook, Hardy & Bacon L.L.P. (The transition process is why you may have noticed fewer posts recently.) Many of our readers know Shook is an international law firm with a legacy spanning more than a century. The firm has nearly 500 attorneys supported by more than 230 analysts and para-professionals, serving a diverse client base from nine offices in Geneva, Houston, Kansas City, London, Miami, Orange County, San Francisco, Tampa, and Washington, D.C.

Shook, Hardy & Bacon was recently listed on The American Lawyer’s Litigation Power Rankings as one of the top 25 litigation practices in the nation, and The American Lawyer also named the firm its 2012 Product Liability Litigation Department of the Year. Additionally, Shook, Hardy & Bacon was selected by the International Law Office as its 2012 Client Choice Award recipient for the United States, and BTI Consulting Group recognized the firm as one of the top four firms in the country for providing value to clients. BTI based its findings on the results of a corporate counsel survey that measured law firm performance “through the eyes of the client.” In 2011 Chambers USA ranked Shook, Hardy & Bacon’s product liability practice in the top tier (Band One) of all firms nationwide.

Shook, Hardy’s reputation in litigation stands on its own, but my long-standing relationship with Shook was part of what attracted me to the firm. I have been working as co-counsel with many of SHB’s attorneys for more than 15 years, and we share a passion for both litigation and client service that simply cannot be found anywhere else, in my experience.

DRI Product Liability Conference Wraps Up Today

Sean Wajert — Fri, 13 Apr 2012 08:56:07 -0500

The DRI Product Liability Seminar winds up today, with scheduled highlights including a presentation on the implications of Nicastro and Goodyear on future product liability litigation. Readers know this is a topic of great interest at MassTortDefense, which we have posted on before a couple times.

Yesterday's highlights included discussions of the Third Restatement, and in-house counsel had a separate session on blogging. Not the kind we do here, but the issues relating to corporate employees or the marketing department getting engaged in blogging relating to product promotion, building brand goodwill, and responding to customer questions or issues raised in the blogosphere.

Your humble author attended the session focused on Chemical and Toxic Torts, which featured an interesting presentation from Scott Scarpelli, Esq., of The Dow Chemical Company. This veteran in-house litigator shared his perspective on the most vexing causation questions that arise in chemical-based litigation.

DRI Product Liability Conference Underway

Sean Wajert — Thu, 12 Apr 2012 09:37:19 -0500

This week I am attending the DRI Product Liability seminar. Yesterday's highlights included a keynote address by Hon. Anne Northup, Commissioner of the Consumer Product Safety Commission. Her remarks covered "The Past, Present, and Future of the CPSC." She brings an interesting perspective, having formerly been a member of Congress. As a mother of 6 kids and grandmother of 8, she feels well qualified to understand the use and abuse of children's products in particular. She emphasized that consumers value choice, a vibrant market, innovation and competition-- things that over-regulation can suppress. She pointed to the onerous third-party testing requirements and record-keeping burdens in many of the recent CPSC rules. She was cautiously optimistic that the continuing tough economy has given the majority Democrats on the CPSC some pause, as well as pointing to H.R. 2715 in which Congress told the Commission to simplify the burden of certification regulations.

I spoke at the session of the Mass Torts & Class Actions subcommittee, chaired by Glenn Kerner, on the topic of Medical Monitoring. I tried to give the group some strategies to think about; e.g., recent federal cases have confirmed that the clarified pleading requirements of Twombly/Iqbal do apply to medical monitoring claims. E.g., Hagy v. Equitable Production Co., 2011 WL 1627920 (S.D. W.Va. April 28, 2011). That court dismissed the medical monitoring claim because plaintiff failed to allege sufficient specific facts showing the substance was hazardous, plaintiffs’ risk of future injury was a proximate result of the exposure, monitoring was reasonably necessary due to the increased risk, or that effective monitoring procedures exist. See also Bourgeois v. Exxon Mobil Corp., 2011 WL 6130767 (E.D.La. Dec.8, 2011). I also touched on Jonathan Hirsch, et al. v. CSX Transportation Inc., 656 F.3d 359 (6th Cir. 2011), and its treatment of the exposure and risk elements of a medical monitoring theory.

Courts typically require that the prescribed monitoring regime is different from that normally recommended in the absence of exposure. One recent case exploring this notion which I pointed out is In re Avandia Marketing, 2011 WL 4006639 (E.D.Pa. Sept. 7, 2011). In this class action involving the diabetes drug, the medical monitoring claim was denied because plaintiff failed to allege specific facts showing what medical monitoring would actually be needed because of exposure to the drug that would not already be recommended for some plaintiffs living with Type 2 Diabetes who did not take the drug.

Finally, I focused on Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011), in which Third Circuit said it would "question whether the kind of medical monitoring sought here can be certified under Rule 23(b)(2)." If the plaintiffs prevailed, class members' regimes of medical screenings and the corresponding cost would vary individual by individual. A single injunction or declaratory judgment would seem to not be able to provide relief to each member of the class proposed in this case. Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” Wal-Mart, 131 S. Ct. at 2557.

Medical Monitoring Webinar Next Week

Sean Wajert — Thu, 15 Mar 2012 12:14:55 -0500

I wanted to remind readers know that I will be speaking in an upcoming Strafford live phone/web seminar entitled "Medical Monitoring in Products Liability Claims: Challenges for Plaintiffs and Defendants" scheduled for Tuesday, March 20, 1:00pm-2:30pm EDT.

We have posted on a number of medical monitoring issues before, and some observers think that the number of medical monitoring claims for future testing to provide for early detection of diseases based on alleged exposure to toxic substances is on the rise.

Courts in various jurisdictions hold different views on the recognition of medical monitoring claims, whether these claims are a cause of action or an issue of damages, and the elements of the theory.

My fellow panelists and I will provide practitioners with a review of defense and plaintiff counsels' perspectives regarding medical monitoring. My focus will be on medical monitoring class actions.

After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly. I hope you'll join us.

You can register here.

Federal Court Denies Certification of MP3 Class Action - Again

Sean Wajert — Tue, 13 Mar 2012 06:21:29 -0500

A New Jersey federal court last week declined to certify a proposed class in a suit over alleged defects in the Zune MP3 player's display screen. See Maloney, et al. v. Microsoft Corp., No. 3:09-cv-02047 (D.N.J. 2012).

Readers may recall we blogged about this case when the court denied certification of a nationwide class, in part because of choice of law issues. The court at that point reserved decision as to whether or not a New Jersey-wide class might be certified, subject to further briefing by the parties. We said at that time: "clearly additional individual issues will predominate in that context as well." Hope our college Madness pool predictions will be as accurate.

The new proposed class was NJ residents who purchased or owned a Microsoft Zune 30gb model and whose Zune liquid crystal display screen cracked without cracking or chipping of the outer screen that covers the LCD screen within their applicable warranty period (one-year, unless under an extended warranty) and who notified Microsoft orally or in writing about the cracked LCD but did not receive repair or replacement of their Zune from Microsoft. That's a mouthful.

Defendant argued that plaintiffs had no unifying theory of causation capable of class-wide proof and that individual questions of fact would therefore predominate at trial. Plaintiff, on the other hand, argued that causation could be established on a class-wide basis because class members‘ LCD screens fractured without external damage to the outer lens; fractured in locations that were disproportionately clustered around four identified alleged internal design defects; and were 20 times more likely to crack without external damage than were LCD screens on the later-model Zune.

Our readers know that the burden is on the plaintiff to prove that the requirements of Rule 23 have been satisfied. Class certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites‘ of Rule 23 are met. Predominance was the key element here, as issues common to the class must predominate over individual issues. If any key elements of a claim can be proven only by resort to individual treatment, class certification is inappropriate. Plaintiffs seeking class certification must demonstrate that each element of [the cause of action is capable of proof at trial through evidence that is common to the class rather than individual to its members.

Here, the court determined that plaintiffs' purported proofs failed to establish that any of the alleged design defects commonly caused class members‘ injuries because this evidence suffered from what the United States Supreme Court has termed a failure of inference. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2555 (2011). Procedurally, any factual dispute concerning whether causation is capable of proof at trial through common evidence must be determined by the court. This often requires the weighing of conflicting expert testimony, and the court must then resolve expert disputes in order to determine whether the predominance requirement has been met. A court must engage in this analysis even if it overlaps with the merits.

The practical considerations underlying the presentation of a case at trial should be considered by the court in determining whether individual questions of fact would predominate. In the context of proving the element of causation, numerous courts have held that individualized questions of fact prevent class certification where resort to case-by-case testimony would be necessary. In the context of consumer fraud, for example, class certification is inappropriate where oral representations are made to each class member and where plaintiffs must rely on this evidence to prove causation.

Here, the court noted that a jury must be able to independently weigh whether each alleged design defect actually existed and whether that specific defect was the cause of each class member‘s injury. Plaintiff‘s proffered evidence was largely the plaintiff‘s lawyers‘ comparison effort. Plaintiff‘s expert conducted no statistical analysis. It was thus impossible to tell from plaintiff‘s proffered evidence whether any of the numbers put forward were statistically significant. Also, plaintiff had not put forth any evidence that a jury could rely upon in determining which alleged design defect led to which Zune failure or which grouping of Zune failures. As framed by the plaintiffs, the alleged LCD cracks resulted from a muddled mix of causes and effects. There was no indication that each purported cause led to a uniform result (e.g., an origination point in the same location), which would permit the jury to draw an inference of a specific design defect. Thus, there was no way to determine which of the purported causes or which grouping of these causes led to which individual LCD crack or group of LCD cracks.

Indeed, according to plaintiff‘s own expert, one of the most basic concepts of failure analysis is that the origin (position) of failure can be determined from the failure pattern on the fracture surface of an object. Plaintiffs also admitted that a number of the 30gb Zunes sampled by their expert fell outside the high-frequency areas identified in the expert report. Just as statistical evidence of gender disparity at the regional or national level in Dukes could not establish gender disparity at the local level, plaintiffs' proof could not establish the design defects on a common basis.

Moreover, and this is an important point that some courts ignore, even if prima facie evidence of causation could be established on the basis of statistically significant recurrence of crack-origination points—something the plaintiffs had not established — the defendant must be given the opportunity to rebut such an inference; to defend against each of these alleged defects; to respond to that proof. The only way in which the defendant could rebut plaintiff‘s proposed class-wide evidence would be through the presentation of individual evidence regarding the circumstances surrounding each cracked LCD screen. A lack of damage to the outer lens did not necessarily preclude evidence that other portions of the outer shell of the 30gb Zune were damaged by misuse. Defendant would have to be given the opportunity to cross-examine each Zune owner to assure that there was no damage to the outer casing (as opposed to the outer lens covering the LCD screen) that resulted from misuse or abuse. This would result in hundreds of mini-trials.

Lastly, internal defendant communications did not establish causation as to each individual class member‘s injury. Generalized statements about an alleged design defect are merely that—general statements; they fail to show that all LCD cracks must have been the result of this alleged defect. Just as in Dukes, anecdotal evidence generally cannot serve as a basis for class certification.

State Supreme Court Rejects Tolling Based on Prior Class Action

Sean Wajert — Mon, 12 Mar 2012 08:04:57 -0500

A state's supreme court ruled earlier this month that the filing of a putative class action in another state does not stop the clock on the running of the Virginia statute of limitations for absent class members. See Casey v. Merck & Co., No. 111438 (Va., 3/2/12).

The issue arose in the context of the Fosamax litigation and the somewhat unique civil procedure of Virginia. On September 15, 2005, a putative class action, Wolfe v. Merck & Co., was filed in the United States District Court for the Middle District of Tennessee. The putative class included "[a]ll persons who consume or have consumed FOSAMAX, whether intravenously or by mouth." The representative plaintiffs in the class action asserted claims of strict liability, negligence, and medical monitoring against Merck. The case became part of the MDL for this product, and the MDL court denied class certification in 2008. But prior to the dismissal of the Wolfe putative class action, four plaintiffs, all residents of Virginia, filed individual state law based actions against Merck in the Southern District of New York, asserting federal diversity jurisdiction. It was undisputed that all four plaintiffs filed suit more than two years after the latest possible date that they sustained their respective alleged injuries, and that Virginia law applied to their claims.

Defendant naturally moved for summary judgment, alleging that the four plaintiffs’ actions were untimely under Virginia's two-year statute of limitations for personal injuries. In response, the plaintiffs claimed that the Wolfe putative class action, which was filed within the two-year limitation period, tolled the running of the Virginia statute of limitations on their individual actions because they would have been members of the proposed class had certification been granted.

The district court agreed with defendant, but on appeal the Second Circuit certified, asking the Virginia Supreme Court to determine whether Virginia law permits equitable or statutory tolling of a Virginia statute of limitations due to the pendency of a putative class action in another jurisdiction.

The court began from the proposition that limitations periods are a creature of statute, and a statute of limitations may not be tolled, or an exception applied, in the absence of a clear statutory enactment to such effect. Any doubt must be resolved in favor of the enforcement of the statute. Given these principles, there was no authority in Virginia jurisprudence for the equitable tolling of a statute of limitations based upon the pendency of a putative class action in another jurisdiction.

As for statutory tolling, Virginia Code § 8.01-229(E)(1) provided that, “If any action is commenced within the prescribed limitations period and for any cause abates or is dismissed without determining the merits, the time such action is pending shall not be computed as part of the period within which such action may be brought, and another action may be brought within the remaining period.” The plaintiffs contended that Code § 8.01-229(E)(1) statutorily tolled the statute of limitations for plaintiffs’ claims during the pendency of the putative class action, and that the court's decision in Welding, Inc. v. Bland Cnty. Serv. Auth., 261 Va. 218, 541 S.E.2d 909 (2001), indicated that Virginia had recognized cross-jurisdictional putative class action tolling.

In Welding, the court had stated that, under Virginia law, an action filed in a foreign jurisdiction may indeed trigger tolling under the Code section. Although there is no particular type of action that must be filed and no particular jurisdiction in which that action must be brought for the commencement of an action to trigger tolling under Code § 8.01-229(E)(1), for tolling to be permitted, the subsequently filed action must be filed by the same party in interest on the same cause of action in the same right. Welding differed from the instant case because it concerned a situation where the same plaintiff initially sued in federal court on the same cause of action he subsequently pursued in state court. The plaintiff in both actions was clearly the same. In the instant matter, said the court, it is undisputed that the four plaintiffs were not named plaintiffs in the putative class action that they claim triggered the tolling. They were merely absent members of a putative class that included everyone in the country who had taken this drug.

For the filing of an action to toll the statute of limitations from running on a subsequently filed action, there must be a true identity of the parties in the two lawsuits. In other words, for the statute of limitations to be tolled for a subsequent action, the party who brought the original action must be the same as the plaintiff in the subsequent action or a recognized representative of that plaintiff asserting the same cause and right of action. A putative class action is a representative action in which a representative plaintiff attempts to represent the interests of not only named plaintiffs, but also those of unnamed class members. But Virginia jurisprudence does not recognize class actions. Under Virginia law, a class representative who files a putative class action is not recognized as having standing to sue in a representative capacity on behalf of the unnamed members of the putative class. Thus, under Virginia law, there is no identity of parties between the named plaintiff in a putative class action and the plaintiff in a subsequent action filed by a putative class member individually. Accordingly, a putative class action cannot toll the limitations period for unnamed putative class members under Virginia law.

Certified questions answered in the negative.

Upcoming Webinar Worth Checking Out

Sean Wajert — Thu, 08 Mar 2012 10:50:18 -0500

I wanted to let readers know that I will be speaking in an upcoming Strafford live phone/web seminar entitled "Medical Monitoring in Products Liability Claims: Challenges for Plaintiffs and Defendants" scheduled for Tuesday, March 20, 1:00pm-2:30pm EDT.

My fellow panelists and I will provide practitioners with a review of defense and plaintiff counsels' perspectives regarding medical monitoring. My focus will be on medical monitoring class actions.

After our presentations, we will engage in a live question and answer session with participants — so we can answer your questions about these important issues directly. I hope you'll join us.

You can register here.

State Supreme Court Revises "Two-Injury" Rule

Sean Wajert — Tue, 28 Feb 2012 17:02:46 -0500

The traditional single claim rule requires a plaintiff to bring at one time a suit for all the injuries arising from the same accident or incident, or risk being barred. In the toxic tort context, the issue is complicated by the fact that an exposure may put a plaintiff at risk for different diseases that have different latency periods, meaning different time periods before the injuries will manifest themselves. Courts have to consider the impact of the statute of limitations, res judicata, and the pros and cons of encouraging premature filings relating to the mere risk of future disease or of allowing a plaintiff to, in a sense, split a cause of action into separate claims arising from the same product, same exposure, and same alleged conduct of the defendant.

Last week, the Pennsylvania Supreme Court modified its rules on these issues, holding that plaintiffs seeking damages for certain asbestos-related health problems can file separate lawsuits for distinct cancers they may develop. See Daley v. A.W. Chesterton Inc., et al., No. J-98-2010 (Pa. 2012).

In 1989, plaintiff/appellee Herbert L. Daley was diagnosed with pulmonary asbestosis and squamous-cell carcinoma of the right lung. He sued several defendants, and the case eventually settled. A decade later, Daley was diagnosed with malignant pleural mesothelioma. He sued a dozen asbestos defendants. Plaintiffs conceded that the mesothelioma was caused by the same asbestos exposure that resulted in his lung cancer and pulmonary asbestosis for which he
sought and obtained compensation in the 1990's. Defendants (who had not been in the first case, presumably because of the terms of the releases) filed motions for summary judgment, contending that, because Daley previously filed an action for a malignant asbestos-related condition in 1990, Pennsylvania’s “two-disease” rule did not allow him to file an action for a second malignant asbestos-related disease – here, mesothelioma.

Pennsylvania had been one of the states to adopt a two-disease rule, which under certain circumstances created an exception to Pennsylvania’s single cause of action rule, and allowed certain second actions without running afoul of the two-year statute of limitations or the notion of res judicata. Specifically, the courts had adopted, for purposes of asbestos litigation, a two-disease rule, allowing plaintiffs to bring one action based on a nonmalignant asbestos disease
and a subsequent action for any separately diagnosed malignant disease. The court determined that malignant and nonmalignant asbestos-related injuries constituted separate claims. Here, though, the issue was a little different: was plaintiff limited to one cause of action for a malignant asbestos-related disease and one cause of action for a nonmalignant asbestos-related disease?

Defendants argued, with compelling logic, that the rule clearly arose in the context of malignant vs. non-malignant disease. (Readers of MassTortDefense know the great administrative burdens, ethical questions, and significant policy issues, that the non-malignant asbestos claims have created.) Moreover, allowing plaintiffs to bring more than one lawsuit for asbestos-related diseases of the same category would cause the judicial system to be burdened with more piece-meal litigation. Residents of other states would seek to benefit by this expansion of the two-disease rule by filing suits in Pennsylvania. Allowing a plaintiff to bring separate lawsuits for separate malignant diseases, such as lung cancer and mesothelioma, would also make the determination of an appropriate award of damages more difficult due to an inability to segregate the damages for each of the separate diseases.

However, the state supreme court said that defendants were reading the asbestos precedents too narrowly; the decision to allow a plaintiff to file one cause action for a nonmalignant asbestos-related disease, and a subsequent cause of action for a malignant asbestos-related disease, arose from a recognition that requiring a plaintiff to seek recovery for all present and future asbestos-related diseases, including malignant and nonmalignant diseases, upon first experiencing symptoms of any asbestos-related disease, was likely to result in anticipatory lawsuits, protracted litigation, evidentiary hurdles, speculative damages, and excessive or inadequate compensation. While the separate disease rule initially developed from, and has since been applied in, cases involving a cause of action for a nonmalignant disease, followed by a cause of action for a malignant disease, the concerns that the rule was designed to address
were, said the court, not limited to situations where a plaintiff suffers one nonmalignant asbestos-related disease and one malignant asbestos-related disease. The court emphasized that with regard to mesothelioma, the estimated latency period for is 30 to 50 years, whereas the estimated latency period for asbestosis and most lung cancers is 10 to 20 years. Thus, it was unlikely a plaintiff would be diagnosed with mesothelioma until long after he had been diagnosed with, and the statute of limitations had expired for, lung cancer. Requiring a plaintiff to seek damages for a potential future diagnosis of mesothelioma at the time he is diagnosed with lung cancer not only imposes nearly insurmountable evidentiary hurdles on the plaintiff, said the majority, but also may subject a defendant to payment of damages for a serious disease which a vast majority of plaintiffs will not actually develop.

In view of these circumstances, the court concluded that a plaintiff who is diagnosed with a malignant disease, and later diagnosed with a separate and distinct malignant disease caused by the same asbestos exposure, may benefit from the separate disease rule. The court did note that relevant factors for "separate and distinct" may include evidence that the diseases: developed by different mechanisms; originated in different tissue or organs; affected different tissue or organs; manifested themselves at different times and by different symptoms; progressed at different rates; and carried different outcomes.

The decision was 6-1; time will tell whether the defendants were correct in predicting the rule change will lead to more asbestos filings, or the majority was right in predicting fewer.

Mass Tort Litigation Conference

Sean Wajert — Fri, 24 Feb 2012 05:43:26 -0500

We wanted to remind our faithful readers of the HarrisMartin’s Mass Tort Litigation Conference, chaired by Judge Marina Corodemus (Ret.).

It is set for June 4, 2012 - in our home base of Philadelphia, PA, at the Ritz Carlton.

This year's focus is “A Post-Modernistic Deconstruction of a Mass Tort Medical Device Case.” The agenda follows the anatomy of the mass tort, from shareholder suits, to government investigations; key science issues; MDL and class procedural questions; and a sprinkling of ethics and discovery, through to a panel on settlement.

The conference includes excellent speakers from the judiciary, the government, industry, and the bar.

More info here.

Busy Mass Tort Court Revamps Procedures

Sean Wajert — Thu, 23 Feb 2012 08:55:17 -0500

Our readers recognize that Philadelphia (home base for MassTortDefense) is a hot-bed of mass tort activity, administering those cases through a Complex Litigation Center. Now comes important news that the Honorable John W. Herron, Administrative Judge of the Trial Division of the Philadelphia Court of Common Pleas, recently issued an order that will alter and impact the handling of mass tort cases in this busy jurisdiction.

General Court Regulation No. 2012-01 represents the first general overhaul of the Complex Litigation Center’s practices in many years. The order will revise and streamline the conduct of mass tort litigation in Philadelphia in a number of ways. More on that in a minute. What is also significant is the reason for the changes. The order notes the pronounced upward trend in mass tort filings in this court, and the fact that the court’s disposition rate has not kept pace with filings; thus, a significant backlog has developed. The order notes the impact of past policy which invited the filing of cases from other jurisdictions. A "dramatic increase in these filings" occurred after the court’s leadership invited claims from other jurisdictions. In 2009, when published comments were offered encouraging the filing of claims in Philadelphia, out-of-state filings rose to 41%, and in 2011 reached 47%.

So, in response, Judge Herron’s order:

ends reverse bifurcation in all mass tort cases,
significantly limits the consolidation of non-asbestos cases, unless agreed by all parties,
requires the deferral of all punitive damage claims,
requires, except upon showing of exigent circumstances, all discovery to take place in Philadelphia,
re-emphasizes mediation of cases,
limits expediting of cases based on exigent medical or financial reasons until the backlog of pending cases has been resolved, unless otherwise agreed by a majority of the defendants.

The Honorable Arnold New will be reassigned as a Coordinating Judge of the Complex Litigation Center. Judge New is an experienced and respected member of the Philadelphia Court of Common Pleas, having served on the bench for more than 20 years. He currently administers another of the Court’s innovative programs, the Commerce Program. To ensure a smooth transition, Regulation No. 2012-01 provides that Judge New will act as Co-Coordinating Judge of the Complex Litigation Center, sitting in tandem with the Honorable Sandra Mazer Moss. Judge Moss will assume senior status as of December 31, 2012, at which time Judge New will thereupon serve as the sole Coordinating Judge of the Complex Litigation Center and its Mass Tort Program.

The order advises that the court will entertain additional suggestions from the bar, and will open a comment period in November, 2012, to allow interested parties the opportunity to address the new procedures and to suggest any further changes that may be needed.

There is little doubt that this court's Complex Litigation Center faces a daunting task in handling a large number of cases involving complex and sophisticated claims and defenses, while seeking to resolve them both fairly and efficiently. Time will tell, but the new procedures ordered by Judge Herron should improve the functioning of the Complex Litigation Center, and the ongoing process of review and comment invited by the order will allow interested parties the opportunity to see that the Center keeps moving in the right direction.

Consumer Fraud Class Action Decertified in Drug Case

Sean Wajert — Tue, 21 Feb 2012 05:58:09 -0500

A state appeals court last week de-certified a class action by consumers over alleged misrepresentations in marketing a drug. See Merck & Co. v. Ratliff, No. 2011-000234 (Ky. Ct. App., 2/10/12).

The case involved the drug Vioxx, which was a highly effective medication formerly in widespread use for patients with arthritis and other conditions causing chronic or acute pain. Plaintiff was a former user of Vioxx for his chronic osteoarthritis. Although Ratliff’s insurance paid for most of the cost of the drug, which was at the time approximately $66 per month, Ratliff contributed about $5 each month out of pocket. Ratliff discontinued using Vioxx in early 2004.

Plaintiff brought a putative class action on behalf of product users who had not suffered cardio-vascular side effects, alleging that the defendant deceived the members of the proposed class in violation of the state Consumer Protection Act by promoting and/or allowing the sale of Vioxx with the use of unfair, false, misleading or deceptive acts or practices. As a result, the class purchased the drug when it wouldn't have otherwise.

The case followed a twisting path, to federal court, to the MDL, back to state court, up to the state supreme court on mandamus, and back. Long story short, the class was certified by the trial court, and that decision eventually became ripe for review by the court of appeals.

The Kentucky rules are similar to the federal class action rules. The trial court certified the class under the prong (like b3) requiring that the questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action
is superior to other available methods for the fair and efficient adjudication of the controversy. The trial court found that common questions of law and fact did predominate, stating that there was a common nucleus of facts from which the potential plaintiffs’ claims arose. All of the potential
plaintiffs were prescribed Vioxx by doctors who supposedly relied on Merck’s assertions that it was safe and effective.

On appeal, Merck contended that plaintiff’s claims would require individualized proof such that common questions would not predominate. Merck argued that individual proof would be necessary to show that Merck made fraudulent or negligent misrepresentations toward each putative class member or his or her physician through the marketing and sale of Vioxx, that the alleged
misrepresentations were received by each putative member’s physician, that each putative member’s physician relied on such representations in his or her decision to prescribe Vioxx over another drug, and the amount of any damages suffered by each putative member.

The court of appeals noted that the common law misrepresentation claims would require proof of causation in the nature of reliance, and while "there are fewer obstacles to a class claim proceeding under the" state consumer protection act, that law still requires loss as a result of the wrongful act. Plaintiffs alleged that there was supposedly a consistent pattern of deception lasting essentially the entire time that Vioxx was on the market, and thus that generalized proof could be used to show the elements of fraud and misrepresentation in this case. This theory concerning generalized proof regarding Merck’s alleged conduct was similar to the rebuttable presumption of reliance and causation known in securities litigation as "fraud-on-the-market." The court of appeals noted that the “fraud-on-the-market” approach had never been recognized in the state for a fraud or misrepresentation case. Indeed, pretty much every other jurisdiction which has been confronted with the theory has rejected it outside of the securities litigation context. See, e.g., Kaufman v. i-Stat Corp, 754 A.2d 1188, 1191 (N.J. 2000); International Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., Inc, 929 A.2d 1076, 1088 (N.J. 2007); Mirkin v. Wasserman, 858 P.2d 568, 584-95 (CA. 1993); Southeast Laborers Health and Welfare Fund v. Bayer Corp., 2011 WL 5061645 (11th Cir. 2011); Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001).

Accordingly, causation, reliance, and damages must be shown on an individual basis. Thus, if the action were tried as a class, even after the alleged common questions of Merck’s representations were decided, the case would essentially fragment into a series of amalgamated “mini-trials” on each of these individualized questions. Because these individualized questions would substantially overtake the litigation, and would override any common questions of law or fact concerning defendant’s alleged conduct, the court found that a class action was not the superior mechanism by which to try these cases. See, e.g., Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1192 (9th Cir. 2001).

Medical Monitoring Complaint Held Insufficient

Sean Wajert — Wed, 15 Feb 2012 05:58:44 -0500

A federal trial court last week dismissed a medical monitoring claim by an employee of a pipe cleaning company pursuant to Twombly. Royal v. Exxon Mobil Corp., No. 12-00081 (E.D. La., 2/6/12).

Junius Royal sued several oil companies for damages in connection with oil pipe cleaning services that he allegedly performed. Plaintiff asserted that the oil pipes he cleaned contained carcinogenic radioactive materials commonly referred to as naturally occurring radioactive material, or "NORMS.'" Plaintiff claimed that the defendants knew about the radioactive material in
the pipes, but failed to warn. He thus became exposed to dangerously high levels of radiation during his work, and he now has a substantially increased risk of developing cancer. He sought medical monitoring. Defendants moved to dismiss plaintiff's medical monitoring claim for failure to state a claim on which relief could be granted.

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007)). Factual allegations must be
enough to raise a right to relief above the speculative level. In deciding whether dismissal is warranted, the court will not accept conclusory allegations in the complaint as true. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

To prove common law medical monitoring claim under Louisiana law (there is a separate statutory claim), a plaintiff must show: (1) Significant exposure to a proven hazardous substance, (2) As a
proximate result of this exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease, (3) Plaintiff's risk of contracting a serious latent disease is greater than (a) the risk of contracting the same disease had he or she not been exposed and (b) the chances of
members of the public at large of developing the disease, (4) A monitoring procedure exists that makes the early detection of the disease possible, (5) The monitoring procedure has been
prescribed by a qualified physician and is reasonably necessary according to contemporary scientific principles, (6) The prescribed monitoring regime is different from that normally
recommended in the absence of exposure, and (7) There is some demonstrated clinical value in the early detection and diagnosis of the disease. Bourgeois v. A.P. Green Indus., 716 So. 2d 355,
360-61 (La. 1998).

Here, plaintiff failed to allege or urge that he had a manifest physical injury or mental injury or disease, as required by the statute. The fact that he may have been exposed to radiation was not, in and of itself, sufficient. Further, the plaintiff failed to plead facts which bear directly on several of the common law factors. For example, plaintiff made no mention of what type of monitoring he was
looking for, who prescribed him the monitoring, or what the efficacy of the monitoring might be.

ABA Urges Respect For Foreign Privacy Laws

Sean Wajert — Mon, 13 Feb 2012 05:41:06 -0500

“Commerce among nations should be fair and equitable.” -- Benjamin Franklin

The global economy of the 21st century has given rise to an important international conflict of laws, the tension between foreign privacy laws and expansive discovery law in U.S. courts. Countries such as Germany, France and Switzerland, have established laws that protect the personal information of their citizens (including data privacy laws, banking secrecy legislation, as well as so-called “blocking” statutes). U.S. courts are increasingly being asked by litigants to compel discovery of information located outside of the U.S. despite such laws, and by their opponents to respect the policies that may preclude or limit such discovery. These litigants express concern that the courts simply fail to understand the untenable position a global company is put in when such discovery proceeds.

The American Bar Association last week weighed in on the issue, adopting a policy urging U.S. courts to respect foreign privacy laws when managing discovery in civil litigation. The House of Delegates passed Resolution 103A by a vote of 227 to 188 stating that U.S. courts in civil discovery disputes should consider and respect foreign privacy laws "where possible in the context of the proceedings before them."

Those in favor of the resolution emphasized the “Hobson’s choice” for litigants who must choose between following laws in one jurisdiction or another, but not both, when discovery orders require disclosure. The U.S. Supreme Court recognized the need to respect non-U.S. law in the discovery context of civil litigation at least as far back as 1987, when it held in Aerospatiale v. District Court of Iowa, 482 U.S. 522 (1987), that international comity compels American courts to take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state. But most U.S. courts do not give weight to foreign statutes that limit pretrial discovery, even when based on a different and stricter views of privacy rights and disclosure obligations.

Growing globalization guarantees that more and more disputes in U.S. courts will involve protected data located in and subject to the laws of foreign countries. The ABA is concerned that the courts of other countries may take a hardened view of U.S. laws and regulations to the detriment of U.S. litigants in their courts. Rulings by courts here that may be seen as parochial or insufficiently accommodating of interests of other legal regimes could also stymie the growth of global commerce, including the cross-border movement of personnel and the hiring of local employees.

Raw Material Suppliers Not Liable for Worker Injuries

Sean Wajert — Fri, 10 Feb 2012 07:06:25 -0500

A California appeals court ruled last week that several raw material suppliers could not be held liable for injuries allegedly sustained by a worker as a result of using their raw materials. See John Maxton v. Western States Metals, et al., No. B227000 (Cal. Ct. App., 2d Dist., 2/1/12).

Plaintiff alleged he sustained personal injuries as a result of working with metal products manufactured by defendants and supplied to Maxton‘s employer. The metal products were essentially raw materials that could be used in innumerable ways. The products at issue consisted of steel and aluminum ingots, sheets, rolls, tubes and the like. Plaintiff alleged he
worked with and around each of these metal products in cutting, grinding, sandblasting, welding, brazing, and other activities. This allegedly resulted in the generation and release of toxicologically significant amounts of toxic airborne fumes and dusts. As a direct result of this exposure, Maxton claimed he developed lung disease.

Generally, suppliers of raw materials to manufacturers cannot be liable for negligence, or under a strict products liability theory, to the manufacturers‘ employees who sustain personal injuries as a result of using the raw materials in the manufacturing process. Only in extraordinary circumstances —such as when the raw materials are contaminated, the supplier exercises substantial control of the manufacturing process, or the supplier provides inherently dangerous raw materials— can suppliers be held liable. So the first issue was whether such circumstances existed here.

A few courts have imposed liability on suppliers of raw asbestos materials under negligence and strict liability causes of action. The second issue was whether asbestos is unique in that it is inherently dangerous, and thus whether the holdings of those asbestos cases would be extended here.

Defendants mounted two kinds of challenges to the complaint. Some defendants filed demurrers; others filed motions for judgment on the pleadings. The trial court sustained the demurrers and granted the motions. Plaintiff appealed.

The court of appeals noted that the component parts doctrine is set forth in section 5 of the Restatement Third of Torts, Products Liability, which provides:
―One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
―(a) the component is defective in itself, and the defect causes the harm; or
―(b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and (2) the integration of the component causes the product to be defective, and (3) the defect in the product causes harm.

Product components include raw materials, bulk products, and other constituent products sold for integration into other products. The metal products at issue here were clearly raw materials because they could be used in innumerable ways, and they were not sold directly to consumers in the market place. Rather, they were sold to plaintiff‘s employer for the purpose of using them to manufacture other products. The metal products in this case were closer to raw materials like kerosene than they were to more developed components of finished products, such as airbags in cars, because they can be used in innumerable ways.

Under California law, component and raw material suppliers are not liable to ultimate consumers when the goods or material they supply are not inherently dangerous, they sell goods or material in bulk to a sophisticated buyer, the material is substantially changed during the manufacturing process, and the supplier has a limited role in developing and designing the end product. When these factors exist, the social cost of imposing a duty to the ultimate consumers far exceeds any additional protection provided to consumers. The rationale for not imposing liability on a supplier of product components is a matter of equity and public policy. Such suppliers ordinarily do not participate in developing the product components into finished products for consumers. Imposing liability on suppliers of product components would force them to scrutinize the buyer-manufacturer‘s manufacturing process and end-products in order reduce their exposure to lawsuits. This would require many suppliers to retain experts in a huge variety of areas, especially if the product components are versatile raw materials. Courts generally do not impose this onerous burden on suppliers of product components because the buyer- manufacturer is in a better position to ensure safety.

Although the complaint stated the legal conclusion that the metal products were inherently hazardous, the facts alleged indicated otherwise. Maxton was not injured by simply handling the metal itself, or even the final product containing the metal. Instead, Maxton was injured as a result of the manufacturing process, which altered the form and risks of the products.

As for the contention that the metal products involved here were analogous to asbestos, the court disagreed. Asbestos itself is dangerous when handled in any form even if it is unchanged by the manufacturer. Indeed, asbestos is dangerous when it leaves the supplier‘s control. By contrast, the metal products in this case were not dangerous when they left defendants‘ control. They only became allegedly dangerous because of the manufacturing process controlled by the employer. (Nothing in the complaint indicated that defendants played any role whatsoever in developing or designing the end products.)

The court of appeals declined to impose the social cost, meaning the practical burdens that liability would place on defendants as suppliers of the ubiquitous metal products involved in this case. Defendants would be required to assess the risks of using their metal products to manufacture other products. In order to make such assessments, defendants would need to retain experts on the countless ways their customers used their metal products. Defendants would also be placed in the untenable position of second-guessing their customers whenever they received information regarding potential safety problems. Courts generally do not impose this onerous burden on suppliers of product components because the buyer-manufacturers are in a better position to guarantee the safety of the manufacturing process and the end product.

Dismissal affirmed.

Federal Court Upholds "Bare-Metal" Defense

Sean Wajert — Wed, 08 Feb 2012 10:11:40 -0500

A federal court last week became the latest to refuse to hold a defendant liable for injuries allegedly caused by asbestos-containing parts manufactured by others but used with the defendant's products. See Conner v. Alfa Laval Inc., No. MDL-875 (E.D. Pa. 2/1/12).

The issue arose in the consolidated asbestos products liability multidistrict litigation pending in the U.S. District Court for the Eastern District of Pennsylvania. Defendants moved for summary judgment on the ground that they were not liable for injuries caused by asbestos products, such as insulation, gaskets, and packing, that were incorporated into their products or used as replacement parts, but which they did not manufacture or distribute.

As the asbestos litigation has evolved, and the major manufacturing defendants have declared bankruptcy, the litigation has moved away from the manufacturers of asbestos to new types of defendants, including premises owners, and even those that manufactured so-called “bare-metal” products that contained or were later encapsulated in asbestos made by others. Litigants often refer to the defense raised in this case as the “bare-metal defense,” but it is more properly understood, as the court explained, as a challenge to a plaintiff’s prima facie case to prove duty or causation.

Here, the court considered the availability and scope of the so-called “bare-metal” defense under maritime law.

Plaintiffs alleged they developed mesothelioma as a result of exposure to defendants products while working on vessels operated by the U.S. Navy. One alleged he was exposed to asbestos products used with turbines while he served in the U.S. Navy from 1962 to 1971 aboard the U.S.S. Yorktown. (This was the 2d Yorktown; under construction as Bon Homme Richard, this new Essex-class carrier was renamed Yorktown in honor of the carrier sunk at the epic Battle of Midway in June, 1942. Much of the Academy Award-winning documentary "The Fighting Lady" was filmed aboard the Yorktown.)

Another alleged he was exposed to asbestos aboard the U.S.S. Pollux and U.S.S. Delta, through products like turbines, pumps, boilers, and valves that used and, in some cases, were originally distributed with, asbestos-containing insulation, packing, gaskets, and other products.
The third alleged he was exposed to asbestos used with products while serving as a boiler tender in the U.S. Navy from 1959 to 1976 aboard various naval vessels.

Plaintiffs did not, however, proffer evidence that defendants manufactured or distributed the particular asbestos components or replacement parts to which they were allegedly exposed. Instead, they argued that defendants were liable for all the intended and foreseeable uses of asbestos parts in connection with their original products.

In determining whether defendant manufacturers were liable under maritime law for injuries caused by asbestos parts used with their products, whether in strict liability or negligence, a plaintiff must establish causation with respect to each defendant manufacturer. See Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005). A plaintiff generally establishes causation under maritime law by showing (1) that the plaintiff was exposed to the defendant’s product and (2) that the product was a substantial factor in causing the plaintiff’s injury, said the court.

Plaintiffs raised two arguments to hold manufacturers liable for harm caused by asbestos products they did not manufacture or distribute. First, plaintiffs argued that under the integrated-products doctrine the “products” at issue were really defendants’ products together with the asbestos-containing components and replacement parts supplied by third parties. Second, plaintiffs argued that defendants had a duty to warn of the hazards posed by the foreseeable uses of their products.

The court rejected both arguments. The first was not consistent with the law under the component parts doctrine. Even if the court were to accept that defendants were component-part manufacturers, a component-part manufacturer is not liable for injuries caused by the finished product into which the component is incorporated unless the component itself was defective at the time it left the manufacturer. The defective product here was the asbestos insulation, not the pumps and valves to which it was applied after defendants’ manufacture and delivery. Also, as a matter of law, defendants did not owe a duty to warn under maritime law of the hazards posed by products they did not manufacture or distribute.

The court cited with approval the view of other courts that the overwhelming case law does not support extending strict liability for failure to warn to those outside the chain of distribution of a product. Products liability has always been premised on harm caused by deficiencies in the defendant’s own product. Moreover, a manufacturer does not have an obligation to warn of the dangers of another manufacturer’s product. The law does not impose a duty to warn about dangers arising entirely from another manufacturer’s product, even if it is foreseeable that the products will be used together. Any expansion of the duty of care as urged here would impose an obligation to compensate on those whose products caused the plaintiffs no harm. To do so would exceed the boundaries established over decades of product liability law. And it would also be unfair to require manufacturers of non-defective products to shoulder a burden of liability when they derived no economic benefit from the sale of the products that injured the plaintiff.

Having held as a matter of law that a manufacturer is not liable for harm caused by the asbestos products that it did not manufacture or distribute, the court concluded that plaintiffs failed to raise a genuine issue of material fact as to whether any of the defendants manufactured or distributed the asbestos products that caused the alleged injuries.

The decision puts the court in the company of others, like O'Neil v. Crane Co., Cal., No. S177401 (Cal. 1/12/12), which have declined to extend liability for asbestos-related injury to makers of products used with asbestos insulation, gaskets, and packing.

Federal Court Denies Class Certification After Daubert Analysis

Sean Wajert — Mon, 06 Feb 2012 09:48:36 -0500

A federal court late last month declined to certify three classes of consumers in litigation claiming that a defect in Harley-Davidson Motor Co. Inc.'s motorcycles caused severe wobbling and instability. See Steven C. Bruce, et al. v. Harley-Davidson Motor Co., Inc., et al., No. 2:09-cv-06588 (C.D. Cal.).

Plaintiffs were owners of Harley-Davidson motorcycles. According to plaintiffs, beginning in or before 2002, Harley-Davidson manufactured and sold touring motorcycles that had an alleged design defect in the form of an excessively flexible chassis. According to plaintiffs, the alleged defect caused “severe wobbling, weaving and/or instability,” especially occurring when riders made sweeping turns, and traveled at speeds above 55 miles per hour. Plaintiffs alleged that had they and other class members known of the defective nature of the vehicles, they would not have purchased or leased their motorcycles, or at least would have reduced the amount they were willing to pay for them. Hence, the classic alleged consumer fraud class action.

Plaintiffs moved for class certification, and relied on expert testimony to establish some of the Rule 23 elements. Specifically, plaintiffs’ expert opined that a rider of a properly-designed
motorcycle should not experience a weave-mode instability event when riding within the
range of expected speeds. He asserted that the class-purchased cycles shared a common design defect in the form of an “excessively flexible” chassis. The vehicles allegedly failed to “damp out,” or reduce, weave-mode oscillations to one half of their original amplitude within the time frame (a couple seconds) necessary to prevent them from becoming perceptible to the riders.

Defendants challenged the admissibility of that expert testimony under Daubert, contending that Rule 702 and Daubert apply with “full force” at the class certification stage. In support of this
position, Harley-Davidson relied primarily on Wal-Mart Stores, Inc., v. Dukes, 131 S. Ct. 2541 (2011), and Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815–16 (7th Cir. 2010) (per curiam). In Dukes, the Supreme Court noted that it doubted that Daubert did not apply at the certification stage of class-action proceedings. 131 S. Ct. at 2554. In American Honda, which we commented on here, the Seventh Circuit 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. Earlier this month, the Seventh Circuit reaffirmed its holding in 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).

Plaintiffs argued that a full Daubert inquiry into the reliability of expert opinions is not required or appropriate at the class certification stage. They cited In In re Zurn Pex Plumbing Prods. Liability Litig., 644 F.3d 604, 613 (8th Cir. 2011),which we criticized here, and in which the Eighth Circuit reasoned that an “exhaustive and conclusive Daubert inquiry before the completion of merits discovery” is not necessary due to the “inherently preliminary nature of pretrial evidentiary and
class certification rulings.” See also Behrend v. Comcast Corp., 655 F. 3d 182, 204 n. 13 (3d Cir. 2011) (district court need not turn class certification into a "mini-trial”).

Here the district court found the approach adopted by the Eighth Circuit to be the appropriate application of Daubert at the class certification stage. Thus, a “tailored” or “focused” inquiry, to assess whether the experts’ opinions, based on their areas of expertise and the reliability of their analysis of the available evidence, should be considered in deciding the issues relating to class certification, said the court. Especially where discovery has been bifurcated into a class phase and a merits phase, an expert’s analysis may have to later adapt, as gaps in the available
evidence are filled in by merits discovery. Here, the court had granted defendants’ request for bifurcated discovery. Accordingly, the expert opinions would be assessed in light of the evidence currently available.

Even with a less than full inquiry, the court found that the proposed expert testimony must be excluded. In reaching this conclusion, the court decided the expert had not adequately
explained the scientific basis for his proposed standard, which also had not been accepted in
the field of motorcycle dynamics. While the evidence supported that the damping out of weave-mode oscillations may be an important factor for motorcycle stability, it did not establish that the expert's "rule" requiring the reduction of weave-mode oscillations to one half of their original amplitude within two seconds was scientifically valid.

The expert formed his opinions exclusively for the purposes of litigation and had not published his "rule" for peer review, providing further support for his exclusion.

Additionally, the court believed that he had not sufficiently accounted for other potential causes of the instability. He failed to consider and test for other possible causes including the use of non-specified tires and leaky shocks. See, e.g., Clausen v. M/V NEW CARISSA, 339 F. 3d 1049, 1058
(9th Cir. 2003) (“The expert must provide reasons for rejecting alternative hypotheses using scientific methods and procedures and elimination of those hypotheses must be founded on more than ‘subjective beliefs or unsupported speculation.’”).

Thus, plaintiffs failed to establish that common questions of law and fact predominated over individual inquiries. Once the opinions were excluded, plaintiffs failed to show that they had the ability to use common evidence by which they could demonstrate the defect. The fact that the chassis was the same for each vehicle ignored the failure to show how common evidence would ultimately be admissible to prove that they shared a common defect, and also was unavailing because it overlooked the Supreme Court’s admonition that a “rigorous analysis” will often “entail some overlap with the merits of the plaintiff’s underlying claim.” Dukes, 131 S. Ct. 2551.

FJC Releases Report on Juror Use of Social Media

Sean Wajert — Thu, 02 Feb 2012 11:16:43 -0500

Here at MassTortDefense we have observed the many ways in which the evolution and spiking popularity of social media has affected the practice of law. We are blogging, obviously, can be followed on twitter (@MassTortDefense), and have a presence on Linkedin. On the day Facebook has filed for an historic IPO, it may be a good time to look at the issue of the use of social media by jurors in the courtroom.

The Federal Judicial Center released a report on the topic last week. At the request of the Committee on Court Administration and Case Management, the Federal Judicial Center conducted a survey of district courts to assess the frequency with which jurors use social media to communicate during trials and deliberations, and to identify effective strategies for curbing this behavior. The results, based on the responses of 508 responding judges, indicate that detected
social media use by jurors is so far infrequent, and that most judges have taken steps to ensure jurors do not use social media in the courtroom. The most common strategy is incorporating social media use into jury instructions—either the model jury instructions provided by CACM or judges’ own personal jury instructions. Also common are the practice of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom.

Only 30 judges reported instances of detected social media use by jurors during trials or deliberations. But almost half the judges said they had no good way of knowing whether jurors were using social media. Nearly 94 percent of the judges who responded to the survey have specifically barred all case-connected use of social media. Judges admit that it is difficult to police jurors, and therefore use of social media is difficult to detect.

Of the types of social media used by jurors, Facebook was ranked as the most common, with instant messaging second. Twitter lagged behind in this survey. In most instances, the social media use was in the form of posts about the progress of the case. But the judges reported a handful of attempts by jurors to “friend” one or more participants in the case. And three reported jurors who revealed aspects of the deliberation process.

Class Certification Denied in Baby Formula Case

Sean Wajert — Wed, 01 Feb 2012 14:15:01 -0500

A federal court last week denied class certification in a lawsuit over insect parts allegedly found in baby formula, recognizing that the claims raised multiple individual issues. Brandner v. Abbott Laboratories, et al., No. 2:10-cv-03242 (E.D. La. 1/23/12).

Plaintiff filed this suit in connection with Abbott’s September, 2010 recall of Similac brand infant formula because of the concern that insect parts may have been observed in a batch of finished product. Brandner asserted that she purchased, and her child consumed, Similac that was
part of the product recall. Plaintiff contended that during this period her child suffered alleged gastrointestinal problems, which symptoms required numerous visits to a physician, and that she allegedly experienced severe emotional distress upon learning she had fed her child infant formula containing beetles and beetle larvae.

Plaintiff's Rule 23 (b)(2) class allegations were dismissed, but plaintiff then sought monetary damages and moved to certify a class on her products liability and redhibition claims under
Federal Rule of Civil Procedure 23(b)(3). Defendant opposed this certification motion on the grounds that she failed to satisfy the commonality, typicality, and adequacy of representation requirements of Rule 23(a), as well as the predominance and superiority requirements of Rule 23(b)(3). The court's focus was on the predominance and superiority issues, and found no need to reach all the other questions.

Predominance of individual issues under the product liability claim-

Louisiana law requires a plaintiff to demonstrate that the product was unreasonably dangerous when it left the manufacturer’s control. Whether each class member actually purchased contaminated Similac was subject to individualized, not collective proof. Second, each putative class member would need to establish that Abbott’s actions were a proximate cause of his or her injury. Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d 1245, 1247 (5th Cir. 1997). The plaintiff's cause of action here would require proof of medical causation, which has two components, general causation, which establishes that a substance has the capability of causing the injury or disorder in humans, and specific causation, which focuses upon whether the substance caused a particular injury to a particular individual. E.g., Ridgeway v. Pfizer, Inc.,, 2010 WL 1729187, at *2 (E.D. La. Apr. 27, 2010). Even assuming general causation, proving specific causation would require a determination of an individual’s family and medical history; age; gender; diet; the timing of ingestion of the product; whether that individual suffered an injury, when the injury occurred, the type of injury suffered, and the number of occurrences of injury; and more. See In re Vioxx Prods. Liab. Litig., 239 F.R.D. 450, 459 (E.D. La. 2006)(citing In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 208 F.R.D. 625, 631-32 (W.D. Wash. 2002)).

This highly individualized inquiry led the court to conclude that issues common to the class did
not predominate. Interestingly, the court went on to note that all plaintiffs who claimed emotional distress (an issue that plaintiff contended was common to the class) would have to establish not only the distress but also the attendant damages. The damages issue required a determination whether plaintiffs sought medical treatment, psychiatric treatment, the degree to which plaintiffs manifested generalized fear, and the severity of plaintiffs’ emotional distress. See Howard v. Union Carbide Corp., 897 So.2d 768, 774 (La. App. 2005). Because the determination of whether each member suffered emotional distress turned on a highly individualized assessment, questions of fact regarding individual members predominated over common issues of fact. While the individual nature of damages alone does not necessarily preclude class certification, class treatment may not be suitable where the calculation of damages is not susceptible to a mathematical or formulaic calculation. Establishing emotional damages would entail the exact type of “mini-trials” the courts have cautioned against. Indeed, the very nature of these damages, compensating plaintiffs for emotional and other intangible injuries, necessarily implicated the subjective differences of each plaintiff’s circumstances; they were an individual, not class-wide, remedy. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 417 (5th Cir. 1998). See also In re Katrina Canal Breaches Litig., 401 Fed. Appx. 884, 887 (5th Cir. 2010) (class certification not appropriate when individualized issues, such as the nature and extent of a class member’s damages, will predominate).

Superiority-

The court also found that plaintiff made no showing of how she would try these claims on a class-wide basis. She thus failed to demonstrate how she would overcome the manageability problems posed by claims that require such disparate proof. Accordingly, she had not satisfied the requirement that a class action be superior to other available methods of adjudicating the controversy.

Other claims-

Plaintiff's redhibition claims also could not be certified as a class because common issues did not predominate, and a class action was not a superior mechanism for trying these claims. Plaintiff argued, in essence, that defendant admitted defect in recalling lots of the product. But the court found that the recall notice was far from an admission that every unit contained a
redhibitory defect. Indeed, the press release actually stated that there was only a “remote possibility” of contamination in the products subject to recall. Plaintiff could not show through common proof that each class member purchased a defective product. Plaintiff's expert did not convince the court otherwise. The overall rate of contamination in tested samples was only 0.16%. The expert admitted there was no scientific way to evaluate contamination in units that were recalled but not tested. And even if the product was considered “adulterated” per the FDCA, a food product is adulterated, inter alia, if it has been prepared, packed, or held under insanitary
conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health. So a product can be “adulterated” under the FDCA without being contaminated or defective.

Class certification denied under (b)(3).

Products Liability Seminar Worth a Look

Sean Wajert — Tue, 31 Jan 2012 08:32:22 -0500

I am pleased to announce that I will be speaking at the upcoming DRI Product Liability Conference taking place April 11-13, 2012 in Las Vegas, Nevada.

I’ll be speaking on Wednesday afternoon, April 11th, as part of the session of the Mass Torts & Class Actions subcommittee. The topic is Medical Monitoring.

The conference will include many distinguished speakers, preeminent attorneys, and in-house counsel, discussing the current state of products liability law. As if the excellent educational programs weren’t enough, this Products Liability conference provides a fantastic opportunity to network with hundreds of colleagues from across the country, both during the scheduled receptions and at informal evening social venues.

Brochure attached here. Registration here.

I look forward to seeing many of my faithful readers in Las Vegas.