Haley, Mary et al v. Kolbe and Kolbe Millwork Co., Inc. et al

Filing 524

ORDER reinstating and granting 317 Motion to Exclude Plaintiffs' Expert Witnesses; denying 388 Motion for Leave to File Sur-Reply; denying 496 Motion to Certify Class under Rule 23. Plaintiffs shall have until 4/8/2016 to show cause why the claims of the named plaintiffs should not be dismissed for the same reasons that the court is denying the motion for class certification. Signed by District Judge Barbara B. Crabb on 3/25/2016. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
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MARY HALEY and MICHAEL HALEY,
LESLIE BANKS and JAMES HAL BANKS,
ANNIE BUINEWICZ and BRIAN BUINEWICZ,
TERRANCE McIVER and JEAN ANN McIVER,
SUSAN SENYK and CHRISTIAN SENYK,
MATTHEW DELLER and RENEE DELLER,
PATRICIA GROOME, GARY SAMUELS and
MARIE LOHR, on behalf of themselves and
others similarly situated,
Plaintiffs,

OPINION AND ORDER
14-cv-99-bbc

v.
KOLBE & KOLBE MILLWORK CO., INC.,
Defendant,
and
FIREMAN’S FUND INSURANCE COMPANY
and UNITED STATES FIRE INSURANCE COMPANY,
Intervenor Defendants.
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Plaintiffs have brought this action under Wisconsin law on behalf of themselves and
similarly situated individuals, alleging that defendant Kolbe & Kolbe Millwork Co., Inc.
breached express and implied warranties under state law related to allegedly defective
windows installed in their homes. The following claims remain in this lawsuit: (1) the

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express warranty “no defect” claims brought by the Banks, Lohr, Senyk and Deller plaintiffs;
(2) the express warranty “failure to honor” claims brought by the McIver and Senyk
plaintiffs; and (3) the implied warranty of merchantability claims brought by the Haley,
Groome and Samuels plaintiffs. In an order entered on December 18, 2015, I denied
plaintiffs’ motion to certify national subclasses under Fed. R. Civ. P. 23(b)(2) and (3), but
I gave plaintiffs an opportunity to file a renewed request for certification of a limited issue
class or classes under Rule 23(c)(4) that addresses the court’s concerns. Dkt. #492. I also
denied without prejudice the motions in limine that the parties had filed while the motion
for class certification was pending before the court for decision. Id.
Now before the court is plaintiffs’ renewed motion for class certification in which they
propose up to nine new subclasses for the court to consider. Dkt. #496. Although plaintiffs
argue that the court can certify 34 common issues under Rule 23(c)(4), they devote most
of their 140-page brief to trying to convince the court that certification is still appropriate
under Rules 23(b)(2) and (3). Defendant opposes class certification on several grounds but
asks the court to first resolve two issues raised in defendant’s motions in limine because they
bear on the issue of class certification: (1) whether plaintiffs’ experts provided reliable and
helpful opinions regarding the existence of defects in defendant’s windows; and (2) whether
defendant’s written warranty applies to the types of defects alleged by plaintiffs. Dkt. #506
(citing dkt. ##317 and 402). Also relevant to the court’s consideration of defendant’s
motion to exclude plaintiffs’ experts is plaintiffs’ motion for leave to file additional evidence
as a surreply. Dkt. #388.

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I agree that it is necessary to reinstate defendant’s motion to exclude the expert
opinions of Joel Wolf and Haskell Beckham, dkt. #317, because plaintiffs have based their
design defect theories and class definitions on those opinions.

Having reviewed the

submissions filed by the parties, I conclude that the opinions of both experts must be
excluded as unreliable and unhelpful to the trier of fact for the reasons stated below.
Plaintiffs’ motion to file additional evidence will be denied because the evidence could have
been produced earlier and, in any event, would not change my decision with respect to the
admissibility of the experts’ opinions.
Without the experts’ opinions, plaintiffs cannot meet their burden of demonstrating
that common questions of fact predominate or that they have a viable method of showing
class-wide injury with common proof. Accordingly, their motion for class certification, dkt.
#496, must be denied. Because the exclusion of plaintiffs’ experts prevents certification of
any of the proposed classes in this case, it is unnecessary at this point to address whether
defendant’s written warranty applies to the types of defects alleged by plaintiffs. Finally, I
will order plaintiffs to show cause why the exclusion of their experts’ opinions would not
foreclose the individual claims of the named plaintiffs for the same reasons that it prevents
class certification.

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OPINION
A. Reinstatement of Defendant’s Daubert Motion
The Court of Appeals for the Seventh Circuit has made it clear that “a district court
must make whatever factual and legal inquiries are necessary to ensure that requirements for
class certification are satisfied before deciding whether a class should be certified, even if
those considerations overlap the merits of the case.” American Honda Motor Co. v. Allen,
600 F.3d 813, 815 (7th Cir. 2010) (per curiam). See also Szabo v. Bridgeport Machines,
Inc., 249 F.3d 672, 675-76 (7th Cir. 2001) (“The district judge [incorrectly] certified the
class without resolving factual and legal disputes that strongly influence the wisdom of class
treatment.”). Such inquiries may include a challenge to a party’s expert witness under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). For example, “when
an expert’s report or testimony is critical to class certification. . ., a district court must
conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling
on a class certification motion.” American Honda, 600 F.3d at 815-16.
In American Honda, the plaintiffs had sought to certify a class of motorcycle owners
alleging a design defect affecting the “wobble” (or side-to-side oscillation) in the front
steering assembly of their motorcycles. American Honda, 600 F.3d at 814. They based their
product defect theory on the opinion of an expert who had created his own methodology and
standards that he tested on a single used motorcycle. Id. at 816. The Court of Appeals for
the Seventh Circuit found the reliability of the expert’s testimony critical to class
certification because it was necessary to show that the plaintiffs’ claims were capable of class-

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wide resolution and that the common defect in the motorcycle was a predominant issue. Id.
at 817. In a subsequent case, the court of appeals further explained that
In American Honda, we used the word “critical” broadly to describe expert
testimony important to an issue decisive for the motion for class certification.
If a district court has doubts about whether an expert's opinions may be
critical for a class certification decision, the court should make an explicit
Daubert ruling. An erroneous Daubert ruling excluding non-critical expert
testimony would result, at worst, in the exclusion of expert testimony that did
not matter. Failure to conduct such an analysis when necessary, however,
would mean that the unreliable testimony remains in the record, a result that
could easily lead to reversal on appeal.
Messner v. Northshore University HealthSystem, 669 F.3d 802, 812 (7th Cir. 2012).
In this case, plaintiffs have submitted an expert report from Joel Wolf and Haskell
Beckham of Exponent Failure Analysis Associates regarding the performance of defendant’s
windows, including defendant’s aluminum-clad and K-Kron coated windows. Dkt. #281.
Wolf offers an opinion that defendant’s aluminum-clad casement, awning and picture
windows have a defective “sill-to-sash interface” that causes deterioration in the bottom rail
of the sash. Id. at 17 and 86. (The sash refers to the material that frames the glass, the rails
are the horizontal members of the frame and the sill is the bottom of the window opening
where the lower sash rests when the window is closed.) Specifically, Wolf says that the
following four design defects cause deterioration in the lower sash rail: (1) an inadequate
sill slope, which results in water from precipitation pooling under the sash; (2) an inadequate
gap between the sill frame and the bottom of the sash, which allows moisture on the frame
sill to wick into the exposed wood of the sash; (3) a weatherstrip gasket installed on the
bottom of the sash near the exterior face, which retains water below the sash, allows

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additional water to wick into the wood of the sash and retards the drying process; and (4)
an exposed wood surface on the underside of the sash that is not protected by cladding or
paint and is dipped in a water repellent preservative that has limited effectiveness and
longevity. Dkt. #281 at 2. With respect to the K-Kron coating, Beckham states that it is
not an appropriate choice for a long-term protective coating for wood windows because it
cracks, allows moisture into the wood frame and sash and retards the drying process. Id. at
3-4.
Defendant argues that the opinions of Wolf and Beckham are critical to class
certification because they form the basis of plaintiffs’ design defect theories. Plaintiffs do
not contest this point, stating only that the proper procedure is for defendant to resubmit
its Daubert motion because the court denied it without prejudice. However, defendant has
done this, making clear in its response to plaintiffs’ motion for class certification that it is
renewing its original Daubert motion, which was fully briefed before the court denied it
without prejudice. See dkt. ##318, 382, 385 and 388. Defendant has not changed its
argument or added any new arguments to which plaintiffs need to respond.

Because

plaintiffs do not deny that resolution of the Daubert motion is critical to certification of the
newly proposed classes, I will consider it. I note that plaintiffs ask that in the event that
court considers defendant’s Daubert motion, it reinstate plaintiffs’ motions to exclude the
opinions of defendant’s experts. This is unnecessary because defendant’s Daubert motion
is dispositive.

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B. Daubert Analysis
The admissibility of scientific expert testimony is governed by Daubert and by Federal
Rule of Evidence 702, which provides that “[a] witness who is qualified as an expert . . . may
testify in the form of an opinion or otherwise if (a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to determine
a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the
product of reliable principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.” In Daubert, the Supreme Court held that
Rule 702 requires the district court to serve as a “gate-keeper” and make “a preliminary
assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid.” Fuesting v. Zimmer, Inc., 421 F.3d 528, 534 (7th Cir. 2005, vacated
in part on other grds., 448 F.3d 936 (7th Cir. 2006) (quoting Daubert, 509 U.S. at 592–93).
Generally, a district court must consider four non-exclusive factors in assessing the reliability
of an expert witness: (1) whether the scientific theory can be and has been tested; (2)
whether the theory has been subjected to peer review and publication; (3) what the theory's
known or potential rate of error is when applied; and (4) whether the theory has been
“generally accepted” in the scientific community. Id. (citing Daubert, 509 U.S. at 593-94;
Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002)). “[T]he Daubert inquiry
is a flexible one, and . . . an expert's testimony need not satisfy each of the above factors to
be admissible.” Fuesting, 421 F.3d at 535.

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Defendant contends that the opinions of Wolf and Beckham are unreliable because
the experts erred in assuming that the underside of the bottom sash is unfinished in all of
defendant’s windows, performed testing that violates industry standards, did not propose
or test any functional, alternative designs for the windows, relied on out-of-date, foreign
publications, failed to connect the defect theories with the problems experienced by plaintiffs
and did not rule out other causes for the windows’ problems. Plaintiffs generally argue that
defendant’s challenges relate to the weight to be given the experts’ report and not to the
reliability or admissibility of the opinions. They also point out correctly that Wisconsin
does not require a plaintiff in a products liability case to prove that a safer alternative design
was commercially available. Godoy ex rel. Gramling v. E.I. du Pont de Nemours & Co.,
2009 WI 78, ¶¶ 43-44, 319 Wis. 2d 91, 117-18, 768 N.W.2d 674, 686-87; Sumnicht v.
Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 370-71, 360 N.W.2d 2, 17 (1984).
Although I agree that several of defendant’s concerns seem to relate to the weight of
the opinions rather than their admissibility, there are fundamental problems with the
experts’ analysis that go to the core of the predominance issue and prevent plaintiffs from
meeting their burden of demonstrating that they have a viable method of showing class-wide
injury with common proof. Reed v. Advocate Health Care, 268 F.R.D. 573, 589 (N.D. Ill.
2009) (finding same). Specifically, Wolf assumed incorrectly that defendant designed its
aluminum-clad windows to have an unfinished lower sash and plaintiffs have failed to
demonstrate that Beckham’s drying tests were scientifically valid or helpful to the trier of
fact. I will discuss these problems separately below.

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1. Mistake of fact with sill-to-sash defect theory
Wolf states in his report that defendant’s aluminum-clad casement, awning and
picture windows have four design defects, including an “exposed wood surface on the
underside of the sash,” which work together to cause deterioration.

Dkt. #281 at 2

(identifying combination of four defects), 86 (window problems include “very low-sloped
and flat sill sections which allow water to pool under the unclad/unfinished edge of the
sash”) and 48 (“The design of the Kolbe windows previously discussed results in bottom sash
rails which are wet for extended periods leading to the decay of the bottom rail initiating
from the bottom of the rail.”).

It is clear from Wolf’s report that he assumes that

defendant’s windows include an unfinished bottom sash rail, as sold.

Id. at 45-46

(“Although the wood components of these windows are protected by the cladding or
K-Kron/K-Kron II coating, the underside of the sash rails are unprotected by these
materials.”).
Defendant contends that Wolf’s assumption about the unfinished bottom sash rail
is incorrect because customers have the choice of ordering their windows unfinished or with
a factory-applied finish, including primer, aluminum-cladding or factory-applied paint. It
points out that although the named plaintiffs and the owners of the other windows in the
nine houses that Wolf inspected all ordered their windows unfinished, the proposed classes
include individuals who purchased fully-finished windows and Wolf has not stated any
opinion applicable to finished windows.

Defendant further contends that it instructs

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customers who order unfinished windows to finish all four sides of the window, so any
resulting deterioration is the result of user error.
Plaintiffs do not seem to dispute defendant’s contention that Wolf made an error in
assuming that defendant designed its windows to have an unfinished bottom sash rail. Their
only response to defendant’s argument is that Wolf’s opinion about the unfinished sash is
“just one aspect of a comprehensive indictment of the design of these windows, and as such
are only one aspect of a myriad of valid criticisms that are all firmly grounded in
‘scientifically valid principles,’ and all of which constitute ‘pertinent evidence.’” Dkt. #382
at 18. However, plaintiffs fail to provide any support for their argument that Wolf’s mistake
is immaterial. As defendant argues, Wolf included the unfinished sash rail as one of four
interrelated defects; he did not inspect or discuss windows with a finished bottom sash rail.
Nowhere in his opinion does he say that the other three defects would cause rot even if the
bottom sash rail of the window had a finish. Further, Wolf testified at his deposition that
the design factors all “work together” and it would be a mistake to “parse out” one from the
others. Dkt. #310 at 45-46. As a result, Wolf’s opinion is unreliable because it is based on
a material mistake of fact concerning the design of defendant’s aluminum-clad windows.
Plaintiffs state that “even assuming for sake of argument that a particular window was
left unfinished due to a failure of the homeowner/contractor to follow installation
instructions, such a failure to adhere to the installation instructions was entirely foreseeable
by Kolbe and therefore should have been accounted for in the design process. Mr. Wolf’s
evidence will therefore assist the trier of fact on this point.” Dkt. #382 at 18. This

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argument is not persuasive and does not solve the problem with Wolf’s report. Whether
defendant should have foreseen that homeowners would not finish their windows does not
change the fact that Wolf incorrectly assumed that defendant intended to leave its windows
unfinished and did not account for the fact that some windows came with a factory-applied
finish. As defendant points out in its reply brief, Wolf’s report would not assist the trier of
fact because he does not offer any opinion about whether it was foreseeable that
homeowners or contractors would not follow instructions with respect to finishing.
Moreover, plaintiffs have not offered any other support for such a theory.
After the parties had fully briefed defendant’s Daubert motion, plaintiffs filed a
motion for leave to file additional evidence as a surreply because defendant had raised this
last point for the first time in its reply brief. Dkt. #388. I am denying the motion for
several reasons. First, it was plaintiffs who raised the issue of foreseeability in their response
brief, and they could have submitted any supporting evidence at that time. Second, the
evidence plaintiffs submit with their surreply actually relates to whether defendant finishes
the bottom sash rail of its windows, an issue that defendant raised clearly in its initial brief
and to which plaintiffs had an ample opportunity to respond. Finally, even if I were to
consider the additional evidence, it does not solve the problems with Wolf’s opinion.
Plaintiffs have submitted a series of emails dated October 2007 between John
Hanrahan at North American Window and George Waldvogel, defendant’s Vice President
of Procurement, Quality and Service. Dkt. #389, exh. #1. Hanrahan informs Waldvogel
that

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[W]e are finding that you guys are leaving bare wood at the bottom of the
casement sashes for the identification label. This seems to be the worst
possible area to leave unprotected.
*

*

*

Operating Casements on the bottom do not get any paint/prime in the bottom
where you put your identification lettering, – even if we order them primed
(we order mostly interior primed) Now when the painter goes to finish paint
– he thinks that area is to be left natural – I’m concerned that we have bare
wood that could suck up water and possibly rot out the bottom rails if left
unprotected.
Id. Plaintiffs say that this communication shows that defendant had knowledge that (1)
even when the windows are ordered finished, the bottoms of its window sashes are shipped
unfinished; and (2) Kolbe stamps its name and the manufacturing date on the bottom of the
sash, indicating that this edge is supposed to be left unfinished. (Defendant has filed a
motion in limine to exclude these emails as inadmissible hearsay, dkt. #400, but plaintiffs
did not have an opportunity to respond to that motion before the court denied it without
prejudice.)
At most, the emails suggest that at some time, defendant may have failed to add finish
to windows that one customer ordered with primer. It is unclear from the emails how long
this practice may have lasted, which customers were affected or whether defendant remedied
the mistake in 2007 after being informed of the problem.

Contrary to plaintiffs’

contentions, the communications do not show that defendant produced only unfinished
windows during the class period or that Wolf was correct in assuming that defendant
designed its windows to be unfinished. Accordingly, Wolf’s opinion will be excluded as
unreliable and unhelpful.

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2. Testing of K-Kron defect theory
Beckham offers the opinion that K-Kron and K-Kron II are not appropriate choices
for window coatings because the product cracks, allows moisture into the wood frames and
sashes and delays the drying of wet wood by weeks (52 to 65 hours for bare wood versus 96
to 201 days for K-Kron-coated wood). Dkt. #281 at 3-4, 17 and 74-75. Relying on this
information, Beckham concluded that defendant should have used more permeable paint.
Dkt. #309 at 55; dkt. #281 at 4 and 80.
As defendant points out, Beckham did not test how susceptible K-Kron is to cracking
(which relates to the flexibility of the paint) or cite any standards recommending a certain
level of permeability for paint applied to windows. Dkt. #309 at 70. The only tests on
which Beckham relied were “drying tests” that he performed on samples of K-Kron-coated
wood taken from the windows in the nine houses that he inspected. Dkt. #281 at 74. In
the test, Beckham soaked pieces of wood to 100 percent saturation and then sealed all sides
with glue and foil except for one side, which was either bare or coated with K-Kron. He then
tracked how long it took for each piece of wood to dry. Dkt. #309 at 100. Defendant
contends that the drying tests represent nothing more than ipse dixit because they merely
confirm the common sense notion that bare wood dries faster than painted wood.
Defendant points to deposition testimony in which Beckham admits he did not follow
established European or American standards for drying tests but developed his own
methodology that has not been tested, published or reviewed by anyone other than his
coworkers at Exponent. Dkt. #309 at 82-83 and 93. Defendant contends that Beckham’s

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tests also did not replicate what happens with real windows installed in houses. For example,
the wood in windows installed in a house would never become 100 percent saturated and
the interior surfaces of the window would provide an avenue for moisture to evaporate,
unlike in Beckham’s laboratory testing in which he completely sealed all but one side of the
wood sample. In his deposition testimony, Beckham agreed that he was not trying to
replicate the way wood might dry in a house and that the sole purpose of his experiment was
to see how much longer wood coated with K-Kron would take to dry than bare wood. Dkt.
#309 at 99-100.
Defendant raises valid concerns.

Plaintiffs say almost nothing in response to

defendant’s criticisms, stating only that Beckham’s tests supported his opinion that K-Kron
causes windows to retain excessive moisture and leads to rot and decay. Dkt. # at 20-21.
This conclusory statement is insufficient to meet the Daubert standard. Plaintiffs have failed
to develop any argument showing that Beckham’s opinion is based on reliable methods or
that it provides relevant information that will be helpful to the trier of fact. Wehrs v. Wells,
688 F.3d 886, 891 n.2 (7th Cir. 2012) (undeveloped and unsupported arguments are
considered waived); Nichols v. National Union Fire Insurance Co. of Pittsburgh, PA, 509
F. Supp. 2d 752, 760 (W.D. Wis. 2007) (plaintiffs forfeited arguments by failing to respond
in meaningful way). Although Beckham’s testing shows that K-Kron-coated wood samples
dry much more slowly than samples of bare wood in a laboratory setting, he took no steps
to explain how one could extrapolate his results and apply them to wood windows installed
in an actual home. Beckham also does not explain how he concluded that the K-Kron-coated

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samples dried too slowly. In his report, he states generally that “[w]ater retained in the
wood under the K-Kron coating will remain above the fiber saturation point for extended
periods of time, eventually leading to wood decay which in turn leads to additional coating
failures” and “[t]here are indications in the literature that coatings with too low a
permeability will allow moisture to become trapped and increase the chance of decay.” Dkt.
#281 at 4 and 74. Although Beckham cites what appears to be a drying rate and discusses
fiber saturation points, neither he nor plaintiffs attempt to explain how these relate to the
results that Beckham observed with the drying of K-Kron-coated wood samples. As a result,
I cannot find that Beckham has applied reliable principles and methods or that his opinion
would help the jury understand the evidence or determine a fact in issue.

C. Conclusion
Plaintiffs have based their defect theories and class definitions on their experts’
opinions that certain types of windows sold by defendant during the class period contained
one or more defects. I find the opinions unreliable and unhelpful to a trier of fact and
therefore inadmissible. Without those opinions, plaintiffs cannot meet their burden of
demonstrating that common questions of fact predominate or that they have a viable
method of showing class-wide injury with common proof. Accordingly, their motion for class
certification, dkt. #496, must be denied and all of the class claims dismissed. Although it
appears that the exclusion of plaintiffs’ experts would also foreclose the individual claims of

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the named plaintiffs, I will give plaintiffs until April 8, 2016 in which to show cause why the
claims of the named plaintiffs should not be dismissed.

ORDER
IT IS ORDERED that
1. Defendant Kolbe & Kolbe Millwork Co.’s motion to exclude plaintiffs’ expert
witnesses, dkt. #317, is REINSTATED and GRANTED.
2. Plaintiffs’ motion to file a surreply to defendant’s motion to exclude plaintiffs’
experts, dkt. #388, is DENIED.
3. Plaintiffs’ motion for class certification under Fed. R. Civ. P. 23, dkt. #496, is
DENIED.
4. Plaintiffs shall have until April 8, 2016 to show cause why the claims of the named
plaintiffs should not be dismissed for the same reasons that I am denying the motion for
class certification.

Entered this 25th day of March, 2016.
BY THE COURT:
/s/
___________________
BARBARA B. CRABB
District Judge

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