United States District Court, E.D. Michigan, Southern Division
IN RE FCA U.S. LLC MONOSTABLE ELECTRONIC GEARSHIFT LITIGATION
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
M. LAWSON UNITED STATES DISTRICT JUDGE.
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.
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.
motions invoke Federal Rule of Evidence 702 and cases
interpreting that rule. The following general principles
govern all three motions.
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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.
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).
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)).
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 ...