April 2011
From the editors of Wolters Kluwer Law & Business, this update describes important developments from CCH products liability and safety publications.
If you have any comments or suggestions concerning the information provided or the format used, we'd like to hear from you. Please send your comments to pamela.maloney@wolterskluwer.
Products Liability
Cross-Jurisdictional Class Action Tolling Challenged
A manufacturer of a brand name drug that was prescribed to treat a patient’s lymphoma-associated bone loss has asked the U.S. Supreme Court to review a decision by the Montana Supreme Court (sub nom. Stevens v. Novartis Pharmaceuticals Corp., CCH Products Liability Reports ¶18,553 (ip access user)(IntelliConnect)), finding that the patient’s claims were timely because a pending class action had tolled the applicable statute of limitations. In this case of first impression, the Montana high court explained that it adopted the class action tolling rule—which was designed to promote judicial economy—subject to the circumstances presented in this case in order to ensure defendants were not unfairly prejudiced. The patient’s warnings claim and the alleged resulting injury, the state court noted, were the same as, or substantially similar to, those of the class action. The state court said it was not necessary that the claims in the class action lawsuit and those in the patient’s action be identical: under modern pleading rules—the drug maker was entitled only to be on notice of the nature of claim, rather than the damages alleged, which did not need to be pleaded specifically. Thus, the manufacturer was effectively put on notice of the patient’s claim by the class action lawsuit, the court determined, and allowing class action tolling in this context did not unfairly prejudice the manufacturer for lack of notice. The petition asks the U.S. Supreme Court to decide whether tolling the statute of limitations for individual claimants based on the pendency of a mass personal injury class action violates fundamental federal due process protections when the class action provides no notice to a defendant of the identity of unnamed class members, this absolutely precluding the timely preservation of evidence and testimony critical to presenting an effective defense. (Novartis Pharmaceuticals Corp. v. Stevens, Docket No. 10-1196, March 30, 2011)
Review of Jury Award Sought by Hormone Therapy Drug Maker
A manufacturer of hormone replacement drugs, which were taken by three women who alleged that the drugs caused their breast cancers, has asked the U.S. Supreme Court to review a ruling by the Nevada Supreme Court (sub nom. Wyeth v. Rowatt, CCH Products Liability Reports ¶18,540 (ip access user)(IntelliConnect)), upholding a jury’s $58 million punitive damages award to the women, who had asserted strict products liability and personal injury claims against the drug maker. The jury awarded both compensatory and punitive damages. One of the Nevada court’s conclusions was that both the compensatory and punitive damages awards were supported by substantial evidence. The court found that the compensatory damages award did not shock the court’s conscience, and, thus, were not excessive. In addition, the court determined that the amount of the punitive damages award did not violate the drug maker’s due process rights as the awards were reasonable and proportionate to the drug maker’s actions. Further, the state supreme court stated that although the jury improperly and prematurely deliberated punitive damages, the error was cured by the jury’s redeliberation and the district court’s subsequent granting of a remittitur—reducing the $35.1 million compensatory damages to $23 million, and the $99 million punitive damage award to $57,778,909. The first question asked by the manufacturer in its petition is whether, when a verdict has been tainted by a jury’s passion or prejudice, due process requires a trial court to grant a new trial instead of remittitur. Second, the drug maker asks whether, and in what circumstances, a trial court violates due process when it awards a substantial amount in compensatory damages but nevertheless proceeds to award punitive damages in an amount exceeding the one-to-one ration indicated in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) [CCH Products Liability Reports ¶16,805 (ip access user)(IntelliConnect)], and Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). (Wyeth LLC v. Scofield, Docket No. 10-1177, March 24, 2011)
Settlement Amount for Pet Food Purchase Claims OK'd
The allocation of $250,000 from a $24 million settlement to pay claims seeking reimbursement of monies claimants had paid to purchase pet food against manufacturers of contaminated pet food was affirmed once again by the federal district court in New Jersey as fair, reasonable, and adequate. Under the terms of the settlement, those with purchase claims were not required to provide any documentation of the purchase but, instead, could simply affirm, subject to penalty of perjury, that they had purchased a recalled pet food. Thus, the court found that this portion of the settlement protected the interests of class members who either had not save their tainted pet food or the documentation proving its purchase, while at the same time, took into account the heavy burden product purchase claimants would have to bear in order to prove their case through litigation. The court stated that this portion of the settlement also acknowledged the real concern about potential fraud. With regard to the amount allocated for these claims, the court noted that the figure represented a 43.6% recovery, which was within the required range of reasonableness for confirmation. In addition, that percentage aligned with the 49% recovery obtained by claimants with other claims or additional economic damages. Finally, the court concluded that the allocation was fair because product purchase claims represented only 2.2 percent of the total value of all claims made, and 52 percent of all claimants had not even made a purchase claim but had submitted claims for other economic damages, such as veterinarian bills and the fair market value of a deceased pet. (In re: Pet Food Products Liability Litigation (DNJ) CCH Products Liability Reports ¶18,591 (ip access user)(IntelliConnect))
Hip Device Evidence Insufficient to Establish State Law Claims
A patient failed to raise any genuine issue of material fact in support of her products liability and negligence claims under Alabama law against the manufacturer of the prosthetic hip which she had implanted and which was subsequently removed by rescission surgery following the alleged failure of the device, the U.S. Court of Appeals for the Eleventh Circuit ruled in an unpublished opinion, affirming a federal district court in Alabama [CCH Products Liability Reports ¶18,451 (ip access user)(IntelliConnect) and ¶18,452 (ip access user)(IntelliConnect)]. The federal district court ruled in favor of the hip device maker on the patient’s products liability claims, finding that she failed to offer sufficient nonexpert evidence for a jury to find, as the patient alleged, that the device was defective because of the failure of the prosthetic hip’s acetabular cup to achieve biological fixation, thereby causing the product to fail. On appeal, the patient argued that the evidence she presented raised genuine issues of material fact that the acetabular cup implanted in her hip was unreasonably dangerous as manufactured because it contained residues that impeded biologic fixation. The court rejected the patient’s arguments, however, because the evidence she presented was inadequate: the manufacturer’s letter recalling the hip device stated only that “in some cases” the level of manufacturing residuals exceeded the company’s self-imposed acceptance criteria and was not an admission that the acetabular cup was defective; the recall letter was inadmissible as evidence of subsequent remedial measures used to show product defect; while a U.S. Department of Health and Human Services Warning Letter described the manufacturer’s failure to establish and maintain certain general quality control procedures, it said nothing about the presence of residuals in any acetabular cups; and medical records indicating a “hardware failure” were not sufficient to permit a jury to conclude that the product was defective because, under Alabama law, the “mere failure of a product does not presuppose the existence of a defect.” While a defect, and its causal relation to the patient’s injury, could be inferred “from the product’s failure of performance under all the attendant circumstances,” nothing about the circumstances in the case permitted that inference, the court said. In addition, the court ruled that the patient failed to raise any genuine issue of material fact in support of her negligence claims against the device manufacturer. Thus, the court of appeals concluded, on the record presented, a jury only could speculate as to why the prosthesis failed in the case. (Hughes v. Stryker Corp. (11thCir) CCH Products Liability Reports ¶18,607 (ip access user)(IntelliConnect))
Airplane Maker’s Warning Duty Did Not Include Pilot Training
An airplane manufacturer’s duty to warn of dangers associated with the use of its aircraft did not include a duty to provide pilot training, even though the plane’s purchase price included transition training, and, therefore, the manufacturer was not liable for the death of the plane’s pilot and passenger when the plane crashed shortly after take-off, the Minnesota Court of Appeals ruled. The court explained that even though the manufacturer’s warning duty included providing adequate instructions for the safe use of the product, the adequacy of those warnings must be evaluated in light of the knowledge and expertise of those who reasonably could be expected to use the product. The manufacturer offered “transition training” as a means of satisfying its duty to provide adequate instructions for safe use but the purpose for transition training was to assist the pilot in becoming proficient in the use of an unfamiliar aircraft. While proficiency training promoted the safe use of a new plane, the court found no support in the law for the proposition that the manufacturer’s duty to warn included a duty to train the pilot to handle the aircraft proficiently. In this case, even though the pilot may have needed transition training to safely pilot his new plane, the court determined that it did not follow that the manufacturer had a duty to provide that training in order to meet its warning duty under a product-liability theory. The purpose of requiring warnings and instructions for safe use was to put the user on notice of the dangers associated with the product. The manufacturer provided a handbook with detailed, written instructions regarding how to activate and operate the autopilot. The estates did not claim that this information was inadequate to put the pilot on notice of the dangers associated with the aircraft, the court concluded. (Glorvigen v. Cirrus Design Corp. (MinnCtApp) CCH Products Liability Reports ¶18,608 (ip access user)(IntelliConnect))
No Preemption; Damages OK in Antibiotic Warnings Action
A pharmaceutical company, which produced a brand name antibiotic drug used to treat bacterial infections, failed to show that it was “physically impossible” to comply with state laws pertaining to adequate warnings and with the Food, Drug, and Cosmetic Act in support of its preemption argument in an action by a patient who, after eight days of taking the prescribed drug for an upper respiratory infection, suffered Achilles tendon ruptures, a federal district court in Minnesota determined. As a result, the court held that the patient’s failure-to-warn claims were not preempted. The patient’s case was the first case tried in a larger multi-district litigation, and the jury found for the patient, awarding $700,000 in compensatory damages and $1.1 million in punitive damages. The drug maker contended that the antibiotic’s label was approved by the Food and Drug Administration (FDA) and was subject to strict guidelines related to changes of labeling that left it unable to alter the warnings on the drug’s label. The court found, however, that even if the drug maker could not have strengthened the warnings on the label, or instituted a black box warning, it could have requested the black box warning. Further, the court said that even if the drug maker could not have altered the “[i]ndications and usage” section of the drug label to include comparative data, it could have applied for a waiver from the FDA requirement of an “adequate and well-controlled stud[y].” In addition, the company’s argument that the drug’s class designation left the company unable to supplement the mandated class label was rejected by the court because there was abundant evidence that other manufacturers supplemented class labels in other instances. Moreover, the drug maker proffered no evidence that other methods of warning physicians, such as “Dear Doctor” letters, targeted meetings with sales representatives, or other techniques short of label changes were “physically impossible” such that the claims against it were preempted. The court also ruled that the specific type of preemption articulated in Buckman v. Plaintiffs’ Legal Committee [CCH Products Liability Reports ¶16,119 (ip access user)(IntelliConnect)], which found implied preemption when a plaintiff brought a claim predicated entirely on a theory of fraud on the Food and Drug Administration, was not applicable to the patient’s punitive damages claim, which, according to the court, did not hinge on a defrauding of the FDA. Evidence of potential fraud committed on the FDA was simply a portion of the patient’s evidence offered to support the punitive damages claim, the court said. [For earlier rulings in this multi-district litigation, see CCH Products Liability Reports ¶18,529 (ip access user)(IntelliConnect) and ¶18,530 (ip access user)(IntelliConnect).] (Schedin v. Ortho-McNeil-Janssen Pharmaceuticals, Inc. (DMinn) CCH Products Liability Reports ¶18,604 (ip access user)(IntelliConnect))
Risk Contribution Doctrine Constitutional as Applied
Application of the risk contribution doctrine to identify the particular manufacturer that produced the batch of white lead carbonate pigment contained in the paint coating on the walls of an apartment where a child lived did not violate paint manufacturers' constitutional rights, a federal district court in Wisconsin held. While the child was living in the apartment, the paint had deteriorated and the child had ingested flakes and dust which contained the highly toxic pigment. The ingestion of the pigment adversely affected the child's cognitive development. The manufacturers contended that the doctrine violated due process and imposed retroactive liability contrary to either the due process or takings clause of the U.S. Constitution. The court found nothing arbitrary or irrational about the risk contribution doctrine or its application in the context of this case. All pigment was functionally interchangeable and by the 1920s the pigment makers knew or should have known of the harm that their product caused but they continued to manufacture and promote it. The court explained that doctrine provided each of the named lead paint manufacturers an opportunity to show that the child could have been harmed by lead from another source, that the manufacturer did not produce the pigment during the relevant period of time or in the geographical market, or that the manufacturer was less culpable than other manufacturers or had a smaller market share. Further, the manufacturers were in a better position than the injured child to present evidence relating to their past operations. Moreover, courts have recognized that courts have routinely upheld modifications of the burden of proof against due process challenges. The paint manufacturer's retroactive liability challenge was rejected by the court because the doctrine did not impose liability but merely modified the plaintiff's burden of proof. In addition, the manufacturers failed to identify any private property that would be the subject of a taking for public use without compensation. (Sifuentes v. American Cyanamid Co. (EDWis) ¶18,593 (ip access user)(IntelliConnect))
Expert's Methodology Reliable in Benzene Exposure Case
An expert toxicologist's general causation testimony that exposure to benzene can cause acute promyelocytic leukemia (APL) was admissible in support of negligence claims by a refrigerator technician against defendant chemical companies, the U.S. Court of Appeals for the First Circuit held, reversing a determination by a federal district court in Massachusetts. The technician alleged that the rare type of leukemia he developed was caused by his routine workplace exposure to benzene-containing products that had been either manufactured or supplied by the named companies. Although the toxicologist was qualified as an expert, the lower court determined that his proffered testimony lacked sufficient demonstrated scientific reliability to warrant its admission under Federal Rule of Evidence 702. The expert based his opinion that benzene can cause APL on a "weight of the evidence" methodology, which required the use of scientific judgment. The appellate court ruled that it was up to the jury to decide whether to accept the expert's opinion that exposure to benzene can cause APL, a proposition the technician had to prove by a preponderance of the evidence. In excluding the expert's testimony, the lower court did not properly apply Daubert v. Merrell Dow Pharmaceuticals, Inc. [CCH Products Liability Reports ¶13,494 (ip access user)(IntelliConnect)] and exceeded the scope of its discretion, according to the First Circuit. The court of appeals concluded that the expert's opinion rested on a scientifically sound and methodologically reliable foundation as required by Daubert, and, therefore, warranted admission.(Milward v. Acuity Specialty Products Group, Inc. (1stCir) CCH Products Liability Reports ¶18,600 (ip access user)(IntelliConnect))
Possible Liability of Distributors in Asbestos Matter
The daughter of a deceased co-owner and operator of a fruit company presented sufficient evidence from which a jury could find that asbestos fibers from products supplied by two automobile parts distributors contributed to the co-owner's death, the Massachusetts Appeals Court ruled, reversing a lower court's dismissal of the daughter's claims, on behalf of her mother's estate, against the distributors. In addition, the appellate court affirmed that the evidence in the daughter's wrongful death claims against the manufacturer of a trailer, which was purchased by the fruit company in 1984, and which the estate alleged contained asbestos brake linings, was insufficient to send the claims to a jury. The daughter/administratrix of the co-owner's estate alleged that the co-owner contracted mesothelioma because she inhaled asbestos fibers in the workplace that came from automobile/motor vehicle parts from the company's fleet of vehicles, and asserted claims for breach of express and implied warranties of merchantability and for common-law negligence against the distributors and manufacturers of the asbestos-containing products. The court concluded that a jury could find the necessary causal link between exposure to the distributors' products and the co-owner's contraction of mesothelioma by reason of expert medical testimony presented on behalf of the deceased. The expert, a well-qualified pathologist, furnished the opinion that "each and every exposure to asbestos" that the co-owner experienced as a bystander to the fruit company mechanics' work with asbestos-containing vehicles "was a substantial contributing factor in causing [her to contract] malignant mesothelioma." The court found this to explain the causal link between exposure to asbestos and contraction of the disease. In contrast, the court ruled that the daughter failed to present sufficient evidence to send her wrongful death claims against the trailer manufacturer to a jury. The court determined that the decedent's estate had no reasonable expectation of proving that the trailer purchased by the company contained asbestos-bearing brakes made by the manufacturer-defendant in the case. Additionally, the court of appeals held that the trailer manufacturer was not liable for failing to warn the co-owner about the dangers of using compressed air while removing any manufacturer's asbestos-lined brakes from the trailer. (Morin v. AutoZone Northeast, Inc. (MassAppCt) CCH Products Liability Reports ¶18,599 (ip access user)(IntelliConnect))
Step Stool Maker Not Required to Warn of Usable Life
A manufacturer of a step stool had no duty to provide warnings regarding the usable life of the product and, therefore, was not liable for arm and shoulder injuries sustained by a user, who admittedly had not read any of the warnings on the stool before using it, a federal district court in Louisiana held. The bottom step broke as the user stood on it, causing her to fall and injure her arm and shoulder. The user claimed that step stool was unreasonably dangerous because its label did not warn that the product had a usable life—at the end of which the risk of collapse began to increase—and that the user should inspect the supporting elements of the step stool to identify when the usable life had ended. The user also claimed that the manufacturer should have provided instructions on how to identify when the step stool had reached the end of its usable life and what to do when that occurred. The court found that even though the user presented expert testimony that the rivet on the broken step had reached its useful life and was at risk of breaking, that there should have been a warning that the stool could wear out over time, what to look for to ascertain the level of wear, and what to do when the stool appeared to be worn out, there were no specific facts in the record to demonstrate a genuine issue of fact as to the manufacturer’s failure to warn. Taken as a whole, the court concluded that the user’s testimony did not establish an issue of material fact regarding whether an inadequate warning was the proximate cause of her injuries. (Peart v. Dorel Juvenile Group, Inc. (EDLa) CCH Products Liability Reports ¶18,606 (ip access user)(IntelliConnect))
Cigarette Lighter with Disabled Child Safety Could Be Defective
Whether a cigarette lighter found at the scene where a three-year-old child had accidentally set his t-shirt on fire was produced by the named manufacturer, was the actual cause of the child’s injuries, and was defectively designed were questions for jury resolution according to a ruling by a Kentucky federal district court. The court also found that the testimony offered by three experts on behalf of the child was relevant on the issue of the availability of an alternative design and that the experts were qualified to testify in this matter. The court pointed out that legal causation could be established by a quantity of circumstantial evidence from which a jury could reasonably infer that the product was the legal cause of the harm. In addition, the child’s conservator argued that the manufacturer did not comply with federal regulations requiring cigarette lighters to be equipped with a child safety mechanism that could not be easily overridden or deactivated, and was, therefore, negligent per se, eliminating the need to introduce evidence of feasible design alternatives. However, the court determined that state law limited the operation of the negligence per se doctrine to violation of state statutes and did not include federal statutes or regulations. The court went on to explain that in order to prove the lighter was defective by virtue of an unreasonably dangerous design, the child’s conservator was required to produce evidence of a reasonable alternative design that would have prevented the injury. A report by one of the conservator’s experts presented three alternative designs, and the conservator claimed that each of the designs made the child safety device more difficult to remove and less probable that the child could have operated the lighter, and that the alternate designs were known to the manufacturer at the time it designed the lighter used by the child. The court concluded that, based on this evidence, a reasonable jury could conclude that an alternative design would have prevented the injuries. Finally, the court decided that testimony offered by the conservator’s experts that the child safety feature on the cigarette lighter was defective because it was easily deactivated was reliable and would assist the trier of fact in determining whether the lighter was, in fact, defective. (Cummins v. BIC USA, Inc. (WDKy) CCH Products Liability Reports ¶18,610 (ip access user)(IntelliConnect))
Product Safety
New Standard for Toddler Beds Approved by CPSC
CPSC unanimously approved a new mandatory standard to improve the safety of toddler beds. This new standard is built on the ASTM voluntary standard for toddler beds (F1821-09) and adds additional protections to prevent injuries to children. The new federal standard requires the following: the upper edge of the guardrail must be at least five inches above the toddler bed's mattress; spindle/slat strength testing for toddler beds must be consistent with the testing required for crib spindles/slats; and separate warning labels to address entrapment and strangulation hazards must appear on toddler beds. The new standards are effective October 20, 2011. (CPSC News Release #11-199, April 14, 2011)
Lead Paint Third Party Testing Requirements Amended
CPSC has amended the criteria and process it uses for acceptance of accreditation of third party conformity assessment bodies for testing compliance with the lead paint ban regulations (previously published in 73 FR 54564 of September 22, 2008 [CCH Consumer Product Safety Guide ¶56,829]). The purpose of the amendment was to require third party testing bodies to specify CPSC and/or ASTM published test methods in the scope of its accreditation. Third party conformity assessment bodies have two years from the April 15, 2011 publication date of the notice to amend their scope documents to reflect the specific test methods acceptable to the commission. After that date, previously accepted third party conformity assessment bodies that test for 16 CFR part 1303 conformity must have been accepted by CPSC for one or more of the acceptable specific test methods to maintain CPSC-accepted status. All accreditations must be issued by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation-Mutual Recognition Arrangement (ILAC-MRA). New applicants seeking CPSC acceptance of accreditation to test to 16 CFR part 1303 conformity will have the option to apply without reference to a specific test method or to apply to CPSC for acceptance of one or more test methods for up to one year after the April 15 publication date. Also after one year, the option for third party conformity assessment bodies to apply for CPSC-acceptance of accreditation to 16 CFR part 1303 without reference to a CPSC required test method will not be permitted. (See CCH Consumer Product Safety Guide ¶58,090 (ip access users) (Intelliconnect)
Safety Standard for Portable Bed Rails Proposed
The Consumer Product Safety Commission (CPSC) has proposed a more stringent safety standard for portable bed rails, withdrawing its previous proposed rulemaking of October 3, 2000 [CCH Consumer Product Safety Guide ¶40,190]. Portable bed rails are installed on adult beds to prevent children from falling out of the bed, and are intended for use by children, typically 2 to 5 years of age, in getting in and out of an adult bed unassisted. The proposed standard is substantially the same as the voluntary standard developed by ASTM International, but with some modifications to strengthen the standard. The CPSC concluded that these more stringent requirements would further reduce the risk of injury associated with portable bed rails. The proposed rule would contain new performance requirements and associated test methods to address misassembly of portable bed rails. The addition in the standard of misassembly performance requirements will result in portable bed rail designs that will render the portable bed rail no longer functional if it is not assembled according to the manufacturer-intended final assembly, or make it obvious to the consumer that the product is misassembled. Moreover, the proposed rule would create new terms which will help testing laboratories understand the new performance requirements and associated test methods to reduce entrapment hazards associated with portable bed rails. The proposed rule also would contain a new performance requirement and associated warning label for portable bed rail critical installation components to address issues related to misinstallation of portable bed rails. Comments on the proposal must be received by June 27, 2011. (See CCH Consumer Product Safety Guide ¶40,246 (ip access users) (Intelliconnect)
Remediation Protocol on Problem Drywall Updated
The Consumer Product Safety Commission (CPSC) and Department of Housing and Urban Development (HUD) have issued an updated remediation protocol for homes with problem drywall. Under the updated remediation protocol, CPSC and HUD were no longer recommending the removal of all electrical wiring in homes with problem drywall. This recommendation was unlike their earlier guideline that focused on the replacement of problem drywall and building components. Some of the matters discussed in the updated remediation guideline are: possible health and safety hazards related to corrosion in drywall homes; assessment of the effect of problem drywall-related corrosion on electrical distribution components; effect of problem drywall-related corrosion on electrical distribution wiring indicated that exposed copper wires were corroded; and some cautions for homeowners. The agencies hoped that this change in government protocol may reduce the cost of remediation since many homeowners wanted to begin the process of repairing their homes affected by problem drywall. CPSC and HUD stated that it was in the final stages of completing its scientific investigation about the problem drywall. (See CCH Consumer Product Safety Guide ¶58, 061 (ip access users) (IntelliConnect))
Toyota Settles Class Action Involving Transmission Defects
Toyota Motor Sales, U.S.A., Inc. has reached an agreement to settle a class action in which consumers alleged transmission defects in their RAV4 sport utility vehicles (SUVs). Under the settlement agreement Toyota will extend its limited warranty (8 years or 80,000 miles) to 10 years or 150,000 miles. Settlement Class members who experience/experienced problems with the engine control modules (ECMs) or ECM-related damage to the transmissions on their 2001–2003 RAV4s will receive repairs or replacements free of charge. Toyota also will reimburse those Settlement Class members who paid out-of-pocket to repair or replace the ECMs and/or transmissions. The settlement also includes individuals who had to repair or replace their ECMs and/or transmissions, but have since sold their RAV4, and includes individuals who lease their vehicles, making the agreement one that provides benefits to a broader group than a previous understanding reached between Toyota and the California Air Resources Board that had covered only current RAV4 owners. The Settlement Agreement covers the approximately 235,000 vehicles sold in the United States and Puerto Rico. The class had alleged that purchased or leased 2001 through 2003 model year Toyota RAV4 SUVs contained an ECM defect that caused a condition called “harsh shift” that could result in transmission failure. Class members further alleged that Toyota wrongly concealed that the vehicles’ ECMs were defective, and that they would not have purchased, or would not have paid as much for, their vehicles had Toyota disclosed the alleged defect. Documents filed with the court request certification of the settlement class and approval of the proposed settlement. (Carin v. Toyota Motor Sales, U.S.A., Inc. (NDCal) No. C09-05418 RS, March 23, 2011)