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

Filing 272

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NOT FOR PUBLICATION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,

Hon. Dennis M. Cavanaugh

V.

OPINION

VOLVO CARS OF NORTH
AMERICA, LLC, et al,

Civil Action No. 2:1 0-cv-4407(DMC)(MF)

Defendants.

DENI’JIS M. CAVANAUGH, U,S.D.J.:
This matter comes before this Court upon Motion of Plaintiffs to Preclude the Declaration and
Testimony of Defendants’ Expert Edward Caulfield (Nov. 09, 2012, ECF No. 242). 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 Plaintiff’s 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 Flay and Kelly McGarv
(collectively “Plaintiffs”), on behalf of themselves and a nationwide class of current and former Volvo
vehicle owners and lessees against Defendants Volvo Cars of North America, LLC and Volvo Car
Corporation (collectively “Defendants”). Plaintiffs allege that a uniform design defect existed in the

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sunrool drainage systems in the following six Volvo vehicles models: 540. 560, S80, V50, V70 (model
years 20034 to present), XC9O (model years 2003 to present), and V50 (model years 2005 to present).
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. Plaintiffs further
allege that Volvo had longstanding knowledge of a 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 July 3, 2012, Defendants filed nine summary judgment motions against each individual
Plaintiff. (ECF Nos. 72-80). On August 7, 2012, Plaintiffs filed their pending Motion for Class
Certification. (ECF No. 85). Defendants proffered declarations of Edward Caulfield (“Caulfield”) in
support of Defendants’ Motions for Summary Judgment on the individual claims of the named Plaintiffs
and in opposition to Plaintiffs’ Motion for Class Certification. Plaintiffs’ Motion to Preclude the
Declaration and Testimony of Caulfield is now before the Court.
II.

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
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 motionm
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A. Summary Judgment
Expert testimony is admissible on the merits if it meets three requirements: qualification of the
expert. reliability, and relevancy. Schneider cx rel. Estate of Schneider v. Fried, 320 F.3d 396. 404 (3d
Cir. 2003). The seminal case for the admissibility of expert testimony is Dauhert v. Merrell Dow Pharm..
Inc., 509 U.S. 579(1993), which requires that the trial judge “ensure that any and all scientitk 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 flicts 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 b 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
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 5. 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, 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
Comcast Corp. v. Behrend,

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S. Ct.

---,

2012 WL 113090, at * 1 (June 2012), to consider “[w]hether 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.

ilL

DISCUSSION

Caulfield has submitted two reports in this action: a Declaration dated July 2, 2012 offered as
support to Defendants’ Motions for summary judgment (“July Declaration”) and a Declaration dated

September 25, 2012 offered as support to Defendants’ Opposition to Plaintiffs’ Motion for class
certification (“September Declaration”). Plaintiffs argue that “neither of these reports

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are

based on the

analysis, methodology or fit necessary to withstand a Daubert challenge.” (P1’s Mot, 4, ECF No, 243).
A. July Declaration
Plaintiffs allege that Caulfield’s July Declaration “misstates the work performed. is nearly entirely
speculative, and lacks foundation for the opinions rendered” and ask the Court to exclude it in support
of Defendants’ motion for summary judgement. (P1.’s Mot. 4). First, Plaintiffs argue that Caulfield’s
opinions are unsupported as Caulfield did very little work or research to substantiate his opinions. When
deposed regarding the July Declaration, Caulfield admitted that there was “not too much work done so
far” on the case prior to rendering his opinions, and that he had spent less than five total hours working
on the case prior to his deposition. (Pl.’s Mot. 5, See Schelkopf Cert., Ex. 2. August Deposition ot
Edward Caulfield (“August Dep.”) at 18:22-19:6, 17:8-9.) Plaintiffs argue that Caulfield misrepresented
the amount and scope of work he did regarding this case; specifically, that the statements he made
concerning the materials he reviewed and relied on forming the opinions of the July Declaration were
shown to be false at his deposition “despite sworn statements.” Plaintiffs state
[Caulfield] did not review documents produced by defendants, merely “scanned”
and! or made a “cursory glance” at other discovery responses. did not review the
plaintiff documents, and did not read any deposition transcripts, instead relying, on

summaries prepared by his staff
Compare July Declaration at ¶ 3 jth Schelkopf Cert. Ex. 2, August Deposition of
Edward Caulfield at 22:16-24:4; 26:11-19; 27:7-20).
(Pl.’s Mot 5).
Plaintiffnext argues that as Caulfield did not perform adequate work prior to his July Declaration,

his opinions expressed therein lack the substantive foundation or fit required by Daubert. The Court
agrees. Caulfield gave his opinion on matters that he did not have understanding of, as his deposition
testimony shows. For example, Caulfield opines that “water leaks can and do occur in vehicles of

essentially all makes and models for a variety of reasons unrelated to the sunroof drainage system,” but
conceded at his deposition that he had not seen any documents, testimony, or any other evidence that
could demonstrate that these other causes were the cause of the leaks in the class vehicles, (August I)ep.
at 59:17

—

61:2).

Caulfield also opines that “based on the location of the yaw rate sensor.

.

.

a substantial amount

of water will have to enter the vehicle before the yaw rate sensor will be exposed to water.” (July
Declaration 8.) At the August deposition, Caulfield admits that although he discussed the location of the
yaw sensor in three different vehicles, he only reviewed photographs from one 2004 XC9O, and didn’t
know the location of the sensor in the other vehicles. (August Dep. at 79:9-74:-5).
Plaintiff cites to other instances of Caultield’s opining on issues that he admits he has not
researched fully, or does not have the requisite knowledge to support. Defendant argues that “each of I)r.
Caulfield’s opinions meets the reliability standards of Daubert because each is supported by Dr.
Caulfield’s years of experience and practical engineering knowledge, as well as his research. (Def,’s
Opp’n 6, ECF No. 263). Plaintiff alleges “the opinions contained in Caulfield’s July Declaration are pure
conjecture. are not based on substantive investigation, and are rebutted by his own deposition testimony.”
(Pl.’s Mot. 9) The Court agrees with Plaintiff. Daubert requires that an expert witness be reliable, going
to “whether the expert’s methodology is sound and whether his opinion is supported b ‘good grounds.”’
Milanowiczv, The Raymond Corp., 148 F. Supp. 2d 525, 530 (D.N.J. 2001)(citingln Re Paoli R.R. Yard
PCB Litig., 35 F. 3d 717, 74 1-43 (3d Cir. 1994). An expert’s personal qualifications and past experience
is not sufficient. Caulfield’s admitted lack of preparation and sound methodology convinces this Court
that his opinion is not supported by “good grounds.” Thus Plaintiffs Motion to Preclude the July
Declaration is granted.

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B. September Declaration
Plaintiffs next asserts that the September Declaration is similarly speculative, unsupported by
reliable investigation, and not the process of reliable scientific methodology. (P1,’s Mot. 10).
Plaintiffs first bring to the Court’s attention that Caulfield admitted in his deposition concerning
that declaration that he himself did not follow the scientific method in rendering his own opinions. (P1’s
Mot. 10, see SchelkopfCert., Ex. 1, October Dep. at 38:17-40:10). The purpose of Caulfield’s September
Declaration is to assert that Plaintiffs’ Expert Dr. Benedict’s investigation was not the product of sound
scientific principles. Plaintiffs argue “because Caulfield admitted that he did not follow the scientific
method in rendering his September Declaration, the inquiry can end there Daubert is not satisfied.” (ge
October Dep. at 38:17-40:10).
Additionally, “notwithstanding his admitted failure to follow the scientific method in rendering
his opinions.” Plaintiffs also allege that Caulfield’s opinions lack a reasonable basis. (Pl.’s NIot. 10).
Plaintiffs challenge three specific opinions offered by Caulfield: First, his opinion that Volvos ‘warrantv
data show that for approximately 97% of the vehicles in the proposed class, the sunroof drainage systems
in the vehicles operated without incident for as long as Volvo warranted it.” (September Declaration at

¶28), During his deposition, Caulfield admitted that his opinion was based solely claims made within the
specified warranty period. Plaintiffs argue that the opinion is not reliable because Caulfield does not
include claims that were not covered under warranty or that fell outside the warranty period and because
he did not do any additional testing to verify Volvo’s warranty figures. (Pl.’s Mot. ii).
Second, Caulfield asserts that the majority of vehicle manufacturers do not include information
about maintenance of sunroof drains, but admits in his deposition that he had not recently looked at any
other manufacturers’ owner’s manuals aside from excerpts of Audi and Volkswagen manuals provided
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him by Plaintiffs counsel at his prior deposition. (PI.’s Mot, 12, see Schelkopf Cert., Ex, 1, October

Dep. at 79:15-80:12.) Defendants argue that Dr. Caulfield relied on his background, experience from
work conducted for other manufacturers and his general knowledge obtained from working thirty years
in their industry.” (Def.’s Opp’n 1 1-12).
Third, Caulfield opines that Dr. Benedict’s reference to Retailer Technical Journals or Tech-Notes

was improper, as those materials “are often issued to provide repair instructions to the technicians for a
rare issue that the technicians do not regularly encounter.” but at his deposition. Caulfield admitted they

are also issued if there is a common problem that needs addressing. Defendants assert that “Dr. Caulfield
based this opinion on years of his experience reviewing technical journals and similar documents
routinely issued by every manufacturer.” (Def.’s Opp’n 12-13, see October Dep. at 83: 6-12).
While Caulfield’s admission that he did not use the scientific method and the lack of a reliable
basis for his opinions separately might not be enough to exclude his declaration under Daubert, together

they greatly undercut the reliability required to admit his declaration. The Court agrees with Plaintiffs that
Caulfield’s opinions are not reliable as they are not based on adequate. substantive research, a fact
Caulfield admitted to in his deposition. Additionally, Defendants cannot rely exclusively on Caulflelds
past experience to create a reasonable basis for his opinions. Thus the Court grants Plaintiffs motion to
Preclude Caulfield’s September Declaration.

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I

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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