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

Filing 270

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NOT FOR PUBLICATION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,

lion. Dennis M. Cavanaugh

V.

OPINION

VOLVO CARS OF NORTH
AMERICA, LLC, et al.

Civil Action No, 2:lO-cv-4407(DMC)(MF)

Defendants.

DENNIS M. CAVANAUGH, U.S,D,J.:

This matter comes before this Court upon Motions of Defendants Volvo Cars of North America,
LLC and Volvo Car Corporation (collectively “Defendants”) to Preclude the Testimony and Expert
Report of Walter Bratic and Charles Benedict (ECF Nos. 216. 217). 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 Defendants’ Motions are

L

denied.

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 McGar
(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 sunroofdrainage

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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 by
Volvo in an unsuccessful attempt to address the problem.
On August 7, 2012, Plaintiffs filed their pending Motion for Class Certification, (ECF No. 85).
In support of that Motion, Plaintiffs disclosed two expert witnesses, Walter Bratic and Dr. Charles
Benedict.’ Defendants filed the instant Motions to Preclude the Testimony and Expert Reports of Walter
Bratic and Dr. Charles Benedict on September 25, 2012. (ECF Nos. 216, 217). Plaintiffs filed their
Opposition to Defendants’ Motions on October 26, 20 12. (ECF Nos. 238, 237). Defendants filed their
Reply Briefs on November 16, 2012. (ECF Nos. 260, 261). The Motions to Preclude the Testimony and
Expert Reports of Walter Bratic and Dr. Charles Benedict are now before this Court.
jj

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

‘Plaintiffs also provided Dr. Benedict’s Report in support of their respective Oppositions
to Defendants’ Motions for Summary Judgment. Dr. Benedict’s Report can be found as Exhibit 3
to each of those Opposition Briefs. (ECF Nos. 140, 151, 199, 130, 172, 190, 162, and 181,
respectively).
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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
the principles and methods reliably to the facts of the case.” FED. R. EVID. 702.
The standards governing admissibility of expert testimony apply differently to each motion.
A. Summary Judgment
Expert testimony is admissible on the merits if it meets three requirements: qualification of the
expert. reliability, and relevancy. Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d

Cir. 2003). The seminal case for the admissibility of expert testimony is Daubertv. Merrell Dow Pharm.,
509 U.S. 579 (1993), which requires that the trial judge “ensure that any and all scientific testimony
or evidence admitted is not only relevant, but reliable.” Id. at 589. Under Daubert, “[tjhis entails a
preliminary assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in
issue.” Id. at 592-93.
Plaintiffs do not have to “prove their case twice—they do not have to demonstrate to the judge by
a preponderance of the evidence that the assessments of their experts are

correct,

they only have to

demonstrate by a preponderance of the evidence that their opinions are reliable.” In re Paoli R.R. Yard
PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994), abrogated on other grounds by General Electric Co. v.
Joiner, 522 U.S. 136 (1997) (emphasis in original). As the Third Circuit has explained,
The grounds for the expert’s opinion merely have to be good, they do not have to be perfect. The
judge might think that there are good grounds for an expert’s conclusion even if the judge thinks
that there are better grounds for some alternative conclusion, and even if the judge thinks that a
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scientist’s methodology has some flaws such that if they have been corrected, the scientist would
have reached a different result.
Id.
B. Class Certification
As to the class certification stage, while the law does not currently require that the Court conduct
a full Daubert inquiry, in Wal-Mart Stores. Inc. v. Dukes, 131 S. Ct. 2541. 255 3-54 (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 ie Hydrogen Peioxide Antitrust Litig ,552 F 3d 305, 323 (3d C

ii

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. 2010) (“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 experts qualifications or submissions prior to ruling on a class
certification motion”) (citation omitted). On June 25, 2012, the Supreme Court granted certiorari in
Corncast 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 of whether 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, “if 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.

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111.

DISCUSSION
A. Walter Bratic
Plaintiffs assert that their pending Motion for Class Certification does not independently rely on

the opinion of Mr. Bratic. Plaintiffs state that Mr. Bratic’s opinions have only been offered in support of
Plaintiffs’ proposed Trial Plan. (ECF No. 238, “P1. Bratic Opp. Br.,” 1). As a result, Plaintiffs contend
that Defendant’s Motion to Exclude the opinion of Mr. Bratic should be denied as premature because it
is directed exclusively at matters not critical to the Court’s determination under Rule 23. (P1. Bratic Opp.
Br, 8).

In re Hydrogen Peroxide, 552 F.3d 305, 324 (3d. Cir. 2008) (“In its sound discretion, a district

court may find it unnecessary to consider certain expert opinion with respect to a certification requirement
.“);

In re Mercedes-Benz Tele Aid Contract Litig., 257 F.R.D. 46 (D.N.J. 2009) (‘The infhrmation

contained in Dr. Lamb’s expert report.

.

.

is unnecessary to the Court’s determination that Plaintiffs’

claims are amenable to class treatment. Therefore, Mercedes’ Motion to Exclude Dr. Lamb’s report is
moot.

. .“).

The Court agrees that it can properly make its determination on whether or not to certify the

proposed class without considering Dr. Bratic’s Report at this time. While consideration of Mr. Bratic’s
Report would certainly bolster Plaintiffs’ arguments regarding damages, Plaintiffs’ arguments regarding
damages in their Motion for Class Certification do not rely exclusively on Mr. Bratic’s Report. As such,
the Court need not conduct any Daubert analysis on Dr. Bratic’s Report at this time.
Accordingly, Defendant’s Motion to Exclude the Report and Testimony of Walter Bratic is
dismissed as moot.

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B. Dr. Charles Benedict
Plaintiffs offer Dr. Benedict’s Report in support of both their Motion for Class Certification and
their Oppositions to Volvo’s Motions for Summary Judgment. It is Dr. Benedict’s opinion that the sound
,
2
traps present in the drainage systems of all Class Vehicles, suffer from a common design defect.
As a threshold matter for both uses of the Report, the Court agrees with Plaintiffs first assertion
that Dr. Benedict is qualified as an expert. Dr. Benedict is an electro-mechanical engineer who holds
professional engineering licenses or registrations in four states. (Benedict Rpt., Ex, A, 1). He has
designed, developed, and patented a number of sub-systems for vehicles. (Benedict Rpt.

¶ 2).

Over the

course of his forty one year career in the fields of product and machine design and analysis and product
and system failure analysis, Dr. Benedict has investigated defects in over 1 00 vehicles. (Benedict Rpt.

¶11 2, 4).

These qualifications satisfy the Daubert test.

In offering Dr. Benedict’s Report in support of their Motion for Class Certification. Plaintiffs
assert that Dr. Benedict’s Report is reliable in assisting the Court to understand that the Class Vehicles
suffer from an inherent, common design defect that is common to all Class Vehicles, and so, is
susceptible to common proof. (ECF No. 237, “P1. Benedict Opp. Br.,” 6, 7). To reach his conclusion that
a class-wide defect existed, Dr. Benedict examined, analyzed, and measured the sounds traps used in all
Class Vehicles and confirmed that the narrow, restrictive plus-shaped slit openings that make the design
defective were used in the sunroof drainage systems in all the Class Vehicles. (Benedict Rpt.

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Sound traps exist at the ends of the drainage tubes. The intended purpose of these sound
plus was to function as valves by reducing the amount of exterior wind noise entering the cabin
of the vehicle, while still allowing water to draining from the sunroof. However, according to
Plaintiffs, the sound traps are defective in that they greatly inhibited the flow of water and debris
through the two front drainage tubes. (8/7/2012, ECF No. 87, Plaintiffs Motion for Class
Certification Brief, 5).
6

¶

7,

1 l(pg.lO), 21). Dr. Benedict relied on Volvo employees McCloskey, Sandberg and Bisaccia, who
testified on behalf of Volvo, that all sound plugs utilized in the Class Vehicles have the same function
and all have the same plus-shaped opening. (Benedict Rpt.

¶ 6,

fn. 6). According to Plaintiffs, Dr.

Benedict is not offering any opinion that any components ofthe sunroof drainage system other than the
sound plugs are defective. (P1. Benedict Opp. Br. 11, fn.7).
Conversely, Defendants contend that Dr. Benedict’s opinion on the class-wide nature ofthe defect
is unreliable because he did not personally examine all of the different models of Class vehicles. (ECF
No. 217, Def. Benedict Mov. Br., 7-9, 11-12). Defendants also point out that some vehicles in the
proposed class use the original sound plugs while other class vehicles use modified sound plugs with
other part numbers, a statement which Dr. Benedict conceded when deposed. (Def. Benedict Mov. Br.
8). Defendants argue that Dr. Benedict has ignored the fact that Defendants increased the size of the
sound plugs’ openings in some ofthe models ofClass Vehicles. Defendants point out that they increased
the size of the opening in the May 2005 for new XC9O vehicles, and also for the new S40 and V50
vehicles in 2006. (ECF No. 261, Def. Benedict Rep. Br., 5).
The Court disagrees with Defendants’ assertions that Dr. Benedict’s failure to conduct more
extensive scientific testing of drainage systems in all of the Class Vehicles renders his opinion in
admissible for purposes of Class Certification. Defendants’ argument speaks to the weight that should
be given to Dr. Benedict’s opinion, not to its admissibility. See. e.g.. Pineda v. Ford Motor Co.. 520 F3d
237,248 (3d. Cir. 2008) (holding that expert’s failure to test the effectiveness of his proposed warning
or compare it to warnings used by other manufacturers did not render his opinions inadmissible under
Daubert, although they would have been more reliable had he done so); Altieri v. State Farm & Cas. Co.,
No. 09-2342, 2011 WL 1883054, at 83 (ED. Pa. 2011) (“The shortcomings in Mr. Daniels’ report
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identified by Plaintiff (lack of testing, scientific information or mathematical equations) are certainly
areas for cross-examination, as are Mr. Daniels’ bases for his conclusions. However, under the
circumstances, these go to the credibility, not the admissibility of his opinion.”).
For purposes of class certification, Plaintiffs need not prove that the sound plugs in all Class
Vehicles are actually defective. Rather, Plaintiffs only need to demonstrate that the existence of the
Sunroof Drainage Defect can be established through common proof

,

In re Hydrogen Peroxide

Antitrust Litig., 552 F.3d 305, 311-12 (3d Cir. 1009) (“Plaintiffs’ burden at the class certification stage
is not to prove the element of antitrust impact.

.

.

.

Instead, the task for plaintiffs at class certification is

to demonstrate that the element of antitrust impact is capable of proof at trial through evidence common
to the class rather than individual to its members.”) Here, Dr. Benedict opines that all Class Vehicles
contain a drainage system with sound plugs at the end of the drainage tubes and that all sound plugs are
designed with a plus-shaped opening at the bottom. Dr. Benedict’s Report attempts to identify one single
piece, common to all class vehicles, that can be resolved by common proof The issue of whether or not
the modified sound traps are themselves defective or even that the sound traps are less likely to cause
clogging in the drain tubes, is not as crucial at the class certification stage as it will be later in the trial
proceedings.

Accordingly, Di-. Benedict’s Report is admissible for purposes of class certification.
Next, in offering Dr. Benedict’s Report in support of their Motion for Class Certification.
Plaintiffs contend that Dr. Benedict’s Report assists the trier of fact in understanding (1) how the sunroof
drainage defect creates a safety risk and (2) the need to instruct Class Members that the sunroof drainage

system requires maintenance. (P1. Benedict

Opp.

Br., 15). Conversely, Defendants argue that Dr.

Benedict’s opinions should be excluded because they do not assist the trier of fact, are unreliable, and are
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not the product of a scientific methodology.
Consistent with General Electric, but the Court believes that his opinion is good and reliable, for
purposes of explaining how the alleged defect presents a safety issue. Dr. Benedict has explained that
Volvo located non-waterproof electrical components in places n Class Vehicles that are exposed to water
when the Sunroof Drainage System clogs. (Benedict Rpt.

¶

ll(p. 11), 17-19). He explains how the

bathtub-shape of the floorpans in the Class Vehicles causes them to retain water that intrudes into the
vehicles’ interior, and how the carpeting can both hide the presence of the water and maintain the
moisture. (Benedict Rpt.

¶

43-44). Benedict further explains that contact with water can result in

malfunction of those electrical components. (Benedict Rpt. at

¶ 45),

While this may not be the most

perfect form of evidence, Dr. Benedict’s assessment of the safety risk posed by the allegedly defective
sound plugs is helpful in assisting the Court, for purposes of Summary Judgment, as to the existence of
a safety risk in Class Vehicles.
The Court also agrees with Plaintiffs’ assertion that Dr. Benedict need not be an expert in writing
automobile owners’ manuals to be able to testify that Volvo owners needed to be instructed that
maintenance of the sunroof drainage system was required to compensate, for the engineering flaw in the
system’s design. (P1. Benedict

Opp. Br., 18). Defendants have argued that Benedict’s lack of experience

and expertise in designing automobile manuals discredits his opinions regarding Volvo’s failure to
recommend necessary maintenance on the Sunroof Drainage System. (Def. Benedict Mov. Br, 23-24).
The Third Circuit’s decision in Pineda v. Ford Motor Co., 520 F.3d 237 (3d Cir. 2008), is directly on
point. The plaintiff in Pineda offered the testimony of an engineer to support his position that given the
vehicle’s design, Ford should have included additional instructions and safety warning in the vehicles
service manual.

i.

at 245. The trial court excluded that testimony, holding it failed to satisfy I)auhert
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because the plaintiffs’ expert was an engineer, not a warnings expert.

.

at 241. The Third Circuit

reversed, holding that although the plaintiffs expert might not be qualified to testify to the exact language
that should be included in the manual or the typography to be used, as an engineer he was “substantively
qualified” to testify that a warning of some sort was needed because “a proper warning is also a solution
to an engineering problem.”

4.

at

245.

Dr. Benedict’s Report recommends a warning to owners as a way to partially compensate for a
defect that he has identified in the Defendants’ design. The Report states, “[D]ue to the Sound Trap
Defect.

.

.

regular maintenance is necessary to ensure the system constitutes to function as intended,”

(Benedict Rpt.,

¶ 28).

Much like the expert in Pineda, Dr. Benedict’s suggested instruction is intended

to serve as a partial “solution to an engineering problem” and thus is within the scope of an engineer’s

expertise.
Accordingly, Dr. Benedict’s Report may be considered for both the purposes of Summary

Judgment and Class Certification.
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CONCLUSION
For the foregoing reasons, Defendants’ Motions are denied. An appropriate Order accompanies

this Opinion.

/4
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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