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.
Continue reading “In Case You Missed It: Faegre Drinker on Products — Fall 2024”
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.
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.”
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.
On October 10, the European Council adopted the European Union’s new Directive on Liability for Defective Products (PLD). The Council’s adoption of the new PLD represents a momentous step towards a complete restructuring of the EU’s product liability landscape as it will replace the current 40-year-old directive and soon become the EU’s new governing regime. The new PLD will enter into force 20 days after its publication in the Official Journal of the European Union. Thereafter, member states will have two years to transpose the directive into national law. Alongside the new Representative Actions Directive implemented last year, the product liability legal landscape is in the process of a great transformation in Europe.
Read the full article on the Faegre Drinker website.
An expert witness is not supposed to pick a desired result and then reverse engineer inputs and methods that reach that result. As the Ninth Circuit observed 30 years ago, “[c]oming to a firm conclusion first and then doing research to support it is the antithesis of [the scientific] method.” Claar v. Burlington Northern R.R. Co., 29 F.3d 499, 502-03 (9th Cir. 1994). A recent opinion from the Southern District of Illinois offers a fine example of an expert with a results-driven approach and a court that called him out on it.
In re Paraquat Products Liability Litigation, 2024 WL 1659687 (S.D. Ill. Apr. 17, 2024), arises from a multidistrict litigation (“MDL”) in which the plaintiffs claim to have developed Parkinson’s disease as a result of exposure to an herbicide, paraquat. Four plaintiffs whose cases had been chosen for the MDL’s first trials offered a statistician (the parties disputed whether he also qualified as an epidemiologist) as their sole expert to establish general causation. He had a difficult task, as no peer-reviewed literature established a link between paraquat exposure and Parkinson’s disease. Indeed, when the court asked the plaintiffs to identify such literature, the plaintiffs could cite only a single opinion article. That article had been shared with another of the plaintiffs’ experts before it was published, leading the court to conclude in deciding a prior discovery dispute that there was reason to investigate “whether counsel for the MDL plaintiffs, their experts, or other third parties may have influenced the contents of the article for the benefit of one side in the MDL.” 2023 WL 8372819 (S.D. Ill. Dec. 4, 2023).
