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Cheryl Bush Sworn in as a Regent of the American College of Trial Lawyers
Result: The court rejected PLAC's position on both issues addressed in PLAC's amicus brief.
The court affirmed the trial court's admission of evidence of eighty-five recalls involving Hyundai vehicles and components not related to the 2013 Elantra's driver's seat. PLAC argued that unrelated recalls do not rebut the presumption of non-defectiveness under Wis. Stat. § 895.047(3)(b). The court disagreed. Using a broad definition of relevance, the court held that when Hyundai relied on § 895.047(3)(b) and the 2013 Elantra's compliance with FMVSS to create a rebuttable presumption of non-defectiveness, Hyundai transformed compliance with FMVSS into a fact of consequence in the case. This, in turn, opened the door for plaintiffs to introduce unrelated Hyundai recalls to show that vehicles that comply with FMVSS could nonetheless have safety-related defects.
As to the admission of evidence of the later 2017 Elantra's seat design, the court found there was no abuse of discretion in admitting the evidence under the feasible alternative design exception to Wisconsin's prohibition of subsequent remedial measure evidence. PLAC argued that allowing evidence of a seat design that was still in development (later implemented in 2017 models) when the plaintiffs' Elantra was manufactured in 2013 rendered superfluous the statute's express language. The court held, however, that the 2017 model could have been practically adopted before Plaintiffs' vehicle was made in 2013 because of the 2017 model's similarity to other designs used by Hyundai before 2013.
As to the 2017 seat design, the court also rejected the argument that plaintiffs' introduction of the 2017 model seat design was an improper use of the impeachment exception to Wis. Stat. § 904.07. PLAC argued that the plaintiffs used evidence of the 2017 model as a backdoor to prove negligence under the guise of impeachment. The court, however, held that the evidence was relevant to impeached Hyundai's claim that the 2013 model was state-of-the-art, as well as the suggestion by one of the experts that the design could not have been improved upon. The court also concluded that even had there been an abuse of discretion in admitting the evidence, it would have been harmless.
Although much of the opinion was somewhat fact specific, the decision reflected the court's willingness to interpret the statutes concerning presumptions and admission of subsequent design changes in a way that fails to give protections to manufacturers that the plain language of the statutes would otherwise indicate as being appropriate.
Significance: This opinion is undoubtedly significant. This opinion might chill manufacturers' practical ability to offer evidence of compliance with governmental standards because of the risk that it will be seen as opening the door to an unlimited number of unrelated recalls. This risk is amplified by the fact that numerous jurisdictions have statutes that are textually similar to Wis. Stat. § 895.047(3)(b), expanding the scope of the consequences of this opinion beyond Wisconsin.
The court's decision to allow later-implemented design changes––either under the guise of impeachment or feasibility of alternative design––also may have broad effects. If those future designs are admissible merely because the manufacturer asserts, for example, a state-of-the-art defense, the rules against admission of subsequent remedial measure evidence (which is common to most jurisdictions) will become a nullity.
PLAC is supporting Hyundai's petition for review to the Wisconsin Supreme Court.
On March 10, 2020, PLAC filed an amicus brief in support of the defendant Volkswagen dealer. On June 30,
2022 the Utah Supreme Court issued its decision, reversed the decision of the trial court to grant JNOV
and a new trial, and ordered the verdict against the defendant reinstated.
This brief was authored by Alan J. Lazarus,
Faegre Drinker, with support from Tracy H.
Fowler, Snell & Wilmer
Read the brief.
On October 15, 2021, PLAC filed an amicus brief in the Supreme Court of the State of Connecticut on
behalf of Defendant-Appellees Bausch & Lomb, Inc., Bausch Health Companies Inc. (f/k/a Valeant
Pharmaceuticals International, Inc.), Bausch Health US, LLC (f/k/a Valeant Pharmaceuticals North America
LLC), and Bausch Health Americas, Inc. (f/k/a Valeant Pharmaceuticals International)
This brief was authored by John
Rotondo & Matthew
Letten of Day Pitney LLP
PLAC filed an amicus curiae brief on Nov. 22, 2021 in support of General Motors in this case.
The brief was
written by Phil Goldberg
Anna Pieschel of Shook Hardy & Bacon, LLP. The Court issued its ruling on June
This brief was authored by:
Chilton Davis Varner,
Ashley C. Parrish,
Brandon R. Keel,
Jeremy M. Bylund, and
We return to a theme we’ve repeated twice before, in 2011 and in 2014 – that in addition to industry-specific groups, manufacturers of prescription medical products should definitely consider joining the Product Liability Advisory Council (“PLAC”). We continue to believe that PLAC membership helps pharmaceutical and medical device defendants litigate stronger (through inter-industry cooperation on shared issues of concern), smarter (through cutting edge CLE and webinars), and more efficiently (utilizing PLAC’s online knowledge base and other resources).
Jim Beck, Esq.
Reed Smith LLP
PLAC's mission is to obtain fairness and balance in the common law of product liability. A primary tool to accomplish this mission is PLAC's Amicus Curiae Program, often called “The heart and soul of PLAC.”
PLAC has filed more than 1,200 amicus briefs, written by some of the nation’s top appellate practitioners. Our briefs have been accepted in virtually every state and federal court in the U.S. They are routinely acknowledged, quoted, and praised by courts in published opinions.
PLAC’s amicus briefs help shape the law for all manufacturers on important issues.
PLAC 2021 Amicus Year in Review
PLAC is a specialty bar association focusing on complex litigation and regulatory issues in the area of product development and product liability. Our not-for-profit association of product manufacturers, suppliers, retailers and select regulatory, litigation and appellate professionals who work to shape the common law of product liability and complex regulation, provide guidance on changing regulations, and strategically help corporations manage risk throughout the entire product lifecycle. PLAC is a unique resource for companies who must defend their products’ integrity and their companies’ reputation.
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