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Mealey's
Product
Liability & Risk
Volume
2, Issue #1
September, 2002
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Other
new reports to focus on
auto product liability,
employee compensation, silica
injuries
PREEMPTION
Dow
Granted Summary Judgment
Florida
federal judge says FIFRA preempts claims alleging defects in
pesticide Dursban
Nebraska
Supreme Court affirms FIFRA preemption for herbicide claims
EXPERTS
Partial
Summary Judgment Granted On Grinding Machine Claims
U.S.
judge allows expert testimony on design defect claims, dismisses
failure to warn claim
Biomechanics
expert limited in testimony alleging shoelace defect in Nike shoes
CLASS
ACTIONS
JPML
Denies Centralization Of Seat Belt Buckle Cases
Request
by DaimlerChrysler to consolidate Georgia, Massachusetts cases fails
Louisiana
appeals court affirms class certification in action against ICON
manufacturer
Ford
opposes motion to remand in Pennsylvania Crown Victoria case
Meridia
MDL created, sent to Ohio court; 25 federal cases reported
Missing
tire leads to dismissal of case in Ford/Firestone MDL
NEW
COMPLAINTS / SETTLEMENT
Evenflo
Co. Faces Suit In Child's Death
Plaintiffs
claim defective child restraint seat led to infant death
Cleveland
sues Ford over problems with Crown Victorias used by police
$3.2
million settlement reached in Kentucky state ATV action
SPOLIATION
OF EVIDENCE / RULINGS
3rd
Circuit Affirms Dismissal Of Trailer Manufacturer
Pennsylvania
high court would not create distinct cause of action for spoliation
of evidence
Federal
judge dismisses 1 defendant, leaves 1 defendant in defective winch
suit
Federal
judge holds defendant proper party in suit alleging defect in yacht
that sank
PRODUCT
LIABILITY EXTRAS
Insurers
Had Duty To Defend Suit
Liability
insurers had duty to defend claims arising from insured's defective
product
PRODUCT
WATCH
Playskool
Toy Chests Recalled
Screws
in lid support hinges can loosen, pose risk of collapse
CASES
IN THIS ISSUE
N.D.
N.Y.
Beneway v. Superwinch Ind.
Judge dismisses, retains defendants
S.D.
Ind.
Bridgestone/Firestone Tire Prod. Lia., In Re
Henry v. Ford Motor Co.
Henry case dismissed for lack of tire
3rd
Cir.
Caleb v. CRST Inc.
Dismissal affirmed
E.D.
N.Y.
Clarke v. LR Systems
Partial summary judgment granted
N.D.
Ohio
Cleveland v. Ford Motor
City sues for Crown Victoria defects
JPMDL
DaimlerChrysler Corp. Seat Belt Buckle, In Re
JPMDL denies centralization of cases
Neb.
Sup.
Eyl v. Ciba-Geigy Corp.
FIFRA preempts common law claims
S.D.
N.Y.
Faryniarz v. Nike
Biomechanics expert's testimony limited
D.
Md.
Jurgensen v. Albin Marine Inc.
Defense summary judgment denied
N.D.
Ohio
Meridia Products Liability Litigation, In Re
Meridia MDL created, sent to Ohio
E.D.
Pa.
Montgomery Township v. Ford Motor
Ford opposes motion to remand
S.D.
Fla.
Oken v. The Monsanto Co.
FIFRA preempts Dursban claims
Ky.
Cir.
Rohrer v. Yamaha Corp.
$3.2 million settlement reached
N.D.
Ala.
Thomas v. Evenflo Co.
Suit alleges defective child restraint seat
3rd
Cir.
West v. G&H Seed Co.
Class suit for ICON claims affirmed
NEW
PUBLICATION
Mealey's
To Launch Employer Liability Insurance Report
Take
me to the Top
Sexual
harassment, age discrimination, workplace injury, wrongful
termination, ADA, workplace violence, sexual preference
discrimination, gender discrimination, pension and 401(k) fiduciary
duty - these are just some of the risks and some of the lawsuits
faced by employers today. And
insurance coverage litigation is always around the corner.
Insurance
coverage litigation resulting from such employment issues will be
the focus of the latest insurance litigation report from LexisNexis
Mealey Publications, Mealey's Litigation Report:
Employer Liability Insurance.
This
dynamic topic fits well into Mealey's proven insurance litigation
reporting format, lending itself to coverage of new cases,
pleadings, trials and rulings from judges in jurisdictions around
the country. Hard-to-get
documents will be published, and experts will share their views in
frequent commentaries.
Some
recent news:
An
Illinois appeals court has held that there is no duty to defend a
gender discrimination lawsuit pursuant to a commercial umbrella
policy that excludes liability arising out of discrimination but
provides coverage for liability resulting from sexual misconduct.
An
employee dishonesty protection rider to a fidelity insurance policy
does not insure against legal liability to third parties incurred as
a result of an employee's dishonesty, a federal judge has ruled.
The
monthly report begins publication in September and is priced at
$700. For
details, call our Customer Service Department at 1-800-MEALEYS or
(610) 768-7800 or e-mail us at info@mealeys.com.
It
can also be purchased online on LexisNexis with e-mail delivery and
immediate access to court documents, including opinions, appellate
briefs, complaints, etc.
As
a bonus, with their paid order, charter subscribers will receive
Mealey's Special Report: Employer
Liability Coverage Disputes - a value of $395.
The special report tracks more than five years of employment
coverage developments reported by Mealey's.
To receive it, order by Dec. 31.
W.
Thomas Hagy
Vice
President & General Manager
FIFRA
Preempts Claims Alleging Dursban Defect
Take
me to the Top
FT.
LAUDERDALE, Fla. - A federal judge on Aug. 26 granted summary
judgment in favor of Dow Agrosciences, holding that the Federal
Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted claims
alleging a defect in the pesticide Dursban (Wayne Charles Oken v.
The Monsanto Co., et al., No. 01-7360-CIV, S.D. Fla.; 2002
U.S. Dist. LEXIS 16456 Shepardize).
(Opinion
available. Document #49-020912-108Z.)
Pesticide
Injury
Wayne
Oken sued several entities, including Dow Agrosciences, in the U.S.
District Court for the Southern District of Florida for negligence,
strict liability and failure to warn regarding the formulation and
manufacture of Ortho Dursban Lawn & Garden Insect Control, which
contains the chemical chloropyrifos.
Oken contended that he used the product for his garden as
intended but that it caused him severe neurological, physical and
psychological injury.
Dow
filed a motion for summary judgment, seeking dismissal of all claims
based upon preemption by FIFRA.
FIFRA
Preemption
Dow
argued that the term "requirements" in FIFRA includes
state law actions for damages, while Oken contended that it did not
preclude such actions.
The
Supreme Court has not answered the question in the FIFRA context,
but it has found in other cases that claims based upon labeling are
preempted by the related act. Also,
the 11th Circuit U.S. Court of Appeals has held that state common
law claims for negligence and strict liability that require a
showing that the label or packaging caused an injury are preempted
by FIFRA, Judge William P. Dimitrouleas said.
The
court is bound to follow the 11th Circuit law, the judge said,
noting that several other courts that also have considered the issue
as it relates to FIFRA have found for the defendants.
The plaintiff can bring claims for strict liability and
negligence for design defect or manufacturing defect of a product
that is unreasonably dangerous provided that the issue of warning to
consumers is not implicated, Judge Dimitrouleas said.
The
judge agreed with Dow's argument that the issue of warning is
implicated in Oken's remaining theories of liability because Florida
law looks to consumer expectations or a risk-benefit test to analyze
strict liability claims and under either test.
As Dow pointed out, under either test, the jury would
necessarily need to determine whether the label or package warning
was reasonable to the ordinary consumer, Judge Dimitrouleas said in
finding the design defect claim preempted by FIFRA.
Oken
also argued that separate from any failure to warn issues, the
defendants could be liable for designing and manufacturing an
unreasonably dangerous product and that because FIFRA does not
preempt Florida state law from banning a product outright, the
defendants could be liable for tort damages.
The
argument fails, however, because such a claim suggests that a
manufacturer would not have to produce Dursban at all, or at least
not sell it in Florida, to avoid liability because extra warnings to
people with chemical sensitivity are not allowed under state law,
Judge Dimitrouleas said.
Manufacturing
Defect
Dow
also argued that it had submitted evidence regarding the quality
control in the Dursban manufacturing process that would rebut any
claim of negligence or strict liability.
Oken
argued that he did not have the opportunity to discover facts that
supported more than an inference of the manufacturing defects
claims, but he had over nine months to discover such facts.
Because Oken has not provided sufficient reasons for a
continuance of the summary judgment motion, Dow's motion will be
granted as a matter of law that no genuine issue of material facts
exists as a manufacturing defect, Judge Dimitrouleas said.
A
summary judgment motion is pending against defendant Home Depot.
Defendants The Monsanto Co., the Solaris Group and Scotts Co.
have not filed motions for summary judgment, but any such motion
should indicate whether those defendants stand in the same position,
factually and legally, as Dow, Judge Dimitrouleas said.
Ian
G. Osur of Miami and Stuart Calwell of the Law Offices of Stuart
Calwell in Charleston, W.Va., represent Oken.
Douglas
Joseph Chumbley of Carlton Fields in Miami represents Monsato.
Samuel Alberto Danon and Alejandra Hernandez Pennie of Hunton
& Williams in Miami represent Scotts.
Daniel Jay Gerber of Rumberger Kirk & Caldwell in
Orlando, Fla., and Joseph G. Eaton and Dean T. Barnhard of Barnes
& Thornburg in Indianapolis represent Dow.
Nebraska
Supreme Court Affirms FIFRA Preemption
Take
me to the Top
LINCOLN,
Neb. - The Nebraska Supreme Court on Sept. 6 sustained its 1997
ruling that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
preempts common law strict liability failure to warn claims against
the manufacturer of herbicides (Harold D. Eyl, et al. v
Ciba-Geigy Corp., No. S-00-219, Neb. Sup.).
The
court ordered the reversal of a $2.1 million judgment for the
plaintiff and dismissal of all claims.
(Opinion
available. Document
#15-020920-101Z.)
Pesticide
Injury
In
1993, Harold Eyl spent one day hauling pea rock to a playground area
that recently had been treated with the herbicide Pramitol 5PS by an
employee of the City of Wisner.
His feet became red and swollen and later developed ulcers.
Eyl now is permanently disabled because of his feet.
Eyl
sued Ciba-Geigy Corp., the herbicide manufacturer, and Northeast
Cooperative, the seller, in the Cuming County District Court,
claiming that he was a bystander who should have been warned that
Pramitol had been applied.
Only
Eyl's strict liability claim for failure to warn against Ciba-Geigy
was submitted to the jury, according to the record.
A jury awarded Eyl $2,146,000.
The
Nebraska Supreme Court granted the defendants' motion to bypass and
accepted the case on appeal.
The
defendants argued that Eyl's claims are labeling claims based on and
preempted by FIFRA.
Eyl
argued that FIFRA did not preempt his claims and asked the Supreme
Court to overturn its decision in Ackles v. Luttrell (252
Neb. 273 [1997] Shepardize,
cert. denied 522 U.S. 928, 118 S. Ct. 329, 139 L. Ed. 2d 255).
Eyl
based his argument on an amicus brief filed by the Environmental
Protection Agency in Etcheverry v. Tri-Ag (22
Cal. 4th 316 Shepardize,
993 P.2d 366, 93 Cal. Rptr. 2d 36 [2000]) that contained the
agency's opinion that FIFRA did not preempt common law claims.
The Montana Supreme Court adopted the EPA's position in Sleath
v. West Mont Home Health Services (304
Mont. 1 Shepardize,
16 P.3d 1042 [2000] cert denied 122 S. Ct. 40, 151 L. Ed. 2d 13
[2001]).
Eyl
also argued that even if FIFRA preempts failure to warn claims, it
does so only for labeling-based claims in which there is a failure
to warn the user and that because he was a bystander and not a user,
his claims are not label-based.
FIFRA
Preempts Claims
Since
this court's decision in Ackles, a majority of courts
continue to hold that FIFRA preempts labeling-based failure to warn
claims, Justice William Connolly wrote for the court.
"We
decline to adopt the position taken by the Montana Supreme Court.
First, we have already considered the effect of Medtronic
Inc. [v. Lohr, 518
U.S. 470 Shepardize
(1996)] on the issue of FIFRA preemption in Ackles and
determined that FIFRA preempts failure-to-warn claims," the
court said. "Second,
we give no deference to the EPA's position in the amicus brief filed
in Etcheverry."
Also,
the Eighth Circuit U.S. Court of Appeals recently rejected the same
arguments asserted by Eyl in Netland v. Hess & Clark Inc.
(284
F.3d 895 Shepardize
[8th Cir. 2002]; See 4/11/02, Page 5), the court said in declining
to overturn Ackles.
Label-Based
Claims
Eyl
also argued that FIFRA preempts only claims that are labeling-based
and directed to the actual user, but he was not a user of the
product. He argued that
his claims sought damages for failure to warn that the product had
been applied and were not labeling-based on the existing label.
The
overwhelming majority of courts have held that FIFRA preempts
plaintiffs' claims that the lack of point-of-sale signs or consumer
notices are not related to labeling and packaging.
This court, too, holds that warning flags, posters or signs
supplied by the manufacturers and aimed at warning that a pesticide
has been applied or of its danger are part of the labeling under
FIFRA, the court said.
Ely's
argument that Ciba-Geigy should have provided notice of the dangers
of Pramitol to the general public is off the mark because the
majority of jurisdictions have held those types of warnings to be
label-based, the court said.
There
is a difference between regulating the use of a product by requiring
the applicator to provide warnings and a preempted labeling-based
claim when a manufacturer is required to provide warnings, the court
said.
Ely
cited cases in which applicators or pesticides were being regulated,
and ordinances can require an applicator to provide warnings that a
product has been applied without imposing additional labeling
requirements that would be preempted, the court said.
Requiring
a manufacturer to provide warning signs, flags or other devices
constitutes "labeling" under FIFRA, the court said.
"Because
Eyl predicates his failure-to-warn claims on the quality of the
warning, his claims are preempted against both the manufacturer and
the distributor," the court said.
William
J. Brennan and Gerald L. Friedrichsen of Fitzgerald, Schorr,
Barmettler & Brennan in Omaha, Neb., represented the appellants.
Susan E. Fieber of Nolan, Olson, Hansen, Fieber, Lautenbaugh
& Geren in Omaha represented the City of Wisner.
David E. Copple and Jim K. McGough of Copple, Rockey &
McGough in Norfolk, Neb., represented Eyl.
Partial
Summary Judgment Granted On Grinder Claims
Take
me to the Top
BROOKLYN,
N.Y. - A federal judge on Sept. 6 granted partial summary judgment
to a defendant charged with defectively designing a machine used for
grinding plastic, dismissing a failure to warn claim and continuing
the defective design claims (Walter Clarke v. LR Systems and
Lasits Rohline Service Inc., No. CV-99-5219, E.D. N.Y.; 2002
U.S. Dist. LEXIS 16635 Shepardize).
(Opinion
available. Document
#49-020912-009Z.)
Grinder
Injury
Walter
Clarke was operating a plastic grinding machine, called a grinder or
granulator, when he tried to push the V-belt with his palm to
unstick a jam and his right hand was pulled into the blades of the
grinder. Clarke lost
the top part of his thumb and injured the top parts of his third,
fourth and fifth fingers.
Clarke
sued LR Systems and Dayton Electronic Manufacturing Co. in the Kings
County Supreme Court, alleging negligence and strict products
liability and breach of implied and express warranty.
The case was removed to the U.S. District Court for the
Eastern District of New York when Clarke's employer, Favorite
Plastics Inc., was joined as a third-party defendant.
Dayton
Electronic and Favorite Plastics have been voluntarily dismissed.
Clarke
alleges that LR Systems is liable because warning stickers on the
grinder failed to adequately warn users that users should not try to
clear jams by grasping and pulling on the V-belts and that
granulator should not be operated without the blue cover removed and
that the absence of an electric interlock on the blue cover that
would prevent the machine from operating with this cover removed
constituted a design defect.
LR
Systems filed a motion for summary judgment.
Failure
To Warn
LR
Systems argued that it was not liable because the danger was open
and obvious and because Clarke was fully aware of the hazard.
Clarke
acknowledged several times that he knew it was dangerous to put his
hand on the V-belt without first turning off the power, and it does
not matter from which part of the machine the harm would be, Judge
David G. Trager said.
Because
Clarke was aware of the danger, it is not necessary to determine
whether the danger was open and obvious, Judge Trager said in
dismissing the failure to warn claim.
Design
Defect
LR
Systems did not address the legal elements of Clarke's design defect
claim but attacked the admissibility of his expert, arguing that if
the expert's testimony and report were excluded, Clarke would be
unable to prove the elements of any design defect claim.
However, an expert is not necessary to prove the causation
element of a defective design in all cases, Judge Trager said.
LR
Systems argued that Neal Growney's testimony was unreliable and
inadmissible because he did not apply the principles and methods
reliably to the facts of the case.
However,
Growney's report and deposition show that his methodology for
reaching the conclusion that the grinder's design was defective is
sufficient for his testimony to be admitted, Judge Trager said.
Growney
appears to have performed some version of the risk/utility analysis
necessary to determine if a product is defective and observed that
LR Systems knows how to interlock guard doors, that the company had
equipped other models with interlocks and had interlocked certain
covers on other grinders, Judge Trager said.
LR
System's argument that the blue cover on the grinder's motor and
belt drive comported with the American National Standards Institute
(ANSI) is also insufficient to exclude the expert's evidence.
Simply because the grinder was in compliance with the ANSI
standard does not make Growney's conclusion unreliable, Judge Trager
said in denying summary judgment on the design defect claims.
Richard
S. Vecchio of Worby Borowick Groner in White Plains, N.Y.,
represents Clarke. Elizabeth
A. Weill and William J. Ricci of Lavin, Coleman, O'Neil, Ricci,
Finarelli & Gray in New York represent LR Systems.
Biomechanics
Expert Limited In Testimony Against Nike
Take
me to the Top
NEW
YORK- A biomechanics expert may not testify that that a sneaker's
lacing system and pull tab design caused a doctor to fall and injure
her wrist, a federal judge held Aug. 23 (Deborah Faryniarz v.
Nike Inc., No. 00-Civ. 2623 [NRB], S.D. N.Y.; 2002
U.S. Dist. LEXIS 15825 Shepardize).
Dr.
Keith Williams may testify about perceived flaws in the defense
expert's tests and the availability of alternate lacing systems,
U.S. Judge Naomi Reice Buchwald of the Southern District of New York
held.
(Opinion
available. Document
#30-020920-004Z.)
Deborah
Faryniarz alleges that a design defect in Nike's Air Certitude shoes
caused her to fall while running.
Her wrist injury will impair her career as an orthopedic
surgeon, she asserts. Faryniarz
contends that the long lace on one shoe caught on the rigid rear
pull-tab of the other shoe.
Nike
moved to exclude Williams' testimony.
Qualifications
The
judge noted that Williams is an associate professor in biomechanics
and kinesiology and has a doctorate in biomechanics.
He has published numerous articles and testified in more than
a dozen lawsuits, including several involving footwear.
Faryniarz
planned to call Williams to rebut the testimony of defense expert
Dr. Mark Grabiner, whose tests and simulations showed that Faryniarz
could not have fallen the way she contends.
The judge held that Williams' discussion of the flaws in
Grabiner's study are admissible and that he may testify about his
opinion that an accurate study is not feasible.
In
concluding that Faryniarz could have caught her lace on her other
shoe as claimed, Williams applied his experience and his observation
of the shoes. He also
relied on Nike's specifications and the generally accepted fact that
a protruding material may catch a long shoelace.
"Williams'
conclusion that plaintiff could have fallen in the manner she
alleges is not predicated upon any scientific or technical analysis
of either the plaintiff or the shoes in question.
Instead, Williams states that 'My opinion is based on
experimental studies I have done over the past 25 years that have
examined running mechanics for a variety of runners, with a variety
of footwear, and in varying conditions and speeds,'" the judge
said.
Testing
Williams
admitted that his conclusions cannot be tested or challenged.
The judge said this type of testimony was what Rule 702 was
intended to exclude.
"While
plaintiff correctly argues that an expert may rely on his experience
as the basis for his opinion, that expert must explain how that
experience leads to his proffered conclusion and why it provides a
sufficient basis for it," the judge said.
Judge
Buchwald also said Williams cannot use his testimony that
Faryniarz's causation theory is untestable as the basis for his
conclusion that the very same theory is credible.
Regarding
the alternative design, the judge said Williams has sufficient
knowledge of the industry to testify about various lacing schemes
and pull-tabs. However,
because he cannot testify about the cause of Faryniarz's fall, he
cannot testify about what alternate designs could have prevented the
fall.
Finally,
the judge held that a Daubert hearing was unnecessary because she
reviewed Williams' declaration.
She said cross-examination would not be useful.
Counsel
to Faryniarz are James P. Kreindler and Jacqueline James of
Kreindler & Kreindler in New York.
Stephen D. Straus and Gerard Benvenuto of Traub Eglin
Lieberman Straus Hawthorne in New York represents Nike.
JPMDL
Denies Centralization Of Seat Belt Buckle Cases
Take
me to the Top
WASHINGTON,
D.C. - The Judicial Panel on Multidistrict Litigation (JPMDL) on
Aug. 12 denied a motion requesting the transfer of two actions
alleging defective seat belts in DaimlerChrysler vehicles to the MDL
(In Re DaimlerChrysler Corp. Seat Belt Buckle Product Liability
Litigation, MDL No. 1480, JPMDL; See 6/27/02).
(Order
available. Document
#49-020912-107R.)
DaimlerChrysler
had asked that actions pending in the U.S. District Court for the
Northern District of Georgia and the U.S. District Court for the
District of Massachusetts be centralized in the MDL (Linda
Hiller, et al. v. DaimlerChrysler Corp., No. 02CV10533, D.
Mass.; Beatrice Coker, et al. v. DaimlerChrysler Corp., No.
1:02-CV-903, D. Ga.).
DaimlerChrysler
had also asked that a similar case pending in Ohio federal court be
included in the MDL transfer, but the case was remanded to state
court before the JPMDL made its decision (See 8/14/02, Page 5).
DaimlerChrysler
had suggested that the cases be consolidated in the U.S. District
Court for the Northern District of Ohio.
Accidental
Release
DaimlerChrysler
is a defendant in several actions actions, alleging that the Gen III
buckle is "dangerously prone to accidental release" and
was not designed to minimize the possibility of such release.
A
"transfer would neither serve the convenience of the parties
and witnesses nor further the just and efficient conduct of the
litigation," Judge Terrell Hodges wrote for the panel.
"Given
the number of minimal actions involved in this docket, movant has
failed to persuade us that any common questions of fact are
sufficiently complex to warrant Section 1407 centralization,"
the court said.
The
plaintiffs had opposed to transfer to the MDL because they want the
suits transferred to the state courts in which they originally were
filed.
Alan
L. Kovacs of the Law Office of Alan J. Kovacs in Boston, William R.
Edwards and William R. Edwards III of The Edwards Law Firm in Corpus
Christi, Texas, and Steven A. Kanner and Douglas A. Millen of Much
Shelist Freed Denenberg Ament & Rubenstein in Chicago represent
the Massachusetts plaintiffs.
Lance
A. Cooper, Andrew W. Jones and Scott B. Cooper of Cooper & Jones
in Marietta, Ga., represent the Georgia plaintiffs.
Louisiana
Appeals Court Affirms Class Against ICON Manufacturer
Take
me to the Top
LAKE
CHARLES, La. - A Louisiana appeals panel on Aug. 28 affirmed the
class action status of a suit with three subclasses against the
manufacturer and distributors of insecticide-treated rice seed for
allegedly damaging pond-grown crawfish across the state (Craig
West, et al. v. G&H Seed Co., et al., No. 2001-1453, La.
App., 3rd Cir.; 2002
La. App. LEXIS 2676 Shepardize).
(Opinion
available. Document
#49-020912-006Z.)
Crawfish
Damage
Louisiana
crawfish farmers alleged that they sustained damage to their
pond-grown crawfish crops because of contamination from rice seeds
treated with Fipronil, an insecticide with the trade name ICON 6.2
FS.
Aventis
Crop Science USA manufactures the pesticide, which is sold in liquid
form to seed distributors/applicators, who, pursuant to contracts
with Aventis, applied ICON to rice seed before planting.
The chemical is used to combat rice water weevil.
The
statewide crawfish harvest declined by millions of pounds from 1999
to 2000, and the plaintiffs allege that the ICON-treated rice seed
in certain ponds caused the devastating effect.
Some farmers experienced total loss of their crops, and
others experienced a commercially damaging decline.
Rice and crawfish often are conjunctively farmed, either in
the same pond or in close proximity to one another.
Aventis
conducted a study and concluded that the crawfish mortality resulted
from misapplication of ICON, was unrelated to ICON or was
attributable to a severe drought in 1998.
Class
Suit Initiated
The
farmers sued Aventis and several seed distributors/applicators who
sold ICON-treated seed in the 27th Judicial District Court, Parish
of St. Landry, alleging theories of product liability, redhibition,
negligence, negligent misrepresentation, fraudulent concealment,
intentional misrepresentation, fraud and breach of contract.
The plaintiffs sought class action status.
The
trial judge certified three subclasses of plaintiffs but denied to
certify a class of defendants.
In
addition to filing respective motions for appeal of the class
certification, several defendants also sought supervisory writs,
which were granted and converted into an appeal.
Class
Appropriate
The
trial judge did not abuse his discretion in granting class action
status or defining the three subclasses, Judge Ulysses Gene
Thibodeaux wrote for the Third Circuit Louisiana Court of Appeal.
The
class meets the requirements of numerosity, commonality, typicality
and adequacy, objectiveness and predominance, superiority and
manageability, the court said.
More
than 1,000 crawfish farmers were in Louisiana in 1999.
Many of them also farmed rice, and of those who farmed rice,
many purchased ICON-treated seed.
The farmers allege that they were injured by ICON, and the
appeal is not the time to determine whether the claims are true
because to do so would improperly require the court to consider the
merits of the case, which is disallowed at this stage, the court
said.
Also,
the subclass definitions are not worded such that the numerosity
requirement is defeated because the subclass definitions do not
reference any one particular seed distributor defendant or require
that putative members stake claims against one particular seed
company, the court said
Commonality
The
commonality test is met in that even with individual farming
practices or the possible effects of the drought, ICON is still
alleged to be a common potential cause of the destruction, the court
said.
"Proof
of the ill-effects of ICON is essential to all claims, creating a
common character among groups.
Since class members were allegedly harmed on different dates
and sustained different amounts of alleged injury, individual issues
may present themselves, but such would not defeat commonality,"
the court said.
Also,
typically and adequacy requirements are met because the eight
representatives who were appointed cover all relevant variations of
class members, there is no evidence that the representatives have
conflicting claims with class members or that they do not have a
sufficient interest in the outcome or that the plaintiffs' attorneys
are not competent, the court said.
The
subclass definitions are "neither amorphous, vague, nor
indeterminate, and therefore 'provide a sufficient basis upon which
to determine the scope of the class and the propriety of permitting
plaintiffs to represent all or part of it,'" the court said in
finding that objectiveness had been met.
Further,
class treatment will effectuate substantive law, judicial efficiency
and individual fairness, the court said.
Plaintiffs'
counsel also stipulated that they could not prove a claim for
certification against Terral Seed Inc., so the appeals court
reversed the claim against the company and dismissed it from the
suit.
Counsel
Plaintiffs
Craig West, Troy West and W. B. Farms Inc. are represented by Dawn
M. Barrios and Bruce S. Kingsdorf of Barrios, Kingsdorf &
Casteix in New Orleans; Patrick C. Morrow and John Michael Morrow of
Morrow, Morrow, Ryan & Bassett in Opelousas, La.; Gano Lemoine
and Vance R. Andrus of Andrus, Boudreaux, Lemoine & Tonore in
Lafayette, La.; Melanie M. Piech, Lori E. Andrus and Elizabeth J.
Cabraser of Lieff, Cabraser, Heinmann & Bernstein in San
Francisco; and William Neblett and Richard Arsenault of Neblett,
Beard & Arsenault in Alexandria, La.
Carl
Duhan and Ike Huval of Duhon Law Firm in Lafayette and Elwood
Stevens Jr. of Kleinpeter, Schwartzberg & Stevens in Morgan
City, La., represent plaintiffs Patrick E. Phillips Jr. d/b/a
Phillips Seafood and Atchafalaya Processors Inc.
Arthur
W. Landry of Plauche, Maselli, Landry and Parkerson in New Orleans
represents defendants G&H Seed and Crowley Grain Drier Inc.
Homer Ed Barousse of Barousse & Craton in Crowley, La.,
represents G&H Seed.
Gary
A. Bezet, Robert E. Eille, Gregory M. Anding and Craig M. Freeman of
Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman in Baton
Rouge, La., represent Aventis.
Donald
R. Smith of Smith & Davis in Baton Rouge represents defendant
Terral Seed Inc. Peter
F. Caviness of Dauzat, Falgoust, Cainess & Bienvenue of
Opelousas and J. Wendel Fusilier of the Law Office of J. Wendel
Fusilier in Ville Platte, La., represent defendants Mamou Rice
Driver & Warehouse and Nolan J. Guillot.
Ford
Opposes Remand In Pennsylvania Crown Victoria Case
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me to the Top
PHILADELPHIA
- Ford Motor Co. on Sept. 3 opposed a motion to remand to a
Pennsylvania state court a lawsuit seeking class action status for
its claims that the company designed defective gas tanks in Crown
Victorias used by law enforcement (Montgomery Township, et al. v.
Ford Motor Co., No. 2:02CV5815, E.D. Pa.; See 7/18/02, Page 16).
Ford
removed the case to the U.S. District Court for the Eastern District
of Pennsylvania from the Montgomery County Common Pleas Court on
July 29. The plaintiffs
filed a motion to remand on Aug. 14.
(Ford's
Opposition Brief available. Document
#49-020912-105B.)
Montgomery
and East Norriton townships have been leasing or purchasing Ford's
Crown Victoria automobiles for use by the police since 1995.
The townships sued Ford for strict liability, breach of
warranty and negligence, alleging that implied warranties made by
Ford were breached by the design of the vehicle and location and
design of the gas tanks and that Ford manufactured and sold the
vehicles in a defective condition that was dangerous to users.
Remand
Inappropriate
The
case is one of at least 15 lawsuits across the United States
alleging that the fuel tank placement in the vehicle constitutes a
safety-related defect. Many
of the cases have been removed to federal court, and Ford has asked
the Judicial Panel on Multidistrict Litigation (JPMDL) to transfer
each of the cases to a single district and consolidate them for
pretrial proceedings.
Ford
says it believes the JPMDL will grant its request and asked the
District Court to postpone its decision until the panel rules.
Still,
if the MDL request is not granted, removal to federal court is
appropriate because diversity jurisdiction exists and because the
amount in controversy exceeds $75,000, Ford says.
Federal
jurisdiction diversity exists because even though the plaintiffs
purport to seek relief only under Pennsylvania law, they complain of
a safety-related defect as the term is defined under the federal
National Traffic and Motor Vehicle Safety Act, Ford says.
Resolution
of the plaintiffs' question would necessitate a safety-related
recall under the Safety Act, meaning their state law claims are
preempted by the Safety Act, Ford says.
Also,
the claims asserted by the plaintiffs would exceed more than $75,000
per named plaintiff, meeting the amount-in-controversy requirement
for removal to federal court, Ford says.
Edward
Rubin and Doug Zeiders of Hamburg, Rubin, Mullin, Maxwell &
Lupin in Lansdale, Pa., represent the plaintiffs.
C.
Scott Toomey of Campbell, Campbell, Edwards & Conroy in
Turnersville, N.J., and John H. Beisner, Brian C. Anderson, Teresa
E. Dawson, Kelly J. Riordan and Garrett W. Wotkyns of O'Melveny
& Myers in Washington, D.C., represent Ford.
Meridia
MDL Created, Sent To Ohio Court; 25 Federal Cases Reported
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me to the Top
WASHINGTON,
D.C. - The Judicial Panel on Multidistrict Litigation (JPMDL) on
Aug. 13 approved creation of a Meridia MDL in the U.S. District
Court for the Northern District of Ohio (In Re:
Meridia Products Liability Litigation, MDL Docket No.
1481, JPMDL, No. 02-8000, N.D. Ohio).
The
new MDL was assigned to Judge James S. Gwin.
(Order
available. Document
#28-020905-103R.)
The
panel made its decision based on two actions:
Holly Cardwell v. Abbott Laboratories, et al. (No.
02-2183, N.D. Ill. and Carol Rothenberger v. Abbott Laboratories,
et al. (No. 02-1419, D. N.J.).
The
order said it was notified of 23 potentially related actions in 16
federal district courts: the
Middle, Eastern and Western districts of Louisiana, New Jersey, the
Middle District of Alabama, the Western District of Arkansas, the
Southern District of California, the Northern District of Illinois,
the Northern District of Indiana, the Eastern District of Kentucky,
Minnesota, Nebraska, Nevada, the Eastern District of Pennsylvania,
the Western District of Wisconsin and the Northern District of Ohio.
Defendants
are Abbott Laboratories, Knoll Pharmaceutical Co., SmithKline
Beecham Corp. and BASF Corp
Courts
Suggested
Creation
of an MDL was supported by all parties.
The plaintiffs initially suggested transferring the cases to
New Jersey, the Western District of Arkansas, the Eastern District
of Kentucky, the Eastern and Middle districts of Louisiana, Nevada,
the Northern District of Ohio and the Eastern District of
Pennsylvania. Most
plaintiffs at a July | 
