HARPER et al v. LG ELECTRONICS USA, INC.

Filing 331

OPINION fld. Signed by Judge Faith S. Hochberg on 7/10/13. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
______________________________
:
:
CIVIL ACTION NO: 08-51(FSH)
IN RE: FRONT LOADING
:
WASHING MACHINE CLASS
:
OPINION
ACTION LITIGATION,
:
:
July 10, 2013
______________________________:
HOCHBERG, District Judge
This matter comes before the Court upon Plaintiffs’ motion for class certification. 1
Defendant opposes class certification and moves to strike evidence relied upon by Plaintiffs in
support of its Motion for Class Certification as inadmissible. Defendant has also filed a Daubert
motion to exclude expert testimony. Plaintiffs have also filed a Daubert motion to exclude
testimony from Defendant’s expert witnesses.
I.

Background

Plaintiffs bring the instant action on behalf of themselves and a nationwide class of
persons who purchased front-loading automatic washing machines that were marketed and sold
by LG, and that allegedly have a common drainage defect that causes the proliferation of mold
and mildew, as well as foul odors in the machines and on clothing washed in the machine. More
specifically, Plaintiffs allege that all of LG’s front load washing machines (“LG FLW” or
“FLW”) have a common design defect in the dryer drum and/or door gasket that causes water to
not fully or properly drain after each wash cycle, and that this remaining water causes the
proliferation of mold and mildew. Plaintiffs assert claims against Defendant under the New
1

The Court administratively terminated Plaintiffs’ Motion for Class Certification on July 7,
2011 so that it could rule on the three other pending motions and then determine whether new
briefing on the Motion for Class Certification was required.

Jersey Consumer Fraud Act, N.J.S.A. § 56:8-1, et seq., Magnuson-Moss Warranty Act, 15
U.S.C. § 2301, et seq., for breach of express and implied warranties under New Jersey law, and
for unjust enrichment under New Jersey law. In the alternative, Plaintiffs bring claims for
breaches of express and implied warranties, unjust enrichment and consumer fraud and deception
under the laws of the states where Plaintiffs reside.
Plaintiffs have moved to certify a nation-wide class of those who purchased LG FLW in
the United States and, in the alternative, have moved to certify classes to apply the substantive
law of the state where the Plaintiffs reside and/or purchased their LG FLW. Plaintiffs move to
apply New Jersey law to the entire class if certified as a whole, arguing that Defendant’s
principal place of business is in New Jersey, many members of the class reside in New Jersey,
Defendant’s alleged misconduct occurred in New Jersey and New Jersey has a significant
interest in seeing this matter litigated within the state.
II.

DISCUSSION
A.

Daubert Motions
1. Legal Standard

Federal Rule of Evidence 702 provides the relevant legal standard in a Daubert motion.
Pursuant to Fed. R. Evid. 702,
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.

2

Fed. R. Evid. 702. The United States Court of Appeals for the Third Circuit has determined that
Rule 702 “has a liberal policy of admissibility.” 2
Two United States Supreme Court cases, Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), have further defined
the legal standard for expert testimony. The goals of the Daubert standard, as established by the
Supreme Court, are to determine: 1) whether the expert utilized the scientific method and
whether the expert’s testimony is based on scientifically valid principles; and 2) whether the
expert testimony is relevant to the proposing party’s argument. 3
In Kumho, the Court expanded the scope of the Daubert standard, explaining that while
the Court in Daubert directly addressed scientific testimony, the resulting standard was not
intended to apply exclusively to scientific testimony. Instead, Kumho established that the
Daubert standard is appropriate for all experts providing specialized knowledge and held that
“[t]he trial judge's effort to assure that the specialized testimony is reliable and relevant can help
the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or
other specialized knowledge.” 4 This is true even if the experts are providing experience-based
testimony. 5
To determine if the testimony is reliable, the Third Circuit has established an eight-part
test which this Court must consider:
(1) whether a method consists of a testable hypothesis;
(2) whether the method has been subject to peer review;
2

Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008).

3

Daubert, 509 U.S. at 580.

4

Kumho Tire Co., 526 U.S. at 149.

5

Id.
3

(3) the known or potential rate of error;
(4) the existence and maintenance of standards controlling the
techniques operation;
(5) whether the method is generally accepted; 6
(6) the relationship of the technique to methods which have been
established to be reliable;
(7) the qualifications of the expert witness testifying based on the
methodology; and
(8) the non-judicial uses to which the method has been put. 7
In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir. 1994). This test may be
more flexibly applied in cases where the expert testimony is based on experience. 8
As explained by the Court in Kumho, the expert’s testimony must be related to the case at
hand as well. According to this Court, “[t]he role of the judge with regard to expert testimony is
to serve as a gatekeeper, and it is the judge who must decide if an expert's testimony reliably
“fits” the case.” 9 The party proffering the expert will have the burden to demonstrate that the
testimony is admissible, on a preponderance of the evidence standard. 10
2. Defendant’s Pending Daubert Motion to Exclude Inadmissible Expert
Testimony
Plaintiffs have proffered two witnesses: Dr. R. Gary Wilson (“Wilson”) and Dr. Chin
Yang (“Yang”). Defendant contends that this Court should exclude the opinions of Wilson and

6

The Supreme Court determined, however, that the expert’s theory or technique was not
required to have “general acceptance” throughout the relevant scientific community. Daubert,
509 U.S. at 597.
7

U.S. v. Mitchell, 365 F.3d 215, 235 (3d Cir. 2004).

8

Kumho, 526 U.S. at 141–42.

9

U.S. v. Schiff, 538 F. Supp.2d 818, 834 (D.N.J. 2008) (citing In re Paoli R.R. Yard PCB
Litigation, 35 F.3d at 748 (“Daubert makes clear for the first time at the Supreme Court level
that courts have to play a gatekeeping role with regard to experts”)).

10

Daubert, 509 U.S. 579.
4

Yang because both allegedly lack a reliable methodology and opine in areas where neither is
qualified to serve as an expert witness. 11
a.

Dr. R. Gary Wilson

Plaintiffs offer Dr. Wilson’s testimony in support of class certification to establish that:
(1) every LG FLW, regardless of model, year, or platform, shares a materially uniform design
because all of them “provide the perfect environment for mold and mildew . . . a humid
environment with little ventilation;” and (2) every LG FLW, regardless of model, year, or
platform, fails to self clean, which leads to biofilm accumulation that results in foul odors. 12
Wilson Supp. Rep. at 4, 5-6. Dr. Wilson’s opinions are intended to demonstrate commonality
and predominance 13 in support of Plaintiffs’ class certification motion. According to Plaintiffs,
the testimony provided by Wilson is mainly experience-based, supplemented by research
conducted by Wilson for this litigation.
Defendant argues that Wilson has never designed a front-load washing machine and that
before he was retained by Plaintiffs, he had no experience with LG FLWs. Defendant argues
that because of his lack of previous experience, Wilson’s opinions about LG FLWs are based
solely on the work he did in this case. LG claims that Wilson did almost no work in this case
because he never tested any LG FLW and inspected just a few LG FLWs. Of the 19 LG FLWs
owned by Plaintiffs, Defendant claims that Wilson disassembled and inspected just one and also
11

Specifically, Defendant argues: “Because Wilson and Yang did no work and no testing and
instead looked at just a few LG FLWs hand-picked by Plaintiffs’ counsel, their opinions flunk
the reliability requirement under Federal Rule of Evidence 702 and Daubert. Their opinions are
in fact only testable hypotheses, but they did no testing and applied no other reliable
methodology.” Brief in Support of Defendant LG USA’s Daubert Motion at 2.
12

The Rule 23 class factors he is being offered to support are commonality and predominance.

13

To the extent that commonality and predominance overlap with typicality, Dr. Wilson’s
opinions also are offered in support of that.
5

inspected three other LG FLWs provided to him by Plaintiffs’ counsel. Accordingly, Defendant
argues that Wilson’s opinions are admissible only if based on testing or some other reliable
methodology, and that Dr. Wilson has none.
Dr. Wilson has a Ph.D. in Mechanical Engineering from Case Western Reserve
University and a Masters Degree in Mechanical Engineering from the University of Illinois. 14
Wilson is also a Lecturer in the Mechanical Engineering & Engineering Sciences Department at
the University of North Carolina. Dr. Wilson worked for Whirlpool for 23years, working with
both top-loading washing machines and front-loading machines. When he retired from
Whirlpool he was the Director of Laundry Technology.
While there does not appear to be a dispute about Wilson’s knowledge of mechanical
engineering, the parties disagree about the characterization of Wilson’s experience. According
to Plaintiffs, Wilson has two decades of experience with designing washing machines but
Defendant argues that Wilson has never actually designed a front-loading washer and has spent a
majority of his career working on refrigerators, air-conditioners and dishwashers. Defendant
further argues that Wilson only worked on Whirlpool washing machines from 1985-1988, and
even then the work was not on FLW, making the experience irrelevant.
While Defendant claims Wilson has limited practical work experience with washing
machines, it is apparent from some of Defendant’s submissions, as well as Dr. Wilson’s own
characterization of his experience, that he was the director of laundry technology at Whirlpool
from 1997-99.Wilson was employed by Whirlpool from 1976 to 1999.
After considering the testimony rendered at the Daubert hearing and the record in this
matter, the Court will permit the expert testimony of Dr. Wilson. The Court agrees with the
14

Plaintiff’s Exhibit 11: Dr. Wilson’s Expert Report, 15.
6

Court in Butler v. Sears, No. 06-7023 (N.D. Ill. September 30, 2011), which found on a Daubert
challenge of Dr. Wilson that:
The value of Wilson’s testimony is not based upon his sampling
methods; it is instead based upon his knowledge of washer
technology and his understanding of the principles that generally
keep machines functionally clean, as well as the extent to which
the subject machines depart from those principles. In the court’s
view, Wilson is clearly qualified to use his knowledge of those
principles to offer an opinion, for purposes of a class certification
motion, that all front loading high efficiency machines are
similarly defective in design. The fact that his opinion does not
account for mitigating model changes that do not alter the
machines’ basic design is relevant to the weight to be assigned to
his opinion, but does not indicate that the opinion is inadmissible
in support of the certification motion.
Id. at 6-7. Dr. Wilson’s opinion is based on the extensive experience he has gained during his
more than 20 years as an engineer with Whirlpool, his education, his training, his technical
expertise, as well as his review and analysis of the FLWs in this and related litigation. The fact
that Dr. Wilson has not undertaken his own testing does not disqualify him as an expert for the
purposes for which he is proffered.
Wilson is qualified to testify regarding Plaintiffs’ theory of the case and Plaintiffs are
entitled to attempt to prove their theory of the case, i.e., that Defendant’s washing machines
contain a common design defect. 15 Accordingly, the Court is satisfied that Dr. Wilson has
satisfied Fed. R. Evid. 702 and his expert report will be permitted for purposes of the Motion for
Class Certification.

15

Many of Defendant’s arguments in support of its Daubert motion to exclude the testimony of
Dr. Wilson appear to relate to the credibility of Wilson as an expert, a question of fact that is left
to a fact-finder, rather than Dr. Wilson’s admissibility. Defendant’s disagreement with
Plaintiffs’ theory of the case and with Dr. Wilson’s testimony and report goes to the weight the
Court will give the expert testimony and not to whether Dr. Wilson is himself qualified to give
his expert opinion on Plaintiffs’ theory of the case and the LG FLWs.
7

b. Dr. Chin S. Yang
Dr. Yang is a PhD microbiologist who specializes in mycology, the study of fungi, and he
has expertise in the identification and growth of fungi. He is employed as the Scientific &
Technical Advisor and Senior Consulting Scientist at Prestige EnviroMicrobiology, Inc., a
company that specializes in analyzing samples for fungi, mold and bacteria. He has testified
regarding the environments inside FLW and microbiology issues associated with FLW in at least
three other cases.
Plaintiffs offer Dr. Yang’s testimony for the proposition that LG’s FLW “provide an ideal
environment for Biofilm growth” in part because they contain “spaces for trapping moisture and
nutrients” and for the proposition that “[t]he trend of using a lower washing machine temperature
increases the risk of microbes surviving laundering.” Dr. Yang is offered primarily as a rebuttal
expert. 16 He analyzed the “mold and fungi testing data collected by LG’s experts and concluded
that the testing was not performed in conformity with the lab’s standard operating procedure,
[and] that the testing did not include tests for bacteria, a major odor-causing component of
biofilm.” His testimony also would support Dr. Wilson’s and Plaintiffs’ theory of the case, i.e.,
that a common design defect has caused the proliferation of mold and mildew. Defendant
maintains that Dr. Yang’s opinions fail the reliability test of Daubert because Dr. Yang hasn’t
conducted any testing, and in fact, hasn’t done anything but look at photographs.
After considering the record, the Court will permit the testimony of Dr. Yang. Dr.
Yang’s opinions are based on his education and experience as a mycologist, as well as the
16

For example, Dr. Yang is introduced to rebut the expert opinion of Dr. Caulfield, one of LG’s
experts. Dr. Caulfield ran certain tests where he accelerated the rate at which laundry was done
in an effort to mimic the way Plaintiffs were using their machines and in an attempt to
demonstrate that doing laundry the “right” way would not cause the proliferation of mold. Dr.
Yang is introduced by Plaintiffs to opine that accelerated testing cannot accelerate mold growth
because it takes a certain amount of time for mold to grow.
8

significant number of articles he has researched and written in this field and his analytic
experience. Dr. Yang can rely on the testing done by other experts and opine as to whether their
methods of testing would mimic the growth of mold in the real world. As a microbiologist who
specializes in mycology, he certainly is qualified to look at photographs and opine on whether
what he is looking at is biofilm, mold, mildew, fungi or bacteria. He is qualified to opine with
respect to how mold grows, the types of environments that mold typically grows in and whether
it might exist even if you cannot see it. Dr. Yang does not need to have conducted his own
testing to rebut Dr. Caulfield’s opinion that the machines he tested had no mold in them and that
he had done his testing in a way that mimicked the way Plaintiffs should have been using their
LG FLWs. Accordingly, Defendant’s Daubert challenge to Dr. Yang is denied and he will be
permitted to rebut the expert testimony of Dr. Caulfield for class certification purposes.
3.

Plaintiffs’ Pending Daubert Motion to Exclude Inadmissible Expert
Testimony

Defendant has proffered three witnesses: Dr. Charles J. Wysocki (“Wysocki”), Dr.
Edward M. Caulfield (“Caulfield”) and Dr. Thomas Maronick (“Maronick”). Plaintiffs argue
that the Court should exclude all three opinions, contending that Wysocki’s opinion fails the “fit”
aspect of the Daubert test, and that both Caulfield’s and Maronick’s opinions fail to fit and are
unreliable.
a.

Dr. Charles J. Wysocki

Defendant offers Dr. Wysocki for the purpose of helping the Court determine whether it
is proper to assume that every LG FLW owner experienced an intense bad smell from the
machine, and explain why it is improper to reach such a conclusion. Dr. Wysocki opines: (1)
that each person’s olfactory abilities and experiences are different; (2) whether a person
perceives an odor, whether it is perceived as pleasant or unpleasant, and whether it is perceived
9

as intense, depends on a variety of factors that vary from person to person; and (3) it is therefore
not possible to generalize about the olfactory experiences of all LG FLW owners.
According to Defendant, Wysocki is “one of the world’s leading experts on individual
difference in olfaction.” A member of Monell Chemical Senses Center, the only independent,
non-profit scientific institute dedicated to the research of smell and taste, Wysocki has his Ph.D.
in psychobiology from Florida State University and has also been a teacher at the University of
Pennsylvania. He has spent decades studying individual differences in olfaction. The National
Institutes of Health have supported his research into individual differences in odor perception for
over 25 years.
Plaintiffs do not contend that Dr. Wysocki lacks the education or experience to testify as
an expert witness for Defendant. Instead, Plaintiffs contend that Defendant presents Dr.
Wysocki as an expert on the basis of the scientific tests he conducted for this proceeding and that
Dr. Wysocki should be excluded because these scientific tests fail to meet the Daubert criteria.
According to Plaintiffs, there are five reasons why Dr. Wysocki should not be allowed to
testify as to the Rule 23 criteria Plaintiffs must establish to certify their class, including:
1. There is no linkage or fit between Dr. Wysocki’s opinion and the facts of the case;
2. Dr. Wysocki makes no effort to relate his knowledge to the facts;
3. Dr. Wysocki admits having no idea whether his opinions would be helpful to the
case;
4. Dr. Wysocki has not tested the Plaintiffs’ ability to smell; and
5. Dr. Wysocki has not tested the FLW to see what odorants existed.
Defendant argues that Dr. Wysocki was not required to show these things, as he was
there to offer his opinions about olfactory abilities and experience among all people generally.

10

Essentially, Dr. Wysocki supports Defendant’s argument that there can never be a class certified
on the basis of odors, as there is too much variation among people’s abilities to smell.
The Court will permit the testimony of Defendant’s olfaction expert, Dr. Wysocki. He is
proffered by Defendant in an effort to attempt to defeat Plaintiffs’ arguments regarding
commonality and typicality. The Court accepts Defendant’s proposition, via Dr. Wysocki, that
people smell things differently. For many of the same reasons that the Court will permit Dr.
Wilson for Plaintiffs, the Court will permit Dr. Wysocki for Defendant.
Clearly, the parties have divergent theories of the case. Plaintiffs believe that LG’s
FLWs have a common design defect and Defendant believes that because everyone has a
different sense of smell, the commonality prong of class certification cannot be met. The Court
will honor each party’s right to demonstrate its theory of the case through its expert that supports
its theory. From the record before the Court as well as the Daubert hearing, it is evident that Dr.
Wysocki has the educational and practical expertise to opine that the class cannot satisfy the
commonality prong because different people smell different things differently. The Court finds
that there is a fit between Dr. Wysocki’s opinion and the facts of this case and he has satisfied
the Daubert analysis.
b. Dr. Thomas Maronick
Defendant offers Dr. Maronick to challenge Plaintiffs’ assertion of predominance in
support of their class certification motion. To assess whether the problems asserted by Plaintiffs
were widespread, LG retained Dr. Maronick to conduct an internet-based consumer survey to
determine the incidence of problems among the population of LG FLW owners and the overall
satisfaction or dissatisfaction with the machines. Plaintiffs argue that Dr. Maronick’s survey
evidence should be excluded because it is not the result of any scientific or otherwise reliable

11

testing. Plaintiffs also challenge his methodology. Plaintiffs assert that while he conducted an
internet-based opinion poll, no controls were put in place to ensure that respondents were
representative of anything. Therefore, Plaintiffs assert that Dr. Maronick’s survey is not reliable
and should therefore be excluded under Daubert.
Dr. Maronick is a Professor of Marketing at Towson University in Maryland, where he
teaches “the proper methods and procedures for designing and implementing consumer surveys,
including internet-based surveys,” and is the Director of Impact Evaluation in the Bureau of
Consumer Protection at the FTC where he has gained experience designing and implementing
over 300 marketing and consumer surveys. Dr. Maronick has written numerous articles relating
to consumer and internet surveys and has frequently qualified as an expert witness in litigation.
The Court will not permit the testimony of Dr. Maronick because it is just too unreliable
to be of help in deciding class certification. Dr. Maronick only asked highly general questions.
For example, He never asked “does your machine smell?” or any other similar question of that
nature designed to elicit a response that would have indicated whether or not the survey
responders had the same mold and odor issues as Plaintiffs. Dr. Maronick also cannot say much
of anything about who answered his internet survey. It is unclear whether the people who took
the survey were paid or otherwise rewarded to take it. There is no way of knowing how many
people Dr. Maronick surveyed. In his survey results, he included identical answers to questions
even when they were open-ended because he had no way of knowing if they were from different
individuals. Dr. Maronick can’t say for sure whether any survey-takers actually owned LG
FLWs. Identifying data was not requested, such as serial number or other criteria tending to
establish that the survey responder really owned the product. Defendant is taking an inferential
leap by arguing that this survey leads to an inference that the survey-takers never smelled any

12

mold in their machines just because they indicated during the survey that they were happy with
their machines, without any specific query about smell, when that could easily have been asked.
For all of these reasons, the Court finds that Dr. Maronick’s opinion does not satisfy Fed. R.
Evid. 702. His opinion is not helpful in deciding class certification.
c. Dr. Edward M. Caulfield
Defendant proffers Dr. Caulfield for class certification purposes to show there is no
uniform design defect in the machines, but rather, that the improper use and maintenance of
Plaintiffs’ washing machines caused the buildup and odors. He opines that owners who follow
instructions will not have them. 17 Dr. Caulfield is a mechanical engineer with a Ph.D. in
theoretical and applied mathematics, is a registered Professional Engineer in two states, taught at
a university level, and has decades of engineering work experience which includes design
reviews, evaluations, and testing.
Plaintiffs contend that Dr. Caulfield’s testing does not fit the issues of the case because it
does not accurately reflect ordinary use of the LG FLWs. Plaintiffs also maintain that
Caulfield’s test is unreliable because it does not test what it purports to test. For example,
Caulfield offers no objective criteria to support his premise that, when testing whether mold
and/or smells develop in the FLW, 15 loads per week for 24 weeks is equivalent to 7.5 loads per
week for 52 weeks (the same total number of loads that an average household runs in a year).
The arguments made by Plaintiffs are generally substantive disagreements with the
timing choices in his testing process, which can be tested on cross examination. They do not
disqualify him as an expert. Although Caulfield chose to perform a test, rather than rely on his
extensive knowledge, experience and education, his tests are relevant to the matter at hand. The
17

Defendants maintain that use is therefore an individual factor for every member of the class.
Additionally, they argue that this also relates to typicality.
13

Court recognizes that Dr. Caulfield changed the typical actual usage of washing machines by
shortening the span of usage time. This is a factor that goes to the weight the Court will afford
Dr. Caulfield’s opinion, and not to its admissibility. The Court will consider Dr. Caulfield’s
testimony for what it is worth. Although Dr. Caulfield’s testimony might be stronger had he
actually ran his test over a year-long period, doing 7.5 loads per week like the average
household, this factor goes to weight and not admissibility. Accordingly, the Court finds that Dr.
Caulfield’s opinion could be helpful to the Court in determining whether class certification is
appropriate in this action. 18
B.

Pending Motion to Strike Inadmissible Evidence in Plaintiffs’ Motion for
Class Certification

Defendant has moved to strike alleged inadmissible evidence included within Plaintiffs’
Motion for Class Certification. This alleged inadmissible evidence can be grouped into five
separate categories. These groups consist of: 1) evidence already stricken from the case; 2)
declarations Plaintiffs submit in support of their motion that contradict sworn deposition
testimony; 3) subsequent remedial design changes presented to prove a design defect;
4) inadmissible hearsay statements made by other companies; and 5) incomplete, uncertified
translations.
1.

Evidence Already Stricken From This Case

Defendant argues that Plaintiffs have included three expert reports within their motion for
class certification which make references to declarations that have already been deemed
inadmissible by Judge Shipp because they were disclosed by Plaintiffs after the close of
discovery. Plaintiffs concede that references to the declarations in the reports were inadvertently

18

Because Dr. Caulfield admits he doesn’t know if the machines contained mold or not he will
not be able to opine as to that.
14

included and will be removed. However, this issue does not end here as Defendant asks the
Court to strike all of Plaintiffs’ expert reports due to the references to the declarations.
It does not appear that Plaintiffs acted in bad faith in including this evidence; rather, it
was simply a matter of inadvertence. Therefore, the Court will not strike the entirety of the
expert reports. However, Plaintiffs are cautioned that when they re-file their motion for class
certification, they cannot rely on evidence previously stricken from the case; Plaintiffs, as well as
their experts, must comply with Court orders. Accordingly, Defendant’s motion to strike the full
reports is denied.
2.

Sworn Deposition Testimony and Declarations

Defendant argues that in support of their motion for class certification, every Plaintiff but
one has submitted a declaration and that most of these declarations contradict Plaintiffs’
deposition testimony. The statements within the declarations giving rise to the instant motion
pertain to: purchase as a result of advertisement, the date at which Plaintiffs first noticed mold
and odor, and review of the original complaint. Plaintiffs respond to Defendant’s claims by
arguing that the declarations are consistent and are really just clarifications. Assuming arguendo
that the declarations were inconsistent, Plaintiffs argue that the “sham affidavit doctrine” is not
applicable here.
According to the United States Court of Appeals for the Third Circuit, the sham affidavit
doctrine states that “a party may not create a material issue of fact to defeat summary judgment
by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible
explanation for the conflict.” Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004).
This Court is not currently facing a summary judgment motion, a clear aspect of the sham
affidavit rule as explained by the Third Circuit in Baer, but rather a motion to certify a class.

15

Therefore, a sham affidavit doctrine argument is not currently appropriate and does not require
the Court to disregard the Plaintiffs’ disputed declarations.
Moreover, the inconsistencies that do exist do not rise to the level of sham pleadings. See
Cottrell v. Zagami, LLC, 2010 U.S. Dist. LEXIS 63371 (D.N.J. June 23, 2010). In Cottrell, the
defendants argued that even if the plaintiff was not subject to the sham affidavit doctrine because
the case was not yet at the summary judgment stage, the court should have refused to accept
sham pleadings. Id. at * 19. Because the inconsistencies were “not so outlandish as to be
facially false” nor were they indicative of gamesmanship, the Cottrell court found it could not
declare that the plaintiff had submitted sham pleadings. Id. at * 19-20.
Here, the inconsistencies complained of by Defendant seem to pertain to differences in
interpretation. Defendant finds the phrase “advertised as an efficient appliance,” to mean all
Plaintiffs viewed an advertisement, while Plaintiffs intended the phrase to mean that Plaintiffs
were aware at some point in the buying process that LG marketed the appliances as efficient. In
the same vein, Defendant argues that all Plaintiffs did not view the original complaint, as some
joined after the complaint had been amended, while Plaintiffs argue they intended to convey that
all Plaintiffs viewed their original complaint, where the amended complaint was the original
complaint for some Plaintiffs. Finally, the issues with the dates appear to be mainly clerical
errors.
The Court finds that the small differnces between the declarations and the depositions, if
any, do not appear to be facially false as to be sham pleadings. Accordingly, Defendant’s motion
to strike Plaintiffs’ declarations pursuant to the sham affidavit doctrine is denied. However,
Plaintiffs are directed to correct the clerical errors with respect to the dates. The Court notes that
there was really no objective basis for invoking these doctrines screaming “sham” and asks both

16

sides to tone down the rhetoric and file only motions that are genuinely based on the
circumstances. Any further waste of court time on groundless motions will risk sanctions, and
all parties are now on notice.
3.

Remedial Design Defects

Federal Rule of Evidence 407 states that:
When measures are taken that would have made an earlier injury
or harm less likely to occur, evidence of the subsequent measures
is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as
impeachment or – if disputed – proving ownership, control or the
feasibility of precautionary measures.
The Court is well aware of what is, and is not, permitted by Rule 407 and will be mindful
of the appropriate purposes when ruling on the class certification motion. Plaintiffs will be
permitted at trial to introduce evidence of remedial design defects only in a manner consistent
with Rule 407, i.e., Plaintiffs will not be able to use the evidence for any purpose barred by Rule
407 and can introduce the evidence for purposes consistent with the last sentence of Rule 407,
with a proper limiting instruction. These rulings will be made at trial.
4.

Hearsay Statements

Defendant argues that the motion for class certification impermissibly relies on
inadmissible hearsay statements made by other companies. Defendant relies on one case, Agere
Sys. v. Adv. Enviro Tech., 602 F.3d 204, 232 (3d Cir. 2010), in support of this proposition.
However, as Plaintiffs aptly point out, Agere did not involve class certification and did not hold
that documents containing hearsay should be stricken during class certification.

17

The Federal Rules of Evidence are not stringently applied during class certification and
courts may consider evidence that might later be ruled inadmissible at trial. See, e.g., Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (court's determination of class certification is
based upon “tentative findings, made in the absence of established safeguards” and explaining
that class certification is “of necessity ... not accompanied by the traditional rules and procedures
applicable to civil trials”); Lujan v. Cabana Mgmt., Inc., No. 10-755, 2011 WL 317984, *4
(E.D.N.Y. Feb. 1, 2011); (“courts frequently consider hearsay in deciding whether to issue class
notice”); Hayden v. Freightcar Am., Inc., No. 07–201, 2008 WL 375762, at *2 (W.D.Pa. Jan.11,
2008) (evidence proffered in support of a motion to certify a class need not be admissible at
trial); Vinson v. Seven Seventeen HB Phila. Corp., No. 00–6334, 2001 WL 1774073, at *20 n. 28
(E.D.Pa. Oct.31, 2001) (“On a motion for class certification, the evidentiary rules are not strictly
applied and courts will consider evidence that may not be admissible at trial.”); In re Hartford
Sales Practices Litig., 192 F.R.D. 592, 597 (D. Minn. 1999) (“On a motion for class certification,
the evidentiary rules are not strictly applied and courts will consider evidence that may not be
admissible at trial.”). In addition, at the class certification stage, courts often examine pleadings
as well as affidavits, containing hearsay. See Eisenberg v. Gagnon, 766 F.2d 770, 786 (3d Cir.
1985); Roe v. Operation Rescue, 123 F.R.D. 500, 502 (E.D. Pa. 1988).
Plaintiffs may rely on the challenged documents which may or may not contain hearsay
in support of their class certification motion. The Court recalls that at least some of the
documents complained of were produced by parent or affiliate companies of LG and as such,
may be admissions and not constitute hearsay at all. The Court notes that it is rather hard for LG
to argue that documents from its parent company are inherently unreliable.

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5.

Translations

Defendant argues that Plaintiffs’ motion papers have taken out of context and
mischaracterized statements in all of the Korean-language documents. Defendant essentially
maintains that Plaintiffs failed to comply with the Federal Rules of Evidence because:
(1) Plaintiffs often attach to their motion only selected pages of a document, rather than the
complete document in violation of Fed. R. Evid. 106’s rule of completeness; (2) Plaintiffs never
translate the entire document to provide its complete context and content also in violation of Fed.
R. Evid. 106’s rule of completeness; and (3) Plaintiffs do not provide any certified translations in
violation of Fed. R. Evid. 604.
A party may provide the Court with excerpted portions of testimony and evidence in
support of its motion and LG is free to provide the Court with the full exhibits to provide context
of the documents and corrected translations if it wishes to do so. For key disputes about
translation, certified translations will be required.
To save time, the Court asks the parties to meet and confer and provide the Court with a
joint translation and joint set of the relevant portions of the documents sought by both sides by
July 16, 2013. If agreement cannot be reached, the Court will refer the parties to a Special
Master and will cost-shift if it determines that either side acted inflexibly or unreasonably.

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III.

CONCLUSION

For the reasons stated above, Defendant’s motion to exclude Plaintiffs’ experts Dr.
Wilson and Dr. Yang is denied. Plaintiffs’ motion to exclude Defendant’s experts Dr. Caulfield
and Dr. Wysocki also is denied. However, Plaintiffs’ motion to exclude Defendant’s expert Dr.
Maronick is granted. Defendant’s motion to strike inadmissible evidence is denied. An
appropriate Order shall issue.

s/ Faith S. Hochberg
Hon. Faith S. Hochberg, U.S.D.J.

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