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Plaintiffs’ attorneys in the federal sudden acceleration litigation against Toyota Motor Corp. received a second blow to their claims for economic damages when a judge refused to certify their request to appeal his substantial reduction of the scope of their potential class action. U.S. District Judge James Selna, who is overseeing the multidistrict litigation against Toyota in Santa Ana, Calif., had ruled on June 8 that consumers who relied upon Toyota’s guarantees of reliability and safety should not be allowed to pursue economic damages under California’s state law if they lived or purchased their vehicles in another state. Plaintiffs’ attorneys had filed all 200 consumer claims as a master consolidated complaint in California, hoping to pursue economic damages for a proposed nationwide class. Toyota has maintained that 70% of the consumer cases were brought in states outside California. Plaintiffs’ attorneys sought to file an interlocutory appeal of Selna’s ruling — which substantially reduced the prospect of a large class action with huge liabilities against Toyota — to the U.S. Court of Appeal for the 9th Circuit. In a cross-motion filed on July 12, they argued that there was a substantial difference of opinion regarding “choice of law” precedents in similar cases. Toyota, in a July 28 opposition paper, disputed that the issue was a controlling question of law or that an appeal of Selna’s order would advance the litigation. Selna agreed with Toyota on Aug. 9. “Because the Court is of the opinion that the choice-of-law is neither ‘a controlling question of law as to which there is substantial ground for difference of opinion’ or one ‘that an immediate appeal from the order may materially advance the ultimate termination of the litigation,’ ” Selna wrote, “ the court denies Plaintiffs’ cross motion.” “We are pleased with the Court’s ruling and agree that plaintiffs’ counsel failed to meet the mandatory criteria for appellate review of the choice-of-law order,” Toyota spokeswoman Celeste Migliore said in a prepared statement on Aug. 11. “We look forward to this case proceeding as efficiently as possible and remain confident that scientifically reliable and admissible evidence will demonstrate that no defect exists in our electronic throttle control systems.” Steve Berman, managing partner of Seattle’s Hagens Berman Sobol & Shapiro and co-lead counsel for the plaintiffs’ steering committee for the economic claims, did not respond to a request for comment. Selna’s denial of the plaintiffs’ request for interlocutory appeal contrasted with a separate ruling last month for Toyota. On July 19, Selna certified Toyota’s request to appeal his refusal to dismiss the sudden acceleration claims in the consumer class action to the 9th Circuit. He had ruled on May 13 that economic damages could go ahead based on injuries alleged — in particular, that the plaintiffs relied on advertising promoting the safety of Toyota’s vehicles. Toyota petitioned Selna to certify for interlocutory appeal whether the plaintiffs had standing to sue if they had not experienced a defect, whether monetary or in property damages to their cars, most of which never experienced a sudden acceleration incident. Selna granted that request, and Toyota has brought in appellate specialist Theodore Boutrous of Los Angeles-based Gibson, Dunn & Crutcher to handle the appeal. Neither the choice of law ruling nor the dismissal order have any bearing on an additional 100 personal injury and wrongful death cases filed against Toyota in the MDL. Additional cases are pending in state courts across the country, including another 27 cases proceeding in New York state court that include personal injury and economic claims. A state judge in Long Island recently approved a management order governing discovery in the New York state cases. Contact Amanda Bronstad at [email protected] .

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