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In re FCA U.S. LLC Monostable Electronic Gearshift Litigation

United States District Court, E.D. Michigan, Southern Division

May 22, 2019

IN RE FCA U.S. LLC MONOSTABLE ELECTRONIC GEARSHIFT LITIGATION

          David R. Grand Magistrate Judge.

          OPINION AND ORDER GRANTING IN PART PLAINTIFFS' MOTION TO EXCLUDE TESTIMONY OF BRUCE STROMBOM, AND DENYING DEFENDANT'S MOTIONS TO EXCLUDE TESTIMONY OF JUSTINE HASTINGS AND CRAIG ROSENBERG

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE.

         The plaintiffs in these putative class actions - consolidated before this Court by the Panel on Multidistrict Litigation - allege that defendant FCA U.S. LLC (Chrysler) manufactured certain vehicles equipped with defective gear shifter mechanisms. The plaintiffs contend that they overpaid for their vehicles because the defect was concealed from them at the time of sale. They have moved for class certification, supporting their motion with affidavits from expert witnesses, and the defendant likewise supports its opposition to the class motion with expert affidavits.

         Presently before the Court are the parties' motions to exclude expert testimony from the proceedings to determine whether this matter should be certified as a class action. The plaintiffs have moved to exclude the defendant's damages expert, Bruce Strombom, and the defendants have moved to exclude the plaintiffs' damages expert, Justine Hastings, and their design defect expert, Craig Rosenberg.

         I.

         A.

         These motions invoke Federal Rule of Evidence 702 and cases interpreting that rule. The following general principles govern all three motions.

         As a general matter, “expert” testimony consists of opinions or commentary grounded in “specialized knowledge, ” that is, knowledge that is “beyond the ken of the average juror.” See United States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016), cert. denied sub nom. Casillas v. United States, 137 S.Ct. 1120 (2017), and cert. denied, 138 S.Ct. 2701 (2018); see also Fed. R. Evid. 702. Such testimony is governed by Evidence Rule 702, which was modified in December 2000 to reflect the Supreme Court's emphasis in Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), on the trial court's gate-keeping obligation to conduct a preliminary assessment of relevance and reliability whenever a witness testifies to an opinion based on specialized knowledge. Rule 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         The language added by the 2000 amendment - subparagraphs (b) through (d) - restates Daubert's insistence on the requirements that an expert's opinion be based on a foundation grounded in the actual facts of the case, that the opinion is valid according to the discipline that furnished the base of special knowledge, and that the expert appropriately “fits” the facts of the case into the theories and methods he or she espouses. See Daubert, 509 U.S. at 591-93.

         B.

         As an initial matter, the law is unsettled on the extent to which the Daubert analysis applies to expert testimony offered at this stage of the proceedings solely to inform the Court's Rule 23 analysis. Here, of course, the Court must determine, among other things, whether “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). “The ‘predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'” Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1045 (2016) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). “This calls upon courts to give careful scrutiny to the relation between common and individual questions in a case. An individual question is one where members of a proposed class will need to present evidence that varies from member to member, while a common question is one where the same evidence will suffice for each member to make a prima facie showing or the issue is susceptible to generalized, class-wide proof.” Ibid. (quotations omitted).

         Some federal courts “‘have held that on a motion for class certification, the evidentiary rules are not strictly applied and courts can consider evidence that may not be admissible at trial.'” Ganci v. MBF Inspection Servs., Inc., 323 F.R.D. 249, 257 (S.D. Ohio 2017) (quoting Rockey v. Courtesy Motors, Inc., 199 F.R.D. 578, 582 (W.D. Mich. 2001)). Nevertheless, some circuits, including the Sixth, have held that, when considering expert testimony which is offered to inform the Court's Rule 23 analysis, the Court does not abuse its discretion by invoking the familiar Daubert framework to evaluate whether the expert's opinion is sufficiently reliable and informative to be considered. See In re Carpenter Co., No. 14-0302, 2014 WL 12809636, at *3 (6th Cir. Sept. 29, 2014) (observing that ‘[t]he Supreme Court has never decided whether a district court must undertake a Daubert analysis at the class-certification stage . . . but . . . the Court has suggested that such an analysis may be required in some circumstances”) (citing Wal-Mart Stores, Inc., 131 S.Ct. at 2553-54); see also Schechner v. Whirlpool Corp., No. 16-12409, 2019 WL 978934, at *3 (E.D. Mich. Feb. 28, 2019) (“The Supreme Court has not decided whether a district court must undertake a Daubert analysis at the class-certification stage[, ] [but] [t]he Sixth Circuit has held that a district court does not abuse its discretion in applying Daubert to critical expert witnesses. [Although the court of appeals has acknowledged the split of authority on this question, ] [t]he Sixth Circuit has not directly determined the extent to which a district court must apply Daubert during the class certification stage.” (collecting cases)).

         The parties do not appear seriously to contest whether the Daubert analysis applies at this stage of the case, and there are several indicators from appellate courts suggesting that it does. Therefore, the Court will do so here, keeping in mind, however, that the challenged testimony is not being offered to prove the merits of the plaintiffs' claims, but only to ...


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