In re Ford Motor Co. Speed Control Deactivation Switch Litigation

• Decision Date: 19 February 2008
• Docket Number: No. 07-0953.,07-0953.
• Citation: 285 S.W.3d 185
• Parties: In re FORD MOTOR COMPANY SPEED CONTROL DEACTIVATION SWITCH LITIGATION.
• Court: Texas Supreme Court

285 S.W.3d 185

In re FORD MOTOR COMPANY SPEED CONTROL DEACTIVATION SWITCH LITIGATION.

No. 07-0953.

Texas Judicial Panel on Multidistrict Litigation.

February 19, 2008.

ON REVIEW BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

Justice LANG delivered the opinion of the Multidistrict Litigation Panel.

Before this Multidistrict Litigation Panel is Ford Motor Co.'s motion to transfer, requesting the transfer of seventy-seven pending cases in twenty-eight counties to a pretrial judge for consolidated and coordinated pretrial proceedings. For the following reasons, Ford's motion to transfer is granted.

I. FACTUAL CONTEXT AND CONTENTIONS

On November 14, 2007, Ford filed its motion to transfer before this panel.¹ Tracking the language of Texas Rule of Judicial Administration 13.3(a)(2), Ford alleges that seventy-seven cases pending against it in twenty-eight different counties involve common issues of fact and the transfer of those cases for consolidated or coordinated pretrial proceedings would be for the convenience of the parties and witnesses, and would promote the just and efficient conduct of the cases. See TEX.R. JUD. ADMIN. 13.3(a)(2).

Ford contends all of the seventy-seven cases involve Ford's speed control deactivation switches (switch(es)) in various motor vehicles. The switches are alleged to be defective and allegedly caused the specific fire and attendant damages in each case. Ford asserts each case shares "common questions of fact in that they are all premised on the same alleged defect." According to Ford, each case seeks to determine whether the "cause and origin of the vehicle fires was at the [switches] and the extent of damage caused by the fire." Ford lists several factual questions, which it says will "overlap" in the cases. These questions concern the design, manufacture, testing, installation, advertising, and performance of the switches. Additionally, Ford says plaintiffs "are likely to seek information concerning the timing and motivation behind Ford's 05S28 recall [of the switches]." Ford asserts its position will be "identical" as to all of "these underlying causation issues." Finally, Ford advises us that the Federal Judicial Panel on Multidistrict Litigation has determined that "more than 50" cases in federal court involving the switches are appropriate for consolidation and has transferred them to the United States District Court for the Eastern District of Michigan. In re Ford Motor Co. Speed Control Deactivation Switch Prods. Liab. Litig., 398 F.Supp.2d 1365 (J.P.M.L.2005).

Plaintiffs generally oppose the transfer of the cases, arguing there is no common issue of fact in the cases.² Rather, there is only "a common ultimate question: whether a defect present in the [switches] of the specific Ford vehicle at issue caused the specific fire and damages being complained of in each separate action." Plaintiffs assert that the switches "are defective and . . . fail in exactly the same manner." Further, they argue many issues exist which are "peculiar and unique to each case," including maintenance, repair history, after-market add-ons, warranty considerations, and other potential causes for the fire and damages, and make consolidation improper. They argue generally that "[t]he issues in each of these cases have less to do with the nature of the defect . . . than with the ultimate causation issue— the particularly unique factual considerations of each individual case." In fact, plaintiffs state in their objections to discovery, which was filed prior to the filing their motion to transfer, that Ford has steadfastly denied the claims involving the recalled switches "are similar, relevant or admissible," because in the words of the plaintiffs, "different switches mean different manufacturing processes and different failure modes."

Plaintiffs assert the uniqueness of the cases is clear from the following examples: (1) the "Glander" case demonstrates there are different switches manufactured by different companies, one type manufactured for Ford by Texas Instruments and another manufactured for Ford by Hi-Stat; (2) the "Bourque subrogation" case involves not only property damage, but mental anguish of several plaintiffs who are joined in one case; (3) the "Radio Shack" case involves a claim against the owner of the vehicle, the repair shop where it was located at the time of the fire, and Ford; and (4) the "Scott" case is a wrongful death case involving cause, manner of death, degree of pain and suffering, survivors' loss of consortium, economic value of decedent's life and any preexisting medical condition. Finally, plaintiffs assert Ford merely seeks consolidation for delay. We are told discovery has been conducted in several cases and they are ready for trial. At least one case is set for trial in each of the months of January, March, April, and May 2008. There are no problems with discovery or pretrial procedures, and transfer would be inefficient and uneconomical "given discovery is underway in many of these cases and there are multiple parties involved in many of the suits." According to plaintiffs, should transfer be ordered, plaintiffs and witnesses will be required to travel to a distant venue for discovery and hearings.

In reply to the plaintiffs' assertions, Ford advises us that a significant number of the plaintiffs have acknowledged there are common issues as to the switches. Ford cites us to actions taken by the so-called "Houssiere Plaintiffs" to seek consolidation of eleven Dallas County suits where suit has been filed against Ford for damages allegedly caused by a defective switch in each case.³ In their motion to consolidate, which was filed in the 68th Judicial District Court in Dallas County, the "Houssiere Plaintiffs" assert the cases involve the "same questions of law or fact" because they involve Ford vehicles that contain the switches and consolidation would "facilitate the orderly and efficient" resolution of the cases. According to Ford, the plaintiffs state the "vast majority" of the witnesses in the cases will be Ford employees, corporate representatives, design experts, and engineers. Also, the plaintiffs state the "main issue will be the defectiveness of the switches, making evidence in such other cases equally applicable. . . ." This motion to consolidate in the trial court was made pursuant to Texas Rule of Civil Procedure 174, which, according to Ford, if granted, would have the effect of consolidating the cases for all purposes, including trial on the merits, in contrast with consolidation for pretrial only, if the motion before us is granted. See TEX.R. CIV. P. 174. Further, as to the claim by plaintiffs that transfer will necessitate inconvenient travel to distant venues, Ford points out that the local discovery will continue to be local because parties and nonparty witnesses can be deposed under the rules, normally in the county of suit for a party plaintiff or within 150 miles of where a non-party resides or is served. TEX.R. CIV. P. 199.2. Ford also suggests that on transfer, the pretrial judge can organize the taking of depositions such as Ford employees and suppliers and their respective current or former employees. Finally, Ford notes for us that the central point of plaintiffs' argument is that the issues are not common because they are not identical and are unique. Ford argues that is not the test. Rather, the test for transfer is whether the cases are "related."

II. DISCUSSION AND APPLICATION OF AUTHORITIES

With these contentions in mind, we turn to the authorities and their application. Texas Rule of Judicial Administration 13 provides a framework for a pretrial process that will allow cases to proceed efficiently toward trial. See TEX.R. JUD. ADMIN. 13; In re Vanderbilt Mortgage and Fin., Inc., 166 S.W.3d 12, 14 (Tex. M.D.L. Panel 2005). Rule 13 authorizes us "to transfer `related' cases from different trial courts to a single pretrial judge `if transfer will (1) serve the convenience of the parties and witnesses and (2) promote the just and efficient conduct of the litigation.'" See TEX.R. JUD. ADMIN. 13.2(f), 13.3(a), 13.3(l); In re Ad Valorem Tax Litig., 216 S.W.3d 83, 84 (Tex. M.D.L. Panel 2006). Relatedness of the cases is critical to whether we may grant a motion to transfer. In order for us to conclude that cases are "related," there must be common issues, but the cases need not be identical. We have previously determined:

There may indeed be differences. But every case is different. No two cases are alike. A rule 13 transfer of cases does not require that the cases be congruent or anything close to it. It requires only that cases are "related"—i.e. that they involve one or more common questions of fact—and that transfer will serve the convenience of the parties and the witnesses and promote the just and efficient conduct of the litigation.

In re Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006).

We have noted before that "[rule 13] does not require proof that witnesses have already been inconvenienced; it looks ahead and focuses on whether transferring cases to a pretrial judge would serve the convenience of parties and witnesses by preventing inconvenience in the future." In re Silica Prod. Liab. Litig., 166 S.W.3d 3, 5 (Tex. M.D.L. Panel 2004); In re Cano Petroleum, 283 S.W.3d 179 (Tex. M.D.L. Panel, 2008). Additionally, we have observed:

One virtue of transferring related cases to a single pretrial judge is that issues, once raised, will be decided the same way. A consistent and steady judicial hand at the helm should in fact promote agreements because lawyers will know where the court stands on recurring issues. As contested issues arise, the pretrial judge will make consistent rulings, which then can be reviewed by the appellate courts as appropriate. This, we think, serves Rule 13's goal that our system give related cases consistent and efficient treatment.

In re Silica, 166 S.W.3d at 6.

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