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

Filing 388

OPINION. Signed by Judge Jose L. Linares on 04/03/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOANNE NEALE, et al.,
Plaintiffs,

:
:

CIVIL ACTION NO. 10-4407 (JLL)
OPINION

V.

VOLVO CARS OF NORTH AMERICA, LLC,:
etaL,
Defendants.

LINARES, District Judge

This is a putative class action concerning the sunroofs of certain vehicles

(hereinafter, “the Vehicles”) that were manufactured, and then were sold or leased to
consumers, by the defendants, Volvo Cars of North America, LLC, and Volvo Car
Corporation. The plaintiffs allege that the drainage tubes in the Vehicles’ sunroof
drainage systems had sound plugs at the ends that: (1) were supposed to reduce the
amount of exterior wind noise entering the Vehicles’ cabin, while still draining water
from the sunroof; but instead (2) inhibited the flow of water and debris through those
tubes, thereby damaging the Vehicles’ interior components, carpets, and safety-related
electronics when water became trapped in the passenger compartment. (See dkt. 66.)

The Court will refer to documents by the docket entry numbers and the
page numbers imposed by the Electronic Case Filing System.

The Court presumes that the parties are more-than familiar with the factual context
and the extensive procedural history of the action. See Neale v. Volvo Cars of N. Am.,
LLC, 794 F.3d 353 (3d Cir. 2015), rev’g No. 10-4407, 2013 WL 1223354 (D.N.J. Mar.
26, 2013), andNo. 10-4407, 2013 WL 5674355 (D.N.J. Oct. 16, 2013); see also Neale v.
Volvo Cars of N. Am., LLC, No. 10-4407 (hereinafter abbreviated as “Neale”), 2016 WL
7165738 (D.N.J. Apr. 20, 2016); Neale, 2013 WL 5676640 (D.N.J. Oct. 16, 2013);
Neale, 2013 WL 5676629 (D.N.J. Oct. 16, 2013); Neale, 2013 WL 795597 (D.N.J. Mar.
4, 2013); Neale, 2013 WL 785059 (D.N.J. Mar. 1, 2013); Neale, 2013 WL 785056
(D.N.J. Mar. 1, 2013); Neale, 2013 WL 784962 (D.N.J. Mar. 1, 2013); Neale, dkt. 272 &
dkt. 273 (D.N.J. Mar. 1,2013); Neale, 2011 WL 1362470 (D.N.J. Apr. 11,2011).
Currently pending before the Court are three motions:
(1) the defendants’ motion to exclude the opinion of the plaintiffs’ expert Charles
Benedict from the Court’s consideration of the plaintiffs’ forthcoming motion for class
certification (see dkt. 362; dkt. 362-1; dkt. 363; dkt. 364 through dkt. 364-6; dkt. 381),
which the plaintiffs oppose (see dkt. 373);
(2) the plaintiffs’ motion to exclude the opinion of the defendants’ expert M.
Laurentius Marais, which will be filed in opposition to the plaintiffs’ forthcoming motion
for class certification, from the Court’s consideration (see dkt. 367 through dkt. 367-3;
dkt. 380), which the defendants oppose (see dkt. 372; dkt. 372-1); and

2

(3) the defendants’ motion to exclude the opinion of the plaintiffs’ expert Patrick
Passarella from the Court’s consideration of the plaintiffs’ forthcoming motion for class
certification (see dkt. 377 through dkt. 377-3; dkt. 382; dkt. 385), which the plaintiffs
oppose (see dkt. 379; dkt. 383; dkt. 386).
For the following reasons, the Court denies all three motions.
DISCUSSION
I.

Legal Standard
The Third Circuit Court of Appeals has summarized the standard for resolving a

motion to exclude the opinion of a party’s expert, in view of Federal Rule of Civil
Procedure 702 and the holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993):
Under Rule 702, expert testimony must meet three separate requirements to
be admissible. First, the witness must be qualified to testify as an expert by
possessing specialized expertise. See Calhoun v. Yamaha Motor Corp.
U.S.A., 350 F.3d 316, 321 (3d Cir. 2003). Second, the expert’s testimony
must be reliable

—

it “must be based on the ‘methods and procedures of

science’ rather than on ‘subjective belief or unsupported speculation,’ “and
“the expert must have ‘good grounds’ for his or her belief.” In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 742 (3d Cir. 1994) (quoting Daubert, 509 U.S.
at 590). Third,” ‘the expert’s testimony must be relevant for the purposes of
the case and must assist the trier of fact.’

“

Calhoun, 350 F.3d at 321

(quoting Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 405
(3d Cir. 2003)). Expert testimony is not helpful “when the untrained layman
would be qualified to determine

...

the particular issue without enlightemnent

from those having a specialized understanding of the subject involved in the

3

dispute,” Fed. R. Evid. 702 advisory committee’s note 1972 proposed rules,
and expert testimony may be based on experience so long as that experience
provides appropriate validation for the proposed testimony. See Daubert,
509 U.S. at 590 (noting that to qualify as scientific, technical, or specialized
“knowledge,” “[p]roposed testimony must be supported by appropriate
validation

i.e., ‘good grounds,’ based on what is known.”).

[A] District Court.

.

.

[may exercise] its discretion in declining to hold a

Daubert hearing before deciding to exclude.. testimony. [A district court
.

may decide] not to hold a Daubert hearing where the basis for the expert’s
testimony was clear and the record was adequate to support a determination
on admissibility. See [Oddi v. Ford Motor Co., 234 F.3d 136,] 154—55 [(3d
Cir. 2000)].

.

.

.

Moreover,.

.

.

[the parties] are not entitled to an open-ended

and never-ending opportunity to overcome a Daubert challenge. Sç [id.] at
154.
Senese v. Liberty Mut. Ins. Co., 661 Fed.Appx. 771, 774—76 (3d Cir. 2016); see also In re
SemCmde L.P., 648 Fed.Appx. 205, 2 13—14 (3d Cir. 2016) (stating that a federal court
acts as the gatekeeper for the opinions of experts, and that the proponent of an expert
opinion must demonstrate by a preponderance of the evidence that the opinion is
reliable).
II.

The Plaintiffs’ Expert Benedict

The plaintiffs submit the opinion of Benedict that the sound plugs at the ends of
the drainage tubes suffer from a common design defect in all of the Vehicles that caused
water to infiltrate

—

and thus cause damage to

consideration by the Court.

4

—

the interior of the Vehicles, for

The defendants do not appear to challenge Benedict’s qualifications here.
Nevertheless, the Court finds that Benedict is indeed qualified as an expert, based upon
his status, career, and experience as an engineer.
The Court finds that Benedict’s opinion that the Vehicles have a common design
defect, and that the defect is susceptible to common proof is sufficiently reliable to
permit its consideration in support of the plaintiffs’ forthcoming motion for class
certification. Benedict examined, analyzed, and measured the sounds plugs that were
installed in the Vehicles, and he opines that the same allegedly-defective design was used
in all of the Vehicles. In doing so, Benedict relied upon the statements from the
defendants’ own employees, who asserted that the sound plugs have the same function
and design across all of the Vehicles.
The Court rejects the defendants’ argument that Benedict failed to extensively test
the sunroof drainage systems, because that argument goes to the weight
the issue currently before the Court, i.e., the admissibility

—

as opposed to

of Benedict’s opinion for the

purposes of the consideration of the plaintiffs’ forthcoming motion for class certification.
See Schwartz v. Avis Rent A Car Sys., LLC, No. 11-4052, 2014 WL 4272018, at *45
(D.N.J. Aug. 28, 2014) (holding that a party’s argument that an opinion is based upon an
expert’s subjective beliefs, as opposed to being based upon a study conducted by the
expert, is relevant to the weight, not the admissibility, of the expert’s conclusion). The
plaintiffs are not tasked at this juncture with proving that the sound plugs were defective;
rather, they are tasked with showing that the defect arguably can be demonstrated to exist
through common proof.

5

Furthennore, the Court finds that Benedict’s expert opinion will be of assistance:
(1) in the consideration of the forthcoming motion for class certification; and (2) in
potentially helping a trier of fact to understand the safety issues created by the alleged
defect, as well as the need to maintain the sunroof drainage system. For example,
Benedict opines that the defendants designed the Vehicles’ interiors in such a way as to
harbor water, and installed the Vehicles’ electrical components in such a way that they
would be exposed to water when the drainage system clogged, thereby causing those
components to malfunction.
The Court’s conclusion concerning the admissibility of Benedict’s opinion for the
purposes of a class certification detennination should appear to be familiar to the parties,
because that deteniiination has already been made by the District Court Judge who was
previously assigned to this case.

Scc 2013

WL 785056, at *3_6. Furthermore, the

subsequent holding in this case by the Third Circuit Court of Appeals neither addressed
nor affected that previous determination concerning Benedict’s expert opinion.

Scc 794

F.3d 353, 356—75. Therefore, the defendants’ motion to exclude Benedict’s expert
opinion is denied, and Benedict’s opinion will be considered for the purposes of the
plaintiffs’ forthcoming motion for class certification.2

2

The defendants argue that Benedict’s opinion was not subjected to a
Daubert analysis in the previous opinion, but that argument is without merit. See 2013
WL 785056, at *3_6 (specifically engaging in a Daubert analysis concerning Benedict’s
opinion). The holding by the Third Circuit Court of Appeals in In re Blood Reagents
Antitrust Litigation, 783 F.3d 183 (3d Cir. 2015), upon which the defendants heavily rely,
does not require a contrary result here.

6

III.

The Defendants’ Expert Marais

The defendants submit for consideration by the Court the opinion of Marais
concerning the issue of the damages calculation. The defendants seek to counter the
opinion of the plaintiffs’ mathematical and statistical expert, Walter Bratic, on: (1) the
costs associated with repairing the alleged drainage defect in the Vehicles; (2) the number
of Vehicles that are still in use that Bratic addressed by using a nationwide model, as
opposed to a model that assesses each state individually; and (3) the potential process by
which the Vehicles can be located and the proposed class members can be ascertained.
For instance, Bratic proposes that the damages should be calculated by multiplying the
estimated number of Vehicles that are still in use by an estimate of the cost to modify the
sunroof drainage system for each of the Vehicles.
The Court rejects the plaintiffs’ argument that the opinion submitted by Marais
should be barred as being untimely at this juncture. The plaintiffs’ earlier motion for
class certification was granted by the previously-assigned District Court Judge in March
2013, but the Third Circuit Court of Appeals reversed that earlier decision in 2015,
thereby changing the course of this litigation. It would be unjust for the Court to prevent
the defendants from submitting Marais’s opinion in view of the passage of time and in
view of the contents of the plaintiffs’ forthcoming motion for class certification.
The Court also concludes that Marais’s opinion passes muster under Daubert in
order to be considered as part of the opposition to the forthcoming motion for class
certification. The plaintiffs find fault with the portion of Marais ‘S opinion that suggests

7

avoiding the expense of altering the sunroof drainage systems for all of the Vehicles, and
instead suggests it would be more economical to insure the Vehicles against the alleged
damages at issue here, in view of what Marais characterizes as the low failure rate of the
Vehicles having the alleged sunroof defect. The plaintiffs also find fault with the
concerns expressed by Marais that: (1) the defendants’ records of the original purchases
and leases of the Vehicles will be of no use when determining where the Vehicles are
located now; and (2) the vehicle registration data that is maintained by states will not
reflect where a given Vehicle was bought or leased. However, the plaintiffs’ arguments
go to the weight of Marais’s opinion, whereas the Court is currently only concerned with
the admissibility of that opinion for the purposes of the forthcoming class certification
determination.
Furthennore, the Court believes that Marais’s opinion will be helpful in addressing
the forthcoming arguments concerning whether the proposed class members can be
ascertained. Therefore, the Court finds that Marais’s opinion is reliable and will be of
assistance to the Court in making its determination concerning class certification.3
Therefore, the plaintiffs’ motion to exclude Marais’s expert opinion is denied, and
Marais’s opinion will be considered for the purposes of the defendants’ opposition to the
plaintiffs’ forthcoming motion for class certification.

The plaintiffs do not challenge Marais’s qualifications. The Court notes
that Marais possesses a doctorate in business administration, mathematics, and statistics,
and that he has vast experience in the field of applied mathematical and statistical
analysis.

$

IV.

The Plaintiffs’ Expert Passarella

The plaintiffs submit for the Court’s consideration the opinion of Passarella to
counter Marais’s opinion about the process of ascertaining the current location of the
Vehicles. Whereas Marais opines that the current locations of the Vehicles will be
difficult to ascertain, Passarella opines that the vehicle identification numbers for the
Vehicles can be processed through the registration databases maintained by each state,
and that matches can then be made that will provide the identities of the current owners
and the previous owners of the Vehicles. furthermore, Passarella opines that the
defendants indeed have a database of vehicle identification numbers that gives rise to the
ability to track the current owners of the Vehicles through records maintained by the
states.
The Court finds that the opinion of Passarella is sufficiently reliable and helpful in
order to permit its consideration when the forthcoming motion for class certification is
addressed, particularly because Passarella’s opinion addresses the issue of the
ascertainability of the class.4 Whether Passarella’s assertions are ultimately found to be
correct is a determination that goes to the weight that the Court may give his opinion, as
opposed to the issue of whether his opinion is admissible. Furthermore, any argument by
the defendants that an expert’s opinion concerning the ascertainability issue for the
forthcoming motion for class certification would not be helpful to the Court must be

The defendants do not challenge Passarella’s qualifications. The Court
notes that Passarella has extensive experience as a class action administrator.

9

__________

rejected. Therefore, the defendants’ motion to exclude Passarella’s expert opinion is
denied, and Passarella’ s opinion will be considered for the purposes of the plaintiffs’
forthcoming motion for class certification.

CONCLUSION
For the aforementioned reasons, this Court: (1) denies the defendants’ motion to
exclude the opinion of the plaintiffs’ expert Charles Benedict from the Court’s
consideration (see dkt. 362); (2) denies the plaintiffs’ motion to exclude the opinion of
the defendants’ expert M. Laurentius Marais (see dkt. 367); and (3) denies the
defendants’ motion to exclude the opinion of the plaintiffs’ expert Patrick Passarella (see
dkt. 377).
The Court will enter an appropriate order and judgment.

J5E L. LINARES
United States District Judge

Dated: April

,

2017

10