Naparala v. Pella Corporation
Filing
51
ORDER denying 31 Motion to Certify Class Signed by Honorable David C Norton on June 3, 2016. (rweh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
TED NAPARALA, SR., on behalf of
himself and all others similarly situated,
Plaintiff,
vs.
PELLA CORPORATION,
Defendant.
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No. 2:14-mn-00001-DCN
No. 2:14-cv-03465-DCN
ORDER
This matter is before the court on plaintiff Ted Naparala, Sr.’s (“plaintiff”) motion
for class certification. For the reasons set forth below, the court denies plaintiff’s motion.
I. BACKGROUND
Plaintiff began construction of his Princeton, Wisconsin home in September 2005.
Plaintiff purchased defendant Pella Corporation’s (“Pella”) ProLine and Architect Series
windows from a retail store in Wisconsin and, with his son’s help, personally installed the
windows into his home in November 2005. Pl.’s Mot. Ex. 1, Naparala Depo. 19:24–25,
34:14–16. Plaintiff’s windows came with a limited warranty, which required Pella to
repair or replace—or refund the purchase price of—any defective windows, if notified of
a defect within ten years of the date of sale. Pl.’s Mot. Ex. 20.
In 2006, plaintiff allegedly began observing moisture problems with the windows
and contacted Pella. Id. at 61:4–12. Plaintiff made a claim under the window’s limited
warranty, and on March 23, 2006, an independent distributor of Pella products,
VerHalen, Inc., sent a service technician to investigate this claim. Id. at 62:16–20. The
technician determined that the windows were not sealing properly and adjusted the cranks
1
so that the windows would crank tighter. Id. Plaintiff was not charged for this service
visit or any associated labor. Id.
Plaintiff contends that his windows continued to experience moisture problems in
the years following his 2006 warranty claim, but plaintiff did not submit a subsequent
claim until December 2013. Id. at 63:10–14. On January 27, 2014, a service technician
from VerHalen, Inc. again visited plaintiff’s home and concluded that the windows were
experiencing interior condensation caused by excess humidity, which fell outside of the
warranty. Pl.’s Mot. Ex. 2, Gerdes Expert Disclosure 17. As such, plaintiff was denied
warranty coverage. Id.
Plaintiff filed this action in the United States District Court for the Eastern
District of Wisconsin on May 20, 2014, bringing claims for: (1) violation of the
Wisconsin Deceptive Trade Practices Act; (2) negligence; (3) breach of implied warranty
of merchantability; (4) breach of implied warranty of fitness for a particular purpose;
(5) breach of express warranty; (6) fraudulent concealment; (7) unjust enrichment;
(8) violation of the Magnuson-Moss Warranty Act (“MMWA”); and (9) declaratory
relief. On August 15, 2014, the United States Panel on Multidistrict Litigation
transferred the case to this court as part of the consolidated multidistrict litigation. On
May 19, 2015, the court granted in part and denied in part Pella’s motion to dismiss, and
on December 22, 2015, the court granted Pella’s motion for partial summary judgment.
As a result of the court’s rulings on motions, plaintiff’s only remaining claims are for
breach of express warranty with respect to the limited warranty and violation of the
MMWA.1
1
The MMWA claim is derivative of the breach of express warranty claim. See ECF No. 23,
Motion to Dismiss Order 17–18.
2
Plaintiff contends that Pella’s Architect Series and Designer Series aluminumclad casement windows (the “Windows”)2 manufactured from 1997–2007 suffer from a
common defect—an “inadequate water management system”—and that this defect is
exacerbated by inadequate application of wood preservative to the Windows. See ECF
No. 38-1 in Case No. 2:14-cv-3307, Dilly Mot. to Certify Class 2.3 Plaintiff argues that
because all Windows manufactured during the class period inherently contain the
aforementioned defect, any attempt to repair such Windows or replace such Windows
with other Windows manufactured during the class period was meaningless, because it
invariably left the warranty claimant with defective Windows.4 Pl.’s Mot. 19–20. Thus,
plaintiff concludes, the repair and replace remedies available under the limited warranty
fail of their essential purpose. Id.
Plaintiff filed the instant motion for class certification on November 9, 2015.
Pella filed its response on December 15, 2015. Plaintiff replied on January 19, 2016, and
Pella filed a sur-reply on February 9, 2016. The court held a hearing on the matter on
February 22, 2016. The motion is now ripe for the court’s review.
II. STANDARD
Class certification is governed by Federal Rule of Civil Procedure 23. Rule 23(a)
provides that one or more members of a class may sue or be sued as representative parties
on behalf of all only if: “(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the class, (3) the claims or
2
The court notes that plaintiff did not own any Designer Series Windows. Plaintiff did own Proline
Series Windows, but such windows are not the subject of this action.
3
Plaintiff incorporates components of a related motion for class certification in the case of Dilly v.
Pella Corporation, 2:14-cv-3307. Pl.’s Mot. 2. Where applicable, the court cites directly to that motion.
4
The court expresses no opinion on plaintiff’s underlying assumption that the limited warranty
extends to design defects.
3
defenses of the representative parties are typical of the claims or defenses of the class,
and (4) the representative parties will fairly and adequately protect the interests of the
class.” In addition to the requirements of Rule 23(a), a class must also satisfy the
requirements set forth in one of the three sub-parts of Rule 23(b), as follows:
(1) individual actions would risk inconsistent adjudications, or adjudications dispositive
of non-parties; (2) class-wide injunctive or declaratory relief is sought and appropriate; or
(3) legal or factual questions, common to the proposed class members, predominate over
questions affecting individual members. See Gunnells v. Healthplan Servs., 348 F.3d
417, 423 (4th Cir. 2003). In addition to these explicit requirements, “Rule 23 contains an
implicit threshold requirement that the members of a proposed class be ‘readily
identifiable,’” often referred to as the “ascertainability” requirement. EQT Prod. Co. v.
Adair, 764 F.3d 347, 358 (4th Cir. 2014).
The plaintiff carries the burden of establishing that each of the requirements for
class certification is satisfied. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 362 (4th
Cir. 2004) (“The plaintiffs who propose to represent the class bear the burden of
demonstrating that the requirements of Rule 23 are satisfied.”); Windham v. Am. Brands,
Inc., 565 F.2d 59, 65 n.6 (4th Cir. 1977) (en banc) (“It is well settled in this jurisdiction
that the proponent of a class certification has the burden of establishing the right to such
certification under Rule 23.”). Though class certification should not be “conditioned on
the merits of the case,” the court may “look beyond the pleadings to the extent necessary
to understand the claims, defenses, relevant facts, and applicable substantive law in order
to make a meaningful determination of the certification issues.” Clark v. Experian Info.
Sols., Inc., 2001 WL 1946329, at *1 (D.S.C. Mar. 19, 2001). Ultimately, the court “has
4
broad discretion in deciding whether to certify a class, but that discretion must be
exercised within the framework of Rule 23.” Lienhart v. Dryvit Sys., Inc., 255 F.3d 138,
146 (4th Cir. 2001) (quoting In re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir.
1996)).
III. DISCUSSION
Plaintiff seeks certification of the following class:
All persons or entities who, as of the Notice Date, are current or former
owners of structures in Wisconsin with Pella Architect Series or Pella
Designer Series, aluminum-clad casement windows (the “Windows”)
manufactured from the beginning of 1997 through the end of 2007, and
who made a claim under Pella’s Limited Warranty. The Windows include
fixed and operating casements but exclude awnings, shapes, direct set and
specialty products.
Pl.’s Reply 3.5 Plaintiff seeks to certify the proposed class solely for the purposes of
determining whether the Windows are defective. Id. 3–4. If the finder of fact
determines that such a defect exists, plaintiff envisions a “second phase whereby
individual issues of causation and damages will be litigated on behalf of all class
members that submit sufficient documentation.” Id. at 4. On the other hand, if plaintiff
fails to prove that the Windows are defective, plaintiff contends that the matter would be
fully resolved. Id. Under this “trial plan,” plaintiff argues that certification is appropriate
5
Plaintiff narrowed the scope of the proposed class by adding the language “and who made a claim
under Pella’s Limited Warranty” in his reply. There was some initial question as to whether the class was
meant to include individuals who made their warranty claims after 2007. Given that Pella windows are
manufactured to order, see Def.’s Resp. 5, it seems fairly clear that proving a defect in Windows
manufactured between 1997 and 2007 would in no way advance a failure of essential purpose claim for
those individuals whose defective Windows were replaced after 2007. Nevertheless, plaintiff’s arguments
at the hearing indicate that such individuals are included in the class. See Hr’g Tr. 71:5–8 (citing affidavit
showing the number of claims Pella received from Wisconsin locations regarding Windows manufactured
between 1997 and 2007, regardless of when claim was made); Hr’g Tr. 155:4–7 (“[W]e think that even past
2007 the wood preservation treatment is not entirely effective. So that still is an issue in this case.”); see
also Pl.’s Reply Ex. 4, Branda Dec. ¶ 6 (indicating number of warranty claims filed in Wisconsin for
windows manufactured between 1997 and 2007).
5
under Rule 23(b)(3), because the existence of a product defect predominates over all
other individual issues. Id. at 12.
At the class trial, plaintiff plans to prove that the Windows are “uniformly
defective” since they all have “an inadequate water management design and inadequate
wood preservative.” Id. at 3. Specifically, plaintiff alleges that, for all Windows: (i) the
glazing pocket—i.e. where the glass panel fits into the sash6—is not properly sealed due
to a lack of sealant adhesion and excessive saturation; (ii) the frame corners have
insufficient sealant; and (iii) the gasket between the sash and frame does not adequately
prevent water intrusion due to the gasket’s excessive compression set— i.e. the
permanent deformation in the gasket that remains when a force is removed. Id.; Def.’s
Resp. Ex. 14, SGH Report 67–72, 83–85.7 As to the wood preservative treatment,
plaintiff contends both that the treatment chemicals used and the treatment processes
applied were insufficient for extended and repeated saturation. Pl.’s Reply 3–4; SGH
Report 79–81, 83.
The court analyzes plaintiff’s proposed class under each Rule 23 requirement in
turn.
A.
Ascertainability
The implicit requirement of ascertainability demands that the members of the
proposed class be readily identifiable by reference to objective criteria. EQT Prod. Co.,
764 F.3d at 358. “To be ascertainable, a class must be ‘sufficiently definite so that it is
administratively feasible for the court to determine whether a particular individual is a
6
The window’s sash is the component of the window that holds the glass panel and fits inside the
window’s frame.
7
Plaintiff’s expert’s report is cited in both parties’ briefs, but is actually attached as Exhibit 1 to
Pella’s Daubert brief, ECF No. 129 in 2:14-mn-00001.
6
member.’” Solo v. Bausch & Lomb Inc., No. 2:06-cv-02716-DCN, 2009 WL 4287706,
at *4 (D.S.C. Sept. 25, 2009) (quoting Cuming v. S.C. Lottery Comm’n, No. 3:05-cv03608, 2008 WL 906705, at *1 (D.S.C. Mar. 31, 2008)). “[I]f class members are
impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’
then a class action is inappropriate.” Id. (quoting Marcus v. BMW of N. Am., LLC, 687
F.3d 583, 593 (3d Cir. 2012)).
The parties first dispute the usefulness of Pella’s warranty claims database in
locating putative class members. Plaintiff contends that this database would contain the
bulk of information necessary to determine class membership, Pl.’s Reply 23, while Pella
argues that its database does not provide a way of distinguishing between claims related
to plaintiff’s proposed defect and unrelated claims. Def.’s Sur-Reply Ex. 1, Saraf Supp.
Dec. ¶¶ 4–7. However, it is not at all clear why this is relevant, because the proposed
class definition includes all warranty claimants, no matter the underlying cause of the
warranty claim.8 Hr’g Tr. 72:23–73:1 (“THE COURT: Does your proposed class
include every person who made a warranty claim regardless of their – the cause of their
warranty claim? MR. LUCEY: Yes, sir.”).9
8
Notably, the database information used by the parties to this point appears to have already been
restricted to claims filed under thirty-nine “problem codes.” Def.’s Sur-Reply 5 n.4. Even assuming
plaintiff intends to limit the class to these “problem codes”—which is by no means obvious, given the
proposed class definition—both parties appear to agree that such a class would include members whose
claims had nothing to do with the defect alleged in this case. See id. (contending that many of the thirtynine problem codes include claims unrelated to wood deterioration); Hr’g Tr. 73:4–24 (recognizing that
claims unrelated to water intrusion are included in the class for “definitional purposes,” but that such claims
would be unable to prove individual causation).
9
Plaintiff does suggest that it is possible to isolate warranty claims on Pella’s database relating to
the wood deterioration “problem code.” Pl.’s Reply 23. However, plaintiff also concedes that these
problem codes do not precisely trace the defect claims involved in this dispute. See Hr’g Tr. 73:11–18
(explaining that certain claims coded as “bow warp sag” may truly be caused by the problems with the
frame-sash gasket at issue in this case); see also Saraf Supp. Dec. ¶ 7 (indicating that the “wood
deterioration” filter most closely represents the alleged product defects and that the results produced by this
filter would need to be supplemented by searching the database’s “comments” field for references to wood
deterioration, rot, etc.).
7
Once one recognizes the scope of the proposed class, the role of the database
information becomes clear. Plaintiff would utilize the database to identify owners of
Windows manufactured between 1997 and 2007 who made any sort of warranty claim.
Because the database leaves out denied claims, plaintiff proposes to locate additional
class members by subpoenaing authorized dealer records—which might contain
information on denials—and through publication. Hr’g Tr. 71:20–72:1. Plaintiff
suggests that potential class members who are not identified through Pella’s database and
dealer records could be confirmed by examining records retained by the class members
themselves, or, as a last resort, through examination of the windows. Pl.’s Reply 24.
While the breadth of the class definition underpinning this methodology may
present its own issues, ascertainability is not one of them. Every warranty claimant
identified by the database would necessarily be included in the class. This inquiry is
straightforward enough. Problems may certainly arise in locating certain denied
claimants,10 but these problems can be mitigated by the use of the dealer records and
publication of notice. The court approved of this basic approach in the Saltzman v. Pella
Corp. case dealing with Pella’s ProLine windows. 257 F.R.D. 471, 476 (N.D. Ill. 2009),
aff’d, 606 F.3d 391 (7th Cir. 2010) (“Where Pella’s records may be insufficient,
provision of notice can supplement class identification efforts.”). Such alternative
measures are likely to operate both objectively and manageably, as both effectively seek
to find alternative sources of documentation evincing an individual’s class membership.
Only in very specific circumstances would the court be faced with anything resembling a
10
The Saraf Expert Report indicates that Pella does have access to denial data from 2010 to 2014.
See Def.’s Resp. Ex. 6. Because plaintiff’s class includes all warranty claims regarding Windows
manufactured from 1997 to 2007, regardless of when the claim was made, this data could help locate some
of the denied claimants.
8
“mini-trial.” For instance, if a purported class member were denied warranty coverage,
and both Pella and the authorized dealer discarded any relevant documentation, and the
purported class member discarded their own documentation, then it may be necessary to
conduct an examination of the actual windows at issue. Notably, even in these
circumstances, the manufacturer and likely vintage of the windows can be determined by
looking at a sticker on the IGU. Pl.’s Mot. Ex. 13. This leaves the design of the window
and the existence of a warranty claim as the only issues even susceptible to the risk of a
“mini-trial.” Given the number of contingencies required to realize that risk, the court
finds that it does not present a true threat to the proposed class’s ascertainability.11
B.
Numerosity
To satisfy the “numerosity” requirement, a plaintiff must show that “the class is
so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “No
specific number of claimants is necessary . . . , and there is no mechanical test that the
[c]ourt can use when determining whether numerosity exists.” Ganesh, L.L.C. v.
Computer Learning Centers, Inc., 183 F.R.D. 487, 489 (E.D. Va. 1998) (citing Cypress v.
Newport News Gen. and Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967);
Kelley v. Norfolk & W. Ry. Co., 584 F.2d 34, 35 (4th Cir. 1978)).
Again, the breadth of plaintiff’s proposed class, incongruous as it may be to
plaintiff’s claim, easily satisfies the numerosity requirement. Courts have found the
numerosity requirement satisfied with as few as 40 persons. See Ganesh, L.L.C., 183
F.R.D. at 489 (citing Korn v. Franchard Corp., 456 F.2d 1206, 1209 (2d Cir. 1972)).
11
Notably, Pella’s own argument that “the vast majority who made claims had them accepted and
received warranty service” further suggests that this risk would be exceedingly low. Def.’s Resp. 35.
However, the evidence supporting this contention is subject to a separate motion to exclude, ECF No. 120
in 2:14-mn-00001, and as such, the court does not rely on it in deciding the instant motion.
9
Here, Pella’s claims database indicates that 1,934 warranty claims were filed in
Wisconsin for Windows manufactured between 1997 and 2007. Pl.’s Reply Ex. 4,
Branda Dec. ¶ 6b. That number is likely to grow since the database does not account for
denied claimants. Therefore, the court has little difficulty finding that the proposed class
“is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1).
C.
Commonality
Federal Rule of Civil Procedure 23(a)(2) requires plaintiffs seeking to represent a
class to show that “there are questions of law or fact common to the class.” A showing of
commonality does not simply entail raising common questions but a showing that “the
class members ‘have suffered the same injury.’” Wal-Mart Stores, Inc. v. Dukes, 131 S.
Ct. 2541, 2551 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157
(1982)). “Th[e] language [of Rule 23(a)(2)] is easy to misread, since [a]ny competently
crafted class complaint literally raises common ‘questions.’” Id. (internal citations
omitted). The class members claims “must depend upon a common contention[,]” which
“must be of such a nature that is capable of classwide resolution.” Id. This requires that
“determination of its truth or falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke.” Id. The commonality test is “qualitative” not
“quantitative.” See Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 429 (4th Cir.
2003) (citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996)).
“Quantitatively, almost by definition there will always be more individual [] issues than
common liability issues . . . . Qualitatively, however, . . . liability issues . . . [may] . . . far
exceed in complexity the more mundane individual [] issues.” Id. at 429 (quoting In re
Honda Motor Co., 979 F. Supp. 365, 367 (D. Md. 1997)).
10
Here, an essential element of plaintiff’s breach of warranty theory is that the
Windows manufactured during the class period were defective. Pl.’s Mot. 11; Pl.’s Reply
2. Plaintiff argues this defect issue can be resolved through common proof that the
Windows “suffer from an inadequate water management system and [an] inadequate
wood preservation system.” Pl.’s Mot. 11–12. Pella argues that the question of whether
the “water management system” was defective cannot be answered through common
proof, because: (i) the Windows do not even share a common design; and (ii) this
“system,” as alleged by plaintiff’s experts, does not constitute a single defect but a
number of different defects. Def.’s Resp. 27–30.
Pella disputes plaintiff’s contention that the Windows share a common design by
outlining the numerous design changes made during the class period. See id. Ex. 2.
When these changes are considered, Pella argues, the Windows manufactured during the
class period actually span fifteen unique designs. Id. In response, plaintiff cites In re
Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 847 (6th Cir.
2013) for the proposition that design differences do not defeat commonality if they have
no material effect on the alleged defect. Pl.’s Reply 9–10. The plaintiffs in Whirlpool
brought class claims based on an alleged defect in washing machines manufactured by
the defendant. In re Whirlpool Corp., 722 F.3d at 854. The defendant argued that class
certification was inappropriate because the allegations involved two different washing
machine designs, both of which were altered over the years, resulting in over twenty-one
variations. Id. The Sixth Circuit determined that these variations had no effect on the
issue of commonality, because the plaintiffs had presented evidence that “the two
[designs] are nearly identical, the design issues concerned various models, and most of
11
the differences in models were related to aesthetics, not design.” Id.; see also Barden v.
Hurd Millwork Co., Inc., 249 F.R.D. 316, 321 (E.D. Wis. 2008) (finding that class
certification was warranted, despite the fact that the class implicated over seventy types
of glass products, where the court recognized the products were “similar” and plaintiff
alleged that all such products failed in the same way).
Thus, the true question is not whether the class definition includes different
Window designs, but rather, whether these design variations had any impact on the
Window’s vulnerability to water intrusion. As set forth below, the court ultimately finds
that class certification is inappropriate in this case, regardless of how this question is
answered. Therefore, the resolution of this dispute must await another day.12 At this
point, it is sufficient to assume that any design variations do not bar certification, because
the alleged deficiencies were common to all Windows manufactured during the class
period.
Turning to Pella’s second objection, plaintiff’s expert identified three “failure
paths” in the Windows that lead to water intrusion, and consequently, wood deterioration:
(i) water penetrating the glazing pocket; (ii) water penetrating the frame corners; and
(iii) water penetrating the frame gasket. Dilly Mot. to Certify Class 2–3. Each failure
path was caused by a different deficiency in the Windows’ design. Id. at 3; SGH Report
67. In fact, it appears that water penetration in the frame corners is attributable to two
separate deficiencies, a failure to inject butyl sealant into certain areas of the frame and
12
The court notes that a number of Daubert challenges are currently pending, which the parties have
agreed to address after class certification. If this design variation issue reemerges, it may be more easily
resolved once these Daubert challenges have been decided.
The court further notes that resolution of these Daubert challenges would have no effect on the
class certification analysis in this decision, because the court finds class certification inappropriate in light
of the structure of plaintiff’s claim and the nature of the inquiries required to resolve it. The court does not
base its conclusion on the veracity of any particular assertion made by the parties’ experts, but instead
looks to the nature and scope of the arguments those assertions are intended to support.
12
the use of incompatible sealants. SGH Report 72. Moreover, plaintiff attributes water
penetration in the glazing pocket to deficiencies in a different sealant. See SGH Report at
81 (referring to “glazing seals”); Def.’s Resp. Ex. 1 at 5 (showing different sealants used
for sash and frame). Plaintiff also contends that Pella placed too much reliance on the
use of wood preservatives to prevent deterioration, that Pella’s use of such preservatives
did not comply with “basic consensus standards,” and that Pella “deviated from
manufacturer instructions and specifications.” Dilly Mot. to Certify Class 5–6; SGH
Report 72–82.
Though plaintiff characterizes his claim as alleging a single defect in the
Windows’ “water management system,” the court finds that the “failure paths” identified
in the “water management system” are, in reality, allegations of distinct defects in
different parts of the Windows.13 A product defect exists by virtue of the fact that it
causes some sort of harm, either to the product itself, or to persons or property beyond the
product. See DEFECT, Black’s Law Dictionary (10th ed. 2014) (“An imperfection or
shortcoming, esp. in a part that is essential to the operation or safety of a product.”).
Thus, the basic concept of a defect is tied up with a causal link between some aspect of a
product and the harm it creates. In this case, the evidence indicates that each “failure
path” functions independently. Plaintiff’s own expert suggests that each path fails at
13
Perhaps plaintiff truly intends to pursue a single, “system-wide” defect theory that leaves open the
question of whether each “failure path” is an individual defect and only asks whether they create a defect in
combination. It would seem that this theory implicitly asks whether each “failure path” constitutes a
defect; but assuming it does not, such a theory is not consistent with plaintiff’s assertion that Pella stands to
gain the benefit of meaningful issue preclusion if it prevails at a class trial. See Hr’g Tr. 69:24–70:2
(“[Pella] would get issue of preemption [sic] if they prevail that these windows do not have a design defect
that permits water intrusion and premature wood degradation.”). If the class trial somehow never asks
whether each “failure path” constitutes a defect, then those questions will obviously remain un-litigated,
and thus, unaffected by issue preclusion. Thus, for plaintiff’s issue preclusion argument to hold, the court
must construe plaintiff’s defect argument to allege multiple defects. Otherwise, the court would have to
recognize that class certification offers Pella very little in the way of issue preclusion.
13
different rates. See SGH Report 54 (indicating glazing pocket leaks at 8% rate, frame
corners leak at 15% rate, and sash-frame gasket leaks at 61% rate). Moreover, each
“failure path” allegedly permits water intrusion into the different parts of the Windows.
See SGH Report Figures 28–30 (diagraming different water intrusion related to the frame
gasket and glazing pocket failure paths).
The most that can be said is that each failure path results in water intrusion—i.e.,
each causes the same type of damage—but this does not mean that they all constitute one
defect. Otherwise, any number of seemingly distinct components could be grouped as
part of a single “system,” simply because they all lead to the same result. For instance, a
faulty ball joint and a faulty set of lug nuts may each cause the wheel to fall off of a
vehicle, but few would argue that these problems constitute a single defect. Defects
come into being by virtue of a causal relationship, and according to plaintiff’s own
allegations, each “failure path” has its own causal relationship with water intrusion.
Under certain theories of liability, this revelation may not impact commonality,
since each class member’s Windows contained the same alleged defects. However,
because of the peculiar nature of plaintiff’s breach of express warranty claim, each class
member will need to prove much more than the existence of a particular defect. A
Wisconsin breach of warranty claim requires that the warranty actually be breached. Ball
v. Sony Elecs. Inc., 2005 WL 2406145, at *6 (W.D. Wis. Sept. 28, 2005) (explaining that
breach of warranty did not accrue where, despite existence of defect, where plaintiffs
failed to allege that “defendant breached its promise”). The Pella limited warranty
requires claimants to notify Pella “of a defect” within the warranty period. Pl.’s Mot. Ex.
20 (emphasis added). Pella cannot be said to have breached the terms of its warranty, at
14
least for the purposes of plaintiff’s claim, unless it received such notice. Id. Thus, even
assuming the limited warranty failed of its essential purpose every time Pella’s repair or
replace obligations arose, each class member will still need to show that their initial
warranty claim was premised on a defect, and not some other problem, to establish that
Pella’s obligations were actually triggered.
This requirement, especially when considered in conjunction with the plaintiff’s
multiple defect allegations, sharply undermines the practical significance of the common
issue in this case. Consider two hypothetical class members: the first makes an initial
warranty claim based on problems that were attributable to leaks in the frame corner, and
the second makes an initial warranty claim based on leaks in the sash-frame gasket. If it
is proven that the frame corner is defective but the sash-frame gasket is not, then only the
first class member has a viable claim because he is only class member who notified Pella
of a defect in accordance with the limited warranty. Whatever the outcome of plaintiff’s
proposed class trial, the court will need to make individual determinations as to the
underlying cause of each class member’s warranty claim. Plaintiff’s multiple defect
theory amplifies the risk that this analysis will result in different answers for all different
class members. Moreover, this causal analysis does not necessarily establish causation of
damages because many class members will have made warranty claims that were actually
accepted. In these cases, it will be necessary to conduct an additional individualized
inquiry to determine whether the class member’s damages were also caused by a defect.
At most, determining which “failure paths” constitute actual defects can serve two
purposes in this litigation: (i) it can establish which class members claims can go
forward after determining the underlying cause of their individual warranty claims; and
15
(ii) it can establish that Pella failed to meet its warranty obligations in each case where it
repaired a class member’s Windows or replaced such Windows with other Windows
manufactured during the class period. However, this second purpose is not common to
all class members, since the class inexplicably includes warranty claimants who received
replacement Windows that were manufactured after 2007. See Hr’g Tr. 71:5–8 (citing
affidavit showing the number of claims Pella received from Wisconsin relating to
Windows manufactured between 1997 and 2007); Hr’g Tr. 155:4–7 (“[W]e think that
even past 2007 the wood preservation treatment is not entirely effective. So that still is
an issue in this case.”). Because plaintiff’s defect allegations only relate to Windows
manufactured before 2007, see Dilly Mot. to Certify Class 2 (“Pella Architect and
Designer Casement Windows manufactured from 1997-2007[] suffer from a common
defect.”), a class trial is especially unhelpful to these class members, as they would still
need to prove the existence of defects in their replacement Windows. Thus, the first
purpose outlined above is the only true “common issue.”
Though the court recognizes “there need be only a single issue common to the
class,” Soutter v. Equifax Info. Servs., LLC, 307 F.R.D. 183, 199 (E.D. Va. 2015), it also
has some doubt as to whether the single issue presented in this case is so “central” to the
resolution of the class members’ claims that it warrants class certification. See Wal-Mart
Stores, 131 S. Ct. at 2551. Nevertheless, the court believes these “centrality” concerns
are more squarely addressed under the rubric of Rule 23(b)(3), which requires that “the
questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
16
Because the court ultimately finds that plaintiff has failed to show that the proposed class
meets such requirements, there is no need to decide whether these failures also preclude a
finding of commonality under Rule 23(a). In this case, the crucial takeaway of the
commonality analysis is that the only common issue is decidedly narrow. Determining
whether the Windows manufactured during the class period contained any of the alleged
defects is only establishes which particular “failure paths” a class member must prove
caused them to file a warranty claim.
D.
Typicality
Typicality requires that the “class representative [] be part of the class and possess
the same interest and suffer the same injury as the class members.” Lienhart, 255 F.3d at
146 (quoting Falcon, 457 U.S. at 156). The Fourth Circuit has stated that the
requirements of commonality, typicality, and adequacy “tend to merge, with
commonality and typicality serv[ing] as guideposts for determining whether . . .
maintenance of a class action is economical and whether the named plaintiff’s claim and
the class claims are so interrelated that the interests of the class members will be fairly
and adequately protected in their absence.” Id. (quoting Broussard v. Meineke Discount
Muffler Shops, Inc., 155 F.3d 331, 337 (4th Cir. 1998)) (alteration in original) (internal
quotation marks omitted). “The premise of the typicality requirement is simply stated:
as goes the claim of the named plaintiff, so go the claims of the class.” Broussard, 155
F.3d at 340 (quoting Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998)).
17
Many of Pella’s challenges to plaintiff’s typicality argument deal with
individualized issues of causation, damages, and Pella’s affirmative defenses.14 Def.’s
Resp. 32–35 (noting that plaintiff experienced condensation, not water infiltration; noting
the need for different damage models for former owners and indirect owners; and noting
different notice requirements in different versions of the limited warranty). These
challenges highlight the same basic problem addressed above in the commonality
analysis: the common issue in this case is so limited that the result of a class trial may
have very little bearing on a given class member’s ability to recover. However, by their
very nature, these challenges do not strike at the common defect issue.
Because the court assumes that the alleged failure paths remained effectively
unchanged during the class period, the court also assumes that plaintiff’s Windows are
comparable to other Windows purchased during the class period. Thus, plaintiff’s claim
is clearly typical with regard to the narrow defect issue. However, the court again
stresses that, even under this assumption, plaintiff has failed to demonstrate typicality
beyond this narrow issue.
E.
Adequate Class Representative
“In order for class certification to issue, the Plaintiffs also have the burden of
demonstrating that they will fairly and adequately protect the interests of every putative
claimant. This requirement asks whether the Plaintiffs are competent to undertake the
case and whether they have interests that are antagonistic to other class members.”
Ganesh, L.L.C., 183 F.R.D. at 490. “For a conflict of interest to prevent plaintiffs from
meeting the requirement of Rule 23(a), that conflict ‘must be fundamental. It must go to
14
Pella’s argument that most class members have not been injured because their Windows have not
manifested a defect was mooted by the revised class definition offered in plaintiff’s reply, which limits the
class to those who have made warranty claims.
18
the heart of the litigation.’” Gunnells, 348 F.3d at 430–31 (quoting 6 Alba Conte &
Herbert B. Newberg, Newberg on Class Actions § 18:14 (4th ed. 2002)).
Pella’s initial arguments on this issue were largely mooted by the restricted class
definition in plaintiff’s reply. See Def.’s Resp. 36 (arguing that, because plaintiff has
already been injured by the alleged defect, his motivation for generous immediate
payouts might conflict with the interests of Window purchasers who have not yet
suffered any injury); Pl.’s Reply 3 (limiting class to persons who have already made
warranty claims). Beyond this issue, the adequacy inquiry simply merges with
commonality and typicality. See Lienhart, 255 F.3d at 146. Therefore, the court finds
that plaintiff is an adequate class representative for the narrow purposes of determining
whether the Windows are defective.15
F.
Rule 23(b)(3)
1.
Predominance
Plaintiff seeks certification under Rule 23(b)(3), which empowers the court to
certify a class when “the questions of law or fact common to class members predominate
over any questions affecting only individual members,” and “a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy.” Fed. R.
Civ. P. 23(b)(3). “The Rule 23(b)(3) predominance inquiry tests whether proposed
classes are sufficiently cohesive to warrant adjudication by representation.” Amchem
Prods. v. Windsor, 521 US. 591, 623 (1997). The predominance requirement is “far more
15
While the court is somewhat troubled by the possibility of conflicts of interest between class
members whose damages were caused by water intrusion through different failure paths, neither party
thoroughly addressed this issue in its briefing. Therefore, because the issue has not been squarely
addressed and because it is not dispositive of the outcome, the court declines to offer any opinion on how it
would impact the Rule 23 analysis at this time. Should the question of class certification persist in this
litigation, the court reserves the right to address this issue in the future.
19
stringent than the commonality requirement of Rule 23(a).” Lott v. Westinghouse
Savannah River Co., 200 F.R.D. 539, 563 (D.S.C. 2000) (citing Amchem Prods., 521
U.S. at 623–24). Where the factual or legal issues common to all class members are
outweighed by the number and significance of uncommon, individual issues, Rule
23(b)(3) is not satisfied. Amchem Prods., 521 U.S. at 624. In weighing common issues
against individual issues, “[t]he paramount concern for the court is not merely the number
of individual inquiries that may be required, but rather whether the nature of the
individual inquiries involved is so complex as to outweigh the nature of the common
issues sought to be resolved by class treatment.” Brooks v. GAF Materials Corp., No.
8:11-cv-00983, 2012 WL 5195982, at *8 (D.S.C. Oct. 19, 2012).
As noted above in section III.C., this case presents a number of individual
inquiries, particularly with respect to causation. First, it must be recognized that the
scope of “causation” issues presented by plaintiff’s claim is not limited to determining
the cause of each class member’s damages. While this task will certainly require its own
set of individualized inquiries, each class member will also need to show that they
satisfied the notice requirement under Pella’s limited warranty, which will require
individualized inquiries into the cause of whatever problems led to each warranty claim.
These inquiries might merge where a warranty claim was denied, but are likely to be
separate where a class member actually received repairs or replacement Windows—at
least to the extent that the damages occurred after said repair or replacement. Moreover,
these causal inquiries are likely to be very fact intensive, as it will be necessary to
differentiate what damage was caused by defective “failure paths” and damage was
caused by independent factors, such as improper installation, condensation, or even other
20
“failure paths” that are not deemed defective. Differentiating defect-related damage from
non-defect-related damage is already a highly disputed issue in this litigation. See Def.’s
Resp. 10–14. The need to prove notice of a defect and the possibility that some failure
paths might be deemed non-defective will only exacerbate the problems posed by these
individual inquiries on a class-wide basis.
Pella is also likely to have affirmative defenses available against many class
members, especially with regards to the statute of limitations. Assuming the limited
warranty is read to extend to future performance, each class member’s breach of warranty
claim will have accrued at the point when the breach is or should have been discovered.
Wis. Stat. § 402.725(2). This is likely to require individual determinations of when
particular class members realized that Pella failed to repair or replace their defective
Windows. To the extent class members seek to avail themselves of equitable tolling, it
will be necessary to determine whether such class members: (i) relied on Pella’s
fraudulent actions or representations, and (ii) did not unreasonably delay filing suit after
discovering the true facts. ECF No. 23, Order on Mot. to Dismiss at 15–16. The court
has already become familiar with the fact-intensive analysis required to resolve such
questions, both in this case and in related actions in this multidistrict litigation. See
Order of Partial Summ. J. 11 (analyzing evidence, or lack thereof, of Pella’s fraudulent
representations and plaintiff’s knowledge of Window’s problems); see also ECF No. 44
in 2:14-cv-3307, Dilly Order of Summ. J. 34–35 (assessing whether plaintiff’s knowledge
of the facts was sufficient to place him under duty to make inquiry into basis of his
claims under Nebraska doctrine of equitable estoppel).
21
Plaintiff cites a number of product liability cases holding that establishing a
common defect constitutes a predominant issue warranting class certification. Pl.’s
Reply 6. However, these cases are distinguishable from the case at hand for a variety of
reasons. Three of the cases—Chamberlan v. Ford Motor Co., 402 F.3d 952 (9th Cir.
2005),16 Dafflin v. Ford Motor Co., 458 F.3d 549 (6th Cir. 2006), and Thomas v.
Louisiana-Pacific Corp., 246 F.R.D. 505 (D.S.C. 2007)—dealt with claims based on the
defendants’ delivery or marketing of defective goods. Chamberlan v. Ford Motor Co.,
223 F.R.D. 524, 525 (N.D. Cal. 2004) (seeking recovery under California Consumer
Legal Remedies Act (“CLRA”) for defendant’s “failure to disclose the defective nature of
the plastic intake manifolds”); Dafflin, 402 F.3d at 554 (“The class members’ claims do
not differ based on whether there has been actual accelerator sticking because they all
allege that Ford delivered a good that did not conform to Ford’s written warranty.”);
Thomas, 246 F.R.D. at (explaining that individual issues of maintenance and installation
did not affect predominance where liability was premised on sale of products that were
“substantially likely to fail during [their] useful life”) Here, plaintiff’s claim focuses on
Pella’s failure to repair and replace the Windows, not the initial purchase of the
Windows.17 Pl.’s Reply 24–25. (“Common evidence will show, on behalf of the entire
class, that Pella’s Limited Warranty failed in its essential purpose because, due to the
inherent defect, Pella is unable to restore class windows to a non-defective condition.”).
The difference is significant because the damage resulting from the delivery of a
defective product is simply the loss of value attributable to the defect, which can be
16
Notably the Ninth Circuit’s opinion in Chamberlan primarily discussed the propriety of appellate
review under Rule 23(f) and the level of class certification analysis required at the district court level.
17
If plaintiff’s breach of express warranty claim was targeted at the delivery of defective Windows,
there would be no reason to limit the class to Window owners who actually made warranty claims. The
Dafflin class contained no such limitation. Dafflin, 458 F.3d at 551.
22
established by simply proving the product was delivered. See Dafflin, 458 F.3d at 554
(noting “the difference in value between conforming and non-conforming goods is better
litigated in a class-wide context”). Thus, the Chamberlan, Dafflin, and Thomas courts
were not faced with the complex causation issues present here. The Sixth Circuit even
recognized that Dafflin was not “a case [] in which different class members were exposed
to different products such that the uncommon issue of causation predominated over the
lesser shared issues.” Id. at 554. Instead, the court explained, “[t]his is a case in which,
assuming the throttle body is the same in every car, class members all have the same
express warranty claim.” Id. at 554. While the instant case does not involve “different
products,” it does involve damage arising from different sources, and for the reasons
described above, this variation is likely to require a number of individual inquiries.
Plaintiff also cites In re Zurn Pex Plumbing Products Liab. Litig., 644 F.3d 604
(8th Cir. 2011), and Helmer v. Goodyear Tire & Rubber Co., 2014 WL 1133299, at *9
(D. Colo. Mar. 21, 2014), which both addressed whether individual causation inquiries
rendered class certification inappropriate. As an initial matter, it appears that neither case
faced the scope and extent of causation inquiries presented by plaintiff’s breach of
express warranty claim. Though the Helmer plaintiff did claim that the product contained
more than one defect, Helmer, 2014 WL 1133299, at *1, there is no indication that the
Helmer plaintiff’s claims implicated multiple causal analyses of the sort presented here,18
and if they did, the Helmer court certainly did not consider the issue.
More importantly, both Zurn and Helmer ultimately discounted the need for
individual inquiries into causal alternatives—such as improper installation or
environmental factors—because they found that the evidence simply did not support
18
Helmer involved allegations of strict products liability. Helmer, 2014 WL 1133299, *2.
23
those concerns. Zurn, 644 F.3d at 619 (recognizing that “[w]hile the existence of
individual defenses may be important in a court’s decision to certify a class,” the district
court properly considered defendant’s individual defense arguments against plaintiffs’
argument that such defenses lacked “sufficient evidence”); Helmer, 2014 WL 1133299,
at *9 (concluding that “the facts do not suggest that individual questions would
predominate”). In contrast, the evidence in this case suggests that installation,
condensation, and other individual conditions are likely to be important inquiries in
deciding individual class members’ claims. Def.’s Resp. Ex. 18 (American Society for
Testing and Materials standards for installation of windows, stating that “[i]nstallation of
fenestration units can significantly influence in-service performance”); Def.’s Resp. Ex.
19 (American Architectural Manufacturers Association standards for installing windows,
stating that “effectiveness and durability of installed units depend not only on the choice
and quality of materials, design, adequacy of assembly, and support system, but also on
their proper installation”); Def.’s Resp. Ex. 20 at 18–21 (American Society for Testing
and Materials standards for evaluating water leakage through windows, detailing need to
evaluate numerous potential causes); Def.’s Resp. Ex. 23 (U.S. Department of Energy
Report explaining common condensation issues and noting that “[l]eft unchecked,
condensation can damage window frames, sills, and interior shades”).
There is no question that individual inquiries into causation and affirmative
defenses may preclude class certification. See Lienhart, 255 F.3d at 149 (holding that
need for “individualized proof of damage causation” destroyed predominance);
Broussard, 155 F.3d at 342–43 (recognizing that “when the defendant’s affirmative
defenses [] may depend on facts peculiar to each plaintiff’s case, class certification is
24
erroneous” and where “each putative class member’s claim for [] damages was inherently
individualized,” they were “not easily amenable to class treatment”). A number of courts
have found such inquiries to preclude class certification, despite the existence of a
common defect issue. See, e.g., Haley v. Kolbe & Kolbe Millwork Co., 2015 WL
9255571, at *11–13, *16 (W.D. Wis. Dec. 18, 2015) (plaintiffs alleging breach of
warranty claims regarding defective windows failed to satisfy predominance due to
various individual inquiries, including those implicated by statute of limitations and
causation issues); City of St. Petersburg v. Total Containment, Inc., 265 F.R.D. 630, 636
(S.D. Fla. 2010) (plaintiffs bringing claims based on defective pipes failed to satisfy
predominance in light of “individual issues going to liability and damages”); Farrar &
Farrar Dairy, Inc. v. Miller-St. Nazianz, Inc., 254 F.R.D. 68, 75 (E.D.N.C. 2008)
(plaintiffs bringing claims based on defective farm equipment failed to satisfy
predominance where causation issues and affirmative defenses would dominate most
every class member’s case, “even assuming that [plaintiffs] were able to prove that the
[equipment was] defective”).
The Eleventh Circuit’s recent decision in Brown v. Electrolux Home Products,
Inc., 2016 WL 1085517 (11th Cir. Mar. 21, 2016), is instructive. In Brown, the Eleventh
Circuit reversed the district court’s decision to certify a class of washing machine
purchasers bringing breach of warranty and other claims against the manufacturer.19 The
court found that the district court failed to consider certain state-law issues which could
require individual proof. Id. at *8. Notably, these issues included a pre-suit notice
19
The district court’s decision in Terrill v. Electrolux Home Products, Inc., 295 F.R.D. 671, 686
(S.D. Ga. 2013), is another case plaintiff cited for the proposition that predominance is satisfied by the
existence of a common defect issue.
25
requirement not unlike the notice of defect requirement in this case.20 Id. The court went
on to explain that while the defendant’s individual defenses and the need to conduct
individual damage inquiries did not necessarily defeat predominance, they did warrant
consideration. See id. at *9–11 (stating that where individual damages “are accompanied
by significant individualized questions going to liability” or where “affirmative defenses
[] apply to the vast majority of class members and raise complex, individual questions,”
predominance may not exist) (internal quotation marks omitted). As explained above, all
of these considerations are relevant to this case.
The Farrar case provides further support. Farrar, 254 F.R.D. 68. In Farrar, the
plaintiff brought negligence, breach of warranty, and unfair trade practices claims against
the manufacturer of allegedly defective farm equipment. Id. at 70–71. The plaintiff
moved for class certification, highlighting the common question of a class-wide defect.
Id. at 72. Noting that each of the plaintiff’s claims required proof of causation and that
the equipment in question could fail for a number of different reasons, the court found
that:
Even assuming that named plaintiffs ultimately prove that the bags are
defective, defendant will almost certainly bring at least one causation
challenge (and likely many causation challenges) against each global class
member. It is these individual causation questions—and not the common
issues—that would be the predominating issues in the case were the court
to grant global class certification.
Id. On top of this, the court found that the need to address various affirmative defenses—
including statute of limitations defenses—provided an independent bar to class
certification. See id. at 75 (“[E]ven if the court agreed with [] plaintiffs that common
20
The court also noted that individual causation issues precluded certification of the plaintiffs’
consumer claims. Brown, 2016 WL 1085517, at *6–7. Though the specific issues present in the Brown
case are not present here, the court at least upheld the proposition that individual causal inquiries are
sufficient to defeat predominance. Id.
26
questions would predominate over the individual causation questions, . . . plaintiffs have
not shown that common questions would predominate over the individual affirmative
defenses . . . .”). The breach of express warranty claim in this case, like the claims at
issue in Farrar, will likely require numerous individualized inquiries into causation and
affirmative defenses. Thus, the court has little trouble finding that, when plaintiff’s claim
is considered as a whole, individual issues predominate over the common defect issue.
In the instant case, plaintiff does not seek certification as to the entire claim.
Instead, plaintiff seeks certification with respect to a single issue under Rule 23(c)(4): the
existence of a defect.21 Pl.’s Reply 31–32. There is some dispute over how the court
must apply the predominance test when faced with a request to certify as to a specific
issue. Compare In re Nassau Cty. Strip Search Cases, 461 F.3d 219, 225 (2d Cir. 2006)
(“[A] court may employ Rule 23(c)(4)(A) to certify a class on a particular issue even if
the action as a whole does not satisfy Rule 23(b)(3)’s predominance requirement.”) with
Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996) (“A district court
cannot manufacture predominance through the nimble use of subdivision (c)(4). The
proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a
cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that
(c)(4) is a housekeeping rule that allows courts to sever the common issues for a class
trial.”). However, the emerging majority and two recent decisions by courts in this
circuit have found that a court “may use Rule 23(c)(4) to certify a class as to an issue
21
Plaintiff describes his request for Rule 23(c)(4) certification as an “alternative” to certification
under Rule 23(b)(3). Pl.’s Mot. 7. However, Rule 23(c)(4) classes are not exempt from the requirements
of Rule 23(a) or 23(b), though such requirements may apply differently. Thus, it is not entirely clear what
plaintiff seeks as an alternative to Rule 23(c)(4) certification. The court discussed this question at the
hearing and is satisfied that analysis of the proposed class under Rule 23(c)(4) is sufficient to address all
issues relevant to the instant motion. Hr’g Tr. 128:13–17 (“THE COURT: Your 24(c) class issue is the
same as the issue in the other class, right? MR. LUCEY: Yes, sir. THE COURT: Exactly the same. MR.
LUCEY: Yes, sir. Thank you.”).
27
regardless of whether the claim as a whole satisfies the predominance test in Rule
23(b)(3).” See Parker v. Asbestos Processing, LLC, No. 0:11-cv-01800, 2015 WL
127930, at *11 (D.S.C. Jan. 8, 2015) (noting that the Second, Seventh, and Ninth Circuits
had all adopted the same approach and finding that Fourth Circuit case law appeared to
follow this approach as well); Good v. Am. Water Works Co., Inc., 310 F.R.D. 274, 298
(S.D.W. Va. 2015) (adopting the same approach and finding that “[t]he weight of
authority [] runs counter to [] Castano.”).
The court will assume that this more permissive approach is correct, as it appears
to have more support and better serves the purposes of Rule 23 by providing courts with
greater flexibility to manage potential class actions. See Parker, 2015 WL 127930, at *5
(“[D]istrict courts should ‘give Rule 23 a liberal rather than a restrictive construction,
adopting a standard of flexibility in application which will in the particular case best
serve the ends of justice for the affected parties and . . . promote judicial efficiency.’”
(quoting Gunnells, 348 F.3d at 424)). However, the court does not need to make an
explicit finding on the issue, as it has no effect on the ultimate result.
When this approach is applied, the predominance requirement is almost
automatically satisfied. See id. at *12 (“Naturally, when a court chooses to limit class
certification only to certain common issues under Rule 23(c)(4), those issues presumably
predominate and seemingly satisfy the first element of Rule 23(b)(3).”). Though the
Parker court recognized a possibility that individualized sub-issues might predominate
within the common issue, nothing of the sort is present here. Id. All putative class
members made warranty claims for Windows which contained the same basic “failure
paths.” Whether these failure paths were or were not “defects” is not simply the
28
predominant question addressed under Rule 23(c)(4), it is the only question. Thus, Rule
23(c)(4) allows plaintiff to escape the horde of causation issues, affirmative defenses, and
damages inquiries that would destroy predominance if the claim were considered as a
whole. But this evasion is only temporary.
2.
Superiority
As Rule 23(c)(4) eases the demands of the predominance requirement, it shifts the
focus to Rule 23(b)(3)’s second requirement, superiority.
As the common issues are narrowed down to make them sufficiently
“common,” the desirability of issue certification is diminished
because . . . the relatively simple threshold issues can quickly be disposed
of in individual trials. This means that the superiority component of Rule
23(b)(3) frequently comes into play to defeat issue certification.
Id. at *15.
“A determination of superiority necessarily depends greatly on the circumstances
surrounding each case.” Stillmock v. Weis Markets, Inc., 385 F. App’x 267, 274 (4th
Cir. 2010) (quoting § 1779 Class Actions in Which Common Questions Predominate
Over Individual Questions—Class Action Must Be Superior to Other Available Methods,
7AA Fed. Prac. & Proc. Civ. § 1779 (3d ed.)). The ultimate goal of the superiority
inquiry is to ascertain whether “the objectives of the class-action procedure really will be
achieved in the particular case.” Id. (quoting § 1779 Class Actions in Which Common
Questions Predominate Over Individual Questions—Class Action Must Be Superior to
Other Available Methods, 7AA Fed. Prac. & Proc. Civ. § 1779 (3d ed.)). Rule 23(b)(3)
provides a list of relevant factors:
(A)
the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B)
the extent and nature of any litigation concerning the controversy
already begun by or against class members;
29
(C)
the desirability or undesirability of concentrating the litigation of
the claims in the particular forum; and
(D)
the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3).
When analyzing the superiority requirement in the context of Rule 23(c)(4),
courts “have declined to certify [issue] classes where the prevalence of individual issues
is such that limited class certification would do little to increase the efficiency of the
litigation.” Parker, 2015 WL 127930, at *16 (citing Gates v. Rohm & Haas Co., 655
F.3d 255, 274 (3d Cir. 2011); In re St. Jude Med., Inc., 522 F.3d 836, 841 (8th Cir. 2008);
McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 234 (2d Cir. 2008)); Farrar, 254 F.R.D.
at 77 (“[A] district court should decline to certify issues where there are so many
individual issues in the case that certifying the common issues would have a negligible
effect on judicial efficiency.”).
For example, in the aforementioned Farrar case, the Eastern District of North
Carolina found that “the multiplicity of individual causation and affirmative defense
issues” outweighed any “speculative increase in judicial efficiency that might be gained
from certifying the common issues.” Farrar, 254 F.R.D. at 78.22 Similarly, the court in
City of St. Petersburg v. Total Containment, Inc. addressed a request to certify a number
of specific issues under Rule 23(c)(4), which included the existence of a common defect.
265 F.R.D. at 646. The St. Petersburg court, like the Farrar court, found that even if the
22
The Farrar court used this reasoning as the basis for alternative holdings on the issues of both
predominance and superiority. See Farrar, 254 F.R.D. 78 n.11 (“Alternatively, a class action would not be
the superior method to handle this litigation. [] Individual trials are a better mechanism for handling this
case in light of the multiplicity of individual issues.”). This is simply because the Farrar court adopted a
different approach in evaluating commonality under Rule 23(c)(4). See id. at 78 (looking to the entire
cause of action in assessing predominance in Rule 23(c)(4) context). While this court has assumed a
different approach to predominance, the Farrar court’s application of the superiority requirement remains
highly relevant. Moreover, if this court’s departure from the Farrar court’s approach to predominance is
incorrect, this only strengthens the conclusion that certification is inappropriate.
30
common issues were resolved, numerous individual issues of causation and damages
would remain. Id. at 641 (“[E]ven if Plaintiffs were able to demonstrate that FlexPipe
had a general defect, it would not assist Plaintiffs in meeting their burden of showing that
that particular defect was the legal cause of each class member’s harm.”); Id. at 642
(“Calculating damages for each putative class member would necessarily require
significant amounts of individualized proof.”). The court then rejected the plaintiffs’
request for Rule 23(c)(4) certification, holding that the issues proposed for class
treatment “[were] either not easily determined on a class-wide basis or their resolution
would not advance [p]laintiffs’ claims.”23 Id. at 646 (emphasis added). These cases
make clear that when evaluating superiority in the Rule 23(c)(4) context, the court must
look to the entire case to determine the value of class certification. Even if class
treatment of a particular issue will advance the litigation, class certification may
nevertheless be inappropriate if that advance is insubstantial when measured against the
remaining issues.
Thus, the value of settling the defect issue through a class trial must be considered
against the burdensome individual inquiries required to determine: (i) whether the
original warranty claim caused by defect; (ii) whether any of Pella’s affirmative defenses
apply; (iii) causation of each class member’s damages; and (iv) the amount of such
damages. As noted above, the court expects many of these inquiries to be particularly
fact-intensive. Physical inspections of each class member’s Windows are almost
23
Like the Farrar court, the St. Petersburg court conducted much of its analysis under the
predominance prong and simply transferred its reasoning into the superiority context. St. Petersburg, 265
F.R.D. at 644–45 (“[T]he same issues preventing common questions from predominating individual ones,
also weigh against a class action as the superior method of resolving this case. The more individual issues
predominate common ones, the more difficult it is to manage a class action.”). As discussed in the
preceding footnote, while the court has adopted a different approach to the issue of predominance in the
context of Rule 23(c)(4), the court finds the St. Petersburg court’s analysis entirely applicable to the issue
of superiority.
31
guaranteed. The parties have already spent a great deal of time, energy, and money
examining the Windows owned by the named plaintiffs in this litigation, and numerous
disputes over the source of the damages remain. Compare Dilly Mot. to Certify Class 2–
6 with Def.’s Resp. 10–14. Determining when class members acquired notice of their
claims may also be susceptible to proof through physical evidence, or at least individual
testimony. Moreover, class members who brought warranty claims after 2007 and
received replacement Windows would still need to litigate the issue of whether their
replacement Windows were defective. It appears then, that resolving the defect issue
“would do little to increase the efficiency of the litigation.” Parker, 2015 WL 127930, at
*16.
This is especially true when one considers the potential alternatives to class
certification. As the Parker court recognized, there are a number of alternative litigation
tools available to prevent constant re-litigation of the defect issue. Id. at *15. “The use
of Fed. R. Civ. P. Rule 36 requests for admission, the submission of special verdicts[,]
and the possible subsequent use of collateral estoppel (either defensive or offensive),”
could provide many, if not all, of the benefits plaintiffs receive through class certification,
see id., and while many courts note that class certification also “protects the defendant
from inconsistent adjudications,” Good, 310 F.R.D. at 297 (quoting Gunnells, 348 F.3d at
427), if Pella has any say in the matter, the court suspects they will be willing to forego
such protection.
Plaintiff points out that in Saltzman, the court recognized the individualized
inquiries required to prove causation, damages, and the statute of limitations, but still
found certification of the liability issue appropriate. Pella Corp. v. Saltzman, 606 F.3d
32
391 (7th Cir. 2010) (affirming the district court’s decision to certify). However,
Saltzman is distinguishable from the case at hand. In Saltzman, there was no indication
that the alleged defect was actually an amalgamation of multiple independent defects.
See Saltzman, 606 F.3d at 392 (“Plaintiffs, owners of structures containing the windows
in question, allege that the windows contain a design defect that permits water to seep
behind the aluminum cladding and causes the wood to rot at an accelerated rate.”).
Moreover, the defect issue was not the only issue susceptible to class treatment. See
Saltzman, 257 F.R.D. at 484 (finding that “the predominant questions will be the scope of
Pella’s warranty, the nature of the PSEP and whether it amended the warranty, whether
and when Pella ProLine Windows suffered from an inherent wood “durability” defect,
whether and when Pella knew of the defect, and whether and when Pella publicly
announced the defect and the PSEP”). Finally, Saltzman did not contain a breach of
express warranty claim. Id. at 474–75. In this case, the unique nature of that claim
makes it necessary to determine the cause of the issues underlying each class member’s
original warranty claim. This adds an entirely new set of causation questions to the
ordinary issues of damage causation. In light of these distinctions, the Saltzman litigation
was more likely to be advanced by class certification than this case.
Though the court recognizes it “is not required under Rule 23 . . . to sacrifice class
adjudication of a driving issue . . . simply because many individualized inquiries will
remain thereafter,” Good, 310 F.R.D. at 298, the court is not convinced that the defect
issue in this case is sufficiently “driving” to warrant such treatment. This is not to say
that the parties have not expended significant resources on that issue to this point. Indeed
they have, and the court recognizes that many class members do not have enough at stake
33
to justify such intense litigation efforts on their own account. However, this incentive
problem is not solved by issue certification where the remaining individualized issues
will also require significant resources. Moreover, if the alleged defects are as uniform as
plaintiff suggests, then much of the information other class members need to bring their
case may already be available. But even if it is true that the defect issue makes this
litigation prohibitively expensive for many class members, that fact alone is insufficient
to justify class certification. Even under Rule 23(c)(4), superiority cannot be judged in a
vacuum; the court must consider whether “resolution of the[] [c]ommon [i]ssue[] will []
bring [p]laintiffs significantly closer to their goal of recovery.” Parker, 2015 WL
127930, at *16. This court concludes that it would not.
Therefore, court finds that class certification—even on the limited issue of
whether the Windows contained a defect—is not superior to other methods of
adjudication.
34
IV. CONCLUSION
Based on the foregoing, the court DENIES plaintiff’s motion for class
certification.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 3, 2016
Charleston, South Carolina
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