Strategies Fighting the Contrived Attorneys Fee Claim in the Typical Product Liability Lawsuit

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1 Strategies Fighting the Contrived Attorneys Fee Claim in the Typical Product Liability Lawsuit Mary E. Bolkcom Hanson Marek Bolkcom Group, Ltd. 527 Marquette Avenue, Suite 2300 Minneapolis, MN (612) (612) [fax] Vickie E. Turner Wilson Turner Kosmo LLP 550 West C Street, Suite 1050 San Diego, CA (619) (619) [fax] Return to course materials table of contents

2 Mary E. Bolkcom is a founding member of Hanson Marek Bolkcom Group, Ltd., and is engaged in a trial practice focused on product liability defense. She has successfully tried, to verdict, numerous automotive product liability cases involving a variety of defect allegations, and has extensive experience in the defense of rollover cases. She represents both domestic and foreign manufacturers, in both domestic and multinational cases, and provides national coordination of trial strategy and defense coordination. Her work in product liability defense has also included a variety of non-automotive products. She is also an experienced commercial litigator, handling matters ranging from employment and contract disputes to copyright litigation. Ms. Bolkcom is a frequent lecturer, both nationally and locally, for continuing legal education seminars concerning product liability and trial related topics. Ms. Bolkcom is a graduate of the William Mitchell College of Law (J.D., cum laude, 1980), clerked for the late Honorable Edward J. Devitt, Chief Judge of the United States Court for the District of Minnesota, and was formerly an Associate Professor of Law at Southwestern University School of Law, Los Angeles, California. She is admitted to practice law in Minnesota, New York and California, as well as various federal courts throughout the country. Vickie E. Turner is a partner in the law firm of Wilson Turner Kosmo LLP, the largest female-owned law firm in San Diego. She is a trial attorney who has defended product liability cases for over 28 years. She is a 1982 graduate of the University of San Diego School of Law where she was a member of the Law Review and was also awarded the International Academy of Trial Lawyers Award for excellence in Trial Advocacy. She currently serves as a member of the USD School of Law Board of Visitors and was awarded the law school s highest honor, the 2009 Distinguished Alumni Award. Her outstanding trial skills have earned her national recognition. She has successfully defended manufacturers, distributors and retailers in complex product liability claims throughout California, and in 12 other western states. She is the recipient of an Outstanding Trial Lawyer Award from the San Diego Trial Lawyers Association and in 2007, 2008, 2009 and 2010, Ms. Turner was named one of San Diego s top product liability defense attorneys by San Diego Super Lawyers. In 2005, she was selected as one of the Top 75 Women Litigators in California by the Los Angeles Daily Journal. She was recently selected for inclusion in the 2010 and 2011 editions of The Best Lawyers in America in the specialty of Product Liability Litigation.

3 Strategies Fighting the Contrived Attorneys Fee Claim in the Typical Product Liability Lawsuit Table of Contents I. Attempts to Obtain Attorneys Fees in Product Liability Lawsuits A. Sources of Authority for Attorneys Fees Recovery The American Rule and Its Exceptions Specific Statutes B. Strategies for Eliminating or Limiting Attorneys Fees Offers of Judgment Dispositive Motions Discovery Focused on Elements of Claims Allowing Attorneys Fees Discovery Focused on Attorneys Fees Recovery Strategies Fighting the Contrived Attorneys Fee Claim in the... v Bolkcom and Turner v 269

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5 Strategies Fighting the Contrived Attorneys Fee Claim in the Typical Product Liability Lawsuit I. Attempts to Obtain Attorneys Fees in Product Liability Lawsuits A. Sources of Authority for Attorneys Fees Recovery 1. The American Rule and Its Exceptions The award of attorneys fees in United States jurisdictions is governed by what is commonly referred to as the American Rule. (Fleming v. Quigley, Guam 4 (2003); see also Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975); Covenant Mutual Ins. Co. v. Young, 179 Cal. App. 3d 318 (1986)). Under the American Rule, each party bears their own attorneys fees. (Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975)). The American Rule differs from the English Rule in that the English Rule permits recovery of fees from the losing party. (See Fleischman Distilling Corp. v. Maier Brewing Co., 386 U.S. 714,717 (1967)). One reason the American Rule does not follow the English Rule is that the traditional American view is that a party seeking to redress perceived wrongs should not be discouraged from filing a lawsuit out of fear that he will have to pay the defendant s fees if he loses. There are some exceptions to the American Rule. Two of the most common exceptions include a statutory basis providing for attorneys fees or by agreement between the parties. (See e.g., Cal. Code Civ. Proc., 1021; Nottingdale Homeowners Assn v. Darby, 33 Ohio St. 3d 32 (1987); United Gen. Ins. Co. v. Crane Carrier Co., 695 P.2d 1334, 1337 (Okla. 1984); Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 940, n. 12. (Tex. App. Texarkana 1997)). One reason justifying statutory exceptions to the American Rule is the perceived egregiousness of the injury involved if proven. With respect to the contractual exception, courts have routinely held that sophisticated parties are free to negotiate an attorneys fees provision for the prevailing party and allocate risk as they desire. (See e.g., City of Watsonville v. Corrigan, 149 Cal. App. 4th 1542 (2007); Worth v. Aetna Cas. & Sur. Co., 32 Ohio St. 3d 238 (1987)). Since traditional product liability claims are not based on either statute or agreement, plaintiffs are responsible for their own attorneys fees. The recent trend, however, is for plaintiffs to append claims based on various consumer protection statutes that provide for attorneys fees, as well as doubling or trebling of damages to traditional product liability claims. Claims based on consumer protection statutes are often perceived to be more attractive and worthwhile for plaintiffs and their attorneys than traditional product liability cases. These claims are often easier to prove because in some circumstances defects are presumed and there is no need to prove causation or for plaintiffs to suffer serious injuries. The Pediatric Paxil litigation is a prime example of litigation where the plaintiffs did not suffer physical injuries; however, the potential to recover attorneys fees enhanced the value of the case. The pediatric plaintiffs took the drug Paxil and suffered from depression, suicidal thoughts and mood swings. Plaintiff claims that the defendant manufacturer knew the drug was not safe for children. Because numerous plaintiffs did not suffer serious injuries or did not sustain damages high enough to warrant a products liability suit, traditional products liability theories would not have provided them with a significant economic recovery, particularly given the attorneys fees and costs it would take to prove their cases. Thus, plaintiffs opted instead to assert a theory based on consumer fraud, which arguably provided a mechanism for the lawyers to recover their fees and costs from the defendant manufacturers if they prevailed. The cases ultimately settled. (See Hoormann v. SmithKline Beecham Corp., Case No. 04-L-715 (Ill.Cir. Ct. Oct. 6, 2006)). Strategies Fighting the Contrived Attorneys Fee Claim in the... v Bolkcom and Turner v 271

6 2. Specific Statutes Some of the specific statutes plaintiffs are asserting, along with traditional product liability claims, in an effort to recover attorneys fees include the federal Magnuson-Moss Warranty Act, each state s Magnuson- Moss equivalent like California s Song-Beverly Consumer Warranty Act, Deceptive Trade Practice Act, and other consumer protection statutes. a. Magnuson-Moss Warranty Act Federal Unlike a traditional products liability action where, in most cases, the plaintiffs must prove the existence of a defect (design, manufacturing or warnings) and that the defect was a substantial cause of the plaintiff s injuries, the Magnuson-Moss Warranty Act found at 15 U.S.C. Section 2301, et seq., has a much lower burden of proof. There is no need to prove the cause of the alleged nonconformity, physical injuries are not required, and attorneys fees are recoverable, making it more appealing for plaintiffs and their lawyers. Magnuson-Moss claims are being brought in lieu of, as well as in addition to, strict product liability claims. Under Magnuson-Moss, if a consumer product contains a defect or malfunction or fails to conform to a written warranty, the warrantor must either repair or replace the consumer product within a reasonable time and without charge. (15 U.S.C ) A consumer product is any tangible personal property which is normally used for personal, family, or household purposes. (15 U.S.C. 2301, subd. (1).) If the warrantor is unable to repair or replace the consumer product, then the warrantor must refund monies to the consumer. (15 U.S.C. 2301, subd. (10), and 2304.) If the warrantor fails to repair, replace, or provide a refund, a consumer may bring a civil action to recover damages. (15 U.S.C. 2310, subd. (d).) A consumer who finally prevails may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff (15 U.S.C. 2310, subd. (d)(2)). Calculating reasonable fees usually begins with a calculation of the lodestar, which is a figure reached by multiplying the number of billable hours by a reasonable hourly rate. (Gibbs v. Hyundai Motors Am., 1997 U.S. Dist. LEXIS 8164 (1997) citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). However, courts are not strictly bound to the lodestar method for calculating reasonable fees. [T]he court may look critically at the narrative of billable hours and expenses with an eye towards omitting hours that seem excessive, redundant, or otherwise unnecessary. (Gibbs v. Hyundai Motors Am., 1997 U.S. Dist. LEXIS 8164 (1997) citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Missing from the above-outlined elements is any requirement that a consumer prove the cause of the defect and personal injuries. A consumer need not prove the cause of any defect, only that it needs repair, was presented for repair, and the manufacturer was unable to repair the product. Moreover, plaintiffs need not have suffered any personal injuries. In fact, personal injury claims based on breach of warranty are not cognizable under Magnuson-Moss, (15 U.S.C. 2311, subd. (b)(2) (1984); see also, Boelens v. Redman Homes, Inc. 748 F.2d 1058.) In Boelens, plaintiffs purchased a mobile home from defendants that, unbeknownst to them, was assembled using wood products containing formaldehyde resin as a bonding agent. Plaintiffs suffered various physical problems as a result of the formaldehyde, including chemical hepatitis caused by exposure to the formaldehyde fumes, and had to be hospitalized. Plaintiffs brought suit alleging not only traditional product liability claims, but also a Magnuson-Moss claim for breach of warranty. The court of appeals held that personal injury claims based on breach of warranty are not cognizable under Magnuson-Moss. (Boelens v. Redman Homes, Inc., 748 F.2d 1058 (1984)). That said, personal injury claims based on a substantive provision of Magnuson-Moss might be permitted. (Id. at ) 272 v Product Liability Conference v April 2011

7 However, the fact that personal injury claims are not cognizable under a Magnuson-Moss breach of warranty theory does not prohibit a consumer from bringing both a product liability claim in addition to a Magnuson Moss claim, where personal injuries are also at issue. Sorce v. Naperville Jeep Eagle is an example of where both claims were at issue and allowed to proceed. In Sorce, plaintiffs purchased a vehicle from defendant dealership. A limited warranty accompanied sale of the vehicle. Plaintiffs presented the vehicle to the dealership for repair more than 20 times for a variety of complaints. Plaintiffs asked for the vehicle to be repurchased and the request was declined. During plaintiffs use of the vehicle, plaintiff wife suffered extreme back pain due to the vehicle s severe vibrations. Plaintiff husband experienced numbness and tingling in his extremities and burning eyes from fumes emanating from a heat box that the dealership replaced. Plaintiffs brought suit against both the manufacturer and the dealership for not only product liability, but also breach of warranty under Magnuson-Moss. The two claims were treated as separate and distinct claims. Ultimately, the Magnuson-Moss claim remained after the product liability claim was dismissed on summary adjudication (the physical injuries were not caused by a defect that existed when the vehicle left the manufacturer, but rather was caused by the dealership s ineffective repair). (Sorce v. Naperville Jeep Eagle, 309 Ill. App. 3d 313(1999)). Plaintiffs attorneys are less likely to accept a traditional product liability case where a consumer has an allegedly defective product, but no personal injuries, because the recovery is limited for both the consumer and the lawyer. However, by alleging a Magnuson-Moss violation, the potential to recover attorneys fees changes the dynamics of the case. b. Song-Beverly Consumer Warranty Act California California s Song-Beverly Consumer Warranty Act, California Civil Code Section 1790, et seq., is similar to its federal counter-part, Magnuson-Moss, in that the plaintiffs need not prove the cause of the alleged nonconformity and physical injuries are not required, making it more appealing for plaintiffs and their lawyers. Plaintiffs can bring claims under both theories. That said, whether plaintiffs can allege personal injuries under Song-Beverly, however, is yet to be seen in California. Song-Beverly is similar in many respects to the lemon laws of various states, and can be used for the purpose of analyzing the issues presented by appending a lemon law claim to a product liability personal injury case. In addition to bringing claims based on traditional products liability claims, plaintiffs may also add claims based on Song-Beverly. Carrau v. Marvin Lumber & Cedar Co. is one such example. In Carrau, plaintiff bought 50 windows from defendant manufacturer. The windows experienced premature rotting due to being treated with an ineffective preservative and, therefore, plaintiff claimed the windows were defective. Plaintiff contacted the manufacturer who offered to replace the windows using its own contractor. Plaintiff declined the manufacturer s offer because the offer did not include repairing the landscaping that would result from the repairs and plaintiff was not satisfied with the contractor s qualifications. The manufacturer, nonetheless, delivered the replacement windows. Plaintiff brought suit alleging traditional product liability claims for damage to his property, as well as a breach of warranty claims under Song-Beverly. The actual outcome of the case, which deals with the jury instructions relating to remedies available, is not important for our purposes. What is important, however, is that the court permitted both theories, strict products liability and Song-Beverly s breach of warranty, to proceed to the jury. (Carrau v. Marvin Lumber & Cedar Co., 93 Cal. App. 4th 281 (2001)). Under Song-Beverly, where a consumer good does not conform to the manufacturer s express warranties, the manufacturer must repair the good within a reasonable time - 30 days. (Cal. Civ. Code , subd. (b)). A consumer good is any new product used, bought or leased for use primarily for personal, family, or household purposes, except for clothing and consumables. (Cal. Civ. Code 1791, subd. (a)). If the manufacturer cannot repair the goods such that it complies with the express warranties, the manufacturer shall either Strategies Fighting the Contrived Attorneys Fee Claim in the... v Bolkcom and Turner v 273

8 replace the goods or reimburse the buyer. (Cal. Civ. Code , subd. (d)(1)). If the manufacturer fails to replace or reimburse the buyer, the buyer may bring an action for the recovery of damages. (Cal. Civ. Code 1794, subd. (a)). If the buyer prevails the buyer shall be allowed by the court to recover a sum equal to the aggregate amount of costs and expenses, including attorneys fees based on actual time expended, determined by the court to have been reasonably incurred (Cal. Civ. Code 1794, subd. (d); see also Cal. Civ. Code 1794, subd. (e)(1); Cal. Code Civ. Proc., 1032 and , subd. (a)(10)). The buyer bears the burden of demonstrating all of the following: the [attorneys ] fees incurred were allowable, were reasonably necessary to the conduct of the litigation, and were reasonable in amount. (Karapetian v. Kia Motors Am., Inc U.S. Dist. LEXIS , 8-9 (2010), citing Nightingale v. Hyundai Motor Am., 31 Cal. App. 4th 99 (1994), 104 quoting Levy v. Toyota Motor Sales, U.S.A., Inc., 4 Cal. App , 816 (1992)). Thus, generally speaking, plaintiffs need only show that the manufacturer issued an express warranty or that an implied warranty applies, that the good does not conform in some way to the warranty, that the manufacturer was unable to repair the good, and that the manufacturer failed to replace or reimburse the buyer for the nonconforming good. No physical injuries are required and the plaintiffs do not have to sustain a large amount of damages. Yet, the expense on the defense side could be great. Plaintiffs attorneys have an incentive to fully litigate cases thereby exponentially increasing their fees and costs, which the defendants will be required to pay if they are not successful in defeating plaintiffs claims. c. Deceptive Trade Practice Acts and similar statutes A number of states have adopted some form of the Uniform Deceptive Trade Practices Act (UDTPA) or other similar consumer protection statutes. The specifics of these laws vary considerably across the country, but the statutes in many states could be construed as providing for a private right of action that includes an award of attorneys fees as well as doubling or trebling of recovered damages. See, e.g., Colo. Rev. Stat (attorneys fees may be awarded to prevailing party in deceptive trade practices action); 6 Del. Code 2533 (same); Ga. Code (same); Minn. Stat. 325D.45 (same); Ohio Rev. Code (same). Product liability plaintiffs may try to add a deceptive trade practices claim into their case in an effort to recover attorneys fees if they prevail at trial, or to use the threat of a fee award as settlement leverage. Such a claim will most commonly involve allegations that plaintiff was deceived or misled about the characteristics of the product at the time of purchase. For instance, under the UDTPA, it is a deceptive trade practice to represent that goods or services have characteristics uses [or] benefits that they do not have. See UDTPA 2(a)(5). It is also a deceptive trade practice to engage in any other conduct which similarly creates a likelihood of confusion or misunderstanding. See UDTPA 2(a)(12). The extent to which a statutorily based claim based on an alleged deceptive trade practice will be successfully appended to a product liability personal injury claim will depend on the express terms and interpretation of the statute, the statutory remedies afforded, as well as whether the plaintiff can meet the burden of showing the elements of a violation. The first area of inquiry is whether the statute disqualifies personal injury actions from its coverage. For example, the North Carolina Unfair and Deceptive Trade Practices Act does not disqualify personal injury actions from being brought under it. See N.C. Gen. Stat ( If any person shall be injured... ). See also Maillet v. ATF-Davidson Co., 407 Mass. 185, 552 N.E.2d 95 (Mass. 1990) (violation of consumer protection statute, Mass. G.L. ch. 93A, found due to breach of warranty of merchantability for failure to warn of lack of safety guard, resulting in award of costs and fees). In contrast, a similar Oregon statute allows for treble damages for any ascertainable loss of money or property, thereby directly precluding the recovery of personal injury damages in the language of the statute itself. See O.R.S (1). Likewise, a Hawaii statute also limits dam- 274 v Product Liability Conference v April 2011

9 ages within the actual statutory language, allowing only someone who is injured in business or property to recover under the statute. H.R.S Some courts have held that personal injury plaintiffs are not among the class of people such statutes were intended to protect. See, e.g., Martinez v. Lewis, 969 P.2d 213 (Colo. 1998) (no private right of action exists under statute when alleged violation does not significantly impact the public); Ly v. Nystrom, 615 N.W.2d 302 (Minn. 2000) (same). In other states, deceptive trade practices statutes have been held not to create a private cause of action at all. See, e.g., Grand Ventures v. Whaley, 632 A.2d 63 (Del. 1993) (Delaware Deceptive Trade Practices Act is not intended to redress wrongs between a business and its customers). Other states have held that personal injury damages are not a remedy available under their deceptive trade practices statutes. See, e.g., Moore-Davis Motors v. Joyner, 252 Ga. App. 617 (Ga. App. 2001) (sole remedy under Georgia Deceptive Trade Practices Act is injunctive relief); Allen v. G.D. Searle and Co., 708 F. Supp (D. Or. 1989) (citing Oregon state court cases to support its holding that IUD users seeking damages for infertility could not bring a private enforcement action under the Oregon Unlawful Trade Practices Act, since that Act does not provide a remedy for personal injuries). In other states, the issue of how deceptive trade practices statutes are to be applied is still undecided. See, e.g., McKinney v. Bayer Corp., 2010 U.S. Dist. LEXIS (N.D. Ohio, Sept. 30, 2010) (federal district court certified to Ohio Supreme Court the question of whether consumers have standing to file suit under the Ohio Deceptive Trade Practices Act). Where a personal injury claim under a state deceptive trade practices statute is not precluded by the statute, plaintiff must prove the elements of the claim. This issue was discussed in some detail in Howerton v. Arai Helmet, Ltd., 597 S.E.2d 674 (N.C. 2003), where the North Carolina Supreme Court reversed the trial court s entry of summary judgment in favor of the defendant helmet manufacturer, and remanded the case for trial. In Howerton, plaintiff s personal injury lawsuit was premised in part on a claim of unfair and deceptive trade practices. Plaintiff had incurred a quadriplegia injury as a result of a crash in a motocross race. He sued Arai, the helmet manufacturer, on various product liability theories, alleging that the helmet was defective due to the design of its chin guard. The complaint was amended to add a claim that Arai intentionally engaged in a campaign to deceptively advertise and market the allegedly defective helmet, thereby engaging in an unfair and deceptive trade practice in violation of N.C. Gen. Stat Plaintiff alleged that Arai intentionally disseminated false and misleading information concerning the safety of his helmet, which led him to believe that the helmet provided superior protection from injury and was the best in the market. Specifically, he claimed that Arai placed a Snell sticker on the helmet, indicating its safety certification by the Snell Memorial Foundation, an independent testing facility. Plaintiff contended that the sticker gave him a false impression of superior protection as to the helmet s overall safety when, in fact, the Snell certification did not apply to the chin guard in dispute. The court noted that in order to establish a prima facie claim for unfair trade practices, a plaintiff must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff. Howerton, 597 S.E.2d at 693, citing Dalton v. Camp, 548 S.E.2d 704, 711 (N.C. 2001) and N.C. Gen. Stat (2003). The court then pointed to plaintiff s testimony that he had conducted considerable research before purchasing his motorcycle helmet, that he subscribed to two off-road motorcycle magazines from which he gleaned significant information and impressions concerning Arai helmets, and that he would have read closely all of Arai s advertisements, including the Important Note and Snell certifications in those advertisements. Plaintiff also testified that I would not have purchased the [Arai] MX/a helmet had I known the true facts because I would not have been convinced that the Arai MX/a offered the same overall level of protection as a full face helmet with an integral chin Strategies Fighting the Contrived Attorneys Fee Claim in the... v Bolkcom and Turner v 275

10 guard. In light of these circumstances, the court concluded that genuine issues of material fact had been legitimately called into question, and that summary judgment was inappropriate. Of further interest in Howerton is that the North Carolina Supreme Court made no reference to one of its prior discussions of the unfair trade practices statute, in which it had held that [s]ome type of egregious or aggravating circumstances must be alleged and proved before the [Act s] provisions may [take effect]. See Dalton, 548 S.E.2d at 711, quoting Allied Distribs., Inc. v. Latrobe Brewing Co., 847 F. Supp. 376, 379 (E.D.N.C. 1993). d. Consumer Products Safety Act A product liability defendant may face a claim for damages under the Consumer Products Safety Act (CPSA), 15 U.S.C The CPSA applies generally to consumer goods, but not to certain products regulated by other federal agencies. Examples of products not covered by the CPSA include automobiles, tires, aircraft, boats, alcohol, tobacco, firearms, food, drugs, cosmetics, pesticides, and medical devices. See 15 U.S.C. 2052(a)(5). The CPSA provides a private right of action for persons injured by reason of any knowing (including willful) violation of a consumer product safety rule or any other rule or order issued by the Commission. 15 U.S.C. 2072(a). This private right of action may include recovery of the costs of suit, including reasonable attorneys fees and expert witnesses fees, if the court determines such recovery to be in the interests of justice. Id. Fees and costs can only be awarded to the plaintiff if the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, unless such action is brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. Id. If the plaintiff is awarded: [L]ess than the sum or value of $10,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff, and, in addition, may impose costs on the plaintiff. 15 U.S.C. 2072(b). While the interpretation of the CPSA varies across jurisdictions, plaintiffs have generally not fared well with claims for attorneys fees unless the defendant has clearly violated a Consumer Product Safety Commission (CPSC) rule. See, e.g., In re Mattel, Inc., 588 F. Supp. 2d 1111 (C.D. Cal. 2008) (claims dismissed when plaintiffs failed to identify any CPSC rule or order violated by defendants, since court found there was no private right of action under the CPSA absent violation of a specific rule promulgated by the CPSC), citing In re All Terrain Vehicle Litig., 979 F.2d 755, (9th Cir. 1992); see also Avery by Avery v. Mapco Gas Prods., 18 F.3d 448 (7th Cir. 1994) (no private right of action for failure to follow CPSA s reporting requirements, as opposed to specific rule promulgated by CPSC); Kloepfer v. Honda Motor Co., 898 F.2d 1452 (10th Cir. 1990) (same); Benitez-Allende v. Alcan Alumino Do Brasil, S.A., 857 F.2d 26 (1st Cir. 1988) (same, noting that to permit such an action would mean plaintiffs could bring many perhaps nearly all products liability suits in federal court and obtain attorney fees by alleging that the manufacturer of the defective product should have told the Commission about the defect. ). One of the most frequently cited cases on this point is Drake v. Honeywell, Inc., 797 F.2d 603, 608 (8th Cir. 1986). In Drake, a personal injury plaintiff sued Honeywell, claiming damages for personal injuries sustained in the explosion of a liquid propane gas water heater. Plaintiff claimed that the accident was caused by a design defect in the water heater control knob designed by Honeywell. She asserted common law products liability theories of relief against Honeywell including negligence, breach of warranty, and strict liability in tort. Appended to those claims was a claim predicated upon a private cause of action under section 23(a) of the Consumer Product Safety Act, 15 U.S.C. Sec. 2072(a). 276 v Product Liability Conference v April 2011

11 The Drake court acknowledged that Section 23(a) of the CPSA vests a private cause of action for damages in any person who is injured by virtue of a knowing violation of a consumer product safety rule, or any other rule or order issued by the Consumer Product Safety Commission, and provides attorney fees to the prevailing plaintiff. The court found it significant to the statutory provision that a section 23(a) private cause of action arises only from a rule violation. Section 23(a) does not allow a private action for violations of the statute itself. Plaintiff relied upon Section 15(b) of the Act, 15 U.S.C. Sec. 2064(b), which requires a manufacturer, distributor, or retailer who obtains information that reasonably supports the conclusion that its product contains a defect that could create a substantial product hazard to notify the Commission of the product defect. The Commission, at 16 C.F.R. Part 1115, promulgated rules which elaborate on the statutory reporting requirement. These rules specify, among other things, who must report to the Commission, id. Sec ; what information must be reported, id. Sec ; the form the reports must take, id. Sec ; and the timetable for reporting, id. Sec Plaintiff claimed that before the explosion which caused her alleged injuries, Honeywell had learned that the water heater control knob contained a defect that could create a substantial product hazard. She asserted that Honeywell should have reported the information to the Commission as prescribed by the rules at 16 C.F.R. Part The court noted that the question whether a statute permits a private right of action is ultimately one of congressional intent. While section 23(a) states that a private action may flow from a violation of a rule, it does not similarly provide for private actions based on a violation of the statute itself. Section 15(b) of the statute specifically requires reporting of substantial product hazards. Violation of section 15(b) cannot be prosecuted by private action. The court further noted that as a matter of administrative law, rules not enacted pursuant to an explicit statutory delegation of lawmaking power, called interpretive rules, are issued merely to provide guidance to parties whose conduct may be governed by the underlying statute, and to courts which must construe it. They carry no more weight on judicial review than their inherent persuasiveness commands. Drake, 797 F.2d at 607, quoting Batterton v. Marshall, 648 F.2d 694, 702 (D.C. Cir. 1980). As a consequence of this distinction, while an administrative agency delegated with legislative power may sue to enforce its legislative rule, just as it may sue to enforce a statute, it cannot ground legal action in a violation of its interpretive rule. Rather, the agency must demonstrate to the court that no mere interpretive rule, but the underlying statute, has been violated. A claim of conduct inconsistent with an interpretive rule is advanced only to show that the statute itself has been violated. The Drake court held that the Commission s reporting rules are plainly interpretive rules. Because those rules merely present the Commission s interpretation of the statute, but are not themselves law, the court concluded that plaintiff s claim that Honeywell violated 16 C.F.R. Part 1115 when it failed to report amounted to a claim that Honeywell violated section 15(b) of the Act. Because the Commission s reporting rules, as interpretive rules, are derivative rather than independent of the section 15(b) reporting requirement, a violation of the reporting rules can only signal a violation of section 15(b) itself. Since Congress made it clear that no private action may flow from a violation of the Act itself, a section 23(a) private cause of action cannot arise from an injury resulting from noncompliance with the reporting rules issued by the Commission. The court in Drake also attached importance to the practical consequences of advancing a private cause of action based on the Commission s reporting rules. Claims based on personal injury caused by defective products are pursued in state courts under a theory of strict liability in tort. Rather than the relatively straightforward burden of proving defect and causation, proof of a section 23(a) action brought for violation of the reporting rules issued by the Commission would require a more complex showing, which would tax a state Strategies Fighting the Contrived Attorneys Fee Claim in the... v Bolkcom and Turner v 277

12 factfinder. First, the plaintiff would have to show that the defendant knowingly violated the reporting rules. Second, the plaintiff would have to show that but for the violation, the injury would have been prevented. The court stated that a plaintiff would have to prove that if the defendant had reported in accordance with 16 C.F.R. Part 1115, the Commission pursuant to sections 15(c) and (d) would then have held a hearing, determined that the product in fact contained a defect that presented a substantial product hazard, and ordered a remedy that would have prevented the plaintiff s injury. The causation problem would burden not only the plaintiff, but also the judicial factfinding process. It would be speculation to conclude whether and how the Commission would have responded to the defendant s report, and whether the Commission s response would have succeeded in preventing the plaintiff s injury. As the court stated, We doubt that Congress intended to set such a tortuous process in motion. Although the Drake holding is widely cited and is followed in most jurisdictions, it is not universally accepted. For instance, Drake was recently cited but disregarded in Berry v. Mega Brands Inc., 2009 U.S. Dist. LEXIS 6761 (D.N.J. Jan. 30, 2009). The Berry case involved a class action lawsuit brought in connection with a toy that was ultimately recalled because of an alleged choking hazard. The court in Berry relied on a case from the Northern District of New York that pre-dated Drake, and that contained only minimal discussion of the interpretive rule analysis that was later fleshed out in the Drake opinion, to find that a private right of action did exist for a violation of the CPSA s reporting requirements. See Berry, 2009 U.S. Dist. LEXIS 6761 at 15, citing Young v. Robertshaw Controls Co., 560 F. Supp. 288, (N.D.N.Y. 1983). Accordingly, counsel defending a CPSA claim based solely on the Act s reporting requirements will need to determine how such claims have been addressed in that jurisdiction. B. Strategies for Eliminating or Limiting Attorneys Fees 1. Offers of Judgment Rule 68 of the Federal Rules of Civil Procedure, as well as state equivalents, provide one procedural mechanism defendants should consider to limit plaintiffs attorneys fees claims, control unnecessary litigation and encourage settlement. Rule 68 provides that a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. (Fed. Rules Civ. Proc, rule 68.) If plaintiff fails to accept the offer and does not obtain a more favorable verdict than the unaccepted offer, the plaintiff must pay certain defense costs from the date of the offer. (Fed. Rules Civ. Proc, rule 68.) Each state s Rule 68 equivalent provides for different penalties for plaintiffs who fail to accept offers of judgment. For instance, in Alaska, Florida, Idaho, Michigan, New Jersey and Texas, costs may include attorneys fees. (See Alaska Stat ; Fla. Stat. Ann ; Fla. Rule Civ. Proc (a)-(j); Idaho Rule Civ. Proc. 68, Rule 54(d)(1) and Rule 54(e)(1); Mich. Court Rule 2.405; NJ Court Rules R. 4:58-1, 4:58-2, 4:58-3 and 4:58-4.) Given the penalties provided for by offers of judgment and their state equivalents, it may behoove defendants and their clients to perform an early evaluation of the case and attempt to resolve the case before plaintiffs attorneys rack up fees. If early settlement attempts are not successful, defendants should consider serving offers of judgment. Duale v. Mercedes-Benz USA, LLC (2007) 148 Cal. App. 4th 718, is a prime example of a defendant limiting the amount of an attorneys fees award by serving the state s offer of judgment equivalent. In Duale, plaintiffs purchased a vehicle from defendant and later brought suit under California s Song-Beverly Act after the manufacturer was unable to repair their vehicle. (Id. at 722.) Plaintiffs sought, among other damages, attorneys fees. (Id. at 722.) Defendant served plaintiffs with an offer to compromise, the Rule 68 equivalent, offering to repurchase plaintiffs vehicle and pay their reasonable attorneys fees incurred as of the date of the offer. (Id. 278 v Product Liability Conference v April 2011

13 at 722.) Plaintiffs did not accept the offer. (Id. at 722.) The jury issued a verdict in favor of plaintiffs, but for an amount less than defendant s offer. (Id. at ) Plaintiffs counsel sought its fees. (Id. at 723.) The court of appeals held that because plaintiffs failed to achieve a better result at trial, plaintiffs counsel was not entitled to his fees incurred after the date of defendant s offer. (Id. at 724.) 2. Dispositive Motions a. Generally As a general matter, whether a case warrants a dispositive motion depends on the cause(s) of action plaintiff alleges, and, of course, the facts of the case. Dispositive motions that should be considered when claims that permit the recovery of fees and costs are appended to traditional product liability claims include demurrers, motions to dismiss, motions for summary judgment, and motions for judgment on the pleadings. Every defense attorney should be proactive in thoroughly analyzing the complaint to determine if there is any possible ground to obtain a dismissal of the case for their clients. There are a number of grounds for a potential dispositive motion. For example, if the complaint alleges a consumer fraud claim or deceptive trade practice, a state law may not permit a private right of action as noted above and a dispositive motion on the grounds that plaintiff lacks standing to sue may be appropriate. (See Iowa Code Ann , subd. (7).) If the defendant is authorized by law and the defendant relied upon that law s authority in acting, the defendant may be able to argue its actions fall under a safe harbor provision of the state s consumer fraud statute to secure a dismissal. (See Alaska Stat , subd. (a)(1); Colo. Rev. Stat , subd. (10(a).) For example, if a drug manufacturer makes statements about its product that were included on its FDA approved label, plaintiff s consumer fraud action may not be actionable. (See, e.g., Pennsylvania Employee Benefit Trust Fund v. Zeneca, Inc., U.S. Dist. LEXIS 27444, aff d, (2005) U.S. App. LEXIS (2007), vacated, 129 S. Ct (2009)). Consideration should also be given as to whether a dispositive motion should be filed based on the statute of limitations. This is particularly true if the period starts to run, not from the date of the alleged fraud, but from the date of the underlying transaction. A motion based on the fact that the action is barred by the applicable statute of limitations may be appropriate. (See, e.g., 10 Del. Code Ann. 8106; Nev. Rev. Stat. Ann ; N.Y. C.P.L.R. 214(2).) Another possible ground for a dispositive motion in a fraud type action is the learned intermediary doctrine for prescription drugs and medical devices. The idea behind this theory is the consumer plaintiff did not rely on the manufacturer s representations, but rather relied on their doctor s representations about the drug or medical device. In Colcacicco v. Apotex, 432 F. Supp. 2d 514 (2006), aff d, 521 F.3d 253 (2008), vacated, 129 S. Ct (2009), plaintiff claimed that the manufacturer of the drug Paxil failed to warn consumers of the increased risk of suicidal behavior and brought a claim under the state s consumer protection statute. Plaintiff, however, received the drug from her physician, and on her physician s advice, not because of any statements made by the manufacturer to the plaintiff. The court, therefore, granted drug manufacturer s motion to dismiss plaintiff s claim based on New York s Consumer Protection Law based on the learned intermediary doctrine. (Colcacicco v. Apotex, 432 F. Supp. 2d 514 (2006), aff d, 521 F.3d 253 (2008), vacated, 129 S. Ct (2009)). Of course, the decision to file a dispositive motion should be carefully considered. Some disadvantages to filing dispositive motions, particularly Motions for Summary Judgment, include the time and expense involved in not only preparing the motions, but plaintiffs opposing the motions. Forcing plaintiffs to oppose lengthy motions increases the amount of their potentially recoverable fees dramatically if the motion is unsuccessful. However, if there is a strong basis for the motion and a high probability of success, defendants should Strategies Fighting the Contrived Attorneys Fee Claim in the... v Bolkcom and Turner v 279

14 strongly consider filing the motion, sooner rather than later to avoid the accumulation of unnecessary fees and costs. b. Inconsistent or overlapping theories of liability and remedies In those circumstances where plaintiffs can allege both traditional product liability claims and append a consumer protection statute violation that carries the potential for recovery of attorneys fees, inconsistencies between available remedies should be addressed. In some instances, products liability claims and consumer protection statutes have conflicting elements and/or inconsistent or overlapping remedies. For example, in California, a plaintiff can allege inconsistent or alternative legal theories, so long as the Complaint is unverified. (See Steiner v. Rowley, 35 Cal. 2d 713, (1950); Adams v. Paul, 11 Cal. 4th 583, 593 (1995); Lim v. The. TV Corporation International, 99 Cal. App. 4th 684, 690 (2002)). However, although a plaintiff may proceed to trial on alternative theories with inconsistent remedies, an election of remedies may be required before entry of judgment. (See Clauson v. Superior Court (Pedus Services, Inc.), 67 Cal. App. 4th 1253, 1256 (1998)). Thus, a plaintiff can seek punitive damages for traditional strict products liability and civil penalties (and attorneys fees) for Magnuson Moss and/or Song-Beverly. The plaintiff can then proceed on both theories, but, assuming plaintiff prevails on both theories, plaintiff must elect to accept the remedy under only one theory. (See e.g., Clauson v. Superior Court (Pedus Services, Inc.), 67 Cal. App. 4th 1253 (1998)). If a plaintiff alleges one set of facts or inconsistent facts and then attempts to simply incorporate by reference those facts under each separately pled cause of action, a demurrer or motion to dismiss may be appropriate. However, plaintiffs can circumvent this problem by alleging specific facts under each separately pled cause of action to avoid a dispositive motion on the pleadings. In Alabama, plaintiffs may assert several different types of alternative claims for relief regardless of consistency. (Ala. R. Civ. P. Rule 8.) New York also permits pleading alternative theories of recovery. (N.Y. C.P.L.R and 3017.) In Texas, plaintiffs may proceed to trial on alternative theories, but, like California, are only permitted to recover under one theory, to avoid double recovery. (Tex. Bus. & Com. Code Ann ; see also Latham v. Burgher, 320 S.W.3d 602 (2010); Froemming v. Perez Tex. App. LEXIS 2154 (2006) [plaintiffs proceed to trial on alternative theories and the court awarded the highest recovery for the same injury under alternative theories, instead of permitting double recovery]). In a minority of states, however, there is legislation that specifically provides that plaintiffs cannot maintain a claim involving a product under the state s consumer fraud act. Instead, claims must be brought under the state s product liability act. (See e.g., Sinclair v. Merck & Co., 948 A.2d 587, (N.J. 2008)). In those states with similar laws, defendant manufacturers should be prepared to file dispositive motions. 3. Discovery Focused on Elements of Claims Allowing Attorneys Fees Careful review of the applicable consumer statute that forms the basis for a plaintiff s claim for personal injuries is important to devising discovery aimed at defeating such claims. The required elements of proof should be well understood so that discovery can be crafted to eliminate or limit the claims. Federal statutes, such as the Magnuson-Moss Warranty Act and the Consumer Products Safety Act, can be somewhat easier to deal with in discovery simply because they do not change from state to state. Once you have a set of discovery requests addressing the required elements of each statute, the same types of interrogatories and document requests can be used in varied situations and in multiple jurisdictions. 1) Magnuson-Moss Warranty Act: Depending on the facts at issue in a Magnuson-Moss case, it may be appropriate to direct discovery to: a) a statute of limitations defense; 280 v Product Liability Conference v April 2011

15 b) whether the subject product is actually a consumer product covered by the statute; c) the exact terms of the alleged warranty; d) the exact manner in which the product is alleged to have failed to conform to its warranty; e) the steps taken by plaintiff to attempt repair, replacement, or refund; f) alleged damages; and g) any other questions raised by the particular facts involved. 2) Consumer Products Safety Act: In a CPSA case, it may be helpful to direct discovery to: a) a statute of limitations defense; b) whether the subject product is actually a consumer product covered by the statute; c) the specific CPSC product safety rule or other rule or order that plaintiff claims was violated; d) all facts supporting plaintiff s claim that defendant committed a violation of the CPSC rule or order; e) all facts supporting plaintiff s claim that the alleged violation was a knowing one; f) the exact amount plaintiff claims is in controversy (since this affects plaintiff s ability to recover fees and costs, and may result in fees and costs being assessed against plaintiff see discussion of 15 U.S.C above); and g) other questions prompted by the particular facts of the case. 3) State Deceptive Trade Practices Acts: The Uniform Deceptive Trade Practices Act provides a general template for considering the appropriate focus of discovery on deceptive trade practices claims based on state law. Those provisions most likely to form a basis for a product liability claim may include the following: Deceptive Trade Practices (excerpted from 2, UDTPA). (a) A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he: *** (2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services; *** (5) represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; or *** (7) represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another. Discovery should be crafted to challenge the validity of any claim made pursuant to a consumer statute, such as a Deceptive Trade Practices Act, with the aim of challenging the viability of the claim by dispositive motion or motion in limine. The use of contention interrogatories is helpful in discerning the specific claims being made concerning an alleged deceptive trade practice. Demand disclosure of each and every fact that forms the basis for spe- Strategies Fighting the Contrived Attorneys Fee Claim in the... v Bolkcom and Turner v 281

16 cific allegations in the complaint. Requests for admission relating to the absence of exposure to and/or reliance upon a defendant s advertising or other written materials should be used as well. Interrogatories and requests for production should be framed to require specific identification of each and every representation plaintiff claims was made that would establish product qualities, particularly as those qualities relate to safety. Inquiry into the content, location, and timing of each alleged representation should be made. Production of any written representations should be demanded. Plaintiff should be required to detail each and every exposure to each alleged representation. Interrogatories can also focus on plaintiff s contentions and proof of any alleged causal connection between defendant s alleged conduct and plaintiff s alleged injuries. Detailed deposition inquiry should be made with reference to plaintiff s specific personal knowledge of and possession of advertising or other written materials attributed to defendant; the basis for any purchase of the subject product; and the manner in which plaintiff claims to have relied upon such advertising. For those claims for which a jurisdiction requires proof of scienter, i.e., intent on the part of a defendant, discovery to plaintiff should be framed to elicit detailed disclosure of each and every act, writing, or other manifestation that plaintiff contends demonstrates scienter. 4. Discovery Focused on Attorneys Fees Recovery To the extent that a claim that would support an attorneys fee award survives, discovery either pre- or post-verdict should be undertaken to examine in detail the basis for any claimed fee award. Where the bulk of the proof is on issues that append to other claims made in the case relating to the specifics of product design and manufacture, rather than representations concerning product quality and safety, discovery of and careful examination of plaintiff s counsel s billing may support an argument that will limit the amount of fees awarded. 282 v Product Liability Conference v April 2011

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