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

2012 U.S. Dist. LEXIS 13887, *Page 15349, and reliance, which is not. The court concluded thatthe homeowners did not need to allege that they wouldnot have borrowed from the lender if they had known thetruth about the fee; rather, the causation requirement hadbeen met, because "plaintiffs allege that because of defendant'sdeceptive act, they were forced to pay a $275fee that they had been led to believe was not required."Id. at 612. As this Court reads Stutman's causation analysis,Plaintiffs in this case need not show that they wouldnot have purchased the E-350 van if they had known ofthe handling problems, but only that they incurred a lossas a result of the deceptive act. If Plaintiffs have noknowledge [*59] of the allegedly deceptive act (the allegedmisrepresentation), or if Plaintiffs have actualknowledge of the handling defect prior to the purchase(and, for instance, simultaneously negotiate a lowerprice), Stutman is inapposite, and these Plaintiffs havenot shown causation. Identifying which putative classmembers purchased under similar circumstances willrequire individualized inquiries that are impracticable inclass litigation.c. InjuryChief Judge Brown ruled in the July 9 Opinion thatthe actual injury requirement recognized in Frank v.Daimler Chrysler Corp. applied to Plaintiffs' GBL § 349claim. July 9 Opinion, 2010 U.S. Dist. LEXIS 68241,2010 WL 2813788, at *70-72. Under Frank, a party doesnot meet the injury requirement of GBL § 349 unless theallegedly defective product fails and causes personalinjury or property damage, or the person incurs repaircosts or diminished value as a result of the defect. 741N.Y.S.2d at 17 (affirming dismissal of § 349 claim wherethe "plaintiffs have not been involved in any accidentsand have not suffered any personal injuries or propertydamage," and "plaintiffs d[id] not allege that any seat hasfailed, been retrofitted or repaired, nor have plaintiffsattempted [*60] to sell, or sold an automobile at a financialloss because of the alleged defect"). In their oppositionto summary judgment, Plaintiffs did not argue thatthey had a common diminution in value injury underNew York law that would be measured by the cost of aretrofit. (See Doc. No. 247 at 36-37). Instead, Plaintiffsasserted that they had presented some evidence of out-ofpocketrepair costs (for Bishop Anderson), and that theywould otherwise "rely on expert testimony to determineif, and how much, prices of the new and used vans reflectedtheir publicized problems." (Id. at 37). Applyingthe Frank standard to the individual New York Plaintiffs'respective proofs, Chief Judge Brown concluded thatBishop Anderson had shown sufficient proofs of actualinjury under Frank to create a genuine dispute of fact,but that Barrett had not, because he "1) did not allege anyout-of-pocket repair or rental costs; 2) fills his vehicle tocapacity when he has sufficient passengers; and 3) statedthat he has no plans to sell his van." 2010 U.S. Dist.LEXIS 68241, [WL] at *71. Chief Judge Brown thereforegranted summary judgment against Barrett on all of hisclaims.Nevertheless, Plaintiffs now argue that they can presentcommon [*61] proof of a uniform retrofit injury,because they have expert testimony reflecting that thehandling defects are inherent in the E-350 design. Inother words, Plaintiffs contend that they can use the uniformcost of a retrofit ($2,100) as a proxy for the inflatedvalue named Plaintiffs and putative class members paidas a result of Ford's packaging of the E-350 as a "15-passenger van." Plaintiffs' argument runs flat, becausePlaintiffs have not sought reconsideration of Chief JudgeBrown's Frank rulings, which are now law of the case,and because the record reveals that Plaintiffs do not havecommon proof of actual injuries.Plaintiffs make no attempt to show that Chief JudgeBrown's Frank rulings were erroneous applications ofNew York law, or that they have common proof of actualinjury under Frank. Instead, Plaintiffs just disregardFrank in their opening brief, and it appears that Plaintiffswant this Court to disregard Frank as well. 11 This Courtcannot do so; the law of the case doctrine prevents thisCourt from arbitrarily choosing which prior decisions inthis case remain in effect. Similar to a motion for reconsideration,courts will only depart from the law of thecase when [*62] "(1) new evidence is available; (2) asupervening new law has been announced; or (3) theearlier decision was clearly erroneous and would createmanifest injustice." In re City of Phila. Litig., 158 F.3d711, 718 (3d Cir. 1998) (citation omitted); see also Falorv. G&S Billboard, No. 04-2373, 2008 U.S. Dist. LEXIS99613, 2008 WL 5190860, at *2 (D.N.J. Dec. 10, 2008)(characterizing law of the case issues as "the oppositeside of the motion for reconsideration coin"). Plaintiffshave not presented grounds for departing from the law ofthe case, and thus this Court must apply Frank. ThisCourt is persuaded that, under Frank, the presiding courtwould need to conduct the sort of detailed analysis employedby Chief Judge Brown to resolve the claims ofBarrett and Bishop Anderson for each of the thousandsof putative class members. Such individualized inquiriesare impracticable in class litigation.11 Plaintiffs' strategy of disregarding Frank appearsto have changed by the reply brief, wherePlaintiffs appear to suggest that Chief JudgeBrown concluded that Frank did not apply toPlaintiffs' claims. (See Pls.' Reply Br. at 33) ("Asdiscussed herein, and as this Court previouslyfound in adjudicating Ford's summary [*63]judgment motions, [citations omitted], [sic] doesnot control here."). But, as noted above, Chief