Product Liability & Mass Torts Class Action Review – 2024

DISCLAIMER The material in this Review is of the nature of general commentary only. It is not meant as or offered as legal advice on any particular issue and should not be considered as such. The views expressed are solely those of the authors. In addition, the authors disclaim any and all liability to any person in respect of anything and of the consequences of anything done wholly or partly in reliance on the contents of this Review. This disclaimer is from the Declaration of Principles jointly adopted by the Committee of the American Bar Association and a Committee of Publishers and Associations.

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

CITATION FORMATS All citations in the Duane Morris Class Action Review are designed to facilitate research. If available, the preferred citation of the opinion included in the West bound volumes is used, such as Baysal, et al. v. Midvale Indemnity Co., 78 F.4th 976 (7th Cir. 2023). If the decision is not available in the preferred format, a Lexis cite from the electronic database is provided, such as Moehrl, et al. v. National Association of Realtors, 2023 U.S. Dist. LEXIS 53299 (N.D. Ill. Mar. 29, 2023). If a ruling is not available in one of these sources, the full case name and docket information is included, such as Yates, et al. v. Traeger Pellet Grills , Case No. 19-CV-723 (D. Utah Sept. 7, 2023). eBOOK HIGHLIGHTS The Duane Morris Class Action Review is available for use on a smartphone, laptop, iPad, or any personal electronic reader by using any eBook reader application. eBook reading allows users to quickly scroll, highlight important information, link directly to different sections of the Review, and bookmark pages for quick access at a later time. The eBook is designed for easy navigation and quick access to informative data. The eBook is available by scanning the below QR code:

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

NOTE FROM THE EDITORS The stakes at issue in class action litigation are typically significant and are apt to keep corporate counsel and senior management up at night. A company ’ s market share and corporate reputation are often implicated by a class action and these exposures and risks put immense pressure on corporate decision- makers. The purpose of the Duane Morris Product Liability & Mass Tort Class Action Review is multi-faceted. We hope it will demystify some of the complexities of these types of class action litigation, and keep corporate counsel updated on the ever-evolving nuances of Rule 23 issues. In this respect, we hope this book will provide our clients with an analysis of trends and significant rulings that enable them to make informed decisions in dealing with complex litigation risks. Defense of class actions is a hallmark of the litigation practice at Duane Morris. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with class action litigation.

Sincerely,

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Duane Morris Product Liability And Mass Torts Class Action Review – 2024

CONTRIBUTORS

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

GLOSSARY AND KEY U.S. SUPREME COURT DECISIONS Adequacy Of Representation – Plaintiffs must show adequacy of representation per Rule 23(a)(4) to secure class certification. It requires representative plaintiffs and their counsel to be capable of fairly and adequately protecting the interests of the class. Amchem Products, Inc. v. Windsor, et al. , 521 U.S. 591 (1997) – Windsor is the U.S. Supreme Court decision that elucidated the requirements in Rule 23(b), insofar as common questions must predominate over any questions affecting only individual class members and class resolution must be superior to other methods for the adjudication of the claims. Ascertainability – Although not an explicit requirement of Rule 23, some courts hold that the members of a proposed class must by ascertainable by objective criteria. Comcast Corp. v. Behrend, et al. , 569 U.S. 27 (2013) – Comcast is the U.S. Supreme Court decision that interpreted Rule 23(b)(3) to require that, for questions of law or fact common to the class, the plaintiffs’ damages model must show damages are capable of resolution on a class-wide basis. Commonality – Plaintiffs must show commonality per Rule 23(a)(2) to secure class certification. This requires that common questions of law and fact exist as to the proposed class members. Class – A group of individuals that has suffered a similar loss or alleged illegal experience on whose behalf one or more representatives seek to bring suit. Class Action – The civil action brought by one or more plaintiffs in which they seek to sue on behalf of themselves and others not named in the suit but alleged to have suffered the same or similar harm. Class Certification – The judicial process in which a court reviews the submissions of the parties to determine whether the plaintiffs have met their burden of showing that class treatment is the most appropriate form of adjudication. In federal courts, the process is governed by Rule 23 of the Federal Rules of Civil Procedure. Cy Pres Fund – In class action settlement agreements, this is the money set aside for distribution to a § 501(c) organization when class members do not return a settlement claim form and money is left over after distribution to the class. Epic Systems Inc. v. Lewis, et al. , 138 S. Ct. 1612 (2018) – Epic Systems is the U.S. Supreme Court decision holding that arbitration agreements requiring individual arbitration and waiving a litigant ’ s right to bring or participate in class actions are enforceable under the Federal Arbitration Act. Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class members are bound by the court ’ s judgment unless they opt-out after receiving notice of the lawsuit. Numerosity – Plaintiffs must show that their proposed class is sufficiently numerous that adding each class member to the complaint would be impractical. This is a requirement for class certification imposed by Rule 23(a)(1). Ortiz, et al. v. Fibreboard Corp., 527 U.S. 815 (1999) – Ortiz is the U.S. Supreme Court ruling that interpreted Rule 23(b)(3) to require personal notice and an opportunity to opt-out of a class action where money damages are sought in a class action.

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, the plaintiffs must show that common questions predominate over any questions affecting individual members. Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions in federal courts and requires that a party seeking class certification meet four requirements of section (a) and one of three requirements under section (b) of the rule. Rule 23(a) – It prescribes that a class meet four requirements for purposes of class certification, including numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) – To secure class certification, a class must meet one of three requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and if prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members or adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied and questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Superiority – The Rule 23(b)(3) requirement that a class action can be permitted only if class resolution is the superior method of adjudicating the claims. Typicality – The plaintiffs’ claims and defenses must be typical to those of proposed class members’ claims. This is required by Rule 23(a)(3). Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) – Wal-Mart is the U.S. Supreme Court ruling that tightened the commonality requirement of Rule 23(a)(2) and held that judges must conduct a “rigorous analysis” to determine whether there is a “common” contention central to the validity of the claims that is “capable of class-wide resolution.”

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

TABLE OF CONTENTS

Page Product Liability & Mass Tort Class Actions ............................................................... 1 I. Executive Summary .............................................................................. 1 II. Opioid Litigation.................................................................................... 2 III. PFAS Litigation ..................................................................................... 4 IV. Key Rulings On Products Liability Class Certification Motions ....... 6 1. Rulings Granting Class Certification Rulings..................................... 6 2. Rulings Denying Class Certification Motions..................................... 8 3. Rulings Denying Decertification Motion ........................................... 10 4. Rulings On Class Action Motions At The Pleading Stage............... 10 5. Motions To Strike Class Allegations ................................................. 13 V. Mass Torts And Multidistrict Litigation ............................................. 14 1. Rulings On Mass Tort Motions At The Pleading Stage.................... 15 2. Mass Tort Rulings Regarding Common Benefit Funds ................... 17 VI. Top Products Liability And Mass Tort Class Action Settlements In 2023 ................................................................................................. 17 Table Of 2023 Products Liability And Mass Tort Class Action Litigation Rulings . 20

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Duane Morris Product Liability And Mass Torts Class Action Review – 2024

Product Liability & Mass Tort Class Actions I. Executive Summary

As a general matter, product liability litigation can be divided into two categories, including claims that a product causes an injury, and claims that the label or advertising of a product is inaccurate or misleading. The first category usually is best suited to mass tort actions, and the second category often leads to class actions. Both class actions and mass torts (often brought in what is known as a multi-district litigation (MDL) are procedural tools used to manage and resolve mass tort or complex litigation cases involving multiple plaintiffs. While both mechanisms are designed to streamline the legal process, they differ in key aspects. In a class action, a single representative plaintiff (or a few) sues on behalf of a class of individuals who have similar claims against a defendant. The members of the class are typically numerous, but their claims are often similar, such as product liability or consumer fraud cases. The MDL proceeding is not a lawsuit itself but a procedural tool to centralize and manage pretrial proceedings when multiple similar cases are filed in different federal courts across the country. It involves the consolidation of cases with shared factual or legal issues. Another key difference is that for MDL proceedings, each individual case maintains its identity and representative plaintiffs do not represent a single consolidated class. Instead, it serves as a coordination of pretrial matters, such as discovery and motions, while cases are still separate. For these reasons, MDL proceedings are not required to go through the class certification process because each individual case maintains is own autonomy as the goal is to streamline pretrial issues related to discovery, for example, and not to create a unified class. With regard to settlement, in a class action the settlement is usually made on behalf of the entire class, whereas with MDL proceedings, each case may be required to undergo individual settlements, although, most times an MDL settlement arises from a common benefit fund. Mass tort actions often cannot satisfy the requirements of Rule 23, or similar state procedural laws, because the claim of injury involves individualized issues and plaintiff-specific circumstances, requiring individual proof of injury. For example, a mass tort claim may allege that ingestion of medication caused the plaintiffs to develop various types of cancer. The individual claims of different types of cancer, based upon plaintiffs’ unique social and medical histories, can be used to argue against class certification. However, while product injury cases are highly susceptible to opposition to class certification because of the individualized nature of the injury, such lawsuits can lend themselves to multi-district litigation and other coordinated proceedings that involve the same product, a similar set of operative facts, and the same defendants. Claims regarding labeling, however, often involve the exact same label across a broad range of individuals, and the injury claimed is often identical. Labeling-related cases may involve claims of consumer fraud, but injuries resulting from failing to disclose certain ingredients in the product for which that specific ingredient led to an injury may result in a successful certification motion. However, these types of class actions are of course highly dependent on the nature of the injury insofar as each individual still possesses a unique medical history which involves differing level of susceptibility to certain injuries and different levels of use to name a few differences across the class.

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

In 2023, plaintiffs were highly successful in obtaining class certification in products liability and mass tort actions. The certification rate was 69% with 9 motions for class certification granted and 31% or 4 motions denied. II. Opioid Litigation One example of extensive, high-stakes lawsuits in this space is the nationwide opioid litigation, which was consolidated into MDL No. 2804 in 2017 in the U.S. District Court for the Norther District of Ohio. Other similar MDL proceedings involve prescription medication, over-the-counter medication, and allegedly defective products. These lawsuits stemmed from the national public health crises created by the vast use and addiction to opiates. The manufacturers are accused of hiding or otherwise not being as forthright about the addictive properties of opiates, and were battling claims alleging public nuisance, negligence, and violations of the various states’ consumer protection laws. The Centers for Disease Control (CDC) reported around 110,000 opioid-related drug overdoses in 2022. The opioid litigation has seen over 3,000 lawsuits brought by governmental entities and private

individuals. The first opiate related lawsuits began in 2014 and were brought by Santa Clara and Orange County. Other states and private individuals soon followed, bringing claims of public nuisance, negligence, and violations of the various states’ consumer protection laws. Since the initial onset of litigation, settlements have reached in the billions of dollars, and some of those proceeds were paid directly by the individuals who owned the pharmaceutical companies that manufactured opiates. The class actions in this regard have targeted a myriad of defendants. Purdue Pharma and Johnson & Johnson, the manufacturers, have been accused of hiding the addiction risk. Distributors like McKesson, Cardinal Health, and AmerisourceBergen have faced allegations of failing take action with respect to suspicious opiate orders. Drug stores such as CVS, Walgreens, and Walmart were also named as defendants. CVS, Walgreens, and Walmart In late 2022, CVS, Walgreens, and Walmart agreed to settlements with state, local, and tribal governments. The pharmacies were accused of withholding data from pharmacists, preventing the safe prescription of opioids, and failing to investigate the over-prescription of opioids. The three pharmacies agreed to pay up to $13.8 billion dollars to settle claims under state and local lawsuits, and the settlements were finalized this past year. In addition to the monetary damages, the companies are required to implement changes in how they handle opioids, including requirements addressing their compliance structures, pharmacist judgment, diversion prevention, suspicious order monitoring, and reporting on red-flag processes, including the investigation of problematic prescribers.

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

However, these settlements do not cover all of the claims currently pending against the three pharmacies. In the proceeding captioned In Re National Prescription Opiate Litigation , No. 22-3750 (6th Cir.) the Sixth Circuit is considering whether enforce a $650 million dollar judgement against the pharmacies for fueling the opioid epidemic in two Ohio counties – Trumbull and Lake counties. The Sixth Circuit has asked Ohio ’ s Supreme Court to weigh in, and determine whether state law permits the public-nuisance claim, a type of claim that is generally asserted to address public problems such as chemical spills. Opioid litigation has led state and local governments to use public nuisance claims to address social issues. Specifically, this case alleges that the companies’ marketing and distribution of opioids constituted a public nuisance. Trumbull County alleges that between 2000 and 2014, the pharmacies distributed 68 million doses of opioids, or the equivalent of 320 pills for every resident. Rite Aid In October 2023, Rite Aid, one of the largest pharmacy chains in the United States, filed for bankruptcy as a result of opioid litigation. Rite Aid is currently billions of dollars in debt and facing over one thousand federal, state, and local lawsuits for opioid mishandling. For example, on March 13, 2023, the United States intervened in a whistleblower lawsuit against Rite Aid, alleging that the pharmacy violated the Controlled Substances Act (CSA) and that “from May 2014 through June 2019, Rite Aid knowingly filled at least hundreds of thousands of unlawful prescriptions for controlled substances that lacked a legitimate medical purpose, were not for a medically accepted indication, or were not issued in the usual course of professional practice.” Id. at 2. The case is captioned United States ex rel. White, et al. v. Rite Aid Corp., Case No. 21-CV-1239 (N.D. Ohio). The original whistleblower lawsuit was filed by three former Rite Aid employees under the qui tam provisions of the False Claims Act (FCA). Unlike many of its competitors, Rite Aid has not worked out a settlement for the pending cases. Rite Aid is the first pharmacy chain to file for Chapter 11 bankruptcy as a consequence of the opioid litigation, and has already closed about 200 store locations, some of which are the only pharmacy available in certain communities. Purdue Pharma In 2019, Purdue Pharma filed for bankruptcy, leading to a proposed settlement plan to resolve the litigation and provide funding for addiction treatment and prevention. However, not all states and localities agreed to the settlement, leading to ongoing negotiations and disputes. In March 2022, the company reached a $6 billion settlement with 48 states. A recent, noteworthy proceeding from this litigation came from the very top. To prevent additional lawsuits, in 2019, Purdue Pharma filed for bankruptcy and proposed a plan that would make the company a non- profit and shield the Sackler family (the owners of the holding company) from further liability. Under the settlement, the Sacklers would receive immunity in exchange for contributing up to $4.5 billion of the $6 billion settlement for lawsuits filed by states, hospitals, people who had become addicted and others who have sued the company over misleading marketing of the powerful painkiller OxyContin. On August 10, 2023, the U.S. Supreme Court agreed to hear a challenge by President Joe Biden ’ s administration regarding the legality of the bankruptcy settlement. U.S. Solicitor General Elizabeth Prelogar noted that if the bankruptcy plan was allowed to move forward, it would leave in place a roadmap for wealthy corporations and individuals to misuse the bankruptcy system to avoid mass tort liability. The U.S. Supreme Court justices paused bankruptcy proceedings concerning Purdue and its affiliates and indicated they would hold oral arguments as to the challenges.

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

Kroger In another recent settlement, on September 8, 2023, Kroger agreed to pay up to $1.4 billion to settle lawsuits related under a multistate settlement agreement. Kroger, a Cincinnati-based grocery chain, was accused of inadequately monitoring opioid prescriptions in its pharmacies, failing to investigate overprescribing, and withholding data from pharmacists that could help them safely distribute opioids. Under the terms of the settlement agreement, up to $1.2 billion will go to U.S. states, counties, and municipalities and $36 million will go to Native American tribes affected by the opioid crisis. Kroger did not admit to wrongdoing in agreeing to the deal. Opioid manufactures and distributers are not the only targets of opioid litigation. Indivior On June 2, 2023, Indivior agreed to pay $102.5 million to settle claims brought by 41 states and the District of Columbia. Indivior is a pharmaceutical company and maker of the opioid addiction treatment drug, Suboxone, which helps individuals with opioid dependence reduce cravings and withdrawal symptoms. The lawsuit alleged that Invidior illegally suppressed competition for the drug. States that sued the company asserted that Indivior illegally extended the time before generics for Suboxone could enter the market, delaying the approval of the lower-cost treatment from 2009 until 2013. A coalition of state attorneys’ general sued the company and accused Indivior of having schemed to block generic competitors from the market after the patented-protected period, which thereby artificially elevated the drug ’ s costs to consumers. McKinsey & Co. On September 26, 2023, consulting firm McKinsey & Co agreed to pay $230 million to resolve lawsuits by hundreds of U.S. local governments and school districts alleging it helped facilitate the opioid addition epidemic through its work for Purdue Pharma and other drug companies. One lawsuit alleges that McKinsey encouraged Purdue to increase sales calls to doctors who over-prescribed OxyContin and to further persuade those doctors to continue to write high-dose prescriptions. The settlement is on top of $641.5 million that McKinsey already paid to resolve claims by state attorneys’ general in 2021. III. PFAS Litigation Another recent hotbed of litigation involves PFAS (per- and polyfluoroalkyl substances). These chemicals are commonly known as “forever chemicals” due to the time it takes for them to break down. PFAS are widely used and found in many products. They can be found in water supplies, fish, and soil locations across the globe, and based on some scientific studies, PFAS may be linked to harmful health effects in humans.

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

Numbering in the thousands, PFAS are found in consumer, commercial and industrial products, and due to their presence in so many products, it is challenging to assess the health impact of PFAS. In recent years, the EPA has issued a number of guidelines around PFAS in drinking water, and shown commitment to better understanding ways to detect PFAS and the amount of human exposure. Moreover, the U.S. Environmental Protection Agency has undertaken efforts to understand how to more efficiently remediate, manage, and dispose of PFAS present in drinking water supplies.

New regulations regarding products containing PFAS were enacted in four states in 2023, including California, Maine, Vermont, and Washington. Another six states have enacted PFAS regulations that go into effect in 2024 and 2025, including Colorado, Maryland, Connecticut, Minnesota, Hawaii, and New York. The above graphic outlines these regulations. The discovery of PFAS in drinking water has spurred states attorneys’ general to bring lawsuits on behalf of the constituents. These lawsuits seek to impose liability on the PFAS manufacturers related to drinking water contamination, and assert claims under various products liability laws and negligence. Recently, the Sixth Circuit heard oral argument in the class action entitled Hardwick, et al. v. 3M Co., Case No. 22-03765 (6th Cir. Oct. 19, 2023), where the defendants challenged the district court ’ s granting class certification for what is described as one of the largest products liability class actions in history. The class could encompass almost 12 million Ohio residents. The district court certified a class of Ohio residents with at least 0.05 parts per trillion of one PFAS in their blood serum. On appeal, the defendants advanced arguments regarding threshold issues as well as arguments related to Rule 23 of the Federal Rules of Civil Procedure. First, they argued the named plaintiff does not actually have an injury, and the plaintiff ’ s theory of fear of living with PFAS in the blood does not qualify as an injury-in-fact in the standing analysis. Additionally, defendants argued that none of the PFAS in Hardwick ’ s blood are traceable to them. Finally, the defendants asserted that the plaintiff ’ s desired remedy for injunctive relief cannot provide redress for Hardwick ’ s claimed injury insofar as he claims unwanted PFAS in his blood stream. With respect to Rule 23 arguments, the defendants argued that the class is not cohesive under Rule 23(b)(2) due to a heightened cohesion requirement. Additionally, the defendants contended that the class fails the commonality requirement prescribed by Rule 23(a) because a host of individual issues – including number of exposures, background statistics, medical history, lifestyle choices, and genetics – play a significant role in assessing damages. Further, defendants asserted that Hardwick ’ s request that the defendants fund a science panel to study the effects of PFAS and for medical monitoring are not a viable injunctive remedies, nor is enough detail provided for the science panel in terms of PFAS research. Finally, the defendants argued the class definition is too vague and whether an individual is subject to Ohio law is an individualized inquiry. The plaintiffs countered in their arguments that having at least one PFAS in his blood qualifies as an injury, and the PFAS are traceable to the defendants because they manufactured them. With regard to redressability, the plaintiff argued that ordering medical monitoring with an accompanying science panel suffices to investigate and determine potential injuries that could result from the presence of PFAS in the blood. The plaintiff attacked the standing argument as premature on the basis that no evidence of standing

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

is necessary at the class certification stage and all that is necessary is to examine the four corners of the complaint. The plaintiff also attempted to counter the Rule 23 arguments by simplifying them. Essentially, the plaintiff argued that Rule 23(b)(2) does not have a cohesion requirement and the common question to the class is basically whether the defendants created the PFAS, which is the same threshold issue for each class member. Countering the damages argument, the plaintiff contended it was a request for injunctive relief because no payments for medical treatment were sought. Finally, the plaintiff argued that the class definition was specific enough to ascertain the membership of the entire class. The Sixth Circuit issued its ruling on November 27, 2023 in Hardwick, et al. v. 3M Co., 2023 U.S. App. LEXIS 31297 (6th Cir. Nov. 27, 2023). The Sixth Circuit reversed and remanded the district court ’ s ruling. The plaintiffs’ proposed class contained nearly every person in the United States as a possible class member due to exposure to PFAS. The district court granted class certification to the class, but limited the class to residents of the state of Ohio. The defendants argued that the plaintiff lacked standing to bring claims against all defendants, most notably because he could not assert that he was actually injured by the trace amounts of PFAS in his blood, nor could he establish which defendants actually manufactured the products that contained PFAS which allegedly related to his specific injury. The Sixth Circuit agreed with the defendants that the plaintiff ’ s claims were conclusory and confusing. The Sixth Circuit explained that the plaintiff ’ s complaint was that his bloodstream contained trace quantities of five chemicals, which were part of a family of thousands of chemicals whose usage is nearly ubiquitous in modern life. Id. at *3. The Sixth Circuit reasoned that the plaintiff was not aware of which companies manufactured the particular chemicals in his bloodstream, whether those chemicals would ever make him sick, and he did not have any reported sickness or illness at the present time. The Sixth Circuit also determined that the plaintiff ’ s treatment of the defendants as a singular collective entity could not establish traceability of any injury to any one defendant. Further the Sixth Circuit explained that plaintiff ’ s allegations that the defendants manufactured or otherwise distributed “PFAS,” was patently insufficient to support a plausible inference that any of them bear responsibility for the particular PFAS in the plaintiff ’ s blood. Id. at *10. For these reasons, the Sixth Circuit found that the district court erred in granting class certification, and remanded the action to the district court. IV. Key Rulings On Products Liability Class Certification Motions 1. Rulings Granting Class Certification Rulings The plaintiffs in the litigation captioned In Re Delta Airlines Inc., Case No. 20-CV-786 (C.D. Cal. Feb. 8, 2023), were a group of homeowners who filed a class action alleging that the defendant, Delta Airlines, caused damage to their properties when a jet released over 15,000 gallons of fuel over their homes after an engine failure in 2020. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court granted the motion in part. The plaintiffs sought certification of their claims for trespass and nuisance. The court granted the motion with respect to the trespass claims and denied it as to the nuisance claims. It found that the plaintiffs failed to establish a common method to determine liability. As to the trespass claim, the court held that the common question of whether the jet dumped fuel on the properties and whether the fuel release was reckless would generate common answers as to all class members. The court also found that the common issue of whether the jet fuel trespassed on the plaintiffs’ properties predominated over any individual issues. Accordingly, the court granted the plaintiffs’ motion for class certification of the trespass claims, and denied the motion as to the nuisance claims. The court in the case entitled In Re Nissan North America Inc. Litigation, 2023 U.S. Dist. LEXIS 56425 (M.D. Tenn. Feb. 1, 2023), also granted class certification. The plaintiffs, a group of car purchasers, filed a class action alleging that the Automatic Emergency Braking System (AEB System) in Nissan vehicles was defective and caused unintended brake activation when there are no hazards in the vehicle ’ s path, which the plaintiffs referred to as the “SUBA defect.” Id. at *8. The plaintiffs argued that the defect was from the Continental ARS410 sensor used in the vehicles, which erroneously detected obstacles and triggered

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

braking, thereby leading to accidents. The plaintiffs further contended that Nissan was aware of the defect but failed to address it or inform consumers about the alleged defect. The plaintiffs filed a motion for class certification, and the court granted in part the motion. The plaintiffs sought certification of a class of current and former owners or lessees of affected Nissan vehicles. The court found that class certification requirements under Rule 23(a) were met, including numerosity, commonality, typicality, and adequacy of representation. The court, however, determined that Rule 23(b)(2) certification for injunctive relief would not be appropriate due to individualized monetary damages, lack of standing for past purchasers, and ineffectiveness of proposed injunctive relief. The court granted the motion as to the plaintiffs’ various state- specific claims including implied warranty, breach of express warranty, unjust enrichment, and fraudulent omission/concealment. The defendants argued that certification was inappropriate because the claims necessarily involved a focused look at each individual transaction to determine whether that specific transaction resulted in violation. The court found the argument unavailing because the pattern of each transaction was the same: i.e., the plaintiff purchased or leased a class vehicle from Nissan or an authorized dealer and each plaintiff received the same warranty. The court determined that these transactions were not so unique that individual questions would predominate over common issues. Id. at *30. Finally, the court considered the class definition and found that the class definition was both definite and relied upon objective criteria to determine membership, such that members of the class could be determined through purchase and leasing records maintained by the defendants. For these reasons, the court granted class certification of the state-specific claims and denied the motion as to the plaintiffs’ claims for injunctive relief. In one of the most significant product liability class certification rulings over the past year - Speerly, et al. v. General Motors, LLC, 343 F.R.D. 493 (E.D. Mich. 2023) - the plaintiffs filed several class actions alleging defective “shudder and shift” problems in the defendant ’ s 8L45 and 8L90 8-speed automatic transmissions used in cars sold between the 2015 and 2019 model years. Id. at 499. The plaintiffs alleged that the automatic transmissions in their vehicles occasionally will “slip, buck, kick, jerk and harshly engage,” which caused the vehicles to perform erratically and become unsafe to drive. Id. at 500. The plaintiffs filed several claims on behalf of putative classes, including the owners of thousands of vehicles that alleged their vehicles had defective transmissions, and the defendant refused to fix or replace them under its express warranty. The plaintiffs filed motions to certify 26 different state-wide classes, and the court granted the motions. The court found that the class clearly met the numerosity requirement, as there were more than 800,000 class vehicles. The court found that the commonality requirement was also met because all the plaintiffs alleged some type of warranty and consumer fraud claims. The court stated that even if the plaintiffs alleged a variety of different legal theories under 26 different state laws, they all related to claims of warranty and consumer fraud, and the proof of vehicle defect would be the same for all the claims. The court also reasoned that the vehicles were all covered by the same warranty, and thus, whether the transmissions were covered by the warranty would be a question common to all class members. The defendant argued that the plaintiffs’ damages plan to calculate damages on an average basis would be an individual determination for each class member such that class treatment would not be appropriate. However, the court concluded that the calculations need not be exact at the class certification stage, as long as the model to calculate the damages was consistent in establishing liability. The court thereby found that common issued predominated and that a class action would be the superior method of adjudication. Accordingly, the court granted the plaintiffs’ motion for class certification. The plaintiffs in a multidistrict litigation proceeding entitled In Re Takata Airbag Products Liability Litigation, 2023 U.S. Dist. LEXIS 135467 (S.D. Fla. June 20, 2023), alleged economic loss and personal injury linked to airbags manufactured by Takata Corp. and TK Holdings (“Takata”) and installed in vehicles, including those sold by FCA. The plaintiffs alleged that the FCA ’ s vehicles were equipped with Takata airbags containing the chemical ammonium nitrate, which created a small explosion to inflate the airbags during a crash.” Id. at *121. The plaintiffs contended that when exposed to high heat and humidity, the explosion is forceful and can cause significant injuries and even death (which they characterized as the Inflator Defect). The plaintiffs filed a motion for class certification of common law fraud claims in multiple states. The court

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

granted the motion. The court found that common issues predominated, and rejected FCA ’ s argument that individualized issues based on the defendants’ actual knowledge about the defect changed during the class period. The court determined that the plaintiffs sufficiently demonstrated that FCA knew the dangers of using ammonium nitrate for years prior to issuing a recall for the airbags. The court concluded that FCA ’ s alleged conduct was uniform with respect to all class members in that it never disclosed the Inflator Defect to consumers prior to the sale of the vehicles. Id. at *144-45. The court also determine the alleged conduct was material because a reasonable factfinder could infer that if consumers knew their vehicles contained defective airbags, they would not have made the purchase, or they would have paid less for their vehicles. Finally, the court found that a class action would be the superior method of adjudication because the fundamental elements of fraud are substantially similar from state to state, and the Inflator Defect was uniform across the vehicles. For these reasons, the court granted the plaintiffs’ motion for class certification. 2. Rulings Denying Class Certification Motions In the one appellate ruling on class certification in a products liability class action in 2023, the Sixth Circuit vacated the district court ’ s ruling granting class certification in Weidman, et al. v. Ford Motor Co., 2023 U.S. App. LEXIS 30548 (6th Cir. Nov. 16, 2023). The plaintiffs alleged that the defendant ’ s had a design defect in their F-150 pickup trucks from model years 2013 through 2018. The plaintiffs claimed that defective brake master cylinders, manufactured by Hitachi and installed by Ford, resulted in a brake system defect, which affected the trucks’ performance. The district court had certified state-wide classes to address three specific issues related to the alleged defect, including whether the trucks’ brake systems were defective, whether Ford had pre-sale knowledge of the defect, and whether concealed information about the defect would be material to a reasonable buyer. On appeal, the Sixth Circuit determined that the district court did not sufficiently analyze whether the commonality requirement was met and did not address Ford ’ s arguments regarding changes made by Hitachi to the brake cylinders. The Sixth Circuit indicated that the district court should have considered whether the changes made by Hitachi affected each theory. The Sixth Circuit also noted that the district court failed to thoroughly analyze Ford ’ s evidence regarding Ford ’ s knowledge of any defect and the materiality of that defect. The Sixth Circuit reasoned that the district court should have analyzed Ford ’ s evidence as to each alleged design defect. Accordingly, the Sixth Circuit vacated the district court ’ s ruling granting class certification. In Arnhold, et al. v. United States, 166 Fed. Cl. 499 (Fed. Cl. 2023), the plaintiffs, a group of property owners near Outlying Field Coupeville (OLF), filed a class action based on mass tort theories alleging that the U.S. Navy ’ s increased flight operations, particularly involving EA-18G Growler fighter jets, have constituted a taking of their property in violation of the Fifth Amendment. The plaintiffs filed a motion for class certification, and the court denied the motion. The OLF was used for Navy pilot training since 1943, including touch-and-go landings simulating aircraft carrier landings. In recent years, the Navy increased its operations, which the plaintiffs alleged was an unconstitutional taking of their properties. The court first determined that the plaintiffs met the numerosity requirement with an estimated class size of more than 2,600 residents in the affected area. The court found that there were common issues, such as whether the Navy increased flight operations, which could be resolved on a class-wide basis. However, the court opined that issues related to whether a taking occurred and the extent of damages were too individualized to be resolved as a class. The court also found that the claims of the proposed class representatives were not typical of those class members who asserted a takings claim based solely on noise, as the properties of the class representatives were directly below the flight path. The court also determined that managing the case as a class action would not be the fairest and most efficient method because individualized liability determinations were required such that the predominance requirement was not met. Therefore, the court concluded that a class action would not achieve economies of time, effort, and expense. For these reasons, the court denied the plaintiffs’ motion for class certification. In Barnes, et al. v. Dresser, LLC, 2023 U.S. Dist. LEXIS 135552 (W.D. La. Aug. 3, 2023), the plaintiffs in

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

two class actions alleged that the defendant ’ s pipe valve manufacturing facility improperly disposed of solvents, cutting oils, acids, and caustics, thereby contaminating the groundwater and soil in the surrounding area. The plaintiffs contended that the contamination migrated onto their nearby properties, causing both property damage and either present or potential future personal injury due to their exposure to the toxins. The plaintiffs filed motions for class certification, and the court denied the motions. The court ruled that issues related to liability, such as negligence, strict liability, trespass, nuisance, and punitive damages, would not predominate because many of the plaintiffs had asserted personal injury claims with complex, fact-intensive questions of damages and causation. The court opined that the individual and unique nature of the personal injury claims would make it difficult to establish that common issues predominated. The court also reasoned that many plaintiffs asserted personal injury claims arising from the Facility ’ s alleged contaminant dispersion and ground water contamination, and the proposed class definition excluded these claims. Accordingly, the court opined that, given the presence and prevalence of these non-property claims, liability issues relating to four discrete property-related torts did not predominate. The court also determined that the damages sought would not be susceptible to a class-wide assessment, and their availability would instead depend upon individualized, plaintiff-specific proof as to each element of the claimed damages. Id. at *16. The court found that a class action would not be the superior method of adjudication because it would ignore the non-property claims and thus address only a fraction of the total claims pending against the defendants. The court concluded that it could not certify a class that would exclude numerous theories of liability arising from the same allegedly unlawful conduct and leave nearly all of the complex questions for individual adjudication. For these reasons, the court denied the plaintiffs’ motions for class certification. The court found that the plaintiffs failed to meet the numerosity requirement of class certification in a mass tort lawsuit entitled Macias, et al. v. BNSF Railway, 2023 U.S. Dist. LEXIS 83418 (D. Kan. May 11, 2023). The plaintiffs filed a class action alleging trespass, negligence, and nuisance claims in connection with water damage to their homes caused by local flooding during a series of significant storms. The plaintiffs filed a motion for class certification, which the court denied. The court noted that the plaintiffs’ proposed class definition was overbroad because it included individuals who were not harmed by the alleged conduct, as only some of the proposed class area was affected by the flooding. Additionally, the court determined that even if the class was narrowed to include only those who were in the affected area during the floods, it still failed to meet the numerosity requirement. The court opined that the plaintiffs had not shown that joinder of the individual claims would be impracticable, and failed to provide sufficient evidence to establish the size of the proposed class or to demonstrate why joinder would be difficult or inconvenient. The court also disagreed with the plaintiffs’ argument that joinder would be impossible because there may be future unknown plaintiffs. The court reasoned that the plaintiffs had not alleged an ongoing practice by the defendant that would lead to a stream of unknown plaintiffs. For these reasons, the court denied the plaintiffs’ motion for class certification because that the class definition was overbroad and the plaintiffs failed to meet the numerosity requirement. Finally, the court likewise denied class certification due to the individualized damages that would be available to the plaintiffs in Bryant, et al. v. Intercontinental Terminals Co. LLC, 2023 U.S. Dist. LEXIS 106951 (S.D. Tex. June 21, 2023). The plaintiffs filed a class action against the defendants, Intercontinental Terminals Co., LLC (ITC) and NSK Corp. alleging trespass, negligence, nuisance, manufacturing defect and products liability in connection with injuries suffered from a fire at the ITC Deer Park, Texas facility. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court denied the motion. The plaintiffs sought to certify a class consisting of the individuals residing in, and the businesses, governmental entities and schools located in, an area that they alleged received a ground- level concentration of particles at a rate of one gram per square meter. The court determined that common issues of law and fact did not predominate over individual issues. The plaintiffs argue that a class action would be the best way to address their claims because common questions would outweigh individualized inquiries. The plaintiffs also contended that a bifurcated trial with separate phases for liability and damages would eliminate any individualized damages. The defendants asserted that individual differences among class members would require separate trials for each, thereby making a class action not the superior

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

method of adjudicating the class members’ claims. The court concluded that the plaintiffs failed to show that common questions predominated over individual ones, especially regarding causation and damages. The court also highlighted the complexity of proving causation as it was highly complicated and would require individualized inquiries on a person-by-person, property-by-property, and business-by-business basis across a class consisting of approximately 190,000 persons and between 2,500 and 3,500 businesses. For these reasons, the court denied the plaintiffs’ motion for class certification. 3. Rulings Denying Decertification Motion Motions for decertification of a certified class are rare in products liability and mass tort actions. Over the past year, one court ruling – in Siqueiros, et al. v. General Motors LLC, 2023 U.S. Dist. LEXIS 100114 (N.D. Cal. June 8, 2023) – addressed these issues. The plaintiffs filed a class action against the defendant based on their purchase of GM vehicles which they alleged consumed an excessive amount of engine oil. Following a jury trial and a finding in favor of the plaintiffs, the defendant moved for decertification of the classes. In support of decertification, the defendant contended that individual issues predominated such that class treatment of damages was not appropriate; that trying the statute of limitations defenses on a class-wide basis violated Rule 23 and the defendant ’ s due process rights, as individual inquiries related to the timeliness of claims are required; and that the plaintiffs failed to prove Article III standing for all class members, because not every member of the class suffered a legally recognizable injury. The court previously had concluded that there was sufficient evidence for the jury to find a common, class-wide defect in the vehicles, which refuted GM ’ s claims regarding the existence of a defect, commonality of injury, causation, and unmerchantability. The court further opined that the statute of limitations defense did not necessarily preclude class certification, and the court had found that the existence of a statute of limitations issue did not necessarily mean individual issues predominated over common issues of law and fact. Finally, the court ruled that the plaintiffs had Article III standing based on their claims of overpaying for allegedly defective vehicles, which sufficiently alleged an injury-in-fact. For these reasons, the court denied the defendant ’ s motion to decertify the class. 4. Rulings On Class Action Motions At The Pleading Stage Motions to dismiss class actions are rarely successful in general, and the same is true for products liability and mass tort claims. This is in part due to the liberal notice pleading standards offered by the Federal Rules of Civil Procedure. Notice pleading generally requires the complaint to notify the opposing party and the court of the general issues in the case. Fact pleading, on the other hand, and as the name suggests, requires the pleader to include what is sometimes referred to as “hyper-detailed” facts to support each claim. With respect to motions to dismiss products liability class actions at the pleading stage, arguments that plaintiff lacks standing to bring the claims are often the most successful types of arguments. Other types of successful motions include arguments challenging certain claims of strict products liability insofar as the conduct complained of does not rise to that of an “inherently dangerous” activity. A group of parents representing their minor children in Gould, et al. v. Guida-Seibert Dairy Co., 2023 U.S. Dist. LEXIS 29137 (D.N.J. Feb. 21, 2023), filed a class action alleging that the children suffered injuries due to consuming contaminated milk processed by the defendant. The contaminated milk was supplied to schools in the Camden School District as part of a contract between the district and Aramark, which, in turn, contracted with Guida-Seibert for milk. The children manifested physical symptoms such as severe stomach pain, cramping, nausea, vomiting, diarrhea, and flatulence. The children were taken to a local hospital but were eventually discharged, although some continued to experience stomach pain. The plaintiffs filed claims of negligence, violations of the New Jersey Products Liability Act (NJPLA), and Negligent Infliction of Emotional Distress (NIED). The plaintiffs sought class certification of two classes, including a New Jersey Parent Class and the New Jersey Student Class, consisting of parents and legal guardians of students who ingested the contaminated milk and the students themselves. The defendant filed motions to dismiss and strike the class allegations. In response to the motion to dismiss, the court

Duane Morris Product Liability And Mass Torts Class Action Review – 2024

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