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A Philadelphia judge has denied certification for a proposed class that would have included General Motors vehicles manufactured in nine model years and ranging from compact cars to large SUVs. The plaintiffs in Zwiercan v. General Motors Corp., et al, have alleged that the front seats of numerous vehicles manufactured by GM feature a common design defect that renders those vehicles “extraordinarily dangerous in the event of rear-end collision.” In an opinion filed last week, Philadelphia Common Pleas Judge Mark I. Bernstein held that the plaintiffs had not met the “commonality” criterion of Pennsylvania’s five-part class certification test. “Based upon the proper analysis of all the expert reports presented and all the other evidence in accordance with the applicable standards and burden of proof,” Bernstein wrote, “plaintiff has failed to prove that the class vehicles contain a relevant common design, the effect of which is not transcended by all the other factors which necessarily go into designing a safe seat and determining the cause of injury. Having failed to satisfy their prima facie burden that the result, in rear-end collisions, is of such uniformity due to common seatback design, the court has no need to reach the question of whether the potential risk of serious bodily injury or death is of such a significant degree as to overcome the requirement of proof of individual reliance to permit certification of a [Pennsylvania Unfair Trade Practices and Consumer Protection Law] claim as a class action.” According to plaintiffs attorney Marc Weingarten of the Locks Law Firm, Ford Motor Co. and DaimlerChrysler Corp. had originally been named as defendants in Zwiercan, but were subsequently let out of the case. “We take very seriously the decision that Judge Bernstein made,” Weingarten said. “And so we’re going to consider that carefully in making our decision as to where to go from here.” Addressing the first prong of Pennsylvania’s class certification test, Bernstein wrote in his opinion that “there is no question that the number of potential claimants alleged to be part of this class meet the numerosity requirement.” Turning to the “commonality” prong, Bernstein noted that the proposed class would span nine model years, within which are included more than 55 separate models manufactured by seven GM divisions. Included in the class are coupes, four-door sedans, station wagons, sports cars, mini-vans, convertibles and SUVs. “The vehicles requested for inclusion in this class include the GM Metro, a compact car, and the Chevy Tahoe, a large SUV,” Bernstein wrote. Bernstein then discussed the expert testimony presented by both sides, writing that even the plaintiffs’ experts acknowledged that the collapsibility of a seat following a rear-end collision is a function of the individual vehicle’s structure and of each passenger’s weight. “Plaintiff’s expert theory rests on the assumption that there is a single GM seat and a single GM construction of the seat in each of the class vehicles,” Bernstein wrote. “This factual assumption is unsupported by the record.” Bernstein continued that strength tests of two types of relevant GM seats were performed by a plaintiffs’ expert “on not more than nine out of the 69 vehicle makes and models proposed for inclusion.” He also noted that there are at least 25 different types of seats found in the proposed class’s vehicles. Bernstein later called attention to the fact that an expert inspection of the 1997 Chevrolet Blazer — the type of vehicle used by the proposed class representative — had not been performed. “[Plaintiffs' expert Alan] Cantor’s analysis is further flawed because it is exclusively based on a single [criterion], rearward strength,” Bernstein wrote. “This analysis [flies] in the face of his repeated concessions that numerous other factors including vehicle characteristics, occupant characteristics and the particular circumstances of each collision affects seat performance and injury potential.” Discussing the testimony of plaintiffs’ expert Randall Whitfield, a statistical consultant, Bernstein wrote that the data cited by Whitefield in support of the plaintiffs’ claim “does not identify whether the occupants who sustained injuries had been located in the front or rear vehicle. [The] claim in this class action is that the seats are defective as to occupants of the front vehicle only… . The court has no ability whatsoever to evaluate whether the number of injured parties contained in the data analyzed who were in the rear striking vehicle is insignificant, significant or overwhelming in numbers.” By contrast, according to Bernstein’s opinion, a defense expert had testified that rear-impact collisions account for 11 percent of all accidents and that most injuries sustained in them are minor in nature and tend not to stem from seat collapsibility. Bernstein scheduled a pre-trial conference for early January to address plaintiffs’ individual claims. J. Andrew Langan of Kirkland & Ellis in Chicago was lead defense counsel in the case. “General Motors is pleased with the ruling, and believes it is the correct result,” Langan said. GM has been locally represented in Zwiercan by lawyers from Lavin O’Neil Ricci Cedrone & DiSipio. Weingarten — who was assisted by associates Andrew DuPont and Stefanie Ebert and partner Seth Lesser — said that he is considering whether to appeal Bernstein’s decision.

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