IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,039
AUDIE DRAGON and JOHN HOWARD,
For Themselves and All Others Similarly Situated,
Appellees,
v.
VANGUARD INDUSTRIES, INC.,
VANGUARD PIPING SYSTEMS, INC.,
and VANGUARD PLASTICS, INC.,
Appellants.
SYLLABUS BY THE COURT
1. Under K.S.A. 2003 Supp. 60-223(a), four threshold requirements apply to all class actions: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. Parties seeking class certification must also show that the action is maintainable under K.S.A. 2003 Supp. 60-223(b)(1), (2), or (3). For a class to be certified pursuant to K.S.A. 2003 Supp. 60-223(b)(3) it must also be shown that common questions of law or fact predominate over any questions affecting only individual members, and class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy.
2. Trial judges are afforded substantial discretion in determining whether a class should be certified. A proper exercise of discretion requires that the court give consideration to and conduct a rigorous analysis of the prerequisites stated in K.S.A. 2003 Supp. 60-223. In doing so, the court should consider evidence if requested by the parties and weigh that evidence in determining if the prerequisites are satisfied.
3. A movant under K.S.A. 2003 Supp. 60-223 has the burden to show that there are no significant differences in the various states' laws or, if there are variations, that they can be managed by the trial court.
Appeal from McPherson district court; CARL B. ANDERSON, JR., judge. Reversed and remanded with directions. Opinion filed May 14, 2004.
Casey R. Law, of Bremyer & Wise, L.L.C., of McPherson, argued the cause and was on the briefs for the appellants Vanguard Industries, Inc., and Vanguard Piping Systems, Inc.
William H. Seiler, Jr., of McPherson, argued the cause and was on the briefs for the appellant Vanguard Plastics, Inc.
Rex A. Sharp, of Gunderson, Sharp & Walke, P.C., of Prairie Village, argued the cause, and Isaac L. Diel and Todd R. Seelman, of Diel & Seelman, P.C., of Prairie Village, and David B. Cohen, of Scarsdale, New York, were with him on the brief for the appellees.
The opinion was delivered by
LUCKERT, J.: Plaintiffs Audie Dragon and John Howard are Georgia residents who filed suit on behalf of themselves and a nationwide class of property owners whose property contains polybutylene pipe manufactured from Mitsui resin. Plaintiffs allege this defective product, known as M pipe, was designed, manufactured, advertised, or sold by defendants.
The district court granted plaintiffs' motion for nationwide class certification and defined the class as: "All persons and entities that own real property or structures and/or improvements to real property in the United States in which there was installed between January 1, 1990, and the present Vanguard polybutylene plumbing containing resin manufactured by Mitsui Plastics, Inc." After denying a motion for reconsideration, the trial court amended its prior order to include the findings required before a request for interlocutory appeal may be made. See K.S.A. 60-2102(b). The Court of Appeals granted the defendants' application for permission to take an interlocutory appeal. This court denied plaintiffs' petition for review of that decision and transferred the appeal to this court on the court's own motion pursuant to K.S.A. 20-3018(c).
The defendants allege that the district court abused its discretion in finding that the prerequisites established by K.S.A. 2003 Supp. 60-223 were satisfied. More specifically, defendants allege that the trial court erred in not fully considering disputes regarding facts relevant to the statutory prerequisites and choice-of-law problems. The defendants also allege that the district court erred in relying on non-Kansas cases where other courts had certified class actions in which plaintiffs sought damages from manufacturers of defective polybutylene pipe made with a resin other than the Mitsui resin which is alleged to be a component of the defective product at issue in this case.
We find that the trial court failed to fully determine factual issues relating to the prerequisites for class certification and to rigorously analyze the requirements of commonality, typicality, predominance, and superiority. We reverse and remand for further proceedings on the issue of whether the requested class should be certified.
K.S.A. 2003 Supp. 60-223 governs class actions. This provision is patterned after Fed. R. Civ. Proc. 23, although it is not identical, and this court has traditionally followed the federal courts' interpretation of the federal rule. Steele v. Security Benefit Life Ins. Co., 226 Kan. 631, 636, 602 P.2d 1305 (1979).
The federal rule was amended in 2003, and its Kansas counterpart in 2004, while this case was on appeal. The amendments to K.S.A. 2003 Supp. 60-223 are not yet effective (2004 House Bill No. 2764); therefore, the pre-amendment version of the statute governs this analysis.
K.S.A. 2003 Supp. 60-223(a), like its federal counterpart, imposes four requirements applicable to all class actions:
"(a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." K.S.A. 2003 Supp. 60-223(a).
In abbreviated form, these threshold elements require: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.
In addition to satisfying these four prerequisites, parties seeking class certification must show that the action is maintainable under K.S.A. 2003 Supp. 60-223(b)(1), (2), or (3). Plaintiffs in this case seek certification under K.S.A. 2003 Supp. 60-223(b)(3). This provision adds two additional prerequisites: common questions of law or fact must "predominate over any questions affecting only individual members" and class resolution must be "superior to other available methods for the fair and efficient adjudication of the controversy." K.S.A. 2003 Supp. 60-223(b)(3) includes a list of factors pertinent to a court's examination of the predominance and superiority requirements:
"(A) The interest of members of the class in prosecuting or defending separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against members of the class; (C) the appropriate place for maintaining, and the procedural measures which may be needed in conducting, a class action." K.S.A. 2003 Supp. 60-223(b)(3).
The trial court made specific findings that each of the prerequisites of K.S.A. 2003 Supp. 60-223(a) and (b)(3) had been met. Regarding the four prerequisites of K.S.A. 2003 Supp. 60-223(a), defendants focus upon the trial court's findings that commonality and typicality were met. Defendants also challenge the trial court's findings that the prerequisites of K.S.A. 2003 Supp. 60-223(b)(3), predominance and superiority, were met. Many of the prerequisites overlap, as do defendants' arguments. Intertwined with all of the defendants' arguments is the contention that the trial court erred in failing to fully consider and resolve factual questions regarding class issues before the court certified the class.
Standard of Review
"Trial judges are afforded substantial discretion in determining whether a class should be certified." Bigs v. City of Wichita, 271 Kan. 455, 477, 23 P.3d 855 (2001). As we noted in Saucedo v. Winger, 252 Kan. 718, 730-32, 850 P.2d 908 (1993), "'the amount and degree of judicial discretion will vary depending on the character of the question presented for determination.'" 252 Kan. at 731 (quoting Wallach, Judicial Discretion: How Much, in Judicial Discretion 12 [Smithburn 1991]). In general, when a discretionary decision is made "within the legal standards and takes the proper factors into account in the proper way, the [trial court's] decision is protected even if not wise." Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J. App. Prac. & Process 47, 59 (2000). However, "[a]buse is found when the trial court has gone outside the framework of legal standards or statutory limitations, or when it fails to properly consider the factors on that issue given by the higher courts to guide the discretionary determination." 2 J. App. Prac. & Process at 59. See Friendly, Indiscretion about Discretion, 31 Emory L.J. 747, 763 (1982); Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635 (1971); Schroeder, Appellate Justice Today: Fairness or Formulas, Wis. L. Rev. 9, 24 (1994).
Applying these principles in the context of the discretionary decision to certify a class, the United States Supreme Court has explained "this discretion is not unlimited, and indeed is bounded by the relevant provisions of the . . . Rules." Gulf Oil Co. v. Bernard, 452 U.S. 89, 100, 68 L. Ed. 2d 693, 101 S. Ct. 2193 (1981). In another case, the Court explained its reversal of the discretionary decision: "We do not, of course, judge the propriety of a class certification by hindsight. The District Court's error in this case . . . is the failure to evaluate carefully the legitimacy of the named plaintiff's plea . . . ." A class should be certified only "after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." (Emphasis added.) General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-61, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982).
While the trial court has substantial discretion in determining whether a class should be certified, the provisions of K.S.A. 2003 Supp. 60-223 must be applied and rigorously analyzed.
Did the Trial Court Abuse its Discretion by Not Weighing Evidence?
The defendants argue that the trial court abused its discretion by not resolving factual issues which defendants placed in dispute by filing affidavits and portions of the plaintiffs' depositions. This evidence related to the number of states where the product was sold, difficulties in identifying the product, and variances in the factors contributing to product failure.
The plaintiffs contend the trial court should make the certification decision solely on the basis of the allegations contained in the pleadings. In support of this argument plaintiffs cite Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974), in which the United States Supreme Court stated: "We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." 417 U.S. at 177. Plaintiffs urge us to apply this conclusion broadly and conclude that the trial court must accept the class allegations as true and not inquire into the merits of the class facts.
This argument has been rejected by federal courts. In Falcon, the United States Supreme Court explained that in order to rigorously analyze the Rule 23 prerequisites "it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Falcon, 457 U.S. at 160. While acknowledging that the factual probe must be something short of a determination of the merits of plaintiffs' claim, the federal courts generally recognize that evidence may be used to establish the facts necessary to show whether the prerequisites to class certification are met and the evidence may be submitted at an evidentiary hearing, by affidavits, or through the discovery record. Manual for Complex Litigation (Fourth) § 21.21 (2004) (hereinafter Manual) ("An evidentiary hearing may be necessary in a challenge to the factual basis for a class action."). See, e.g, Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996); In re American Medical Systems, Inc., 75 F.3d 1069 (6th Cir. 1996); In re Ford Motor Co. Bronco II Product Liab. Lit., 177 F.R.D. 360, 365 (E.D. La. 1997); Arch v. American Tobacco Co., Inc., 175 F.R.D. 469, 487 (E.D. Pa. 1997); In re Ford Motor Co. Ignition Switch Products, 174 F.R.D. 332, 339 (D. N.J. 1997). See also Fed. R. Civ. Proc. 23, Advisory Committee Comment, 2003 Amendments ("prevailing practice" before amendment is to have active judicial supervision and controlled discovery "limited to those aspects relevant to making the certification decision on an informed basis"); Conte & Newberg, 3 Newberg on Class Actions §§ 7:6, 7:26 (4th ed. 2002) (if facts are undisputed, determination may be based upon pleadings and arguments; evidence may be submitted to directly dispute class facts or to introduce additional facts which tend to diminish the weight of plaintiff's facts); 59 Am. Jur. 2d, Parties § 100 (trial court must go behind pleadings as it must understand claims, defenses, relevant facts, and applicable substantive law in order to make meaningful certification determination).
Plaintiffs argue against the federal view and suggest that Kansas law does not allow the consideration of evidence on a preliminary, procedural motion.
First, plaintiffs note that K.S.A. 2003 Supp. 60-223(c)(1) requires the trial court to consider class certification "[a]s soon as practicable after the commencement and before the decision on the merits." The same language was used in Fed. R. Civ. Proc. 23 before the rule was amended in 2003 and has been interpreted not to "mandate precipitous action. The court should defer decision on certification pending discovery if the existing record is inadequate for resolving the relevant issues." Chateau de Ville Productions, Inc. v. Tams-Witmark Music Library, Inc., 586 F.2d 962, 966 (2d Cir. 1978) ("the district judge acted precipitously in deciding the class certification motion without fuller development of the facts on the issues concerning fairness and adequacy of representation"). Accord Shelton v. Pargo, Inc., 582 F.2d 1298, 1313 (4th Cir. 1978) ("discovery is to be encouraged" on the class issue); Weathers v. Peters Realty Corp., 499 F.2d 1197, 1200 (6th Cir. 1974) ("[t]he parties should be afforded an opportunity to present evidence on the maintainability of class action"). The federal courts generally recognize the trial court's power to issue a case-management order and "guide the parties in presenting the judge with the information necessary to make the certification decision and permit the orderly and efficient development of the case." Manual for Complex Litigation, § 21.11, p. 245.
We find no reason to apply a different analysis to the Kansas statute. The trial court should make the certification decision as soon as practicable after the parties have had an opportunity to develop and present the facts relevant to class certification.
Next, plaintiffs urge us to treat a motion for class certification in a manner akin to a motion under K.S.A. 60-212, restricting the determination to allegations in the pleadings, as compared to K.S.A. 2003 Supp. 60-256, which allows evidence to be considered. The Seventh Circuit Court of Appeals rejected this same argument, noting:
"The reason why judges accept a complaint's factual allegations when ruling on motions to dismiss under Rule 12(b)(6) is that a motion to dismiss tests the legal sufficiency of a pleading. Its factual sufficiency will be tested laterby a motion for summary judgment under Rule 56, and if necessary by trial. By contrast, an order certifying a class usually is the district judge's last word on the subject; there is no later test of the decision's factual premise (and, if the case is settled, there could not be such an examination even if the district judge viewed the certification as provisional). Before deciding whether to allow a case to proceed as a class action, therefore, a judge should make whatever factual and legal inquiries are necessary under Rule 23. " Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-76, cert. denied 534 U.S. 951 (7th Cir. 2001).
The Szabo court gave an example of one party alleging that the class had 10,000 members, making it too numerous to allow joinder, while the other party insisted that the class contained only 10 members. The court's conclusion, with which we agree, was that "[a] judge would not and could not accept the plaintiff's assertion as conclusive; instead the judge would receive evidence (if only by affidavit) and resolve the disputes before deciding whether to certify the class." 249 F.3d at 676.
In addition, plaintiffs' argument ignores K.S.A. 2003 Supp. 60-243(d), which provides: "When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions." Federal courts have recognized that the comparable federal rule, Fed. R. Civ. Proc. 43(e), serves as the basis for considering evidence on a motion to certify a class in federal court. 3 Newberg § 7:26, p. 82 n.6; 9 Wright and Miller, Federal Practice and Procedure: Civil 2d § 2416 (1995).
Therefore, we reject plaintiffs' arguments and find that a trial court must give careful consideration to and conduct a rigorous analysis of the prerequisites imposed by K.S.A. 2003 Supp. 60-223 and, in doing so, should consider evidence when submitted by the parties and make those factual determinations necessary to a determination of whether the prerequisites for a class action are met.
Did the Trial Court Err in Not Considering Choice-of-Law Issues?
As an alternative argument, plaintiffs suggest that the trial court considered the evidence submitted by the defendants. The plaintiffs point out that, although the trial court did not specifically reference the affidavits or discovery record, the trial court indicated it had considered "Plaintiff's motion and brief for class certification, Defendants' response brief, Plaintiffs' reply brief, . . . the file and . . . oral argument."
However, as defendants note, the trial court did not resolve those facts which were relevant to class certification and which were disputed. Many of defendants' arguments focus upon one disputed and unresolved fact, the number of states in which class members may reside. In briefs, plaintiffs indicate that members of the class reside in less than a dozen states. In response, the defendants submitted an affidavit which stated that the pipe was "potentially shipped to customers in most of the states of the United States."
The trial court did not resolve this factual issue and did not consider the related legal issues, finding it was premature to determine whether Kansas law would govern the entire class or whether other states' laws might be applicable. Defendants argue that without consideration of the choice-of-law factor there is no basis for the trial court to determine commonality, typicality, predominance, or superiority. For example, defendants question how, without having examined the choice-of-law problem, the trial court could conclude: "There are numerous questions of law that are common to the class, as the jury instructions would be essentially the same for every class member on the issue of liability if this case were tried repeatedly and would be the same on damages."
The defendants' arguments are premised on their view that the court must apply the laws of the various states in which plaintiffs reside, which defendants contend could involve most states. The defendants note that for claims regarding contract issues, in the absence of a contractual provision stating a choice-of-law agreement K.S.A. 2003 Supp. 84-1-105(1), Kansas courts have traditionally applied the rule of lex loci contractus. In most instances, this means courts apply the substantive law of the state where the contract was made, although in some instances the courts look to the place of performance. See Wilkinson v. Shoney's, Inc., 269 Kan. 194, 209-13, 4 P.3d 1149 (2000); Aselco Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, 21 P.3d 1011, rev. denied 272 Kan. 1417 (2001). Application of this rule could mean that the laws of the various states in which plaintiffs reside would be applied.
Additionally, the defendants argue that Kansas courts have traditionally applied the rule of lex loci delicti to tort claims. Under that rule, courts apply the substantive law of the state where the wrong occurs, meaning the place where the injury was sustained. See Ling v. Jan's Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985) (rejecting "analytical approach" which would allow forum to apply law of jurisdiction most intimately concerned with outcome of litigation).
Defendants argue that class prerequisites cannot be satisfied in nationwide product liability cases where the rule of lex loci delicti governs choice-of-law determinations. One example of a mass tort class action filed in a lex loci delicti state is In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002), cert. denied 537 U.S. 1105 (2003). Plaintiffs, who were buyers and lessees of sport utility vehicles (SUV) equipped with tires which had an abnormally high failure rate, sued a tire manufacturer and SUV manufacturer. The federal district court certified two classes, one of Ford Explorer owners and lessees, and one of owners or lessees of particular brands of tires. The district court found that under Indiana's choice-of-law rules, the law of the state where the defendants were headquartered and the products were designed would apply. Thus, the law of Michigan would apply to the first class and the law of Tennessee would apply to the second.
The Seventh Circuit Court of Appeals disagreed, holding that because Indiana is a lex loci delicti state, it would apply the law of the place where the harm occurred. The plaintiffs suffered financial losses in the places where they purchased or leased their vehicles or tires; therefore, the laws of the states where the SUV buyers and lessees resided would apply to the breach of warranty and consumer fraud claims that were asserted. 288 F.3d at 1016. Because the plaintiffs' claims would have to be adjudicated under the laws of so many jurisdictions, the court found a single nationwide class action was unmanageable. 288 F.3d at 1018.
Defendants contend that because Kansas, like Indiana, is a lex loci delicti state, our choice-of-law rules dictate that the law of the state where each plaintiff resides, that is, where each plaintiff suffered the financial injury of owning a home containing defective polybutylene pipe, would apply to that plaintiff's claim, and application of this rule would make a class action inappropriate.
As previously noted, the trial court determined it was premature to consider these issues and did not consider whether the law of the states of plaintiffs' residences would apply and, if so, what variances would exist in the laws.
This approach is contrary to this court's prior direction to trial courts considering class certification. In Shutts' Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978) (Shutts I), a class action filed on behalf of royalty owners under oil and gas leases in a three-state area, we recognized that applying the law of various jurisdictions did not preclude class certification, but cautioned:
"We hasten to add, this opinion should not be read as an invitation to file nationwide class action suits in Kansas and overburden our court system. Concepts of manageability in terms of our Kansas class action statute, the nature of the controversy and the relief sought, the interest of Kansas in having the matter determined, and the class size and complexity will have to be applied. [Citation omitted.] A court should also give careful consideration, as we have attempted to do, to any possible conflict of law problems. When liability is to be determined according to varying and inconsistent state laws, the common question of law or fact prerequisite of K.S.A. 60-223(a)(2) will not be fulfilled." (Emphasis added.) 222 Kan. at 557.
While in Shutts I, we addressed the issue of commonality, choice-of-law considerations are important to the predominance and superiority factors as well. As noted by the Fifth Circuit Court of Appeals in reversing the class certification of a national class of smokers who alleged eight state law causes of action, "[I]n a multi-state class action, variations in state law may swamp any common issues and defeat predominance. . . . Accordingly, a district court must consider how variations in state law affect predominance and superiority." Costano, 84 F.3d at 741. Other cases are in accord. See, e.g., Spence v. Glock, 227 F.3d 308 (5th Cir. 2000) (threshold question whether district court conducted proper choice-of-law analysis); In re American Medical Systems, Inc., 75 F.3d 1069, 1086 (6th Cir. 1996) (granting mandamus in a multistate products liability action, in part because "[t]he district judge . . . failed to consider how the law of negligence differs from jurisdiction to jurisdiction"); Walsh v. Ford Motor Co., 807 F.2d 1000 (D.C. Cir. 1986), cert. denied 482 U.S. 915 (1987) (district court must consider how variations in state law affect predominance and superiority); see Ryan, Uncertifiable?: The Current Status of Nationwide State-Law Class Actions, 54 Baylor L. Rev. 467, 470 (2002); Bough & Bough, Conflict of Laws and Multi-State Class Actions: How Variations in State Law Affect the Predominance Requirement of Rule 23 (b)(3), 68 UMKC L. Rev. 1 (1999).
Plaintiffs present several arguments as to why the trial court could certify a class in this case without analyzing the impact of the choice-of-law issue. First, plaintiffs note that the class certification is subject to modification. While this is true, the provisional nature of class certification does not lessen the movant's burden of establishing that the prerequisites for certification are met. See Falcon, 457 U.S. at 160 ("This flexibility enhances the usefulness of the class-action device; actual, not presumed, conformance with Rule 23(a) remains, however, indispensable."). Furthermore, we note that even in those cases cited by plaintiffs for the argument that it is premature to resolve choice-of-law issues at the stage of class certification, the courts have given consideration to the impact of choice-of-law on the class determination. See, e.g, Lobo Exploration Co. v. Amoco Production Co., 991 P.2d 1048, 1054 (Okla. App. 1999).
Additionally, plaintiffs cite to the trial court's reliance on Kansas' long history of certifying class actions. The trial court cited Shutts I, 222 Kan. 527 (involving dispute over oil and gas leases in three states); Shutts v. Phillips Petroleum Co., 235 Kan. 195, 679 P.2d 1159 (1984) (Shutts II), aff'd in part, rev'd in part and remanded, 472 U.S. 797, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985) (oil and gas leases in three states); Shutts v. Phillips Petroleum Co., 240 Kan. 764, 768, 732 P.2d 1286 (1987), cert. denied 487 U.S. 1223 (1988) (Shutts III) (oil and gas leases in three states); Sternberger v. Marathon Oil Co., 257 Kan. 315, 894 P.2d 788 (1995) (oil and gas leases in Kansas, Texas, and Oklahoma raising issues where Oklahoma and Texas law were in accord with Kansas); Gray v. Amoco Production Company, 1 Kan. App. 2d 338, 345, 564 P.2d 579 (1977), aff'd in part, rev'd in part 223 Kan. 441, 573 P.2d 1080 (1978) (required application of law of Kansas, Texas, and Oklahoma on issue on which Texas and Kansas law agreed but Oklahoma law was not decided). We note that in a case not cited by the trial court, Wortman v. Sun Oil Co., 236 Kan. 266, 268, 690 P.2d 385 (1984), vacated and remanded on other grounds 474 U.S. 806 (1985), this court determined that a class requiring application of the laws of six states could proceed.
Nothing in these decisions deviates from the statement in Shutts I cautioning a trial court to consider "any possible conflict of law problems" because class prerequisites could be defeated when liability is to be determined according to varying and inconsistent state laws. 222 Kan. at 557.
Furthermore, the Kansas cases cited by the trial court and the plaintiff are factually distinguishable from the case at bar. Each of those cases involved oil and gas leases where the dispute raised relatively few legal issues as compared to the numerous issues raised in this products liability case where plaintiffs' theories of liability include: breach of express and implied contract (plaintiffs as third-party beneficiaries); negligent misrepresentation; strict liability under K.S.A. 60-3301 et seq.; strict advertising liability under § 402B of the Restatement (Second) of Torts (1964); deceptive and unconscionable acts under the Kansas Consumer Protection Act; breach of the implied warranty of merchantability and fitness for a particular purpose under the Uniform Commercial Code; res ipsa loquitur and negligence; and equitable theories of quantum meruit and unjust enrichment.
Despite the number of these theories, plaintiffs contend the fundamental theories of law which will be presented to the jury in this case are essentially the same in all states. Plaintiffs claim that the Uniform Commercial Code is followed by virtually every state as is the product liability law established in the Restatement (Second) of Torts § 402A (1964). Plaintiffs also contend consumer protection laws are essentially the same from state to state, citing as an example Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998), where the Ninth Circuit Court of Appeals affirmed certification in a cl