Mednick v. Precor Inc

Filing 125

ENTER MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/10/2016:Mailed notice(wp, )

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 1 of 23 PageID #:2864

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GARY MEDNICK and STEVEN
BAYER, Individually and on
Behalf of All Others
Similarly Situated,

Case No. 14 C 3624
CONSOLIDATED ACTION

Plaintiffs,
Judge Harry D. Leinenweber
v.
PRECOR, INC., a Delaware
Corporation,
Defendant.

MEMORANDUM OPINION AND ORDER
Presently before the Court are Plaintiffs’ Motion for Class
Certification [ECF No. 86], and Defendant’s Motion to Strike and
Exclude
[ECF

Opinion

No.

100].

of

Plaintiffs’

For

the

Expert

reasons

Craig

stated

Henriquez,

herein,

Ph.D.

Defendant’s

Motion is granted, and Plaintiffs’ Motion is denied.
I.

BACKGROUND

On May 16, 2014, Plaintiff Gary Mednick (“Mednick”) filed
this

class

action

lawsuit

against

Defendant

Precor,

Inc.

(“Precor”) on behalf of himself and other similarly situated
individuals

seeking

to

remedy

unfair

and

deceptive

business

practices arising from Precor’s marketing and sale of exercise
equipment

incorporating

“touch

sensor

heart

rate”

monitoring

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 2 of 23 PageID #:2865

technology. Plaintiff Steven Bayer (“Bayer”) filed a separate
lawsuit alleging similar claims.

Subsequently, the two cases

were consolidated before this Court.
Mednick

and

Bayer

both

manufactured by Precor.
Touch

Sensor

Heart

purchased

Model

9.23

treadmills

The Model 9.23 treadmill includes a

Rate

System

(the

“Touch

Sensors”)

that

measures a user’s heart rate when gripping handle sensors.
Touch

Sensors

Alatech,

in

one

of

Model

9.23

Precor’s

monitoring systems.

treadmills
three

are

suppliers

The

manufactured
of

heart

by

rate

Alatech Touch Sensors, along with sensors

manufactured by Polar and Salutron, are included on nineteen
additional Precor machines:
machines,

one

adaptive

four treadmills, eight elliptical

motion

machine, and six stationary bikes.

trainer

(“AMT”)

elliptical

Both Plaintiffs found that

their treadmills’ Touch Sensors failed to provide accurate heart
rate readings.

According to the Complaints, the Touch Sensors

on all 20 machines contain the same defect.
Precor’s nationwide marketing campaign uniformly advertises
the benefits of its Touch Sensors across its various fitness
machines.

For

all

of

its

product

brochures highlight the Touch Sensors.
brochure

for

the

9.23

Treadmill

lines,

Precor’s

product

For example, the product

invites

the

consumer

to

“[m]aximize your workout results with touch sensor heart rate
monitoring.”

Pls.’ Mem. Supp., Ex. 9.
- 2 -

These brochures, created

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 3 of 23 PageID #:2866

by Precor, are sent directly to third-party retail stores for
the purpose of:

(1) training sales personnel to learn about

product features; (2) preparing sales representatives to speak
with and sell Precor exercise equipment to consumers; and (3)
providing

point-of-sale

purchasers.

Precor

marketing

makes

materials

similar

to

potential

representations

on

its

website.
Precor’s Touch Sensors are intended to measure the user’s
heart rate by registering the small electrical signals carried
across the surface of the user’s skin each time his or her heart
contracts.

However, Precor cautions that not all users will get

the same or even valid results when using the Touch Sensors.
This

is

subject

because
to

the

highly

Touch

variable

Sensors

are

users.

On

biomechanical
its

website,

devices
Precor

states:
Touch heart rate readings depend on a strong, clear
pulse to be read from your hands.
In order to
generate a clear signal, gently grasp the sensors. Do
not tightly squeeze them, as this will negatively
affect the pulse in your hands, making it more
difficult for the sensors to get a good reading. The
sensors will be more successful if your hands are warm
and moist. . . .
Touch heart rate is affected by an
individual’s physiology.
Some people have stronger
pulse in their hands compared to others. Your results
may vary.
Def.’s Mem. Opp., Ex. 9.
cautionary

statement.

The owner’s manuals contain a similar
For

example,

states:
- 3 -

Bayer’s

owner’s

manual

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Touch heart rate performance may vary based on a
user’s physiology, age, and other factors.
You may
experience an erratic readout if your hands are dry,
dirty or oily, or if the skin on your hands is
especially thick. . . .
Pls.’ Mem. Supp., Ex. 14.

Similarly, Mednick’s owner’s manual

contained the following disclaimer:
Usually, the concentration of salts in a person’s
perspiration provides enough conductivity to transmit
a signal to the receiver inside the display console.
However, some people, because of body chemistry or
erratic heart beats cannot use the touch sensitive
heart rate feature on the treadmill.
Def.’s Mem. Opp., Ex. 10.
Both parties have presented expert testimony on the Touch
Sensors

ability

to

provide

accurate

heart

rate

information.

Plaintiffs’ expert, Dr. Craig S. Henriquez (“Henriquez”), is a
professor

of

biomedical

currently

teaches

at

engineering

Duke

of

University.

nearly

30

Henriquez

years

who

offers

the

opinion that “motion artifact,” or the actual movement of the
user

while

exercising,

“can

disrupt

the

measurement

of”

the

electrical currents produced by the human body “and result in a
miscalculated heart rate.”

Henriquez concludes that “exercise

equipment like the tested Precor products, which rely on metal
handgrip sensors, provide inherently unreliable heart rate data”
due to motion artifact noise and physiological differences among
the user population.

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Henriquez reached this opinion after reviewing the relevant
literature and Precor’s own documents and materials.

He also

relied

and

on

his

independent

experience

research.

and

specialized

Henriquez

knowledge,

collected

data

from

his
one

subject, Matthew Brown, “under typical conditions of walking and
running”

on

Mednick

and

Bayer’s

personal

treadmills

and

on

another model — all three of which operate using an Alatech
heart rate system.

Henriquez ran tests comparing Mr. Brown’s

heart rate readings from a chest strap to those he recorded off
the

heart

rate

systems

of

the

three

Precor

treadmills

and

compiled this data in support of his opinion in this case.
Precor’s

expert,

Michael

Garrett

(“Garrett”),

is

the

principal of Garrett Technologies, an advanced electrical and
mechanical engineering software development and consulting firm
that specializes in medical devices including electrocardiogram
(“ECG”)
Garret

monitors,
has

electrical

defibrillators,

extensive
and

experience

software

and

and

engineering

external

particular
and

monitoring systems, including ECG systems.

pacemakers.
expertise

testing

Garrett

reviewed

the

relevant

heart

Precor asked Garrett

to review and comment on Henriquez’s expert report.
so,

of

in

literature

and

In doing
performed

independent testing on the 20 Precor machines at issue in this
case.

Garrett tested the Alatech, Salutron and Polar heart rate

systems incorporated in Precor treadmills, elliptical machines
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and stationary bikes.
heights,
various

weights,
machines

He had 22 individuals of different ages,

and
and

cardio-physiologies

compared

the

heart

use

rate

each

of

reading

the

from

a

chest strap ECG worn by the user and the subject machines’ Touch
Sensors.
Garrett’s research led him to conclude that the heart rate
systems tested on the Precor machines at issue all perform as
required for monitoring heart rate in an exercise environment,
and are consistent with clinical ECG performance.

Garrett’s

data demonstrated that valid heart rate readings were displayed
for each of the different machines tested.
the

rate

user’s

of

accuracy

physiology,

the

varied

based

machine

on

being

But he noted that

factors

including

the

tested,

the

and

type

intensity of the motion, and the machine’s incorporated heart
rate system.
Garrett

also

concluded

that

Henriquez’s

testing

did

not

support his broad conclusion that exercise equipment like the
Precor products, which rely on metal handgrip sensors, provide
inherently unreliable heart rate data.

Specifically, Garrett

criticized Henriquez for only testing a single person on one
heart rate system on a single type of exercise machine — a
treadmill.
different;

Garrett found that (1) each heart rate system is
(2)

the

different

heart

rate

systems

—

Alatech,

Salutron, and Polar — operate based on unique, proprietary trade
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secret

or

patented

technology with

different

algorithms

to

receive, filter and convert electrical signals from a person’s
pulse into the heart rate displayed on the machine; (3) each
type of exercise machine requires different amounts and types of
bodily

movements;

and

(4)

individual

users

have

varied

physiology and physical attributes, and may grip hand sensors
and

use

exercise

equipment

differently.

Therefore,

Garrett

concluded that a deficiency noted based on the testing of one
individual on two models of treadmills, both of which use the
Alatech heart rate system, cannot be extrapolated to apply to
all individuals on all heart rate systems across all types of
Precor machines.
The proceedings have now reached the class certification
stage.

Plaintiffs seek class certification under FED. R. CIV.

P. 23(a), 23(b)(2) and 23(b)(3) for breach of express warranty
under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.,
on behalf of a nationwide class, defined as:
All persons within the United States who, within the
applicable statute of limitations, purchased a Precor
fitness machine equipped with a touch sensor heart
rate monitor from either Precor or a third-party
retailer.
Excluded
from
the
Nationwide
Class
are . . . those who purchased Precor fitness machines
for resale.
Plaintiffs
P. 23(a),

also

seek

23(b)(2)

class

and

certification

23(b)(3)

- 7 -

for

under

violations

FED.
of

R.
10

CIV.
state

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consumer fraud laws, on behalf of a multi-state class, defined
as:
All persons who, within the applicable statute of
limitations,
purchased
a
Precor
fitness
machine
equipped with a touch sensor heart rate monitor from
either Precor or a third-party retailer.
Excluded
from
the
Multi-State
Class
are . . . those
who
purchased Precor fitness machines for resale.
Precor opposes the certification of both proposed classes and
also asks the Court to strike and exclude Henriquez’s expert
opinion.
II.
A.

ANALYSIS

Motion to Strike

The Court first considers Precor’s Motion to Strike and
exclude Henriquez’s expert opinion.

See, Am. Honda Motor Co. v.

Allen, 600 F.3d 813, 815-16 (7th Cir. 2010) (“[W]hen an expert’s
report or testimony is critical to class certification, as it is
here . . .

a

district

court

must

conclusively

rule

on

any

challenge to the expert’s qualifications or submissions prior to
ruling

on

a

class

certification

motion.”).

A

plaintiff

proffering expert testimony in support of class certification
must demonstrate by a preponderance of the evidence that the
expert’s reasoning and methodology are valid and can be properly
applied to the facts in issue.

1 McLaughlin on Class Actions

§ 3:14 (12th ed.).

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The admission of expert testimony is governed by Federal
Rule of Evidence 702 and the principles outlined in Daubert v.
Merrell

Dow

Pharm.,

Inc.,

509

U.S.

579

(1993).

It

is

the

Court’s role to ensure that expert testimony is both relevant
and reliable.

Daubert, 509 U.S. at 589.

To do so, the Court

must ascertain whether the expert is qualified, whether his or
her

methodology

testimony

will

is

scientifically

“assist

the

trier

reliable,
of

fact

evidence or to determine a fact in issue.”

and
to

whether

the

understand

the

FED. R. EVID. 702; see

also, Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir.
2010).

Henriquez’s qualifications are not at issue here; the

reliability of his testimony is what Precor contests.

Even the

most “supremely qualified expert cannot waltz into the courtroom
and render opinions unless those opinions are based upon some
recognized scientific method and are reliable and relevant under
the test set forth by the Supreme Court in Daubert.”

Clark v.

Takata Corp., 192 F.3d 750, 759 n. 5 (7th Cir. 1999).
The reliability of Henriquez’s testimony depends on whether
the

reasoning

or

methodology

underlying

the

testimony

is

scientifically valid and whether that reasoning or methodology
properly can be applied to the facts in issue.
U.S. at 592-93.

Daubert, 509

Daubert sets forth the following non-exhaustive

factors for assessing the reliability of an expert opinion:

(1)

whether the theory has been or is capable of being tested; (2)
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whether

the

theory

has

been

subjected

to

peer

review

and

publication; (3) the theory’s known or potential rate of error;
and (4) the theory’s level of acceptance within the relevant
community.

Id. at 593–94.

Precor argues that, due to Henriquez’s failure to record or
disclose the physiological characteristics of the sole subject,
Mr.

Brown,

others

to

his

opinion

test

Henriquez’s

is

Henriquez’s

opinion

for

the

criticisms miss the mark.
opinion
products,

—

that

unreliable,

rely

theory.
lack

it

impossible

Precor

of

peer

also

review.

for

faults
These

Precor appears to confuse Henriquez’s

exercise

which

as

equipment

on

metal

like

handgrip

the

tested

sensors,

Precor
provide

inherently unreliable heart rate data — with his theory — that
motion artifact can disrupt the measurement of the electrical
currents

produced

by

the

miscalculated heart rate.

human

body

and

result

in

a

Indeed, Henriquez’s failure to note

Mr. Brown’s physiological characteristics makes it difficult to
repeat his testing and double check his resulting opinion, but
this flaw in his methodology does not prevent his theory from
being tested.

Similarly, although Henriquez’s opinion has not

been subjected to peer review and publication, his theory has
been the subject of numerous research papers and studies — many
of which both parties’ experts review and rely upon in forming
their opinions in this litigation.
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Precor’s

critiques

of

the

methodology

underlying

Henriquez’s opinion merit greater consideration.

See, Chapman

v. Maytag Corp., 297 F.3d 682, 688 (7th Cir. 2002) (“A very
significant Daubert factor is whether the proffered scientific
theory

has

been

subjected

to

the

scientific

method.”).

In

addition to the Daubert factors discussed previously, the 2000
Advisory Committee’s Notes to Rule 702 suggest other benchmarks
for

assessing

among

other

an

expert’s

things:

methodology

(1)

whether

and

the

opinion

testimony

including,
relates

to

matters “growing naturally and directly out of research they
have

conducted

“expressly

independent

for

purposes

of

of

the

litigation,”

testifying”;

(2)

or

developed

“[w]hether

the

expert has unjustifiably extrapolated from an accepted premise
to

an

unfounded

conclusion”;

(3)

“[w]hether

the

expert

has

adequately accounted for obvious alternative explanations”; and
(4) “[w]hether the expert is being as careful as he would be in
his

regular

consulting”.
amends.).

professional

work

outside

his

paid

litigation

FED. R. EVID. 702 Advisory Committee’s Note (2000

Henriquez’s opinion fails on each of these additional

factors.
First, Henriquez’s opinion did not grow naturally out of
research he had conducted independent of this litigation.
was

developed

for

the

certification motion.

express

purpose

of

Plaintiffs’

It

class

In fact, when asked in his deposition
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about some of the shortcomings of his methodology, Henriquez
stated that he did not do a broader test of his theory because
he had “[l]imited time to provide the information that was asked
of [him].”

Henriquez Depo. at 19-20.

Second, Henriquez’s opinion fails to bridge the analytical
gap

between

interfere

the

with

basic
the

principle

measurement

that
of

motion

the

artifact

electrical

may

currents

produced by the human body and result in a miscalculated heart
rate, and his conclusion that all exercise machines with metal
handgrip sensors provide inherently unreliable heart rate data.
He equates the existence of motion artifact, which is a welldocumented condition present during exercise, with uncompensated
motion

artifact,

equipment

is

which

unable

to

results
filter

when

the

motion

provide a reliable heart rate reading.
extrapolates

from

an

accepted

a

piece

of

artifact

exercise
noise

and

In doing so, Henriquez

premise

to

an

unsupported

conclusion and leaves the Court with many questions as to how he
got there.
Henriquez

(and

the

relevant

literature

he

relies

on)

acknowledges that a user’s size, anatomy, position of the heart,
body weight and composition, gender, and age, as well as the
amount and type of bodily movement involved in the exercise, can
all influence the presence of motion artifact and the accuracy
of heart rate readings.

Yet Henriquez conducted a test of a
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single person on one heart rate system on one type of exercise
machine

—

a

population

treadmill.

on

other

Without

heart

rate

any

testing

systems

or

of

other

a

larger

types

of

machines, Henriquez’s opinion as to the accuracy of the heart
rate monitors on all of Precor’s exercise machines across all
users is based on nothing more than speculation; this is not
sufficient.

See,

Daubert,

509

U.S.

at

590

(“[T]he

word

‘knowledge’ connotes more than subjective belief or unsupported
speculation.”).
Plaintiffs make much of the fact that Henriquez’s opinion
is

also

supported

literature

by

Henriquez

the

claims

relevant
to

rely

literature.
upon

is

But

the

inconclusive

in

regard to the accuracy of the heart rate data gained through the
use

of

metal

handgrip

sensors

on

exercise

equipment.

The

literature does acknowledge the existence of motion artifact and
the effect it can have on heart rate readings during exercise,
but it also finds that Polar and Salutron heart rate systems
compensate for this interference and provide reliable heart rate
readings.
Mendoza

See,

Study

Kay

Study

(Salutron

(Polar

heart

heart

rate

rate

systems);

systems).

The

Lee

&

remaining

articles cited by Henriquez studied various chest straps rather
than handle Touch Sensors, heart rate systems not used by Precor
or

at

issue

generally,

in

and

this
how

case,

the

differing

existence
user

- 13 -

of

motion

physiology

artifact

affects

the

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 14 of 23 PageID #:2877

collection of heart rate data.
support

Henriquez’s

broad

Thus, none of the cited studies

opinion

that

all

of

the

Precor

products at issue provide inherently unreliable heart rate data
to

all

users.

Expert

testimony

relying

on

the

opinions

of

others should be rejected if the testifying expert’s opinion is
too speculative or the underlying basis is faulty.

Walker v.

Soo Line R. Co., 208 F.3d 581, 588 (7th Cir. 2000).
The

shortcomings

pertinent

in

reliability

light

factors

in
of

Henriquez’s
the

discussed

methodology

third

and

above.

fourth

By

his

own

are

also

additional
admission,

Henriquez does not believe a sample size of one is sufficient to
produce reliable results.

See, Am. Honda Motor Co., 600 F.3d at

818

size

(stating

sufficient”).

“a

sample

of

one

is

rarely,

if

ever,

Thus, the fact that he utilized such a small

sample size suggests that he was not as careful in conducting
his study for this litigation as he would be in his regular
professional research.

See, id. (“The small sample size also

highlights the constraints litigation placed upon [the expert’s]
methods

and

professional

judgment;

[he

thorough as he might otherwise be. . . .”).

was]

not

being

as

By failing to test

more than one subject and failing to record the physiological
details of Mr. Brown, Henriquez also failed to account for the
alternative explanation that Mr. Brown may simply be an outlier,
or a person who, due to his physiology, is not representative of
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a statistical sample of subjects.

Similarly, by only testing

treadmills equipped with Alatech heart rate systems, Henriquez
failed to account for the possibility that his results may be
attributable only to that particular heart rate system or the
bodily movements associated with exercise on a treadmill.
“‘[S]haky’ expert testimony may be admissible, assailable
by

its

opponents

McCoy, 593

F.3d

through

610,

616

cross-examination,”

(7th

Cir.

2010),

proffered here is not merely shaky:

but

Gayton
the

v.

testimony

it is unreliable.

The

Daubert standard and Rule 702 are designed to ensure that, when
expert

witnesses

standards

of

professional

testify

in

intellectual
work.

court,

rigor

Chapman,

they

that

297

adhere

are

F.3d

to

demanded

at

688.

the
in

same
their

Henriquez’s

opinion simply does not satisfy this standard of reliability.
The Court therefore grants Defendant’s Motion to Strike.
B.
To

succeed

Motion for Class Certification
on

their

Motion

for

Class

Certification,

Plaintiffs must show that the putative classes satisfy all four
requirements

of

Federal

numerosity,

Rule

commonality,

of

Civil

typicality,

Procedure

and

23(a):

adequacy

of

representation, and any one of the conditions of Rule 23(b). FED.
R. CIV. P. 23; Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th
Cir.

2006).

Rule 23(b)(2),

Plaintiffs
which

states

request
that

- 15 -

a

certification
class

action

under
may

be

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 16 of 23 PageID #:2879

maintained if “the party opposing the class has acted or refused
to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is
appropriate

respecting

class

Plaintiffs

P. 23(b)(2).

the

as

also

a

whole.”

seek

FED. R. CIV.

certification

under

Rule 23(b)(3), which requires that common questions of law or
fact

predominate

members

and

over

that

the

questions
class

affecting

action

is

the

only
best

adjudicating the controversy fairly and efficiently.

individual
method

for

FED. R. CIV.

P. 23(b); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614
(1997).
Plaintiffs contend that Precor committed consumer fraud and
breached

its

marketing
Precor

the

written
Touch

machines

at

warranties
Sensors
issue

“inherently defective.”

as

by
a

premium

despite

from

common

and

feature

knowing

that

misleadingly
on

the

they

20

were

Thus, they contend that the central

questions at issue here are whether:
suffer

falsely

design

defects;

(1) the Precor machines
(2)

Precor

falsely

and

misleadingly markets its Touch Sensor feature with knowledge of
these defects; and (3) Precor committed consumer fraud and/or
breached its written warranties by selling defective products.
The Court agrees that these three questions are central to the
case and common to all members of the putative classes.
Court

does

not

agree

that
- 16 -

these

common

But the
questions

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 17 of 23 PageID #:2880

predominate over
classes.

issues

that

vary

among

the

members

of

the

See, FED. R. CIV. P. 23(b)(3).

The predominance inquiry under Rule 23(b)(3) “‘trains on
the legal or factual questions that qualify each class member’s
case

as

a

genuine

controversy,’

with

the

purpose

being

to

determine whether a proposed class is ‘sufficiently cohesive to
warrant adjudication by representation.’”

Messner v. Northshore

Univ. HealthSystem, 669 F.3d 802, 814 (7th Cir. 2012) (quoting
Amchem

Prods.,

Predominance

Inc.

is

v.

Windsor,

similar

to

521

Rule

U.S.

591,

23(a)’s

623

(1997)).

typicality

and

commonality requirements, but “the predominance criterion is far
more demanding.”
Generally,
questions

Id. (internal quotation marks omitted).
predominance

represent

a

is

significant

satisfied
aspect

when

of

[a]

“‘common
case

and

. . . can be resolved for all members of [a] class in a single
adjudication.’”

Id. (quoting 7AA Wright and Miller, Federal

Practice & Procedure § 1778 (3d ed. 2011)).
“common

questions

can

predominate

if

a

In other words,

common

nucleus

of

operative facts and issues underlies the claims brought by the
proposed class.”
presence

of

some

Id. (internal quotation marks omitted).
individual

questions

is

not

fatal,

The
but

individual questions cannot predominate over the common ones.
Id.

To determine if a question is common, Plaintiffs’ must

demonstrate that the elements of their claims are capable of
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Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 18 of 23 PageID #:2881

proof at trial “through evidence that is common to the class
rather than individual to its members.”

Id. at 818 (citation

omitted); accord, Costello v. BeavEx, Inc., 810 F.3d 1045, 1060
(7th

Cir.

2016)

(“Plaintiffs

have

demonstrated

that

common

questions predominate by making out a prima facie claim under
the IWPCA based on evidence common to the class.”).
Plaintiffs cannot meet this burden on the issue of whether
Precor machines suffer from common design defects.

Relying on

Henriquez’s opinion, Plaintiffs make the leap from the existence
of motion artifact to the conclusion that all of the 20 Precor
machines are defective because the Touch Sensors are unable to
compensate for this condition and provide a reliable heart rate
reading.

But

this

allegation

is

expert opinion upon which it rests.
be

made

for

adjudication,

all

members

but

of

rather

the

would

as

unsubstantiated

as

the

Such a determination cannot
putative

require

class

in

a

individualized

single
inquiry

into each user, each type of machine and each heart rate system
at issue.
The flaws in Plaintiffs’ stance are further amplified when
the

Court

Without
testimony

removes

it,
of

Henriquez’s

Plaintiffs
Steven

are

Bayer

opinion

left

and

an

with

from

the

only

affidavit

of

the

discussion.
deposition

Gary

Mednick,

which in no way support the broad-reaching conclusions urged by
Plaintiffs as to all types of users across all types of Precor
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Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 19 of 23 PageID #:2882

machines.

The other evidence Plaintiffs offer is of no help to

them either, as it is relevant only to prove the existence of a
warranty, Precor’s knowledge of issues with the Touch Sensors,
and damages.
The opinion of defense expert Garrett is the only other
evidence
Touch

in

the

Sensors

opines

that

record

pertaining

the

Precor

on
the

20

Touch

Sensors

to

the

machines
all

reliability
at

perform

issue.
as

of

the

Garrett

required

for

exercise heart rate monitors and are consistent with clinical
ECG performance.

Garrett acknowledges that the rate of accuracy

varies based on factors including the user’s physiology, the
system

being

tested,

the

type

and

intensity

of

the

exercise

performed, and the heart rate system included in the machine.
Indeed, he even admits the Touch Sensors may not work at all for
some users.

But such unpredictability is exactly the reason why

certification of the proposed classes is inappropriate.
If

the

Touch

unreliability
error?

Sensors

attributable

are,
to

in

a

fact,

defect,

unreliable,
or

simply

is
to

that
human

Or is the unreliability due to some external factor,

like the user’s age?
cardio-physiology?
their hands?

Or their body mass?

Or weight?

Or their

Or the thickness or dryness of the skin on

Or their average rate of exercise?

And if the

product proves to be defective, is that defect present only on a
certain

type

of

machine

(treadmill,
- 19 -

elliptical,

AMT,

or

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 20 of 23 PageID #:2883

stationary bike)?

Or is it attributable to a specific heart

rate system (Alatech, Salutron, or Polar)?
the

common

issue

of

whether

the

These questions make

Precor

Touch

Sensors

are

defective incapable of being proven at trial “through evidence
that

is

common

members.”

to

the

class

rather

than

individual

to

its

The Court cannot even begin to contemplate the number

and makeup of the subclasses and sub-subclasses that would be
necessary

to

facilitate

disposition

of

the

proposed

classes’

re

Bridgestone/Firestone,

claims.
This

case

is

analogous

to

In

Inc., 288 F.3d 1012, 1015 (7th Cir. 2002), in which the Seventh
Circuit

reversed

nationwide
against

the

classes

the

district

in

a

manufacturers

tires used on SUVs.

court’s

order

products

liability

of

utility

sport

certifying
action

vehicles

two

brought
and

the

Plaintiffs alleged that the tires had an

abnormally high failure rate and were designed or manufactured
defectively.

Id.

The court found that differences in the use

of the SUVs, attributes of the various tire designs, treatment
of the tires by the users, and other external factors (like
differing
products.

climates)

all

Id. at 1019.

affected

the

failure

rate

of

the

These variables precluded the court

from finding “that the questions of law or fact common to the
members of the class predominate over any questions affecting
only individual members, and that a class action is superior to
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Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 21 of 23 PageID #:2884

other available methods for the fair and efficient adjudication
of the controversy.”

Id. (citing FED. R. CIV. P. 23(b)(3)).

The nature of Plaintiffs’ claims also prevents the Court
from finding Rule 23(b)(3) satisfied.

Specifically, Plaintiffs

seek to certify a multi-state class to pursue violations of the
consumer fraud laws of 10 states and a nationwide class action
under the Magnuson-Moss Warranty Act.

“A nationwide class in

what is fundamentally a breach-of-warranty action, coupled with
a claim of fraud, poses serious problems about choice of law,
the manageability of the suit, and thus the propriety of class
certification.”

Szabo v. Bridgeport Machines, Inc., 249 F.3d

672, 674 (7th Cir. 2001); see also, In re Rhone–Poulenc Rorer
Inc., 51 F.3d 1293 (7th Cir. 1995).

The Seventh Circuit has

made clear that multi-state fraud and warranty class actions are
not appropriate, especially in the context of multiple products
because

such

actions

require

the

materially different state laws.
Liab.

Litig.,

654

F.3d

Bridgestone/Firestone,
decentralized
juries,

and

process
different

748,
288

of

application

of

numerous,

See, In Re Aqua Dots Prod.
752

(7th
at

F.3d

multiple

standards

Cir.
1020

trials,
of

2011);

(“[O]nly

involving

liability,

In

in

Re
‘a

different
different

jurisdictions’ will yield the information needed for accurate
evaluation of mass tort claims.” (internal citation omitted)).

- 21 -

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 22 of 23 PageID #:2885

Nor

may

Plaintiffs’

Rule 23(b)(2).
the

proposed

classes

be

certified

under

Rule 23(b)(2) was “not intended to apply where

appropriate

final

relief

predominantly to money damages.”

relates

exclusively

or

Rota v. Bhd. of Ry., Airline &

S.S. Clerks, 64 F.R.D. 699, 707 (N.D. Ill. 1974).

Although

Plaintiffs invoke various legal theories, they have only one
cognizable injury — the alleged over-payment for their Precor
machines due to the “premium” yet defective Touch Sensor feature
— and prospective injunctive relief is not a proper remedy for
that kind of injury.

This is simply an action for damages, not

the dual remedies of an injunction plus damages.

See, Kartman

v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 888-89 (7th
Cir. 2011).
Moreover, Plaintiffs cannot satisfy the test for a remedy
in

equity.

An

injunction

requires

a

showing

that:

(1)

plaintiffs have suffered irreparable harm; (2) monetary damages
are inadequate to remedy the injury; (3) an equitable remedy is
warranted based on the balance of hardships between plaintiffs
and defendant; and (4) the public interest would be well served
by the injunction.
388, 391 (2006).

eBay Inc. v. MercExchange, L.L.C., 547 U.S.

If Plaintiffs were able to prove their claims,

monetary damages would adequately remedy any injury suffered by
an individual member or the class as a whole.
action

is

appropriate

only

under

- 22 -

Rule

This type of

23(b)(3);

because

Case: 1:14-cv-03624 Document #: 125 Filed: 06/10/16 Page 23 of 23 PageID #:2886

Plaintiffs have failed to satisfy the requirements under that
rule, the Court denies their Motion for Class Certification.
IV.

CONCLUSION

For the reasons stated herein, Defendant’s Motion to Strike
and

Exclude

Opinions

of

Plaintiffs’

Ph.D. [ECF No. 100] is granted.

Expert

Craig

Henriquez,

Plaintiffs’ Motion for Class

Certification [ECF No. 86] is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated:6/10/2016

- 23 -