Victorino et al v. FCA US LLC, No. 3:2016cv01617 - Document 262 (S.D. Cal. 2018)
Court Description: ORDER Denying Defendant's 231 Motion to Exclude Expert Testimony and Report of Steven Boyles. Signed by Judge Gonzalo P. Curiel on 6/7/18. (dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 13 CARLOS VICTORINO and ADAM TAVITIAN, individually, and on behalf of other members of the general public similarly situated, 14 Plaintiffs, 12 15 v. 16 FCA US LLC, a Delaware limited liability company, 17 19 21 22 23 24 25 26 27 28 ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE EXPERT TESTIMONY AND REPORT OF STEVEN BOYLES [Dkt. Nos. 231.] Defendant. 18 20 Case No.: 16cv1617-GPC(JLB) Before the Court is Defendant’s renewed motion to exclude the testimony and report of Plaintiffs’ damages expert, Steven B. Boyles (“Boyles”). (Dkt. No. 231.) Plaintiffs filed an opposition on May 11, 2018. (Dkt. No. 242.) Defendant filed their reply on May 18, 2018. (Dkt. No. 251.) The Court finds that the matter is appropriate for decision without oral argument pursuant to Local Civ. R. 7.1(d)(1). Based on the reasoning below, the Court DENIES Defendant’s motion to exclude Plaintiffs’ expert testimony and report of Steven Boyles. //// 1 16cv1617-GPC(JLB) 1 I. 2 Background In their amended motion for class certification, Plaintiffs Carlos Victorino 3 (“Victorino”) and Adam Tavitian (“Tavitian”) (collectively “Plaintiffs”) specifically 4 claim a design defect in the 2013-2015 Dodge Dart vehicles equipped with a Fiat C635 5 manual transmission built on or before November 12, 2014 (“Class Vehicles”) by 6 Defendant FCA US LLC (“Defendant” or “FCA”). (Dkt. No. 215-1 at 6.) Plaintiffs 7 assert that their vehicles’ clutches fail and stick to the floor which cause their vehicles to 8 stall, to not accelerate, and result in “premature failure of the transmission’s components, 9 including, but not limited to, the clutch master cylinder and reservoir hose, clutch slave 10 cylinder and release bearing, clutch disc, pressure plate, and flywheel.” (Dkt. No. 104, 11 FAC ¶ 2.) 12 II. Analysis A. Daubert Legal Standard 13 14 The trial judge must act as the gatekeeper for expert testimony by carefully applying 15 Federal Rule of Evidence (“Rule”) 702 to ensure specialized and technical evidence is “not 16 only relevant, but reliable.” Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 589 & 17 18 n.7 (1993); accord Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (Daubert imposed a special “gatekeeping obligation” on trial judges). 19 Under Rule 702, a witness, “qualified as an expert by knowledge, skill, experience, 20 training, or education, may testify” . . . if “(a) the expert’s scientific, technical, or other 21 specialized knowledge will help the trier of fact to understand the evidence or to determine 22 a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the 23 product of reliable principles and methods; and (d) the expert has reliably applied the 24 principles and methods to the facts of the case.” Fed. R. Evid. 702. The proponent of the 25 evidence bears the burden of proving the expert’s testimony satisfies Rule 702. Lust By & 26 Through Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). 27 28 2 16cv1617-GPC(JLB) 1 In applying Rule 702, the Ninth Circuit “contemplates a broad conception of expert 2 qualifications.” Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015 (9th 3 Cir. 2004) (quoting Thomas v. Newton Int’l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994)). 4 “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, 5 and attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 6 (9th Cir. 2010) (citing Daubert, 509 U.S.at 596). 7 On the other hand, the district court must act as a gatekeeper to exclude “junk 8 science.” Messick v. Novartis Pharms. Corp., 747 F.3d 1193, 1199 (9th Cir. 2014); Ellis 9 v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011) (“Under Daubert, the trial 10 court must act as a “gatekeeper” to exclude junk science that does not meet Federal Rule 11 of Evidence 702’s reliability standards by making a preliminary determination that the 12 expert’s testimony is reliable.”). 13 Under Daubert, scientific evidence must be both reliable and relevant. Daubert, 509 14 U.S. at 590-91. Scientific evidence is reliable “if the principles and methodology used by 15 an expert are grounded in the methods of science.” Clausen v. M/V New Carissa, 339 F.3d 16 1049, 1056 (9th Cir. 2003). The focus of the district court’s analysis “must be solely on 17 principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. 18 at 595. “[T]he test under Daubert is not the correctness of the expert’s conclusions but the 19 soundness of his methodology.” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 20 1318 (9th Cir. 1995) (“Daubert II”). Second, the proposed expert testimony must be 21 “relevant to the task at hand,” meaning that it “logically advances a material aspect of the 22 proposing party’s case.” Daubert, 509 U.S. at 597. 23 As one Ninth Circuit court simply stated, the test is “whether or not the reasoning is 24 scientific and will assist the jury. If it satisfies these two requirements, then it is a matter 25 for the finder of fact to decide what weight to accord the expert’s testimony.” Kennedy v. 26 Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 1998). “Disputes as to the strength of [an 27 28 3 16cv1617-GPC(JLB) 1 expert’s] credentials, faults in his use of [a particular] methodology, or lack of textual 2 authority for his opinion, go to the weight, not the admissibility, of his testimony.’” Id. 3 4 5 6 (quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)). B. Motion to Exclude Steven Boyles Defendant seek to exclude the testimony and report of Stephen Boyles, Plaintiffs’ damages expert. Plaintiffs respond that Defendant merely challenges the underlying 7 conclusions of Boyles’ opinion which is subject to cross-examination at trial, not exclusion. 8 Boyles is a Certified Public Accountant (“CPA”) and has been in public accounting 9 for more than 17 years. (Dkt. No. 216-1, Zohdy Decl., Ex. L. at 91.) He was retained to 10 provide a methodology to determine damages on a class wide basis for Plaintiffs’ claims. 11 (Id. at 92.) He provides two approaches to quantify the damage value to class members as 12 a result of the clutch defect. One is the benefit of the bargain damages model in which 13 Boyles provides a formula to calculate the difference in the value represented against the 14 value actually received that can be applied using the appropriate variable inputs. (Dkt. No. 15 216-1, Zohdy Decl., Ex. L at 94-99.) The second method, the out of pocket reimbursement 16 approach, provides restitution to class members for amounts they actually paid to correct 17 the defect by a receipt for the same components referenced in the formula. (Id.) 18 First, FCA argues that Boyles’ opinions are not relevant because his “benefit of the 19 bargain” damages model does not take into consideration that class members received 20 some benefit from their vehicles’ original clutch system as Judge Koh held in Nguyen v. 21 Nissan N. America, Inc., Case No. 16cv5591-LHK, 2018 WL 1831857, (N.D. Cal. Apr. 9, 22 2018). In Nguyen, the district court rejected Boyles’ proposed damages calculations and 23 denied certification for the plaintiffs’ failure to satisfy Comcast, because Boyles’ damages 24 model failed to take into consideration that the “extended use of the defective CSCs 25 indicates that they hold at least some value . . . .” Id. at 5-7. In response, Plaintiffs disagree 26 with Judge Koh’s ruling arguing the benefit of the bargain approach places the consumer 27 28 4 16cv1617-GPC(JLB) 1 2 3 4 5 6 7 in the position he or she would have been in if the vehicles were merchantable at the time of sale. Here, Defendant challenges the conclusions of Boyles’ benefit of the bargain theory because it fails to account for the value or benefit the class members received from the use of the original components prior to the manifestation of the defect. As stated above, any challenges to an expert’s conclusion is not proper under Daubert and is to be reserved for trial. See Daubert, 43 F.3d at 1318. 8 Next, FCA contends that Boyles’ proposed formula is not expert testimony because 9 he merely presents a simple mathematical formula for calculating the cost of any repair 10 (hours x labor rate + part cost), and does not constitute “expert” testimony. Boyles, in fact, 11 agreed that it was a straightforward formula. (Dkt. No. 231-4, Azar Decl., Ex. B, Boyles 12 Depo. at 60:5-6.) Plaintiffs oppose. 13 While the mathematical formula eventually developed by Boyles is a simple 14 formula, it was created after careful review of the facts of the case, the theories alleged and 15 consideration of different variables. 16 development of the formula is not simply grade-school arithmetic as FCA alleges and 17 involves an analysis of information and theories sufficient to constitute expert testimony. Therefore, the Court concludes that the Boyles’ 18 Finally, Defendant argues that Boyles’ opinions are not reliable because his 19 calculations are based on insufficient data as he testified during his deposition. Plaintiffs 20 question Defendant’s argument because Boyles’ calculations are based on evidence 21 produced by FCA. 22 “Under Rule 702 and Daubert, the proper analysis is not whether some of the inputs 23 can be questioned, but whether [the expert’s] testimony is relevant and reliable, and 24 whether the methods and principles upon which [he] has relied in forming [his] opinion 25 have a sound basis in science.” People v. Kinder Morgan Energy Partners, L.P., 159 F. 26 Supp. 3d 1182, 1190 (S.D. Cal. 2016) (quoting Abarca v. Franklin Cty. Water Dist., 761 27 28 5 16cv1617-GPC(JLB) 1 2 3 4 5 6 7 8 9 10 F. Supp. 2d 1007, 1033 (E.D. Cal. 2011)) (rejecting defendant’s challenge to expert’s opinion that relied on data and information as unreliable). Boyles acknowledges in his report that he was not provided with sufficient pricing data to develop average prices for each component within California but instead uses costs analyses prepared by FCA and other price sheets to operate the formula. (Dkt. No. 216-1, Zohdy Decl., Ex. L. at 97.) He states that if actual prices are obtained and applied, the formula would accurately quantify the reasonable recovery amount for each class member. (Id. at 98.) Boyles also stated that he was not aware of labor rates for automotive repairs in California, and relied on documents produced to him about the labor pricing for automotive repairs. (Dkt. No. 231-4, Azar Decl., Ex. B, Boyles Depo. at 40:3-43:2.) 11 Defendant’s challenge to the data or input underlying Boyles’ formula calculations 12 is subject to cross-examination at trial, and not exclusion. See Kinder Morgan Energy 13 Partners, L.P., 159 F. Supp. 3d at 1190. Accordingly, in sum, Defendant’s arguments are 14 without merit and the Court DENIES Defendant’s motion. 15 16 Conclusion Based on the above, the Court DENIES Defendant’s motion to exclude the expert 17 opinion testimony and report of Steven Boyles. 18 IT IS SO ORDERED. Dated: June 7, 2018 19 20 21 22 23 24 25 26 27 28 6 16cv1617-GPC(JLB)
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