Watts v. Allstate Indemnity Company et al
Filing
402
ORDER signed by Judge Lawrence K. Karlton on 1/16/13 DENYING 352 Motion to Compel Appraisal and Stay Action; SUSTAINING 386 Objection under FRE 702 to the admissibility of the declaration of Sandy Brown; DENYING 313 Motion to Certify Class; DENYING as MOOT defendant's request for an evidentiary hearing; DENYING AS MOOT 350 351 362 363 370 371 388 Motions to Strike. 328 Request to Seal Documents stands SUBMITTED and an appropriate order will issue. (Meuleman, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT WATTS, on behalf
of himself individually and
all others similarly situated,
NO. CIV. S-08-1877 LKK/GGH
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Plaintiff,
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v.
O R D E R
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ALLSTATE INDEMNITY CO.,
an Illinois corporation, et al.,
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Defendants.
/
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Plaintiff Robert Watts brings this putative class action
19
against defendants Allstate Indemnity Company, Allstate Insurance
20
Company, and Allstate Property and Casualty Insurance Company
21
(collectively, “Allstate” or “defendant”), alleging (i) breach of
22
contract; (ii) insurance bad faith; (iii) breach of the implied
23
covenant
of
good
faith
and
fair
dealing;1
(iv)
fraud/
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1
As the court has previously recognized, “the second and
third causes of action are duplicative of one another.” (Order, May
11, 2011, 18:7-8, ECF No. 255.)
1
1
misrepresentation; and (v) unfair competition under Cal. Bus. &
2
Prof. Code sec. 17200.2
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Plaintiff’s claims arise from defendant’s alleged misconduct
4
in failing to adequately inspect and pay for the replacement of
5
seatbelts damaged in collisions involving insured automobiles.
6
Plaintiff now moves for class certification. Defendant moves to
7
compel appraisal and stay this action.
8
The motion came on for hearing on January 14, 2013. Having
9
considered the matter, for the reasons set forth below, the court
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will (i) deny defendant’s motion to compel appraisal and stay the
11
action, and (ii) deny plaintiff’s motion for class certification.
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I. BACKGROUND
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A. Factual Background
14
The
following
facts
are
taken
from
plaintiff
Watts’s
15
declaration in support of class certification (Declaration of
16
Robert
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Certification (“Watts Dec.”), ECF No. 314) and his deposition
18
transcript (Deposition of Robert Watts (“Watts Dep.”), Appendix to
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Defendant’s Motion for Summary Judgment Ex. B, ECF No. 202-2).
Watts
in
Support
of
Plaintiff’s
Motion
for
Class
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In 2006, plaintiff Watts was covered by an auto insurance
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policy purchased from Allstate. (Watts Dec. ¶ 2.) The policy
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provided that “Allstate will pay for direct and accidental loss to
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[plaintiff’s] insured auto . . . from a collision . . . .”
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(Allstate Auto Insurance Policy (“Policy”) 18, Watts Dec. Ex. A ,
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2
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The court previously dismissed plaintiff’s sixth cause of
action for RICO violations. (Order, March 31, 2009, ECF No. 66.)
2
1
ECF No. 314-1.) In the event of loss, Allstate could choose to “pay
2
for the loss in money, or [to] repair or replace the damaged or
3
stolen property.” (Policy 21.)
4
On March 29, 2006, plaintiff’s 2005 Honda Civic sustained
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significant damage in a collision. (Watts Dec. ¶ 5.) Plaintiff’s
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wife was driving the Honda, and was accompanied by a passenger.
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(Id.) Plaintiff had the vehicle towed to Artistic Collision, an
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auto repair shop of his own choosing. (Watts Dec. ¶ 6; Watts Dep.
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40:14-41:5.) Artistic Collision prepared a “visible damage quote”
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which did not include any amount for inspection, repair, or
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replacement of the seatbelts. (Watts Dec. ¶ 6; Watts Dep. Ex. 3.)
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On March 31, 2006, an Allstate adjuster reviewed the visible damage
13
quote and authorized repairs at the cost of $6,534.77. (Watts Dec.
14
¶
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inspection, repair, or replacement of the seatbelts. (Id.) Artistic
16
Collision repaired the car in accordance with the estimate; the
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final invoice did not include the cost of inspection, repair, or
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replacement of the seatbelts. (Watts Dec. ¶ 8.) The bill for these
19
services was paid by Allstate. (Id.)
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7.)
Allstate’s
estimate
did
not
include
any
amount
for
At some point between the date of the accident and September
21
2007, plaintiff reviewed the owner’s manual for his Honda Civic.
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(Watts Dep. 75:10-13, 83:1-8.) It provided that seatbelts should
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be replaced in all vehicles involved in serious collisions. (Watts
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Dep. 83:6-8.) Plaintiff wrote to Allstate requesting, among other
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things, that the seatbelt tensioners be replaced in the Honda.
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(Watts Dec. ¶ 10.) In its response, Allstate refused to cover the
3
1
replacement of the seat belts and seat belt tensioners, and
2
directed plaintiff to file a complaint with the California Bureau
3
of Automotive Repairs if he still had concerns. (Watts Dec. ¶ 11.)
4
In May 2008, after commencing this action, plaintiff had his
5
seatbelts replaced by Elk Grove Honda at a cost of $1029. (Watts
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Dec. ¶ 12.)
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B. Procedural Background
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Plaintiff filed an initial complaint on February 29, 2008, and
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an amended complaint on November 24, 2008. On November 7, 2008,
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defendant filed a motion to dismiss and a motion to compel
11
appraisal. (ECF No. 53). The court granted the motion to dismiss
12
in part, and denied the motion to compel appraisal (ECF No. 66).
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On April 20, 2009, plaintiff filed his Second Amended Complaint
14
(“SAC,” ECF No. 67), which is the operative complaint in this
15
action.
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On April 8, 2011, defendant filed a motion for summary
17
judgment. (ECF No. 201.) The court initially granted the motion in
18
its entirety. (ECF No. 255.) Plaintiff then filed a motion for
19
reconsideration, claiming excusable neglect for failing to cite to
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the declaration of expert witness Sandy Browne, and arguing that
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the contents of this declaration created a genuine issue of
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material fact. (ECF Nos. 260, 266.) On March 30, 2012, the court
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granted plaintiff partial relief from summary judgment, while
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leaving unaltered the portion of its previous order holding that
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the “insurance policy did not [in terms] require Allstate to
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replace plaintiff’s undamaged seatbelts following the collision.”
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1
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(ECF No. 290.)
On
May
4,
2012,
defendant
moved
to
strike
the
class
3
allegations in the SAC. (ECF No. 297.) The court vacated the
4
hearing on this motion, and instead ordered plaintiff to bring a
5
motion for class certification according to a briefing schedule set
6
by the court. (ECF Nos. 303, 308.)
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Now pending before the court is plaintiff’s motion to certify
a class of all persons:
(1) Who were issued, in California, by Allstate, an
automobile insurance policy that included insurance
coverage;
(2) Who made a claim to Allstate for benefits under the
policy as a result of a loss to their covered vehicle;
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(3) Whose policy was in full force and effect at the
time of the loss;
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(4) Whose loss occurred from February 24, 2004 through
the present;
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(5) Whose loss involved a collision of sufficient
severity to damage the seat belt systems in occupied
seating positions; and
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(6) Whose seat belt systems Allstate did not pay to
replace. (Plaintiff’s Motion for Class Certification,
ECF No. 322.)
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If certified, the class may include up to several hundred thousand
21
individuals, as, according to plaintiff’s counsel Wendy York,
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867,026 California policyholders submitted auto collision repair
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claims to Allstate in the 2004 - 2009 period, of which only 1.2%
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resulted in the replacement or repair of seatbelts or seatbelt
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components. (Declaration of Wendy C. York in Support of Plaintiff’s
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Motion for Class Certification ¶¶ 29-31, ECF No. 332.) Allstate
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1
opposes class certification. (ECF No. 335.)
2
The following motions are also pending before the court:
3
•
Allstate’s request for an evidentiary hearing on factual
disputes relating to class certification between
plaintiff’s and defendant’s expert witnesses. (ECF
No. 335.)
•
Allstate’s motion to strike and objections to the
declaration of plaintiff’s proposed expert Sandy Browne.
(ECF No. 388.)
•
Allstate’s motion to strike and objections to the
declaration of plaintiff’s proposed expert Reed F.
Simpson. (ECF No. 350.)
•
Allstate’s motion to strike and objections to the
declaration of plaintiff’s proposed expert James Mathis.
(ECF No. 351.)
•
Plaintiff’s motion to strike and objections to the
declaration
of
Allstate’s
proposed
expert
Tony
Passwater. (ECF No. 362.)
•
Plaintiff’s motion to strike and objections to the
declaration of Allstate’s proposed expert Omar Menifee.
(ECF No. 363.)
•
Plaintiff’s motion to strike and objections to the
declaration of Allstate’s proposed expert Daniel Davee.
(ECF No. 370.)
•
Plaintiff’s motion to strike and objections to the
declaration of Allstate’s proposed expert Robert C.
Lange. (ECF No. 371.)
•
Allstate’s motion to compel appraisal and stay the
action. (ECF No. 352.)
•
Allstate’s
No. 328.)
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request
to
seal
certain
documents.
(ECF
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As defendant’s motion to compel appraisal would stay this
24
action
if
granted,
it
must
be
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plaintiff’s motion for class certification.
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////
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considered
before
turning
to
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II. DEFENDANT’S MOTION TO COMPEL APPRAISAL AND STAY THE ACTION
2
Plaintiff’s
3
appraisal provision:
4
insurance
contract
contains
the
following
Right to Appraisal. Both [the policyholder] and Allstate
have a right to demand an appraisal of the loss. Each
will appoint and pay a qualified appraiser. Other
appraisal expenses will be shared equally. The two
appraisers, or a judge of a court of record, will choose
an umpire. Each appraiser will state the actual cash
value and the amount of loss. If they disagree, they’ll
submit their differences to the umpire. A written
decision by any two of these three persons will
determine the amount of the loss. (Policy 21.)
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The
policy
does
not
explicitly
state
that
appraisal
is
a
11
precondition to suit, but an accompanying policy endorsement
12
specific to California insureds provides: “Action Against Allstate.
13
No legal action can be brought against us under this coverage
14
unless there is full compliance with all the policy terms.” (Id.,
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Policy Endorsement at 8.)
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Allstate claims that it invoked the appraisal provision by
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letter to plaintiff’s counsel dated April 30, 2008. (Dec. Martin,
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Ex. A., ECF No. 336-1.)
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As described above, the court previously denied defendant’s
20
motion to compel appraisal and stay this action. (Order, March 31,
21
2009 (“Appraisal Order”), ECF No. 66.) In considering the motion,
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the
23
arbitration agreement, and determined that the provision was
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unconscionable under California law, and therefore, unenforceable
25
under the Federal Arbitration Act. Defendants now contend that
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reconsideration of this order is called for by the Supreme Court’s
court
treated
the
Allstate
7
appraisal
provision
as
an
1
ruling in AT&T Mobility v. Concepcion, 562 U.S. __, 131 S. Ct. 1740
2
(2011) (holding that the Federal Arbitration Act preempts the
3
California Supreme Court’s ruling that class waivers in many
4
consumer arbitration agreements are unconscionable, and therefore,
5
unenforceable).
6
If unconscionability had been the sole ground for denying the
7
motion,
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warranted in light of Concepcion.
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there
is
little
doubt
that
reconsideration
would
be
But the court had another basis to deny Allstate’s motion to
compel appraisal:
A second factor also suggests the stay is inappropriate.
The appraisal process rests on the possibility that a
difference as to cost of repair is at the heart of the
dispute. Plaintiff's allegations, however, make no such
claim. Rather, plaintiff alleges that defendant has a
policy of never assessing whether repair of the
seatbelts is appropriate, and pressuring repair shops so
that they do not estimate the cost of replacement. It
seems clear that both these allegations are outside the
appraisal provisions, and therefore, would appear to
render that provision irrelevant to plaintiff's lawsuit.
(Appraisal Order at 30.)
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18
The allegations referred to in this passage appeared in plaintiff’s
19
First Amended Complaint, (ECF No. 51), and are reiterated in the
20
operative Second Amended Complaint (ECF No. 67). Accordingly,
21
reconsideration
22
warranted
23
certification is based on allegations different from those in the
24
complaint, and second, an appraisal of the cost of repair is
25
relevant to the new allegations.
26
only
of
the
if,
previous
first,
order
denying
plaintiff’s
motion
appraisal
for
is
class
Plaintiff seeks to certify a class of Allstate insureds
8
1
“[w]hose loss involved a collision of sufficient severity to damage
2
the seat belt systems in occupied seating positions” and “[w]hose
3
seat belt systems Allstate did not pay to replace.” (Memorandum of
4
Law in Support of Plaintiff’s Motion for Class Certification at 3,
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ECF No. 322) Plaintiff is alleged to be typical of the putative
6
class because he is:
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an Allstate policyholder who claims that his seatbelts
were damaged in a major collision; who asserts that
Allstate failed to meet its contractual obligation to
restore his vehicle to its pre-loss condition by paying
to replace the seatbelts; and who asserts that Allstate
committed insurance bad faith and fraudulent and unfair
business practices by engaging in claims adjusting
practices that lead to non-payment for seatbelt
replacements. . . . (Id. at 23) (internal citations
omitted).
12
13
It appears that the class allegations are consistent with the
14
individual allegations in the SAC, and therefore, do not warrant
15
a modification of the court’s previous order declining to compel
16
an appraisal.
17
In reaching this conclusion, the court explicitly disagrees
18
with defendant’s repeated contentions that, “At its core, this case
19
challenges the amount that Allstate paid to settle an automobile
20
physical damage claim.” (Opposition to Motion for Class Cert. at
21
23, ECF No. 335; see also Memorandum of Points and Authorities in
22
Support of Motion to Compel Appraisal and Stay Action at 2, ECF
23
No. 352.) This lawsuit challenges Allstate’s practices in failing
24
to properly inspect, identify, and repair damaged seatbelts,
25
alleging
26
insurance bad faith, fraud, and unfair business practices. While
that
these
failures
constitute
9
breach
of
contract,
1
it likely would have cost Allstate more to inspect and replace
2
plaintiff’s seatbelts than otherwise, these additional expenses
3
would have been incurred only if Allstate practices would have
4
found that the seatbelts were damaged. An appraisal would not
5
address the substance of plaintiff’s claims.
6
Accordingly, defendant’s motion to compel an appraisal and
7
stay the action is denied. The court will next consider the
8
admissibility of the expert declarations.
9
III. DECLARATION OF SANDY BROWNE
10
Plaintiff
has
submitted
proposed
expert
Sandy
Browne’s
11
declaration in support of its motion for class certification.
12
(“Browne Dec.,” ECF No. 331.) Allstate has filed objections and
13
moves to strike portions of the declaration. (ECF No. 388.)
14
Plaintiff has also submitted a reply declaration from Browne
15
(“Browne Reply Dec.,” ECF No. 368.) Allstate objects to and moves
16
to strike portions of this declaration as well. (ECF No. 388.)
17
A. Standard
18
In determining whether the declaration of a proposed expert
19
is admissible under Federal Rule of Evidence 702,3 the court must
20
apply
21
Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v.
22
Carmichael, 526 U.S. 137
23
Stores, Inc. v. Dukes, 564 U.S. __, 131 S. Ct. 2541, 2553-4 (2011)
24
(expressing doubt that Daubert does not apply to expert testimony
the
standards
developed
in
Daubert
v.
Merrell
(1999), and their progeny. See Wal-Mart
25
3
26
Dow
Hereinafter, the term “FRE” refers to the applicable
Federal Rule of Evidence.
10
1
at the certification stage of class-action proceedings); see also
2
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011)
3
(“In its analysis of [defendant’s] motions to strike, the district
4
court correctly applied the evidentiary standard set forth in
5
Daubert.”).
6
At trial, the Daubert inquiry focuses on whether a jury should
7
be permitted to rely on a proposed expert’s testimony in making its
8
findings of fact. In the class certification context, the inquiry
9
addresses whether the court may rely on the expert’s testimony in
10
deciding if Federal Rule of Civil Procedure 23’s requirements have
11
been met.4
12
Supreme Court decisions emphasize the need for courts to
13
conduct a “rigorous analysis” of class certification requirements
14
under FRCP 23. General Telephone Co. of Southwest v. Falcon, 457
15
U.S. 147, 161 (1982); Wal-Mart, 131 S. Ct. at 2551. The Ninth
16
Circuit has recently determined that, to the extent that merits
17
claims overlap with the class certification issues, as part of the
18
consideration of class certification, district courts must consider
19
the merits of class members’ substantive claims, rather than
20
deferring such consideration to trial. Ellis, 657 F.3d at 981.
21
Evaluation of the merits may even require the court to decide a
22
“battle of the experts” as to certification issues. Id. at 982.
23
Accordingly, to the extent that an expert’s opinion may come into
24
play in deciding whether to certify a class, the court must ensure
25
4
26
Hereinafter, the term “FRCP” refers to the applicable
Federal Rule of Civil Procedure.
11
1
that the expert’s testimony passes muster under FRE 702 and
2
Daubert.5
3
Under FRE 702:
4
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:
5
6
7
(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;
8
(b) the testimony is based on sufficient facts or data;
9
(c) the testimony is the product of reliable principles
and methods; and
10
11
(d) the expert has reliably applied the principles and
methods to the facts of the case.
12
The proponent of expert testimony has the burden of establishing
13
that
14
preponderance
15
Committee’s
16
distinguish between scientific and other forms of expert testimony.
17
The trial court’s gatekeeping function applies to testimony by any
18
expert.” Id. (citing Kumho Tire, 526 U.S. at 141).
these
requirements
of
Note
the
to
for
admissibility
evidence.
the
2000
Fed.
R.
Amendments.
are
Evid.
FRE
met
702,
702
by
a
Advisory
“does
not
19
Under Daubert, the court exercises its gatekeeping function
20
through conducting a two-step assessment: first, it determines
21
5
22
23
24
25
26
It is difficult to know what exactly the district court
should do, since Ellis also provides that “Rule 23 does not
authorize a preliminary inquiry into the merits . . . for purposes
other than determining whether certification was proper. To hold
otherwise would turn class certification into a mini-trial.” Ellis,
657 F.3d at 983 n.8 (internal citation omitted). See Ellis v.
Costco Wholesale Corp., 285 F.R.D. 492 (N.D.Cal. 2012), in which
Judge Chen, attempting to comply with the circuit’s ruling,
perceived it necessary to engage in the very analysis which would
be applied at trial.
12
1
whether the proposed expert’s testimony is reliable, and second,
2
whether it is relevant. Daubert, 509 U.S. at 592-593. Daubert
3
provides a non-exclusive set of factors for district courts to
4
consider in determining reliability:
5
(1) whether the expert’s technique or theory can be or
has been tested – that is, whether the expert’s theory
can be challenged in some objective sense, or whether it
is instead simply a subjective, conclusory approach that
cannot reasonably be assessed for reliability;
6
7
8
(2) whether the technique or theory has been subject to
peer review and publication;
9
10
(3) the known or potential rate
technique or theory when applied;
of
error
of
the
11
(4) the existence and maintenance of standards and
controls; and
12
(5) whether the technique or theory has been generally
accepted in the scientific community.
13
14
Fed.
15
Amendments. Some courts have identified additional factors relevant
16
to the reliability inquiry, such as:
17
18
19
20
21
22
R.
Evid.
702,
Advisory
Committee’s
Note
to
the
(1) Whether [the expert is] proposing to testify about
matters growing naturally and directly out of research
[he has] conducted independent of the litigation, or
whether [he has] developed [his] opinions expressly for
purposes of testifying . . . .
(2) Whether the expert has unjustifiably extrapolated
from
an
accepted
premise
to
an
unfounded
conclusion . . . .
(3) Whether the expert has adequately accounted for
obvious alternative explanations . . . .
23
24
(4) Whether the expert is being as careful as he would
be in his regular professional work outside his paid
litigation consulting . . . . [; and]
25
26
(5) Whether the field of expertise claimed by the expert
is known to reach reliable results for the type of
13
2000
1
opinion the expert would give . . . .
2
Id. (internal citations and quotations omitted).
3
District courts have great flexibility in choosing which of
4
these factors, if any, to apply in assessing the admissibility of
5
expert testimony. “[T]here are many different kinds of experts, and
6
many different kinds of expertise.” Kumho Tire, 526 U.S. at 150.
7
“We can neither rule out, nor rule in, for all cases and for all
8
time the applicability of the factors mentioned in Daubert, nor can
9
we now do so for subsets of cases categorized by category of expert
10
or by kind of evidence. Too much depends upon the particular
11
circumstances of the particular case at issue.” Id.
12
Nevertheless, “nothing in either Daubert or the Federal Rules
13
of Evidence requires a district court to admit opinion evidence
14
that is connected to existing data only by the ipse dixit of the
15
expert.” General Electric v. Joiner, 522 U.S. 136, 146 (1997). The
16
court may conclude that “there is simply too great an analytical
17
gap between the data and the opinion proffered.” Id.
18
19
20
21
Ultimately, district courts have considerable discretion to
admit or exclude expert testimony. See id.
B. Analysis
1. Effect of admitting Browne’s previous declaration
22
Plaintiff begins by arguing that, because Browne’s prior
23
declaration was deemed admissible under FRE 702 and Daubert for the
24
purposes of deciding Allstate’s motion for summary judgment (Order,
25
March 30, 2012 (“MSJ Order”), ECF No. 290), it follows that her
26
declarations
herein
must
be
admissible
14
for
the
purposes
of
1
determining class certification. (Plaintiff’s Amended Opp. to Mot.
2
to Strike Browne Dec. at 3-8, ECF No. 394.)
3
Allstate counters that Browne’s prior testimony was deemed
4
admissible because it was based in part on a fact-specific analysis
5
of the collision in which plaintiff’s vehicle was involved, a
6
matter on which she was deemed qualified to opine. By contrast,
7
Allstate
8
demonstrated
9
(Allstate’s
10
argues,
Browne’s
expertise,
Amended
Mot.
opinions
knowledge,
to
Strike
herein
go
experience,
Browne
beyond
and
Dec.
her
training.
at
2-7,
ECF
No. 388.)
11
The court’s previous Order provided that, “Plaintiff offers
12
Browne’s
testimony
13
contractually obligated to pay for the replacement of the seat
14
belts following the collision because the seat belts were ‘deemed
15
damaged’
16
condition.” (MSJ Order at 15.) The question at issue in the summary
17
judgment motion was whether Allstate had to replace plaintiff
18
Watts’s seatbelts following the collision, not whether Allstate
19
must replace seatbelts after all sufficiently-serious collisions
20
(the
21
certification). Browne’s testimony was only deemed admissible on
22
the first, narrower question. As stated in the Order: “The court
23
now analyzes whether Browne’s expert testimony on this point is
24
reliable
25
Daubert . . . .” (Id.) The Order further provided: “the Browne
26
testimony [is] reliable and relevant. Ms. Browne’s experience and
and
question
and
could
in
not
presented
relevant
order
to
have
by
under
prove
returned
the
the
15
that
to
instant
Allstate
[their]
motion
framework
set
was
original
for
class
forth
in
1
training
in
biomechanics
and
engineering
is
vast,
and
her
2
conclusions are relevant to a core issue in this case,” namely,
3
whether Allstate had to replace plaintiff’s seatbelts.
4
The court’s ruling on the summary judgment motion relied
5
heavily on portions of Browne’s declaration describing her review
6
of accident and medical records from the Watts auto collision. (MSJ
7
Order at 17.) While the court took into account Browne’s opinion
8
that a seatbelt involved in an accident of sufficient severity will
9
stretch and not return to its original elasticity (id. at 14, 16),
10
it did so in reaching the conclusion that there was a “triable
11
issue on the factual question of whether the Watts’ seatbelts were
12
damaged following the collision,” (id. at 17), and that summary
13
judgment in Allstate’s favor was therefore inappropriate.
14
The previous determination of admissibility does not mean that
15
Browne’s present declarations are admissible on the issue of class
16
certification. The court’s admission of Browne’s prior declaration
17
at summary judgment has some bearing on the admissibility of her
18
subsequent
19
presented by class certification in this case are sufficiently
20
different from those presented by the summary judgment motion so
21
as to require a new determination of admissibility.
22
testimony
going
forward.
Nonetheless,
the
issues
2. Browne’s qualifications
23
Browne’s statement of her qualifications (Browne Dec. ¶¶ 1-12)
24
is
virtually
identical
to
that
25
(Declaration of Sandy Browne in Opposition to Defendants’ Motion
26
for Summary Judgment ¶¶ 1-12, ECF No. 232.) The court earlier
16
in
her
previous
declaration.
1
2
summarized these qualifications as follows:
12
Ms. Browne is a former accident investigator with the
National Transportation Safety Board and the National
Highway Traffic Safety Administration. She has completed
approximately 2000 hours of training in accident
investigation through the University of Southern
California, Stanford University, the Department of
Transportation, and the National Transportation Safety
Board. That training included course[s] on seat belt
systems, and their construction, their performance,
their testing requirements, their failures, their
inefficiencies, and the biomechanical result of lap
belts. She has published dozens of articles on
automobile accidents, including on the performance of
lap and shoulder belts in car accidents, and has
provided numerous trainings on car accidents to the
California Highway Patrol, including on restraint
systems. In the course of her experience as an
investigator and as a consultant in seat belt safety,
Browne has personally inspected dozens of seat belts
that have been involved in car accidents. (MSJ Order at
15-16) (internal citations and quotations omitted).
13
In her reply declaration, Browne adds that, while she received
14
most of her official training between 1970 and 1990 (the period in
15
which seatbelt research was allegedly at its peak), she has since
16
“continuously kept [her]self abreast of the latest developments and
17
research in [the] field.” (Browne Reply Dec. ¶ 17, ECF No. 331.)
3
4
5
6
7
8
9
10
11
18
19
20
21
3. Browne’s opinions
Browne offers the following expert opinions in her declaration
in support of class certification:
1.
Allstate’s
Next
Gen
and
Legacy
systems6
contain
22
23
24
25
26
6
Next Gen and Legacy are computer systems used by Allstate
in processing auto insurance claims; as their names suggest, Legacy
is the older of the two systems. While there is disagreement among
the parties’ proposed experts as to the nature and reliability of
the data captured in these systems, those disputes need not be
resolved in determining the present issue as to the admissibility
of Browne’s declaration.
17
1
information sufficient to conclude that the Allstate
2
policyholders in the [proposed] class experienced a
3
“collision of sufficient severity to damage the seat
4
belt systems in occupied seating positions,” as stated
5
in the class definition . . . . Allstate should have
6
paid to replace all such systems.
7
2. Allstate engages in a series of uniform practices
8
that are unsound from an engineering standpoint, and
9
that prevent Allstate from detecting or recording its
10
policyholders’ seatbelt damage. These practices are:
11
(1) limiting seatbelt inspection and replacement to
12
cases of airbag deployment; (2) adopting a “Write Only
13
What You Can See” process that cannot detect latent
14
damage such as webbing stretch; (3) failing to adopt
15
adequate seatbelt system inspection procedures or to
16
adequately
17
procedures; (4) failing to require adjusters to consult
18
and
19
regarding
20
replacement; and (5) failing to include appropriate
21
fields in its claim processing system, Next Gen, to
22
detect and record seatbelt damage. As a result of these
23
practices, in the majority of cases, Allstate has not
24
paid to replace its policyholders’ damaged seatbelts.
25
3.
26
required to collect and maintain additional data points
train
adhere
For
to
its
personnel
vehicle
manufacturer
post-collision
future
claims
to
seatbelt
handling,
18
perform
such
recommendations
inspection
Allstate
and/or
should
be
1
relevant to capturing latent seatbelt damage, detecting
2
and recording discernible seatbelt damage, and replacing
3
Allstate’s policyholders’ damaged seatbelt systems.
4
(Browne Dec. at 32-33.)
5
6
7
8
4. Admissibility of Browne’s first opinion
Browne makes the following assertions in support of her first
opinion, supra:
1.
Federal
Motor
Vehicle
Safety
Standards
require
9
automobile seatbelt systems in the United States to
10
stretch to a specified extent when subject to specified
11
forces. (Browne Dec. ¶¶ 38 - 43.)
12
2.
13
14
its original length.” (Browne Dec. ¶ 35.)
3.
15
16
“Once stretched, seatbelt webbing never fully returns to
“Once the webbing is stretched, its capacity to protect
the occupant is compromised.” (Browne Dec. ¶ 35.)
4.
“The
seatbelt
.
if
the
seatbelt
stretch
is
loaded
in
with
an
accident
18
sufficient degree of force. ‘Loaded’ is a technical term
19
meaning the occupant’s body contacted the restraint
20
system (specifically, the webbing) and applied pressure
21
to the restraint system during speed deceleration.”
22
(Browne Dec. ¶ 44.)
5.
.
will
17
23
.
webbing
a
“Whether the loading caused the webbing to stretch in a
24
given collision depends on two factors: (1) the type of
25
collision, which indicates the principal direction of
26
force; and (2) the degree of damage to the vehicle,
19
1
which shows the amount of force to which the seatbelt
2
was
3
original).
4
6.
subjected.”
(Browne
Dec.
¶
44)
(emphasis
in
“For a head-on collision resulting in major damage to
5
the
6
seatbelts loaded, that the webbing stretched, and that
7
the seatbelt system is therefore damaged . . . . I can
8
also state with certainty that seatbelt damage occurs in
9
other types of collisions . . . [because] the direction
10
of force, combined with the degree of damage (amount of
11
force), necessarily results in seatbelt loading and
12
therefore damaged seatbelt webbing. It happens because
13
of
14
collisions, and because of the uniform properties of all
15
seatbelt webbing . . . .” (Browne Dec. ¶ 47) (emphasis
16
in original).
17
7.
vehicle,
the
I
uniform
can
state
laws
of
with
certainty
physics
that
controlling
the
all
“If one’s goal is to restore a vehicle to its pre-
18
accident condition, then the entire seatbelt system must
19
be replaced. It is not possible to repair the webbing,
20
nor is it possible to replace only the webbing in a
21
seatbelt system. Rather, the entire system, including
22
the
23
installed.” (Browne Dec. ¶ 36.)
24
8.
webbing,
must
be
removed
and
a
new
system
“I have carefully reviewed screen shots showing the
25
fields of data collected by [Allstate’s Legacy and Next
26
Gen computer systems].” (Browne Dec. ¶ 48.) “Attached
20
1
[to my declaration are matrices] that I prepared based
2
on my review of screen shots . . . . [These matrices
3
identify] the fields of data that, when pulled from the
4
[Legacy and Next Gen computer systems] by a computer
5
technician,
6
collisions in which the seat belt systems were damaged.”
7
(Browne Dec. ¶ 49, 56.)
will
yield
a
list
of
claims
involving
8
All of these assertions must pass muster under Rule 702 and
9
Daubert in order for Browne’s first opinion to be admissible as
10
expert testimony.
11
Given Ms. Browne’s training and experience, I would find that
12
the first seven assertions — that a loaded seatbelt subjected to
13
sufficient force in a particular direction in an auto collision
14
will
15
rendering it unsafe for future use; that head-on collisions causing
16
major damage to vehicles and certain other types of collisions
17
subject loaded seatbelts to the requisite force; and that to
18
restore such seatbelts to safe condition, one must replace the
19
entire
20
admissible.
stretch
and
seatbelt
not
return
system,
to
rather
its
than
original
just
the
shape,
webbing
thereby
—
are
21
This leaves Browne’s assertion that, based on a review of
22
screen shots of Allstate’s Legacy and Next Gen computer systems,
23
she can identify the “fields of data that . . . will yield a list
24
of claims involving collisions in which the seat belt systems were
25
damaged.” (Browne Dec. ¶ 49, 56.) In other words, Browne claims
26
that she can infer from Allstate’s computer record of a collision
21
1
whether the seatbelts were irreparably damaged in that collision.
2
According to Browne, certain fields in Allstate’s systems (“Degree
3
of Damage” and “Was a case or report created?” in the Next Gen
4
system; “Was the asset damaged in this loss?,” “Calculated Degree
5
of Damage,” and “Was a report filed?” in the Legacy system)
6
indicate the amount of force, while other fields (“Loss Type” and
7
“Detailed Loss Type” in the Next Gen system; “Loss Facts/Auto,”
8
“Insured Vehicle Action,” and “Insured Vehicle Road Type” in the
9
Legacy system) indicate the direction of force.7 (Browne Dec.
10
¶¶ 51, 52, 58.)
11
Browne’s assertion that she can identify vehicles whose
12
seatbelts ought to have been replaced from the information in
13
Allstate’s computer systems is critical to the certification
14
inquiry. Plaintiff seeks to certify a class of individuals, among
15
other things, “whose loss involved a collision of sufficient
16
severity to damage the seat belt systems in occupied seating
17
positions.” The only means plaintiff offers to ascertain these
18
individuals’ identities is by selecting the appropriate fields in
19
Allstate’s computer systems. Browne’s opinion is critical to
20
establishing that the class members’ seatbelt systems were damaged
21
in the identified collisions, because absent her opinion, there is
22
no way to correlate Allstate’s claims data with the extent of
23
24
25
26
7
Each of these fields record descriptive categories of
information, such as “Minor,” “Moderate, “Major,” and “Possible
Total Loss” in the “Degree of Damage” field or “Changing lanes,”
“Head-on collision,” “Insured hit a fixed object,” etc. in the
“Detailed Loss Type” field. (See Browne Dec. Exs. B, C.)
22
1
damage to the vehicles.
2
FRE 702(c) requires that, to be admissible, expert testimony
3
must be “the product of reliable principles and methods.” But both
4
of Browne’s declarations in support of this motion lack any
5
description of the principles or methods she uses to deduce the
6
degree of damage to seatbelt webbing from the fields in Allstate’s
7
computer
8
methodology at all.
systems.
There
is
simply
no
presentation
of
her
9
In her initial declaration, Browne claims that she is able to
10
identify the affected Allstate policyholders having “carefully
11
reviewed screen shots showing the fields of data collected by each
12
system.” (Browne Dec. ¶ 48.) She later adds that she has reviewed
13
the declaration of Omar Menifee, a defense witness, which “confirms
14
that
15
appropriate.” (Browne Dec. ¶ 55.)
[her]
reliance
on
the
‘Degree
of
Damage’
field
is
16
In her reply declaration, Browne justifies her interpretation
17
of the data in the Allstate systems by citing her professional
18
opinion, e.g., “I have selected the fields and menu options that,
19
in
20
direction of force and the amount of force involved in the
21
collision resulted in seatbelt loading and webbing stretch” (Browne
22
Dec. ¶ 58) (emphasis in original). In her reply declaration, Browne
23
adds:
24
25
26
my
professional
opinion,
demonstrate
that
the
principal
[M]y selection of the data fields for my matrices is
based on the thousands of real-world collisions that I
have examined and evaluated in my career. I am an expert
in accident reconstruction. I have performed thousands
of accident reconstructions. It is precisely because of
23
1
7
my extensive experience as an accident reconstructionist
that I can testify that that information on the type of
incident in which the vehicle was involved, and
information on the type of damage the incident caused to
the vehicle, are highly relevant facts from which I can
draw conclusions sufficient to reconstruct the general
principal direction and approximate degree of the forces
involved. Allstate’s databases contain facts sufficient
for this purpose in its “Degree of Damage,” “Calculated
Degree of Damage,” “Loss Facts,” “Insured Vehicle
Action,” “Insured Vehicle Road Type,” “Was a case or
report created,” “Loss Type,” and “Detailed Loss Type”
data fields. (Browne Reply Dec. ¶ 86.)
8
Later, she states, “The fields of data I have selected from
9
Allstate’s Legacy and NextGen systems contain reliable information
10
of the kind routinely relied on by accident reconstructionists who
11
are trying to piece together an accident after the fact.” (Browne
12
Reply Dec. ¶ 87.)
2
3
4
5
6
13
But beyond these conclusory assertions, Browne simply fails
14
to explain how she derives her conclusions about which collisions
15
led to unsafe seatbelt stretching from the fields in Allstate’s
16
systems. An expert is not forbidden from relying on her experience.
17
But “[i]f the witness is relying solely or primarily on experience,
18
then the witness must explain how that experience leads to the
19
conclusion reached, why that experience is a sufficient basis for
20
the opinion, and how that experience is reliably related to the
21
facts.” Fed. R. Evid. 702, Advisory Committee’s Note to the 2000
22
Amendments. Browne’s declarations fail to meet this standard. While
23
it may be true, as Brown avers, that by experience she can
24
determine that the fields reflect particular types of real-world
25
accidents, she does not take the next, necessary step of relating
26
that conclusion to degrees of damage to seatbelt systems.
24
1
Moreover, none of the factors identified by Daubert and Kumho
2
Tire as indicia of reliability for expert testimony are present in
3
Browne’s testimony. There is nothing to indicate that Browne’s
4
methodology “can be (and has been) tested.” Daubert, 509 U.S. at
5
593. Browne does not indicate that she has examined Allstate-
6
insured vehicles involved in collisions and attempted to correlate
7
the degree of seatbelt stretching to the fields in Allstate’s
8
database. Granting that it would have been difficult to obtain
9
sample vehicles for such a study in discovery (e.g., for reasons
10
of consumer privacy), Browne does assert that “the type of incident
11
in which the vehicle was involved, and information on the type of
12
damage the incident caused to the vehicle, are highly relevant
13
facts from which I can draw conclusions sufficient to reconstruct
14
the general principal direction and approximate degree of the
15
forces involved.” (Browne Reply Dec. ¶ 86.) In other words, she is
16
arguing that generic information about “the type of incident in
17
which the vehicle was involved” and “the type of damage the
18
incident caused to the vehicle” is sufficient to determine seatbelt
19
stretching. This suggests that she should be able to conduct real-
20
world tests of accidents to see whether her categories of “type of
21
incident” and “type of damage” correlate with seatbelt damage. But
22
not only does she fail to describe testing of her methodology by
23
herself or others, she does not even describe her methodology.
24
Browne similarly neglects to mention whether her methodology
25
“has been subjected to peer review and publication.” Id., 509 U.S.
26
at 593. While publication “does not necessarily correlate with
25
1
reliability” and is “not [a] dispositive consideration in assessing
2
the scientific validity of a . . . methodology,” id. at 593-4, the
3
absence of such citation suggests that Browne’s methodology is
4
personal,
5
particularly striking given her statement that “[t]he fields of
6
data [she has] selected from Allstate’s Legacy and NextGen systems
7
contain reliable information of the kind routinely relied on by
8
accident reconstructionists who are trying to piece together an
9
accident after the fact.” (Browne Reply Dec. ¶ 87.) There is
10
nothing, however, describing these routine techniques and their
11
reliability, and then relating them to seatbelt damage. Similarly,
12
Browne fails to cite any “standards controlling [her methodology’s]
13
operation,”
14
community.
rather
id.
than
at
generally-accepted.
594,
among
the
This
accident
absence
is
reconstruction
15
Finally, there is no description of the “known or potential
16
rate of error” in Browne’s methodology. Id. at 594. As the Supreme
17
Court has noted, when considering “experience-based testimony[, i]n
18
certain cases, it will be appropriate for the trial judge to ask,
19
for example, how often an engineering expert’s experience-based
20
methodology has produced erroneous results . . . .” Kumho Tire, 526
21
U.S. at 151. There is no requirement that Browne’s methodology must
22
be infallible in order to pass muster for reliability under Rule
23
702. But it is difficult to assess her methodology’s reliability
24
without some sense of the number of false positives, if any, it is
25
likely to include.
26
Ultimately, Browne is asking the court to make an inferential
26
1
leap from the data in Allstate’s computer systems to the alleged
2
degree
3
experience, without any explanation of her methods or justification
4
for their reliability. Accordingly, the court is left to conclude
5
that “there is simply too great an analytical gap between the data
6
and the opinion proffered” by Browne to allow its admission.
7
Joiner, 522 U.S. at 146. Or as the Ninth Circuit put it, “We’ve
8
been
9
conclusions and their assurances of reliability. Under Daubert,
10
that’s not enough.” Daubert v. Merrell Dow Pharmaceuticals, Inc.,
11
43 F.3d 1311, 1319 (9th Cir. 1995) (“Daubert II”).8
of
damage
presented
to
with
seatbelt
only
the
systems
experts’
based
solely
on
qualifications,
her
their
12
In sum, Browne has failed to provide any basis for determining
13
that the methodology she uses to identify collisions that require
14
seatbelt replacement, based on the data in Allstate’s computer
15
systems, is reliable. Therefore, the opinion she advances that is
16
based on this methodology - that “Allstate’s Next Gen and Legacy
17
systems
18
Allstate policyholders in the class experienced a ‘collision of
19
sufficient severity to damage the seat belt systems in occupied
20
seating positions’” (Browne Dec. ¶ 95) - is also inadmissible for
21
purposes of deciding the motion for class certification. As this
22
opinion is the basis of the class that plaintiff seeks to certify,
contain
information
sufficient
to
conclude
that
the
23
24
25
26
8
The court wishes to be clear. It may be that some or indeed
many of the cars identified by the plaintiff have had seat belt
impairment. The problem is, given the expert's reticence, it is
impossible to identify which cars may have been subject to that
loss, and which cars may have been free of that loss.
27
1
it
follows
that
2
the
court
must
deny
the
motion
for
class
certification.
3
Given the court’s disposition of the motion, the court need
4
not further examine Browne’s conduct relative to a failure to cite
5
the article from which she took about ten (10) paragraphs of her
6
declaration, making it appear that she was the author of the
7
material.
8
IV. CONCLUSION
9
It suffices to say such conduct is unacceptable.
Accordingly, the court hereby orders as follows:
10
[1] Defendant’s motion to compel appraisal and stay this
11
action is DENIED.
12
[2] Defendant’s objection under Federal Rule of Evidence 702
13
to the admissibility of the declaration of Sandy Browne is
14
SUSTAINED.
15
[3] Plaintiff’s motion for class certification is DENIED
16
without prejudice.
17
[4] Defendant’s request for an evidentiary hearing is DENIED
18
as moot.
19
[5] Defendant’s motions to strike and objections to the
20
declarations of plaintiff’s proposed experts Reed F. Simpson
21
and James Mathis are DENIED as moot.
22
[6] Plaintiff’s motions to strike and objections to the
23
declarations of defendant’s proposed experts Tony Passwater,
24
Omar Menifee, Daniel Davee, and Robert C. Lange are DENIED as
25
moot.
26
[7] Allstate’s request to seal documents stands SUBMITTED,
28
1
and an appropriate order will issue.
2
IT IS SO ORDERED.
3
DATED:
January 16, 2013.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
29
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