The Sixth Circuit recently affirmed a district court’s application of nonmutual offensive collateral estoppel to negligence claims arising out of an MDL—potentially raising the stakes for bellwether trials that are not considered binding by the district court at the outset and the impact that rulings in those cases could have on later decisions.

Continue Reading Sixth Circuit Applies Offensive Collateral Estoppel in Subsequent Mass Tort Proceedings

If a tree falls in the forest but no one is around to hear it, did it make a sound?  Philosophers disagree.  If a product contains a contaminant but no one gets sick, did it cause an injury?  Judges disagree.

In the 2000s, enterprising plaintiffs’ attorneys attempted to push the boundaries of existing tort law by arguing that plaintiffs are entitled to damages for defects even when they cause no physical injury.  These so-called “no-injury” theories of liability were largely rejected by courts.  E.g., Rivera v. Wyeth-Ayerst Lab’ys, 283 F.3d 315, 320–21 (5th Cir. 2002) (dismissing “no-injury products liability law suit”); Johnson v. Bankers Life & Cas. Co., 2014 WL 4494284, at *7 (W.D. Wis. Sept. 12, 2014) (recognizing that in the “consumer product context, courts routinely find lack of standing where—while a product may have been defective in the hands of others—the individual plaintiffs did not suffer the defect and, therefore, suffered no injury”).

While these cases closed the door on “no-injury” product liability claims, they left open the possibility of other “no-injury” claims, such as claims that a manufacturing defect breached a warranty or constituted fraud.  E.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007) (“Notably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege.”).

Whether and when “no-injury” claims are viable is a hotly debated question.  As more fully discussed below, courts disagree on whether a plaintiff who has purchased a contaminated or defective product—but who has successfully used the product for its intended purpose while suffering no physical injury—can maintain a claim.

Continue Reading A Closer Look: Does Purchasing a Defective or Contaminated Product Always Cause an Article III Injury?

The Sixth Circuit recently made it more difficult for plaintiffs to certify a class where individualized inquiries are needed to identify class members. 

In Tarrify Properties LLC v. Cuyahoga County Ohio, 2022 WL 2128816 (6th Cir. June 14, 2022), the Sixth Circuit addressed a claim that Ohio’s tax-foreclosure statute operates as a taking under the federal and Ohio constitutions.  The plaintiff in Tarrify owned delinquent property that was transferred to an authorized land bank, and plaintiff argued that the transfer—which prevented the owner of the delinquent property from recovering the difference between the value of the land and the tax liability—amounted to a taking.  Plaintiff sought certification of a class of owners in which “the total value of [their] property exceeded the amount of the impositions on that property at the time the transfer occurred.”  Id. at *2.  The district court denied plaintiff’s motion for class certification, plaintiff appealed, and the Sixth Circuit affirmed.

Continue Reading Sixth Circuit Adds Teeth to Rule 23’s Ascertainability Requirement

            The Supreme Court recently declined to review the Sixth Circuit’s decision in Sevier County Schools Federal Credit Union v. Branch Banking & Trust Co., 990 F.3d 470 (6th Cir. 2021), which presents a potential challenge to enforcing arbitration clauses added to standard account agreements.  The cert denial serves as a reminder that companies introducing arbitration agreements should take care to follow all contractual change-of-term requirements and create a record of affirmative customer assent whenever possible.

Continue Reading A Closer Look: Arbitration Clauses Added to Account Agreements Face Risks After Supreme Court Declines Review of Sixth Circuit’s BB&T Decision

Under American Pipe and Construction Company v. Utah, the filing of a class complaint tolls the limitations period governing the individual claims of putative class members. 414 U.S. 538 (1974). How such tolling applies on a case-by-case basis can present difficult questions.

One such question is whether American Pipe tolling applies to individual claims