Terrill v. Electrolux Home Products, Inc.

Filing 255

ORDER granting 235 Motion to exclude testimony of Donald Reinhardt; granting 238 Motion to exclude testimony of Joseph Manna. Signed by Judge Lisa G. Wood on 7/10/2017. (ca)

Hintteb

BtfiCtritt Conirt

for t|ie ^OQt^em Biotrict of(deorsia
iHngitOta l9tiits(ton
ROBERT BROWN, on behalf of
himself and all others

similarly situated.
Plaintiff,
No. l:08-CV-30

V.

ELECTROLUX HOME PRODUCTS, INC

d/b/a FRIGIDAIRE,
Defendant.

ORDER

The Court gave Plaintiff Robert Brown the chance to show
that

mold,

throughout

mildew,
the

and

thousands

odors
of

washing

covered by his proposed class.
two

alleged

experts.

were

likely

to

machines

Dkt. No. 224.

Dr.

Donald

J.

be

that

problems
could

be

Brown located
Reinhardt,

a

microbiologist, concluded that the problem ^'would be more or
less

universal"—based

on

mold

samples

taken

from

inside

Brown's washing machine, which had been sitting unused for six
years,

most

recently in storage.

Joseph

Manna,

a

washing-

machine technician, said the problem will be universal, based
on his experience working on 40 or 50 machines.

A0 72A

(Rev. 8/82)

Defendant Electrolux Home Products, Inc.'s (^'Electrolux")

motions to exclude these opinions, dkt. nos. 235, 238, will be
GRANTED for the reasons below.
BACKGROUND

Electrolux
machines.

Dkt.

makes

Frigidaire

No. 224

at 1.

front-loading

These have

^'bellows," to stop water leaks.

Id.

rubber

washing
seals, or

Frigidaires originally

used ^^a convoluted bellow, which is not as smooth as the S-

shaped bellow that is now

available."

Id. at 1-2.

bought a Frigidaire machine with convoluted bellows.
2.

Id. at

He claims convoluted bellows trap water, causing mildew,

mold, and odors.

Id.

He brought suit.
Dkt. No. 158.
Eleventh

Home

Brown

Id.

vacated

Inc.,

817

renewed his motion.

Id.

He moved for class certification.

This Court granted it.

Circuit

Prods.,

He found mildew in his machine.

and

F.3d

remanded.

1225

Dkt. No. 219.

{11th

Dkt. No. 201.
Brown

Cir.

v.

The

Electrolux

2016).

Brown

The Court denied it, but

opened discovery as to whether the defect Brown alleged is
likely to manifest throughout his proposed class.
224.

Electrolux now

moves to exclude two of the

experts Brown has secured.

Dkt. Nos. 235, 238.

Dkt. No.
purported

The parties

have briefed the motions, which are now ripe for disposition.
Dkt. Nos. 246-47, 252-53.

LEGAL STANDARD

A
witness
who
is
qualified
as
an
expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise
if: (a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand

the

evidence

or

to

determine

a

fact

in

issue; (b) the testimony is based on sufficient
facts or data; (c) the testimony is the product of
reliable principles and methods; and (d) the expert
has reliably applied the principles and methods to
the facts of the case.

Fed. R. Evid. 702.

Under this Rule, ^^the trial judge must ensure that any

and

all

[expert] testimony

reliable."

589

or

evidence

admitted

is . . .

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

(1993).

"Proposed

testimony

must

be

supported

by

appropriate validation—i.e., ^good grounds,' based on what is
known."

Id. at 590.

In certain cases, it will be appropriate for the
trial judge to ask, for example, how often an
engineering expert's experience-based methodology
has produced erroneous results, or whether such a
method
is
generally
accepted
in
the
relevant
engineering community.
Likewise, it will at times
be useful to ask even of a witness whose expertise
is based purely on experience . . . whether his
preparation is of a kind that others in the field
would recognize as acceptable.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999).

"The inquiry envisioned by Rule 702 is . . . a flexible
one.

Its overarching subject is the . . . validity . . . of

the principles that underlie a proposed submission."

Daubert,

509 U.S. at 594-95.

''The objective of that requirement . . .

is to make certain that an expert, whether basing testimony

upon professional studies or personal experience, employs in
the

courtroom

characterizes
field."

the

the

same

level

practice

of

of

intellectual

an

expert

Kumho Tire Co., 526 U.S. at 152.

in

rigor

the

that

relevant

To that end, the

court asks whether:

(1) [T]he expert is qualified to testify competently
regarding the matters he intends to address; (2) the
methodology by which the expert reaches his
conclusions is sufficiently reliable as determined

by the sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact, through the

application of scientific, technical, or specialized
expertise,

to

understand

the

evidence

or

to

determine a fact in issue.

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,
1340-41 (11th Cir. 2003) (citations omitted).
DISCUSSION

The expert opinions Brown offers will be excluded, at the

very least because neither witness's methodology is reliable.
I. DR. REINHARDT'S METHODOLOGY IS UNRELIl^LE.

Dr. Reinhardt holds a Ph.D. in microbiology.
246-1 at 26:16-18.

Dkt. No.

He does not hold himself out to be an

engineering expert and has not worked on product design.
at 27:7-18.

Id.

Still, he testifies that "this class . . . are

[sic] conducive to conditions that promote the mold and the

yeast problem . . . and that it would be one that would be

more or less universal."^

Id. at 83:7-11.

His methodology is

unreliable.

Dr.

Reinhardt's

study

had

a

sample

machine with convoluted bellows—Brown's.

size

of just one

He simply assumed

that there would be no differences among the machines that

could be part of Brown's class.
is fatal to his testimony.

F.Sd

813, 818

(7th

Cir.

Id. at 175:2-7.

That alone

Am. Honda Mot. Co. v. Allen, 600

2010)

(per

curiam)

("[A]

sample

size of one is rarely, if ever, sufficient.").

On top of that. Dr. Reinhardt knew Brown had not used his
machine in six years—and that it had been in storage for a

significant amount of time.
Dr.

Reinhardt

did

not

Dkt. No. 246-1 at 40:2-7, 41:4-5.

know

anything

condition before or during storage.

about

the

machine's

Id. at 41:20-42:14.

He

did not know whether there was standing water in the machine

when the mold sample was taken.

Id. at 58:11-13.

He did not

know whether the machine had ever been taken apart.

58:13-15.

Id. at

For that matter, he only ever saw the machine by

photograph.

Id. at 42:15-17.

There is no need to belabor the point.

Dr. Reinhardt's

ignored the circumstances pertinent to Brown's injury, then
extrapolated his baseless conclusion to thousands of others.

^ That ''more or less" may be carrying a lot of weight. Dr. Reinhardt went
on to say that he would consider ten-to-twenty-percent mold rates to be
"high."

at 85:18-19.

See Rising-Moore v. Red Roof Inns, Inc., 368 F. Supp. 2d 867,

872 (S.D. Ind. 2005); cf. Accident Ins. Co. v. Classic Bldq.
Design, L.L.C., 539 F. App'x 465, 467 (5th Cir. 2013) (per

curiam)

(upholding

exclusion

of

expert

testimony

given

''extremely attenuated timeline" where "the light fixture did
not fall until four years after it was installed, and [the

expert] himself did not examine the light fixture until two
years after it fell.").

His methodology is unreliable.

No matter. Brown says:

actually

about

environment

fungi."

"how

for

the

Dr. Reinhardt's testimony was

[washing]

machines

proliferation

Dkt. No. 246 at 2.

of

create

mold,

an

ideal

bacteria,

and

Dr. Reinhardt did testify that

"[m]oisture is a major contributing factor to mold," alongside
other

obvious

remarks

about

wetness

and

laundry.

Dkt.

No.

246-1 at 33:20-21; see also id. at 35:10-11 ("Moisture control

is important to mold control . . . ."), 36:16-37:1 (granting
that generally, "leaving wet laundry in a washing machine
after a wash cycle for a long period of time would increase
the moisture"), 37:2-15 (testifying that wiping down a washing
machine "would

be

a

moisture

control

measure" and

properly

ventilating a machine in a ventilated area "might certainly
reduce [moisture]."), 38:4-7

(agreeing that humidity

varies

"depending on whether a washing machine [is] kept in a garage
or outside

or

inside

of

a

home").
6

But "expert" testimony

cannot be used to fancy up common sense.

Jaquillard v. Home

Depot U.S.A., Inc., No. CV 410-167, 2012 WL 527421, at *5
(S.D. Ga. Feb. 16, 2012).

There

are

points

where

Dr.

Reinhardt

offers

opinions that are independent of his flawed study.
for

instance,

that

the

design

encourages mold growth.

of

the

deeper

He opines,

convoluted

bellows

Dkt. No. 246-1 at 71:21-72:20.

But

his basis for this is just that ''it's obvious that water is

prohibited from freely draining."

Id. at 74:8-9.

he tested Brown's bellows to find out.

(Not that

Id. at 204:1-4.)

To

the extent he is right about the flaw being "obvious," this is

inappropriate

subject

explained above.

matter

for

expert

testimony,

as

To the extent the defect is subtler, a

microbiologist with no engineering expertise-who admitted to
not having ever seen the bellows in person—is not the person
to suss it out.

Id. at 74:18-75:8.

At the very least, not

without using some sort of sound methodology.

See id. at

153:19-54:9, 155:22-56:4 (describing controlled experiment Dr.
Reinhardt

measured).

sometimes

does

where

retained

water

can

be

Dr. Reinhardt's testimony must be excluded.

II. MANNA'S METHODOLOGY IS NOT RELIABLE.

Manna

is

a

laundry-equipment

high-school

company,

technician for ten years.

graduate

and

has

and

been

the

a

owner

of

a

washing-machine

Dkt. No. 247-1 at 1; Dkt. No. 247-2

at 61:17-62:16.

He has no experience with washing-machine

design, manufacture, or testing.
72:9.

He does not

know

Dkt. No. 247-2 at 70:13-

whether there are industry design

standards for washing machines.

Id. at 72:21-74:10.

He

proposes testimony based on his ^^experience and expertise, and
review of the documents from this [case]."

1.

Dkt. No. 247-1 at

He seeks to testify that "'if standing water is left in a

front-loading washing machine at the end of a wash cycle, [it]
. . . will inevitably lead to the growth of mold and mildews"—
and that the bellows at issue here ''allow[ ] for standing

water to develop at the end of wash cycles."
In

his

deposition.

expert on mold.

Manna

quickly

Id. at 1-2.

disavowed

Dkt. No. 247-2 at 20:19-21:3.

being

an

Indeed, the

entirety of his testimony about it boiled down to that "every
time water is held at the bottom of a rubber door gasket it

will create mold, mildew and odors."

Id. at 21:22-22:3.

Once

again, whether or not mold grows in standing water is well
within the reach of common sense, and so cannot be the subject
of expert testimony.

As

Brown's

for

Manna's

proposed

opinion

class

will

that

hold

the

water

bellows, well, it does not hold water.
Brown's machine.

Id. at 22:17-19.

washing

machines

because

of

in

their

Manna never inspected

He claimed that because he

has "worked on thousands of washing machines," he "could see

from the black mold in [photographs of Brown's machine] that
it was caused from water" in the bellows.

Id. at 23:10-15.

This is quite the inferential leap, and to Manna's credit, he

readily admitted to being ^'uncertain" as to causation.

Id. at

24:5-9; see also id. at 131:16-32:5 {discussing other possible

causes of mold).

Manna's testimony as to Brown's machine is

clearly unreliable.

Manna does go on to say more broadly that he has worked
on machines with convoluted bellows and knows that they ^^hold

water at the end of the cycle and create mold."

Id. at 25:5-

7;

claims

see

also

^^Electrolux

id.

at

88:1-8.

convoluted

Further,

bellows

he

specifically

in

that

[his]

experience have all held water and created mold, every one of
them in [his] experience."

Id. at 97:20-98:1.

But there are

significant cracks in the foundation of Manna's testimony.

Although he (very) roughly estimated that he has worked on 500
machines with convoluted bellows, he ^^guess[es]" that he has

only changed about 40 or 50 Electrolux convoluted bellows that
were

holding

also

id.

at

water.
111:8-14.

Id. at 107:10-09:11, 114:20-15:1; see
And,

when

there

is

a

moldy-bellows

problem. Manna ^^just order[s] [a new bellows] before [he] even
go[es] . . ., because [he] just know[s] it's going to need to
be replaced."
with

the

Id. at 132:15-17.

reason

He is ^^not really concerned

why, unless it is from an

outside source."

Id. at 132:17-19 (emphasis added).

The narrowness of Manna's

inquiry is a major strike against admissibility.

See McGee v.

Evenflo Co., No. 5:02-CV-259, 2003 WL 23350439, at *10 (M.D.

Ga.

Dec.

11,

2003)

[A]n

expert

may

not

give

opinion

testimony to a jury regarding specific causation if the expert
has not engaged in the process of differential diagnosis-that
is, the

process of eliminating

other

possible

diagnoses."

Manna's knowledge is not systematic, either.

He has not

(citation omitted)).

generally surveyed Electrolux machines.

Id. at 113:10-14:1.

He has not done any sort of testing with bellows and water
retention.

Id. at 45:4-8.

He has not measured the amount of

water Electrolux bellows retain.

Id. at 94:21-95:8; but see

id. at 96:4-5 (describing convoluted bellows as holding
lot and a lot more than any other.").

Lastly,

Manna's

insights

are

not

grounded

representative sample of Electrolux machines.

in

a

He sees many

machines because they have problems—and he often focuses in on

the

problems

conclusion

sample.

is

the

owner

therefore

raises.
improperly

Id.

at

based

112:7-15.
on

a

His

selective

See, e.g.. In re: Pella Corp. Architect & Designer

Series Windows Mktq., Sales Practices & Prod. Liab. Litig.,

214 F. Supp. 3d 478, 493 (D.S.C. 2016) ('^All of the named
plaintiffs certainly felt that something was wrong with their
10

Windows,

and

thus,

focusing

on

these

allegedly

defective

Windows would seemingly tend to overstate the incidence of

Window

problems

in

the

overall

population.

Moreover,

plaintiffs appear to indicate that the water testing focused
on

Windows

further

that already

suggests

that

exhibited

the

water
in

signs

likelihood

of

Window

failure

(footnote

omitted));

Allqood

of damage.

testing
the

v.

overstates

overall

Gen.

Mot.

This

the

population."

Corp.,

No.

102CV1077, 2006 WL 2669337, at *11- (S.D. Ind. Sept. 18, 2006)
(Hamilton, J.) ("MSJamples must be chosen using some method
that assures the samples are appropriately representative of
the larger entity or population being measured.").

Manna's

experience

may

be

quite

well-suited

to

the

everyday work of servicing and repairing washing machines.
But it is not the sort of reliable methodology that can be

used under Daubert.

His testimony must be excluded.
CONCLUSION

Brown brought forward evidence that mold grows in water.
But the Court already noted that this "'simple claim" does not

require expert testimony.

Dkt. No. 224 at 4.

What Brown

needed to do was show that "a defect is very likely to emerge

in all the washing machines at issue" in this case.

Id. at 7.

The opinions of Dr. Reinhardt and Manna presented here fall
very far short of helping him do so.
11

For the reasons above,

Electrolux's motions to exclude the testimony of Dr. Donald

Reinhardt, dkt. no. 235, and Joseph Manna, dkt. no. 238, are
GRANTED.

SO ORDERED, this 10th day of July, 2017.

HON; LISA GODBE¥ WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

A0 72A

(Rev. 8/82)

12