DAIMLERCHRYSLER CORPORATION, Petitioner - Supreme Court ...

IN THE SUPREME COURT OF TEXAS
NO. 03-1 189
DAIMLERCHRYSLER CORPORATION,
Petitioner,
V.
BILL INMAN, DAVID CASTRO, AND JOHN WILKINS,
each individually and on behalf of all others similarly situated,
Respondents.
On Petition for Review from the Thirteenth Court of Appeals,
NO. 13-02-415-CV
BRIEF AMICUS CURIAE OF PRODUCT LIABILITY
ADVISORY COUNCIL, INC. IN SUPPORT OF
PETITIONER DAIMLERCHRY SLER CORPORATION
John H. Beisner
Brian C. Anderson
Morgen A. Sullivan
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, DC 20006
(202) 383-5370 (Telephone)
(202) 383-5414 (Facsimile)
Hugh F. Young, Jr.
Product Liability Advisory Council, Inc.
1850 Centennial Park Drive, Suite 510
Reston, VA 20191
(703) 264-5330 (Telephone)
(703) 264-5301 (Facsimile)
Attorneys for Amicus Curiae Product Liability Advisory Council, Inc.

IDENTITY OF PARTIES AND COUNSEL
The following persons have an interest in the outcome of this case, or are counsel
for such persons. These representations are made in accordance with Rule 38.1 of the
Texas Rules of Appellate Procedure so that the judges of this court may evaluate possible
disqualification or recusal.
PLAINTIFFSRESPONDENTS
Bill L. Inman, David Castro and John Wilkins, each individually
and On Behalf of all Others Similarly Situated,
Trial and Apoellate Counsel
Steven A. Kanner
William H. London
Douglas A. Millen
Much Shelist Freed Denenberg
Ament gi Rubenstein, P.C.
200 N. La Salle Street, Suite 2100
Chicago, IL 60601-1095
(312) 346-3100
J. Mitchell Clark
Law Offices of J. Mitchell Clark
Frost Bank Plaza
802 N. Carancahua, Suite 1650
Corpus Christi, TX 78470
(361) 887-8500
William R. Edwards, I11
William R. Edwards
John Blaise Gsanger
The Edwards Law Firm, L.L.P.
P.O. Box 480
Corpus Christi, TX 75403-0480
i

Vernon N. Reaser, Jr.
Law Offices of Vernon Reaser, Jr.
202 Pecan Drive
Victoria, TX 77905-0686
(361) 576-5858
DEFENDANT/PETITIONER
DAIMLERCHRYSLER CORPORATION (fikla Chrysler Corporation),
Chrysler Corporation and Chrysler
Trial and Appellate Counsel
William V. Dorsaneo 111
Suellen Ratliff
Mark S. Whitburn
Gibson, Dunn & Crutcher, LLP
2 100 McKinney Avenue, Suite 1 100
Dallas, TX 75201-691 1
(214) 698-3100
Mike A. Hatchell
Molly H. Hatchell
Locke Liddell & Sapp, LLP
100 Congress Avenue, Suite 300
Austin, TX 78701
(512) 305-4700
Theodore J. Boutrous Jr.,
Gibson, Dunn & Crutcher, LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
(213) 229-7000
..
I 11

TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL .................................................................................
INDEX OF AUTHORITIES .........................................................................................................
INTEREST OF AMICUS C b J .............................................................................................. 1
STATEMENT OF THE CASE ...................................................................................................... 2
STATEMENT OF JURISDICTION .............................................................................................. 2
ISSUES PRESENTED FOR REVEEW ......................................................................................... 2
STATEMENT OF FACTS .................................. ................................
SUMMARY OF ARGUMENT .....................................................
ARGUMENT .............................................................................................
I. NAMED PLAINTIFFS’ ASSERTION OF “NO INJURY” CLAIMS
UNDER TEXAS LAW MAKES THEM INADEQUATE CLASS
REPRESENTATIVES AND RENDERS CLASS LITIGATION
INFERIOR TO ALTEFWATE FORMS OF DISPUTE RESOLUTION. ........
11.
111.
SOUND POLICY REASONS JUSTIFY DENYING RECOGNITION OF “NO
INKRY” LAWSUITS ...................................................................................................... 6
THE OVERWHELMING WEIGHT OF AUTHORITY HOLDS THAT “NO
INJURY CLASS ACTION LAWSUITS ARE NOT VIABLE ............. ....... 14
IV. REFUSAL TO RECOGNIZE “NO INJURY“ CLASS ACTIONS WOULD NOT
LEAVE PLAINTIFFS WITHOUT A POTENTIAL REMEDY ..................................... 20
coNcLusIoN ........................................... ................................... ........................... 22
CERTIFICATE OF SERVICE
TAB A: CORPORATE MEMBERS OF THE PRODUCT LIABILITY
ADVISORY COUNCIL
i
iv
...
111

INDEX OF AUTHORITIES
CASES
Page
Accardo v. Bridgestone-Firestone, Inc.,
No. 44495 (40th Judicial Dist. Ct., St. John the Baptist Parish,
La., Apr. 21, 2004) ...................................................................................................... 15
American Suzuki Motor COY v Superior Court,
44 Cal. Rptr. 2d 526 (CafCt.,4pp. 1995) ...................................................... 15, 16, 20
Angus v. Shiley Inc.,
989 F.2d 142 (3d Cir. 1993) ................................................................................. 15,18
Barbarin v. Gen. Motors Corp.,
No. 84-0858, 1993 WL 765821 (D.D.C. Sept. 22, 1993) ........................................... 15
Barbe v. A.A. Harmon & Co.,
705 So. 2d 1210 (La. App. 1998) ............................................................................... 16
Briehl v. General Motors Corp.,
172 F.3d 623 (8th Cir. 1999) ................................................................................ assim
Capital Holding Cor v Bailey,
873 S.W.2d 1874':
Ky 1994) ........................................................................................ 15
Carlson v. Gen. Motors Corp.,
883 F.2d 287 (4th Cir. 1989) ................................................................................ 15, 20
Chin v. Chlysler Corp.,
182 F.R.D. 448 (D.N.J. 1998) ............................................................................... 14, 15
DaimlerChrysler Corp. v. Inman,
121 S.W.3d 862 (Tex. Ct. App. 2003) ................................................................ 4, 6, 19
Feinstein v. Firestone Tire &Rubber Co.,
535 F. Supp. 595 (S.D.N.Y. 1982) ....................................................................... 15, 18
Ford Motor Co. v. Rice,
726 So. 2d 626 (Ala. 1998) ............................................................................. 15, 16, 20
Frank v. DaimlerChysler Corp.,
741 N.Y.S.2d 9 (N.Y. App. Div. 2002) ............................................................ 8, 15,20
Green v. Gen. Motors Corp.,
No. A-2831-01T-5,2003 WL 21730592 (N.J. Super. App. Div.
July 10, 2003) ....................................................................................................... 15, 16
Hubbard v. Gen. Motors Corp.,
No. 95 Civ. 4362, 1996 WL 274018 (S.D.N.Y. May 22, 1996) .................... 14, 15,20
In re Air Bag Prods. Liab. Litig.,
7 F. Supp. 2d 792 (E.D. La. 1998) ........................................................................ 14, 15
In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig.,
288 F.3d 1012 (7th Cir. 2002) .............................................................................. assim
In re General Motors Anti-Lock Brake Prods. Liab. Litig.,
966 F. Supp. 1525 (E.D. Mo. 1997) ........................................................................... 17

INDEX OF AUTHORITIES
Page
In re Rhone-Poulenc Rorev Inc.,
51 F.3d 1293 (7th Cir . 1995) ........................................................................................ 9
Jarman v . United Indus . Corp.,
98 F . Supp . 2d 757 (S.D. Miss . 2000) ........................................................................ 19
Lavelle v . Owens-Corning Fibevglas COT? .,
507 N.E.2d 476 (Ohio Ct . Corn . P1 . 1987) ................................................................. 15
Lee v . Gen . Motors Corp.,
950 F . Supp . 170 (S.D. Miss . 1996) ........................................................................... 15
Martin v . Ford Motor Co.,
914 F . Supp . 1449, n.9 (S.D. Tex . 1996) .............................................................. 15, 16
Orlando v . Fin . One. Inc.,
369 S.E.2d 882 (W. Va . 1988) .................................................................................... 16
Polaris Indus., Inc . v . McDonald,
119 S.W.3d 331 (Tex . Ct . App . 2003) .......................................................................... 6
Schweitzer v . Consol . Rail Corp.,
758 F.2d 936 (3d Cir . 1985) ......................................................................................... 9
Spuhl v . Shiley. Inc.,
795 S.W.2d 573 (Mo. Ct . App . 1990) ........................................................................ 15
Wallis v . Ford Motor CO.,
No . CV-2002-154-2 (Ark. Cir . Ct . Jan . 15, 2004) ...................................................... 15
Weaver v . Chrysler Corp.,
172 F.R.D. 96 (S.D.N.Y. 1997) ...................................................................... 15, 18, 20
Willett v . Baxtev Int’l, Inc.,
929 F.2d 1094 (5th Cir . 1991) ...................................................................... 7, 8, 15, 18
Yost v . Gen . Motors Corp.,
651 F . Supp . 656 (D.N.J. 1986) .................................................................................. 15
Yu v . IBM Corp.,
732 N.E.2d 1173 (Ill. App . Ct . 2000) ......................................................................... 15
Ziegelmaizn v . Dnimler Chlysler Corp.,
649 N.W.2d 556 (N.D. 2002) ................................................................... 15, 16, 17, 20
STATUTES AND RULES
49 U.S.C. 5 30118 ............................................................................................................ 21
49 U.S.C. 5 30120 ............................................................................................................ 21
49 U.S.C. 5 30162 ...................................................................................................... 20, 21
Tex . Bus . & Corn . Code 5 17.565 .................................................................................... 13
Tex . R . Civ . P . 42 ......................................................................................................... 4, 23
V

INDEX OF AUTHORITIES
OTHER AUTHOFUTIES
Page
I
Class Action Fairness Act of 2000, S. REP.
106-420, 106th Cong., 2d Sess. 16 (2000).................................................................. 22
Class Action Fairness Act of 2002, H. REP.
107-370, 107th Cong., 2d Sess. 14 (2002).................................................................. 22
John H. Beisner & Jessica Davidson Miller,
They’re Making a Federal Case Out of It ... In State Court,
25 HARV. J. L. PUB. POL’Y 143 (Winter 2001) ........................................................... 22
John H. Beisner & Jessica Davidson Miller, Class Action Magnet Courts:
The Allure Intensifies, 4 BNA CLASS ACTION LITIG. REP. 58
(Jan. 24, 2002) ............................................................................................................ 22
Peter Huber, Safety and the Second Best: The Hazards of Public Risk
Management in the Courts, 85 COLUM. L. REV. 277 (1985) ..................................... 21
s
Richard A. Posner, A The0 ry o Negligence,
1 J. LEGAL STUD. 29 (1972 ........................................................................................ 12
Richard C. Ausness, The Case for n “Strong” Regulatory Compliance
Defense, 55 MD. L. REV. 1210 (1996)........................................................................ 21
W. Page Keeton, et al.,
PROSSER & KEETON ON THE LAW OF TORTS (5th ed. 1984) ...................................... 14
vi

INTEREST OF AMICUS CURIAE
The Product Liability Advisory Council, Inc. (“PLAC”) is a non-profit association
with 132 corporate members representing a broad cross-section of American and
international product manufacturers.
These companies seek to contribute to the
improvement and reform of law in the United States and elsewhere, with emphasis on the
law governing the liability of manufacturers of products. PLAC’s perspective is derived
from the experiences of a corporate membership that spans a diverse group of industries
in various facets of the manufacturing sector. Since 1983, PLAC has filed hundreds of
briefs as amicus cuviae in both state and federal courts, including this Court, to present
the broad perspective of product manufacturers seeking fairness and balance in the
application and development of the law as it affects product liability. A list of PLAC’s
corporate members is attached at Tab A,’
PLAC and its members maintain a significant interest in this appeal because the
Court of Appeals misunderstood the fatal flaws associated with “no injury” lawsuits, such
as this one, which should bar them from proceeding, at minimum, past the class
certification stage. The Court of Appeals’ approach dramatically expands the litigation
costs for sellers and manufacturers by interpreting Texas standing and class certification
law to extend the potential liability of manufacturers and sellers to consumers never
injured by the product at issue. Not only is the Court of Appeals ruling on injury wrong
as a matter of law, it also has been rejected nearly uniformly by the courts of other states.
’ Pursuant to Texas Rule of Appellate Procedure ll(c), PLAC affirms that it received no outside funding for the
preparation of this brief.

If allowed to stand, the ruling in this case will lead to a flood of baseless class action
lawsuits that would impose undue burdens and expense on the courts of this state and on
the manufacturers and sellers that such suits will target.
STATEMENT OF THE CASE
PLAC adopts the Defendant’s-Petitioner’s statement of the case.
STATEMENT OF JURISDICTION
PLAC adopts the Defendant’s-Petitioner’s statement of jurisdiction.
ISSUES PRESENTED FOR REVIEW
PLAC adopts the Defendant’s-Petitioner’s statement of the issues presented for
review.
STATEMENT OF FACTS
PLAC adopts the Defendant’s-Petitioner’s statement of facts.
SUMMARY OF ARGUMENT
This is the latest instance of a class action lawsuit that need not, and should not,
ever have been filed. Here, plaintiffs seek a monetary award for themselves and all other
purchasers of certain motor vehicles, even though those vehicles have not malfunctioned,
. ,
!
1
and have not caused their owners any injury or loss. To the contrary, this lawsuit seeks a
windfall payment for people whose products have performed precisely as expected.
While the named plaintiffs’ lack of standing itself bars class certification in this
case, their inability to assert a legally cognizable claim under Texas law also creates
adequacy and superiority problems fatal to class certification. Courts across the country,
when confronted with “no injury” claims like those asserted here, have almost
2
1

unanimously arrived at the same conclusion: Unless a product has maljiunctioned or
caused actual injury, its owner cannot seek relief in the courts. They have adopted this
principle regardless of how the plaintiff has styled his or her claim-ie., whether pled in
negligence, strict liability, warranty, or common law or statutory fraud. They have
rejected “no injury” claims regardless of the theory of proof the plaintiff invokes- ie.,
whether the seller allegedly misrepresented the product, an alleged unreasonable danger
exists, or the product allegedly failed to conform to some industry or other standard.
They have rejected such claims regardless of how the plaintiff describes his supposed
damages--i.e.,
whether viewed in terms of the risk of future failure of the product,
diminution in the value of the product, or loss of the benefit of the bargain and cost of
repair. Simply put, courts throughout the United States, when confronted with situations
identical to the one here, have chosen the straightforward course of limiting judicial relief
to those who have actually been harmed.
This doctrine demonstrates that plaintiffs lack standing to assert their claims - a
prerequisite to pursuing a proposed class action. But it also demonstrates that plaintiffs
cannot be deemed adequate representatives of the proposed class - their basic inability to
assert even a plausible claim renders them incapable of representing a class of those who
ostensibly have potentially viable claims against defendants. And it demonstrates that
class litigation is not the superior way to resolve the philosophical debate over seat belt
design that lies at the core of this lawsuit; abstract debates over the risks vs. benefits of
different designs are best presented to the automobile industry’s federal regulatory
agency - the National Highway Traffic Safety Administration. While juries are well-
3

suited to considering actual damage claims by actual victims of allegedly defective
products, they are not well-suited to making highly nuanced automobile design decisions
for the entire country.
Because this rule reflects sound considerations of fairness, efficiency, and
institutional competence, PLAC respectfully urges this Court to reverse the judgment
below on standing grounds, or, alternatively, for the failure to meet the certification
requirements of Rule 42
ARGUMENT
I. NA4MED PLAINTIFFS’ ASSERTION OF “NO INJURY” CLAIMS
UNDER TEXAS LAW MAKES THEM INADEQUATE CLASS
REPRESENTATIVES AND RENDERS CLASS LITIGATION INFERIOR
TO ALTERNATE FORMS OF DISPUTE RESOLUTION.
DaimlerChrysler argued to the Court of Appeals that the named plaintiffs lacked
standing to bring any claims due to the absence of allegations that they incurred a legally
cognizable physical, property, or monetary injury. The Court of Appeals held that
standing existed.
But it reached that conclusion by so watering down the injury
requirement for standing that everyone with an abstract sense of disappointment about
some aspect of the products they buy can meet it. Even if the Court of Appeals were
correct in its standing analysis-ie.,
that the injury question is a merits issue and that
purely theoretical grievances constitute “injury” for standing purposes, see
DairnlerChvysler Corp. v. Inman, 121 S.W.3d 862, 885 (Tex. Ct. App. 2003)-its
standing holding demonstrates that class certification is inappropriate for two other
reasons.
4

First, the named plaintiffs are inadequate class representatives because they lack
an even facially cognizable claim. As Texas purchasers asserting “no injury” claims,
named plaintiffs are governed by Texas law.
Texas, like the majority of other
jurisdictions, does not recognize “no injury” claims under any legal theory.* Thus, class
adjudication based on the legally inadequate damage allegations of the named plaintiffs’
claims would drag down the claims of those other purchasers who potentially have viable
claims because they (unlike named plaintiffs) allegedly suffered personal injury, property
damage, or actual out-of-pocket money damages. See State Farm Mut. Auto. Ins. Co. v.
Lopez, 2004 Tex. LEXIS 1249, at *12-*12-*13, *I9 (Tex. Dec. 3,2004) (citing Cuwen v.
Bank United, 70 F.3d 937, 941-42 (7th Cir. 1995) (“A decision that the claim of the
named plaintiffs lacks merit ordinarily . . . disqualifies the named plaintiffs as the proper
class representatives.”)).’
Second, given that a class judgment in this case, which by definition is brought
only on behalf of people who have not been injured, would bar any vehicle owner who
suffers personal injury or property damage in the future from bringing claims based on
the purported design defect in their vehicles, a “no injury” class action is not superior to
While this Court has not yet ruled on the “no injury” issue as currently presented, the lower courts of this state
tend to reject the idea that such claims are viable, see, e.g., Gen. Motors Corp. v. Gana, No. 04-03-00702-CV, 2005
Tex. App. LEXIS 532, at *19 (Tex. Ct. App. Jan. 26,2005), and for this reason and the reasons that follow, the
Court should clarify Texas law by squarely rejecting “no injury” claims.
’ See Amchem Prods., Inc. v. WindJor, 521 US. 591, 625-27 (1997) (denying certification of class alleging both
risk of injury and manifested injury due to inadequacy of named plaintiffs because “’a class representative must . . .
possess the same interest and suffer the same injury’ as the class members”); Robinson v. SherifofCook Cq., 167
F.3d 1155, 1157-58 (7th Cir. 1999) (“if [named plaintiffs] claim is a clear loser at the time he asks to be made class
representative, then approving him as class representative can only hurt the class”); Ardoin v. Stine Lumber Co., 220
F.R.D. 459, 466-67 (W.D. La. 2004) (‘?t is this disparity of claims that prevents the plaintiffs from meeting the
commonality requirement, and it is the consequences of not recognizing the disparity of these claims that prevents
the class members from adequately representing the class.”); In re Ford Motor Co. Bronco 11 Prod. Liab. Litig., 177
F.R.D. 360, 366-68 (E.D. La. 1997) (“by attempting to tailor their action in such a way as to improve their ability to
establish commonality, class representatives may in fact create an adequacy problem”).
5

individual litigation of real claims stemming from real injuries, if and when they arise.
See Polaris Indus., Inc. v. McDonald, 119 S.W.3d 331,344-45 (Tex. Ct. App. 2003).
Whether resolved as an issue of a lack of standing due to the lack of any legally
cognizable injury, Petitioner’s Brief on the Merits, at 8-20, or as a bar to class
certification due to the inadequacy of named plaintiffs and absence of superiority
resulting from the claims asserted by named plaintiffs, see sup7*a, there are fundamental
legal and policy problems with “no injury” class action lawsuits that this Court can
address now, and that counsel against this case proceeding any further (at least with
respect to any nationwide class with Texas named plaintiff purchasers or a Texas class).
Given the extensive briefing on standing already before the Court, PLAC will confine its
discussion to the reasons for rejecting “no injury” claims (and thus how the “no injury”
issue affects adequacy and superiority).‘
11. SOUND POLICY REASONS JUSTIFY DENYING RECOGXITIOX OF
“NO INJURY” LA\VSUITS.
Plaintiffs’ claims are premised on one core factual allegation - that Gen-3
seatbelt buckles purportedly have a tendency to accidentally release. See Innman, 121
S.W.3d at 876. None of the plaintiffs, however, alleges ever experiencing an accidental
release incident that resulted in personal injury or property damage. In other words,
plaintiffs do not allege that the purported defects ever caused them any actual injury.
While there is no need to resolve any choice of law issue before ruling on the “no injury” issue (as there is no
debate that Texas law applies to named plaintiffs) and the bar it creates for class certification, PLAC also notes that
a nationwide class action remains uncertifiable due to variations in state law. See Petitioner’s Brief on the Merits, at
26-31; see also Inman, 121 S.W.?d at 855-86.
6

Although each plaintiff is basically alleging, “nothing ever happened to me,” each
demands a substantial, immediate monetary payment.
Plaintiffs seek to mask this flaw in their claims by speculating that something bad
might happen in the future. Plaintiffs allege that ifacertain set of circumstances were to
converge, there is a risk that because of its characteristics, their Gen-3 seatbelt buckles
might accidentally release and cause injury and damage to themselves or others. Further,
they allege that ifthey decide to sell their vehicle in the future, they may receive less than
some amount to which they apparently believe they are entitled. See id. On the basis of
this risk of potential future events, plaintiffs demand that they be paid money now.
Texas and other courts do not permit such speculative damage claims to proceed
as class actions. There are sound policy reasons for this rule. To start, courts reject “no
injury” lawsuits because recognizing such suits would harm both consumers and
manufacturers. In denying the validity of “no injury” claims similar to those that
plaintiffs assert here, the Seventh Circuit explained that because the tort system fully
compensates those who are injured by a defective motor vehicle, allowing “no injury”
recoveries would result in both a windfall for plaintiffs whose vehicles never cause them
injury and a distortion of the economic incentives on manufacturers.
See In re
Bridgestoize/Firestone, Inc. Tires Prods. Lid. Litig., 288 F.3d 1012, 1017 & n.1 (7th Cir.
2002). Recognition of claims absent any manifest injury only drives up prices for all
consumers.
Judge John Minor Wisdom of the Fifth Circuit also discussed this point in Willett
v. Bnxter International, he., 929 F.2d 1094 (5th Cir. 1991).
In that case, plaintiffs
7

sought money damages because they were allegedly at risk due to a “potentially fatal”
defect in implanted heart valves.
See id. at 1096. Approximately 19,000 patients
received similar heart valves, but only seventeen valves malfunctioned. See id. As the
court explained, “[tlhe damages of the seventeen are presumably incorporated into the
price of the product and spread among the nineteen thousand who have purchased the
valve.” Id. at 1100 11.20. However. the court concluded that it would be unwise and
premature to allow 19,000 individuals, all of whom contend that they are at risk of
someday experiencing the malfunction in fact experienced by only a few, to demand a
monetary payment:
Id.
Because [under a regime permitting “no injury” claims] no loss-spreading
occurs, the money flows in a circle, from each patient (in the form of a
higher price) to the company back to the same patient (in the form of a fear
recovery), with a substantial portion of the higher price skimmed off for
attorneys’ fees. In addition, the higher price will place the product beyond
the economic reach of at least some of the patients, forcing them to turn to
the next best (affordable) alternative. We see little reason to adopt such a
system.
Thus, as many courts have recognized, if “no injury” lawsuits are permitted, some
consumers may gain in the short run. In the long run, however, all consumers lose.
Consumers would bear the burden of higher prices to cover manufacturers’ costs of
5
Accord Lee v. Gen. Motors Corp., 950 F. Supp. 170, 175 (S.D. Miss. 1996) (“If Courts were to allow cases such as
this to go forward, the costs of doing business would be so burdensome and so expensive that suppliers,
manufacturers, and most consumers would suffer greatly. The only persons that would benefit by permittin, 0 cases
such as this to go forward would he the lawyers handling the case and perhaps the few consumers directly involved
in the litigation.”); Frank v. DaimlerChrysler Corp., 741 N.Y.S.2d 9, 16-17 (N.Y. App. Div. 2002) (recognizing that
allowing “no injury” claims would “have a profound effect on the marketplace, as they would increase the cost of
manufacturing, and therefore the price of evciyday goods to compensate consumers who claim to have a better
design, or fear certain products might fail”).
8

outinely making (or defending against) windfall payments for the mere risk of injury.
Meanwhile, consumers who actually experience tangible injuries would receive smaller
awards. See Schweitzer v. Consol. Rail Corp., 758 F.2d 936, 942 (3d Cir. 1985) (stating
that unless “manifest injury” is required, “windfalls [will be awarded to] . . . those who
never take ill” and those who suffer will receive “insufficient compensation”).
Such “no injury” lawsuits often are filed as class actions to justify the expenses of
the litigation. Recognition of “no injury” lawsuits thus encourages plaintiffs to bring the
largest class action imaginable in order to create “blackmail” settlement pressure on the
defendant notwithstanding the lack of merit of the allegations. See In re Rhone-Poulenc
Rorer Znc., 51 F.3d 1293, 1298-99 (7th Cir. 1995). As a result, the economic distortions
identified by Judge Wisdom and others are even more astounding when considering that
the invocation of the class device multiplies the distortions millions of times over and
browbeats defendants into paying huge settlements for meritless claims.6
In addition, a host of negative practical effects for Texas courts and Texas citizens
would flow from a decision to open the door to “no injury” lawsuits. As the new hub for
“no injury” product liability class actions, it is safe to say that courts of this state would
be flooded with lawsuits seeking to redesign products to alleviate the possibility of future
accidents. After all, if Texas nurtures product liability class actions based solely on a
product’s potential risk, almost every product in existence today could be the object of a
6
And assuming, contrary to Texas precedent, see suppra, that preclusion principles did not bar the bringing of a later
claim based on personal injury or propeity damage, economic distortions still exist because allowing injured and
uninjured consumers alike to assert product liability claims would generate a windfall to many consumers through
double recovery (as presumably the vast majority of class members would not use their “no injury” recovery to
remedy the alleged harm) while burdening manufacturers with much more than’the actual cost of the harm generated
by a particular design defect. See Bririgestone/Fil.estne, 288 F.3d at 1017 & n.1.
9

lawsuit.
Any lawyer’s idea about how a product might be made safer could be
transformed into a class action lawsuit seeking to require the manufacturer to reconfigure
all of its previously sold products in a manner more to the particular plaintiffs liking.
The ability to file a lawsuit while enjoying a fully functional product that has never failed
to meet the suing purchaser’s real-world needs would lead to litigants from all over the
country lining up in Texas courthouses.
Moreover, Texas courts and juries would find themselves in the unfamiliar role of
being asked to serve as product standard review committees in charge of making
prospective decisions about what product specifications would best protect the public
safety-a function which the courts and juries of any state would be ill-equipped to
handle.
To understand the absurdity of a regime in which juries of randomly selected
laypeople are given the power to pronounce large numbers of consumer products
“defective” simply because a “risk” exists that they will not always perform as desired,
imagine two courtrooms in the same courthouse. In Courtroom A, a class action is
brought on behalf of owners of vehicles with old-fashioned conventional brakes. The
argument is advanced that kaditional brakes are “defective” because they can lock up in
an emergency, leading to skids and accidents. Pictures of “conventional brake” accident
victims are shown (albeit not those who are bringing suit). Memos from company
engineers criticizing conventional brakes are introduced.
An expert opines that
conventional brakes are defective. A skilled trial lawyer makes an emotional attack on
conventional brakes, arguing that they are obsolete and should be replaced with more
10

sophisticated anti-lock brakes. The jury agrees, and awards all owners of vehicles with
conventional brakes money damages. As a result, the manufacturer stops installing
outmoded conventional brakes, switching instead to modern anti-lock brakes.
In Courtroom B, a class action is brought on behalf of all owners of vehicles with
the risky new technology of anti-lock brakes. The argument is advanced that anti-lock
brakes are “defective” because most drivers do not instinctively operate them effectively
(ie., by applying constant pressure rather than pumping) in an emergency. Pictures of
“anti-lock brake” accident victims are shown (albeit not those who are bringing suit).
Memos from company engineers expressing concern about anti-lock brakes are
introduced. An expert opines that anti-lock brakes are defective. A skilled trial lawyer
makes an emotional attack on anti-lock brakes as constituting an inadequately validated,
ill-conceived gamble with peoples’ lives. The jury agrees, and awards all owners of
vehicles with anti-lock brakes money damages. As a result, the manufacturer stops
installing “risky” anti-lock brakes, returning instead to more tried-and-true conventional
brakes.
The foregoing hypothetical is not far-fetched. These kinds of “damned-if-you-do;
damned-if-you-don’t’’ class actions are filed all the time. Fortunately, most are dismissed
on ‘‘no injury” grounds. But the above example demonstrates that allowing juries to
overrule complex product design decisions in the name of an entire nation of consumers
gives too much power to a randomly chosen group of lay people with neither the
expertise nor the resources to make these kinds of broad decisions for society as a whole.
It is one thing for a jury to find that an individual plaintiff was injured by a defective
11

product, and to order the manufacturer to compensate that plaintiff for his injuries. If the
jury’s judgment is “wrong,” the consequences of its error are nevertheless manageable
(unless the jury is allowed to impose confiscatory punitive damages). But it is quite
another thing to empower a jury to pronounce an entire family of products “defective” in
the abstract, and effectively order them off the market in the context of a class action
lawsuit in which no plaintiff or absentee class member has been injured. Such lawsuits
can compel manufacturers to make debilitating windfall payments to purchasers who
have enjoyed full value from their products, and interfere with the inevitable balancing
exercises that underlie any product’s design. Strict adherence to the “injury” requirement
preserves the former category of lawsuits, while precluding the latter.
Few manufacturers would possess the capacity to comply with constantly shifting
product improvement ideas devised by various courts and juries if courts did not
rigorously enforce the injury requirement that supports both the standing doctrine and is
an element of most common law and statutory causes of action. Once made, those
judicial product design determinations would stifle needed innovation by discouraging
product manufacturers from developing new, improved designs that may differ from
those already “court approved.” Cf: Richard A. Posner, A Theory of Negligence, 1 J.
LEGAL STUD. 29, 32-33 (1972) (explaining how traditional principles of negligence law
enable manufacturers to internalize costs). Predicating causes of action upon real injury
prevents this chaos and preserves the judiciary’s role as arbiter of concrete cases and
controversies.
12

In addition, the sanctioning of “no injury” claims may adversely impact public
safety. For example, this lawsuit attacks an entire category of seat belts installed on large
numbers of automobiles as defective - essentially useless. Yet, at the same time, the
public interest demands that seat belt usage be encouraged. If reckless allegations that
seat belts are defectivelunmerchantableiuseless are allowed to gain traction in the context
of “no injury” class actions, the public may embrace the cynical message that motor
vehicle safety components are ineffective, and hence are not worthy of usage. The irony
of “no injury” lawsuits that, like this one, purport to advance public safety, is that the
reckless abstract attacks upon the design of vehicle safety components that such lawsuits
so often employ may ultimately discourage consumers from supporting and using those
safety devices, to the ultimate detriment of public safety.
Finally, were courts to indulge lawsuits based on far-fetched notions of consumer
‘” injury” (ie.,“risk” of future injury; diminution in value because the product is “less
safe” than the consumer ostensibly believed it would be), that policy would generate
undesirable distortions in other aspects of civil law. For example, the two-year statute of
limitations for actions under the Texas Deceptive Trade Practices Act, see Tex. Bus. &
Com. Code 3 17.565, would begin to run as soon as a consumer knew or should have
known of a product defect, even if the product continued to perfom satisfactorily. Such
a rule could trigger an avalanche of lawsuits from uninjured consumers who seek
damages for unquantified risks of product failure or injury. Even worse, it would leave
injured consumers without a cause of action if the injury-ie.,
a real injury-occurred
more than two years after they knew or should have known of the product defect. This
13

absurd result underscores why the mere existence of a risk of the manifestation of a
product defect cannot possibly be regarded as a judicially recognized harm.
111. THE OVERWHELMING WEIGHT OF AUTHORITY HOLDS THAT (‘NO
INJURY” CLASS ACTION LAWSUITS ARE NOT VIABLE.
Courts require a plaintiff to plead more than the mere possibility of a future legal
injury in order to recover damages. Absent injury, a person does not experience anything
the law can remedy. As one of America’s leading legal commentators put it, “[tlhe threat
of future harm, not yet realized, is not enough.” W. Page Keeton, et al., PROSSER &
KEETON ON THE LAW OF TORTS, 3 30, at 165 (5th ed. 1984). Accordingly, courts
repeatedly hold in product defect cases that “[plurchasers of an allegedly defective
product have no legally recognizable claim where the alleged defect has not manifested
itself in the product they omm.” Hubbavd v. Gen. Motors Covp., No. 95 Civ. 4362, 1996
WL 274018, at *3 (S.D.N.Y. May 22, 1996). Courts thus consistently reject “no injury,”
“increased risk,” and “tendency to fail” cases, whether based on tort, fraud, warranty or
unjust enrichment theories, or on state statutory consumer protection provisions. “[Tlhe
common thread of the cases” is always the same in that “the absence of manifest injury is
so fundamental a deficiency. . . that such claims are more appropriately dismissed than
preserved.” In re Air Bug Prods. Lid. Litig., 7 F. Supp. 2d 792, 804 (E.D. La. 1998).
The vast majority of courts considering the “no injury” issue, including courts
applying Texas law, agree that such lawsuits based solely on a product’s alleged
“propensity to fail” state no legally cognizable injury.
Several state courts have
7
“In most jurisdictions, the courts recognize that unless a product actually mamfests the alleged defect, no cause of
action for breach of express or implied warranty or fraud is actionable.” Chin v. Chrysler Corp., 182 F.R.D. 448,
14

460 (D.N.J. 1998); see, e.g., Garza, 2005 Tex. App. LEXIS 532, at *I9 (“For purchasers who never experienced a
problem during the time they owned the car, they got what they paid for - a vehicle that provided transportations
with a brake system that safely stopped the car.”); Wallis v. Ford Motor Co., No. CV-2002-154-2, slip op. at 1-2
(Ark. Cir. Ct. Jan. 15, 2004) (dismissing fraud and consumer protection act claim based on an “allegedly
unreasonable tendency to roll over” because “plaintiff has not experienced a cognizable injury or damages as a result
of the alleged defect”); Accardo v. Bririgesfone-Firestone, Inc., No. 44495, slip op. at 3 (40th Judicial Dist. Ct., St.
John the Baptist Parish, La., Apr. 21, 2004) (dismissing redhibition and unjust enrichment claims based on same
allegations for a lack of any legally cognizable injury); Green v. Gen. Motors Corp., KO. A-2831-01T-5, 2003 WL
21730592, at *6-*9 (N.J. Super. App. Div. July 10, 2003) (barring “no injury” claim under warranty law and
consumer protection act); Frank, 741 N.Y.S.2d at 11, 16 (rejecting claim that vehicle backrests were “susceptible to
rearward collapse” because “it would be manifestly unfair to require a manufacturer to become, in essence, an
indemnifier for a loss that may never occur”); Ziegelmann v. Daimler Chlysler Corp., 649 N.W.2d 556, 565 (N.D.
2002) (complaint alleging defect in vehicle because lack of park-brake interlock device “failed to plead any legally
cognizable injury’’ where “[tlhe gist of [complaint] is that the vehicle might malfunction and cause injury in the
future”); Ford Motor Co. v. Rice, 726 So. 2d 626, 627, 631 (Ala. 1998) (holding that plaintiffs could not pursue
claim for fraudulent suppression involving Bronco I1 vehicles with alleged tendency to roll over where the “alleged
product defect . . . has not manifested itself in such a way as to cause any observable adverse physical or economic
consequences.”); Am. SuzukiMotor Corp. v. Superior Court, 37 Cal. App. 4th 1291, 1296 (1995) (where class action
plaintiffs allege that they have suffered no personal injury or propew damage from an allegedly defectively
designed vehicle they cannot state a cause of action for breach of implied warranty); Yu v. IBM Corp., 732 N.E.2d
1173, 1177-78 (Ill. App. Ct. 2000) (dismissing consumer fraud and negligence action due to lack of actual injury or
damages); Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 192 (Ky. 1994) (holding that no cause of action
accrues with respect to defective product “until the potentially harmful [product] actually ‘causes injury that
produces loss or damage”’) (quotations and citation omitted); Spuhl v. Shiley, Inc., 795 S.W.2d 573, 580 (Mo. Ct.
App. 1990) (rejecting failure to warn claims because plaintiff did not allege “failure or malfunction of the product”);
Lavelle v. Owens-Corning Fiberglas Corp., 507 N.E.2d 476, 479 (Ohio Ct. Com. P1. 1987) (barring claim alleging
increased risk of cancer because “the injury, and the damages resulting, must be shown with certainty, and not be
left to speculation or conjecture, whether the action is in contract or tort; damages which are uncertain, speculative,
or conjectural cannot be recovered”) (internal quotation marks and citation omitted); Eriehl v. Gen. Motors Corp.,
172 F.3d 623, 628-29 (8th Cir. 1999) (dismissing plaintiffs’ wide-ranging set of claim (i.e., fraudulent
misrepresentation, fraudulent concealment, breach of implied warranty, state consumer protection statute, breach of
express warranty, and breach of contract) due to no injury); Angus v. Shiley, Inc., 989 F.2d 142, 148 (3d Cir. 1993)
(disallowing no injury claim concerning allegedly defective heart valves because law not intended to “sanction a
large, if not vast, number of lawsuits by consumers who obtained properly functioning valves”); Willett v. Barter
Int’l, Inc., 929 F.2d 1094, 1099-1100 (5th Cir. 1991) (same); Carlson v. Gen. Motors Corp., 883 F.2d 287, 291 (4th
Cir. 1989) (dismissing tort and implied warranty claims by “named plaintiffs who did not allege that they
encountered engine difficulties with their own cars”); Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595
(S.D.N.Y. 1982) (rejecting implied warranty claims asserted on behalf of vehicle owners who had experienced
failure-free performance from their Firestone tires, notwithstanding the claim that tires were inherently defective and
likely to fail); In re Air Bag Prods. Lid Litig., 7 F. Supp. 2d at 804 (dismissing tort and implied warranty claim
brought by putative class alleging defective air bags because “the absence of manifest injury is so fundamental a
deficiency. . . that such claims are more appropriately dismissed than preserved”); Martin v. Ford Motor Co., 914 F.
Supp. 1449, 1454-56 & n.9 (S.D. Tex. 1996) (“[Tlhe manufacture of an unsafe vehicle itself, if such has indeed
occurred, cannot constitute the cause of injury to Plaintiffs [without damage.]”); Weaver v. Chlysler Coi-p., 172
F.R.D. 96, 100 (S.D.N.Y. 1997) (“Where, as here, a product perfom satisfactorily and never exhibits the alleged
defect, no cause of action lies.”); Lee, 950 F. Supp. at 174-75 (rejecting claims that roofs on sport-utility vehicles
were defective where plaintiffs experienced no defects in their vehicles); Hubbard, 1996 WL 274018, at *3
(S.D.N.Y. May 22, 1996) (“[A] Suburban that perfom satisfactorily and never exluhits the alleged braking system
defect is fit for the purposes intended ”); BarbaFin v. Gen. Motors Corp., No. 84-0888, 1993 WL 765821, at *2
(D.D.C. Sept. 22, 1993) (“The court will . . . dismiss the claims of all plaintiffs whose X-cars never experienced the
phenomenon of ‘premature rear wheel lock-up . . . .”’); Yosf v. Gen. Motors Corp., 651 F. Supp. 656 (D.N.J. 1986)
(dismissing complaint for fraud and breach of warranty for failure to state a claim where plaintiff could only allege
that vehicle was likely dangerous).
15

addressed this issue and have denied the legal viability of the “no injury” claims asserted
here. For example, in American Suzuki Motor Corp. v. Superior Court, 44 Cal. Rptr. 2d
I ’,
526 (Cal. Ct. App. 1995), the court held that where class action plaintiffs allege that they
have suffered no personal injury or property damage from an allegedly defectively
designed vehicle, it is impliedly conceded that their vehicles have remained tit for their
ordinary use and they cannot state a cause of action for breach of implied warranty. Id. at
527-28. In Ford Motor Co. v. Rice, 726 So. 2d 626 (Ala. 1998), the Alabama Supreme
Court held that plaintiffs could not pursue a claim for fraudulent suppression involving
Bronco I1 vehicles with an alleged tendency to roll over where the “alleged product
defect . . . has not manifested itself in such a way as to cause any observable adverse
physical or economic consequences.” Id. at 627,631.
Recently, the North Dakota Supreme Court unanimously affirmed the dismissal of
a suit for negligence and fraudulent concealment where the plaintiff, alleging no personal
injury, property damage, or vehicle malfunction, sought damages for the alleged
diminution in value of his vehicle due to its allegedly defective transmission, the cost of
repair, and the cost of substitute transportation during repair. See Ziegelmann v. Daimler
Ckiysler Corp., 649 N.W.2d 556, 558-59 (N.D. 2002). The court concluded, “like the
vast majority of courts that have considered similar no-injury product liability lawsuits,
And numerous courts apply the actual injury requirement to consumer protection statutes. See, e.g., Briehl, 172
F.3d at 628-29 (implicating, inter alia, Missouri and Mississippi law and a ffing dismissal of statutory consumer
protec,tion claim); Martin, 914 F. Supp. at 1455 (rejecring claim under Texas statute for “no injury”); Green, 2003
WL 21730592, at *8 (holding “no ascertainable loss’,’ existed under statute); Barbe v. A.A. Harmon & Co., 705 So.
2d 1210, 1221 (La. App. 1998) (holding that claim could not be maintained under Louisiana consumer protection
statute when plaintiff suffered no “ascertainable loss . . . as a result of‘ defendant’s conduct); Orlando v. Fin. One,
Inc., 369 S.E.2d 882, 888 (W. Va. 1988) (finding no “ascertainable loss of money or property” under West Virginia
law when unlawful loan clause was not enforced by defendant).
16

[the plaintiffs] claim of injury is simply too speculative to constitute a legally cognizable
tort injury.” Id. at 565. The case law demonstrates that it does not matter what state law
cause of action a plaintiff alleges. Whether he or she asserts claims for negligence,
breach of warranty, consumer protection violations, or equitable relief, the law recognizes
that absent a present, manifest injury, the plaintiff lacks a legally viable injury.
Rulings by federal courts go the same way. For example, in Briehl v. General
Motors Covp., 172 F.3d 623 (8th Cir. 1999), plaintiffs brought a purported class action
alleging that their vehicles contained anti-lock braking systems that had a “tendenc[y]” to
fail by causing drivers to “misapply the brakes during emergencies where braking is
required.” Id. at 626. The plaintiffs defined the proposed class to cover owners of the
vehicles containing the allegedly defective braking systems, not cars in which the braking
system actually failed. See id. at 626 n.6. The district court dismissed plaintiffs’ wide-
ranging set of claims (i.e., fraudulent misrepresentation, fraudulent concealment, breach
of implied warranty, violation of a state consumer protection statute, breach of express
warranty, and breach of contract). See In re Gen. Motors Anti-Lock Brake Prods. Liab.
Litig., 966 F. Supp. 1525, 1528 (E.D. Mo. 1997). The Eighth Circuit affirmed. Noting
that “[c]ourts have been particularly vigilant in requiring allegations of injury or damages
in products liability cases,” the court held that
[wlhere, as in this case, a product performs satisfactorily and never exhibits
an alleged defect, no cause of action lies. Since the Plaintiffs have failed to
allege any manifest defect and their vehicles perform in a satisfactory
manner, the District Court was correct when it dismissed the Plaintiffs’
Original Complaint.
17

Bviehl, 172 F.3d at 627, 628 (footnotes omitted). See also, e.g., Angus, 989 F.2d at 147-
48; Willett, 929 F.2d at 1099-1100 (same).
Federal district courts also have routinely rejected “no injury” theories in productrelated
cases. For example, in Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp.
595 (S.D.N.Y. 1982), the Southern District of New York rejected implied warranty
claims asserted on behalf of vehicle owners experiencing failure-free performance from
their tires notwithstanding plaintiffs’ claim that the tires were inherently defective and
likely to fail. The court explained “Liability does not exist in a vacuum; there must be a
showing of some damage, which then may lead to further issues of quantum. . . . [Tlire
owners whose tires performed to their entire satisfaction cannot demonstrate, as a matter
of law, the ‘fact of damage’ necessary to state a claim. . . .” Id. at 602 (emphasis
omitted). Thus, plaintiffs’ lack of a “legally recognizable claim” necessarily precluded
class certification. See id. at 603.
Likewise, in Weaver v. Chrysler Corp., 172 F.R.D. 96 (S.D.N.Y. 1997), a
purported class alleged that the shoulder belt clips on certain vehicle seats were defective
due to a propensity to “improperly unlatch and separate.” Id. at 98. The court held that
the plaintiff had “failed to state a claim for fraud, negligent misrepresentation, and breach
of warranty because he ha[d] not sufficiently pleaded damages.” Id. at 99. In reaching
its conclusion, the court explained that “[wlhere, as here, a product performs
satisfactorily and never exhibits the alleged defect, no cause of action lies.” Id. at 100.
Indeed, the U.S. Court of Appeals for the Seventh Circuit recently confronted a
similar alleged “propensity to rollover” defect in Ford Explorers and a “tendency to
18

suffer tread separation” defect in Firestone tires, and reiterated the fundamental principle
that manifest injury is required for recovery under either a contract-based or tort-based
theory. See Bridgestone/Firestone, 288 F.3d at 1017. Plaintiffs, who, like plaintiffs here,
had not alleged any malfunction or other manifestation of a defect in their vehicles, had
tried to avoid this rule by “describ[ing] the[ir] injury as financial rather than physical and
seek[ing] to move the suit out of the tort domain and into that of. . . consumer fraud (on
the theory that selling products with undisclosed attributes, and thus worth less than
represented, is fraudulent).” Id. The court recognized the majority position on the matter
and the public policy reasons against allowing such cases, see infra, and noted that, “[als
a result, most states would not entertain the sort of theory that plaintiffs press.” Id.
Moreover, plaintiffs cannot dodge the fatal problem with their claims by alleging
that any individual plaintiff was injured because he or she ostensibly would have paid a
lower price if plaintiff knew of the alleged defects or because the value of the product has
“diminished” in an abstract sense (even if the plaintiff has not sold the product and
therefore cannot demonstrate any concrete loss). Znman, 121 S.W.3d at 876. Courts have
refused to permit such attempts to circumvent the injury requirement:
The point of the cases cited [I is that unless there is actually a
failure in product performance, there is no basis at all for
claiming that the plaintiff has been damaged in any way.
Mere suspicion of a lost bargain . . . will not support an
award of damages.
Jarman v. United Indus. Corp., 98 F. Supp. 2d 757, 768 (S.D. Miss. 2000) (emphasis
added) (rejecting argument of entitlement to recover the loss of the benefit of purchase
price for an allegedly defective pesticide in action involving, inter din, breach of
19

warranty, fraud, and misrepresentation claims).’ Accordingly, all of the named plaintiffs,
and the classes they seek to represent, fail to allege legally cognizable injury.
IV.
REFUSAL TO RECOGNIZE “NO INJURY” CLASS ACTIONS WOULD
NOT LEAVE PLAINTIFFS WITHOUT A POTENTIAL REMEDY.
In accepting the policy concerns discussed above, the Court need not worry that
plaintiffs can do nothing about the alleged seatbelt buckle defect until they become
victims of accidents they claim can result from the alleged defect. As numerous courts
recopnize, “[tlhe remedy which will best promote consumer safety, and which will
address real parties’ concern that ‘tragic consequences’ will result if the defect is not
remedied, is to petition the National Highway Traffic Safety Administration (NHTSA)
for a defect investigation.” Am. Suzuki, 44 Cal. Rptr. 2d at 531 (footnote omitted);
accord Ziegelmann, 649 N.W.2d at 564; Frank, 741 N.Y.S.2d at 17; Rice, 726 So. 2d at
631. Congress has charged NHTSA with ensuring that individuals with a substantiated
fear of injury from a motor vehicle defect may obtain systemic relief, and it has granted
NHTSA the power to order manufacturers to remedy vehicle defects free of charge. See
49 U.S.C. $5 30118(b), 30120(a).
NHTSA adheres to a statutorily mandated process for receiving and addressing
consumer petitions for defect investigations.
“Any interested person” may petition
* See, e.g, Weaver, 172 F.R.D. at 99-100 (rejecting claim that plaintiff had paid more for his vehicle than he would
have had he known of his defect, concluding that “[wlhere, as here, a product performs satisfactorily and never
exhibits the alleged defect, no cause of action lies”); Briehl, 172 F.3d at 628-29 (“Plaintiffs’ assertion that their
ABS-equipped vehicles are defective and that they have suffered a loss in resale value as a result of the defect is
insufficient as a matter of law to plead a claim under any theory the Plaintiffs have advanced.”); Curlson, 883 F.2d
at 298 (affirming dismissal “of those plaintiffs who alleged damages attributable only to ‘lost resale value”’);
HubbaFd, 1996 US. LEXIS Dist. 6974, at *%I0 (rejecting claim that plaintiffs would not have bought vehicles had
they known of the alleged defect because plaintiffs had no legally cognizable cause of action due to “no injury”).
20

NHTSA to launch an investigation to determine whether a motor vehicle-related product
contains a safety-related defect.
See 49 U.S.C. $ 30162.
If NHTSA finds that the
product suffers from a defect, it must then order the manufacturer to remedy the problem
free of charge. See id. $$ 30118(b), 30120(a). The petition need contain nothing more
than a simple statement of facts supporting the request for administrative action and a
brief description of the relief desired. See 49 U.S.C. $ 30162(b). And NHTSA must
“publish the reasons for [any] denial of a petition.” Id. 9 30162(d).9
Equipped with flexible tools for fact gathering from industry and safety experts,
and with its own reservoir of accumulated expertise, NHTSA is better situated than a
court or lay jury to evaluate various product designs, and to implement preventive and
global remedies where defects are found.
Unlike courts, which resolve only
individualized disputes “that have ripened (or are about to ripen) into concrete injuries,”
Peter Huber, Safety and the Second Best: The Hazards of Public Risk Management in the
Courts, 85 COLUM. L. REV. 277, 331 (1985), one of the core functions of agencies like
NHTSA is to deal with systemic problems requiring prospective relief.
Created to
impose systemic remedies, agencies maintain a natural advantage over courts in that they
have access to a wide range of expertise and resources which enables them to conduct
thorough investigations and craft appropriate remedies. See Richard C. Ausness, The
Case for a “Strong” Regulatory Compliance Defense, 55 MD. L. REV. 1210, 1219
(1996). As the Seventh Circuit recently observed “Regulation by the NHTSA, coupled
9
Of course, hJTSA need not await a complaint from a private party before it can initiate proceedings examining
product safety. In addition, the Texas Attorney General and the Texas Motor Vehicle Board maintain authority to
address unfair trade practices and warranty issues. See Tex. Bus. & Corn. Code 5 17.47; Tex. Occ. Code $5
2301.602, 2301.603, 2301.801, 2301.802.
21

with tort litigation by persons suffering physical injury, is far superior to a suit by
millions of uninjured buyers for dealing with consumer products that are said to be
failure-prone.’’ Bridgestone/Firestone, 288 F.3d. at 1019. In short, when thousands or
millions of “plaintiffs seek relief for an alleged defect that has not yet manifested itself or
caused damage . . ., the administrative remedy provided by NHTSA . . . is more
appropriate than civil litigation.” In re Ford Motor Co. Ignition Switch Prods. Liab.
Litig., 174 F.R.D. 332, 353 (D.N.J. 1997).
coNcLusIoN
Unless this Court takes a firm position to bar the prosecution of lawyer-driven “no
injury” lawsuits, Texas’s courts will become a “magnet” for nationwide class actions that
have no real connection to the state (and that require the courts to apply the regulatory
regimes of other states).” Over time, “no injury” class actions would severely tax the
state’s judicial resources. And, as the evidence indicates, the flood of cases likely will do
little to vindicate consumer rights. Instead, such cases will produce settlements where the
lawyers walk off with most (if not all) of the monetary recovery.” And the judicial time
consumed by those cases will deprive Texans sustaining real injuries of the ability to
access to their own courts.
’’
See John H. Beisner & Jessica Davidson Miller, They ‘re Making a Federal Case Out of It. . . In State Court, 25
HARV. J. L. PUB. POL’Y 143, 160 (Winter 2001); John H. Beisner & Jessica Davidson Miller, Class Action Magnet
Courts: The Allure Intensifies, 4 BNA CLASS ACTION LITIG. REP. 58,59 (Jan. 24,2002).
11
See Class Action Fairness Act of2002, H. REP. 107-370,107th Cong., 2d Sess. 14 (2002); Class Action Fairness
Act of2000, S. REP. 106-420,106th Cong., 2d Sess. 16 (2000).
22

For all of the foregoing reasons, the plaintiffs case should be dismissed for a lack
of standing. Alternatively, the class claims should be dismissed for the failure to meet
the certification requirements of Rule 42.
i
23

Dated: February 3,2005
Respectfully submitted,
&kin C. Anderson
Morgen A. Sullivan
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5370 (Telephone)
(202) 383-5414 (Facsimile)
Hugh F. Young, Jr.
Product Liability Advisory Council, Inc.
1850 Centennial Park Drive, Suite 5 10
Reston, VA 20191
(703) 264-5330 (Telephone)
(703) 264-5301 (Facsimile)
Attorneys for Amicus Curiae
Product Liability Advisory
Council, Inc.
24

CERTIFICATE OF SERVICE
I certify that on February 3,2005 copies of the foregoing Brief Amicus Curiae of
Product Liability Advisory Council, Inc. forwarded via first class mail, postage prepaid,
to the following counsel of record:
Steven A. Kanner
William H. London
Douglas A. Millen
Much Shelist Freed Denenberg
Ament & Rubenstein, P.C.
200 I?. La Salle Street, Suite 2100
Chicago, IL 60601-1095
(312) 346-3100
J. Mitchell Clark
Law Offices of J. Mitchell Clark
Frost Bank Plaza
802 N. Carancahua, Suite 1650
Corpus Christi, TX 78470
(361) 887-8500
William R. Edwards, 111
William R. Edwards
John Blaise Gsanger
The Edwards Law Firm, L.L.P.
P.O. Box 480
Corpus Christi, TX 78403-0480
Vernon I?. Reaser, Jr.
Law Offices of Vernon Reaser, Jr.
202 Pecan Drive
Victoria, TX 77905-0686
(361) 576-5858
Attorneys for PlaintiffsRespondents
William V. Dorsaneo I11
Mike A. Hatchell
Suellen Ratliff
Molly H. Hatchell
Mark S. Whitburn
Locke Liddell & Sapp, LLP
Gibson, Dunn & Crutcher, LLP 100 Congress Avenue, Suite 300
2100 McKinney Avenue, Suite 1100 Austin, TX 78701
Dallas, TX 75201-6911 (512) 305-4700
(214) 698-3100

Theodore J. Boutrous Jr.,
Gibson, Dunn & Crutcher, LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
(213) 229-7000
DATED: February 3,2005.
Attorneys for Defendantipetitioners
A
P
H. Beisner
rian C. Anderson
Morgen A. Sullivan
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
(202) 383-5370 (Telephone)
(202) 383-5414 (Facsimile)
Hugh F. Young, Jr.
Product Liability Advisory Council, Inc.
1850 Centennial Park Drive, Suite 510
Reston, VA 20191
(703) 264- 5 3 3 0 (Telephone)
(703) 264-5301 (Facsimile)
Attorneys for Amicus Curiae
Product Liability Advisory
Council, Inc.
2

Corporate Members of the
Product Liability Advisory Council
as of 1110/2005
3M
Altec Industries
Altria Corporate Services, Inc.
American Household, Inc.
American Suzuki Motor Corporation
Amgen Inc.
Andersen Corporation
Anheuser-Busch Companies
Appleton Papers, Inc.
Arai Helmet, Ltd.
Astec Industries
Aventis Pharmaceuticals, Inc.
BASF Corporation
Bayer Corporation
Beretta U.S.A Corp.
BIC Corporation
Biro Manufacturing Company, Inc.
Black & Decker (U.S.) Inc.
BMW of North America, LLC
Boeing Company
Bombardier Recreational Products
BP America Inc.
Bridgestone/Firestone, Inc.
Briggs & Stratton Corporation
Bristol-Myers Squibb Company
Brown-Forman Corporation
CARQUEST Corporation
Caterpillar Inc.
Chevron Corporation
Continental Tire North America, Inc.
Cooper Tire and Rubber Company
Coors Brewing Company
Crown Equipment Corporation
DaimlerChrysler Corporation
Deere & Company
Delphi Corporation
Diageo North America Inc.
The Dow Chemical Company
E & J Gallo Winery
E.I. DuPont De Nemours and Company
Eaton Corporation
Eli Lilly and Company
Emerson Electric Co.
Engineered Controls International, Inc.
Estee Lauder Companies
Exxon Mobil Corporation
FMC Corporation
Ford Motor Company
Freightliner LLC
General Electric Company
General Motors Corporation
GlaxoSmithKline
The Goodyear Tire & Rubber Company
Great Dane Limited Partnership
Guidant Corporation
Harley-Davidson Motor Company
Harsco Corporation
The Heil Company
Honda North America, Inc.
Hyundai Motor America
ICON Health &Fitness, Inc.
Illinois Tool Works, Inc.
International Truck and Engine Corporation
Isuzu Motors America, Inc.
Johnson & Johnson
Johnson Controls, Inc.
Joy Global Inc., Joy Mining Machinery
Kawasaki Motors Corp., U.S.A.
Kia Motors America, Inc.
Koch Industries
Kolcraft Enterprises, Inc.
Kraft Foods North America, Inc.
Lincoln Electric Company
Masco Corporation
Mazda (North America), Inc.
McNeilus Truck and Manufacturing, Inc.
Medtronic, Inc.
Mercedes-Benz of North America, Inc.
Michelin North America, Inc.
Miller Brewing Company
Niro Inc.
NissanNorth America, Inc.
Novartis Pharmaceuticals Corporation
PACCAR Inc
Panasonic
Pentair, Inc.
Pfizer Inc.
Pharmacia Corporation
Porsche Cars North America, Inc.
PPG Industries, Inc.
The Procter & Gamble Company
Purdue Pharma L.P.
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Corporate Members of the
Product Liability Advisory Council
as of 1/10/2005
Putsch GmbH & Co.KG
The Raymond Corporation
Raytheon Aircraft Company
Remington Arms Company, Inc.
Rheem Manufactuting
RJ Reynolds Tobacco Company
Schindler Elevator Corporation
SCM Group USA Inc.
Shell Oil Company
The Sherwin-Williams Company
Smith & Nephew, Inc.
Snap-on Incorporated
Sofamor Danek
Sturm, Ruger & Company, Inc.
Subaru of America, Inc.
Synthes (U.S.A.)
Terex Corporation
Textron, Inc.
Thomas Built Buses, Inc.
TK Holdings
The Toro Company
Toshiba America Incorporated
Toyota Motor Sales, USA, Inc.
TRW Automotive US LLC
Tyson Foods, Inc.
UST (U.S. Tobacco)
Volkswagen of America, Inc.
Volvo Cars ofNorth America, inc.
Vulcan Materials Company
Water Bonnet Manufacturing, Inc.
Watts Water Technologies, Inc.
Whirlpool Corporation
Wyeth
Yamaha Motor Corporation, U.S.A
Yokohama Tire Corporation
Zimmer, Inc.
Page I