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Snodgrass v. Ford Motor Co.

May 25, 2000

IN RE FORD MOTOR COMPANY IGNITION SWITCH PRODUCTS LIABILITY LITIGATION
TERI SNODGRASS, ROBERT L. BAKER, WILLIAM CARTER, KENDALL ELLIS, JILL P. FLETCHER, JUDITH SHEMNITZ, FRANK SHERRON, TAMAZ TAL, JAMES J. AND KAY NAVE, LARRY W. AND PAMELA GEORGE, MARGIE MAYES, AND JEFFREY SWIKLINSKI, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS,
V.
FORD MOTOR COMPANY AND UNITED TECHNOLOGIES CORPORATION,
DEFENDANTS.



MDL No. 1112

The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge

OPINION

SIMANDLE, District Judge

I. INTRODUCTION

In this consolidated Multi-District Litigation class action suit, plaintiffs claim that they own or owned vehicles manufactured by defendant Ford Motor Company ("Ford); that their vehicles came equipped with defective ignition switches manufactured by defendant United Technologies Corporation ("UTC"); that defendants knew that the switches were defective and nonetheless persisted in selling the affected cars and trucks; and that vehicles were damaged by fires caused by short circuits in the defective switches.

Presently before the Court is the renewed motion of the Snodgrass plaintiffs *fn1 for class certification. This Court's jurisdiction is based upon diversity of citizenship, and the laws of nearly 50 states give rise to the various causes of action asserted by members of the proposed classes and subclasses. The main issue for decision is whether plaintiffs' amended class definition satisfies the prerequisites for class certification set forth in Fed. R. Civ. P. 23(b)(3). For the reasons discussed below, the Court concludes that even under plaintiffs' revised proposed class definition, this case is not appropriate for class action treatment, and will deny plaintiffs' application.

II. BACKGROUND

The background of this case is discussed in detail in this Court's August 1997 Opinion and Order denying first plaintiffs' motion for class certification. See generally In re Ford Motor Co. Ignition Switch Products Liability Litigation, 174 F.R.D. 332 (D.N.J. 1997) (hereinafter "In re Ignition Switch"). The present opinion incorporates the factual and procedural discussion therein, and only a short background summary is needed here.

In brief, Snodgrass plaintiffs' predecessors' initial motion for class certification in this case *fn2 sought to certify a class of "all persons or entities who purchased or who leased, other than for purposes of resale or leasing, one or more Ford vehicles in model years 1984 through 1992 and who owned Ford vehicles from model year 1993 with ignition switches manufactured before October 1992, and whose vehicles caught on fire as a result of a defective ignition switch." (Wilks Not. of Mot.) No personal injury or wrongful death claims were asserted.

By Order dated August 28, 1997, this Court denied plaintiffs' motion for class certification without prejudice to later renewal of such motion. See In re Ignition Switch, 174 F.R.D. at 356. Among the reasons for the Court's denial of plaintiffs' proposed class certification were that, for the purposes of the proposed class (1) there were not sufficient common factual and legal issues, id. at 342- 51, and (2) plaintiff failed to show that class action was a superior method of adjudicating the controversy, id. at 351-354. The Court left open the possibility, however, that "after further discovery . . . the 158 model years could be grouped into a few risk categories if a common trial were to be held . . .", id. at 345, and thus the dismissal was without prejudice to re-filing for certification upon curing these deficiencies and submission of a "suitable blueprint for trial". Id. at 356. Plaintiffs now claim that they have cured the deficiencies which impaired the original certification motion, and once again move the Court to approve the plaintiffs' request for class action treatment. III. DISCUSSION

A. Class Action Certification Standards

1. Rule 23(a) Class Action Predicates

Rule 23(a) of the Federal Rules of Civil Procedure sets forth four general preconditions that putative class representatives must satisfy before any case is certified as a class action:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).

Additionally, Rule 23(b) defines four different types of class actions, and the party seeking certification must demonstrate that the case falls within one of the Rule 23(b) categories. The plaintiffs bear the burden of proving that the proposed class action satisfies each of the requirements of Rule 23(a) and one of the prerequisites of Rule 23(b). See Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994).

A motion for class certification should not turn on the court's evaluation of the merits of the parties' legal or factual claims. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). The court may find it necessary, however, to analyze the elements of the parties' substantive claims and review facts revealed in discovery in order to evaluate whether the requirements of Rule 23 have been satisfied. See Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996) (citing Manual for Complex Litigation 3d § 30.11 (3d ed. 1995)).

2. Rule 23(b)(3) Class Action

As in the first motion for class certification in this case, the parties' arguments are directed to whether plaintiff has satisfied class certification requirements of Fed. R. Civ. P. 23(b)(3). In order for a class action to be certified under Rule 23(b)(3), the putative class representatives must show, in addition to the four general prerequisites of Rule 23(a), that:

questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P. 23(b)(3).

The Supreme Court has recently interpreted Rule 23(b)(3)'s requirements when it affirmed the Third Circuit's determination that certification of a nationwide settlement class for alleged asbestos victims was improper. Amchem Prods., Inc. v. Windsor, 117 S.Ct. 2231 (1997), aff'g Georgine v. Amchem Prods., Inc., 83 F.3d 610 (3d Cir. 1996). In that case, the Supreme Court reiterated that whether "questions of law or fact common to the members of the class predominate over any questions affecting only individual members" may be referred to as the predominance requirement. The predominance inquiry "trains on the legal or factual questions that qualify each class member's case as a genuine controversy . . . ." Amchem Prods., supra, 117 S. Ct. at 2249. "The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Id. (citing 7A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1777, at 518-519 (2d ed. 1986)).

B. Plaintiffs' Renewed Motion for Class Certification

Plaintiffs' renewed motion for class certification seeks to certify a truncated version of the original proposed class, and proposes two specific subclasses. These are (1) an "Implied Warranty (fitness for Ordinary Purposes) Subclass", and (2) a "Deceptive Trade Practice Subclass". (Snodgrass Mot. at 1-3.) *fn3 (The full proposed class definition is set forth in the Appendix hereto.)

Plaintiffs' proposed Implied Warranty subclass would include "All owners of Ford Class Vehicles that have burned or been damaged by fire because of a defective Fox ignition switch during the Class Period". (Id. at 1.) Plaintiffs seek to restrict this class by excluding, inter alia, personal injury claims, purchasers of vehicles in at least seventeen states that require vertical privity, purchasers other than "consumers" in four states, and purchasers in Mississippi whose cars burned after 36,000 miles. (Id. at 2.)

The proposed Deceptive Trade Practices group is even more complex. This subclass would also include "All owners of Ford Class Vehicles which have burned because of defective ignition switches during the Class Period", but would restrict class membership to those plaintiffs who have in common similar state statutes that (1) prohibit unfair or deceptive trade practices generally, (id. at 3 (listing 30 states)), and/or (2) prohibit "conduct such as representing that goods have characteristics, uses, benefits, or qualities that they do not have or that goods are of a particular standard, quality, or grade if they are another (id. (listing nine states)). Included in the second group are several sub-subclasses for plaintiffs from states that (a) require a showing of scienter (10 states), (b) require a showing of some "aggravating factor" other than scienter (2 states), and (c) require proof of justifiable individual reliance (3 states). (Id.) In addition to the specific requirements for membership, the deceptive trade practices subclass would exclude, inter alia, persons other than "consumers" residing in 22 states, and persons whose claims would be time-barred. (Id. at 4.)

For reasons discussed below, the court holds that common issues of law and fact do not predominate even these elaborately restricted proposed subclasses, that class action is not a superior means of litigating plaintiffs' claims, and that class certification is not appropriate under Rule 23(b)(3). Accordingly, the court need not and does not reach the question whether plaintiffs have satisfied the threshold Rule 23(a) requirements.

C. Whether Individual Issues Predominate Even Under Plaintiffs' Revised Class Definitions

The Supreme Court has noted that the predominance requirement is not met when there exist a greater number of questions peculiar to the several categories of class members, and to individuals within each category, where such uncommon questions are significant. Amchem Prods. 117 S. Ct. at 2250. In the context of the massive class certified by the district court in the Georgine asbestos litigation, the Supreme Court held that the class cohesion that might emerge from the common issues of fact regarding the consequences of asbestos exposure was undermined by the disparities among class members in the means of exposures to different asbestos-containing products, for various lengths of time, resulting in disparities in injury ranging from no physical injury to lung cancer or mesothelioma, with complications of causation arising from cigarette smoking. Id. at 2250 (quoting the Third Circuit's discussion in Georgine v. Amchem Products, Inc., 83 F.3d 610, 626 (3d Cir. 1996)).

That common issues must be shown to "predominate" does not mean that individual issues need be non-existent. All class members need not be identically situated upon all issues, so long as their claims are not in conflict with each other. Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir.), cert. denied, 474 U.S. 946 (1985); Hassine v. Jeffes, 846 F.2d 169, 176-77 (3d Cir. 1988). The individual differences, however, must be of lesser overall significance and they must be manageable in a single class action, as discussed further below.

Here, plaintiffs have proposed a two-stage trial for adjudication of the vehicle owners' claims. Stage One would involve a "class trial" during which competing experts would present classwide statistical and mechanical evidence tending to prove that the fires were caused by the faulty ignition switches. (Pl. Reply Br. at 10.) Plaintiffs argue that their evidence at this stage would establish a "rebuttable statistical presumption" of causation. (Id.) Plaintiffs recognize that statistical evidence of causation would include some "false positives"--fires that fall within the statistical boundaries but were not actually caused a faulty ignition switch. (Id.) Nevertheless, plaintiffs assert that Stage Two would account for such non-ignition fires. To this end, plaintiffs propose that, once the Stage One proofs are completed, Stage Two would allow defendants the opportunity to rebut this statistical proof.

During Stage Two, defendants would be permitted to show on a case- by-case basis that the ignition switches were not the cause of the fire at issue. (Id. at 11.) At this point, defendants would attempt to persuade the jury that certain individual fires were caused by something other than the defective switch. (Id.) Alternative causes could include the installation of after-market equipment or simple negligence on the part of the owner.

For the reasons next discussed, the Court holds that under plaintiffs' proposed two-stage litigation plan, class-wide issues do not predominate over issues involving only individual plaintiffs. The Court's holding results from the following four conclusions: (1) even under the revised proposed class definitions, there exist disparate legal standards that would complicate efforts to prove that common issues predominate the proposed subclasses; (2) the proposed subclasses are not amenable to plaintiffs' proposed prima facie proof of causation through statistics; (3) the causation issues in this case are inherently individual in nature and will depend on facts particular to each individual plaintiff; and (4) owing to the abundant legal and factual issues that would have to be determined on a case by case basis, en masse litigation is not a superior method for addressing the vehicle owners' individual incident claims.

1. Whether Common Legal Issues Predominate

Were this Court to certify plaintiffs' proposed subclasses, the Court first would have to resolve the knotty problem of which legal standards should be applied to each individual claimant. The Court also would have to consider individual legal defenses raised by defendants. The Court discusses these problems in turn.

a. Disparate Legal Standards

As this Court noted in its original opinion in this case, there are a multitude of different legal standards to be applied to individual claimants' warranty, fraud, and consumer protection claims. In re Ignition Switch, 174 F.R.D. at 351. The Court now finds that, even under plaintiffs' refined class definition focusing only on implied warranty and deceptive trade practices claims, such claims vary significantly from state to state, and that this issue thus tilts in favor of denying certification.

With respect to plaintiffs' claims of breach of implied warranty, plaintiffs claim to have resolved the discrepancies between the states' laws in this area by excluding from their proposed class "implied warranty privity states". (Pl. Br. at 39-42.) However, even after excluding the residents of privity states from the proposed class, the Court still would have to wade through an analysis of the implied warranty laws applicable to each individual. Among the distinctions that would remain for resolution at trial are:

§ Each relevant state's definition of merchantability, and whether the alleged defect meets that threshold. Compare Nacci v. Volkswagen of Am., Inc., 325 A.2d 617, 620 (Del. Super. Ct. 1974) (under Delaware law merchantability standard is whether ordinary manufacturer would pursue different design), with Venezia v. Miller Brewing Co., 626 F.2d 188, 190 (1st Cir. 1980) (under Massachusetts law merchantability examines reasonable consumer expectations).

§ The nature of an implied warranty claim under the relevant state's law, i.e., whether the remedy lies in tort or contract. Compare Parillo v. Giroux Co., 426 A.2d 1313, 1317 (R.I. 1981) (contract remedy), with First Nat'l Bank of Dwight v. Regent Sports Corp., 803 F.2d 1431, 1438 (7th Cir. 1986) (applying Illinois law) (tort remedy).

§ Whether the relevant State allows waiver of the Implied Warranty, and whether such waiver occurred. Compare Settlemires v. Jones, 736 So.2d 471 (Miss. Ct. App. 1999) (no waivers of implied warranty), with Star-Shadow Prods., Inc. v. Super 8 Sync Sound Sys., 730 A.2d 1081 (R.I. 1999) (waiver allowed even if phrase "implied warranty" not included in general waiver).

Plaintiffs have also alleged violations of deceptive trade practice statutes. A review of these state laws shows that there exist significant distinctions between the states' consumer protection statutes. As a preliminary matter, it must be noted that the deceptive trade practice claims are contingent on the implied warranty claims. In other words, defendants cannot be held liable under the deceptive trade practice statutes unless plaintiffs succeed in proving that the defective ignition switched rendered their vehicles unmerchantable, and that defendants then knowingly sold the unmerchantable vehicles. (In re Ford Ignition Switch Products Liability Litigation (Snodgrass), Civ. Nos. 96-3125; 96-1814 (JBS), Slip Op. at 19 (D.N.J. May 14, 1999).) In addition to the contingent nature of these claims, of the states included in plaintiffs' proposed subclass, there exist many legal variations between the states' consumer protection laws. Mindful of these variations, plaintiffs have attempted to screen out those states' laws that require privity. Even after deleting the privity states, however, key distinctions remain.

The chief difficulty in finding a predominance of common legal issues within the proposed deceptive trade subclass is that the statutory protections vary greatly from state to state. For example, conduct actionable under one state's laws may not be actionable under another's. Compare N.J.S.A. § 56:8-2 (any unconscionable practice), with Cal. Civ. Code § 1770 (proscribing 23 specific activities). Moreover, despite plaintiffs' attempt to limit the deceptive trade practice subclass only to "consumers", problems remain. This is because some states have different definitions of the word "consumer". Compare Ga. Code Ann. § 10-1-392(3) (consumer is a purchaser of goods for personal, family or household), with W.Va. Code § 46A-6-102 ("`consumer transaction' means a sale . . . for a personal, family, household or agricultural purpose") (emphasis added).

Based on the foregoing, the Court finds that there exist significant differences between the states' causes of action for violation of implied warranty and deceptive trade practices. These distinctions lessen the predominance of common legal issues. Moreover, the practicalities of applying such varied state law would demand significant attention from this Court, not the least of which would be instructing the jury or juries consistent with the law of each relevant state. In sum, even under the revised class definitions, this Court finds that common legal issues do not predominate. Accordingly, the continuing legal distinctions present in this case favor denial of certification.

b. Available Legal Defenses to Vehicle Owners' Individual Claims

There exist additional roadblocks to plaintiffs' proposed classes even beyond the difficulty in applying the legal distinctions discussed above. One such barrier is the question of which states' law should apply to particular claims. This Court has previously stated that the law to be applied to each individual claim is that of the plaintiff's home state. In re Ignition Switch, 174 F.R.D. at 348. As defendants have pointed out, choice of law may prove to be a point of debate if a plaintiff's residence is in doubt, or if he bought his vehicle somewhere other than his home state.

Another knotty issue is whether plaintiffs were comparatively or contributorily negligent. These ignition switches are located in upon the vehicle's steering column in the passenger compartment. The Court already has recognized that there are many causes of electrical fires, including after-market add-ons. Id. at 347. The possibility that some of the potential plaintiffs had such accessories added decreases the likelihood that common issues predominate. Moreover, even if this court were to allow plaintiffs' proposed two-step trial to proceed, defendants would have to be given the opportunity to cross-examine each plaintiff as to whether such accessories were in fact added, among other individual liability issues. Passenger compartment fires may likewise have many caused in the dashboard and steering column, or from materials within the front seat area having nothing to do with the ignition switch.

Furthermore, the calculation of damages for each plaintiff's loss, assuming liability, would require individualized attention at trial. As plaintiffs admit, not all vehicles within its proposed subclasses were completely destroyed by fire. Some were partially burned, and some were not burned at all, but were instead temporarily filled with smoke. Moreover, some vehicles are worth more (or less) than the ascribed bluebook value. Accordingly, the damage involved in each claim is not common, and the amount of damages to be awarded depends upon the particular facts of each owners' claim, occurring in vehicles spanning nine years and numerous makes and models.

Based on the foregoing, the Court finds that there are a number of important individual issues that would have to be resolved in each class member's case should plaintiffs' proposed subclasses be certified. The predominance of individual issues in this case militates against class treatment.

2. Whether Common Factual Issues Predominate

It is axiomatic that individual causation remains an prerequisite to class membership. Resolution of the "general causation" question of whether the subject switches are capable of causing the damage alleged by the vehicle owners does not show commonality under Rule 23(a)(2). See Arch v. American Tobacco Co., Inc., 175 F.R.D. 469, 488 (E.D. Pa. 1997), aff'd by Barnes v. American Tobacco Co., Inc., 161 F.3d 127 (3d Cir. 1998). The question is not whether the switches have the capacity to cause harm, but rather the highly individualistic inquiry of whether it did cause harm and to whom. Id. citing In re "Agent Orange" Product Liability Litigation, 818 F.2d 145, 164 (2d Cir. 1987). In other words, there can be no inclusion of individuals in either of plaintiffs' proposed subclass unless that person can show that the subject switches caused damage to their vehicle. *fn4

A review of the history of this litigation demonstrates the need for individual causation investigation. The original lead plaintiff in this case, Michael Wilks, was dropped from the case after it came to light that he had himself set fire to his car. See In re Ford Ignition, 174 F.R.D. at 347. Likewise, plaintiff Doreen Giddings's claim was voluntarily dismissed after an investigation revealed that the fire in her car was not related to the ignition switch. (Rept. of Defs.' Statistical Expert Dr. Subbaiah Malladi, Ph.D., at 46.)

Furthermore, investigations by plaintiffs' fire investigation expert, William Hagerty, led to the voluntary dismissal of two of the eight plaintiffs whose cars he investigated. (Hagerty Dep. at 46-47.) As shown by the events surrounding Mr. Hagerty's work for the plaintiffs, there is much uncertainty over whether the ignition switches themselves caused the fires, even among persons named as individual plaintiffs and class representatives. Other proposed causes include the installation of after-market equipment, which equipment appears to have increased the likelihood of fire.

Plaintiffs have not alleged that the subject switches always cause the type of harm alleged by the vehicle owners. Indeed, the very definition of plaintiffs' revised proposed subclasses admits that individual causation remains a critical part of class membership. Under the revised class definition, individuals would not be included unless they are an owner of a vehicle that has been "burned or been damaged by fire because of a defective Fox ignition switch". Thus, as recognized by plaintiffs, it is a threshold requirement for class membership that any fire or smoke damage must actually have been caused by one of the subject switches. As shown by a review the language of plaintiffs' proposed subclass definitions, then, class membership is earned by demonstrating a common thread of causation of the particular vehicle fire linked to the ignition switch to the exclusion of other causes. Fundamentally, this raises a problem that one is unable to know who is a member of the class (and thus bound by the court's processes) until a uniform basis of demonstrating causation emerges.

b. Plaintiffs' Proffer of Statistical Evidence of Ignition Switch Failure Rates

This Court noted in its earlier opinion denying class certification that "there exist troublesome issues of causation that may require special case-by-case measures rendering the [Snodgrass] plaintiffs' claims unsuitable for class certification." In re Ford Ignition, 174 F.R.D. at 347. Mindful of this observation, plaintiffs now have attempted through use of statistics to answer the Court's call for evidence showing causation on a subclass basis. The data and statistical analysis performed for these purposes by the Snodgrass experts and counsel reflect much hard work and expense in attempting to refine the analysis to show coherence of the class. For reasons now discussed, the Court finds that plaintiffs' statistical evidence of causation at most may support a rebuttable presumption that the subject switches caused fires in a significant number of vehicles, but that this presumption still will require case-by-case litigation of whether each putative plaintiff's damages actually were caused by defendants' switches. While statistical analysis may greatly aid the proof of individual incidents through the use of inferential evidence, the continued need for individual litigation of causation makes this case unsuitable for class action treatment.

b. Whether Plaintiffs Have a Legal Basis for Their Statistical Proffer

Even if the Court were to assume that the plaintiffs' database was sufficiently reliable to create a presumption that the majority of the proposed subclass members owned vehicles with faulty ignition switches, such an assumption would not obviate the need for detailed claimant- specific investigations and jury trials in order to determine whether the subject switches actually caused the damage alleged. This is because rather than direct proof that the subject switches caused the fires, plaintiffs' statistical proofs are geared only towards creating a "rebuttable presumption" of causation. (Pl. Br. at 11-22.)

Defendants assert that, even assuming that plaintiffs' statistical presumptions are valid, this statistical analysis of Ford vehicles' fire rates could at most suggest to a jury that a putative plaintiff--an owner of a given model/year Ford complaining of a steering column-area fire--might have experienced an ignition fire. Defendants also maintain that the fact that there is an increased statistical likelihood that an ignition switch caused a fire is not conclusive. Because the proffered statistical evidence cannot by itself establish individual causation, defendants argue, an analysis of the statistical likelihood of causation is an exercise in futility.

As further support for their argument that statistics cannot establish causation in this case, defendants cite the Third Circuit's recent decision in Barnes v. American Tobacco, 161 F.3d 127, 135 (3d Cir. 1998), cert. denied, 119 S. Ct. 1760 (1999), for the proposition that even if plaintiffs are able to narrow the field of potential plaintiffs through statistics, the individual plaintiffs still would have to demonstrate that they suffered compensable damages on account of a Fox ignition switch. In Barnes, a group of plaintiffs pursued a class action lawsuit against the tobacco companies on the theory that defendants intentionally enhanced the addictive characteristics of their products. Plaintiffs argued that a Surgeon General's report conclusively established that cigarette smoking is a major cause of three different diseases, and that this evidence more than satisfied their burden of showing that addiction to tobacco caused them harm. Id. at 345. The court rejected this argument, stating that "plaintiffs cannot prove causation by merely showing that smoking cigarettes causes cancer and other diseases. They must demonstrate that defendants' . . . nicotine manipulation caused each individual plaintiff to have a significantly increased [risk of harm]." Id. The Barnes court agreed with the District Court's decision to reject plaintiffs' effort to resolve the issue of individual causation by having each class member answer a questionnaire, stating that the questionnaire would at most establish a prima facie case of causation. Even after a showing of prima facie evidence of causation, the court held, defendants must be allowed the opportunity to cross-examine each individual plaintiff and other witnesses on the plaintiff's behalf, and offer expert testimony about each person's specific circumstances. Id. at 145-46. The Third Circuit agreed with the District Court's conclusion that, owing to the need for individual cross-examination of each individual plaintiff, plaintiffs were proposing an impossible litigation plan. Id. at 146, aff'g, Arch v. American Tobacco, Inc., 175 F.R.D. 469, 488 (E.D. Pa. 1997).

Plaintiffs argue that statistical proof of causation has been approved by other courts, and that the holding in Barnes is inapposite and should be confined to the particular facts of that case. *fn5 (Pl. Br. at 7 & n.7 (citing cases).) The Court disagrees. The similarities between Barnes and this case are manifest. In both cases, the plaintiffs present indirect evidence of causation, and propose a system of rebuttal trials.

This Court finds that Barnes counsels that any proffer of prima facie proof of causation must be viewed with skepticism because it fails to resolve any individual claim without more evidence, and that a threshold requirement for certification is a realistic litigation plan for resolution of individual causation.

c. An Analysis of Plaintiffs' Statistical Proffer

Plaintiffs claim to have created a database of specific model/years of Ford vehicles that have a far greater statistical likelihood of ignition switch fires than do most models. (Pl Br. at 7.) This database is derived from an updated collection of vehicle owners' complaints contained within Ford's Master Owner Relations System ("MORS II"). The individual MORS II complaint entries were created by Ford customer service personnel taking down individual customers' complaints sent by way of letter or telephone, and include the model/year of the owner's vehicle, and the owner's stated complaint. These reports are terse, often unverified, and inconclusive. For example, MORS II entry 19.03.52 involves a November 1995 complaint by an owner of a 1989 Ford Probe, and states only that:

Customer says:

§ the vehicle caught on fire under the dashboard of the vehicle while he was at a stop sign

§ The inside of the vehicle filled with smoke and the vehicle burst in to flames in the interior of the vehicle

§ Under the hood of the vehicle is fine. Was not touched by fire (Pl. Ex. 7, appended to Pl. Supp. Br. Dated January 20, 2000.)

Beginning with a collection of 14,000 MORS complaints involving Ford vehicles with Fox ignition switches, Charles Adams & Associates-- litigation consultants retained on behalf of plaintiffs--reviewed the collection for MORS complaints coded as "visible flame", "smoke", or "burnt" in the passenger cabin. (Affidavit of Charles Adams, Pl. Ex. A at ¶ 9.) From this initial set of 14,000, Adams eliminated those complaints which he concluded could not involve ignition switch fires, because, for example, the report stated that the fire originated in the engine compartment or backseat area. (Adams Dep. at 73:20 to 74:5.) If the MORS entry mentioned an ignition switch, then Adams concluded that the alleged fire was "very likely" caused by one of the subject switches. (Id. at 79:2.) If the MORS report did not specify the origin of the fire, but only said it started in the steering column, Adams classified such fires as "more probable than not as being . . . ignition switch [related]." (Id. at 79:3-6.)

To this list of potential ignition switch fires derived from the MORS II reports, plaintiffs added all incidents in Ford's "ASES" database *fn6 reported as "alleged steering column fires", together with the vehicles of insurance policyholders involved in the State Farm and CSAA subrogation claims, and the Snodgrass named plaintiffs. Apparently, the MORS II reports comprise approximately 47.3% of the total claims. (Pl. Comments on MORS II Sample at 3.) Based on the data just described, the plaintiffs arrived at a figure which has been reduced through a series of eliminations to a putative class of 6,098. (See Pl.'s Second Stage Proceedings Proposals Dated Jan. 21, 2000 at 6 & n.5.)

Plaintiffs have performed an elaborate statistical analysis of the above-described database aimed at creating a statistical presumption that any fire in a class vehicle was caused by one of the subject switches. In this analysis, plaintiffs' expert Dr. Jack Moshman, a statistician, examined the Adams-created fire database and broke down the models/years of vehicles included therein, limiting the class to those vehicles to those model/years having statistically homogeneous fire rates of between 2.702 and 3.304 per 10,000 vehicles. (Pl. Br. at 17.) Plaintiffs have further refined this large class to arrive at two subclasses: Subclass I, which includes seventeen models with an average fire rate of 2.386 per 10,000, *fn7 and Subclass II, a three model group with a fire-rate of 6.210 per 10,000. *fn8 (Pl. Revised Proposed Class Definition at 6-7.) Under this analysis, therefore, the proposed subclasses of vehicle owners include those who own vehicles, which, according to ...


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