Won v. Gen. Motors
| Docket Number | 19-11044 |
| Decision Date | 27 July 2022 |
| Parties | WESLEY WON, DENNIS SPEERLY, JOSEPH SIERCHIO, DARRIN DEGRAND, DANIEL DRAIN, WAVERS SMITH, RICHARD FREEMAN, CHRISTOPHER GILES, LOUIS RAY, RICHARD SULLIVAN, DANIEL BAPTIST, DENNIS SPEERLY, JOHN IASIELLO, BENJY TOMPKINS, JAMES NORVELL, MICHAEL BANKS, GUY CLARK, MARIA BARALLARDOS, CARY SHERROW, JASON KEVIN SINCLAIR, KIMBERLY COULSON, TROY COULSON, ANDRE MCQUADE, DONALD DYKSHORN, TAIT THOMAS, JAMES PAUL BROWNE, WILLIAM FREDO, DONALD SICURA, JON ELLARD, RHIANNA MEYERS, RANDALL JACOBS, MICHAEL PONDER, PHILIP WEEKS, KARINA FREDO, JIMMY FLOWERS, STEVEN BRACK, KEVIN WESLEY, BRIAN LLOYD, GREGORY BUTSCHA, JERRY CARROLL, KIMBERLY CARROLL, DOMINIC EATHERTON, THOMAS EDMONDSON, RICHARD FILIAGGI, ROBERT HIGGINS, and DAVID THOMPSON, Plaintiffs, v. GENERAL MOTORS, LLC, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
In these consumer automobile defect cases, the parties have filed motions challenging the admissibility of the testimony of six expert witnesses on various grounds. The witnesses will offer testimony, presumably via affidavits, for the class certification phase of the case. The defendant has challenged the testimony of four witnesses, and the plaintiffs two. For the reasons discussed below, all six motions will be denied.
The context of the case is familiar by now and was discussed at length in the Court's two prior opinions on the defendant's pleading challenges to the amended class action complaint. The plaintiffs allege that the automatic transmissions in their cars occasionally will “slip buck, kick, jerk and harshly engage.” They say that when the transmission causes the vehicle to perform erratically, such as with sudden or delayed acceleration, the vehicles may be unsafe to drive. All of the car and truck models implicated by this suit were made by defendant General Motors, LLC between model years 2015 and 2019. The plaintiffs filed several suits, which were consolidated in this Court on behalf of putative classes including the owners of thousands of vehicles that, they claim, have defective transmissions, which GM has refused to fix or replace under its express warranty.
In a 2,920-paragraph consolidated amended class action complaint (CACAC), which spans more than 900 pages, including attached exhibits, the plaintiffs pleaded causes of action under the laws of 31 states sounding in breaches of express and implied warranties; common law fraudulent omissions and statutory consumer fraud; violations of various state laws governing consumer sales, deceptive marketing, and unfair trade practices; and unjust enrichment. The putative classes that have been proposed for certification consist of domestic buyers and lessors of GM cars and trucks equipped with its Hydra-Matic 8L90 and 8L45 transmissions. The class vehicles include the 2015 through 2019 model year Chevrolet Silverado; 2017-2019 Chevrolet Colorado; 2015-2019 Chevrolet Corvette; 2016-2019 Chevrolet Camaro; 2015-2019 Cadillac Escalade and Escalade ESV; 2016-2019 Cadillac ATS, ATS-V, CTS, CT6, and CTS-V; 2015-2019 GMC Sierra, Yukon, Yukon XL, and Yukon Denali XL; and 2017-2019 GMC Canyon.
The consolidated amended complaint aggregates claims brought by individuals in five separately filed civil actions (file numbers 19-11044, 19-11802, 19-11808, 19-11875, and 1912371), which were assigned or reassigned to this Court and consolidated for all pretrial proceedings. The parties stipulated to dismiss many of the originally named individual plaintiffs, and the plaintiffs, with leave granted, also have filed two addendums to the amended complaint naming replacement plaintiffs from most states. The Court also granted in part motions to dismiss certain claims and plaintiffs. Although the case as it stands includes claims under the laws of 31 states, the plaintiffs have moved for certification of classes embracing only 26 of those jurisdictions (omitting California, Connecticut, Indiana, Ohio, and Oregon).
The discovery period relating to class certification issues closed, and the parties timely filed their motions challenging expert witnesses relating to class certification. The plaintiffs filed their class certification motion, which is scheduled for a hearing later next month.
As a general rule, witnesses may not testify at trial unless they have personal knowledge of the facts about which they testify. Fed.R.Evid. 602. An exception to that rule exists for certain individuals who have special knowledge about a subject that extends beyond the common knowledge of jurors and may be helpful to them to decide a case. United States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016). Those individuals - sometimes called “experts” - are allowed to testify in the form of an opinion based on information made known to them by others. Fed.R.Evid. 702, 703. The general criteria for the admission of expert testimony and the Court's role as gatekeeper are familiar to the parties but bear repeating.
Evidence Rule 702, which governs expert testimony generally, was modified in December 2000 to reflect the Supreme Court's emphasis in Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), on the trial court's gatekeeping obligation to conduct a preliminary assessment of relevance and reliability whenever a witness testifies to an opinion based on special knowledge. The Court “has a ‘gatekeeping role' in screening expert testimony to ensure that only reliable testimony and evidence go to the jury.” United States v. Gissantaner, 990 F.3d 457, 463 (6th Cir. 2021) (citing Daubert, 509 U.S. at 597).
But there is no jury at this stage of the case. The law is unsettled on the extent to which the Daubert analysis applies to expert testimony offered solely to inform the Court's Rule 23 analysis. In the context of class certification, the Court must determine, among other things, whether “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). “The ‘predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.'” Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997)). Ibid. (quotations omitted).
Some federal courts “‘have held that on a motion for class certification, the evidentiary rules are not strictly applied and courts can consider evidence that may not be admissible at trial.'” Ganci v. MBF Inspection Servs., Inc., 323 F.R.D. 249, 257 (S.D. Ohio 2017) (quoting Rockey v. Courtesy Motors, Inc., 199 F.R.D. 578, 582 (W.D. Mich. 2001)). Nevertheless, some circuits, including the Sixth, have held that, when considering expert testimony that is offered to inform the Court's Rule 23 analysis, the Court does not abuse its discretion by invoking the familiar Daubert framework to evaluate whether the expert's opinion is sufficiently reliable and informative to be considered. See In re Carpenter Co., No. 14-0302, 2014 WL 12809636, at *3 (6th Cir. Sept. 29, 2014) () (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)); see also Schechner v. Whirlpool Corp., No. 16-12409, 2019 WL 978934, at *3 (E.D. Mich. Feb. 28, 2019) ( .
The parties do not appear seriously to contest whether the Daubert analysis applies at this stage of the case, and there are several indicators from appellate courts suggesting that it does. In prior rulings in similar litigation the Court has assumed that a Daubert analysis is appropriate, keeping in mind, however, that the challenged testimony is not being offered to prove the merits of the plaintiffs' claims, but only to establish that the merits of those claims properly can be adjudicated by means of collective litigation.
Turning to the governing law, Rule 702 states:
The...
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