Presenting a live 90 ‐ minute webinar with interactive Q&A Product Liability: Expert Witnesses in Complex and Class Action Litigation Leveraging Experts for Issues of Class Certification, Causation, Manifestation of Defect, and Economic Damages THURS DAY, FEBRUARY 28, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Neal Walters, Partner, Ballard Spahr , Cherry Hill, N.J. oto, Partner, Ballard Spahr , Cherry Hill, N.J. Roberto A. Rivera-S The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Managing Experts in Product Class Actions Actions Strafford Publishers Webinar February 28, 2013 N Neal Walters l W lt Ballard Spahr LLP 210 Lake Drive East, Suite 200 Cherry Hill, NJ 08002-1163 waltersn@ballardspahr.com Justice Roberto Rivera-Soto Ballard Spahr LLP 210 Lake Drive East, Suite 200 Ch Cherry Hill, NJ 08002-1163 Hill NJ 08002 1163 riverasotor@ballardspahr.com
Speakers – Neal Walters • Partner at Ballard Spahr LLP and head of its Product Liability and Mass Tort Group • Defends consumer product class actions • Tried two consumer product class actions to i d d l i jury verdict • Experience addressing some of the unique developments that occur p g q p later in a class action, including post-trial decertification of a class and complex issues surrounding post trial claims proceedings • • Substantial experience counseling clients on product and class- Substantial experience counseling clients on product and class- action-related risks before they reach litigation, including regulatory, advertising and risk management • Graduate of Rutgers College and Rutgers School of Law G d t f R t C ll d R t S h l f L 6
Speakers – Justice Roberto Rivera-Soto • After serving a seven-year term as a Justice of the S preme Co rt of Ne of the Supreme Court of New Jersey, Justice Jerse J stice Rivera-Soto returned to the practice of law, joining Ballard Spahr LLP as a partner in its litigation practice • Prior to his service on the Court, Justice Rivera- Soto was a partner in a national law firm, and had been general counsel of two major gaming and entertainment companies • He started his career as an Assistant United States Attorney assigned to d hi A i i d S A i d the Criminal Division of the U.S. Attorney's Office in Philadelphia, Pennsylvania. During his career, he has received a number of awards and is a Fellow of the American Bar Foundation • He is a graduate of Haverford College (B.A. 1974; with departmental honors) and the Cornell University School of Law (J.D. 1977) 7
A2 Overview Background Evolving Evolving Standards for Expert Scrutiny Why Class Certification Experts? Experts? Practice Practice Considerations Use of Experts 8
Slide 8 A2 Author, 2/17/2012
Why Class Certification Experts? • Federal Rule 23(b)(3) and its state counterparts require that common i issues of fact predominate over individual issues. f f t d i t i di id l i • The questions raised by the elements of the causes of action asserted on behalf of the class must be subject to common answers. Dukes v. Wal-Mart. W l M t • Whether a practice that appears to have impacted several people extends to the entire affected group is not always apparent from the f facts. “Some” does not mean “all.” t “S ” d t “ ll ” • There is, therefore, a temptation to utilize experts to supplement the factual record. 9
Why Class Experts: Products • Something is undesirable about a product’s performance g p p or official statements about the product’s capabilities are inaccurate. • The buyer contends that – if they had been properly informed -- they would not have purchased the good, or that he or she would have paid less for it; or that they have p ; y incurred consequential out of pocket repair costs for its non-performance. • The consumer similarly contends that there was pre- existing knowledge of the problem, thus characterizing the concern as a traditional fraud theory. concern as a traditional fraud theory. 10
Why Class Experts: Products • Experts are used in product cases typically to address whether the manifestation of a defect in the product will be experienced by all class manifestation of a defect in the product will be experienced by all class members, or only by some. • This may involve the review of statistics as to percentages of product failure and extrapolation. It also often involves the review of product designs to determine whether a particular failure criticism can be expected to occur in determine whether a particular failure criticism can be expected to occur in other models. • Causation is also a regular subject of class experts’ opinions. Products can and often do fail for variety of reasons unrelated to the criticism. • Causation in advertising cases translates to the element of reliance. Allegations of misstatements in product literature often call into action consumer behavior experts testifying to the issue of the impact of the advertising upon buying decisions and the issue of presumed reliance. • Finally, the issue of aggregate damages frequently is the subject of expert economists’ testimony on class certification. 11
Class Experts: A Broad Range of Products • Pharmaceuticals • Medical Devices • • Electronics Electronics • Appliances • Automobiles bil 12
Why Class Experts: Products • Moulton v. LG USA Electronics, Inc., et al. , 2:11-cv-04073-JLL (DNJ) – Putative plaintiff class claims that defendant’s LCD and plasma televisions Putative plaintiff class claims that defendant s LCD and plasma televisions are subject to premature degradation. • Montich v. Miele USA, Inc. , 3:11-cv-02725-FLW (DNJ) – Putative plaintiff class alleges that the design of defendant’s washing machines causes mold build up build-up. • In re: Onstar Contract Litigation , MDL 07-md-1867 (ED Mi.) – Putative plaintiff class alleges consumer fraud against OnStar and several auto manufacturers for allegedly failing to disclose impact of switch from analog to digital cell lar ser ice on telematics eq ipment to digital cellular service on telematics equipment. • DeBenedetto v. Denny’s, Inc ., MID-L-6259-09 (NJ Super. Ct.) – Putative plaintiff class alleges that restaurant chain’s menus failed to disclose food’s unhealthy sodium levels. • Stewart v. Beam Global Spirits and Wine, et al , 1:11-cv-5149-NLH (DNJ) – Putative plaintiff class alleges that beverage falsely claimed to be all natural 13
Why Class Experts: Products • Little v. Kia Motors America, Inc. , UNN-L-800-01 (N.J. Super. Ct.) – Plaintiff class alleges that defendant failed to disclose premature Plaintiff class alleges that defendant failed to disclose premature brake degradation • Oshana v. Coca-Cola Co. , 225 F.R.D. 575 (N.D. Ill. 2005) – Putative plaintiff class alleged defendant failed to disclose additive in Diet p g Coke • Debbs v. Chrysler Corp. , 810 A.2d 137 (Pa. Super. Ct. 2002) – Plaintiff class alleged defendant failed to disclose potential injuries that could result from airbag deployment that could result from airbag deployment • Lee v. Carter-Reed Company , 4 A.3d 561 (N.J. 2010) – Plaintiff class alleges that nutritional supplement was not effective at inducing weight loss or other health benefit weight loss or other health benefit • Gale v. IBM Corp. , 781 N.Y.S.2d 45 (App. Div. 2004) – Putative plaintiff class alleged defendant misrepresented capabilities of computer 14
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