United States District Court, N.D. Illinois, Eastern Division
GARY MEDNICK and STEVEN BAYER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
PRECOR, INC., a Delaware Corporation, Defendant.
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE UNITED STATES DISTRICT COURT.
Gary Mednick and Steven Bayer's Renewed Motion for Class
Certification [ECF No. 149] is granted in part and denied in
part. The Court certifies Plaintiffs' proposed class for
the purpose of determining liability, but it reserves the
issue of damages for individual hearings. The Court appoints
Mednick and Bayer as class representatives and the attorneys
representing them as class counsel.
here seek to certify a class under Federal Rule of Civil
Procedure 23(b)(3). See, ECF No. 149 at 14. As such,
Plaintiffs' proposed class must meet the four
requirements of numerosity, commonality, typicality, and
adequacy under Rule 23(a), as well as the predominance and
superiority requirements under Rule 23(b)(3). Fed.R.Civ.P.
23(a)-(b); Amgen Inc. v. Conn. Ret. Plans & Tr.
Funds, 133 S.Ct. 1184, 1191 (2013). Plaintiffs bear the
burden of showing by a preponderance of the evidence that the
putative class satisfies these prerequisites. Bell v. PNC
Bank, N.A., 800 F.3d 360, 373 (7th Cir. 2015).
Court exercises discretion in deciding whether to certify a
class. See, Arreola v. Godinez, 546 F.3d 788, 794
(7th Cir. 2008) (“Recognizing that Rule 23 gives the
district courts broad discretion to determine whether
certification of a class-action lawsuit is appropriate, this
court reviews such decisions deferentially. . . .”)
(internal quotation marks omitted). In making its
determination, however, the Court may not accept
Plaintiffs' allegations at face value. See, Szabo v.
Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir.
2001) (“The proposition that a district judge must
accept all of the complaint's allegations when deciding
whether to certify a class cannot be found in Rule 23 and has
nothing to recommend it.”). Instead, it must probe
beyond the pleadings and resolve any legal or factual
disputes necessary to ensure that the prerequisites of Rule
23 have been met. See, Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 350-51 (2011). In so doing, the
Court conducts a “rigorous analysis” that may
overlap with the merits of the underlying claims.
“when appropriate, ” the Court may maintain a
class action “with respect to particular issues.”
Fed.R.Civ.P. 23(c)(4). This means that the Court can
“carve at the joint” a class action, deciding
some issues on a class wide basis and leaving others for
individualized determinations. See, id.; In re
Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1302-03 (7th
bring this class action to remedy unfair and deceptive
business practices arising from Defendant Precor's
marketing and sale of treadmills incorporating “touch
sensor heart rate” monitoring technology. The core of
Plaintiffs' allegations is that the touch sensor heart
rate monitors do not provide accurate heart rate readings.
According to Plaintiffs, Precor knows this to be the case.
See, ECF No. 127 (Am. Compl.) ¶¶ 16, 22,
27; ECF No. 149 at 1-2. Nonetheless, Precor continues to tout
the benefits of the technology and fails to inform consumers
of its shortcomings, thus harming members of the putative
class. See, Am. Compl. ¶¶ 5-14, 26; ECF
No. 149 at 3-4.
Renewed Motion for Class Certification, Plaintiffs have
narrowed their proposed class to residents of five states who
purchased certain Precor treadmills within the statute of
limitation period set by each of the states. In particular,
Plaintiffs define the class as:
1All persons who purchased, within the time period outlined
below, a Precor Home Treadmill equipped with a touch sensor
heart rate monitor from either Precor or a third-party
retailer and who are residents of California, Illinois,
Missouri, New Jersey, and New York. Excluded from the Class
are defendant herein [and certain other persons].
149 at 14. In the alternative, Plaintiffs ask the Court to
certify a class of only Illinois residents. Id. at
putative class seeks to recover for violations of the
Illinois Consumer Fraud and Deceptive Practices Act
(“ICFA”) and the equivalent consumer protection
statutes of the other four states. ECF No. 149 at 14.
According to Plaintiffs, Precor violates the states'
consumer protection laws by marketing touch sensor heart rate
monitors that do not work. Plaintiffs bring evidence to bear
on both of these factors, attempting to show that (1) Precor
markets the heart rate monitors by making representations
regarding their performance, and (2) the monitors do not
perform as advertised.
evidence of Precor's allegedly deceptive advertising,
Plaintiffs point to three types of representations. First are
the brochures that Precor creates and distributes. The
brochures highlight the heart rate monitoring technology
incorporated in the treadmills. For example, a brochure
your workout results whether you walk or run with touch and
telemetry heart rate monitoring.” ECF No. 149, Ex. 1.
Plaintiffs do not allege that Precor distributes the
brochures directly to consumers; instead, they say that
Precor sends the brochures to third-party retail stores to
train the sales staff and to serve as marketing materials at
the point of purchase. See, ECF No. 149 at 6; ECF
No. 127 ¶ 9.
Plaintiffs allege that Precor's website makes
representations regarding the benefits of the heart rate
monitors that are similar to those found in the brochures.
Precor protests that Plaintiffs did not encounter either the
brochures or its website prior to their purchase.
Plaintiffs draw attention to the treadmill machines
themselves. On the treadmills are graphics indicating that
the heart rate monitoring technology is present. These
graphics include the word SmartRate, a trademarked term for
the visual display that shows a user's heart rate, and a
picture of a heart. Plaintiffs assert that these graphics
make “representations regarding [Precor's] heart
rate features on the machines.” ECF No. 149 at 7; ECF
No. 127 ¶¶ 11-12. Unlike the case with the
brochures or the website, Plaintiffs presumably did see these
graphics, along with other packaging features of the
treadmills, since they tried out the heart rate monitors on
the machines before making their purchase.
evidence that the touch sensor heart rate monitors do not
work, Plaintiffs bring two sources of data that speak to
their performance. Both were submitted and considered in the
Court's earlier opinions. The Court here covers them
again in some detail for the sake of completeness.
first is an independent investigation by Precor's expert,
Michael Garrett (“Garrett”). See, ECF
No. 158 Ex. 1 (Garrett's Suppl. Rep.). Garrett performed
testing on 22 prescreened individuals of different ages,
heights, weights and cardio-physiologies. These subjects had
their heart rates measured by the touch sensors while
exercising on two different treadmills. Garrett then compared
the heart rate readings from the touch sensor to readings
from a chest strap electrocardiogram (“ECG”) worn
by the subjects.
Precor explains, there are three different heart rate
monitoring systems embedded in the treadmills that Plaintiffs
have defined to be part of the class products. See,
ECF No. 158, Ex. 6 (Brown's Decl.) ¶¶ 4-8,
Table 3. The systems are known as the Alatech, Polar, and
Salutron, and each uses a different algorithm for converting
the signals that it receives from the user into a heart rate
reading. See, Id. ¶ 7. Garrett's testing
covers two out of the three systems: the Alatech and Polar.
results for both treadmills show that when the subjects ran
at speeds below 4 mph, (virtually) all subjects received
readings from the touch sensors that were consistent with
those from the chest straps. See, Garrett's
Suppl. Rep., at 50 Fig. 24 & 51 Fig. 31. Beginning at 4 mph,
however, the readings from the touch sensors and chest straps
started to diverge. For example, at ¶ 4 mph jog, six out
of 21 subjects who used the Alatech-based treadmill had heart
rate readings from the touch sensor that diverged by 10% or
more from their chest strap's readings. Id. at
50 Fig. 24.
results worsened still at 6 mph. At this speed, the majority
of subjects, some 60%, experienced a difference of more than
10% between the two readings. See, Garrett's
Suppl. Rep. at 50 Fig. 24 & 51 Fig. 31. Thus, assuming that
the chest strap's readings are accurate, the touch
sensor's measurements were inaccurate for a majority of
subjects when they got up to speeds of 6 mph.
Garrett made some adjustments to the presentation of the
results in his latest report, the overall picture remains the
same. Even with the exclusion of several subjects on the
grounds that their hand heart rate amplitudes fell below a
certain threshold, still more than 40% of the subjects had
inaccurate measurements when they reached running speeds of 6
mph. See, Id. at 51 Fig. 29, 52 Fig. 32. Of the
subjects who were not excluded, more had inaccurate than
accurate heart rate measurements.
second source of data that speaks to the performance of the
heart rate monitor is a study by Lee and Mendoza.
See, ECF No. 158, Ex. 11 (Lee & Mendoza). The
authors of the study used a similar, but not identical,
procedure to that employed by Garrett to test the reliability
of the Salutron heart rate monitoring system, the one system
that was not covered by Garrett's testing. Like Garrett,
Lee and Mendoza had prescreened individuals using a Precor
treadmill and compared their heart rates as measured by the
treadmill's touch sensor against those measured by a
chest strap. The heart rate readings came from 25 subjects
who did 3-minute periods each of standing, 2 mph walking, 3.5
mph walking, 4.5 mph jogging, and 6 mph running. During the
exercises, a lab technician prompted the subjects to obtain
their heart rate via the touch sensor at 60-second intervals.
Mendoza concluded from their investigation that the Salutron
touch sensor heart rate monitors “provide valid
estimates of heart rate . . . during treadmill
exercise.” Lee & Mendoza at 52. This conclusion holds
even at the highest tested speed of 6 mph. The authors found
that although the discrepancies between the treadmill's
and chest strap's readings widened at this speed, the two
measurements remained highly correlated. See, Id. at
Mendoza made two notes of caution to their results. First,
they acknowledged that “during the jogging and running
conditions, the percent of measurements successfully obtained
from the sensors tended to decrease . . . with increasing
exercise intensity.” Lee & Mendoza at 54. That is,
while the researchers were able to capture about 116 heart
rate readings from the touch sensor when the subjects were
walking at 2 mph, they were able to obtain only 75 readings
when the subjects were running at 6 mph. Compare,
Id. Fig. 2, with Fig. 5; see also,
Fig. 6. Second, Lee and Mendoza warned that because
“all of the participants in our study were young,
healthy adults, ” they could not say “if the
sensors would provide the same degree of validity in other
populations.” Id. at 54.
contests Plaintiffs' evidence purporting to show that the
heart rate monitors on its treadmills do not work. The
company does not argue that its touch sensor technology works
for all users on all treadmills. Instead, it contends that
the inaccuracies were driven by differences in
“individualized physiologic factors . . . such as age,
body mass and weight, medical conditions and
medications.” ECF No. 158 at 15-16.
Precor presses the fact that its treadmills come with
disclaimers about the heart rate monitors'
performance.For example, Plaintiff Bayer's owner's
manual contains the following warning: “Touch heart
rate performance may vary based on a user's physiology,
age, and other factors. You may experience an erratic readout
if your hands are dry, dirty or oily or if the skin on your
hands is especially thick.” ECF No. 158 at 7. Precor
also relies on information available on its website, which to
the question “Why is my touch heart rate reading
erratic or nonexistent?” answers, in part, “Some
people have stronger pulse in their hands compared to others.
Your results may vary.” Id. The website also
advises users to “gently grasp the sensors” and
maintain “warm and moist” hands to improve the
performance of the touch sensor. Id.
counter that these disclaimers are not provided at the point
of sale. They also point to the numerous complaints that
Precor has received on its touch sensor technology.
See, ECF No. 149 at 3 & Ex. 2. Given the independent
testing showing that the heart rate monitors' performance
deteriorates as users get up to higher speeds, Plaintiffs now
emphasize the inability of the technology to measure the
heart rate as the users “run, ” a term used to
denote a moving speed of at least 4 mph and certainly a 6 mph
Plaintiffs resubmit a damages report that was included with
their first Motion for Class Certification. See, ECF
No. 149, Ex. 10. Plaintiffs' damages expert, Jonathan
Schwartz (“Schwartz”), argued that class members
should be compensated “for the diminished value of the
cardiovascular exercise equipment given that the class
members paid for a feature of value, the touch sensor, which
is alleged to not have any actual value.” Id.
¶ 12. Putting a number on this diminished value required
Schwartz to estimate the price that Precor treadmills would
have sold for without “the inclusion of the touch
sensor, ” and he proposed two methodologies for doing
strength of this evidence, Plaintiffs ask the Court to
certify the class. The Court grants the Motion in part.
reaching the merits of the Class Certification Motion, the
Court first addresses an evidentiary issue. Precor has moved
to strike an exhibit relied upon by Plaintiffs in their
Motion. The exhibit is a document produced by Precor during
discovery but otherwise contains no authenticating
information, including the identity of the author.
See, ECF No. 149, Ex. 2. The document suggests that
Precor had received complaints about its heart rate
technology, where the top complaints were “HR erratic,
HR not working at all, . . ., [and] HR giving false
readings.” Id. The document also says that
“sales relies heavily on selling HR as part of the
‘Precor Experience'.” Id. The
unidentified writer concludes that “we need to look at
our options to determine the best route for getting costs
down and improving the product, ” but that “as of
now, no action has been taken.” Id. Plaintiffs
use the document to make the case that Precor was aware of
the problems with its touch sensor technology but nonetheless
chose to market and sell the product.
argues that the document should be excluded because it
violates Rules 401, 402, 403, and 901 of the Federal Rules of
Evidence. The Seventh Circuit has not spoken on the issue of
whether the Rules apply at the class certification stage.
See, Quality Mgmt. & Consulting Servs. v. SAR
Orland Food Inc., No. 11 C 06791, 2013 U.S. Dist. LEXIS
155727, at *9 (N.D.Ill. Oct. 30, 2013) (“The federal
courts of appeals have not directly addressed whether
evidence used in a class-certification motion must be
admissible under the Federal Rules of Evidence.”).
Courts in this district have leaned both ways. Compare,
e.g., In re Yasmin & Yaz Mktg., No.
3:09-cv-20001-DRH-PMF, 2012 U.S. Dist. LEXIS 33183, at *24
(S.D. Ill. Mar. 13, 2012) (crediting the position that
“the Federal Rules of Evidence apply at the class
certification stage”), with Fond du Lac Bumper
Exch., Inc. v. Jui Li Enter. Co., No. 09-cv-0852, 2016
U.S. Dist. LEXIS 82434, at *9 (E.D. Wis. June 24, 2016)
(“Defendants cite no authority in support of their
claim that evidence submitted in support of class
certification must first be found admissible under the
Federal Rules of Evidence. . . . Class certification must be
considered at an early practicable time . . . making
objections based on admissibility and authenticity
premature.”) (internal quotation and alteration marks
Court need not take a position on this open issue. The
outcome of the Motion at hand remains the same whether or not
the Court considers the document. The Court exercises its
discretion to take account of the exhibit but puts limited
weight on it. See, Quality Mgmt., 2013 U.S. Dist.
LEXIS 155727, at *9 (noting that regardless of whether the
Rules are applied stringently “district courts exercise
broad discretion when ruling on a class-certification
motion”). The Court chooses to do so because, as
Plaintiffs admit, the document speaks to the state of events
in 2008, “way before [Precor] sold any treadmill at
issue in this case.” ...