Featured Expert Column–Judicial Gatekeeping of Expert Evidence
Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, an Associate with Mayer Brown LLP.
In many civil lawsuits, parties introduce expert testimony to help the jury decide questions of negligence or causation. In class actions, expert testimony is also often employed to help the court answer questions under Federal Rule of Civil Procedure 23, such as whether a class is ascertainable or to develop a formula for awarding damages on a class-wide basis. In Kljajic v. Whirlpool Corp., the United States District Court for the Northern District of Illinois (St. Eve, J.) addressed the intersection of Daubert and Rule 23’s commonality and predominance requirements.
Under Rule 23(a), a plaintiff must show that there are questions of law or fact common to the class. And plaintiffs who seek certification under Rule 23(b)(3) must satisfy the more demanding predominance requirement, which looks to whether the common issues in the case are more important than the individualized issues. These two requirements are similar, and expert testimony can shed light on whether a case can be maintained as a class action.
In Kljajic, the plaintiffs allege that their Whirlpool ovens malfunctioned during a self-clean cycle. They brought suit against Whirlpool, claiming a common defect in the design of Whirlpool’s Vision II platform for ovens. That platform was used to manufacture two million ovens for three different brands, in three configurations, and in three different widths. In short, the Vision II platform covered a wide array of ovens.
Although Whirlpool’s ovens passed industry-adopted safety tests, the plaintiffs asserted that the ovens nevertheless would “lock up” during the self-clean cycle and become unusable. But as Judge St. Eve put it in her opinion, the plaintiffs were “somewhat coy in specifically identifying the defect in the ovens.”
In their complaint, the plaintiffs identified seven potential theories of a design defect. And in their class-certification briefs, they suggested that the defect was the confluence of several design flaws, arguing at times that air flow was the root cause while also pointing to the ovens’ alleged propensity to overheat. The plaintiffs’ inability to specifically identify a design defect proved problematic at the class-certification stage.
The plaintiffs sought to qualify Albert de Richemond, an engineer, as an expert in support of their class-certification motion. In preparing his expert testimony, de Richemond examined seven ovens and also conducted temperature testing on the named plaintiffs’ two ovens. At the Daubert hearing, de Richemond testified that “he did not know what caused [the plaintiffs’] ovens to fail during self-cleaning” and that “he did not know whether the cause of the two ovens’ failure was the same.” Like the plaintiffs’ pleadings and briefs, de Richemond toggled between different theories of causation: he cited air-flow problems, over-heating issues, the size of openings on the oven’s door, and even the accumulation of dust and spider webs as potential causes of the malfunction. He further admitted that he “did not test any of his theories of causation.”
Against this backdrop, Judge St. Eve concluded that de Richemond could not offer expert testimony for two reasons. First, she found that de Richemond’s opinions were unhelpful because he did not provide proof of a common defect. Judge St. Eve criticized de Richemond for “merely point[ing] to an undifferentiated mass of potential problems” and offering “unclear and fluctuating opinions.” She thus concluded that de Richemond did not offer an opinion as to a common defect and failed to satisfy Daubert’s strictures.
Second, Judge St. Eve held that de Richemond’s methodology was unreliable. Judge St. Eve explained that de Richemond provided “scant material as to how he reached any opinion” and faulted him for running tests on only two ovens and conducting no testing whatever regarding the cause of the ovens’ failure. She further criticized de Richemond for not testing any competitor ovens and for failing to offer an alternative design. In addition, Judge St. Eve concluded that de Richemond did not engage in a scientifically valid method, given his failure to discuss the successful testing of the ovens to meet industry safety protocols. As Judge St. Eve aptly put it, “to reach a conclusion that 2,000,000 ovens contain a common defect based on the testing of only two ovens leaves too large a gulf in analytical reasoning to qualify as reliable, especially given the differences in the ovens.”
Because de Richemond’s testimony was the “glue” holding the plaintiffs’ class-certification argument together, Judge St. Eve concluded that the plaintiffs could not “establish that all of the ovens—which comprise about 2,000,000 units using the Vision II platform that embody various differences in design and configuration—share the same defect.” Accordingly, she held that the plaintiffs could not satisfy Rule 23’s commonality and predominance requirements.
Judge St. Eve’s decision in Kljajic exemplifies the proper application of Daubert at the class-certification stage. Her opinion rightly criticized de Richemond’s kitchen-sink and flip-flopping approach to identifying a design defect as well his glaring failure to test more than two ovens or to conduct any causation-related experiments. These shortcomings resulted not only in de Richemond’s testimony being found unreliable but also in plaintiffs’ inability to establish that there were common questions among the putative class members. In consumer class actions, the question of certification is distinct from—and in many ways more important than—the ultimate issue of liability. Given its potential to dramatically raise the stakes of any potential judgment and thereby pressure defendants to settle, class certification is frequently the decisive event in litigation. In light of this practical reality, Judge St. Eve’s rigorous application of Daubert to prevent class certification based on junk science is a welcome development.