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.
Plaintiffs sought certification of 10 statewide classes of owners and lessees of certain 2017-2021 vehicles, alleging that the automatic braking systems sometimes activated unnecessarily. The defendant issued vehicle software updates in 2018 and 2019 to address the issue. Plaintiffs’ claims included breach of implied warranty, breach of express warranty, fraud, state consumer protection statutes and unjust enrichment. In moving for class certification, plaintiffs argued the radar used in all vehicles in the putative class tied the claims and class members together. They presented expert opinion testimony from a control systems engineer, who claimed the radar unit was the “root cause” of the unnecessary braking. Defendant countered that, among other things, commonality was lacking because the proposed classes encompassed plaintiffs with distinct products and many versions of those products. As to the radar, the defendant had introduced two software updates which had reduced the incidence of unnecessary activation. Nevertheless, the district court did not consider this evidence and certified 10 state-specific classes.
The Sixth Circuit granted Nissan’s Rule 23(f) Petition for Permission to Appeal, noting that “automotive defect cases are increasingly common” in the Sixth Circuit and that the Sixth Circuit’s “review [of the case] is likely to be relevant not only to this case but to other class actions as well.” In deciding the appeal, the Sixth Circuit clarified that a district court analyzing the issue of commonality must walk through “each cause of action, identify the relevant elements of the claims, and evaluate which elements, if any, submit to common answers.” For commonality, the answer must be a yes-or-no answer for all class members and must rely on the same evidence. The panel cited a 2023 product liability case to illustrate how the “yes-or-no inquiry must apply to materially similar models.” Applying that standard, the Sixth Circuit found key flaws in the district court’s analysis of commonality. First, the district court did not consider how multiple software updates for different model vehicles, their effects, and defendant’s knowledge of those effects materially affected commonality. Second, the district court failed “to match any common question to any element of any of the plaintiffs’ claims.” Finding a common “defect” across the relevant vehicles in the putative classes would not be enough on its own to prove commonality. The panel went through multiple examples of the unique state law claims contained within the 10 classes, such as an implied warranty claim under Pennsylvania law or unjust enrichment claim under New York law, to show the level of detailed analysis needed for the commonality review for each of the 10 putative classes. And, noting that “[c]ommonality issues taint the predominance inquiry from the get-go,” the Sixth Circuit held that the district court’s “predominance inquiry require[d] a second look” as well.
The Sixth Circuit made another key holding. It held, consistent with dicta in Wal-Mart v. Dukes, 564 U.S. 338 (2011), and a growing number of other circuits, that a court must consider Rule 702 challenges to expert testimony submitted in support of class certification. The panel rejected plaintiffs’ claims that Rule 702 was irrelevant “because the judge alone decides class certification” and that applying Rule 702 would “prematurely decide[] the merits” of the case. The Sixth Circuit instructed the district court to perform a Rule 702 Daubert review of the plaintiffs’ control systems engineer expert testimony and determine whether such testimony offers an “evidence-backed opinion” as to each “material aspect” of commonality.
In re Nissan illustrates how products that change over time are not necessarily susceptible to a single common determination of defectiveness. It is especially pertinent to products with multiple versions of onboard software — not merely automotive products, but appliances, medical devices, and any other products that rely on software that undergoes updates. The opinion also adds another circuit to the growing list of courts that expressly require a Rule 702 analysis of expert evidence submitted in support of class certification. To borrow the Sixth Circuit’s language, these holdings are “likely to be relevant not only to this case but to other class actions as well.”
Disclosure: The authors’ firm represented the defendant in both the underlying case and in the appeal before the Sixth Circuit.
The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.
