American Conference Institutes 7th Annual Summit on Defending & Managing

Automotive Product Liability Litigation

Expert Strategies for Singles-Out Vehicles and Media-Focused Issues

Wednesday, June 04 to Thursday, June 05, 2014
The Omni Chicago Hotel on the Magnificent Mile, Chicago, IL

Day 1: Wednesday, Jun 04, 2014

7:30
Registration and Continental Breakfast
8:00
Co-Chairs’ Welcoming Remarks
  • Thomas P. Branigan
    Executive Managing Partner
    Bowman and Brooke LLP
  • Cari K. Dawson
    Partner
    Alston & Bird LLP
8:05
In-House Insights on Case Evaluation, Litigation Management and Formulating Defense Strategy; Managing Costs; Selecting and Retaining Law Firms and Distribution of Legal Spend in Today’s Environment; and More
Panel 1 (8:05–9:20)
  • Erinn D. DePorre
    Senior Counsel - Product Litigation
    Chrysler
  • Donald Parshall, Jr.
    Senior Counsel, Legal Department Product and Business Litigation Group
    Nissan North America
  • James G. Derian
    Litigation Attorney
    Delphi Automotive Systems, LLC
  • Brad J. Safon
    Senior Corporate Counsel
    Honda North America, Inc.
  • Scott Cordes
    Vice President, Chief Legal Officer
    Gulf States Toyota
  • Scott Richardson
    Senior Counsel
    Bridgestone Americas
  • Steve Taub
    Assistant General Counsel
    U-Haul International Legal Department
  • Jorgen W. Weterrings
    Assistant General Counsel and Director of Legal Affairs - Product
    Mitsubishi Motors North America, Inc.
  • Alexandra Nellos
    Attorney
    Caterpillar Inc.
Panel 2 (9:20–10:40)
  • Thomas T. Johnson
    Legal Counsel
    Kawasaki
  • Don Schiemann
    General Counsel
    TK Holdings Inc.
  • Yves St-Arnaud
    Director Legal Services
    Bombardier Recreational Products Inc.
  • Jason Erb
    Assistant General Counsel
    Hyundai Motor America
  • Nan Meyer
    Managing Director - Casualty/Products Liability
    Markel - Product Line Leadership
  • Nicole K. Schwieterman
    Litigation Counsel
    Cooper Tire & Rubber Company
  • Webster Burns
    Vice President and Assistant General Counsel
    Toyota Legal One
  • Steven L. Grey
    Chief Counsel, Product Legal
    Isuzu North America Corporation
  • Charles S. Kim
    Assistant General Counsel, Product Litigation
    Mazda North American Operations
Panel Co-Moderators:
  • Robert F. Chapski
    Shareholder
    Lewis‚ King‚ Krieg & Waldrop‚ P.C.
  • Peter J. Fazio
    Partner
    Aaronson Rappaport Feinstein & Deutsch‚ LLP
​The Changing Landscape of Automotive Liability and the Newest Claims Being Asserted
• Vehicle safety assist technology that makes cars safer
• The trend toward catastrophic claims Case Evaluation
• Determining which case should go to trial and which should settle
• Controlling future litigation: identifying trends to ward off future lawsuits; knowing when to resolve a case and when to pay more to defend a suit
• Reporting to and advising a CEO Selection and Evaluation of Outside Counsel
• Underlying partner relationships and engagement of outside counsel
• The things that clients really want to know before engaging outside counsel
• Pet peeves: “worst practices” that outside counsel should avoid committing

Managing Legal Costs, Including Outside Counsel Fees
• Managing outside counsel through realistic and accurate litigation budgets and best practice for communications and candor with clients
• Alternative billing success stories
• Managing the cost of defending cases that require retention of expert witnesses and expense of obtaining the testimony required by Daubert rulings
• Frivolous lawsuits when injury results from the accident itself (not a defect): how to avoid the sheer volume of these suits placing a burden on legal resources
10:35
Morning Break
10:45
The Latest Nuances in Defending Against Typical Defect Theories: Rollovers, Side Curtain Air Bags, Fires, Tire Aging, Electronic Stability Control, Unintended Acceleration, Keyless Ignition, Seat Backs and Beyond
  • Dane E. Taylor, Esq.
    Senior Counsel/Litigation/RDE&Q
    The Goodyear Tire & Rubber Company
  • John (Jay) R. Reid, Jr.
    Partner
    McDonald Toole Wiggins, P.A.
  • Richard H. Grafton
    Principal
    Germer PLLC
  • Nancy M. Erfle
    Partner
    Gordon & Rees LLP
​Rollovers
• Factoring in the latest mechanics and engineering issues into rollover claims

Unintended Acceleration
• Updates on unintended acceleration cases

Fires
• Newest science behind fire cases
• Examining claims that a defect caused fire, and evidence issues associated with the claims
• Standards to prove defect

Keyless Ignition
• Problems associated with rollaways and leaving the car running (carbon monoxide poisoning)
• Push button ignition technology
• FMVSS 114

Side Curtain Safety Canopy/Rollover Curtain
• Combatting the latest claims that defendant should have had a Rollover Safety Canopy/Curtain in place or sooner and the injuries would have been mitigated if did; should not have been optional; should have covered more rows
• Factoring in accident sequence; pre-trip occupant position; occupant kinematics; type of injury
• Side curtain airbag requirements, standards, and claims
• Combating Plaintiff ’s argument that side curtain airbags should have been installed sooner or that all models should have side curtain air bags

Tires and Tire Aging
• The latest claims regarding lack of proper warnings, improper tire manufacture or design, improper recommendation, failure to follow recommendations by retailers
• The relationship between tread separation and loss of control
• Analyzing typical tire defenses, including damage from service abuse and damage from road hazards
• Successfully creating the best defense strategy for tire claims
• Tire technology and its impact on performance of the vehicles
• Assessing the issues regarding low profile tires and higher end vehicles
• Emerging technology on run fl at tires
• Developing litigation strategy to dismiss the product liability claims and minimizing damages
• Identifying the dangers associated with high PSI tires Electronic Stability Control (ESC)
• Examining the liability issues presented by electronic stability control (ESC): the federal regulation that applies, and its effect on liability
- FMVSS regulations
• How to counter “lack of ” electronic stability control (ESC) claims: Countering plaintiff ’s argument that if said changes were made (usually at a few dollars per vehicle) the accident/injury would not have occurred
• How to respond to ESC as a direct challenge to the defense that rollovers are the result of driver conduct and that an accident is unavoidable

Seat Back Litigation
• Combatting the latest claims arising from rear-impact cases in which occupant(s) of the vehicle hit sustain injuries due to the deformation of the front passenger seats
12:20
VSA and Autonomous Cars: Overcoming the Product Liability Defense Challenges Associated with Vehicle Driver Assist Technologies, Sensor Technologies and Active Safety Systems; and Anticipating the Future of Claims Involving Autonomous Cars
  • Jerry L. Johnson
    Vice-President & Deputy General Counsel
    Robert Bosch LLC
  • Thomas P. Branigan
    Executive Managing Partner
    Bowman and Brooke LLP
  • Gerard Cedrone
    Shareholder
    Lavin‚ O'Neil‚ Ricci‚ Cedrone & DiSipio
• Potential regulatory implications for autonomous cars
• Technologies that apply brakes, blind spot warnings, switch lanes, rear steering, and push button starts to assist the driver: What is the consumer expectation?; What is the comparative negligence?; Determining whether additional features will lead to product liability claims

• Where are we on the latest claims and where are we headed?
• Defense challenges: limitations of sensors; difficulty in testing and proving durability and reliability over the long term; absence of regulation
• How to factor in questions of driver’s unreasonable reliance on manufacturer/distributor representations and driver’s possible misunderstanding of system functions or limitations
• What happens when the system fails and operation by the driver could have prevented an accident?
• Responding to the argument that the new technology should have been installed in lower models
- Phasing in new technology
• Anticipating the future of product liability litigation in autonomous cars
1:10
Networking Lunch for Speakers and Delegates
2:10
Special Address on the Latest Safety Technologies, the Regulatory Environment, and What to Expect in the Coming Months and Years
  • O. Kevin Vincent
    Chief Counsel
    National Highway Traffic Safety Administration
2:50
The Current Battleground for Automotive Class Action Litigation: Class Certification and Managing Experts, Attacks on Pleadings in Class Claims, Choice of Law, Arbitration and More
  • H. Grant Law
    Partner
    Shook‚ Hardy & Bacon L.L.P.
  • Neal Walters
    Partner
    Ballard Spahr LLP
  • Stephen T. Waimey
    Attorney
    LHDK&W
​Class Development and Case Law Update
• What cases are recently decided and brewing that will directly affect manufacturers and consumers? Where is the battleground today and for the near future in Class Actions?
• Examining the interplay between Knowles and CAFA: Removal from state to federal court where total recovery including attorney’s fees is $5million or more; Preventing forum shopping
• Identifying the commonality of class action claims
• Rule 23(b)(3) class actions
- Examining the Comcast decision
• Issue certification under Rule 23(c)(4)
• Class action in the absence of manifest defect: Examining the Whirlpool decision
• Examining the Sears decision
Attacks on the Pleadings in Class Claims (Through Motion to Dismiss and Summary Judgment):
• Recent class case law on MTDs involving presale knowledge of a defect; and manifestation beyond the warranty
• Aggressively developing a defense strategy earlier in the process including filing a motion for summary judgment to get the majority of the counts thrown out
• Expand the pleadings record by incorporating technical service bulletins: using the bulletins as a sword to expand the record and expose plaintiffs’ argument
Certification, Managing Class Experts, and Daubert Review
• CAFA and its impact on Experts in automotive class action litigation
• The standard for class certification scrutiny of experts
• Scope of Daubert review at class cert in the Circuits
• Challenging the merit of plaintiffs’ case at class cert.
• Analyzing pleadings and experts offered by your opponent
• Preparing experts for rigorous analysis in a full Daubert-like review at the class cert. stage.
Choice of Law
• Defending against the nationwide vehicle-defect class action based on a single state’s laws
• Will plaintiffs resort to statewide classes to avoid choice-of-law problems and circumvent CAFA?
• Lining up the cases against nationwide classes
• Making arguments in the context of choice-of-law rules
• Building a choice-of-law record
• The plaintiff ’s predominance burden, including a workable trial plan with specific proposed jury instructions
Arbitration
• Understanding the Supreme Court’s ruling in Concepcion and its impact on the right to arbitrate class action claims in the automotive context
• Blocking class action through arbitration
- Interplay between Walmart and arbitration
3:50
Afternoon Break
4:00
Combating the Recent Rise in the Filing of Claims and Class Actions Involving No-Injury, Consumer Fraud and Warranties (Express and Implied)
  • H. Toby Schisler
    Partner
    Dinsmore & Shohl LLP
  • Cari K. Dawson
    Partner
    Alston & Bird LLP
• Defending against the latest consumer fraud and warranty claims; claims of reliance on general defect; claims involving manufacturing supplied literature; economic loss/damage claims; and more. Other topics include:

Consumer Fraud
• Defending against consumer fraud class action suits: Identifying claims based on false advertising
• Identifying the nuances of consumer fraud statutes from state to state
• Overcoming the claim that Defendant should have informed the Plaintiff it had pre-existing knowledge of the defect
• Assessing whether consumer fraud and negligent misrepresentation or glorified breach of warranty cases are disguised as class action claims
• Identifying and managing vehicle manufacturing, sales and service documents and data that raise consumer fraud claims
• Creating trial tactics for defeating automotive consumer fraud claims: deploying consumer behavior principles
• Seeking nationwide class certification status by relying on a particular state’s consumer fraud statute that is favorable to the facts of the case even though some cars were purchased in a completely different state
• Countering plaintiff attorneys’ efforts to take low exposure claims and turn them into huge class actions
• Countering plaintiff ’s efforts to look to commercial-type remedies such as restitution to provide class-wide relief

Warranties
• Liability issues arising out of warranty claims
- Breach of warranty claims: express or implied
- Magnusson-Moss Warranty Act on attorney fee shifting provision for breach of warranty claims involving consumer products
• Updates on status of warranty law as it relates to the automotive industry
• Breach of warranty cases that become class action cases
• How secret warranties (“after warranty assistance”) and warranty administration are impacting class claims

Disclosure/Accuracy
• Assessing claims that the fuel economy is misrepresented on Monroney Label
• Examining claims of odometer inaccuracy; assessing risk and damages
• Identifying successful defense strategies
• Claims based on breach of express and implied warranty
• Examining regulatory action and investigations by the EPA over fuel rating and MPG
5:00
Recalls: How They Are Impacting Class Actions; Litigation Strategy to Defeat Class Claims; Recall- Based Rule 23 Arguments; Mootness; and More
  • S. Vance Wittie
    Special Counsel
    Sedgwick LLP
  • Michelle I. Schaffer
    Shareholder
    Campbell Campbell Edwards & Conroy
  • Paul Wojcicki
    Shareholder
    Segal McCambridge Singer & Mahoney
  • Barry I. Buchman
    Partner
    Gilbert LLP
• Developing a strategy when plaintiff gets notice of a recall after an accident
• What is the litigation strategy for recall cases?
- Strategies for helping the jury understand that despite recall, company acted reasonably in terms of timing and notification of issuance of recall
- Punitive damages
• Business to business relationship
- How one company will sue another company in the aftermath of a recall and claim part or system was fully to blame for the recall
• Recalls and Business Impact: How the latest recalls are impacting class claims
• Using Recalls to help defeat class actions
• Identify and develop appropriate recall based Rule 23 arguments
• Asserting mootness arguments
6:00
Conference Adjourns

Day 2: Thursday, Jun 05, 2014

7:30
Continental Breakfast
8:00
View From the Bench
  • Honorable Leslie E. Kobayashi
    United States District Court, District of Hawaii

  • -Honorable James P. O'Hara
    U.S. Dist. Ct., D. Kan.

  • The Honorable Alan C. Torgerson
    Magistrate Judge
    US District Court‚ District of New Mexico
  • Honorable Paul Warner
    United States District Court, District of Utah

  • Honorable F.A. Gossett, III
    United States District Court, District of Nebraska
  • Honorable John Milton Younge
    Philadelphia Court of Common Pleas
  • The Honorable Richard Kramer
    Complex Litigation Judge
    San Francisco Superior Court
Moderator:
  • Anthony J. Monaco
    Partner
    Swanson‚ Martin & Bell‚ LLP
9:50
Morning Break
10:00
Practical Pointers on Experts in the Automotive Context: Effectively Cross-Examining Plaintiff ’s Expert and Developing Qualified Newer Experts
11:00
Evidence Preservation/Spoliation, Controlling Costs Associated with Discovery and E-Discovery, and Avoiding Sanctions for Discovery Abuse
  • Alex Purvis
    Partner
    Bradley Arant Boult Cummings LLP
  • James J. Yukevich
    Partner
    Yukevich Cavanaugh
Evidence Preservation/Spoliation
• PRESERVATION OF: The subject vehicle; all parts and components of the subject vehicle; downloadable computer data; Photos/video of the vehicle and the scene; Email, letters, memoranda or other documents; Online social media content created
• Reconstructing evidence and schematics of vehicle impact
• Spoliation: what are the courts doing and what abuses are still being experienced?
• Elements to a spoliation argument: Culpability, relevance, and prejudice; Proposed amendment to Rule 37(e)
• Overcoming the issue when the vehicle is completely destroyed and evidence is lost
• Issues and accusations of document destruction/hiding; how to adequately explain the destruction of documents and maximize the ability of the manufacturer to tell its story

Discovery/E-Discovery
• Ways to effectively control costs associated with discovery
• Understanding the law in different jurisdiction and how this impacts your case
• Implementing document/litigation holds
• Addressing proportionality in e-discovery
- How courts are addressing e-discovery issues in the beginning of the litigation process rather than the end
• Keeping e-discovery plans current and defensible
• How e-discovery practices apply to automotive databases for warranty and service maintained by automotive companies
• Proposed changes to the Federal Rules of Civil Procedure: Safe harbor provisions; Preservation; Production
• What big data means in the e-discovery context

Sanctions for Allegations of Discovery Abuse
• How courts are increasing sanctions for allegations of discovery abuse
- Recovering attorney’s fees
- Striking pleadings
• Implementing strategies and procedures both in house and with local/national counsel to streamline the discovery response
• Dealing with expensive discovery requests meant to trap the defendant to get sanctioned
- Limiting broad, overwhelming, and unnecessary discovery requests
- Examining motion practice
12:15
Networking Lunch for Delegates and Speakers
1:00
Updates on the Preemption Defense and International Personal Jurisdiction and Their Impact on Auto Products Liability Cases
  • Jonathan M. Hoffman
    Attorney
    Martin, Bischoff, Templeton, Langslet & Hoffman LLP
  • David M. Rice
    Partner
    Carroll, Burdick & McDonough LLP
​Preemption
• What has been the impact of all recent cases on the preemption defense in automotive cases?
• Examining decisions going both ways Personal Jurisdiction
• The latest minimum contacts required for specific personal jurisdiction, i.e., where the claim arises from the defendant’s contacts with the forum?
• Products claims against foreign manufacturers that do not arise from the defendant’s contacts with the forum
• Assessing the sufficiency of a foreign manufacturer’s alleged contacts with the forum
• Examining the role of stream of commerce
• Determining whether compliance with U.S. federal safety standards is enough
• Examining the impact of Daimler AG. v. Bauman on general jurisdiction
• The 9th circuit court decision in Walden v. Fiore on finding specific jurisdiction
2:00
1 HOUR OF CLE-ETHICS: Ensuring Confidentiality in the Litigation of Automotive Claims, Protecting Work Product in a Discovery Dispute, and Using Arbitration to Your Advantage
  • Alex Purvis
    Partner
    Bradley Arant Boult Cummings LLP
  • Rafe Taylor
    Partner
    Johnson, Trent, West & Taylor, LLP
  • Ms. Lisa Moran McMurdo
    Partner
    Moran Reeves & Conn PC
• Properly communicating with the client on document
retention and production
• Advising on the deletion of draft opinions that are
considered work product
• Notifying class of arbitration via the internet and whether
this satisfi es due process
• Filing motion to compel arbitration by a third party
benefi ciary (component part manufacturer)
• Determining whether the claim and product at issue
is within the ambit of the contract
• Allowing the third party benefi ciary to arbitrate even
though the contract is between the plaintiff and the dealer
3:00
Conference Ends