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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 ROBERT WATTS, on behalf of himself individually and all others similarly situated, NO. CIV. S-08-1877 LKK/GGH 12 Plaintiff, 13 v. O R D E R 14 15 ALLSTATE INDEMNITY CO., an Illinois corporation, et al., 16 Defendants. / 17 18 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/ 24 25 26 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 3 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 10 will (i) deny defendant’s motion to compel appraisal and stay the 11 action, and (ii) deny plaintiff’s motion for class certification. 12 I. BACKGROUND 13 A. Factual Background 14 The following facts are taken from plaintiff Watts’s 15 declaration in support of class certification (Declaration of 16 Robert 17 Certification (“Watts Dec.”), ECF No. 314) and his deposition 18 transcript (Deposition of Robert Watts (“Watts Dep.”), Appendix to 19 Defendant’s Motion for Summary Judgment Ex. B, ECF No. 202-2). Watts in Support of Plaintiff’s Motion for Class 20 In 2006, plaintiff Watts was covered by an auto insurance 21 policy purchased from Allstate. (Watts Dec. ¶ 2.) The policy 22 provided that “Allstate will pay for direct and accidental loss to 23 [plaintiff’s] insured auto . . . from a collision . . . .” 24 (Allstate Auto Insurance Policy (“Policy”) 18, Watts Dec. Ex. A , 25 2 26 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 5 significant damage in a collision. (Watts Dec. ¶ 5.) Plaintiff’s 6 wife was driving the Honda, and was accompanied by a passenger. 7 (Id.) Plaintiff had the vehicle towed to Artistic Collision, an 8 auto repair shop of his own choosing. (Watts Dec. ¶ 6; Watts Dep. 9 40:14-41:5.) Artistic Collision prepared a “visible damage quote” 10 which did not include any amount for inspection, repair, or 11 replacement of the seatbelts. (Watts Dec. ¶ 6; Watts Dep. Ex. 3.) 12 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 ¶ 15 inspection, repair, or replacement of the seatbelts. (Id.) Artistic 16 Collision repaired the car in accordance with the estimate; the 17 final invoice did not include the cost of inspection, repair, or 18 replacement of the seatbelts. (Watts Dec. ¶ 8.) The bill for these 19 services was paid by Allstate. (Id.) 20 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. 22 (Watts Dep. 75:10-13, 83:1-8.) It provided that seatbelts should 23 be replaced in all vehicles involved in serious collisions. (Watts 24 Dep. 83:6-8.) Plaintiff wrote to Allstate requesting, among other 25 things, that the seatbelt tensioners be replaced in the Honda. 26 (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 6 Dec. ¶ 12.) 7 B. Procedural Background 8 Plaintiff filed an initial complaint on February 29, 2008, and 9 an amended complaint on November 24, 2008. On November 7, 2008, 10 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). 13 On April 20, 2009, plaintiff filed his Second Amended Complaint 14 (“SAC,” ECF No. 67), which is the operative complaint in this 15 action. 16 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 20 the declaration of expert witness Sandy Browne, and arguing that 21 the contents of this declaration created a genuine issue of 22 material fact. (ECF Nos. 260, 266.) On March 30, 2012, the court 23 granted plaintiff partial relief from summary judgment, while 24 leaving unaltered the portion of its previous order holding that 25 the “insurance policy did not [in terms] require Allstate to 26 replace plaintiff’s undamaged seatbelts following the collision.” 4 1 2 (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.) 7 8 9 10 11 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; 12 13 (3) Whose policy was in full force and effect at the time of the loss; 14 (4) Whose loss occurred from February 24, 2004 through the present; 15 16 (5) Whose loss involved a collision of sufficient severity to damage the seat belt systems in occupied seating positions; and 17 18 (6) Whose seat belt systems Allstate did not pay to replace. (Plaintiff’s Motion for Class Certification, ECF No. 322.) 19 20 If certified, the class may include up to several hundred thousand 21 individuals, as, according to plaintiff’s counsel Wendy York, 22 867,026 California policyholders submitted auto collision repair 23 claims to Allstate in the 2004 - 2009 period, of which only 1.2% 24 resulted in the replacement or repair of seatbelts or seatbelt 25 components. (Declaration of Wendy C. York in Support of Plaintiff’s 26 Motion for Class Certification ¶¶ 29-31, ECF No. 332.) Allstate 5 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.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 request to seal certain documents. (ECF 22 23 As defendant’s motion to compel appraisal would stay this 24 action if granted, it must be 25 plaintiff’s motion for class certification. 26 //// 6 considered before turning to 1 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.) 5 6 7 8 9 10 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., 15 Policy Endorsement at 8.) 16 Allstate claims that it invoked the appraisal provision by 17 letter to plaintiff’s counsel dated April 30, 2008. (Dec. Martin, 18 Ex. A., ECF No. 336-1.) 19 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, 22 the 23 arbitration agreement, and determined that the provision was 24 unconscionable under California law, and therefore, unenforceable 25 under the Federal Arbitration Act. Defendants now contend that 26 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, 8 warranted in light of Concepcion. 9 10 11 12 13 14 15 16 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.) 17 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, 5 ECF No. 322) Plaintiff is alleged to be typical of the putative 6 class because he is: 7 8 9 10 11 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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