NEALE et al v. VOLVO CARS OF NORTH AMERICA, LLC et al

Filing 268

OPINION. Signed by Judge Dennis M. Cavanaugh on 2/28/13. (jd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NEALE, et al.,
Plaintiffs,
v.

Hon. Dennis M. Cavanaugh
OPINION

VOLVO CARS OF NORTH
AMERICA, LLC, et al.

Civil Action No. 2:1 O-cv-4407(DMC)(MF)

Defendants.

DENNIS M. CAVANAUGH, U,S.D.J.:
This matter comes before this Court upon Motion of Plaintiffs to Preclude the Testimony and
Expert Report of Christine T. Wood, submitted by Defendants Volvo Cars of North America, LLC and
Volvo Car Corporation (collectively “Defendants”). (ECF No. 245). Pursuant to FED. R. Civ. P. 78, no
oral argument was heard. After carefully considering the submissions of the parties, and based on the
following, it is the finding of this Court that Plaintiffs’ Motion is granted.

L

BACKGROUND
This case is a potential putative class action brought by eight named Plaintiffs, Gregory Burns,

Karen Collopy, David Taft, Svein Berg, Jeffrey Kruger, Joane Neale, Ken Hay and Kelly McGary
(collectively “Plaintiffs”), on behalf of themselves and a nationwide class of current and former Volvo
vehicle owners and lessees. Plaintiffs allege that a uniform design defect existed in the sunroof drainage

systems in the following six Volvo vehicles models: S40, S60, S80. V50, V70 (model years 20034 to
present), XC9O (model years 2003 to present), and V50 (model years 2005 to present) (collectively “Class
Vehicles”). Plaintiffs allege that the sunroof drainage systems in these vehicles harbored a defect which
allows water to become entrapped within the passenger compartment floorpans, causing damage to the
vehicles, including interior components, carpets, and safety-related electrical sensors and wiring. The
alleged defect in the drainage system, according to Plaintiffs is the result of defectively designed “sound
plugs,” found at the bottom of the drainage tubes. Plaintiffs further allege that Volvo had longstanding
knowledge of this material design defect, based on Plaintiffs assertion that numerous consumer
complaints existed as well as internal Volvo communications and Technical Service Bulletins issued b
Volvo in an unsuccessful attempt to address the problem.
Defendants proffered the Report of Christine T. Wood in support of their Opposition Brief to
Plaintiffs Motion for Class Certification (ECF No. 213, Ex. 20 “Wood Report”). Plaintiffs tIed this
Motion to Preclude the Testimony and Expert Report of Christine T. Wood and an accompanying brief
(“P1. Wood Mov. Br.”) on November 9, 2012. (ECF No. 245). Defendants filed an Opposition Brief on
November 30, 2012. (ECF No. 263). Plaintiffs filed a Reply on December 21,2012. (ECF No, 267). The
matter is now before this Court.

IL

STANDARD OF REVIEW
The admissibility of expert testimony is governed by Federal Rule of Evidence 702. That rule

provides that an expert qualified by “knowledge, skill, experience, training, or education” may testify if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence ro to determine a fact in issue; (b) the testimony is based upon sufficient facts
or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has applied
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the principles and methods reliably to the facts of the case.” FED. R. EvID. 702.
While the law does not currently require that the Court conduct a full Daubert inquiry as to an
expert at the class certification stage, in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553-54 (2011),
the Supreme Court expressed its “doubt” that ‘Daubert did not apply to expert testimony at the
certification stage of class-action proceedings.” See also. In re Hydrogen Peroxide Antitrust Litig., 552
F.3d 305, 323 (3d Cir. 2009) (stating that “opinion testimony should not be uncritically accepted as
establishing a Rule 23 requirement merely because the court holds the testimony should not be excluded,
under Daubert or for any other reason”); Am. Honda Motor Co.. Inc. v. Allen, 600 F.3d 813, 815-16 (7th
Cir. 201 0) (‘when an expert’s report or testimony is critical to class certification, as it is here

...

a district

court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling
on a class certification motion”) (citation omitted). On June 25, 2012, the Supreme Court granted
certiorari in Comcast Corp. v. Behrend,

---

S. Ct.

---,

2012 WL 113090, at *1 (June 2012), to consider

“[wjhether a district court may certify a class action without resolving whether the plaintiff class has
introduced admissible evidence, including expert testimony. to show that the case is susceptible to
awarding damages on a class-wide basis.” Regardless ofwhether a plenary Daubert inquiry applies at the
class certification stage, Rule 702 requires that the expert testimony “help the trier of fact to understand
the evidence or to determine a fact in issue.” FED. R. EvID 702(a). Evidence may also be excluded, “it’
its probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” FED. R. EvID. 403.

III.

1)ISCUSSION
Plaintiffs argue that the opinions of Christine T. Wood do not meet the Daubert guidelines for
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admitting scientific expert testimony. $_ç Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993); (ECF No. 245, at 4-23). The Daubert standard requires, and thus a party must show, that their
scientific expert testimony is “grounded in methods and procedures of science, [and that it] provide{sj
more than a subjective belief or unsupported speculation, and be not only relevant but reliable.” Dauberi.
at 589-90. Specifically. Plaintiffs contend that Woods’s report regarding the allegations that Volvo
concealed material facts about the Class Vehicles is speculative, unreliable, and irrelevant. This Court
agrees.
The crux of Plaintiffs’ argument is that Wood’s standard ‘expert’ opinion is simply recycled from
prior cases, and that Wood’s opinions are not based on the facts of this case. (P1. Wood Mov. Br.. 4).
Instead, Plaintiffs assert that Wood provides a blanket opinion that she used in prior cases without
reviewing relevant facts and information in this matter. (P1. Wood Mov. Br., 4). A comparison of the
opinions given in Wood’s report and her deposition testimony reveals that Wood’s opinions are not based
on a review of facts specific to

this case.

In her report, Woods concludes that because owner’s manuals are

“hundreds of pages,”

purchasers “will not elect to read the information plaintiffs demand should have been provided by
Volvo.” (Wood Report, 7). Wood reached this conclusion despite the fact that Woods did
owner’s manuals for the class vehicles, nor did she know how long they are.

not review the

(S Wood Dep. 107:1 7-19:

107:20-22). Woods further conceded that she has no idea how long the owner’s manuals are or what kind
of safety information warning they already contain, despite admitting that such information could affect
how the information is processed due to the amount of “information to filter through.” (Wood Dep.
174:5-175:20).
As to Wood’s opinion on the effectiveness of a recall notice, she cites to a study on recall notices
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demonstrating that on average 70% of vehicle owners responded to recall notices with response rates
as low at 23% and as high as 96%. (Wood Report, 10). However, Wood never figured out where Volvo
owners fall within that range. (Wood Dep., 120:1-25). Thus, Woods cannot provide an opinion about the
effectiveness of a recall notice. If owners of Class Vehicles have an average response rate on the higher
end of that range, Wood could not argue that a reasonable person would not respond to a recall notice
about the alleged defect.
Accordingly, the Court finds Wood’s proffered opinion to be speculative and without
foundation.
IV

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion is granted. An appropriate Order accompanies this
Opinion.

Dennis M. Cavanaugh, U.S.D.J,
Date:
cc:

February
2013
All Counsel of Record
Hon. Mark Falk, U.S.M.J.
File
,

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