Facepalm (Caïn by Henri Vidal, Tuileries Garden, Paris, 1896. )
If a business figured out a way to swipe $0.01 from you once a week, how long would it take before you decided it was worth your time and money to sue that business? If you are like most people, you will decide that it simply is not worth your time trying to go after someone who’s taking $0.52 per year from you. You have better things to do, right?
If a business managed to swipe $0.01 from every other adult in the United States once a week, the business would be bringing in over $6 million/year.
You can certainly see how plaintiff’s class action lawyers might be interested in bringing such a case, but there’s still the challenge of finding the named plaintiff herself, the necessary person who will stand up and fight for $0.52 and maybe a “spiff” of $1,000-2,000 for the hassle involved in being a “named plaintiff” in a class action.
Sometimes it is hard to find someone to step up. Sometimes, plaintiffs’ class action lawyers find someone who, for one reason or another, is far from an ideal plaintiff.
Plaintiff Sadie Browe was the named plaintiff in a products liability case against Evenflo, a child car-seat manufacturer, which had a model of car-seat with a defective lock. Some users found it extremely difficult to release the seat belt on one model of car seat sold by Evenflo. In fact, some had to cut the “harness’ nylon webbing to release the[] child because the buckle was not unlatching.”
Not Sadie Browe, however.
The worst thing that Ms. Browe ever encountered from her Evenflo infant car seat was a broken fingernail (twice).
But the biggest problem with Ms. Browe as a named plaintiff in the Evenflo case is that:
It is a difficult proposition to accept that the lead plaintiff in a products liability lawsuit seeking class action status can credibly pursue liability while continuing to use the very same product the lawsuit claims is dangerously defective and warrants a pecuniary remedy. This is especially true here. The alleged defect is not merely cosmetic or a defect which reduces the product’s promised performance. Rather, the alleged buckle defect implicates the safety of a child. Indeed, the severity of the potential injury causally related to the buckle is repeatedly recited as a concern in Browe’s Complaint and in her brief opposing the motion. This concern is hollow in the face of Browe’s admitted continued use of the seat for her child.
Query: Is it fair to chide the plaintiffs’ lawyers for including the allegation in the complaint that “Browe eventually removed the seat from her vehicle and placed it in her husband’s car so it would be used less frequently”? U.S. District Court Judge Ann D. Montgomery went on to say, “Had Browe ceased using the seat, the result may be different.”
With the benefit of hindsight, maybe it is a cheap shot to suggest that the plaintiffs’ class action lawyer might have been wise to counsel Sadie to swap out the seat that she alleges in her complaint put her child in danger. Maybe not.