In re Ford Motor Co. E-350 Can Products Liability Litigation (No. II)

2012 U.S. Dist. LEXIS 13887, *Page 11tion [*40] "15-passenger" in the name of the vehicle,and some may have seen no representation that the vanwould carry 15 passengers. (Ford's Resp. Br. at 16) (citingPls.' Br. at 33). Second, Ford argues that this individualizedproof of the alleged representation will necessarilyrequire individualized determinations concerningwhether certain class members were actually deceived.Third, Ford argues that Plaintiffs disregard Chief JudgeBrown's ruling that New York law requires actual injuryin the form of limitation on use or out-of-pocket expenses.(Ford's Resp. Br. at 24). Under this standard,Ford contends that Plaintiffs cannot rely on a generalizedassertion of diminution in value, and, thus, the presidingcourt would need to conduct individualized inquiries todetermine if a particular class member incurred actuallosses in the form of out-of-pocket expenses or loss ofuse, and whether these losses were proximately causedby the alleged defect in the van or other, unrelatedcauses. (Id.). Finally, with regard to causation, Fordstates that, while New York law does not require a showingof reliance, it does require a showing of actual deception.Toward this end, Ford notes that Chief [*41] JudgeBrown granted summary judgment against PentecostalTemple's Illinois consumer fraud claim for lack of actualdeception and proximate causation, because the undisputedrecord revealed that Pentecostal Temple neverreceived or observed any misrepresentations from Ford.(Ford's Resp. Br. at 26) (citing July 9 Opinion, 2010 U.S.Dist. LEXIS 68241, 2010 WL 2813788, at *23).Plaintiffs respond that they do have common proofto address each of these requirements. Plaintiffs contendthat they have common proof of misrepresentations, byvirtue of the fact that Ford marketed the E-350 van as a"15 passenger" van and outfitting the van with 15 seats.Plaintiffs assert that an objective standard applies to thealleged misrepresentations, and deduce that "evidence inthe form of the vehicle's name, number of seats and soforth can be submitted to the jury for a determinationwhether reasonable consumers would understand it tomean safe transportation." (Pls.' Reply Br. at 27). Plaintiffsfurther argue that deception is measured by an objectivestandard, because New York law does not requirea showing of reliance. Citing Florida case law, Plaintiffsstate that "causation may be established with proof thatFord's conduct [*42] 'was likely to deceive a consumeracting reasonably in the same circumstances.'" (Pls.' Br.at 36; Pls.' Reply Br. at 26) (citations omitted). Finally,Plaintiffs contend that they have presented common evidenceof injury in the form of an inherent design defectthat manifests on every vehicle--an inability to "safelycarry 15 passengers." (Pls.' Br. at 36; see also Pls.' ReplyBr. at 33). Plaintiffs point to two decisions of the NewYork Court of Appeals that they claim enable them topresent common proof of deception and causation underGBL § 349. First, Plaintiffs argue that Oswego Fund v.Marine Midland Bank set an objective "reasonable consumer"standard for determining whether or not an allegedrepresentation was deceptive. See 85 N.Y.2d 20,647 N.E.2d 741, 623 N.Y.S.2d 529 (N.Y. 1995). Second,Plaintiffs invoke Stutman v. Chemical Bank for theproposition that they can show common proof of causationsimply by showing that the alleged misrepresentationswere "material." See 95 N.Y.2d 24, 731 N.E.2d 608,709 N.Y.S.2d 892 (N.Y. 2000). With regard to injury,Plaintiffs cite Ackerman v. Coca-Cola Co., No. 09-0395,2010 U.S. Dist. LEXIS 73156, 2010 WL 2925955(E.D.N.Y. July 21, 2010) and In re General Motors Corp.Pick-Up Truck Fuel Tank Products Liability Litigation,55 F.3d 768 (3d Cir. 1995), [*43] for the propositionthat they can claim a common, benefit-of-the-bargain, ordiminution in value, injury.The Court agrees that Plaintiffs have not met thepredominance requirement for its New York consumerfraud claims under GBL § 349, because resolution ofPlaintiffs and putative class members' claims will requirenumerous individualized inquiries into the material misrepresentation,deception and causation, and actual injury.a. MisrepresentationAs is evident by Chief Judge Brown's summaryjudgment opinions, different Plaintiffs were exposed todifferent representations at different times. Some receivedsales brochures from Ford describing the van as a"15-passenger van" (First United), others saw that descriptionas part of the vehicle packaging, such as thewindow sticker (First United), some were simply toldthat the E-350 was a "15-passenger van" by a salesperson(Charles St. AME, Greater All Nation), some were assuredthat the E-350 was the "best vehicle going"(Charles St. AME), and it appears that some did not seeor hear any representation regarding the van's passengercapacity or relative safety (Pentecostal Temple). See July9 Opinion, 2010 U.S. Dist. LEXIS 68241, 2010 WL2813788, at *4-5, 19-20, 75. [*44] The Court furthernotes that Ford's safety disclaimers in the E-350 owner'sguides evolved over time. Whereas the 2000-2002model-year owner's guides alerted consumers that theyshould take "extra precautions" because "[l]oaded vehicles,with a higher center of gravity, may handle differently,"the 2003-2005 model-year owner's guides statedthat "[t]he risk of a rollover crash increases as the numberof people and load in the vehicle increase," and specificallyadvised that "[t]he van should be operated by anexperienced driver." (See Doc. No. 292, Smith Decl. Ex.12). Moreover, Plaintiffs recognize in their Complaintthat Ford issued a safety advisory in September 2002instructing consumers to use trained drivers for the E-350 van. (Compl. 31). Given these variations among