Products Liability & Mass Torts Class Action Review – 2025

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.

CITATION FORMATS All citations in the Products Liability & Mass Torts 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 Zivkovic, et al. v. Laura Christy LLC, 94 F.4th 269 (2d Cir. 2024). If the decision is not available in the preferred format, a Lexis or Westlaw cite from the electronic database is provided, such as Deyerler, et al. v. HireVue, Inc., 2024 U.S. Dist. LEXIS 110271 (N.D. Ill. June 18, 2024) or Fayad, et al. v. City Of Philadelphia, 2024 WL 1163543 (E.D. Penn. Mar. 18, 2024). If a ruling is not available in one of these sources, the full case name and docket information is included, such as Combs, et al. v. Insomnia Cookies LLC , Case No. 24-CV-2321 (N.D. Cal. Nov. 19, 2024). E-BOOK HIGHLIGHTS The Products Liability & Mass Torts Class Action Review is available for use on a smartphone, laptop, tablet, or any personal electronic reader by using any e-book reader application. E-book 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 e-book is designed for easy navigation and quick access to informative data. The e-book is available by scanning the below QR code:

Products Liability & Mass Torts Class Action Review – 2025

NOTE FROM THE EDITOR Class action litigation generally involves high stakes that can keep corporate counsel and senior management awake at night. These cases can impact a company’s market share and reputation in a significant manner, creating substantial pressure on decision-makers who must navigate the associated risks and exposures. The Products Liability & Mass Torts Class Action Review serves multiple purposes. It aims to clarify the complexities of class action litigation and provide corporate counsel with up-to-date insights into the evolving nuances of Rule 23 and other types of representative proceedings. Through this publication, we seek to offer an analysis of emerging trends and key rulings, empowering our clients to make informed decisions when managing complex litigation risks. Defending class actions is a cornerstone of Duane Morris’ litigation practice. We hope this book, which reflects the many years of experience and expertise of our class action defense team, will help our clients identify key trends in the case law and offer practical strategies for handling class action litigation. Sincerely,

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Products Liability & Mass Torts Class Action Review – 2025

CONTRIBUTORS

Products Liability & Mass Torts Class Action Review – 2025

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 be 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. Collective Action – A type of representative proceeding governed by 29 U.S.C. § 216(b) where one or more plaintiffs seeks to bring suit on behalf of others who must affirmatively opt-in to join the litigation. It is applicable to claims under the Fair Labor Standards Act, the Age Discrimination in Employment Act, or the Equal Pay Act. 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. Decertification – Following an order granting conditional certification of a collective action or certification of a class action, a defendant can move for decertification based on the grounds that the members of the collective action are not actually similarly-situated or that the requirements of Rule 23 are no longer satisfied for the class action. 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-In Procedures – Under 29 U.S.C. § 216(b), a collective action member must opt-in to join the lawsuit before he or she may assert claims in the lawsuit or be bound by a judgment or settlement. 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

Products Liability & Mass Torts Class Action Review – 2025

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. 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. Similarly-Situated – Under 29 U.S.C. § 216, employees may bring suit on behalf of themselves and others who are similarly-situated. The standard is not clearly defined in the statute and many courts have found that, if plaintiffs make a preliminary showing that they are similarly-situated to those they seek to represent, conditional certification is appropriate. A finding in this regard is usually not based on the merits of the claims. 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.”

Products Liability & Mass Torts Class Action Review – 2025

TABLE OF CONTENTS

Page Overview ........................................................................................................................ 1 I. Opioid Litigation ................................................................................................. 2 II. PFAS Litigation................................................................................................... 2 III. Key Rulings On Products Liability Class Action Rulings ............................... 4 1. Rulings Granting Class Certification Motions ............................................. 5 2. Rulings Denying Class Certification Motions . ............................................ 8 3. Other Rulings On Products Liability Class Actions .................................. 10 IV. Mass Torts And Multidistrict Litigation .......................................................... 13 1. Rulings On Mass Tort Motions At the Pleading Stage .............................. 14 2. Mass Tort Rulings Regarding Common Benefit Funds............................. 16 V. Top Products Liability And Mass Tort Class Action Settlements In 2024 ... 18 Index Of 2024 Products Liability And Mass Torts Class Action Rulings ............... 20

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Products Liability And Mass Tort Class Actions As a general matter, products 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 named plaintiffs) 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 litigate on behalf of 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, and not to create a unified class. Regarding 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 class certification motion. However, these types of class actions are of course highly dependent on the nature of the injury insofar as everyone at issue 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. In 2024, plaintiffs were successful in obtaining class certification in products liability and mass tort actions. The certification rate was 50% with 3 motions for class certification granted and 50% or 3 motions denied.

Products Liability & Mass Torts Class Action Review – 2025

I. 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 Northern District of Ohio. Other similar MDL proceedings involve prescription medication, PFAS chemicals, 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 are battling claims alleging public nuisance, products liability, negligence, and violations of the various states’ consumer protection laws. The Centers for Disease Control (CDC) reported around 95,000 opioid-related drug overdoses from May 2023 to May 2024. 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 Counties in California. Other states and private individuals soon followed, bringing claims of public nuisance, products liability, 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 myriad of defendants. Purdue Pharma and Johnson & Johnson, as manufacturers, have been accused of hiding the addiction risk. Distributors like McKesson, Cardinal Health, and AmerisourceBergen have faced allegations of failing to act with respect to suspicious opiate orders. Drug stores such as CVS, Walgreens, and Walmart were also named as defendants. As of 2024, the settlement payouts from these companies have exceeded $50 billion. However, some settlements are still being contested. In the proceeding captioned In Re National Prescription Opiate Litigation , No. 22-3750 (6th Cir.), the Sixth Circuit is considering whether to 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 asserted to address public problems such as chemical spills. The Ohio Supreme Court heard oral argument on March 26, 2024 in In Re National Prescription Opiate Litigation , Case No. 2023-1155 (Ohio Mar. 26, 2024). The Ohio Supreme Court has yet to issue an answer to the certified question.

Products Liability & Mass Torts Class Action Review – 2025

Opioid litigation has led state and local governments to use public nuisance claims to address social issues. Specifically, In Re National Prescription Opiate Litigation alleges that the companies’ marketing and distribution of opioids constituted a public nuisance. Trumbull County asserts that between 2000 and 2014, the pharmacies distributed 68 million doses of opioids, or the equivalent of 320 pills for every resident. Finally, the U.S. Supreme Court held oral arguments and ruled as to the bankruptcy proceedings concerning Purdue and its affiliates. The case, Harrington, United States Trustee, Region 2 v. Purdue Pharma L.P., 144 S. Ct. 2071 (2024), involved a challenge to Purdue’s Chapter 11 bankruptcy plan and the broad releases of liability it sought for various parties, including the Sackler family, which owned the company. In 2019, Purdue Pharma filed for Chapter 11 bankruptcy protection as part of an effort to address the thousands of lawsuits filed against it by state and local governments, municipalities, and individuals, all related to the opioid epidemic. The lawsuits claimed that Purdue’s aggressive marketing and distribution of OxyContin contributed to widespread opioid addiction and overdose deaths. As part of its bankruptcy proceedings, Purdue proposed a reorganization plan that would involve restructuring the company and creating a public-benefit trust to handle its assets and liabilities. Under the plan, Purdue would pay out billions of dollars to settle opioid-related claims. Additionally, a significant portion of the settlement was earmarked for treatment programs, harm reduction initiatives, and other community-based efforts to address the opioid crisis. One of the most controversial aspects of Purdue’s bankruptcy plan was the proposal to grant a release of liability to the Sackler family, the owners of Purdue. The Sacklers were accused of personally profiting from Purdue’s aggressive marketing strategies that helped fuel the opioid epidemic. However, as part of the bankruptcy settlement, the Sacklers were seeking protection from further litigation, which would shield them from being held personally liable for the company’s role in the opioid crisis. Under the proposed plan, the Sacklers would pay billions of dollars into the settlement trust but would not be held personally accountable for the opioid epidemic, nor could they face any future lawsuits related to their actions at Purdue. Several state attorneys general argued that this provision allowed the Sacklers to avoid full accountability for their role in the crisis. Andrew V. Harrington, the U.S. Trustee for Region 2 (a division of the U.S. Department of Justice responsible for overseeing bankruptcy cases), filed an objection to Purdue’s bankruptcy plan. Harrington argued that the proposed bankruptcy plan was unfair and illegal, particularly the provision that would grant the Sacklers broad legal immunity from further opioid-related lawsuits. Harrington contended that the bankruptcy court lacked the authority to grant the Sacklers a release from personal liability, particularly when they had not filed for bankruptcy themselves and were not technically part of the bankruptcy proceedings. The U.S. Trustee argued that the releases violated established bankruptcy law, which generally does not allow for the release of third parties (such as the Sacklers) from liability unless they are directly involved in the bankruptcy. The objection also focused on the fairness of the bankruptcy plan. The U.S. Trustee argued that the plan unfairly favored the Sacklers over the victims of the opioid epidemic, who would not receive full compensation for their harm under the proposed terms. The objection also argued that the proposed release of the Sacklers and the settlement terms did not adequately reflect the public policy interest in holding corporations and their owners accountable for actions that harm public health and safety. The bankruptcy court initially approved Purdue’s bankruptcy plan, including the releases of liability for the Sacklers. In 2021, the Second Circuit issued a decision to allow Purdue’s bankruptcy plan to proceed with certain modifications. In particular, the Second Circuit upheld the bankruptcy court’s ruling granting releases to the Sackler family, but it did so with some revisions and further scrutiny over how the trust would operate and the amount of money the Sacklers would contribute. The U.S. Supreme Court agreed to hear the case in 2023. After hearing oral argument in early 2024, the Supreme Court ruled in June of this past year that the bankruptcy code does not authorize a release or injunction as part of a Chapter 11 reorganization plan that seeks to discharge claims against a non-debtor, such as the Sacklers, without the consent of the affected claimants. When a debtor files for bankruptcy, it creates an estate that includes nearly all the debtor’s assets. Under Chapter 11, the debtor must propose a reorganization plan to govern the distribution of those assets. This plan is subject to bankruptcy court approval. A confirmed bankruptcy plan can discharge the debtor from certain pre-petition debts, but in this case, the Sacklers did not file for bankruptcy themselves. Despite this, they sought a release that essentially would have discharged them from future claims. The Supreme Court found that there is no provision in the bankruptcy code that allows such a discharge for non-debtors. The Supreme Court stated that § 1123(b) of the Bankruptcy Code outlines the types of provisions that may be included in a Chapter 11 plan. While some provisions apply to the debtor’s responsibilities, a catch-all provision allows for other provisions deemed “appropriate.” Id. at 726. However, the Supreme Court ruled that this catch-all does not authorize a bankruptcy court to discharge the debts of non-

Products Liability & Mass Torts Class Action Review – 2025

debtor parties, such as the Sacklers, without the consent of those affected by the claims. The Supreme Court explained that the broader powers in § 1123(b)(6) must be interpreted in the context of the surrounding provisions, which focus on the debtor’s relationship with creditors. The Supreme Court held that this provision cannot be used to grant a discharge of claims against non-debtors. The Bankruptcy Code generally reserves discharge for debtors who place substantially all of their assets into the bankruptcy estate. Furthermore, the Code does not typically allow the discharge of claims based on fraud or willful injury. The Sacklers, however, had not filed for bankruptcy or placed their assets on the table for creditors, yet they sought a discharge of broad claims, including those for fraud and willful injury. The Supreme Court found that allowing such a discharge would violate the basic principles of bankruptcy law. The Supreme Court also looked to historical practice, noting that bankruptcy laws dating back to the 1800’s typically reserved discharge benefits to debtors who surrendered their property fairly and completely. There was no indication in the 1978 bankruptcy code that it was meant to radically change this tradition, particularly in regard to non-debtor releases. The Supreme Court opined that if Congress had intended to grant courts such broad powers over third-party claims, it would have explicitly stated so. Accordingly, the Supreme Court reversed the Second Circuit’s decision and remanded the case for further proceedings. The Supreme Court’s ruling made clear that bankruptcy courts cannot release claims against third parties like the Sacklers without the affected parties’ consent. II. 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 exist 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. 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 remediate, manage, and dispose of PFAS present in drinking water supplies more efficiently.

Another six states enacted PFAS regulations that went into effect in 2024 and will continue in 2025, including Colorado, Maryland, Connecticut, Minnesota, Hawaii, and New York. The 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.

In April 2024, the EPA finalized a rule setting the first-ever limits for PFAS in drinking water and is already subject to multiple legal challenges. In October of 2024, the White House’s Office of Science and Technology Policy said in a report that it will continue to look for new technologies to remove so-called forever chemicals from the environment and find safe alternatives for the substances. Since 2018, more than 300 lawsuits have been filed over PFAS contamination, with many suits being

Products Liability & Mass Torts Class Action Review – 2025

consolidated in the South Carolina-based MDL focused on pollution involving the chemicals in aqueous film- forming foam used in firefighting applications. On March 29, 2024, the court granted final settlement approval of $10.3 billion in In Re Aqueous Film-Forming Foams Product Liability Litigation , MDL 2873 (D.S.C. Mar. 29, 2024), to resolve claims with 3M by utilities that maintain it is liable for the damage they have and will incur due to its signature PFAS that were used for decades in specialized fire suppressants, called aqueous film-forming foams (AFFF), that were sprayed directly into the environment and reached drinking water. While the plaintiffs’ bar has been filing lawsuits for nearly a decade over alleged health and environmental consequences associated with PFAS, as of late the types of plaintiffs and defendants have evolved in this rapidly expanding landscape. III. Key Rulings On Product Liability Class Certification Motions 1. Rulings Granting Class Certification Motions In 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 495. 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 suits on behalf of putative classes, including the owners of thousands of vehicles that alleged their vehicle have 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 district court found that the class clearly met the numerosity requirement, as there were more than 800,000 class vehicles. It found that the commonality requirement was also met because all the plaintiffs alleged some type of warranty and consumer fraud claims. The district 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 district 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 district 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. For these reasons, the district court thereby found that common issued predominated and that a class action would be the superior method of adjudication. Accordingly, the it granted the plaintiffs’ motion for class certification. On appeal, the Sixth Circuit affirmed the district court’s ruling in Speerly, et al. v. General Motors, LLC , 115 F.4th 680 (6th 2024). The Sixth Circuit found no reason to reverse the district court's decision to certify the class. The defendant had argued that most of the class members had never experienced the transmission issues, and therefore lacked standing as they were not injured by the claims. The Sixth Circuit rejected the defendant’s argument. It reasoned that the plaintiffs’ claim of having overpaid for defective vehicles was enough to establish standing. The Sixth Circuit also ruled that the district court did not abuse its discretion in certifying the class, even though certain states required that plaintiffs have actually experienced the defect in order to bring a claim. The Sixth Circuit noted that if the plaintiffs could prove a universal defect affecting vehicle safety, they could satisfy the state-specific requirements. The Sixth Circuit further suggested that the class could be split into sub-groups if necessary later in the case. The Sixth Circuit concluded that any legal variations would be unlikely to hinder the case at this stage and can be addressed later if necessary. The Sixth Circuit agreed with the district court’s conclusion that individualized issues did not outweigh common questions and affirmed the ruling granting the plaintiffs’ motion for class certification. On December 19, 2024, the Sixth Circuit agreed to rehear the case en banc in Speerly v. GM, LLC, 2024 U.S. App. LEXIS 32179 (6th Cir. Dec. 19, 2024). The Sixth Circuit agreed to revisit the case after the defendant requested a rehearing, arguing that the Sixth Circuit’s decision conflicted with precedent by deferring the determination of class-wide issues like commonality and predominance to a later stage of litigation.

Products Liability & Mass Torts Class Action Review – 2025

The plaintiffs in Behar, et al. v. Northrop Grumman Corp ., 2024 U.S. Dist. LEXIS 157399 (C.D. Cal. July 1, 2024), filed an action against Northrop Grumman Corp. and Northrop Grumman Systems Corp., the current owners of Litton Systems, Inc., alleging that Litton’s manufacturing facility in Canoga Park used toxic chlorinated solvents like trichloroethene (TCE) and tetrachloroethene (PCE). These substances have since spread into the groundwater, soil, and soil vapor, creating a toxic plume approximately 2.4 miles long and 1.8 miles wide. The plaintiffs filed a motion for class certification, and the court granted the motion. The defendants filed several motions to exclude testimony from the plaintiffs’ expert witnesses. The plaintiffs lived directly above the contaminated plume and claimed that toxic vapors may be seeping into their home, potentially causing health risks, and decreasing their property value. Dr. Boyle was hired to assess the impact of contamination on property values using hedonic regression and meta-analysis. Defendants challenged his methodology, arguing it was unreliable. The court found that while Dr. Boyle’s methods faced scrutiny, his testimony met the threshold for admissibility and was relevant for class certification purposes. Dr. Kram, an expert in environmental science, opined that residents are at risk of toxic exposure through vapor intrusion and that mitigation is necessary. The defendants argued that Dr. Kram did not provide specific evidence of vapor intrusion in individual homes. The court determined that Dr. Kram’s testimony was relevant and helpful to understanding the risks and need for mitigation, though his conclusions may be weighed later. Dr. Ryer-Powder, a toxicologist, provided opinions on the health risks of TCE and the pathways through which it could enter homes. The defendants challenged her reliance on certain reports and guidance documents. The court concluded that her qualifications and opinions were relevant and denied the motion to exclude her testimony. Dr. W. Richard Laton, a hydrogeologist with extensive experience, was hired to analyze the scope of subsurface contamination from a site, its impact on groundwater, and its effects on residents. Despite Dr. Laton’s qualifications and his detailed report on contamination and health risks associated with TCE (trichloroethylene), the defendants sought to exclude his testimony, arguing that he lacked expertise in certain technical areas and that his opinions are unreliable. However, the court ruled that Dr. Laton’s experience and methodology aligned with scientific protocols. Dr. Hugh Gorman, a historian specializing in industrial practices and environmental history, testified on the historical manufacturing processes and their role in contamination. The defendants challenged his qualifications, suggesting that his opinions were based on hearsay and lacked independent analysis. The court, however, ruled that Dr. Gorman’s testimony did not exceed his expertise and that excluding his testimony at this stage would be premature. Finally, the defendants argued that Dr. Matthew Tonkin, a hydrogeologist, formulated unreliable conclusions due to alleged deficiencies in his model. The court rejected these arguments, finding Dr. Tonkin’s analysis followed established scientific practices and that his testimony was suitable for class certification. The plaintiffs sought to certify two certify two classes related to property damage and mitigation claims against the defendants for negligence, nuisance, and trespass. The court found that the classes encompassed over 3,200 homes, thus satisfying the numerosity requirement. The court also determined that common issues such as the cause of contamination, damage to properties, and the need for mitigation were present for all class members, meeting the commonality requirement. The court ruled that the lead plaintiffs shared typical claims with the proposed class members. The court concluded that common questions of law and fact, including issues of negligence, nuisance, and trespass predominated over individual issues. For these reasons, the court granted the plaintiffs’ motion for class certification. The Ninth Circuit upheld the district court’s grant of class certification in Johnson, et al. v. Nissan North America, Inc ., 2024 U.S. App. LEXIS 28927 (9th Cir. Nov. 14, 2024). The plaintiffs filed a class action alleging that the defendant failed to disclose that certain vehicles with panoramic sunroofs were prone to spontaneous shattering under typical driving conditions. The district court previously granted the plaintiffs’ motion for class certification pursuant to Rule 23. On appeal, the defendant argued that the class failed to meet the commonality requirement, and that the district court improperly accepted the class’s “unperformed” damages model and allowed in the class definition class members who have never had a broken sunroof and were thus not similar. Id. at *4. The Ninth Circuit affirmed the district court’s ruling granting class certification. The Ninth Circuit ruled that the district court did not abuse its discretion in finding several common questions of law and fact which predominated over individual inquiries. Id. at *2. Specifically, the district court noted the common questions of: (i) “the nature of the alleged defect;” (ii) “Nissan’s knowledge (or lack thereof) about the alleged defect;” (iii) “whether a reasonable consumer would find the omission of the defect material;” (iv) “whether the vehicles violated the implied warranty of merchantability;” and (v) the “extent to which Nissan’s non-disclosure constituted concealment.” Id. The Ninth Circuit opined that the district court correctly concluded that these were common questions that could be answered on a class-wide basis. The defendant argued that there was no evidence of the alleged common design defect that increases the likelihood of the sunroofs shattering. However,

Products Liability & Mass Torts Class Action Review – 2025

the Ninth Circuit explained that proof of the defect was a merits inquiry that was not necessary to prove at the class certification stage. The Ninth Circuit also ruled that the district court did not abuse its discretion in finding that the materiality and reliance elements of the plaintiffs’ consumer protection claims raised common issues supporting class certification. Id. at *4. The Ninth Circuit stated that the district court did not abuse its discretion in accepting the plaintiffs’ unperformed damages model to support class certification because the model would be able to reliably calculate damages in a manner common to the class at trial. Id. at *5. Finally, the Ninth Circuit agreed with the plaintiffs that the plaintiffs’ benefit-of-the-bargain theory of injury affected the entire class such that certification was appropriate. Accordingly, the Ninth Circuit affirmed the district court’s ruling granting the plaintiffs’ motion for class certification. A resident of Michigan filed a class action in Riddell, et al. v. General Motors LLC , Case No. 20-CV-254 (E.D. Mo. May 9, 2024), after he purchased a new 2012 Chevrolet Silverado with a Generation IV 5.3 Liter V8 Vortec 5300 engine in Ballwin, Missouri, in 2012. The plaintiff claimed that Gen IV engines had defective piston rings leading to excessive oil consumption, which reduced engine lubricity, thereby causing malfunctions. The plaintiff contended that GM was aware of this defect but failed to disclose it to purchasers of vehicles containing the Gen IV 5.3L engines and did not offer an effective repair. The court previously had granted class certification, and GM argued that the plaintiff’s claim was barred by the five-year statute of limitations for actions created by statute and fraud under Missouri law, citing that the plaintiff purchased his vehicle in September 2012 but did not file his complaint until November 2020. This was more than eight years later, exceeding the five-year limit. Under the fraud statute, the limitations period begins when the plaintiff discovers the facts constituting the fraud or when they should have discovered it through due diligence. The defendant claimed that the plaintiff was aware of low oil levels soon after purchase, but failed to prove that he knew GM was knowingly selling defective vehicles. The court noted that the plaintiff only realized he had a claim after seeing an article about similar litigation. For claims under the Missouri Merchandising Practices Act (MMPA), the plaintiff must show a purchase for personal use, an ascertainable loss, and that the loss resulted from an unlawful act. The defendant contended that the plaintiff could not prove his vehicle was defective or that he would not have purchased it if aware of the defect. However, the court found that the plaintiff had provided sufficient testimony regarding his decision to buy the vehicle. The defendant also argued that there was no duty to disclose unless there was a direct relationship between the parties, but the court found that the MMPA does not require such a relationship. Furthermore, the plaintiff did not need to buy the vehicle directly from GM to maintain his MMPA claim. Regarding the issue of GM’s knowledge of the piston ring defect at the time of sale, the court concluded that while GM had made design changes to address oil consumption, the plaintiff had not provided enough evidence to show GM knew these changes would be ineffective at the time of sale. Thus, the court granted summary judgment for claims related to vehicles purchased before October 2012, which affected the lead plaintiff, Riddell, who bought his truck in September 2012. Consequently, the court decided to decertify the class and requested further briefing on a new class representative and the viability of the case moving forward. The court granted class certification in part in Lessin, et al. v. Ford Motor Co., 2024 U.S. Dist. LEXIS 203468 (S.D. Cal. Nov. 7, 2024). The plaintiffs in Lessin were owners of Ford F-250 and F-350 trucks from model years 2005 to 2019 and filed a class action against Ford, alleging that the vehicles suffer from a dangerous defect in their suspension and steering systems. This defect, referred to as the “Suspension Defect,” involves issues with components such as the track bar bushing, steering damper, ball joints, control arms, shock absorbers, and struts, leading to severe shaking of the steering wheel, commonly known as the “Death Wobble” or “Shimmy.” Id. at *5. The plaintiffs claimed that this shaking, which occurs at highway speeds, can cause drivers to lose control of the vehicle, creating a serious safety risk to both the driver and others on the road. According to the plaintiffs, while Ford redesigned the suspension system starting in 2005 to prevent the Shimmy, the factory- installed steering damper was insufficient to resolve the issue. Internal documents suggested that Ford engineers were aware of the problem as early as 2002 and that the steering damper design would not be effective in preventing the Shimmy. Despite this knowledge, Ford allegedly continued to use an ineffective damper in the vehicles. The plaintiffs claimed that Ford’s actions, including continuing to use defective dampers, issuing misleading statements about the cause of the problem, and failing to provide an adequate remedy, demonstrated a pattern of negligence and unfair business practices. The plaintiffs moved for class certification pursuant to Rule 23 seeking to represent a nationwide class and several state-specific sub-classes for individuals who purchased or leased 2005-2019 Ford F-250 and F-350 4x4 trucks primarily for personal, family, or household purposes. The court granted in part the motion, certifying several state sub-classes but declining to certify a nationwide class. First, the court determined that the class was sufficiently numerous as Ford sold

Products Liability & Mass Torts Class Action Review – 2025

over 767,000 vehicles to class members during the relevant period in the states where certification was sought. The court also concluded that the classes met the commonality requirement because all class members’ claims were based on the same Suspension Defect, which affected every vehicle. The court also found that the plaintiffs met the typicality requirement because they had the same interests and injuries as the class members. All the plaintiffs alleged the same defect in their vehicles and claimed similar economic damages due to the defect. The court also ruled that the plaintiffs and plaintiffs’ counsel were adequate class representatives. As to the predominance requirement of Rule 23(b), the court examined whether common issues predominated over individual issues. The plaintiffs argued that their claims involved common legal and factual issues that applied to all class members, particularly the question of whether the vehicles involved had the same “Suspension Defect.” Id. at *88. Ford argued that there were significant individual issues that prevented class certification, particularly the need to assess the use of the vehicle by each class member. Ford further contended that the “Suspension Defect” may not be common across all the vehicles in the class, arguing that the defect was due to manufacturing variability, and that the suspension systems in different model years and platforms were not uniform. Id. at *89-90. The plaintiffs argued that the vehicles, while varying in design over the years, shared the same common defect, i.e., an inadequate damper system that caused the “Shimmy” effect. Id. at *92. They asserted that these vehicles have similar components and that the defect could be proven with common evidence across all class members. The court ultimately agreed with the plaintiffs, finding that they demonstrated that common issues, such as the existence of the suspension defect, predominated over any individual issues. The plaintiffs’ motion sought certification for sub-classes asserting six states’ consumer protections statutes, all of which are fraud-based claims, including the CLRA, the Colorado Consumer Protection Act (CCPA), the Illinois Consumer Fraud and Deceptive Business Practice Act (ICFA), the Indiana Deceptive Consumer Sales Act (IDCSA), the New Mexico Unfair Trade Practices Act (NMUTPA), and the Texas Deceptive Trade Practices Act (DTPA). Id. at *96-97. The plaintiffs further sought certification for sub-classes asserting claims for fraudulent concealment under five states’ common law, including California, Arizona, Colorado, Illinois, and New Mexico. In sum, the court found that the plaintiffs met their burden of proving that common issues predominated over individual ones, and that the class action mechanism was the superior method for adjudicating the claims in this case. However, the court ruled that Ford’s knowledge was not uniform across all vehicle models and time periods. As a result, the court limited the class certification to certain models (P131 and P538) where common knowledge of the defect could be established but denied certification for other models (P356 and P473) due to variations in Ford’s knowledge. The court found that common evidence of Ford’s omissions satisfied the requirements for class certification in California under the CLRA and common law fraud claims. As to the other state-specific claims, the court denied class certification for the Arizona sub-class because plaintiffs there must prove actual reliance for common law fraud, and the court found they failed to show sufficient evidence of a uniform presumption of reliance. For Illinois, the court granted class certification of the ICFA claim, but denied certification for common law fraud, as reliance must be shown individually. The court denied certification of the Indiana sub-class because reliance is a necessary element for an Indiana deceptive consumer sales act claim, and since it could not be presumed and would require individual determinations, the court found certification was not appropriate. The court also denied class certification for the fraudulent concealment claim under Maine law because it requires individual proof of reliance in fraud claims. The court granted certification of the NMUTPA but denied it as to the common law claims. The court granted certification of the TDTPA, and the implied warranty claims of Maine and South Carolina. As for the express warranty claims in Arizona, New Mexico, and Texas, the court agreed with the plaintiffs that these issues could be addressed using Ford’s records and granted class certification. Finally, the court denied the plaintiffs’ request to certify a nationwide class under the MMWA due to the variations in state laws. Accordingly, the court granted in part and denied in part the plaintiffs’ motion for class certification. 2. Rulings Denying Class Certification Motions Or Granting Decertification Motions Various courts also denied class certification in mass tort and products liability class actions in 2024, or decertified classes based on further discovery. For example, the court denied the plaintiffs’ motion for class certification in Denney, et al. v. Amphenol Corp ., 2024 U.S. Dist. LEXIS 117372 (S.D. Ind. July 3, 2024). The plaintiffs filed a class action alleging that the defendants failed to control and clean up hazardous contamination at two sites in Indiana. The court previously had denied the plaintiffs’ motion for class certification. The plaintiffs filed a motion for reconsideration, or to file an amended complaint. The court denied the motion. The sites, originally operated by Bendix from 1961 to

Products Liability & Mass Torts Class Action Review – 2025

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