Class certification decisions under Rule 23 of the Federal Rules of Civil Procedure mark a critical stage in any putative class action lawsuit. Rule 23(a) requires plaintiffs to prove, among other things, that “there are questions of law or fact common to the class.” And Rule 23(b) authorizes money damages class actions only where the legal or factual questions common to the class predominate over questions that may be addressed differently for individual class members. In class actions involving claims about product performance, class proponents almost always cite the existence of a “defect” as common issue. But why is the generic question of “defect” even the right question, and what if the product has experienced a significant change over the time period covered by the class action? When a product is updated, is it still the same “product” for purposes of Rule 23? The Sixth Circuit, in In re: Nissan North America, Inc., — F.4th —, 2024 WL 4864339 (6th Cir. 2024), addressed not only these questions but also joined the growing list of circuits that expressly require expert testimony offered at the class certification stage to satisfy Rule 702 of the Federal Rules of Evidence.
To Depose or Not to Depose: When Challenging Opposing Nonretained Experts Becomes Challenging
Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the opinions of experts who may present evidence at trial. If the disclosures are inadequate, Rule 37(c) requires exclusion of the opinions “unless the failure was substantially justified or is harmless.” This almost automatic exclusionary rule can pose issues when deciding whether to depose an opposing expert. Although “Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony,” Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008), some courts nevertheless may consider an inadequate disclosure to be “harmless” once the expert’s opinions have been fully explored at deposition. On the other hand, although “[c]ourts have uniformly rejected the [idea] that the failure to depose an expert affects the right to object to the expert’s testimony,” Hinton v. Outboard Marine Corp., 828 F. Supp. 2d 366, 370 (D. Me. 2011) (collecting cases), a party may need to depose an opposing expert in order to properly set up a challenge to the expert’s opinions for purposes of Federal Rule of Evidence 702 or trial if the court deems the expert’s disclosure adequate. This issue becomes particularly acute as applied to nonretained experts, who need not provide a written report under Rule 26. A recent opinion from the Northern District of Indiana aptly illustrates the quandary.
In Macchia v. Landline Trans, LLC, No. 2:21-CV-398, 2024 WL 4751091 (N.D. Ind. Nov. 12, 2024), the plaintiff alleged that he was injured in a motor vehicle accident and proffered three of his treating physicians as experts to opine on his injuries and causation. The defendants filed a three-pronged motion to exclude the experts. Notably, the defendants elected not to take the depositions of any of the three physicians. Indeed, the court’s opinion repeatedly observed how the lack of deposition testimony made it “a bit of a challenge” to summarize the background facts and adjudicate the motion.
A Change Is Gonna Come — Amendments to California Summary Judgment and Summary Adjudication Procedures Take Effect January 1, 2025
Those who litigate in California state courts, take note: Changes are coming to the state’s summary judgment statute for the first time in 20 years. Assembly Bill 2049 (AB 2049), signed into law this summer, introduces logistical changes and clarifications to the summary judgment process that attorneys should be aware of before the law takes effect on January 1, 2025.
First, AB 2049 will change the notice period — and thus the timing — of summary judgment and summary adjudication motions. Code of Civil Procedure section 437c prescribes the timeline for summary judgment and summary adjudication motions. Under the longstanding statute: notice of a summary judgment or summary adjudication motion and supporting papers needed to be served at least 75 days before the hearing, oppositions were due at least 14 days before the hearing, and replies at least five days before the hearing.
Plaintiff’s Half-Baked Attempt to Prove Defect and Causation With Photographs of Moldy Bread Shows the Knead for Expert Testimony
A picture may be worth a thousand words, but that doesn’t make the camera an expert witness. Product liability actions usually require expert testimony to prove defect and causation. Pictures, like other documents, can be central to an expert’s opinion on those points. But as a plaintiff in the Eastern District of Pennsylvania recently learned, pictures alone are insufficient. Defect and causation still require an expert’s testimony — even in cases involving products as simple as a loaf of bread.
In Kovalev v. Lidl US, LLC, 2024 WL 4642982 (E.D. Pa. Oct. 31, 2024), the plaintiff alleged that he became ill after consuming bread sold and/or baked by the defendants. He claimed to have bought eight loaves initially and experienced abdominal pain and difficulty breathing after spending two days eating the first loaf. He claimed to have thereafter discovered that the loaf was “extensively contaminated with dangerous disease-causing toxic mold.” He took pictures. Later, the plaintiff ate from a second loaf and developed nausea, vomiting, abdominal pain/cramps, general malaise, and respiratory issues “for days.” Once again, he allegedly inspected the bread after eating it and “discovered various-colored mold.” And once again, he took pictures. (As an aside, if we became ill after eating a loaf of bread and then discovered “extensive” mold on it, we would spend the foreseeable future carefully checking all our bread for mold before digging in. We might do so simply because we have read this case. But we digress.) Three months later, the plaintiff purchased four more loaves of bread from another of defendants’ stores. He claimed that while eating that bread he discovered “a large piece of black substance” inside it. Once again, he took pictures. Because he did not know what the substance was or whether he had consumed part of it, he claimed to be “severely traumatized” and afraid of developing future “cancer or damage to his organs,” “suffer[ing] a physical impact,” and losing his “enjoyment of life.”
New EU Product Liability Directive Published in Official Journal
The countdown has begun towards the transformed European product liability landscape! The recently adopted European Union Product Liability Directive (PLD) was published in the Official Journal of the European Union today. Transposition of the PLD into domestic law of the EU member states must be completed by December 9, 2026. As we previously discussed, products put on the market after December 9, 2026, will be subject to the new PLD, while products placed on the market prior to this date will be subject to the laws currently in place.
Further information about the new PLD (including new risks and opportunities for businesses operating in the EU) can be found in our previous updates here and here. Faegre Drinker will continue to monitor developments as the member states transpose the PLD and the new rules take shape.
Same Song, Different Verse — Causation Experts for Second Group of Bellwether Plaintiffs Excluded for Same Reason as First Group’s Expert in In re Deepwater Horizon BELO Cases
Multidistrict litigation is meant to “promote the just and efficient conduct” of actions “involving one or more common questions of fact” by transferring those actions to a single district court “for coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a). In MDLs involving alleged physical injury or illness caused by a product, one “common question of fact” is general causation. Each plaintiff in the MDL must prove that the product is capable of causing the injury or illness. We think it is usually — if not always — most “just and efficient” to address general causation on an MDL-wide basis as early as practicable. Some courts disagree, testing general causation initially on just a subset of plaintiffs in the MDL; when those efforts fail, other plaintiffs may be permitted to try again, perhaps with new general causation experts. But the plaintiffs’ second attempt to establish general causation often fails to remedy the problems that doomed the first attempt (as we have discussed before), merely amplifying costs for both parties before reaching the same result. The In re Deepwater Horizon BELO (Back-End Litigation Option) Cases litigation, while not formally centralized as an MDL itself, provides another example. In re Deepwater Horizon BELO Cases, 119 F.4th 937 (11th Cir. 2024).