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Managing the "Unmanifested Defect" Class Action

By Gary E. Mason | 

Product liability class actions involving "uninjured" plaintiffs are hardly a judicial novelty.  District courts are well-able to manage and dismiss cases where the "uninjured" named plaintiff truly cannot state a claim upon which relief can be granted. 

Yet from time to time, courts have found that the named plaintiffs have stated cognizable claims and certified class actions which include both persons whose products have failed or those whose products have yet to, despite the defendants'  attempts to label the later class members  as "uninjured."  As a general proposition, courts have found that a consumer products liability classes are suitable for certification even if it they include "uninjured" class members if the underlying claims can be proven by class-wide evidence of a common defect.

Thus, in Daffin v. Ford Motor Company, 458 F.3d 549 (9 th Cir. 2006), the Sixth Circuit Court of Appeals, affirmed the district court order certifying the class and its rejection of Ford's argument that the class representative was not typical of the rest of the class since she experienced  accelerator sticking while many owners had not.  The court concluded that the common issue of whether a common defect exists predominated over individual issues, 458 F.3d at 550, and that the district court properly found that the question of whether other owners had a warranty claim was a merits issue and not a factor relevant to class certification.  458 F.3d at 554.

The Ninth Circuit in Wolin v. Jaguar Land Rover North America,  617 F.3d 1168 (9 th Cir. 2010), actually found that the district court abused its discretion by not certifying a class and committed error when it concluded that certification was inappropriate because the defect did not manifest in a majority of the class's vehicles.  The Court of Appeals noted that the named plaintiffs had stated claims for violation of consumer protection laws and that proof of the existence of a defect was a common issue suitable for class treatment.  617 F.3d at 1173.  Proof of defect may well be necessary to prevail on the merits, but "manifestation of a defect is not a prerequisite to class certification."  Id. (citing Blackie v. Barrack, 524 F.2d 891, 901 (9 th Cir. 1975)).

The Seventh Circuit also recently affirmed a district court's decision certifying a products liability class action in Pella Corp. v. Satlzman, 606 F.3d 391 (7 th Cir. 2010).  There, the lower court certified a Rule 23(b)(2) class of persons who own structures with Pella ProLine aluminum -clad casement windows whose windows have not  manifested the alleged defect.  Consistent with both Daffin and Wolin¸ the court in Pella found that the issue of the existence of a product defect ("inherent design flaw") was a common issue suitable for class certification.  606 F.3d at 395.

 The Sixth Circuit's opinion in Zurn is merely a continuation of this line of cases, and not the harbinger of a overwhelming flood of products liability class actions that PLAC claims it is.  The theory "endorsed' by the Panel,  that owners of structures with Zurn Pex plumbing systems may recover for breach of warranty , even if they have never experienced any problems, if they succeeded in proving their claims of a common defect, is hardly novel, as Daffin, Wolin and Pella make clear .  More to the point, since the existence of a common defect requires common evidence, the issue is suitable for class certification.  As these class certifications uniformly make clear, the question of whether proof of a common defect will be enough to prevail on the merits, is, naturally, a merits question, and not relevant to the determination of class certification.  See Daffin, 458 F.3d at 554 ("whether Ford's express warranty promises to cover the alleged defect in the throttle body assembly even if no sticking occurs during the warranty period ...is an issue that can be decided on the merits... [W]hether the class members can win on the merits of the issue common to the class is not a factor..."); Wolin,  617 F.3d at 1173 (Land Rover's argument that class member's vehicles do not suffer from a common defect is a merits argument which "does not overlap with the predominance test.").

Products liability class actions present challenges, but there are circumstances, such as those presented in Daffin, Wallin, Pella and now Zurn, where certification is appropriate since the common issue  of whether a "universal" defect exists predominates.  Product liability classes which include product owners who allege a common defect that has not yet caused product failure have been certified and affirmed on appeal (and not certified and reversed on appeal).   There is scant evidence that the federal courts have been overwhelmed by this type of class action.