Date post: | 19-Oct-2014 |
Category: |
Law |
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Automotive Product Liability Litigation
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.
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Automotive Product Liability Litigation
Vehicle Recalls Common Law and Regulatory Environment
S. Vance Wittie Special Counsel Sedgwick LLP Dallas, Texas
June 4 - 5, 2014
Tweeting about this conference?
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Administrative Recalls
•Determination of Defect or Noncompliance
•Notification of Recall
•Recall Implementation
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Common Law Issues
•Post Sale Duty to Warn
•Duty to Recall/Retrofit
•Court-ordered Recalls
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Post-Sale Duty to Warn (Per Third 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
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Post-Sale Duty to Warn (Per Third Restatement)
•Warning can be effectively communicated and acted upon
•Risk of harm sufficiently great to justify burden
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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
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Duty to Recall or Retrofit
•No general retrofit duty based on safety improvements
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Court-Ordered Recalls
•Question of Primary Jurisdiction— Should Court Defer to Administrative Agency?
•Question of Preemption— Does court action unduly interfere with administrative policies?
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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?
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Automotive Product Liability Litigation
Admissibility of Recall Evidence
Michelle I. Schaffer Shareholder
Campbell Campbell Edwards & Conroy, P.C. Boston, Massachusetts
June 4 - 5, 2014
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Perception/Reality
• Recall evidence is inherently inflammatory
• Recall evidence will lead to a mini-trial
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Relevance – Rule 402
•Notice
• Existence of a Defect
•Violation of a Duty to Warn
• Feasibility of an Alternative Design
• Impeachment
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Novel Arguments for Admission
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Unfair Prejudice – Rule 403
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Punitive Damages: Actions Speak
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Automotive Product Liability Litigation
Paul E. Wojcicki Senior Shareholder
Don’t Fear the Recall
June 4 - 5, 2014
Tweeting about this conference?
www.smsm.com
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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
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Don’t Fear the Recall
•Recalls “captivate the media, but the U.S. public absolutely couldn't care less."
- Bob Lutz, former GM CEO
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U. S. Consumers
•Desensitized to recalls
•No big deal
• Everyday occurrence
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2008-12: 3,384 MV Recalls
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2008-12: 98.2MM Vehicles affected
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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
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GM Sales Up in 2014
•Across all 4 GM brands
•March (4%)
•April (7%)
•May (3.5%)
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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
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Thanks
Paul E. Wojcicki Segal McCambridge Singer & Mahoney, Ltd. 233 South Wabash Avenue Suite 5500 Chicago, IL 60606 (312) 645-7810 [email protected]