George et al v. Omega Flex, Inc. et al

Filing 341

ORDER denying as moot 225 motion to certify class; denying a moot 266 motion to strike 310 Joint MOTION to strike or Exclude Opinions of Dr. Aaron Hedlund, Ph. D., 266 Joint MOTION to strike Declarations of Goodson and Ro usseau, 225 MOTION to certify class , Appointment of Class Representatives, and Appointment of Class Counsel, 268 Joint MOTION to strike or Exclude Opinions of Dr. Aaron Hedlund, 305 MOTION for summary judgment on behalf of Defendants ; denying 268 motion to strike ; granting 305 motion for summary judgment; denying 310 motion to strike. The Court ORDERS judgment entered in favor of Defendants. Signed on 8/13/20 by District Judge M. Douglas Harpool. (View, Pat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
BONNIE GEORGE, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
vs.
OMEGA FLEX, INC., et al,
Defendants.

Civil Action No. 2:17-cv-3114-MDH

ORDER
Before the Court is Plaintiffs’ Motion for Class Certification pursuant to Fed. Rul. Civ. P.
23 (Doc. 225); Defendants’ Motion to Strike the Declarations of Mark Goodson and Alain
Rousseau (Doc. 266); Defendants’ Motions to Exclude Opinions of Aaron Hedlund (Doc. 268
and 310); and Defendants’ Motion for Summary Judgment. (Doc. 305). For the reasons set forth
herein, Defendants’ Motion for Summary Judgment is GRANTED. The remaining motions are
DENIED as further discussed herein.
BACKGROUND
Plaintiffs’ class action lawsuit alleges violations of the Missouri Merchandising Practices
Act (“MMPA”), conspiracy, and unjust enrichment. Defendants manufacture and distribute
corrugated stainless steel tubing (CSST), a flexible pipe used to transport natural or propane gas
within homes and structures. Omega Flex manufactured and sold TracPipe® brand CSST in the
U.S. from approximately 1997 until September 2011. Titeflex manufactured and sold Gastite®
brand CSST in the U.S. from approximately 1992 until 2015. Ward began selling WARDFLEX®
brand CSST in the U.S. in the early 1990s and continues to manufacture and sell it in the U.S.
today. Plaintiffs refer to all three of these brands as “Yellow CSST.” The parties dispute whether
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bonding and grounding Yellow CSST is an effective method to protect equipment and systems
from electrical energy over a wide range of industries.1 The alleged defect is the safety of the
product installed in Plaintiffs’ homes.2 It is undisputed that at the time of this lawsuit Yellow
CSST has not caused any physical damage to the Plaintiffs’ homes or structures. Rather, Plaintiffs’
lawsuit alleges the Yellow CSST present in their homes has caused, or will cause, a diminution of
value to their homes.3
The Omega Flex Plaintiffs
Plaintiffs Brian Immekus, Bobbie Lee, Ron Metzgar, James Rehm, and Tammy Volkart
(together, the “Omega Flex Plaintiffs”) each own or previously owned a home in which TracPipe
is installed. Brian Immekus acquired his TracPipe in January 2012 while building his home in
Sullivan, Missouri. Mr. Immekus testified that he “didn’t know in advance that TracPipe was going
to be installed during the construction of [his] home,” that he “didn’t make the decision to include
TracPipe in [his] home at the time of construction,” and that he “didn’t give any thought to whether
TracPipe would be installed in [his] home at the time of construction.” Mr. Immekus testified that
he was “unaware of any statements by any of the defendants about yellow CSST when [he]
acquired [his] TracPipe,” that he was “unaware of any statements by defendants about bonding
and grounding when [he] acquired [his] TracPipe,” and that “Omega Flex made no statement in

1

A number of the “material facts” regarding the bonding and grounding standards and the codes
related to the same are disputed. The Court finds these disputed facts are not material to the Court’s
ruling on the pending motions. This includes the reports submitted by engineers regarding the
safety of Yellow CSST when bonded and grounded. However, the Court does consider any
relevant facts in a light most favorable to Plaintiff as the non-moving party.
2
One of the Plaintiffs is not a homeowner. Amazing Grace Community Church is identified as a
Plaintiff.
3
A 2004 class action lawsuit filed in state court alleging that CSST posed an unreasonable risk
and/or danger of fire due to lightning strikes was resolved via settlement. The state court approved
the settlement and found that the marketing efforts agreed to by the parties satisfied the terms of
the settlement agreement and adequately warned of the alleged risks to CSST posed by lightning.
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connection with any purchases that [he] made,” including his purchase of TracPipe. Mr. Immekus’
TracPipe was bonded and grounded when it was installed, but he does not know whether the person
who installed his CSST specifically charged a fee to bond and ground it or whether he was paid as
part of his other work. Mr. Immekus testified that he “never actually had a problem with [his]
TracPipe in the seven-plus years since it was installed,” but that he “would like to replace the
TracPipe in the future” and that the reason for wanting it replaced is his “new knowledge that it is
a less safe material.”4 Mr. Immekus’ home was appraised as of May 28, 2012 at approximately
$45,000 more than he paid for it. Plaintiff states the appraisal includes the value of gifted land as
a well as the home.
Plaintiff Bobbie Lee acquired her TracPipe in September 2009 while building her home in
Sullivan, Missouri. Ms. Lee testified that she “didn’t know in advance that the TracPipe was going
to be installed in the home,” that she “didn’t make the decision to install TracPipe in [her] home,”
and that “at the time that [her] home … was built, [she] had never heard of yellow CSST.” Ms.
Lee further testified that “the inclusion of CSST in [her] home … was not significant to [her] at
the time that [she] purchased the home.” Ms. Lee testified that she was “unaware of any statements
by Defendants about yellow CSST when [she] acquired [her] TracPipe,” that she was “unaware of
any statements by Defendants about bonding and grounding when [she] acquired [her] TracPipe,”
and that “Omega Flex made no statement in connection[] with any purchases that [she] made,”
including her purchase of TracPipe. Ms. Lee’s TracPipe was bonded and grounded when it was
installed. Ms. Lee testified that she “never had a problem with [her] TracPipe in the eight years

4

Mr. Immekus testified that his TracPipe “has been living up to [his] expectations,” that it is “still
providing [him] with the value that [he] expected,” and that he is “not claiming in this lawsuit that
[he] overpaid for [his] TracPipe.” Plaintiffs argue this testimony is taken out of context and that
Mr. Immekus would like to replace the CSST in the future because he has knowledge that it is a
less safe material.
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that [she] owned it,” but she believes OmegaFlex should replace the yellow CSST with Black
CSST. Ms. Lee’s home was appraised as of October 27, 2009 at approximately $8,000 more than
what she paid for it. Ms. Lee never repaired or replaced her TracPipe, nor did she perform any
other remedial measures to address her perception that the TracPipe installed in her home was
dangerous. Ms. Lee sold her home in October 2017. Ms. Lee testified that “the value of [her]
home increased over time” such that she was “able to turn a profit when [she] sold the home,” and
she acknowledged “that the presence of TracPipe in [her] home did not decrease the value of [her]
home.” Ms. Lee testified that “there was no reason for [her] to disclose the presence of yellow
CSST when [she] sold [her] home," and that she “didn’t agree to sell the home for a lower price
on account of the yellow CSST.” Plaintiff states she formed her belief about the difference
between Black and Yellow CSST in late 2018 and joined the case in January 2019.
Ron Metzgar acquired his TracPipe in 2009 during the construction of his home in
Waynesville, Missouri. Mr. Metzgar testified that he “did not make the decision to install yellow
CSST in [his] home,” and that he “didn’t know that yellow CSST was going to be installed during
construction.” Mr. Metzgar testified that “[p]rior to being involved in this lawsuit, [he] did not see
any marketing materials from Omega Flex.” Mr. Metzgar’s CSST is not bonded and grounded.
Mr. Metzgar testified that he was “not asserting that [he] overpaid for [his] CSST.” He also
testified he has shut off the gas and no longer uses the CSST.
James Rehm acquired his TracPipe in 2011 during the construction of his home in
Waynesville, Missouri. Mr. Rehm testified that he “w[as]n’t aware of any advertising or marketing
from Omega Flex until years after the construction of [his] home,” and that he did not “see a
statement from Omega Flex regarding bonding and grounding when [he] installed [his] yellow
CSST.” Mr. Rehm’s CSST is not bonded and grounded and he testified that he has never “had a

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problem with [his] CSST.” Mr. Rehm’s home was appraised as of September 17, 2015 at
approximately $115,000 more than he paid for it.
Tammy Volkart acquired her TracPipe in 2007 when she purchased her home in California,
Missouri. Ms. Volkart testified that “yellow CSST was not something [she] considered when
buying [her] home,” that “at the time that [she] bought the home, [she] had actually never heard
of CSST,” and that “the inclusion of the CSST in [her] home was not significant to [her] when
[she] purchased the home.” Ms. Volkart testified that when she acquired her TracPipe, she was
“unaware of any statements that Omega Flex had made about the product” and that Omega Flex
“made no statements in connection with any purchases that [she] made,” including her purchase
of TracPipe. Ms. Volkart’s CSST is not bonded and grounded and she testified that “there’s never
been a problem with [her] TracPipe CSST in the 12 years since it was installed.” However, she
wants to replace it because “there’s a danger in it.” Ms. Volkart testified that her TracPipe “is
living up to [her] expectations” and “is still providing [her] with the value [she] expected when
[she] bought [her] home,” and that she has not “experienced any monetary losses from having
TracPipe installed in [her] home.” Ms. Volkart’s home was appraised as of March 26, 2010 at
approximately $43,500 more than she paid for it, and again as of February 26, 2016 at
approximately $58,500 more than she paid for it. Ms. Volkart rented out her home beginning in
June 2016.
The Titeflex Plaintiffs
Plaintiffs Cedar Deraps, Bonnie George, and Casey Wasser (the “Titeflex Plaintiffs”) each
own a home in which Gastite is installed. Cedar Deraps acquired his Gastite in or about late 2007
or early 2008, when he remodeled his home in Jamestown, Missouri. Mr. Deraps’ CSST is bonded
and grounded through work he performed himself in 2017. Mr. Deraps testified that his Gastite

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CSST has “never failed” or leaked gas. Mr. Deraps admits he paid no money for his CSST, which
he acquired from his family’s company. Mr. Deraps testified he exchanged labor for the CSST,
as well as other building supplies, through an informal agreement with his father. Mr. Deraps
testified that he has never tried selling his home. Deraps’ home was appraised as of May 1, 2013
at approximately $55,000 more than he paid for it, and as of June 9, 2015 at approximately $88,695
more than he paid for it.
Bonnie George acquired her Gastite in 2011 while building her home in California,
Missouri. Ms. George testified that she had “never heard of CSST prior to 2015” and “never saw
any representations or communications from anyone about CSST prior to 2015.” Ms. George’s
CSST is not bonded and grounded. Ms. George testified that her Gastite has “never failed.” Ms.
George’s home was appraised as of March 19, 2012 and again as of June 27, 2012, in each instance
at more than she paid for it.
Casey Wasser acquired his Gastite in 2014 or 2015 while building his home in California,
Missouri. Mr. Wasser testified that he “do[es]n’t recall any representations that [he] received from
Titeflex” while his home was being built. Mr. Wasser admitted that CSST “wasn’t in [his] lexicon”
when his home was built, and he “didn’t know” his general contractor “was going to use CSST”
as part of the construction. Mr. Wasser’s CSST is not bonded and grounded and he testified he
has not had problems with it. Mr. Wasser testified that he “ha[s]n’t suffered any economic damage
at this point” as a result of having Gastite in his home. 5

5

None of the appraisals and/or inspections of any of the Plaintiffs’ homes mention the presence
of Yellow CSST.
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The Ward Plaintiffs
Plaintiffs Amazing Grace Community Church (the “Church”), Ed McKinzie, and Tim
Worstell (together, the “Ward Plaintiffs”) each own or previously owned a home or structure in
which WARDFLEX is installed. WARDFLEX was installed in the Church in 2008–2009, during
its construction in Cuba, Missouri. No one lives on the Church’s property, and it has no living
facilities. Ms. Happel testified, as the Church’s representative, that she “ha[d]n’t read anything
from Ward Manufacturing about either pipe [CSST or black iron pipe].” The Church’s CSST was
installed by a church member who regularly installed CSST, ordered it through the company he
worked for, and installed it. The parties dispute whether the Church paid to have the CSST bonded
and grounded. Plaintiff states the Church “paid for materials.” Ms. Happel testified that there are
no leaks or holes in the Church’s WARDFLEX, and that “the gas is, in fact, working.” Ms. Happel
further testified that “[t]he church hasn’t been damaged in any way” and that “the [CSST] hasn’t
been damaged,” but that they want to replace the Yellow CSST with Black CSST. The Church was
appraised as of October 27, 2008 at $165,000 more than the purchase price.
Ed McKinzie acquired his WARDFLEX in 2011 while building his home in Columbia,
Missouri. Mr. McKinzie did not recall having any conversations about gas piping during the
construction of his home and testified that his builder decided to install CSST. Mr. McKinzie
testified that he “had never heard of” CSST until an attorney discussed it with him. Mr. McKinzie
testified that he saw no advertisements for CSST until the evening before his July 23, 2019
deposition in this case. Mr. McKinzie testified that he did not know whether the WARDFLEX at
his former home was bonded and grounded. Mr. McKinzie testified that he did not “have any
problems with [his CSST] at all” while living at his former home. Mr. McKinzie’s home was
appraised as of November 7, 2011 at approximately $7,000 more than he paid for it. Mr. McKinzie

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sold his home in 2017 “for approximately $43,000 more than [he] purchased it for,” and that “the
presence of CSST could not have impacted how much [the buyers] were willing to pay for the
home.”
Tim Worstell acquired his WARDFLEX in 2014 to 2015 while building his home in
Columbia, Missouri. Mr. Worstell was not aware of CSST or its presence in his home before he
was informed of this lawsuit. Mr. Worstell’s WARDFLEX is not bonded and grounded. Mr.
Worstell has never had a gas leak at his home.
Plaintiffs’ statement of facts contains 164 paragraphs. Plaintiffs have created headings for
their “facts” which the Court finds argumentative. However, for purposes of summarizing
Plaintiffs’ arguments, the headings include, but are not limited to:

















Defendants’ Yellow CSST Has Been Tested To Fail At .12 Coulombs, Which
Is Much Less Than A Typical Lightning Flash
Currently The Code Requires That CSST Be Able To Withstand 4.5 Coulombs
Unjacketed CSST Stainless Steel Is As Much As 25 Times More Resistant To
Puncture Than CSST With A Yellow Jacket
Black Iron Pipe Demonstrated No Melt-Through At 480 Coulombs
The International Association Of Fire Chiefs Estimates That The Presence Of
Yellow CSST In A Home Increases The Risk Of Fire 10-Fold Compared To
Homes Without Yellow CSST
As Of 2011 More Than 717 Million Feet Of CSST Were Installed In U.S.
Homes
According To Robert Torbin, In The First Half Of 2000, There Were An
Average Of 4,800 House Fires Per Year Caused By Lightning
Defendants Have Known Since The 1990s And 2000s That Their Yellow CSST Was
Subject To Failure

Defendants Admit That Their Yellow CSST Is Subject To Failure
Admissions by Omega Flex that Yellow CSST is Subject to Failure
Admissions by TiteFlex that Yellow CSST is Subject to Failure
Admissions by Ward that Yellow CSST is Subject to Failure
Admissions Jointly Made by All Defendants that Yellow CSST is Subject to
Failure
Statements by Industry Experts that CSST is Subject to Failure
Defendants’ Yellow CSST Products Are Substantially The Same
Omega Flex Made Numerous Public Misrepresentations On Its CSST Facts
Website About CSST Safety, Including That CSST Is The Only Gas Piping
That Withstands Quakes And Lightning
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







Omega Flex Makes Additional Public Misrepresentations That Yellow CSST
Is Safe Or Can Be Made Safe
Titeflex Misrepresented To The Public That Yellow CSST Is Safe Or Capable
Of Being Made Safe
Defendants Jointly Misrepresent That Yellow CSST Is Safe Or Capable Of
Being Made Safe
Defendants Make These Misrepresentations In The Face Of Their Knowledge
That Yellow CSST Cannot Be Made Safe
Defendants Failed To Take Action Based On Economic Considerations
Despite Knowledge Of The Risks Associated With Yellow CSST, Defendants
Failed To Provide Any Warning Until Forced To Do So By Class Action
Litigation
Home Fires Started by Lightning Have Astronomical Economic and Loss-OfLife Costs

These headings, along with similar headings that contain extensive paragraphs of “facts,”
continue for several pages. The paragraphs go into great detail about the history of the product
and its alleged safety – which would have been the basis for the 2004 state court class action
products liability case. It is not until after paragraph 132, on page 73 of Plaintiffs’ 106 page brief,
that Plaintiffs finally reference for the first time “Statements About Plaintiffs’ Yellow CSST.”
Paragraph 1 of this section states:
See Excerpts from the Transcripts of Plaintiffs’ Depositions, attached as Exh. A to
Plaintiffs’ Reply in Support of Motion for Class Certification, Dkt. No. 295.02
“Plaintiffs’ Testimony of Defendants’ Misrepresentations”): Ed McKinzie at 45:515 (“the three main defendants in this case continue to market a product and
manufacture a product and allow the sale of a product that was, in my opinion, unfit
to be installed in a home. And I think they knowingly not only sold this product
with the inherent risks of that product, but I think they also misled the varying trades
of – from builders to real estate agent to inspectors with misinformation on how
safe the product was.”); Cedar Deraps at 8:1-15; Casey Wasser at 8:4-9; James
Rehm at 72:21- 73:15, 107:17-23; Ron Metzgar at 135: 1-21; Bobbie Lee at 20:2023; Brian Immekus at 95:11- 16; and Amazing Grace Community Church at 55:614; 109:19-24.
This paragraph references eight of the Plaintiffs’ testimonies about their personal opinions and
beliefs about Yellow CSST and its safety. It does not include reference to any personal or direct
interaction by any Plaintiff with statements made by any Defendant, or that any claim was made

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by the Defendants to a specific Plaintiff. The “facts” do not include any reference to actions taken
by Plaintiffs with regard to any alleged statement made by a Defendant. In fact, there is no
evidence that any of the Plaintiffs saw or heard any of the alleged “misrepresentations” that
Plaintiffs include in over 100 paragraphs of the preceding statements of facts.

Numerous

paragraphs include similar statements made by Plaintiffs, such as: “the litigation is about a product
that I believe has been promoted as a safe product when, in fact, it is not”; “the three main
defendants in this case continue to market a product and manufacture a product and allow the sale
of a product that was, in my opinion, unfit to be installed”; “[I was] sold a product or had a product
installed on my home that was not as safe as it was once said to be”; and “defendants are misleading
inspectors and real estate groups on the safety of the product”. Plaintiffs also include paragraphs
supporting the claim that they “were unaware of the safety risks of yellow CSST at the time it was
installed in their homes or they purchased homes with yellow CSST” (Metzgar “had no knowledge
of those pipes, so [he] couldn’t formulate an opinion as to whether they were safe); and that “they
were concerned about their safety when they learned about yellow CSST.” 6
STANDARD
Summary judgment is proper where, viewing the evidence in the light most favorable to
the non-moving party, there are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Reich v. ConAgra, Inc., 987 F.2d 1357, 1359
(8th Cir. 1993). “Where there is no dispute of material fact and reasonable fact finders could not
find in favor of the nonmoving party, summary judgment is appropriate.” Quinn v. St. Louis
County, 653 F.3d 745, 750 (8th Cir. 2011). Initially, the moving party bears the burden of

6

Plaintiffs also include statement that have no bearing on their claims such as “Plaintiffs Worstell
and Lee testified that other consumers would be upset if they knew about the risks of yellow
CSST.”
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demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the movant meets the initial step, the burden shifts to the nonmoving party to
“set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). To satisfy this burden, the nonmoving party must “do more than
simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A question of material fact is not required to be resolved conclusively in favor of the party
asserting its existence. Rather, all that is required is sufficient evidence supporting the factual
dispute that would require a jury to resolve the differing versions of truth at trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. at 248-249. Further, determinations of credibility and the weight to
give evidence are the functions of the jury, not the judge. Wierman v. Casey’s General Stores, et
al., 638 F.3d 984, 993 (8th Cir. 2011).
DISCUSSION
I.

MMPA CLAIMS

Defendants move for summary judgment on Plaintiffs’ Missouri Merchandising Practices
Act (“MMPA”) claims arguing: 1) Plaintiffs have not sustained an ascertainable loss of money or
property; 2) Plaintiffs cannot show an unlawful practice; 3) there is no connection between
Plaintiffs’ purchases and any statement made by Defendants; and 4) there is no causation. 7
To prevail on an MMPA claim, Plaintiffs must prove that: 1) they leased or purchased a
product or service sold or advertised by Defendants for personal use; 2) they suffered an
ascertainable loss of money or property; 3) Defendants committed an unfair or deceptive trade

7

Defendants also argue the Church did not purchase CSST for personal, family, or household use
and therefore is not a proper plaintiff under the MMPA.
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practice; 4) in connection with the sale; (5) which caused the Plaintiffs’ loss. Mo. Rev. Stat. §§
407.020, 025; Faltermeier v. FCA US LLC, 2017 WL 1128467, at *3 (W.D. Mo. Mar. 24, 2017)
(order granting summary judgment) (internal citations omitted). Plaintiffs’ failure to establish an
essential element of their claim under the MMPA entitles Defendants to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 at 323.
A. Plaintiffs cannot establish a connection with an alleged misrepresentation
and the purchase of their homes.
The MMPA prohibits “[t]he act, use or employment by any person of any deception, fraud,
false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression,
or omission of any material fact in connection with the sale or advertisement of any merchandise
in trade or commerce…” Faltermeier v. FCA US LLC, 899 F.3d 617, 622 (8th Cir. 2018); citing
Mo. Rev. Stat. § 407.020.1. “Under Missouri law, a wide range of deceptive conduct may qualify
as ‘in connection with’ a purchase.” Id., citing Schuchmann v. Air Servs. Heating & Air
Conditioning, Inc., 199 S.W.3d 228, 233 (Mo. Ct. App. 2006) (quoting Ports Petroleum Co., Inc.
of Ohio v. Nixon, 37 S.W.3d 237, 240 (Mo. banc 2001). However, the Eighth Circuit has stated
that in order to prevail on a MMPA claim the “alleged misrepresentation must have a relationship
with the sale.” Id., citing Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 414 (Mo. banc 2014).
In Faltermeier, the district court found that the plaintiff could not show that he purchased
his vehicle “in connection with” any alleged misrepresentation made by defendant. Id. The Eighth
Circuit affirmed the district court finding that while the buyer’s actual reliance on the defendant’s
misrepresentation is not required, “evidence of some factual connection between the
misrepresentation and the purchase is required.” Faltermeier v. FCA US LLC, 899 F.3d at 622
(“… there is no evidence that either the seller or the buyer was aware of the misrepresentation.
Nor was the intermediary seller an unwitting conduit for passing on the substance of the
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misrepresentation.”) Plaintiffs argue that neither an intent to defraud nor reliance are required
under the MMPA. Citing Johnson v. Atkins Nutritionals, Inc., 2018 WL 3398162, at *2 (W.D.
Mo. July 12, 2018). However, while this is true, the Eighth Circuit has found that there must be
some evidence of a connection between the misrepresentation and the purchase. Faltermeier v.
FCA US LLC, 899 F.3d at 622.
Here, none of the Plaintiffs testified that they made a purchase in connection with any
information or misrepresentation made by any Defendant. Considering the facts in a light most
favorable to Plaintiffs, the record does not contain facts to support a claim that any of the Plaintiffs
made a purchase of Yellow CSST in connection with any statements made by any Defendants
regarding the safety of Yellow CSST. To the contrary, the testimony of the Plaintiffs is that they
had no knowledge of the presence of Yellow CSST in their homes or any representations of the
safety of Yellow CSST at the time they built or purchased their homes. Further, the testimony of
plaintiff Deraps, who acquired the Yellow CSST through his family’s business, did not indicate
he received any information about the product’s safety prior to acquiring the product. None of the
Plaintiffs have testified that the presence of Yellow CSST in a house motivated their decision to
purchase their homes or had any connection to their decision in building their homes.
In addition, the Court notes that the Defendants’ marketing and advertising of Yellow
CSST, and representations regarding the safety of bonding and grounding of the product, was
approved by a state court in a prior products liability class action lawsuit. Because the marketing
and advertising of Yellow CSST’s safety was approved by, and consistent with, a prior court order
entered pursuant to the settlement of a class action, the Defendants’ conduct should be considered
lawful, absent extraordinary circumstances, so long as it complies with the state court’s order.
There is no allegation that Defendants have violated the prior Court’s order with regard to their

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representations regarding Yellow CSST. As such, Plaintiffs would be unable to establish that any
alleged representations of Yellow CSST were employed using deception, fraud, false pretense,
false promise, misrepresentation, or unfair practice when Defendants’ statements regarding the
products’ safety were previously approved by a state court.
Here, Plaintiffs simply cannot establish a connection with any alleged misrepresentation
and their purchase or building of homes containing Yellow CSST and as such their claims fail.
B. Plaintiffs have not sustained an ascertainable loss of money or property.
Even if Plaintiffs could establish a connection between a misrepresentation made by
Defendants and the purchase or building of their homes containing Yellow CSST, the Court also
finds Plaintiffs cannot establish that they have suffered an ascertainable loss. First, as previously
stated there is no evidence of any alleged defect causing any physical harm to any of Plaintiffs’
homes. Rather, the Plaintiffs’ claims are based on the “benefit of the bargain” and Plaintiffs
contend the measure of damages applicable to their claims are: “1) cost of repair; 2) restitution;
and 3) disgorgement.” To demonstrate a loss of the benefit of the bargain, Plaintiffs must establish
that the difference between the actual value of the product and what its value would have been if
it had been as represented is different. Sunset Pools of St. Louis, Inc. v. Schaefer, 869 S.W.2d 883,
886 (Mo. Ct. App. 1994).
First, there is no evidence that any Plaintiff overpaid for Yellow CSST. In fact, most
Plaintiffs, with the exception of plaintiff Deraps, did not personally purchase or acquire the Yellow
CSST.8 Further, Plaintiffs testified they were unaware of the presence of Yellow CSST in their
homes when they were either purchased or built.

Plaintiffs argue that “although they were

8

Plaintiff Deraps acquired Yellow CSST from his family’s company and testified he exchanged
labor for the CSST through an informal agreement with his father. He also performed the bonding
and grounding of the Yellow CSST himself.
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previously unaware of the safety risks of Yellow CSST, once they became aware of the alleged
risk they were concerned…” and “they want the yellow CSST in their homes replaced.” Plaintiffs
offer no evidence of any current issues with the function of Yellow CSST in their homes or the
need for “repair” other than their conclusory statements that they want the Yellow CSST replaced.
Further, Plaintiffs have offered no evidence of a diminution of value in their homes. In
fact, the appraisals show increases in the value of Plaintiffs’ homes. Further, the appraisals and
inspections of Plaintiffs’ homes do not mention the presence of Yellow CSST in any of the homes.
Plaintiffs simply have no evidence that they paid more for the product, in this case homes
containing Yellow CSST, based on any representation or that the product is worth less than what
was represented.
It appears Plaintiffs have abandoned their previous arguments regarding the measure of
damages in this case.9 Plaintiffs’ opposition to summary judgment now argues the measure of the
benefit of the bargain should be the cost to repair and replace the Yellow CSST in their homes and
that the diminution in value of their homes has no bearing on the benefit of the bargain damages.
However, Plaintiffs must establish that the Yellow CSST is worth less than what they paid for it.
A review of the record before the Court shows no evidence of a diminution in value of the
homes, no evidence that any appraisal or inspection references the presence of Yellow CSST in
the homes, and no evidence of any malfunction of the Yellow CSST.
Here, Plaintiffs cannot establish that they overpaid for the Yellow CSST. Dr. Hedlund,
Plaintiffs’ damages expert, has rendered an opinion regarding how to calculate the cost to repair
the Yellow CSST in Plaintiffs’ homes and how to calculate restitution amounts for the presence of

9

Plaintiff’s Complaint alleges that they suffered an ascertainable loss because their home’s value
is decreased because of the presence of Yellow CSST.
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Yellow CSST. However, Dr. Hedlund’s opinion simply attempts to provide what the cost to
replace Yellow CSST with Black CSST would be if the Plaintiffs homes were “repaired.” This is
not enough to show an ascertainable loss of money or property.
At this time there has been no manifestation of any defect in the product and importantly
none of the Plaintiffs have replaced the Yellow CSST in their homes. In fact, Plaintiffs have not
taken any remedial measures, either by replacing the Yellow CSST or otherwise, despite their
alleged knowledge of the “dangers” of the product dating back to when their lawsuit was first filed
over 4 years ago. The evidence is that the Yellow CSST is currently performing in Plaintiffs’
homes. Plaintiffs claim that they have “safety concerns” with the product in their homes but simply
cannot establish that the value of Yellow CSST as represented at the time of the transaction (in
this instance when their homes were purchased) is different than the actual value of the product
that is currently performing in their homes today. The speculative “replacement costs” alleged by
Plaintiffs as the basis for a diminution of value claim is not sufficient. For these reasons, Plaintiffs
claims also fail.
Finally, the Court notes that some of the Plaintiffs assert that out of pocket expenses for
bonding and grounding amounts to a measure of damages. However, the Plaintiffs that have not
had their product bonded and grounded have not shown a loss when they continue to receive the
benefit from the product in their homes. Further, the Plaintiffs who have Yellow CSST that is
already bonded and grounded cannot show that they incurred any extra or additional costs for the
bonding and grounding.
C. Plaintiffs cannot establish causation.
Finally, “… causation is a necessary element of an MMPA claim.” Bratton v. Hershey Co.,
No. 2:16-CV-4322-C-NKL, 2018 WL 934899, at *2 (W.D. Mo. Feb. 16, 2018) (granting summary

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judgment on MMPA claim); citing Owen v. GMC, 533 F.3d 913, 922 (8th Cir. 2008); see also
Williams v. HSBC Bank USA, N.A., 467 S.W.3d 836, 843 (Mo. App. 2015); and MO. APPROVED
INSTRUCTIONS (CIVIL) 39.01 (7th ed.) (verdict director for MMPA violation, requiring jury to
find that “as a direct result of such conduct, plaintiff sustained damage”). “In other words, a
plaintiff who was not injured by a purported MMPA violation cannot sue for the violation.” Id.
Plaintiffs who did not care about an allegedly misleading marketing practice, or who knew about
an alleged practice and purchased the products anyway, are not injured by the practice. Id.
(internal citations omitted). A plaintiff is not required to show reliance in order to prove that a
defendant committed an unlawful practice, but the plaintiff must establish they were injured in
order to succeed on an MMPA claim. Id.
Here, for the reasons set forth herein, none of the Plaintiffs have shown an injury caused
by the alleged unlawful practice. There is no evidence any Plaintiff has experienced a defect or
problem with the Yellow CSST in their home.
II.

UNJUST ENRICHMENT

To prevail on a claim for unjust enrichment, Plaintiffs must establish that: 1) they conferred
a benefit on Defendants; 2) Defendants appreciated the benefit; and 3) Defendants accepted and
retained the benefit under inequitable and/or unjust circumstances. Howard v. Turnbull, 316
S.W.3d 431, 436 (Mo. Ct. App. 2010). “Unjust retention of benefits only occurs when the benefits
were ‘conferred (a) in misreliance on a right or duty; or (b) through dutiful intervention in another's
affairs; or (c) under constraint.’” Id. (quoting Graves v. Berkowitz, 15 S.W.3d 59, 62 (Mo. Ct.
App. 2000)).
Here, Plaintiffs’ claim fails because they cannot show reliance. Plaintiffs must be able to
establish that they relied upon the alleged misrepresentation in making the purchase. Plaintiffs
simply cannot establish any reliance on an alleged misrepresentation made by Defendants in the
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purchase of their homes. As previously stated, most of the Plaintiffs had never heard of Yellow
CSST when they purchase their homes. Further, Plaintiffs have a working product in their home
despite their allegations of the product’s safety issues. As such, the evidence shows they have
received the use and benefit of Yellow CSST. Finally, as set forth herein, there is no evidence of
unfair or misleading conduct when Defendants representations of the product were done in
accordance with a prior state court order. For all the reasons stated herein, Plaintiffs’ claim for
unjust enrichment also fails.
III.

CONSPIRACY

For the reasons stated herein, the Court has found Plaintiffs cannot establish an underlying
tort or injury and as a result Plaintiffs’ conspiracy claim fails. See Hamilton v. Spencer, 929 S.W.2d
762, 767 (Mo. Ct. App. 1996) (“Civil conspiracy is not itself actionable in the absence of an
underlying wrongful act or tort.”); citing Williams v. Mercantile Bank of St. Louis, 845 S.W.2d 78,
85 (Mo.App.1993).
IV.

MOTION FOR CLASS CERTIFICATION

In light of the Court’s ruling on summary judgment, the Court denies the Motion for Class
Certification as moot and further denies Defendants’ Motion to Strike the Declarations of Goodson
and Rousseau, that are attached as exhibits to the motion for class certification, as moot. (Docs.
225 and 266).
V.

MOTIONS TO EXCLUDE DR. HEDLUND’S OPINIONS

Finally, the Motions to Exclude the Opinions of Dr. Hedlund are denied for the purposes
of this Court’s summary judgment analysis. (Docs. 268 and 310). The Court has reviewed Dr.
Hedlund’s opinions regarding this calculation of damages based on the cost of repair, restitution,
disgorgement and costs of bonding and grounding as it relates to Plaintiffs’ claims for loss under
the MMPA. However, even considering the information provided by Dr. Hedlund in a light most
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favorable to Plaintiffs, the Court finds Plaintiffs cannot meet the elements of their claims for the
reasons stated herein.
Further, to the extent Dr. Hedlund also offers opinions in support of Plaintiffs’ motion for
class certification the Court denies the motion to exclude Dr. Hedlund’s opinions regarding
damages on a class-wide basis for class certification as moot based on its ruling on the motion for
summary judgment.
CONCLUSION
Wherefore, for the reasons set forth herein, the Court DENIES AS MOOT Plaintiffs’
Motion for Class Certification (Doc. 225) and Defendants’ Motion to Strike the Declarations of
Mark Goodson and Alain Rousseau (Doc. 266); DENIES Defendants’ Motions to Exclude
Opinions of Aaron Hedlund (Doc. 268 and 310); and GRANTS Defendants’ Motion for Summary
Judgment. (Doc. 305). The Court ORDERS judgment entered in favor of Defendants.

IT IS SO ORDERED.
DATED:

August 13, 2020
/s/ Douglas Harpool______________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE

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