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Plaintiffs’ lawyers in the multidistrict litigation against Toyota Motor Corp. over sudden acceleration claims intend to challenge a “hotly disputed” governmental report that concluded that defects in Toyota vehicles were limited to gas pedals and floor mats, according to court documents filed on March 16. Toyota moved last month to dismiss claims brought in a second amended master consolidated complaint in the MDL, citing a Feb. 8 report by the National Traffic Highway Safety Administration and the National Aeronautics & Space Administration. In it, the government was unable to conclude that electronics in the vehicles could have caused sudden acceleration. Toyota filed judicial notice of the report last month in the MDL, in which plaintiffs’ lawyers have alleged problems with the electronic throttle control system in Toyota vehicles. The complaint, brought on behalf of a class of consumers seeking economic damages, make up most of the more than 200 lawsuits pending in an MDL before U.S. District Judge James Selna in Santa Ana, Calif. The plaintiffs’ attorneys said in the court documents that the court’s acceptance of Toyota’s request for judicial notice would prevent them from challenging the report’s conclusions in their case. “Toyota’s request is an improper attempt to avoid litigation of key, disputed issues in this litigation,” wrote Steve Berman, managing partner of Seattle’s Hagens Berman Sobol Shapiro, co-lead counsel on the plaintiffs’ steering committee in the consumer class actions. He noted that Toyota has refused to provide unredacted copies of the full report. As recently as March 14, Toyota’s lawyers opposed a request for the report, but Selna told them to turn over an unredacted version of it once security issues surrounding Toyota’s source code, which the report discusses, are agreed upon by the parties. The plaintiffs intend to refute many of the report’s findings, such as its failure to identify an electronic cause for sudden acceleration and conclusions that most sudden acceleration claims were caused by driver error, Berman wrote in court documents. In a statement provided to The National Law Journal on March 17, Toyota spokeswoman Celeste Migliore said that “Toyota should not be compelled to produce the highly proprietary and confidential material within the NHTSA/NASA reports until rules for protecting them have been finalized; however, the publicly available information in the reports belies plaintiffs’ claims.” The court filings represent the second go-round for Toyota in the MDL. On Nov. 19, Selna refused to dismiss most of the economic claims in the original master consolidated complaint. In opposing Toyota’s attempt to dismiss their second amended consolidated complaint, the plaintiffs focused on whether the named plaintiffs have standing to sue. They cited the California Supreme Court’s Jan. 27 decision in Kwikset v. Superior Court finding that the plaintiffs in that case had injuries sufficient to sue under California’s Unfair Competition Law. In that case, buyers of Kwikset locksets alleged that they would not have bought the products, which had foreign parts, had they not been deceived by the labeling, “Made in the U.S.A.” Each named plaintiff in the Toyota MDL “now individually alleges the basis for that alleged overpayment – a vehicle with defects affecting the driver’s ability to maintain speed control is not worth as much as a vehicle that is safe and reliable,” Berman wrote. In court papers, the plaintiffs also refuted Toyota’s argument that that many of them could not assert warranty claims because they had failed to take their vehicles in for repairs. Berman wrote that plaintiffs had a claim for express warranty because they relied on Toyota’s national advertising promoting the safety and reliability of its vehicles. He added that the second amended master consolidated complaint lists the specific advertising materials that persuaded each of the named plaintiffs to purchase his or her Toyota vehicle. Migliore, the Toyota spokeswoman, replied by stating that “the vast majority of plaintiffs still cannot prove they have suffered any damages, another essential element of their legal claims. Indeed, these plaintiffs continue to drive their vehicles every day without incident and thus, as Toyota has pointed out, do not have any valid claim. We stand by our common sense proposition, backed by extensive case law, that only drivers who allege they have experienced unintended acceleration in their Toyota or who have incurred an actual out-of-pocket financial loss because of an alleged defect should be allowed to pursue claims against Toyota in a federal court.” A hearing on the motion to dismiss is scheduled for April 29. The MDL is moving forward as Toyota has been forced to halt production at all its plants in Japan due to the earthquake and tsunami. On March 16, Toyota extended its production shutdown to March 22. Amanda Bronstad can be contacted at abronstad@alm.com.

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