Automotive Product Liability Litigation - Recalls

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Recalls: How They are Impacting Class Actions; Litigation Strategy to Defeat Class Claims; Recall-Based Rule 23 Arguments; Mootness; and More

Published in: Law, Business, Automotive
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Automotive Product Liability Litigation - Recalls

  1. 1. #ACIProducts AutomotiveProductLiabilityLitigation Recalls: How They are Impacting Class Actions; Litigation Strategy to Defeat Class Claims; Recall-Based Rule 23 Arguments; Mootness; and More June 4 - 5, 2014 Tweeting about this conference? S. Vance Wittie Special Counsel Sedgwick LLP Dallas, Texas Michelle I. Schaffer Shareholder Campbell, Campbell Edwards & Conroy PC Boston, Massachusetts Barry I. Buchman Partner Gilbert LLP Paul E. Wojcicki Shareholder Segal McCambridge Singer & Mahoney, Ltd.
  2. 2. #ACIProducts AutomotiveProductLiabilityLitigation Vehicle Recalls Common Law and Regulatory Environment S. Vance Wittie Special Counsel Sedgwick LLP Dallas, Texas June 4 - 5, 2014 Tweeting about this conference?
  3. 3. #ACIProducts Administrative Recalls •Determination of Defect or Noncompliance •Notification of Recall •Recall Implementation
  4. 4. #ACIProducts Common Law Issues •Post Sale Duty to Warn •Duty to Recall/Retrofit •Court-ordered Recalls
  5. 5. #ACIProducts Post-Sale Duty to Warn (PerThird Restatement) •Negligence-based theory (reasonable person) •Seller knows or should know of substantial risk •Recipients of warning can be identified and can be assumed to be unaware of the risk
  6. 6. #ACIProducts Post-Sale Duty to Warn (PerThird Restatement) •Warning can be effectively communicated and acted upon •Risk of harm sufficiently great to justify burden
  7. 7. #ACIProducts Duty to Recall or Retrofit •Third Restatement limits application to where governmental directive specifically requires recall or seller undertakes to recall product and fails to act as reasonable person •Negligent recall claims may be based on design or implementation of campaign
  8. 8. #ACIProducts Duty to Recall or Retrofit •No general retrofit duty based on safety improvements
  9. 9. #ACIProducts Court-Ordered Recalls •Question of Primary Jurisdiction— Should Court Defer to Administrative Agency? •Question of Preemption— Does court action unduly interfere with administrative policies?
  10. 10. #ACIProducts Court-Ordered Recalls •Question of Judicial Authority— Does court have competence to order relief, especially in other states? •Question of Superiority— Is a court-ordered injunction a superior remedy?
  11. 11. #ACIProducts AutomotiveProductLiabilityLitigation Admissibility of Recall Evidence Michelle I. Schaffer Shareholder Campbell Campbell Edwards & Conroy, P.C. Boston, Massachusetts June 4 - 5, 2014 Tweeting about this conference?
  12. 12. #ACIProducts Perception/Reality • Recall evidence is inherently inflammatory • Recall evidence will lead to a mini-trial
  13. 13. #ACIProducts Relevance – Rule 402 •Notice •Existence of a Defect •Violation of a Duty to Warn •Feasibility of an Alternative Design •Impeachment
  14. 14. #ACIProducts Novel Arguments for Admission
  15. 15. #ACIProducts Unfair Prejudice – Rule 403
  16. 16. #ACIProducts Punitive Damages: Actions Speak
  17. 17. #ACIProducts AutomotiveProductLiabilityLitigation Paul E. Wojcicki Senior Shareholder Don’t Fear the Recall June 4 - 5, 2014 Tweeting about this conference? www.smsm.com
  18. 18. #ACIProducts Don’t Fear the Recall •Finally, after years of foot dragging … • 2014 YTD: •GM issues nearly 30 recalls •15.8 million vehicles involved •More than 2013 total vehicle sales all manufacturers
  19. 19. #ACIProducts Don’t Fear the Recall •Recalls “captivate the media, but the U.S. public absolutely couldn't care less." - Bob Lutz, former GM CEO
  20. 20. #ACIProducts U. S. Consumers •Desensitized to recalls •No big deal •Everyday occurrence
  21. 21. #ACIProducts 2008-12: 3,384 MV Recalls
  22. 22. #ACIProducts 2008-12: 98.2MM Vehicles affected
  23. 23. #ACIProducts U. S. Consumers • Don’t expect perfection … but we do expect • Transparency – admit your mistake • Accountability – apologize • Service – fix it • Forgiving • We want to believe in the companies we buy from • We give second changes
  24. 24. #ACIProducts GM Sales Up in 2014 •Across all 4 GM brands •March (4%) •April (7%) •May (3.5%)
  25. 25. #ACIProducts Go on the offensive •“… of course we conducted a recall …” • Committed to customer safety • You come first • Right thing to do … and we did it •Court of law and court of public opinion
  26. 26. #ACIProducts Thanks Paul E. Wojcicki Segal McCambridge Singer & Mahoney, Ltd. 233 South Wabash Avenue Suite 5500 Chicago, IL 60606 (312) 645-7810 pwojcicki@smsm.com

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