Bledsoe et al v. FCA US LLC et al

Filing 262

OPINION and ORDER DENYING 203 Motion to Strike Declaration of Plaintiffs' Expert Smithers, DENYING 192 Motion to Strike Smithers' August 16. 2021 Report, and GRANTING IN PART AND DENYING IN PART 194 , 199 , and 219 Defendants' Three Other Daubert-Related Motions Regarding Plaintiffs' Experts Smithers and Stockton. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES BLEDSOE, et al.,
individually and on behalf of all
others similarly situated,

4:16-CV-14024-TGB-RSW

Plaintiffs,
vs.

FCA US LLC, a Delaware
corporation, and CUMMINS INC.,
an Indiana corporation,
Defendants.

ORDER DENYING MOTION TO
STRIKE DECLARATION OF
PLAINTIFFS’ EXPERT
SMITHERS (ECF NO. 203),
DENYING MOTION TO STRIKE
SMITHERS’ AUGUST 16, 2021
REPORT (ECF NO. 192), AND
DENYING IN PART AND
GRANTING IN PART
DEFENDANTS’ THREE OTHER
DAUBERT-RELATED
MOTIONS REGARDING
PLAINTIFFS’ EXPERTS
SMITHERS AND STOCKTON
(ECF NOS. 194, 199, 219)

This case is filed as a putative class action by Plaintiffs James
Bledsoe, Paul Chouffet, Michael Erben, James Forshaw, Marc Ganz,
Matt Langworthy, Jay Martin, Martin Rivas, Dawn Roberts, Alan
Strange, Marty Ward, and Martin Witberg (“Plaintiffs”) on behalf of a
nationwide class of consumers who purchased Dodge Ram 2500 and 3500
diesel trucks (“the Trucks”) manufactured and sold by Defendants FCA
US LLC (“FCA”) and Cummins Inc. (“Cummins”) between 2007 and 2012.
1

Plaintiffs allege that the Trucks they purchased emit nitrogen oxides
(“NOx”) at levels that exceed federal and state emissions standards as
well as the expectations of reasonable consumers. Plaintiffs allege that
they purchased their Trucks based on Defendants’ advertising that
touted the Trucks as more fuel efficient and environmentally friendly
than other diesel trucks. Plaintiffs allege that despite marketing the
Trucks as having “clean diesel engines,” Defendants knew the Trucks
discharged emissions at levels greater than what a reasonable consumer
would expect based on the alleged representations.
To prove their claims, Plaintiffs seek to offer the opinions of two
experts, Juston Smithers (“Smithers”) and Edward Stockton (“Stockton”).
In simplest terms, Smithers provides technical opinions on the Trucks’
components and operations that purportedly increased NOx emissions in
real-world settings. Smithers also concludes that Cummins misled
federal and state environmental regulators with its emissions
calculations to ensure that Defendants’ Trucks could obtain the
necessary regulatory certifications. Stockton is Plaintiffs’ damages
expert.

Stockton

provides

two

primary

damages

models—an

Overpayment model and an Excess Fuel Consumption model—to
quantify the alleged harm to putative class members in purchasing and
driving Trucks that emitted higher levels of NOx than advertised and, as
a result, consumed more fuel than buyers anticipated.

2

Defendants have filed five Motions seeking to exclude Smithers and
Stockton’s opinions. For the reasons that follow, this Court DENIES
Defendants’ Motion to Strike Juston Smithers’1 Declaration (ECF No.
203). The Court also DENIES Defendants’ Motion to Strike Smithers’
August 16, 2021 Report (ECF No. 192). The Court DENIES in part
Defendants’ three other Motions related to striking the declarations,
reports, and opinions of Smithers and Stockton (ECF Nos. 194, 199,
219). But with respect to Smithers and Stockton’s opinions as to defeat
devices only, the Court GRANTS in part Defendants’ three Motions
related to striking the declarations, reports, and opinions of Smithers
and Stockton (ECF Nos. 194, 199, 219), as they relate to defeat devices.
I.

BACKGROUND

Plaintiffs seek to bring a nationwide class action, with sub-classes
in all 50 states and the District of Columbia, alleging that Defendant
FCA’s 2007–2012 Dodge Ram 2500 and 3500 diesel trucks (the “Trucks”
or “vehicles”), equipped with 6.7-liter Turbo Diesel engines manufactured
by Defendant Cummins, emit NOx at levels that exceed federal and state
emissions standards as well as the expectations of reasonable consumers.
Plaintiffs allege that they purchased their Trucks based on
Defendants advertising the Trucks as more fuel efficient and

Contrary to some style guide sources, the Court modifies the possessive
form throughout for ease of reading. See U.S. Government Publishing
Office Style Manual 193 (2016).
1

3

environmentally friendly than other diesel trucks. Plaintiffs allege that
Defendants knew the Trucks discharged emissions at levels greater than
what a reasonable consumer would expect, but continued to market them
as using “clean diesel” technology. In Plaintiffs’ operative Third
Consolidated and Amended Class Action Complaint (“TCAC”), they
allege violations of the Racketeer Influenced and Corrupt Organizations
Act (“RICO Act”); the Magnuson Moss Warranty Act (“MMWA”); and
consumer protection, breach of contract, and fraudulent concealment
laws of 50 states as well as the District of Columbia. ECF No. 255.
Defendants previously moved to dismiss Plaintiffs’ Second
Consolidated and Amended Class Action Complaint (“SCAC”). ECF Nos.
67, 68. This Court granted Defendants’ motions on Plaintiffs’ MMWA
claim, but denied them for all other claims. ECF No. 97. Later, Defendant
FCA moved for judgment on the pleadings as to Plaintiffs Bledsoe, Erben,
Forshaw, Witberg, and Chouffet’s SCAC. ECF No. 171. This Court
granted FCA’s motion as to those five Plaintiffs, and with respect to FCA
alone. ECF No. 215. Plaintiffs Bledsoe, Erben, Forshaw, Witberg, and
Chouffet had been proposed as potential class representatives for state
law claims in California, Idaho, South Carolina, Michigan, and Texas.
ECF No. 238. Plaintiffs sought leave to amend their complaint to add
replacements for these five Plaintiffs to retain viable claims against FCA.
Id. The Court granted leave for Plaintiffs to do so against FCA only,
limited to adding new Plaintiffs advancing the same state law claims and
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theories of liability against FCA as those who were dismissed. ECF No.
249.
Plaintiffs then filed their TCAC for that purpose. As it stands now,
Plaintiffs, with the potential to serve as class representatives advancing
state law claims and theories of liability against Defendants, are
residents of the following states: California, Illinois, Michigan,
Minnesota, Montana, New Mexico, North Carolina, South Carolina,
Tennessee, Texas, and Washington. ECF No. 255.
Plaintiffs’ alleged injuries are supported by expert opinions and
reports from two experts, Smithers and Stockton. Smithers’ opinions
address two primary issues: (1) whether the Trucks contain “defeat
devices” and/or “excessive emissions devices,” causing NOx emissions
beyond regulatory standards in common real-world driving conditions;
and (2) whether the Trucks’ designs cause excessive fuel consumption.
Stockton’s opinions address two damages models: (1) an Overpayment
model, calculating the amount that putative class members overpaid for
the Trucks that emit excessive NOx at the point of sale; (2) and an Excess
Fuel Consumption model, calculating the increased costs passed along to
the consumer through the Trucks’ excessive fuel consumption. These two
damage models are premised on Plaintiffs’ ability to prove the existence
of “excessive emissions devices” and/or defeat devices as described by
Smithers.

5

Pending before the Court are five of Defendants’ Motions seeking to
strike all opinions of both Smithers and Stockton. These Motions have
been fully and extensively briefed by all parties. The Motions are:
1. Defendants’ Motion to Strike Plaintiffs’ Expert Juston Smithers’
August 16, 2021 Report and Opinions (ECF No. 192) submitted
in support of Plaintiffs’ Amended Motion for Class Certification
(ECF No. 183);
2. Defendants’ Motion to Strike Plaintiffs’ Expert Juston Smithers’
November 12, 2021 Declaration (ECF No. 203);
3. Defendants’ Motion to Strike Plaintiffs’ Expert Juston Smithers’
December 16, 2021 Merits Report and Opinions (ECF No. 219);
4. Defendants’ Motion to Strike and Exclude the August 16, 2021
Declarations and Opinions of Plaintiffs’ Expert Edward Stockton
(ECF No. 194) submitted in support of Plaintiffs’ Amended
Motion for Class Certification (ECF No. 183); and
5. Defendants’ Motion to Strike and Exclude the December 16,
2021 Merits Report and Opinions of Plaintiffs’ Expert Edward
Stockton (ECF No. 217).
Having carefully reviewed the briefing submitted by the parties on
these motions, this Court finds that a hearing is unnecessary. See E.D.
Mich. LR 7.1(f)(2). For the reasons set out in detail below, the Court
DENIES Defendants’ Motion to Strike the Declaration of Plaintiffs’
Expert Smithers (ECF No. 203), and DENIES Defendants’ Motion to
Strike Plaintiffs’ Expert Smithers’ August 16, 2021 Report and Opinions
(ECF No. 192). The Court DENIES IN PART and GRANTS IN PART
Defendants’ three other Daubert-related Motions regarding the opinions
6

and reports of Plaintiffs’ Experts Smithers and Stockton (ECF Nos. 194,
217, 219), for the reasons explained below.
II. LEGAL STANDARD
Federal Rule of Evidence 702 provides that:
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.
An expert’s qualifications are evaluated to ensure that “the facets
of the witness’ background [] make[] his knowledge ‘specialized,’ that is,
beyond the scope of the ordinary juror,” and “relevant to the opinion
sought.” Zuzula v. ABB Power T & D Co., 267 F. Supp. 2d 703, 713 (E.D.
Mich. 2003). The Court must also determine whether the expert’s
testimony “both rests on a reliable foundation and is relevant to the task
at hand.” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527
(6th Cir. 2012) (citation omitted). Though experts are given wide latitude
in offering their opinions, an opinion must have “a reliable basis in the
knowledge and experience of the discipline.” Jahn v. Equine Servs., PSC,
233 F.3d 382, 388 (6th Cir. 2000) (quoting Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 592 (1993)). An expert must apply “the same
7

level of intellectual rigor that characterizes the practice of an expert in
the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999).
Under Daubert, courts assess reliability by determining whether
the expert’s theory or technique: (1) can be or has been tested; (2) has
been subjected to peer review and publication; (3) has a known or
potential error rate; and (4) enjoys general acceptance in the relevant
scientific community. Daubert, 509 U.S. at 579. The touchstone of
admissibility under Rule 702 is reliability and relevance, not general
acceptance. Id. at 599.
The Daubert factors “do not constitute a ‘definitive checklist or test’”
and “specific factors neither necessarily nor exclusively appl[y] to all
experts or in every case.” Kumho Tire, 526 U.S. at 142, 150 (quoting
Daubert, 509 U.S. at 593). “[T]he test of reliability is ‘flexible.’” Id. at 141.
And “the law grants a district court the same broad latitude when it
decides how to determine reliability as it enjoys in respect to its ultimate
reliability determination.” Id. at 142; see also Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 295 (6th Cir. 2007). The crux of the
expert witness analysis is “whether a putative expert’s testimony would
be inadmissible junk science or instead would be testimony falling within
the ‘range where experts might reasonably differ.’” Thomas v. Novartis
Pharms. Corp., 443 F. App’x 58, 60 (6th Cir. 2011) (quoting Kumho Tire,
526 U.S. at 153).
8

To determine the testimony’s reliability, the court does not “determine
whether [the opinion] is correct, but rather [determines] whether it rests
upon a reliable foundation.” In re Scrap Metal Antitrust Litig., 527 F.3d 517,
529–30 (6th Cir. 2008). The trial court only determines the admissibility of
expert evidence, while the jury determines its weight. The court’s focus is
“solely on principles and methodology, not on the conclusions that they
generate.” Daubert, 509 U.S. at 595.
The “rejection of expert testimony is the exception rather than the
rule, and the trial court’s role as gatekeeper is not intended to serve as a
replacement for the adversary system.” Cason-Merenda v. Detroit Med.
Ctr., No. 06–15601, 2013 WL 1721651, at *5 (E.D. Mich. April 22, 2013)
(quoting In re Nw. Airlines Corp. Antitrust Litig., 197 F. Supp. 2d 908, 913
(E.D. Mich. 2002)). Disputes regarding implementing valid methodologies,
the appropriateness of an expert’s use and interpretation of data, or claims
of “weaknesses in the factual basis of an expert witness’ opinion . . . bear
on the weight of the evidence rather than on its admissibility.” McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000) (alteration in
original) (quoting United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th
Cir. 1993)).
Federal Rule of Evidence 703 governs the bases of an expert’s
opinion testimony:
An expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those
9

kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted. But if the
facts or data would otherwise be inadmissible, the proponent of
the opinion may disclose them to the jury only if their probative
value in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect.
Federal Rule of Evidence 703 allows an expert witness to testify to
an opinion that is supported by inadmissible hearsay evidence. United
States v. Scott, 716 F. App’x 477, 485 (6th Cir. 2017). Furthermore,
although an expert’s opinion is not admissible if it is speculative or mere
guesswork, a court should admit expert testimony if it has a reasonable
factual basis. See United States v. Ramer, 883 F.3d 659, 680 (6th Cir.
2018). In such a circumstance, “any remaining challenges merely go to
the weight, as opposed to the admissibility, of the expert testimony.” Id.
(citing In re Scrap Metal Antitrust Litig., 527 F.3d at 530).
III. DISCUSSION
A. PLAINTIFFS’ EXPERT JUSTON SMITHERS
i.

Smithers’ qualifications

Smithers is the Chief Technology Officer of 44 Energy Technologies
Incorporated, a company he co-founded approximately nine years ago.
Smithers August 16, 2021 Report, ECF No. 184-2 (sealed), PageID.21575.
He holds a Bachelor of Science degree in Chemical Engineering with an
emphasis in environmental technology from the University of California,
Berkeley. Id. Smithers has been consulted as an expert for diesel

10

emission control technology companies as well as for legal matters
related to emission control and powertrain technologies. Id.
Smithers has assisted clients with field testing and dynamometer
testing of diesel emission control technologies pursuant to California Air
Resources Board (“CARB”) Executive Orders and in-use compliance
requirements. Id. Smithers’ work has involved a high degree of
interaction with appropriate regulatory agencies including CARB and
the U.S. Environmental Protection Agency (“EPA”). Id. Smithers also has
extensive experience in vehicle testing using portable emission
measurement systems (“PEMS”) and chassis dynamometers. Id.
Smithers has published peer reviewed papers in the Journal of the
American Chemical Society and the Journal of Organic Chemistry. Id. He
is also a co-inventor of four U.S. patents relating to diesel emission
controls and advanced biofuels processing technology. Id. Smithers
further details his other relevant experience in his CV submitted to the
Court as part of his reports. Id. at PageID.21661–63.
Defendants do not challenge Smithers’ qualifications to provide
opinions on the matters addressed in his reports. The Court finds that
Smithers is qualified through his education, experience, and training to
provide the opinions in his reports. See Counts v. Gen. Motors, LLC, No.
1:16-cv-12541, 2022 WL 2078023, at *6–8 (E.D. Mich. June 9, 2022)
(qualifying Smithers as expert to opine on similar subject matters, and
finding that his testimony would aid the jury in understanding an
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otherwise opaque subject). Smithers’ August 16, 2021 report was
submitted in support of class certification. ECF No. 184-2. That report
was later supplemented by his November 12, 2021 declaration. ECF No.
199-5. Smithers then issued a merits report on December 16, 2021. ECF
No. 221-10. This opinion will address both of Smithers’ reports and his
declaration.
ii.

Smithers’ August 16, 2021 Class Certification Report

In his first report, Smithers explains that EPA and CARB2 regulate
toxic air pollutants for all on-road vehicles sold in the United States,
including the 2007 to 2012 Dodge Ram 2500 and 3500 diesel vehicles at
issue here. ECF No. 184-2, PageID.21576. To quantify and regulate
emissions for harmful pollutants like NOx, vehicle manufacturers are
required to test their emissions on a variety of regulatory test cycles
using a stationary treadmill called a chassis dynamometer. Id. Because
it is not possible or practical to anticipate and regulate all possible
driving conditions and driving styles, regulators have adopted test cycles
that are intended to represent typical real-world conditions. Id.
The Ram 2500 and 3500 Trucks share a functionally identical
engine and diesel aftertreatment system. Id. at PageID.21591. Indeed,
the Trucks differ only in the weight class to which they are certified. Id.
The emission standards in 2007 for Class 2b and Class 3 trucks (the
classes applicable to the Ram 2500 and 3500 diesel trucks, respectively),
2

EPA and CARB are also collectively referred to as “the regulators.”
12

were less stringent than the next set of standards that took effect in 2010.
Id. Rather than producing an engine to meet the then-current 2007
standards, Defendants sought to certify the new Ram 2500 and 3500
engine under the more challenging 2010 EPA emissions standard, three
years ahead of the necessary timeline. Id.
Smithers’ report explains in detail the basis for his opinion that the
Trucks are equipped with what he calls “Excessive Emissions Devices”
(“EEDs”). Id. at PageID.21577. Smithers uses this term as shorthand for
software controls that cause NOx emissions to exceed regulatory test
limits. Id. Smithers identifies four areas where these EEDs exist on the
Trucks: (1) excessive active regeneration; (2) ambient temperature; (3)
higher power/load conditions; and (4) cold and hot starts. Id. at
PageID.21577–78.
To set the context for discussing Defendants’ critiques of Smithers’
August 16, 2021 report and Plaintiffs’ responses, the Court will
summarize some key elements of that report.
1. Excessive Active Regeneration as an EED
Smithers’ report identifies the excessive active regeneration that
takes place in the Trucks as an EED. Smithers explains that all modern
diesel vehicles, including the Trucks, are equipped with an emission
control device called a diesel particulate filter (“DPF”) to control
emissions of particulate matter (soot). Id. at PageID.21577. These DPFs
must undergo a periodic change in engine conditions, called an active
13

regeneration, to clean and remove the accumulated particulate matter.
Id.
In addition to consuming significant quantities of fuel, active
regenerations cause higher NOx emissions. Id. Because these active
regeneration events are not captured accurately on a single emissions
test cycle, regulators have developed a concept called Upward
Adjustment Factors (“UAFs”), to account for the increases in NOx
emissions caused by active regeneration. Id. In other words, because
active regeneration impacts emissions, its effect must be quantified and
factored into the regulatory certification of a vehicle’s emissions. Id. at
PageID.21615. Active regeneration is factored into emissions values as
an Infrequent Regeneration Adjustment Factor (“IRAF”). Id. IRAFs that
increase emissions are referred to as UAFs. Id. Therefore, regulators
require calculating the impact of active regeneration on overall NOx
emissions by adding UAFs onto a base NOx measurement for vehicle
emissions certification. Id.
In practice, the UAF for active regeneration accounts for the
fraction of miles traveled while the vehicle is actively regenerating, as
well as the magnitude of the NOx emissions during active regeneration.
Id. The more often a vehicle must actively regenerate, the higher the
determined UAF value will become, increasing the overall NOx emissions
to an extent that may exceed emissions standards. Id. This could then
cause a vehicle to fail to achieve certification by the regulators. Id.
14

After extensive testing, Smithers found that for both city and
highway driving, the Trucks’ actual UAF and the actual impact on NOx
emissions in real-world operation are significantly higher than the values
reported for the Trucks in Defendants’ certification applications to the
regulators. Id. at PageID.21577. Smithers then opines that the NOx
values provided for certification are a gross misrepresentation of real
NOx emissions during normal and expected vehicle operation. Id. at
PageID.21622.
Smithers also opines that this excessive regeneration activity
consumes additional fuel, causing an average net decrease in fuel
economy of 4.1% and 3.7% for city and highway driving, respectively. Id.
at PageID.21577, PageID.21622–23. Smithers explains that these results
are consistent and repeatable for all five diesel vehicles he tested,
meaning the results are representative of all relevant versions of the
Trucks. Id. at PageID.21577. Smithers finds that the UAF values
Defendants submitted for certification purposes do not account for this
excessive fuel consumption. Id. at PageID.21624. As a result, Smithers
opines that consumers would not expect these fuel economy losses,
making excess fuel consumption a hidden cost of operating the Trucks.
Id.

15

2. Ambient
Temperature,
Higher
Power/Load
Conditions, and Start Temperature as Other EEDs
Smithers also details results from his testing to identify ambient
temperature, higher power/load conditions, and start temperature as
other EEDs. Smithers found that the certification testing for the Trucks
was performed at the prescribed temperature window. Id. at
PageID.21577. But when the Trucks were operated at temperatures
outside of that window, the NOx emissions increased. Id.
Smithers found that greater power demand on the engine (for
example, traveling up road grades or towing a heavy load) causes
excessive NOx emissions. Id. at PageID.21578. Although the Trucks are
designed to tow loads up to 22,000 lbs., certification testing is performed
at relatively low weights ranging from 8,500 to 10,500 lbs. Id. When the
engines are operated at higher loads not encountered on the certification
tests, NOx emissions increase significantly. Id. Therefore, higher
emissions from greater power demands are not captured by regulatory
testing. Id.
Smithers also explains that emissions are generally higher when a
vehicle is started from a completely cold state (a “cold start”). Id. The
emission control components that reduce NOx emissions function most
effectively when the engine is fully warmed. Id. On the other hand,
starting a vehicle in a partially warmed up state (a “hot start,” such as
when the engine has been off for 10 minutes and is restarted) can also
16

result in increased emissions, though to a lesser extent than under cold
start conditions. Id. In his testing, Smithers found that the test vehicles
have cold and hot start emissions at significantly higher levels than the
cold and hot start emissions measured on the certification test cycles. Id.
Taken in combination, Smithers opines that these various EEDs
result in real-world NOx emissions that diverge significantly from the
certification application values of the Trucks and the relevant standards,
such that those values are not representative of expected real-world
emissions. Id.
3. Diesel Aftertreatment Configurations
Smithers’ report explains that generally, most original equipment
manufacturers (“OEMs”) use one of two different diesel aftertreatment
configurations. Id. at PageID.21591. The first configuration places the
key aftertreatment components in the following order:
1. Diesel Oxidation Catalyst 2.Diesel Particulate Filter
(“DPF”) 3.NOx Reduction Catalyst (through either
Selective Catalytic Reduction (“SCR”) or a NOx Adsorber)
Id. This first configuration intentionally positions the DPF where it will
be exposed to the highest possible levels of NOx. Id. This configuration
also provides more favorable conditions of higher temperatures and
higher NOx levels to promote passive (as opposed to active) regeneration
of the DPF. Id. The higher the NOx concentration, the better the DPF

17

can remove particulate matter without the need for high NOx-emitting
and fuel-consuming active regenerations. Id. at PageID.21591–92.
Defendants chose a different configuration for the 6.7-liter engine
in the Ram 2500 and 3500 Trucks. Id. at PageID.21592. For the Trucks,
the key components are in the following order:
1. Diesel Oxidation Catalyst 2.NOx Reduction Catalyst
(NOx Adsorber)  3. Diesel Particulate Filter (“DPF”)
Id.
Smithers opines that Defendants designed their emissions control
system to place its NOx Reduction Catalyst—specifically in the form of a
NOx Adsorber—ahead of the DPF. For emissions testing purposes,
Smithers explains that this design has two main benefits. First, for cold
start tests, placing the NOx Adsorber before the DPF allows the NOx
Adsorber to heat up to the optimal temperature for removing NOx
emissions faster. If the DPF is placed “upstream of the NOx adsorber” in
the usual design, the DPF “soak[s] up heat during the start of the test[,]
thus delaying the time for the NOx catalyst to heat up.” Id. But the hotter
the NOx adsorber is, the more effectively it can treat NOx emissions at
the start of the test cycle. Id. Second, Defendants’ choice to use a NOx
Adsorber as its NOx Reduction Catalyst (rather than an SCR) would
allow the Trucks to more frequently remove NOx to produce lower NOx
emissions under testing conditions. Id. at PageID.21593. But overall,
Defendants’ design requires heavy reliance on an excessively frequent
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active regeneration strategy, leading to very high NOx emissions and
greater impact on fuel economy in real-world operation. Id.
4.

Smithers’ testing processes and findings

Smithers and his staff selected and purchased six test vehicles: five
diesel vehicles to span the entire range of Trucks and one gasoline vehicle
as a basis for comparison. Id. at PageID.21594. Of the five diesel trucks
tested, four were 2500 Ram trucks certified to the federal and California
standards, and one was a 3500 Ram truck certified to the federal and
California standards. Id. Smithers also tested and obtained data from
three of Plaintiffs’ Trucks. Id. at PageID.21625.
Smithers opines that all model year 2007–2012 Trucks are expected
to perform similarly because there are no major differences in engine or
aftertreatment configuration. Id. at PageID.21600. Smithers notes,
however, that minor software or hardware changes may be present in the
model year groups. Id. Based upon Smithers’ testing and data analyses,
he opines that the resulting emissions from all vehicles are consistent
and not dependent on model year, and that the vehicles tested are
representative of the Truck models and years for the putative class. Id.
Smithers’ report is indisputably detailed in describing his testing
processes and findings. The report covers a comprehensive range of topics
including: engine and emissions control system design and function;
active and passive regeneration, and selective catalytic reduction;
emissions test cycles; Defendants’ emission strategy for the Trucks,
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including the revised aftertreatment configuration described above, and
an effort to obtain NOx credits for meeting new emissions standards
before they went into effect in 2010; an overview of test vehicles,
dynamometer, Portable Emissions Measurement System (“PEMS”)
testing—a “portable laboratory system” that can test chemical emissions
during on-road driving—and Plaintiffs’ vehicle testing and results; EEDs
relating to active regeneration, ambient, low, and high temperatures,
road grades and during trailer towing, and cold and hot starts; flat road
analysis; NOx adsorber catalyst strategies; UAF comparisons; Auxiliary
Emission Control Devices (“AECDs”)—design features that regulate
emissions-related vehicle systems; and fuel economy impact. The report’s
findings on testing are also supported by data in numerous appendices,
figures, and tables.
Smithers ultimately concludes that NOx emissions from the Ram
2500 and 3500 Trucks diverge significantly from the dynamometer test
results and representations made in the applications for certification
submitted to the regulators. Id. at PageID.21659. In the case of active
regeneration, Smithers’ finds a complete lack of connection between the
Upward Adjustment Factors (“UAFs”) for NOx submitted in Cummins’
certification materials and the actual UAFs encountered in real-world
operation. Id. As a result, he opines that real on-road NOx emissions
greatly exceed the relevant certification standards. Id. Furthermore, the

20

Trucks’ excessive active regeneration has the additional effect of excess
fuel consumption. Id.
In this August 16, 2021 report, Smithers does not opine that any of
the EEDs he describes are “defeat devices” under the Code of Federal
Regulations (“CFR”). Id. Defeat devices are later explained in Smithers’
merits report described below.
iii.

Smithers’ November 12, 2021 Declaration

Plaintiffs submitted a declaration from Smithers dated November
12, 2021, as part of their Response (ECF No. 199-5) to Defendants’ Motion
to Strike Smithers’ class certification report (ECF No. 192). In this
declaration, Smithers responds to Defendants’ critiques of his August 16,
2021 report raised in their Motion to Strike and at his deposition.
Smithers generally explains that to produce the results presented
in his first report, he relied upon a large quantity of data gathered by
testing vehicles over a wide variety of conditions and a large quantity of
mileages. Smithers Declaration (Nov. 12, 2021), ECF No. 199-5,
PageID.25195. Smithers describes that his testing involved many
individual test segments that were aggregated into longer distances and
further analyzed. Id. at PageID.25195–96. The declaration also compiles
this testing data into summary tables.
The declaration further reviews Smithers’ discussion of Auxiliary
Emission Control Devices (“AECDs”) and differences between model
years. Federal regulations define AECDs as “any element of design which
21

senses temperature, vehicle speed, engine RPM, transmission gear,
manifold vacuum, or any other parameter for the purpose of activating,
modulating, delaying, or deactivating the operation of any part of the
emission control system.” 40 C.F.R. § 86.1803-01. The EPA requires
manufacturers to disclose all AECDs included in the vehicle as part of
their emissions certification materials. 40 C.F.R § 86.1844-01.
Smithers explains that while Defendants provided redacted and
then unredacted AECD disclosure data, Smithers concluded that the
initial redacted AECD disclosures were sufficient for his analyses.
Although he later got access to unredacted AECD data, Smithers found
that the unredacted data did not help in identifying differences in
emissions control system behavior or in emissions control strategy
between model years and model types. ECF No. 199-5, PageID.25197–98.
The declaration also discusses the PEMS testing results from Smithers’
first report, which helped Smithers confirm that the AECDs in each
model year are substantially similar. Id. at PageID.25198–99.
Smithers’ declaration further addresses Defendants’ critiques of
Smithers’ first report concerning: comparison of certification and in-use
standards; testing of just a single Ram 3500 model Truck, the amount of
empirical data used for the Ram 3500 model based upon the Ram 2500
model, and conclusions on the similarity of emission trends and behaviors
between the two different models; and the use of the term EED as a catch-

22

all and shorthand phrase describing the phenomena that Smithers
observed. Id. at PageID.25199–04
Defendants’ chief complaint is that months after the expert
disclosure deadline, Plaintiffs used their response to Defendants’ motion
to strike Smithers’ first report to supplement that report through the
declaration in an untimely manner. Defendants’ Memorandum in
Support of Motion to Strike Smithers’ Declaration, ECF No. 203, Page
ID.25296–97. Specifically, the Smithers declaration was submitted
almost three months after his first report was due, five weeks after
Smithers was deposed, and four weeks after Plaintiffs answered written
discovery related to Smithers. Id. at PageID.25295. As a result,
Defendants seek to strike Smithers’ declaration.
Defendants argue that a party’s expert witness disclosures must be
accompanied by a written report containing “a complete statement of all
opinions the witness will express and the basis and reasons for them,”
and “the facts or data considered by the witness in forming them.” Fed.
R. Civ. P. 26(a)(2)(A–B). An expert report must be made “at the times and
in the sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). If a
report is not submitted in the sequence directed by the court, the court
has discretion to accept and review the report or to reject it as untimely.
Fed. R. Civ. P. 16; Estes v. King’s Daughters Med. Ctr., 59 F. App’x 749,
753 (6th Cir. 2003). Defendants argue that Smithers’ declaration should
be stricken because it is untimely, no new circumstances justify it, and
23

the declaration does not fix any of the first report’s substantive flaws that
Defendants identified.
But considering the overall context of this case, the Court is
unpersuaded to exercise its discretion to strike Smithers’ declaration.
Since Defendants’ motion to strike the declaration was filed, Smithers
has timely issued a merits report, which builds upon and supplements
both his first report and the declaration. Defendants’ counter-expert
(Ryan Harrington) has also issued a subsequent report to address
Smithers’ opinions. Smithers has been deposed again, after Defendants
filed their motion to strike Smithers’ declaration and after Smithers’
merits report was submitted. See Exh. 3, Smithers Dep. Transcript (Feb.
10, 2022), ECF No. 222-8. As a result, Defendants have had the
opportunity to raise any further critiques and examine Smithers
concerning his declaration.
Furthermore, experts may submit supplemental declarations to
clarify their opinions for the benefit of the Court. See In re Iron Workers
Local 25 Pension Fund, No. 04-CV-40243, 2011 WL 1256657, at *7 (E.D.
Mich. Mar. 31, 2011) (denying motion to strike supplemental declaration
when it clarified the expert’s opinion without contradicting his original
opinion); see also Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908
(6th Cir. 2006) (summarizing that experts are permitted to supplement
the record with affidavits, provided that they do not directly contradict
prior testimony).
24

Here, Smithers’ declaration is at most a clarification of matters
contained in his first report and deposition. Contrary to Defendants’
argument, the declaration does not contradict Smithers’ prior testimony.
Nor does Smithers’ declaration present any actual or apparent prejudice
to Defendants. See Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439,
1446 (6th Cir. 1993) (concluding that although an expert affidavit was
filed 34 days late, the court could still consider it in ruling on the merits);
cf. Estes, 59 F. App’x at 752 (striking late expert affidavit because no
disclosure was made by the deadline, and the affidavit provided nine
months late would cause prejudice); Counts v. Gen. Motors LLC, No. 16CV-12541, 2020 WL 6937937, at *13 (E.D. Mich. Nov. 25, 2020) (striking
an expert’s supplemental disclosures made after submission of expert
reports, including the purchase and testing of two new vehicles, because
“doubling the amount of data and tripling the number of diesel testing
vehicles” was not merely “supplementary”); Am. Nat’l Prop. & Cas. Co. v.
Stutte, No. 11-CV-219, 2015 WL 2095868, at *3 (E.D. Tenn. May 5, 2015)
(striking late expert testimony where expert’s additional testimony was
not a supplement, but rather an untimely “brand new opinion”).
Finally, Smithers’ entire declaration relates to his first report. The
declaration summarizes findings from Smithers’ class certification report
and brings nothing materially new to his opinions. Nor does the
declaration contradict that report or his deposition testimony on the
report. Smithers does not provide any new tests, data, or conclusions in
25

the declaration. Smithers’ first report gave Defendants’ sufficient notice
of all topics addressed in the declaration. Therefore, Defendants’ motion
to strike Smithers’ declaration is DENIED.
iv.

Smithers’ December 16, 2021 Merits Report

In Smithers’ December 16, 2021 Merits Report, Smithers opines
that the active regeneration EED identified in his first report is a defeat
device. Smithers’ Merits Report (Dec. 16, 2021), ECF No. 221-10,
PageID.28900.
Federal regulations define “defeat device” as “an auxiliary emission
control device (AECD) that reduces the effectiveness of the emission
control system under conditions which may reasonably be expected to be
encountered in normal vehicle operation and use.” 40 C.F.R. § 86.180301. There are two relevant exceptions to this definition: (1) “the need for
the AECD is justified in terms of protecting the vehicle against damage
or accident” or (2) “such conditions are substantially included in the
Federal emission test procedure.” Id.; see also ECF No. 221-10,
PageID.28901.
Smithers opines that the UAFs (the values that account for the
NOx-increasing effect of active regeneration) that Cummins presented to
regulators in its certification applications grossly underrepresent the
Trucks’ real-world emissions. ECF No. 221-10, PageID.28900–01.
Smithers reiterates that active regeneration occurs to remove soot or
particulate matter (“PM”) buildup from the vehicle’s diesel particulate
26

filter (“DPF”) as the DPF continuously traps PM emissions during vehicle
operation. Id. at PageID.289001. The active regeneration process
requires additional diesel fuel injection to raise exhaust temperatures
high enough to remove the captured PM. Id. This process, which lasts
roughly 10-20 minutes, also results in extremely high NOx emissions,
often 4 to 10 times higher than non-regeneration emissions. Id.
Because of active regeneration’s NOx-increasing side effect,
Smithers argues that vehicles should be designed to minimize the
frequency at which active regeneration occurs. Id. Smithers concludes
that Cummins, the Trucks’ engine manufacturer and designer, did not do
so. Id. As a result, the Trucks actively regenerate at high frequencies
under virtually all scenarios tested, causing the Trucks’ emissions to
exceed regulatory standards. Id. Smithers further opines that because
exceeding emissions standards due to frequent active regeneration was
not disclosed to regulators, Defendants’ DPF regeneration qualifies as a
defeat device. Id.
As to the other EEDs covered in Smithers’ first expert report
(ambient

temperature,

temperatures),

Smithers

high

road

concludes

grades/towing,
that

Cummins’

and

start

technical

justifications for the behavior Smithers observed in real-world testing are
mostly lacking in engineering rigor. Id. While there are plausible
engineering justifications for the other observed EEDs, Smithers finds

27

little to no evidence that Defendants studied those justifications and
theories in practice. Id.
Smithers concludes that Cummins falls short in explaining why
these other EEDs are necessary, but Smithers does not find any of them
to constitute a defeat device. Id. Although Smithers ultimately concludes
that the Trucks’ system design as a whole is problematic, and that using
a NOx adsorber catalyst for this class of vehicles is inappropriate, he
lacked sufficient evidence to conclude that Cummins fundamentally
misled regulators about the nature of the other EEDs. Id. Smithers does
reiterate, however, that the Trucks’ emissions are far in excess of the
allowable standards across a variety of real-world driving conditions; and
in general, the Trucks’ design allows them to operate with low nonregeneration NOx emissions only under a narrow set of conditions. Id.
As for Cummins’ AECD disclosures and the applicability of the
federal regulation exceptions for a defeat device, Smithers concludes that
Cummins’ design does not fall under either exception. Cummins’ AECD
disclosures to the regulators demonstrate that DPF regeneration can
occur in a wide range of conditions, including normal vehicle operation.
Id. Smithers opines, however, that the need for the AECD cannot be
justified in terms of protecting the vehicle against damage or accident.
Id. at PageID.28902. Smithers agrees with Cummins that failure to
perform DPF regeneration when necessary can clog the filter, leading to
impaired engine performance or engine shutdown. Id. But Smithers
28

points to EPA guidance clarifying that “engine protection would not
justify an AECD if the need for engine protection is the result of
inadequate design of the engine, when viewed in comparison to currently
available technology.” Id. (citation omitted). Smithers opines that
Cummins produced an inadequate engine design that required excessive
active regeneration, which produced levels of NOx far above the relevant
emissions standards. Id.
More specifically, Smithers explains that the excessive active
regeneration, and resulting excessive NOx emissions, is largely due to
Cummins’ choice to use a NOx adsorber catalyst (“NAC”) as the NOx
aftertreatment system for the Trucks. Id. This technology was not
required for the 2007–2009 model years in which it was used, but
Cummins deployed it voluntarily in part to generate valuable NOx
credits. Id. Smithers opines that Cummins cannot validly argue that it
was limited by current technology because it attempted to go above and
beyond what then-existing regulations required (though, according to
Smithers, it ultimately failed by designing a system that produced
excessive emissions). Id.
Smithers also concludes that the Trucks were not at risk of damage
or accident even if Cummins had instead chosen to comply with the less
stringent, then-existing 2007 regulations. Id. And by the 2010–2012
model years, Cummins could have discontinued using NAC technology,
instead opting for the fully available selective catalytic reduction (“SCR”)
29

technology for its aftertreatment system in these later models. Smithers
explains that SCR technology requires significantly less active
regeneration than the NAC system and was readily available by 2010.
Id. at PageID.28903, PageID.28923. Smithers concludes that because
Cummins’ design was not limited by current technology in the 2010-2012
timeframe, its active regeneration algorithm does not meet the defeat
device exception requirements for engine and vehicle protection. Id.
As for the second defeat device exception—substantially including
AECD

conditions

in

the

federal

emissions

test

procedure—

manufacturers that utilize active regeneration quantify the effects on
NOx emissions by applying a UAF to their emission test results. Id.
Smithers states that by providing an accurate UAF value for each
required emission test procedure, an active regeneration AECD is exempt
from being a defeat device under the second exception. Id.
Cummins did provide UAF values for each of its emission tests, but
Smithers opines that it misapplied the UAFs to its emission test results,
thus inaccurately representing and grossly underestimating the effect on
NOx emissions. Id. Smithers concludes that Cummins significantly
deviated from the standard federal regulatory formula for calculating the
UAF, and introduced a new methodology intended to produce a more
minimal UAF for certification purposes. Id. at PageID.28904.
Smithers explains that the Trucks operate differently under
different conditions, which can result in varying emissions and impacts
30

from

regeneration,

including

producing

varying

UAFs.

Id.

at

PageID.28905. According to Smithers, Cummins felt that it would be
inaccurate to disclose a UAF capturing only some impacts of regeneration
under limited driving conditions. Id. As a result, Cummins used four test
drive cycles (LA4, US06, SC03, and the highway fuel economy test) to
represent four unique driving conditions. Id. Smithers maintains that by
using this data to create a “weighted average” UAF, Cummins claimed to
account for a broad scope of operating modes. Id. Smithers concedes that
in principle, using a weighted average UAF is scientifically appropriate.
Id. But Smithers criticizes Cummins’ calculation of its weighted average
UAF as failing to accurately depict the NOx-increasing effect from active
regeneration. Id. In fact, Smithers finds that the UAF value Cummins
submitted for certification causes the NOx increase from active
generation “to disappear in a nonsensical way.” Id.
Smithers also summarizes that in November 2006, the EPA
released a guidance document for heavy-duty engine dynamometer
certification that permitted averaging UAFs across the two relevant
certification standards for heavy-duty certification. Id. at PageID.28907.
The EPA guidance recognizes that vehicles are operated under varying
driving conditions, such that regeneration frequency values should
reflect the proportion a vehicle’s useful life spent driving in different
conditions. Id. For heavy duty vehicles, the two certification standards
are the heavy-duty federal test procedure (“FTP”) and the supplemental
31

emissions test (“SET”). Id. Importantly, the EPA guidance only allows
manufacturers to account for these two tests. Id. The EPA guidance also
permits manufacturers to use field data to determine the relative
frequency with which vehicles are driven under different conditions to
approximate the certification standards. Id. Prior to the release of the
November 2006 EPA guidance document, Cummins developed its own
UAF calculation methodology and initially shared it with regulators in
March 2006. Id. Cummins later utilized the EPA’s November 2006
guidance to support its own methodology. Id.
Smithers takes issue with both Cummins’ and the EPA’s
approaches to UAF calculations. He opines that both calculations contain
a mathematical flaw that Cummins utilized, resulting in a distorted UAF
value that minimized the effect of the Trucks’ real-world NOx emissions.
Id. at PageID.28908. Specifically, Smithers states that certain UAF
values needed to be added together to produce a weighted average UAF
that accurately accounts for the emissions impact of active regeneration.
Id. Smithers finds that the EPA guidance calculation implies this, but
the guidance ends its “calculation walkthrough”3 before the necessary
summation step. Id. Smithers concludes that Cummins failed to sum up
individual values to correctly calculate a weighted average UAF, which
Smithers explains that the November 2006 EPA guidance
“demonstrates a walkthrough of how to compute a weighted fraction
[UAF]” using sample figures shown in Table 5-3 of Smithers’ merits
report. ECF No. 221-10, PageID.28908.
3

32

is what it told the regulators it would do in its disclosures. Id. at
PageID.28914. As a result, he opines that the true NOx impact of active
regeneration is not accounted for in Cummins’ methodology. Id. at
PageID.28915.
Smithers further concludes that Cummins diverges from the EPA’s
methodology in two other ways. First, Cummins makes use of a “bias
factor,” which is not referenced in the EPA guidance but introduces
values that conflict with real-world test data and unjustifiably skew the
UAF to be even smaller. Id. at PageID.28908. Second, Cummins’
methodology incorporates test cycles that are not part of regulatory
certification, which further decreases the weighted UAF value. Id.
Smithers states that a competent engineer would conclude that
Cummins’ “final UAFs do[] not reflect reality.” Id. at PageID.28915.
According to Smithers, based on these blatant inaccuracies, “[t]here is no
context in which the regulators would have approved this methodology if
they fully understood that the real-world impact of regeneration
produced emissions that easily cause the vehicle to exceed the emission
standards.” Id. at PageID.28916. But because the regulators did
ultimately approve Cummins’ UAF methodology, Smithers assumes that
the regulators must have been “misled” by Cummins. Id.
Based upon his assumption that Cummins misled the regulators in
the UAF certification process, Smithers concludes that Cummins’
excessive active regeneration cannot be considered “substantially
33

covered” by the federal emissions test procedure. Id. Therefore, the
second federal regulation exception to a defeat device is inapplicable.
Smithers thus finds the Trucks’ active regeneration process to be a defeat
device that produces NOx emissions far above the certified limit and does
not fall under any federally recognized exemption. Id.
Smithers’ merits report further explains the impact of the other
EEDs he identified in his first report, including high ambient
temperature and exhaust gas recirculation (“EGR”) reduction, high
engine load NOx limits, and cold and hot starts on NOx emissions. Id. at
PageID.28918–23. Smithers specifically finds that the Trucks’ low
ambient temperature NOx limits make the NOx adsorber technology
inadequate for the Trucks. Id. at PageID.28918. Smithers ultimately
concludes that as a practical matter, because the NOx emissions from
excessive active regeneration alone are so great, there are almost no
conditions under which the 2007–2012 Ram 2500 and 3500 vehicles could
meet the relevant emission standards. Id. at PageID.28923.
B. DEFENDANTS’ EXPERT RYAN HARRINGTON
Defendants raise many critiques of Smithers’ opinions, reports, and
declaration through their expert, Ryan Harrington (“Harrington”).
Harrington has submitted an expert report dated October 27, 2021 (ECF
No. 191 (sealed)), and an expert merits report dated February 11, 2022
(ECF No. 222-8 (sealed)).

34

Harrington is a Principal at Exponent, an engineering and
scientific consulting firm, where his focus is on vehicle engineering.
Expert Report of Ryan Harrington (Oct. 27, 2021), ECF No. 191 (sealed),
PageID.23586. Harrington has over 20 years of experience in the
automotive industry and the federal government, including providing
analysis and development of federal regulations, policies, and standards
on fuel economy, emissions, and motor vehicle safety standards. Id. He
holds a Master of Science in Automotive Engineering degree from the
University of Michigan, Ann Arbor, and a Bachelor of Science degree in
Mechanical Engineering from the University of Nebraska. Id. In 2008,
Harrington was the recipient of the U.S. Department of Transportation
(“DOT”) Secretary’s Gold Medal Award. Id.
Harrington has extensive experience in performing analyses on
emissions testing, developing regulatory standards, and studying fuel
efficiency through his work at DOT and in the private sector.
Harrington’s other relevant experience is further detailed in his CV
submitted to the Court as part of his reports. Expert Merits Report of
Ryan Harrington (Feb. 11, 2022), ECF No. 222-8, PageID.32456–65.
Plaintiffs do not challenge Harrington’s qualifications to provide
opinions on the matters addressed in his reports. The Court finds that
Harrington is qualified through his education, experience, and training
to provide the opinions in his reports critiquing Smithers’ opinions. See
also Counts v. Gen. Motors, LLC, No. 16-cv-12541, 2022 WL 2078023, at
35

*23–26 (E.D. Mich. June 9, 2022) (qualifying Harrington as an expert to
opine on some (but not all) similar subject matters and noting
Harrington’s “stellar” career).
C. DEFENDANTS’ CHALLENGES TO SMITHERS’
REPORT, DECLARATION, AND MERITS REPORT

FIRST

Defendants ask this Court to exclude Smithers’ expert opinions
because they are unreliable, unhelpful to the trier of fact, not relevant,
do not use known or accepted methodologies, have not been subject to
peer review, do not have a known rate of error, lack supporting data and
were not adequately tested, and do not address issues relating to fraud
or misrepresentation. ECF No. 192, PageID.23764. The Court addresses
the various categories of Harrington’s critiques of Smithers’ opinions
below.
i. Challenges to Smithers’ EED opinions
Defendants first challenge Smithers’ use of the term excessive
emissions devices (“EEDs”). Defendants point out that the term does not
appear in any EPA or CARB literature, has never been subject to peer
review, and is not in any published treatise, textbook, or article. Id. at
PageID.23765. Smithers himself admits that this is not a generally
accepted scientific term. Smithers Dep. (Oct. 5, 2021), ECF No. 222-8,
PageID.32788. Smithers also concedes that an EED is neither an
Auxiliary Emission Control Device (“AECD”) nor a defeat device under

36

40 C.F.R. § 86.1803-01. Id. at PageID.32788; ECF No. 192,
PageID.23774.
Smithers defines EED in his August 16, 2021 report as any
“software controls that serve to increase the overall levels of NOx
emissions beyond those levels required by the relevant regulatory cycles.”
ECF No. 184-2, PageID.21577. Smithers explains that he intended EED
to be a catch-all phrase that generally describes the causes of increased
NOx emissions he observed in testing. Smithers Dep. (Oct. 5, 2021), ECF
No. 222-8, PageID.32788. Smithers uses the term EED as “shorthand” to
encompass the Trucks’ components that collectively cause excessive
emissions. Id. In essence, Smithers intended EED to capture
“everything,” from the vehicle’s hardware, engine, aftertreatment
system, and software, that work together to increase NOx emissions. Id.
at PageID.32797–99. As long as this term and its origins are explained
to the jury, and it is not identified as anything more than shorthand to
summarize Smithers’ findings, the Court finds that the term EED is
understandable and intended to be descriptive rather than technical.
Smithers’ reports comprehensively explain that the Trucks contain
EEDs, which function the same way in all the Trucks, using essentially
identical hardware and software. Smithers summarizes that his testing
results reveal how all the Trucks emit excessive emissions during realworld driving and experience decreased fuel economy.

37

Defendants argue that four of the EEDs (ambient air temperature,
road grade, trailer towing, cold and hot start) are well-known principles
of physics that do not require expert opinion, making the testimony
irrelevant to assisting the trier of fact in understanding the evidence or
determining a contested fact. ECF No. 192, PageID.23770. But the
complex operation of a highly sophisticated emissions system, including
whether certain conditions affect emissions levels, is not within the
province of the average juror. Smithers’ use of the term EED and his
explanations are well within the appropriately wide latitude for an
expert’s opinions. Smithers has also shown that his EED opinions have a
reliable basis in knowledge and experience. See Jahn v. Equine Servs.,
PSC, 233 F.3d 382, 388 (6th Cir. 2000). Taking the above into account,
Smithers’ opinions regarding EEDs are admissible.
ii.

Challenges to Smithers’ opinions on Model 3500
testing

Defendants critique Smithers’ opinions regarding the testing of
Model 3500 Trucks, arguing that his opinions are invalid because they are
based on testing just one Model 3500. ECF No. 192, PageID.23776. But
Smithers’ class certification report documented how the results of the
Model 3500 testing are consistent with the Model 2500 testing, analyzed
logging data from three of Plaintiffs’ trucks, and explained his
understanding of how the Model 3500 emissions system operates. See, e.g.,
ECF No. 184-2, PageID.21608–10, PageID.21621–27. Relatedly, Smithers
38

used his analysis of the Model 2500 Trucks to reach certain conclusions
about the Model 3500 Trucks that were not independently tested. See id. at
PageID.21626, PageID.21641, PageID.21646.
Defendants contend that this form of extrapolation is improper
because it ignores key differences between the models, such as weight,
towing capacity, and torque. ECF No. 192, PageID.23777. Indeed, Smithers
acknowledges those differences, but concludes that the Model 2500 results
are still applicable to the Model 3500 Trucks because the emissions control
strategies were the same in both models. ECF No. 199-5, PageID.25201–04;
see also ECF No. 184-2, PageID.21674 (“The 3500 Ram utilizes the same
engine architecture and emissions after treatment system as the 2500.”).
The fact that Smithers tried to gather more data by testing more than one
Model 3500 Truck (but was ultimately unable to test as many Model 3500s
as Defendants might have liked) does not negate Smithers’ opinions on the
Model 3500 systems. Smithers’ testing is uniform, consistent, and reaches
the same results—that the Trucks emitted excessive emissions during
real-world driving.
Moreover, each individual test result cannot be weighed in isolation,
but instead, all evidence must be considered in its totality. See Bledsoe v.
FCA US LLC (Bledsoe II), 378 F. Supp. 3d 626, 633 (E.D. Mich. 2019). In
Bledsoe I, this Court held that “Plaintiffs’ allegations of the presence of a
defect or a defeat device in the identified vehicles, based on results of
their PEMS testing on a single Truck, are conclusory; they are not
39

founded on specific allegations of fact.” 307 F. Supp. 3d 646, 657 (E.D.
Mich. 2018). But the Court’s opinion in Bledsoe II later made clear that:
The key inquiry, as the Court explained is whether “the totality of
the allegations amounted to plaintiffs having plausibly pled that
the products received did not live up to the claims made by
Defendants.” . . . Here, Plaintiffs present a detailed accounting of
their own extensive PEMS testing, plus chassis dynamometer
testing, plus data logging, plus an allegation of a specific defeat
device that causes the vehicle to enter active regeneration more
frequently in real world driving than when the vehicle senses it is
being tested for regulatory compliance.
Bledsoe II, 378 F. Supp. 3d at 632–33.
Here, when considering Smithers’ testing in its totality, his
conclusions regarding the Model 3500 Trucks are sufficiently sound and
reliable to assist the trier of fact. The fact that Defendants’ experts may
have applied a different methodology in their analysis is insufficient to
exclude Smithers’ testimony. See Heller v. Shaw Indus., Inc., 167 F.3d 146,
160 (3d Cir. 1999) (explaining that expert testimony cannot be excluded
simply because the expert uses one test rather than another, when both
tests are accepted in the field and both reach reliable results). Defendants
identify the flaws they perceive in Smithers’ analysis of the Model 3500
trucks, but “mere weaknesses in the factual basis of an expert witness’
opinion bear on the weight of the evidence rather than on its
admissibility.” McLean, 224 F.3d at 800–01. Therefore, Smithers’
opinions regarding the Model 3500 Trucks are admissible.

40

iii.

Challenges to Smithers’ model years analysis

Defendants similarly claim that Smithers’ reports improperly
extrapolate test results between model years. ECF No. 192, PageID.23768.
But Smithers explains that in focusing his testing on Model 2500 Trucks,
he “create[d] a larger sample size to cover the range of model years.” ECF
No. 199-5, PageID.25202. Furthermore, Smithers responds that his
analysis sought “to understand the changes from one model year to the
next,” but found that the AECDs in various model years “were effectively
the same.” Id. at PageID.25197.
Smithers is allowed to make reasonable assumptions in his report
when they are based on valid principles and analyses. See Conwood Co. v.
U.S. Tobacco Co., 290 F.3d 768, 791, 794 (6th Cir. 2002) (emphasizing
that disputes over the strength of the factual basis of an expert’s opinions
went to weight not admissibility, as the opinions were “subject to
vigorous cross examination and an opportunity for Defendant to
introduce countervailing evidence of its own”); In re Lidoderm Antitrust
Litig., No. 14-02521, 2017 WL 679367, at *28 (N.D. Cal. Feb. 21, 2017)
(denying motion to exclude because the expert’s opinion was based on
“reasonable assumptions and evidence, and supported by reasoned
principles as well as academic scholarship” and while “some of those
assumptions [were] disputed,” those disputes did not “make [the expert’s]
reliance on them improper”); Whirlpool Props., Inc. v. LG Elecs. U.S.A., Inc.,
No. 1:03 CV 414, 2006 WL 62846, at *4 (W.D. Mich. Jan. 10, 2006)
41

(“Selection of an inappropriate universe generally affects the weight of the
resulting survey data, not its admissibility.” (citation omitted)). The Court
will not exclude Smithers’ opinion based on his purported extrapolation of
results across model years.
iv.

Challenges to Smithers’ AECD opinions

Defendants attack Smithers for not personally undertaking a
sufficiently rigorous analysis of Cummins’ AECDs. ECF No. 192,
PageID.23768. But Smithers’ staff, at his direction, did perform
comprehensive AECD analysis and determined that there were not
significant differences among the AECDs. See ECF No. 199-5,
PageID.25197–99. Using staff to complete tasks and gather data relevant
to the expert analysis is appropriate. See Chavez v. Carranza, 559 F.3d
486, 497 (6th Cir. 2009) (admitting expert testimony that was properly
based on intelligence gathered by the expert himself, his staff, and other
government agents); McReynolds v. Sodexho Marriott Servs., Inc., 349 F.
Supp. 2d 30, 36 (D.D.C. 2004) (summarizing that “an expert may rely on
any facts or data ‘of a type reasonably relied upon by experts in the
particular field,’ including . . . relying on one’s assistants to carry out
analyses that the expert designed.” (citation omitted)); Dura Auto. Sys. of
Ind., Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir. 2002) (“An expert
witness is permitted to use assistants in formulating his expert opinion,
and normally they need not themselves testify.”); see also Gutierez v. State
Farm Lloyds, No. 5:19-cv-89, 2020 WL 9934407, at *2 (S.D. Tex. Oct. 27,
42

2020) (finding “no authority in support of the proposition that an expert
giving an opinion on damage to property must personally inspect the
property as opposed to relying on information gathered by the expert’s
staff”). Smithers’ opinions and conclusions on AECDs are admissible, even
if his staff assisted in completing the analysis.
v.

Challenges to Smithers’ opinions on Truck software

Defendants challenge Smithers’ opinions because neither he nor
another of Plaintiffs’ experts reviewed the Trucks’ software despite
having the opportunity to conduct such a review. ECF No. 192,
PageID.23768–69. In fact, the Court required Cummins to produce
unredacted copies of the AECD disclosures Cummins submitted for the
Trucks, with the Trucks’ calibrations in their native software format.
ECF No. 148.
At the complaint stage of this case, Plaintiffs believed that accessing
the Trucks’ calibration files was necessary to determine why the Trucks’
emissions were exceeding emissions standards in real-world settings.
Smithers testified that in his opinion, the method that Defendants used to
obtain certification approval did not ultimately require Smithers to rely
upon the underlying calibrations or software. Smithers Dep. (Oct. 5, 2021),
ECF No. 203-4, PageID.25326. Smithers testified that he did not need to
review the software to reach his conclusions, because in his opinion, testing
alone can “demonstrate how the vehicle behaves[,] particularly in this case
where you’re testing multiple vehicles under certain circumstances by
43

repeating the tests across multiple vehicles and looking how the emission
control system behaves.” Id.; see also ECF No. 199-5, PageID.25197–98
(explaining how Smithers concluded that the redacted versions of the data
he reviewed “were sufficient and that the [unredacted] AECDs provided by
the Defense did not offer any additional insight regarding the behavior of
the emissions control system or differences in emissions control strategy
between model years and model types”).
At most, this dispute goes to weight not admissibility. As previously
discussed, Smithers’ opinions are based on extensive testing and knowledge
of how the EEDs function. Smithers’ class certification report provided a
thorough summary of his own testing and explained how this testing was
consistent across models and model years, and consistent with the
logging data from Plaintiffs’ trucks. Smithers described his methodology
in detail, including how the vehicles were selected, how they were tested,
and the results of that testing. The Court will not exclude Smithers’
opinions on these grounds.
vi.

Challenges to Smithers’ dynamometer opinions

Through Harrington’s analyses and opinions, Defendants take
Smithers to task for using a 0.2 g/mi dynamometer emissions standard for
the Model 2500 Trucks and 0.4 g/mi for the Model 3500 Trucks to compare
portable emissions measurement systems (“PEMS”) testing data. ECF No.
192, PageID.23769. Harrington posits that Smithers should have used the

44

in-use verification testing standards of 0.3 g/mi and 0.5 g/mi relied upon by
regulators. Id.; ECF No. 191, PageID.23689.
Smithers justifies his decision to use the 0.2 g/mi and 0.4 g/mi
standard by clarifying that the factors and conditions he was testing for
were unrelated to assessing the durability of the Trucks’ emissions
technology. See ECF No. 199-5, PageID.25199–01. Moreover, Smithers
explains that even with the 0.3 g/mi and 0.5 g/mi standards, the Trucks’
emissions still greatly exceed these higher limits. Id. at PageID.25201; ECF
No. 184-2, PageID.21599. Smithers’ decision to use different dynamometer
emission standards is a proper topic for cross-examination, but his opinions
will not be excluded on those grounds.
vii. Challenges to Smithers’ opinions on linearity
Defendants object to Smithers use of linearity as being inconsistent
with the regulators’ policies and standards. ECF No. 192, PageID.23770–
72. But this objection arises from Defendants’ own characterization of
Smithers’ testimony on linearity, rather that the testimony itself. While
Defendants’ claim that “Smithers posits, without reference to any
support, that an increase in load on the engine should result in a
proportional increase in admissions,” id. at PageID.23771, Smithers
testified that changes in road grade do not “necessarily always” yield
linearity. Smithers Dep. (Oct. 5, 2021), ECF No. 192-2, PageID.23809–
10. The Court will not exclude Smithers’ opinions on linearity. To the
extent that Smithers’ conclusions on linearity affect the merits of
45

Plaintiffs’ claims, Defendants may challenge the weight that the jury
should give to those opinions.
viii. Conclusion
In sum, Smithers’ opinions discussed above contain relevant,
reliable information, analyses, and data on the Trucks and related issues.
Smithers’ reports and declaration are based on a comprehensive review
of key documents and rely on industry standards throughout. Smithers
provided thorough descriptions on how and why he developed the
opinions he reached.
Defendants’ Expert Harrington offers an extensive set of critiques of
Smithers’ opinions. While the Court highlights the key objections
emphasized in the parties’ briefing, the Court has thoroughly considered
Defendants’ positions. In the end, the dispute between Smithers and
Harrington presents a classic “battle of the experts,” bearing upon the
weight of each expert’s testimony, not admissibility. Therefore, the Court
will not exclude Smithers’ opinions based on Defendants’ critiques
discussed above.
D. RELEVANCE AND FIT OF SMITHERS’
RELATING TO PLAINTIFFS’ COMPLAINT

OPINIONS

Defendants argue that Smithers’ opinions are not relevant and do not
comport with Plaintiffs’ complaint allegations because Smithers relies on
different underlying premises for his opinions on EEDs and defeat

46

devices than what Plaintiffs specifically alleged. ECF No. 192,
PageID.23773.
Plaintiffs’ initial defeat device theory centered around the
difference between the Trucks’ test environment performance on the
dynamometer and their real-world performance (measured through PEMS
testing). Plaintiffs allege that such differences should not exist unless the
emissions system used a device to turn the system off or down during realworld testing. Second Consolidated and Amended Complaint (“SCAC”),
ECF No. 62, PageID.8337, ¶ 4; Third Consolidated and Amended
Complaint (“TCAC”), ECF No. 255, PageID.34987, ¶ 4, PageID.35001, ¶
213 (summarizing test results showing that the purported defeat device
caused the Truck to detect when it was testing on a chassis dynamometer
to emit lower NOx levels than in real-world testing conditions). Plaintiffs
thus alleged that Cummins defrauded the regulators and, by extension,
Plaintiffs and putative class members. See SCAC, ECF No. 62, at ¶¶ 18,
30, 34, 260, 297, 329; TCAC, ECF No. 255, at ¶¶ 18, 30, 34, 262, 299, 331.
Plaintiffs also pursued discovery based on that theory.
As discovery progressed, Plaintiffs seem to have abandoned their
initial theory that the Truck could detect whether it was being operated
in a testing environment to temporarily modify itself accordingly.
Instead, Smithers’ expert reports and testimony on EEDs, defeat devices,
and the other matters discussed above became foundational to Plaintiffs’
claims. Indeed, Smithers admits he has found no evidence that the
47

Trucks engage in cycle detection behavior to operate differently when in
testing conditions. Smithers Dep. (Feb. 10, 2022), ECF No. 222,
PageID.29125–26. Still, the SCAC (and now the TCAC) detailed the
excessive emissions during real-world driving and decreased fuel economy
at the heart of Smithers’ report. Throughout discovery, Plaintiffs have
gathered even more information on how these problems developed in the
Trucks, including facts that differ from their original theory on the
Trucks’ ability to detect testing environments.
An expert opinion must be helpful to the trier of fact by addressing
the relevant issues. Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir.
1999) (“The relevance requirement ensures that there is a ‘fit’ between the
testimony and the issue to be resolved by the trial.”). The expert’s opinion
must be “sufficiently tied to the facts of the case that it will aid the jury in
resolving a factual dispute.” Daubert, 509 U.S. at 591 (citation omitted).
Smithers’ opinions meet these relevance and fit requirements.
Smithers describes the results of his testing, data gathering, and a host
of reasonable analyses based on the discovery conducted in this case.
While Smithers’ findings rely on different underlying premises for the
EEDs and defeat devices than those specifically alleged by Plaintiffs,
Smithers’ opinions share a fundamentally similar core. Both Plaintiffs
and Smithers posit that the Trucks emitted NOx at levels far in excess of
regulatory standards, when considering what the existing technology

48

required and what a reasonable consumer would expect from a truck
touting its advanced emissions control technologies.
As explained in detail above, Smithers opines that the EEDs cause
the Trucks’ emissions to exceed regulatory standards and decrease their fuel
economy. Smithers collected his own evidence and reached conclusions not
based on legal pleadings, but findings within his expertise. Smithers
opines, based on his research, that the problematic conditions of the
vehicles—excessive emissions and decreased fuel economy—were caused
by the EEDs, which were the result of Defendants’ deliberate choices.
Smithers opinions plainly fit into Plaintiffs’ allegations and the factual
disputes at issue. An underlying factual premise of Plaintiffs’ case has
changed based upon the discovery of additional and different facts. But
Smithers’ opinions remain relevant to and aligned with the core
allegations and theories raised in Plaintiffs’ complaint. Therefore, this
Court declines to strike Smithers’ opinion on relevance grounds.
E. SMITHERS’
OPINIONS
ON
CUMMINS’
ACTIVE
REGENERATION FUNCTION
i.
Smithers’ opinions on federal regulation of defeat
devices and UAF calculations
Smithers opines that Cummins’ active regeneration function is a
defeat device as defined by federal regulations. Here, the parties dispute
whether Cummins substantially included its active regeneration
function in the federal test procedures, which would trigger an exemption
to the function being a defeat device. In other words, if Defendants
49

substantially included the active regeneration function as an Upward
Adjustment Factor (“UAF”) in its test procedures, then the function is not
a defeat device pursuant to 40 C.F.R. § 86.1803-01.
Accordingly, Smithers’ merits report examined Cummins’ use of its
UAF for active regeneration. Smithers opined that because Cummins
calculated its UAF using flawed methodology to intentionally conceal the
actual emissions impact, Cummins’ active regeneration function was not
substantially included in the federal test procedure. ECF No. 221-10,
PageID.28900–01. Consequently, in Smithers’ opinion, the Trucks’ active
regeneration function constitutes a defeat device. Id.
Smithers’ conclusion rests on his finding that Cummins deviated
from established methods for calculating the UAF, failed to follow EPA
guidance, and purposefully concealed the emissions impacts of its active
regeneration strategy. Id. at PageID.28904–16. Smithers finds that
rather than using the UAF calculation method supported by federal
regulations, Cummins misled regulators into approving its use of a
weighted average of irrelevant regulated drive cycles in calculating the
UAF for its Trucks. See id. at PageID.28904–05.
Smithers explains that Cummins did not present the regulators
with a true weighted average because it skipped a crucial final
calculation step, and thus did not properly disclose an acceptable UAF.
Id. at PageID.28908, PageID.28914. Smithers opines that Cummins
sought to minimize the weighted average UAF for certification purposes,
50

thereby deceiving the regulators into accepting a smaller weighted
average than if Cummins had correctly completed its calculation. Id. at
PageID.28907.
In short, Smithers concludes that Cummins’ certification results
were false and misleading, and did not accurately reflect the Trucks’ true
NOx emissions. Id. at PageID.28916. Smithers notes in his merits report
that “the regulators would have had to believe this [UAF] value was
meaningful and representative of real world emissions,” but the regulators
would not have approved Cummins’ methodology “if they fully understood
that the real world impact of regeneration produced emissions that easily
cause the vehicle to exceed the emission standards.” Id.
Smithers acknowledges that the 2006 EPA guidance does not
explicitly describe the final summation step in the process for calculating a
weighted average (i.e., adding the weighted fraction UAF values together).
Id. at PageID.28909. But Smithers suggests that this step to attaining a
weighted average is so obvious that the EPA did not need to instruct
manufacturers to add the weighted fractions together. See id. Smithers
concludes that Cummins’ decision to skip this summation step
demonstrates that it intended to defraud the EPA. Id. at PageID.28914,
PageID.28916. Based on Smithers’ knowledge of weighted averages, his
UAF calculations, and understanding of regulatory oversight functions, he
concluded that the EPA requires fractional UAF values to be added
together to properly attain a weighted average UAF. Id. at PageID.28908.
51

Smithers also points out that the 2006 EPA guidance permitted
averaging UAFs across the two relevant certification tests for heavy-duty
engine dynamometer certification. Id. at PageID.28907. Contrary to the
EPA guidance, Cummins’ methodology included not only the two test
cycles recognized by the EPA (LA4 and HWFET), which are applicable to
the subject Trucks, but also two other test cycles (US06 and SC03). Id. at
PageID.28908–09, PageID.28914. Smithers claims that these two other
test cycles (US06 and SC03) are irrelevant to the Trucks and have no
meaningful standards with which they are required to comply. Id. at
PageID.28909. By including these two irrelevant test cycles, Smithers
opines that Cummins acted inconsistently with federal guidance and
effectively negated any reasonable use of the weighted fractions. Id
Smithers also criticizes Cummins for straying from the EPA
guidance by using a “bias factor” to further reduce its UAF. Id. at
PageID.28912–15. Smithers explains that Cummins relied on a bias factor
value to support its claim that active regeneration occurs more frequently
in steady state (highway) conditions. Id. at PageID.28912. Smithers’
merits report closely examines Cummins’ bias factor calculation and
identifies two main flaws in the biasing technique. Id. at PageID.28912–
14. First, Smithers finds that the bias factor double-counts the effects of
any theoretical differences between city and highway driving conditions.
Id. at PageID.28913. Second, Smithers states that there is no empirical

52

evidence to support the use of the bias factors that Cummins applied. Id.
at PageID.28913–14.
ii.

Smithers’ opinions on Cummins’ alleged fraud of
the regulators

The EPA is the regulatory agency entrusted by Congress to ensure
that passenger vehicles sold in the United States comply with the Clean Air
Act (“CAA”). See 42 U.S.C §§ 7521–7554. The EPA has promulgated
regulations interpreting the CAA to ensure that regulated entities comply
with CAA mandates. In the auto emissions area, the EPA has issued
guidance on infrequent active regenerations (events that increase NOx
emissions which may not occur during the mandatory federal test cycle
known as FTP-75). The EPA publishes instructions to certificate applicants
for calculating infrequent regeneration adjustment factors (“IRAFs”) to be
added to the applicant’s FTP-75 results. See Expert Merits Report of Ryan
Harrington,

ECF

No.

221-7,

PageID.28800,

PageID.28802–03,

PageID.28806. The Upward Adjustment Factors (“UAFs”) described by
Smithers are a form of IRAFs that reflect a net increase to expected NOx
emissions. Id. at PageID.28800 n.1.
On November 6, 2006, the EPA issued a guidance document titled
“Alternative Guidance on Infrequent Regeneration of Diesel Particulate
Filters for Heavy-Duty Highway Vehicles” (the “IRAF Guidance”). Id. at
PageID.28808. Harrington summarizes that the EPA’s IRAF Guidance
allowed manufacturers to test the vehicle over multiple drive cycles,
53

rather than limiting certification to the FTP-75 drive cycle results as
required by 40 C.F.R. § 86.004-28(i)(1). Id. at PageID.28806–08.
Harrington explains that the IRAF Guidance required applicants to
calculate a UAF based on each different test drive cycle. But the IRAF
Guidance makes clear that only the UAF from the FTP-75 results would
be considered in determining whether the engine meets NOx emission
limits. Id. at PageID.28809–10, PageID.28818. Contrary to Smithers,
Harrington concludes that the IRAF Guidance does not require applicants
like Cummins to add up the results from each separate drive cycle on which
the vehicle was tested to create a composite UAF. Id.
Harrington contends that Smithers’ UAF calculation methodology
imposes an unnecessary step that Smithers acknowledges is not required.
Specifically, Smithers suggests that the weighted average from each
certification cycle should be added together to form a single UAF
calculation. See ECF No. 221-10, PageID.28914. Smithers agrees that
Cummins disclosed its regeneration algorithm and UAF methodology
(the alleged defeat device) to the regulators. Id. at PageID.28907, 28916.
Yet, Smithers opines that Cummins misled the regulators as to the
meaning of its UAF calculations:
Strictly speaking, the methodology can be inferred from the data
presented in the document [CMI-00425313]. However, the existence
of [Cummins’] presentation [to the regulators] does not clearly
evidence full disclosure. There is no documentation of the
discussion, questions, or context of the conversation with regulators
regarding this document and the methodology enclosed. Clearly, the
54

regulators did approve of the final values calculated by this
methodology and therefore the methodology itself, but there is no
evidence that the regulators fully understood the concept of [the]
methodology or the meaninglessness of the final UAF values.
Id. at PageID.28909.
iii.

The bases for Smithers’ opinions that Cummins
committed fraud in its regulatory certification
application are unreliable

The Court is concerned that Smithers’ opinions concluding that
Cummins committed fraud on the regulators are based primarily upon
assumptions rather than a firm factual foundation. In his analysis,
Smithers fails to account for the evidence showing that Cummins fully
disclosed key information to the regulators. Instead, Smithers concludes
that because Cummins did not calculate the UAF in the manner
Smithers believes it should have, the regulators must have been
defrauded.
Smithers’ merits report summarizes testimony from Cummins’
Rule 30(b)(6) witness, Samuel Geckler, noting that “regulators approved
Cummins’ use of a weighted average” as part of its UAF or IRAF
calculation which averaged values from four different test-driving cycles:
LA4, US06, SC03, and the highway fuel economy test. ECF No. 221-10,
PageID.28905 (citing Geckler Dep. (Nov. 2, 2021); ECF No. 241-6,
PageID.34324–25). Because Smithers opines that Cummins did not use
a valid weighted average for the UAF, he assumed that the regulators
were necessarily misled based on the results Cummins disclosed.
55

Smithers also cites Geckler’s testimony that: “in the plurality of Upward
Adjustment Factors for NOx, there would be . . . a full accounting of the
regeneration, [including] the infrequent regeneration impact.” Id. at
PageID.28915 (citing Geckler Dep. (Nov. 2, 2021), ECF No. 241-6,
PageID.34327. According to Smithers, this portion of Geckler’s testimony
“confirms that the emissions impact of regeneration can only be
understood when accounting for all four of the fractional Upward
Adjustment Factors,” such that Cummins submitted a figure that “is
meaningless on its own and completely inappropriate for use in
certification.” Id. at PageID.28916.
But Smithers’ reliance on two of Geckler’s statements to conclude
that Cummins misled the regulators unreasonably discounts the fact
that Cummins provided comprehensive UAF information to the
regulators. Smithers’ assumption of fraud on the regulators thus lacks
sufficient grounding. In his merits deposition, Smithers specifically
acknowledged that the hardware Cummins disclosed to regulators
accurately depicted the engine and its configuration. Smithers Dep. (Feb.
10, 2022), ECF No. 222, PageID.29118. Likewise, Smithers did not have
any evidence that Cummins submitted a UAF value based on tests it did
not actually perform. Id. at PageID.29130. And Smithers had no opinion on
whether Cummins followed the UAF methodology consistent with its
disclosures to regulators. Id. at PageID.29130. Moreover, Smithers
testified that he did not have an opinion on whether “Cummins calculated
56

its UAF values using a methodology different than what they told the
regulators they were doing.” Id. at PageID.29130.
Furthermore, there is ample evidence that Cummins provided
significant federal test procedure and UAF methodology information to
the regulators, who then approved the emissions system with adequate
information. For example, Geckler testified that Cummins worked closely
with the regulators to obtain approval of its methodology and thoroughly
disclosed its processes. See Geckler Dep. (Nov. 2, 2021), ECF No. 241-6
(sealed), PageID.34326 (explaining that Cummins worked “with the
agencies” in “the regulatory process for IRAFs,” and that the regulators
“approved the methodology that [Cummins] utilized” based on regulatory
guidance). Geckler’s account is corroborated by the fact that between
2006 and 2009, Cummins prepared numerous PowerPoint presentations
for the regulators and met regularly with them to address Cummins’
UAF calculation methodology, discuss Cummins’ proposals, and respond
to regulators’ questions on Cummins’ methods. See ECF No. 222-3
(exhibit collecting Cummins’ presentations to the regulators); ECF No.
221-7, PageID.22803 n.9 (Harrington’s merits report noting that
Cummins gave “[a]t least ten presentations . . . to the agencies related to
UAF/IRAF between March 2006 and December 2009”). Smithers did not
attend these meetings and acknowledged that he does not know what
occurred during them. ECF No. 222, PageID.29134–35, PageID.29142,
PageID.29145, PageID.29150–51, PageID.29160–61.
57

Moreover, in response to Cummins’ April 17, 2008 letter requesting
CARB’s approval for its weighting factors and bias factor methodology for
model year 2010, CARB stamped that request as “Approved.” Exh. 44,
ECF No. 222-6 (sealed), PageID.32041. As previously discussed, Smithers
agrees that Cummins4 disclosed its methodology and testing results to the
regulators who then approved the methodology. Smithers Dep. (Feb. 10,
2021), ECF No. 222, PageID.29130, Page ID.29143. Beyond disputing the
accuracy of Cummins’ UAF test results, Smithers admits that he
ultimately does not know whether Cummins falsified data submitted to
the regulators. Id. at PageID.29129.
The foundation for Smithers’ fraud opinions is further weakened by
the fact that he cannot identify any calculations that Cummins did not
disclose to the regulators, and notes that “the regulators did approve of
the final values calculated by [Cummins’] methodology and therefore the
methodology itself.” ECF No. 221-10, PageID.28909–10. Smithers also
does not cite any authority supporting his criticism of the EPA’s IRAF
calculation guidelines, which do not explicitly identify the final
summation step that Cummins purportedly skipped. Nor does Smithers
identify support for his opinion that a certification methodology disclosed
to and approved by regulators can constitute a defeat device. Smithers
does not point to any relevant documents that the regulators could not
Smithers has no opinions specific to Defendant FCA on this issue. ECF
No. 222, PageID.29167.
4

58

consider in certifying the Trucks. Smithers does not cite any
communications from the regulators reflecting their supposed lack of
understanding of Cummins’ UAF methodology or their need for more
information. Smithers merely speculates that the regulators did not
comprehend what was provided to them. On the other hand, the record
shows

that

Cummins

disclosed

its

active

regeneration

UAF

methodologies to the regulators, and those methodologies were approved.
Smithers has failed to state a reliable basis for his opinion that EPA
and CARB did not fully understand the UAF values that Cummins reported
or the methodology used to generate those values. Consequently,
Smithers’ opinions on the regulators’ understanding of Cummins’
methodology and alleged fraud will be excluded because they are based on
speculation and will not assist the trier of fact. See Smesler v. Norfolk So.
R.R. Co., 105 F.3d 299, 303 (6th Cir. 1997) (“An expert opinion that is based
on scientifically valid principles will satisfy Fed. R. Evid. 702; an expert’s
subjective belief or unsupported speculation will not.”); Meemic Ins. Co. v.
Hewlett-Packard Co., 717 F. Supp. 2d 752, 767 (E.D. Mich. 2010) (excluding
expert opinion “based on personal conjecture and speculation” because the
opinion “will confuse and mislead, rather than assist, the trier of fact”).
In excluding Smithers’ opinions that the regulators were deceived
by Cummins, the Court must also exclude Smithers’ opinion that
Cummins’ active regeneration function is a defeat device. Aside from his
opinions on the alleged fraud that the Court has determined to be
59

inadmissible, Smithers lacks a reliable basis for opining that the active
regeneration function was not substantially included in the federal test
procedure. As a result, the active regeneration function does not meet the
definition of a defeat device pursuant to 40 C.F.R. § 86.1803-01, and
Smithers’ opinions that the active regeneration function is a defeat device
are excluded.
Defendants’ Expert Harrington offers detailed critiques of Smithers’
opinions on defeat device issues, as documented in Harrington’s reports.
While the Court has considered Harrington’s arguments, the bases for
excluding Smithers’ opinions on the active regeneration function as a
defeat device are as set forth above. To the extent Harrington’s opinions
are consistent with the Court’s findings, the Court does not specifically
ground its decision upon Harrington’s reports or testimony. In sum, on the
defeat device issue, this is not a classic “battle of the experts” over the
weight of the experts’ opinions. Rather, the Court finds that Smithers’
defeat device opinions are inadmissible. Therefore, as to Smithers’ opinions
on alleged fraud of the regulators and defeat devices, the Court GRANTS
in part Defendants’ Motion to Exclude.
F. PLAINTIFFS’ EXPERT EDWARD STOCKTON
i. Stockton’s qualifications
Stockton has a bachelor’s degree in economics from Western
Michigan University, and a master’s degree from the Department of
Agricultural and Resource Economics at the University of Arizona, in
60

which his concentration was applied econometrics. Declaration of
Edward M. Stockton, ECF No. 175-3, PageID.19361. His career includes
at least 30,000 hours of providing professional services within the retail
automotive industry for clients. Id. at PageID.19362.
Stockton has been employed at Fontana Group, Inc. since 1998,
where he has worked as an analyst, senior analyst, senior financial
analyst, case manager, Director of Economics Services, and now Vice
President. Id. His professional experience includes 20 years of studying
markets where manufacturers sell durable goods through networks of
authorized outlets, including in the automotive industry. Id. Stockton
has conducted hundreds of studies on the new and resale retail markets
for new and used vehicles, with emphasis on pricing mechanisms and
pricing behavior. Id. at PageID.19363. Stockton’s studies of resale, or
used, vehicle markets and prices have included evaluating price levels
and elements of pricing for millions of vehicles. Id. These studies also
include analyzing price diminution from market disruptions, such as
product defects, covering well over one million vehicles. Id.
Stockton has been accepted as an expert in proceedings before state
and federal courts, administrative courts, and arbitration panels. Id. at
PageID.19364. His expert testimony has been accepted by those courts
and panels on the topics of general and franchise economics, dealer
network and market analysis, economic damages, systems for the
allocation of scarce product among dealerships, statistics, econometrics,
61

dealership operations, dealership finance, analysis of franchise markets,
and general knowledge of the automotive industry. Id
Defendants point out that Stockton’s opinions were excluded in a
prior case on NOx emissions overpayments (the subject of one of his
opinions here). Defendants’ Motion to Strike and Exclude the Declaration
and Opinions of Plaintiffs’ Expert Edward Stockton, ECF No. 194,
PageID.24599 (citing In re Volkswagen “Clean Diesel” Mktg., Sales Pracs.,
& Prod. Liab. Litig., 500 F. Supp. 3d 940, 951 (N.D. Cal. 2020)). In that
case, the court questioned whether Stockton’s overpayment model was
appropriate for the plaintiffs’ Volkswagen “TDI premium” analysis, which
“attempt[ed] to measure the premium paid for the ‘bundle of attributes’
offered in all TDI vehicles.” In re Volkswagen, 500 F. Supp. 3d at 945. The
court excluded Stockton’s damages analysis because the TDI premium
represented the excess price paid for a “bundle of attributes” not specifically
limited to the car’s low emissions or “clean diesel” features. Id. at 951–52.
But Stockton’s opinions in this case will be assessed based upon the
opinions, analyses, and facts here, not prior cases in which Stockton
provided opinions. As described below, Stockton specifically identifies and
isolates the benefits that FCA touted as part of the Trucks’ clean diesel
features. See ECF No. 175-3, PageID.19398; see also In re Volkswagen,
500 F. Supp. 3d at 951 (explaining that “if Plaintiffs presented evidence
of a low emissions premium, there could be indirect but concrete financial
harms associated with that premium”).
62

In this case, Stockton provided a declaration dated August 16, 2021
in support of class certification. ECF No. 175-3. That declaration was
later supplemented by his merits report dated December 16, 2021. Both
are addressed in this opinion. The Court finds that Stockton is qualified
through his education, experience, and training to provide the opinions
in his declaration and merits report. See also Counts, 2022 WL 2078023,
at *23 (denying Daubert motion to exclude Stockton’s opinions on similar
subject matters, and noting that Stockton “is well qualified to opine on
economic-damages models”).
ii. Stockton’s August 16, 2021 declaration
Stockton submitted a declaration dated August 16, 2021 in support
of Plaintiffs’ motion for class certification. Stockton’s opinions rely on the
assumption that the EEDs described by Plaintiffs’ Expert Smithers are
present in the Trucks. ECF No. 175-3, PageID.19367. Based on this
assumption, Stockton opines that putative class members suffered
economic harm by: (1) overpaying for the Trucks at the point of purchase
because of the undisclosed EEDs; and (2) unwittingly assuming
unreasonable excess operating costs because the undisclosed EEDs
consumed additional fuel. Id. at PageID.19368. Importantly, Stockton
also concludes that reasonable, reliable, and feasible methods exist to
calculate damages on a class-wide basis. Id. Stockton sets out two
damages models—an Overpayment model and Excess Fuel Consumption
model—to quantify the class-wide injuries he describes.
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1. Stockton’s proposed Overpayment model
Stockton begins with the premise that EEDs are a “negative
characteristic” bundled with the Trucks’ other features, making the
Trucks less valuable than the as-represented Trucks for which Plaintiffs
bargained. Id. at PageID.19378. In addition, Stockton concludes
Defendants charged Plaintiffs a premium for an enhanced emissions
system marketed as the Trucks’ Ultra-Clean Diesel (“UCD”) system. Id.
Stockton’s opinions are based on elements of decision theory, which
assumes that a consumer at the point of purchase would rank-order the
Trucks with the EEDs lower or no higher than comparable vehicles with
typical emissions features. Id. at PageID.19374. Stockton opines that an
emissions system producing NOx in excess of regulatory limits, “at the
very least, entirely reverses the Ultra-Clean premium associated with
the Class Vehicles.” Id. at PageID.19396. Stockton states that Plaintiffs
revealed their preference for Defendants’ clean diesel features by buying
the Trucks without knowing that the Trucks’ EEDs cancel out their
purportedly “clean” qualities. Id.
Stockton explains that a “conservative estimate” of class-wide
economic harm is the amount that consumers paid for the UCD emissions
system. Id. at PageID.19397. But Stockton clarifies that the amount
consumers actually paid for the UCD system is not necessarily the UCD’s
list price. Id. In general, “[r]etail transaction prices for most automotive
products tend to be lower than list prices.” Id.
64

As such, Stockton incorporates “discount” factors that would reduce
the actual overpayment for the Trucks’ UCD feature. According to FCA’s
internal documents, the Trucks’ emissions premium is considered: lower
than the cost of the emissions system; a cost recoupment; and a positive
marketing feature to help dealerships sell the Trucks. Id. at
PageID.19398. Stockton assumes that by the time the Trucks are
available to consumers, FCA has already reduced the UCD premium to a
level that FCA believes is “value-enhancing” for sales purposes. Id. And
because consumers generally do not pay the full sticker price for vehicles,
Stockton applies a further discount to the UCD premium price. Stockton
explains that if a consumer received a “discount of 10% off of MSRP,” he
would proportionally reduce the “ultra-clean emissions premium by 10%
for the purposes of calculating overpayment harm at the point of
purchase.” Id. at PageID.19398.
Furthermore, Stockton concludes that the proper aggregate
damage amount from overpayment is calculated at the vehicle level. Id.
However, if deemed necessary to do so, Stockton states that damages can
be allocated among multiple owners of a single vehicle using reliable,
recognized, and feasible economic methods. Id. In that scenario, multiple
subsequent owners of a single vehicle would receive damages allocated
based upon the share of the vehicle’s value that was consumed during
each owner’s possession. Id. at PageID.19399. Stockton notes that
ownership data, including identity of owners and respective time of
65

ownership are available, without claimant input, from state agencies and
likely from automotive data firm IHS Markit Automotive (“IHS”), which
record and compile vehicle registration data. Id.
2. Stockton’s
model

proposed Excess Fuel Consumption

In addition to overpayment at the point of purchase, Plaintiffs claim
that the EEDs caused the Trucks to consume excess fuel under normal
driving conditions. Id. at PageID.19392. If true, Plaintiffs then
unanticipatedly assumed higher operating costs by purchasing the
Trucks. Id. Stockton’s Excess Fuel Consumption damages model
considers purchasing incrementally more fuel for reasons attributable to
the EEDs to be an economic harm to the putative class. Id.
While consumers certainly consider fuel to be an expected cost of
purchasing and operating a car, here, excess fuel consumption relates to
the unanticipated additional fuel that Plaintiffs allege the EEDs caused
the Trucks to consume. Id. Because Plaintiffs theorize that the EEDs
cause the Trucks “to consume more fuel given any number of miles
driven, the costs of purchasing that additional fuel are incremental
operating costs directly caused by the EEDs.” Id. Stockton’s declaration
also elaborates on how he models excess fuel costs using discount rates,
the reduction in expected fuel economy for the Trucks provided by
Smithers, and other analyses. Id. at PageID.19402–05.

66

Stockton’s Excess Fuel Consumption model relies on two primary
variables: fuel prices and miles driven. For fuel pricing, Stockton uses
pricing data from the U.S. Energy Information Administration (“EIA”),
which “maintains historical records of both gasoline and diesel fuel prices
by week, month, or year and also provides both nationwide and regional
average prices.” Id. at PageID.19405. For miles driven, Stockton expects
mileage data to be available from two sources. First, Stockton claims that
FCA possesses data on all Truck odometer readings observed on dates
that the Trucks received warranty or recall service.5 Id. Second, Stockton
explains that the U.S. Driving Survey “is a large-sample study of
reported driving habits of U.S. consumers.” The Survey captures
“odometer readings for vehicles of different ages, types, brands, models,
and engine types,” allowing for class-wide estimates of typical driving
miles and the impact of vehicle age on driving miles. Id.
Stockton further explains that the EPA produces estimates of
expected fuel consumption costs for most U.S. light vehicles. Id. Although
Similarly, Stockton explains that FCA has mileage accumulation
estimates for the Trucks because manufacturers maintain service records
of vehicles serviced under warranty and under retail at their authorized
franchised dealerships. ECF No. 175-3, PageID.19406. These records
provide information about the kinds of repairs executed along with
odometer readings at the time of service. Id. Stockton states that this
information can be used to determine both the commencement of excess
fuel consumption and the average distance accumulations for vehicles at
the vehicle identification number (“VIN”) level. Id. Stockton also
emphasizes that this data does not require individualized inquiry. Id.
5

67

Stockton does not rely upon the EPA estimates to calculate fuel costs, the
estimates are useful for their assumptions on typical driving miles and
per-gallon diesel fuel prices. Id. at PageID.19405–06.
3. Stockton’s
damages

proposal

for

calculating

class-wide

Stockton concludes that his damages models can be reliably and
manageably applied to calculate economic harm for a nationwide
putative class. To identify Trucks within Plaintiffs’ proposed class
definition, Stockton states that IHS Markit Automotive “provides data to
virtually all major entities that evaluate the retail automotive industry.”
Id. at PageID.19406. IHS specifically “works with manufacturers and
state agencies to tabulate, refine, anonymize, and organize information
drawn from vehicle registrations.” Id. Stockton claims that FCA
“cooperates with IHS in this process, leading to a high level of data
quality.” Id. IHS specifically maintains data on the number of cars in
operation “during specific time frames by make, model, model year, and
geography.” Id. By using this data to calculate the rate at which the
Trucks leave the consumer fleet (also called the “scrappage rate”),
Stockton can accurately estimate the Trucks’ useable lifetimes. Id.
Lastly, Stockton notes that IHS provides detailed information on
the resale vehicle market, allowing him to identify successive owners who
may be eligible to recover for excess fuel consumption. Id. at
PageID.19407–06. Stockton describes numerous other reliable data
68

sources that can support his models’ class-wide damages calculations. Id.
at PageID.19407–09.
iii.

Stockton’s December 16, 2021 Merits Report

Stockton’s December 16, 2021 merits report supplements and
incorporates his August 16, 2021 declaration in support of class
certification. Merits Report of Edward M. Stockton (Dec. 16, 2021), ECF
No. 217-2. In his merits report, Stockton executes the models described
in his class certification declaration and applies those models on a classwide basis. Id. at PageID.26506. He also describes the specific data
sources underlying his economic loss models and presents estimates of
economic loss from overpayment and excess fuel consumption. Id.
As previously discussed, Stockton’s damages models are based on
recovery for overpayment at the time of purchase attributable to the
undisclosed presence of the EEDs, and recovery for economic harm from
excess fuel consumption caused by the EEDs. Id. Stockton calculates
overpayment and excess fuel consumption damages on a class-wide basis.
Id. at PageID.26507–08. And without opining on whether such
calculations are “relevant in a legal sense,” Stockton also calculates
economic harm for Trucks that migrated outside the FCA dealer network
because Stockton concludes that even non-putative class members suffer
some residual overpayment harm. Id. at PageID.26507.

69

1. The effect of excluding Smithers’ defeat device
opinions on Stockton’s opinions
Stockton’s Overpayment model is premised on estimating
“economic harm if the EED [in the Trucks] is found to function as a
Defeat Device.” PageID.26525. As explained above, however, the Court
has excluded Smithers’ conclusion as to the presence of a defeat device.
Consequently, Stockton’s opinions on economic damages that specifically
assume the presence of a “defeat device”—as defined by Smithers and
federal regulations—are not admissible unless Plaintiffs can prove that
Defendants deployed defeat devices without relying on Smithers’
inadmissible fraud-on-the-regulators theory.
But as explained above, Smithers’ opinions on the presence of EEDs
are admissible and reliable. Stockton specifically theorizes that the
“estimate of economic harm from Overpayment from the EED is
predicated on finding that the EED offsets the incremental positive
benefit of the premium emissions feature.” Id. Moreover, Stockton
recognizes that both defeat devices and EEDs are “inferior and nonconforming . . . emissions features” that diminish the positive value of the
Truck, and notes that “models that quantify overpayment harm
attributable to the EED also measure negative impact on vehicle
emissions characteristics from the Defeat Device.” Id. at PageID.26509,
PageID.26525. As for Stockton’s Excess Fuel Consumption model,
Stockton explains that his model “tak[es] into account Excess Fuel
70

Consumption attributable to the EED.” Id. at PageID.26518. Therefore,
Stockton’s opinions that rely on the presence of an EED (based on
Smithers’ admissible EED opinions) remain admissible.
2. Stockton’s execution of the Overpayment and Excess
Fuel Consumption models
In his merits report, Stockton models economic harm from
overpayment “by estimating the degree to which consumers overpaid on
a net basis for the Class Vehicles as a result of the undisclosed presence
of the EEDs” at the point of purchase. Id. at PageID.26522. As discussed
in greater detail in addressing Defendants’ critiques below, Stockton
assumes that the premium price of the Trucks’ UCD emissions system is
$995. Id. Stockton explains that Defendants used the $995 premium
price to “recover costs” spent equipping the Trucks with the purportedly
“clean” emissions feature. Id. Specifically, Defendant FCA “directly
recoups cost by way of sales to authorized dealerships.” Id. The
dealerships then “resell[] authorized goods for a profit to end using
consumers.” Id.
Stockton’s Overpayment model calculates a net overpayment for
each model year (2007-2012) and each model (Ram 2500 and Ram 3500)
“equal to $995 multiplied by the relevant transaction price as a
percentage of MSRP.” Id. at PageID.26522–23. Stockton explains that
this formula accounts for the fact that dealerships generally receive a
discount when purchasing cars from FCA, and the dealerships provide
71

consumers with a discount below MSRP sticker price. Therefore, to
capture a consumer’s overpayment more accurately, Stockton’s formula
multiplies the discounted transaction price as a percentage of MSRP to
proportionally discount the $995 UCD sticker price. Id. at PageID.26513–
18. Stockton’s calculations for transaction price as a percentage of MSRP
are reflected in Tab 11 of his report. Id. at PageID.26602. As shown in
Table 6 of his report, Stockton then calculates net per-vehicle
overpayments amounts in respective year dollars and 2021 dollars
(adjusted for inflation). Id. at PageID.26523.
Stockton also calculates the estimated economic harm attributable
to the excess fuel consumption based on the undisclosed presence of
EEDs. Stockton uses two Excess Fuel Consumption models: one based on
EPA-estimated fuel Prices, and the other based on observed historical
fuel prices. Id. at PageID.26527. Stockton’s Excess Fuel Consumption
models are applicable to both the national and state-specific classes. Id.
at PageID.26528–29. Stockton’s excess fuel consumption calculations are
based on how much more putative class members spent on fuel given the
“baseline fuel economy” in city and highway conditions, percentage of
miles driven in city and highway conditions, and EPA estimated and
historical fuel costs. Id. at PageID.26527–29.
G. DEFENDANTS’ EXPERT LORIN HITT
Defendants critique Stockton’s opinions, report, and declaration
through their expert, Lorin Hitt (“Hitt”). Hitt has submitted an expert
72

declaration dated October 28, 2021 (ECF No. 217-5), and an expert merits
report dated February 11, 2022 (ECF No. 217-6).
Hitt is the Zhang Jindong Professor of Operations, Information and
Decisions at the University of Pennsylvania, Wharton School.
Declaration of Lorin M. Hitt, ECF No. 217-5, PageID.27064. Hitt received
his Ph.D. in Management from the Massachusetts Institute of
Technology Sloan School of Management in 1996, and his Sc.B. (1988)
and Sc.M. (1989) degrees in Electrical Engineering from Brown
University. Id.
As a member of the Information Strategy and Economics Group at
the University of Pennsylvania, his research and teaching focus on the
economics of consumer behavior, firm organization, and market
structure, with particular emphasis on the role of information on pricing,
performance, and competition. Id. Hitt has taught undergraduate,
masters, doctoral, and executive education level courses at the University
of Pennsylvania and the Massachusetts Institute of Technology on
competition and customer pricing in a variety of commercial and
consumer markets, information systems management, economics of
technology, and data analysis. Id.
Hitt has prior experience in litigation matters where he evaluated
the value of a product or product features, including products such as
automobiles, all-terrain vehicles, trucks, and others. Id. His expert
opinions in these matters have been accepted in federal and state courts.
73

Id. Hitt has other relevant experience set forth in his CV submitted to
the Court. Id. at PageID.27100–13.
Plaintiffs do not challenge Hitt’s qualifications to provide opinions
on the matters addressed in his declaration and merits report. The Court
finds that Hitt is qualified through his education, experience, and
training to provide the opinions in his declaration and merits report
critiquing Stockton’s opinions. See Counts, 2022 WL 2078023, at *28
(E.D. Mich. June 9, 2022) (denying Daubert motion to exclude Hitt’s
testimony on similar subject matters).
H. DEFENDANTS’ CRITIQUES OF STOCKTON’S
DECLARATION AND REPORT
As noted, Stockton has offered two damages models: (1) an
Overpayment model, which calculates the amount of overpayment at the
point of sale for the Trucks with excessive emissions; and (2) an Excess
Fuel Consumption model to calculate the increased costs passed along to
the consumer through purchasing more gas. Both models are premised on
Plaintiffs’ ability to prove the existence of the EEDs as described by
Plaintiffs’ engineering expert Smithers. And as previously noted, to the
extent that Stockton’s opinions are specifically based upon any of the EEDs
being defeat devices under the fraud-on-the-regulators theory, those
opinions are inadmissible and are not further addressed.

74

i.

Challenges to Stockton’s lack of supply and demand
analysis

Through Defendants’ Expert Hitt, Defendants argue that Stockton’s
models should be excluded because they do not consider supply and
demand factors in a “but-for world” where “the EED was absent or had
been disclosed.” Defendants’ Memorandum in Support of Their Motion to
Strike and Exclude the Declaration and Opinions of Plaintiffs’ Expert
Edward Stockton, ECF No. 194, PageID.24600; Hitt’s Merits Report,
ECF No. 217-6, PageID.27132. Specifically, Stockton’s analysis does not
account for actual or but-for prices or quantities, and whether disclosure
of any vehicle feature or attribute “would have changed prices paid in the
but-for world.” Id. at PageID.24600–01. Defendants argue that
Stockton’s models therefore cannot determine whether Plaintiffs
overpaid for the Trucks. Id. at PageID.26402.
Defendants contend that Stockton was required to use a different
model using “an economic analysis comparing (1) the market prices
Plaintiffs actually paid with (2) the prices they would have paid in a butfor world in which the EED was absent or had been disclosed.” Id. at
PageID.24600. Defendants cite cases supporting their argument that such
a comparison requires assessing market prices and the supply and
demand factors that determine market prices. Id. at PageID.24600 n.5,
PageID.24601 nn.6–7.

75

Defendants argue that without adequately considering these supply
and demand issues, Stockton improperly uses a “substitute” measure of
overpayment—the $995 figure associated with the ultra-clean diesel
system (“UCD System”) “that was listed on the Monroney labels for some,
but not all, of the subject vehicles.” Id. at PageID.24602. Defendants claim
that “Stockton presents no evidence that the $995 affected demand, even
for the subset of subject vehicles that had that figure on their Monroney
labels.” Id. at PageID.24603. Defendants emphasize that “for information
to affect consumer demand, consumers must be aware of it.” Id.
Defendants point out that Plaintiffs Forshaw, Perdue, and Chouffet
admitted that the $995 on their Trucks’ Monroney labels did not
influence their purchase decisions or willingness to pay. Id.
In a declaration responding to Defendants’ motion to exclude his
report and declaration, Stockton explains that his analyses and models
fully account for supply and demand factors. Declaration of Edward M.
Stockton (Nov. 12, 2021), ECF No. 197-2, PageID.25045–46. Specifically,
Stockton argues that the $995 price premium inherently considers supply
and demand, because “[s]upply and demand factors necessarily affect []
costs.” Id. at PageID.25046. Stockton also explains that he “directly
consider[s] the impact of supply and demand factors” through the rebates
on net prices paid by dealerships “and margins captured by dealerships in
retail sales to end-users.” Id. at PageID.25045. Furthermore, Stockton

76

clarifies that “[s]upply and demand factors directly affect observed market
outputs, given that the vehicles have already been sold.” Id.
The Court finds that Defendants’ critiques on the adequacy of
Stockton’s supply and demand analysis may affect the weight that the jury
should give to his opinions, but not admissibility. Stockton’s assumptions
with respect to supply and demand, which Defendants dispute, are
reasonable and substantiated by the record and basic economic principles.
Defendants’ arguments on this point are relevant, but they must ultimately
be assessed by the jury. The Court will not exclude Stockton’s opinions on
these grounds. See In re Cardizem CD Antitrust Litig., 200 F.R.D. 297, 325
(E.D. Mich. 2001) (explaining that courts “routinely reject” arguments
challenging the merits of an expert’s conclusions); see also Cason-Merenda
v. Detroit Med. Ctr., 862 F. Supp. 2d 603, 646 n.43 (E.D. Mich. 2012) (noting
that competing damages models represented a “battle of the experts” that
the jury must resolve). Thus, Defendants’ criticisms provide a fertile area
for cross-examination, but not exclusion. See Daubert, 509 U.S. at 595.
ii.

Challenges to Stockton’s lack of analysis of customers’
willingness to pay in a but-for world

Defendants assert that Stockton’s overpayment analysis is irrelevant
because Stockton did not consider what price putative class members would
be willing to pay in a but-for world where the EEDs were disclosed. ECF No.
194, PageID.24600–02. Based on Defendants’ Expert Hitt’s analysis,
Defendants argue that to be valid, Stockton’s opinions must be premised
77

upon the following: the $995 was on the Monroney label of the purchaser’s
Truck; the purchaser saw the $995; and the $995 on the label affected that
purchaser’s decision to buy or the amount that they paid. ECF No. 194,
PageID.24602–03; ECF No. 217-6, PageID.27138–40. Defendants contend
that Stockton’s report is based only on the cost charged to consumers for
the clean diesel attribute that consumers necessarily paid, but does not
account for the price consumers would have paid with a disclosure of the
EEDs. Id. at PageID.24602.
Stockton responds that it is more appropriate to use standardized
measures of market value to assess the price premium (i.e., the $995
associated with the clean diesel premium), rather than the “idiosyncratic
transactional behaviors” of individual consumers. ECF No. 197-2,
PageID.25040. The question, according to Stockton, is “would an informed
market increase the prevailing price to account for a feature that did not
provide incremental value?” Id. In that respect, Stockton explains that
whether the consumers saw the Monroney label is irrelevant to his
analysis. Id. Stockton clarifies that the alleged overpayment is rooted in
assessing “whether a feature whose positive attributes are fully negated
would add to the market price among informed participants.” Id. Assuming
an “informed market,” consumers would not be willing to pay more for a
feature that does not add incremental positive value. ECF No. 217-2,
PageID.26513.

78

Stockton also emphasizes that his Overpayment model calculates the
actual cost customers paid for the UCD System, based on FCA’s own data.
Declaration of Edward M. Stockton in Support of Plaintiffs’ Motion for
Class Certification, ECF No. 217-3, PageID.26848. Stockton recognizes that
“[u]ndisclosed elements of a transaction may adhere to the consumer in
harmful ways.” Id. at PageID.26820. Stockton contends that his
Overpayment model accounts for how “consumers can also assume at the
point of purchase reasonably foreseeable costs or other harm as a
consequence of” undisclosed product features. Id. Stockton acknowledges
that willingness to pay is one model of economic harm, but concludes that
his approach of “evaluat[ing] economic harm from overpayment at the point
of acquisition” is most appropriate here, where consumers bought vehicles
with an undisclosed defect that affected performance. Id; see also ECF No.
217-2, PageID.26520.
Despite Defendants’ arguments to the contrary, the Court finds that
Stockton’s Overpayment model provides useful evidence for the factfinder,
even if Stockton did not incorporate willingness to pay. As Stockton
explains, his approach intentionally avoids evaluating what individual
customers saw or relied upon because his model uses the price that FCA
assigned to the UCD System as the starting point. Furthermore, Stockton
explains how this cost is already present and accounted for in the vehicle
price, regardless of what any individual purchaser saw. Defendants can

79

raise their careful critiques of this approach through cross-examination, but
the Court will not exclude Stockton’s opinions on these grounds.
iii.

Challenges to Stockton’s lack of consideration for
putative class customer preferences and Truck features

Defendants

broadly

assert

that

“diesel

trucks

are

highly

differentiated products with different options and features that are
purchased by consumers with different preferences,” such that the
willingness to pay varies by customer. ECF No. 194, PageID.24604. But
this argument inaccurately assumes that the UCD System was optional
when it was not, having been built into every Truck in the putative class
period and without giving consumers the ability to accept or reject the
feature.
In general, Stockton calculated the increase in costs to consumers
associated with this UCD System. Because FCA did not sell the Trucks
directly to customers, but to dealerships that then resold the Trucks to
consumers, the UCD price premium is initially paid for by the dealership.
ECF No. 197-2, PageID.25038–39. But because dealerships seek to
maximize profit, it is rational to assume that all dealerships will recoup
that cost by passing at least a portion of the expense to the customer. Id.
Stockton thus explains that his Overpayment model is unaffected by
“heterogeneity in transaction prices associated with different features,
trimlines, and vehicle prices.” Id. at PageID.25042. Defendants can further

80

explore their critiques of this issue on cross-examination, but the Court will
not exclude Stockton’s opinions on these grounds.
iv.

Challenges to Stockton’s use of the $995 figure on the
Monroney labels and failure to disaggregate the NOx
reduction feature

Based on Defendants’ Expert Hitt’s analyses, Defendants also fault
Stockton for using $995 as a starting point figure for overpayment, with
$995 being the price of the UCD System listed by FCA on the Monroney
Labels of at least some of the Trucks. ECF No. 194, PageID.24602.
Defendants point out that Stockton refers to $995 as an MSRP or list price,
not a market price. Id. at PageID.24605. Defendants further state that
construing $995 as a list price of the Trucks’ UCD System is inaccurate
because consumers did not have the option to purchase the same vehicle
without the UCD System. Id. Defendants contend that featuring the $995
on the Monroney labels of some Trucks was intended to allow “dealers to
justify the increase in MSRP over previous iterations of the product, and
was not a representation of the economic value of the UCD System, much
less of the economic value of the NOx reduction component of that
system.” Id. Furthermore, Defendants explain that the $995 “did not
appear on the Monroney labels beginning in 2010,” meaning putative
class members who purchased their trucks after that point would not
have seen the UCD System price at all. Id. at PageID.24603.
Defendants therefore posit that the “price” of the UCD System
cannot be disaggregated or isolated from the total market price of the
81

Trucks. Id. at PageID.24606. Similarly, Defendants claim that they
“explicitly” marketed other benefits of the UCD System unrelated to NOx
reduction, including 350 horsepower and 605 foot-pounds of torque. Id.
at PageID.24608. Thus, Defendants argue that Stockton’s Overpayment
model should be excluded because the $995 figure fails to capture the
isolated value of reduced NOx emissions and is not limited to damages
attributable to Plaintiffs’ theories of liability or Defendants’ conduct. Id. at
PageID.26487.
Plaintiffs respond by pointing out that Stockton does not consider
$995 to be a list price or MSRP. Rather, Stockton acknowledges that the
$995 sticker price “is not necessarily the same as what the customer actually
pays,” such that the Overpayment model accounts for the transaction price
being lower than the $995 starting point. Plaintiffs’ Opposition to Motion to
Strike Stockton, ECF No. 197, PageID.25011–12. Plaintiffs also object to
Defendants’ arguments that the UCD System includes features unrelated to
reducing NOx emissions, such as horsepower and torque, because such
benefits are not itemized on the Monroney label nor Defendants’ internal
documents. Id. at PageID.25025–06.
Moreover, Plaintiffs argue that Stockton’s analyses are appropriate
because they do not depend on idiosyncratic consumer perceptions of the
value or distinction between features that reduce NOx emissions. Id. at
PageID.25025.

Instead,

Stockton’s

models

quantify

the

alleged

overpayment for all putative class members based on their purchase of a
82

product at an increased price that failed to serve its purported function.
Id.; see also ECF No. 217-3, PageID.26844–45.
Defendants’ critiques on Stockton’s use of the $995 figure and lack of
NOx reduction feature disaggregation are insufficient to warrant striking
Stockton’s testimony. At bottom, Defendants’ arguments focus on
weaknesses in the factual bases for Stockton’s analysis, which bear on
weight not admissibility. See McLean, 224 F.3d at 800–01.
v.

Challenges to Stockton’s “discounting” of the $995
figure and variance in transaction prices

In a similar vein, Defendants contest Stockton’s proposed method of
“discounting” the $995 starting point price to reflect the lower price
putative class members actually paid at the point of purchase. ECF No.
194, PageID.24609. Specifically, Defendants argue that Stockton
improperly assumes that the “discount” on the $995 price for the UCD
System “is proportional to the discount [the consumer] received on the
vehicle overall.” Id. at PageID.24610. Defendants also reiterate that
transaction prices varied “even among identical vehicles” based on the
differences in customized options, market conditions in different
locations, and one-off bargains. Id.
Plaintiffs respond by clarifying that even assuming transaction
prices varied, Stockton’s discounting method is appropriate because the
overpayment calculation “can apply to all pricing points” based on “a
profit percentage, not a hard or specific figure.” ECF No. 197,
83

PageID.25026. Although this does not directly rebut Defendants’
contention that the “discount” on the $995 UCD System price may not be
proportional to the overall vehicle discount—which Stockton does
consider—the Court declines to strike Stockton’s opinions on these
grounds. Defendants can certainly explore on cross examination whether
the factual bases for Stockton’s models are appropriate based on the
critiques raised here.
vi.

Challenges to Stockton’s methods on allocating
damages across multiple owners of the same vehicle

Defendants also reject Stockton’s approach to “allocat[ing] damages
associated with a single vehicle among original and later purchasers
based on the price that each owner paid.” ECF No. 194, PageID.24610.
Defendants claim that Stockton’s model assumes “that the economic
value of the NOx-reduction portion of the UCD System declines at exactly
the same rate as the overall price of the vehicle.” Id. Because Defendants
maintain that is impossible to “isolate UCD System depreciation from
overall depreciation,” Defendants claim that Stockton fails to adequately
support assumption that the UCD System depreciates proportionally and
“in lockstep with” the value of the entire vehicle. Id. at PageID.24611.
In response, Plaintiffs claim that Defendants misstate Stockton’s
theory on depreciation because overpayment damages do not depend on
whether the vehicle’s UCD System depreciates at the same rate as the rest
of the vehicle. Rather, Stockton’s model incorporates “pro rata”
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overpayment sharing, where each successive owner receives the portion of
the vehicle’s value that was consumed under their ownership. ECF No.
197, PageID.25023–24; see also ECF No. 197-2, PageID.25043.
Stockton clarifies that he did not purport to measure depreciation,
but uses a shared overpayment method to “take into account the degree of
each owner’s participation in the Overpayment, using share of the vehicle’s
lifetime ownership as a proxy.” ECF No. 217-3, PageID.25043–44.
Plaintiffs argue that this shared Overpayment model “allows for the
possibility that a first owner can recoup some of the original overpayment
when they sell the vehicle to a second owner,” without regard for
depreciation. ECF No. 197. PageID.25024. The Court finds that Stockton’s
shared overpayment methodology is admissible, and Defendants’
critiques are best addressed by cross-examination.
vii. Challenges to Stockton’s Excess Fuel Consumption
model
1. Stockton’s lack of consideration
expectations on fuel consumption

for

consumer

Defendants contend that Stockton’s Excess Fuel Consumption model
cannot establish the existence or amount of damages caused by excess fuel
consumption because Stockton’s analysis does not consider consumer
expectations on fuel consumption. ECF No. 194, PageID.24613. Defendants
criticize Stockton for relying on “the unsupported and implausible
assumption that all 400,000-plus putative class members [must have] the
same expectations about fuel consumption at the time of their purchases.”
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Id. at PageID.24614. According to Defendants, Stockton’s assumption is
contradicted by Plaintiffs’ deposition testimony on their fuel consumption
expectations, along with the notable variance in fuel economy among
Plaintiffs’ Trucks. Id. at PageID.24614 nn.22–23.
Plaintiffs first respond by emphasizing that “Stockton’s opinion does
not rest on consumer expectations, but instead quantifies the increased
price associated with all purchasers of Class Vehicles.” ECF No. 197,
PageID.25028; see also ECF No. 197-2, PageID.25042–43. And in general,
“customers do not have to have an expectation about fuel economy in order
to have a preference for not paying more.” ECF No. 197, PageID.25028.
Stockton further clarifies that regardless of consumers’ expectations on fuel
economy, putative class members pay more for fuel “because of an
undisclosed vehicle attribute.” ECF No. 197-2, PageID.25042–43.
2. Stockton’s Excess Fuel
purported analytical flaws

Consumption

model’s

Stockton’s Excess Fuel Consumption model measures the difference
in value between an emissions system that reduced fuel economy of the
vehicles (by using EEDs that divert excess fuel), and an emissions system
that functions properly. ECF No. 197, PageID.25029. As a starting point,
Stockton’s Excess Fuel Consumption model calculates expected fuel
costs, which are then subtracted from actual fuel costs to quantify the
fuel costs above what a consumer expects to get out of the vehicle. ECF
No. 217-3, PageID.26849–50.
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Defendants contend that Stockton’s method is analytically flawed
by relying on several improper assumptions. For example, Defendants
criticize Stockton’s reliance on the EPA’s Fuel Economy Guide, where the
Guide disclaims that its ratings may not accurately predict the miles per
gallon. ECF No. 217-6, PageID.27151. Defendants also contend that in
relying on Smithers’ EED opinions, Stockton’s excess fuel consumption
model assumes that a “but-for” world in which the Trucks do not have an
emissions system “is analytically incoherent, nonsensical, and inconsistent”
with Plaintiffs’ allegations. ECF No. 194, PageID.24615.
Stockton explains that his fuel cost methodology does not rely solely
on the EPA’s Fuel Economy Guide, but also a monthly fuel cost publication
from the U.S. Energy Information Administration. ECF No. 217-2,
PageID.26519. Plaintiffs further argue that the Excess Fuel Consumption
model is entirely consistent with their allegations, which extensively detail
how Defendants’ Trucks allegedly consume more fuel during the active
regeneration process. ECF No. 197, PageID.25016–17.
Moreover, Defendants misstate Stockton’s “but-for” assumption as
comparing Trucks “with and without [] entire emissions systems.” ECF No.
194, PageID.24616. But Stockton plainly states that his “but-for” analysis
considers vehicles with and without EEDs—that is, devices that
excessively increase emissions above what a reasonable consumer would
expect. ECF No. 194-2, PageID.24631.

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The Court finds that Defendants’ objections to Stockton’s Excess
Fuel Consumption model go to weight, not admissibility. Stockton has
thoroughly explained the bases upon which his opinions rest, which the
Court accepts as reasonable, in designing this Excess Fuel Consumption
model. Defendants may disagree with Stockton’s methodology and the
factual bases upon which his model rests, but they may explore those
points on cross-examination.
viii. Challenges to Stockton’s provision of windfall damages
Defendants contend that Stockton’s models allocate damages to
every putative class member regardless of whether they suffered injury,
creating a windfall to some putative class members. ECF No. 194,
PageID.24616–17. Defendants specifically note that putative class
members “who were not willing to pay a dime for the UCD System, even
if they negotiated away the entire $995 with their dealers at the time of
purchase” would unfairly recover under Stockton’s model. Id. Likewise,
Stockton’s models reward later purchasers who may not have overpaid
like the initial purchasers, while also allowing putative class members
who were not subject to any alleged misrepresentation to recover. Id.
Defendants cite several cases for the proposition that models that award
damages to all putative class members are inadmissible, insufficient to
support class certification, or both. Id. at PageID.24617 n.27.
Plaintiffs respond by reiterating that Stockton’s models “depend[] in
no way on what customers saw or expected.” ECF No. 197, PageID.25030.
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Plaintiffs also point out that Defendants fail to identify any uninjured
putative class members. Id. Furthermore, as discussed above, Stockton
opines that the transaction price of the UCD System is necessarily included
in the price of the Trucks, and does not disappear regardless of how putative
class members bargained with individual dealers or the rebates they
received.
Ultimately, Stockton has provided admissible measurements of classwide damages. And in class actions, courts permit damages to be allocated
after class certification. See Counts, 2022 WL 2078023 at *18 (E.D. Mich.
June 9, 2022) (“[A]llocation of the per-vehicle overpayment among class
members is a post-certification issue of claims administration.”). Even
where Defendants fault Stockton for failing to account for individualized
differences in his models (among other concerns), that is insufficient to
warrant exclusion. Stockton has provided two coherent and logical models
to calculate damages on a class-wide basis.
An expert is permitted to make reasonable assumptions, which
Stockton has done here. Stockton thoroughly describes his assumptions and
has adequately explained the bases for them. Stockton’s calculated
damages are not speculative. He uses publicly available information and
other reliable data to obtain the factors or inputs used in his two models,
which he cites extensively throughout his declaration and merits report.
Any difference in opinion about those assumptions should be resolved by a
jury and is not a proper basis to strike his opinions.
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I. RELEVANCE AND FIT OF STOCKTON’S OPINIONS
In addition to their specific critiques of Stockton’s opinions and
methodology, Defendants generally argue that Stockton’s models “should
be excluded because they are irrelevant to the claims actually at issue in
this case.” ECF No. 194, PageID.24598. Defendants claim that Plaintiffs
have not “plead any theory of liability based on the presence of an EED in
the subject vehicles,”

and Stockton’s models do not relate to

“representations or advertising.” Id. at PageID.24597–98. Defendants
further suggest that Stockton’s models lack relevance to Plaintiffs’
misrepresentation claims because Stockton’s models “assume that a
plaintiff can be damaged by a misrepresentation regardless” of what that
person saw, heard, or relied on in making the purchase. Id. at
PageID.24616.
However, as noted above, Stockton’s model is designed to measure the
amount of overpayment by putative class members due to the failure to
deliver the advertised UCD System for which a premium was paid because
of the EEDs. This is relevant to and fits with the allegations in Plaintiffs’
SCAC and TCAC. See, e.g., SCAC, ECF No. 62, PageID.8408–17, ¶¶ 124–
48; TCAC, ECF No. 255, PageID.35061–66, ¶¶ 126–40 (alleging false
promises and advertisements regarding clean diesel); ECF No. 62,
PageID.8343–44, ¶ 18; ECF No. 255, PageID.34993–94, ¶ 18 (alleging that
Plaintiffs did not get the Trucks with low emissions and high power that
they bargained for based on Defendants’ flawed designs); ECF No. 62,
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PageID.8349, ¶ 30; ECF No. 255, PageID.34999, ¶ 30 (describing results of
“real-world testing” that showed Defendants’ failure to disclose excess
emissions); ECF No. 62, PageID.8350, ¶ 32; ECF No. 255, PageID.35000, ¶
32 (alleging that Plaintiffs would not have purchased, or would have paid
less for the Trucks if Defendants had properly disclosed the excess
emissions and lower fuel economy).
As detailed above, Stockton’s damages models measure overpayment
at point of sale and excess costs from decreased fuel economy. Plaintiffs
have clearly alleged that they overpaid for both the Trucks and fuel based
on their lack of awareness that Defendants’ product generated higher
emissions and, as a result, worse fuel economy. Stockton’s damages models
are germane to assessing the injury caused by these allegations and are
admissible for that purpose.
IV. CONCLUSION
For the foregoing reasons, the Court:
1.

DENIES in its entirety Defendants Cummins Inc. and FCA
US LLC’s motion to strike Plaintiffs’ expert Juston
Smithers’ August 16, 2021 report and opinions on class
certification (ECF No. 192);

2.

DENIES in its entirety Defendants Cummins Inc. and FCA
US LLC’s motion to strike Plaintiffs’ expert Juston
Smithers’ declaration of November 12, 2021 (ECF No. 203);

3.

DENIES in part and GRANTS in part Defendants
Cummins Inc. and FCA US LLC’s motion to strike Plaintiffs’
expert Juston Smithers’ merits report and opinions of
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December 16, 2021 (ECF No. 219). The motion is granted only
with respect to Smithers’ opinions as to defeat devices;
4.

DENIES in part and GRANTS in part Defendants
Cummins Inc. and FCA US LLC’s motion to strike and
exclude the declarations and opinions of Plaintiffs’ expert
Edward Stockton on class certification of August 16, 2021
(ECF No. 194). The motion is granted only with respect to
Stockton’s reliance on Smithers’ opinions as to defeat devices;
and

5.

DENIES in part and GRANTS in part Defendants
Cummins Inc. and FCA US LLC’s motion to strike and
exclude the merits report and opinions of Plaintiffs’ expert
Edward Stockton of December 16, 2021 (ECF No. 217). The
motion is granted only with respect to Stockton’s reliance on
Smithers’ opinions as to defeat devices.

IT IS SO ORDERED.

Dated: September 30,
2022

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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Certificate of Service
I hereby certify that this Order was electronically filed,
and the parties and/or counsel of record were served on
September 30, 2022.
s/A. Chubb
Case Manager

93