In Case You Missed It: Faegre Drinker on Products — Fall 2024

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Catch up on the latest developments of interest for product manufacturers. Here’s a quarterly compilation of the most popular blog posts on Faegre Drinker on Products for Fall 2024.

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

By Patrick Ebeling and Eric M. Friedman

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, 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.


A Change Is Gonna Come — Amendments to California Summary Judgment and Summary Adjudication Procedures Take Effect January 1, 2025

By David P. Koller and Gabriel J. Niforatos

Those who litigate in California state courts, take note: Changes to the state’s summary judgment statute have been made for the first time in 20 years. Assembly Bill 2049 (AB 2049), signed into law in the summer of 2024, has taken effect and introduces logistical changes and clarifications to the summary judgment process that attorneys should be aware of.


Sixth Circuit Applies FRE 702 to Class Certification Experts and Highlights Commonality and Predominance Issues for Products That Change Over Time

By Erica K. Drew and Eric M. Friedman

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?

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