Complex Litigation

Recall Moots Class Action; Video Trial Testimony;
'English-Only' Warnings

By Michael Hoenig - New York Law Journal - July 9, 2012

This column reports on three recent decisions. In the U.S. Court of Appeals for the Tenth Circuit's Winzler opinion, an automobile manufacturer's recall campaign was held to moot plaintiff's putative class action. In the New York Appellate Division's Gabriel decision, the Fourth Department ruled that illegal foreign worker-plaintiffs could be deposed and trial testimony taken via video conference in their home countries. In the U.S. Court of Appeals for the Eleventh Circuit's Farias decision, the appellate court upheld a Florida federal court's summary judgment dismissing a claim that warnings were defective because they did not include admonitions in Spanish.

In a prior article I suggested that, in some respects, we are witnessing a "class actionization of America" in which some lawyers adroitly use broadly worded state consumer fraud acts to plead that the slightest perceived dereliction regarding a product or service amounts to a deep, conspiratorial, anti-consumer fraud.1 Despite some incisive judicial reevaluations regarding the wisdom of placing all claimants' eggs into one super-litigation basket or the inadvisability of allowing certain national, mass products liability actions,2 many judges nevertheless view putative class actions as angelic missions that deserve to survive despite a blitz of reasons why they should not. This phenomenon has spawned a "pot-of-gold-at-the-end-of-the-class-action-rainbow" mentality in which ordinary breach of warranty or "Lemon Law" claims are transformed by pleadings into putative class actions.

Thus, when a well-reasoned decision comes along that injects a much-needed dose of lucidity regarding dismissal of a needless class action, we ought to take note of it. A breath of judicial fresh air now and then can remind us that the fee-driven thicket known as class action litigation needs to be pruned and tamed, lest its jungle-like growth overwhelm its limited purposes.

The new decision is Winzler v. Toyota Motor Sales U.S.A.3 Issued by the Tenth Circuit on June 18, the decision held that Toyota's conduct of a recall campaign overseen by the National Highway Transportation Safety Administration (NHTSA) mooted the plaintiff's class action even though it was commenced prior to the recall.

In Winzler, plaintiff filed state law claims against Toyota on behalf of a proposed nationwide class of 2006 Toyota Corolla and Matrix owners and lessees. She alleged that the cars' "Engine Control Modules" (ECMs) were defective making them prone to stalling without warning. She asked for an order requiring Toyota to notify all relevant owners of the defect and then to create and coordinate an equitable fund to pay for repairs. Before any class action was certified, plaintiff's complaint was dismissed for failure to state a claim.

Just as plaintiff began her appeal, Toyota announced a nationwide recall of 2005-2008 Toyota Corolla and Matrix cars to fix their ECMs. The NHTSA oversees such recall campaigns and can issue stiff fines if the company falls short in carrying out the recall to the safety agency's satisfaction. Among other arguments, Toyota asked the appellate court to find that the recall events overtook plaintiff's lawsuit and rendered it moot.

This caused the panel to examine the doctrine of "mootness" in light of plaintiff's claim for equitable relief. Such claims appeal to the "remedial discretion" of the courts which, necessarily, includes the "concomitant power to deny relief altogether." If events so overtake a lawsuit that the anticipated benefits of a remedial decree no longer justify the trouble of deciding the case on the merits, "equity may demand not decision but dismissal." When it does, a court will hold the case to be "prudentially moot." Even if a "flicker of life" may be left in the lawsuit, even though it may still qualify as a "case or controversy" for the purposes of "standing," a case can reach the point where "prolonging the litigation any longer would itself be inequitable."

"Prudential mootness" doctrine often appears when a plaintiff starts with a viable complaint but then a coordinate branch of government steps in to promise the relief she seeks. Sometimes, for example, a plaintiff seeks to enjoin an agency's enforcement of a regulation which the agency later offers to withdraw on its own. Or, a plaintiff may ask a government department to take an action that it eventually agrees to take voluntarily. Once the plaintiff has a remedial promise from a coordinate branch in hand, the court will generally decline "to add the promise of a judicial remedy to the heap."

Remedy Provided

Remedial commitments of the coordinate branches of the U.S. government "bear special gravity." Governmental promises are taken seriously not only because they are generally trustworthy but because affording a judicial remedy on top of one already offered by a coordinate branch "risks needless inter-branch disputes over the execution of the remedial process and the duplicative expenditure of finite public resources." It also risks the "entirely unwanted consequence of discouraging other branches from seeking to resolve disputes pending in court." Here, plaintiff's case had all the traditional ingredients of a prudentially moot case. By filing documents with NHTSA for a recall, Toyota set into motion "the great grinding gears of a statutorily mandated and administratively overseen national recall process."

Given all this, said the court, there remains not enough value left for the courts to add in this case to warrant carrying on with the business of deciding its merits. "Congress and the Executive have committed to ensure [plaintiff] precisely the relief she seeks." At best, the court might duplicate their efforts and "waste finite public resources in the process." At worst, the court might invite "inter-branch confusion and turf battles" over the details of carrying out an agreed objective.

The court's intervention would, as well, "surely add new transaction costs for Toyota and perhaps reduce the incentive manufacturers have to initiate recalls," all the while offering not even a sliver of additional relief for plaintiff and class members she seeks to represent. "Perhaps the lawyers would benefit," but it is hard to see "how anyone else could."

Where there exists a "cognizable danger" that the coordinate branch will fail and plaintiff will be left without a complete remedy, the court will continue with the case. But, in order to carry the burden of showing a cognizable danger of failure, a plaintiff must point the court to "something more than the mere possibility" of failure. And, it is not enough to merely speculate about or imagine how the other branches of government might fail. To keep the case "alive," plaintiff has to identify something more than mere possibility. Here her efforts fell short. Toyota supplemented the record with materials from NHTSA's file of which the court took judicial notice, even while the case was on appeal. Further, the fact that Toyota's recall was "voluntary" was of no moment. Once the "recall ball gets rolling," the result is the same. NHTSA oversight and enforcement tools follow.

Additionally, even were the agency's processes to effect a remedy shown to be different from a judicial decree, a "cognizable danger" of failure would not be shown. "After all, there are many ways to skin a cat and many ways to provide an effective equitable remedy." Even though reasonable minds might differ about the ideal method of notice, the most optimal timeline for repair, where the repairs should occur, and so on, the recall can still wind up "with equally effective results."

Just as courts are given a range of discretion in shaping an equitable remedy, reversible only for abuse, so too, coordinate government branches should enjoy no less latitude. Indeed, concerns for comity would suggest even more discretionary latitude should be given when it comes to selecting the most appropriate path to a stated remedial objective.

To elevate differences in processes between the safety agency's actions and a judicial decree "would involve not a little hubris," suggesting that the courts' ways are always the best ways. Plaintiff simply worries that the agency may fall down on the job. But that is nothing other than a hypothetical possibility, a "conjectural but not cognizable danger." Although Toyota raised many other bases for dismissal, the Tenth Circuit panel opted for the "narrowest one," prudential mootness.

Given space limitations here, in order to report on two other recent developments, the following survey avoids extensive discussion of facts and court reasoning. The focus is on the pith and substance of the rulings and leaves to interested readers the task of further study.

Video Testimony

In Gabriel v. Johnston's L.P. Gas Service,4 a gas stove explosion at a farm camp killed one migrant worker and injured nine others. Plaintiffs were the nine injured workers, six of them from Guatemala and three from Mexico. All were illegal, undocumented farm workers. They sued various defendants. Some of the plaintiffs were deposed, but others were not. The trial court directed that depositions and medical examinations be completed by a date certain. Most of the plaintiffs, however, returned to their countries because of their illegal status, their financial hardship or superior ability to care for their injuries back home.

Plaintiffs moved for a protective order to allow those plaintiffs who returned home to be deposed by video conference. Further, they sought an order allowing their trial testimony to be taken by video conference. The grounds advanced for these motions were the inability of the plaintiffs to get visas or to return to the United States and, further, that applications to immigration authorities were too expensive (each application came with a $140 fee and some $500 in transportation expenses for an arduous 16-hour trip from their village to the U.S. Embassy in Guatemala). Defendants opposed the motions and cross-moved for an order dismissing the complaint as to those plaintiffs who did not appear for deposition in New York, plus dismissal of the complaint for those who had left the United States and who failed to show up for trial.

Defendants contended that any hardship sustained by plaintiffs was self-imposed by their illegal entry into the United States. Further, taking depositions and trial testimony by video would be prejudicial due to potential problems with technology, inability to evaluate witness credibility, language barriers, potential perjury and impairment of the jury's assessment of witness credibility and plaintiffs' injuries.

Mention was also made of difficulty in locating an interpreter and enforcing the witness oath. Additionally, video trial testimony would preclude defendants from calling plaintiffs as rebuttal witnesses. Balancing the equities, the trial court set a trial date directing plaintiffs to return to the United States for depositions and medical examinations 60 days before trial. It denied defendants' cross-motions without prejudice.

The Appellate Division, Fourth Department, reversed holding that undue hardship, when shown, allows a court to issue a protective order that depositions be conducted outside the country. Here the trial court abused its discretion since plaintiffs faced financial and legal impediments in returning to the United States. As for use of testimony by video conference at trial, the court observed that deposition testimony is within a court's discretion to allow at trial. Although the law prefers "oral testimony in open court," the inability of plaintiffs to return to this country tipped the equities in plaintiffs' favor. Moreover, since the New York Court of Appeals had earlier held that an illegal alien was not barred from pursuing an injury action (in order to further the public policy of tort deterrence principles under the federal Immigration Reform and Control Act), allowing video testimony from Mexico and Guatemala would also support these tort deterrence principles.

Bilingual Warnings

In Farias v. Mr. Heater Inc.,5 plaintiff sued for failure to warn from indoor use of two propane-fired infra-red portable heaters purchased from Home Depot. Some $300,000 in fire damage occurred to her home when she failed to close a valve on one of the propane tanks. Actually, this was an insurer subrogation suit since the latter paid the loss. The federal district court in Florida resolved the warnings claim as a matter of law and plaintiff appealed. Much of plaintiff's complaint and the summary judgment arguments addressed whether defendants had a duty under Florida law to provide warnings in the Spanish language.

The district court concluded that Florida law did not automatically impose a duty to provide bilingual warnings on consumer products. The Eleventh Circuit found no error in the district court's conclusion that warnings provided by defendants were adequate as a matter of law. Further, the appellate court was not persuaded that this suit was similar to a 1992 case where a federal district court in Florida held that defendant's targeting of advertising in Miami's Hispanic media and the presence of many foreign-speaking individuals in the Miami work force, raised a jury issue whether adequate warnings should have included language other than English.6

Here, however, plaintiff Lilybet Farias produced no evidence that Home Depot or the manufacturers specifically had marketed the heaters to Spanish-speaking customers through the use of Hispanic media. Further, Home Depot's recent institution of an internal policy for all of its vendors to use bilingual packaging was "not evidence of a targeted marketing campaign" to Miami's Hispanic community through predominantly Hispanic media outlets.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes:

1. Hoenig, "Class Action Imbroglios Revisited," New York Law Journal, Nov. 12, 2010, p. 3. See also, Hoenig, "Seventh Circuit Unmasks Class Action Ills," NYLJ, Dec. 13, 2010, p. 3; "Class Actions to Be Decided by the Supreme Court," NYLJ, Oct. 18, 2010, p. 3; "'Monkey Business' In the Class Action Jungle," NYLJ, Sept. 10, 2007, p. 3; "Class Action Imbroglios Revisited," NYLJ, May 13, 2002, p. 3.

2. See In re Rhone-Poulenc Rorer, 51 F.3d 1293 (7th Cir. 1995); In re Bridgestone/Firestone Tire Prod. Liab. Litigation, 288 F.3d 1012 (7th Cir. 2002); Thorogood v. Sears Roebuck & Co., 624 F.3d 842 (7th Cir. 2010), pet. for rehearing and rehearing en banc denied, 627 F.3d 289 (7th Cir. 2010).

3. 2012 U.S. App LEXIS 12297 (10th Cir. June 18, 2012).

4. No. 587, CA 11-02517 (N.Y. App. Div., 4th Dept. June 15, 2012) (Slip Opinion); See the news article about this decision, J. Caher, "Workers Cleared to Testify by Video From Home Countries," NYLJ, June 19, 2012.

5. 2012 U.S. App. LEXIS 12749 (11th Cir. June 21, 2012).

6. Stanley Indus. v. W.M. Barr & Co., 784 F.Supp. 1570, 1576 (S.D. Fla. 1992).

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