DAIMLERCHRYSLER CORPORATION, Petitioner - Supreme Court ...

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