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In re Fluidmaster, Inc., Water Connector Components Products Liability Litigation

United States District Court, N.D. Illinois, Eastern Division

March 31, 2017

IN RE: FLUIDMASTER, INC., WATER CONNECTOR COMPONENTS PRODUCTS LIABILITY LITIGATION MDL No. 2575

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         Before the Court are Plaintiffs' motions to exclude Defendant's experts [378; 379; 381; 382; 384; 387; 390], Plaintiffs' motion to strike declarations submitted by two of Defendant's experts [446], Defendant's motions to exclude Plaintiffs' experts [334; 336; 337; 339], and Plaintiffs' motion for class certification [284; 286]. For the reasons set forth below, Plaintiffs' motions to exclude Defendant's experts [378; 379; 381; 382; 384; 387; 390] are granted in part and denied in part, Plaintiffs' motion to strike [446] is granted in part and denied in part, Defendant's motions to exclude Plaintiffs' experts [334; 336; 337; 339] are granted in part and denied in part, and Plaintiffs' motion for class certification [284; 286] is denied. The Courtroom Deputy will contact the parties to arrange a mutually agreeable time for the next status hearing before Judge Dow and Magistrate Judge Gilbert, at which time the parties may raise any issues regarding discovery, motions for reconsideration, and future motion practice before either of the assigned judges.

         I. Background

         This MDL is about a plumbing product. Defendant Fluidmaster, Inc., a California company, manufactures and designs water supply lines or “connectors” used to transport water from a supply pipe to a plumbing fixture like a toilet or a kitchen sink faucet. The product at issue here consists of a flexible inner tubing made of EPDM or Santoprene (types of polymers or rubbers), an outer braided wire made of stainless steel, and a coupling nut used to connect the supply line to a plumbing fixture. For a period of time, Defendant's toilet connector used a coupling nut made of acetal (a kind of plastic). Its other connectors use a metal coupling nut. Defendant's connector sells for about $10, and Defendant has sold more than 153 million water connectors since the 1980s.

         Plaintiffs allege that Defendant's product has two design defects. First, the toilet connector's acetal coupling nut contains a notch or sharp indentation, which is a focal point for any stress that builds on the coupling nut over time. According to Plaintiffs, Defendant's design causes thin cracks known as “crazing” to form on the coupling nut. As the crazing spreads over time, the coupling nut can fail-a process known as “creep rupture.” Defendant contends that the vast majority of coupling nut failures result from the improper use of a wrench or similar tool during the toilet connector's installation, which “overtightens” and places excessive stress on the coupling nut, eventually causing the connector's failure.

         Second, Plaintiffs argue that the hose body comprised of a stainless steel braid plus inner tubing was defectively designed. According to Plaintiffs, the inner tubing is insufficient to withstand ordinary water pressure, which is why Defendant relies on the stainless steel braid. However, the stainless steel is thin and can degrade in the presence of chlorine. Chlorine is common in many household products. Thus, although Defendant labels its product “NO BURST, ” Plaintiffs contend that the hose body bursts because of the insufficient strength of the inner hose body and the propensity for the braided sheath to corrode. Defendant responds that the vast majority of hose failures occur because of improper exposure to corrosive materials, either because homeowners fail to properly close their cleaning products stored under their sinks or because they improperly clean their hoses with chlorine-containing products.

         The Plaintiffs here are people who experienced property damage after Defendant's connector failed, people who did not experience any failure of Defendant's product, and subrogated insurers. Most of the Plaintiffs did not personally buy Defendant's product. Some bought a home with Defendant's product already installed. Some relied on a plumber to choose which connector to buy. At least one relied on her friend to purchase Defendant's connector. Some, however, purchased and installed Defendant's product on their own.

         Plaintiffs filed a motion for class certification [284; 286], seeking to certify a nationwide class and various state law subclasses related to these two alleged design defects. Plaintiffs seek a nationwide class under California's Consumers Legal Remedies Act (“CLRA”), which prohibits “unfair methods of competition and unfair or deceptive acts or practices” in transactions for the sale or lease of goods to consumers. Cal. Civ. Code § 1770(a). They also seek six state law subclasses for breach of warranty claims (Pennsylvania, Vermont, Alabama, Minnesota, Arizona, and Tennessee) as well as eleven state law issue subclasses for negligence and strict liability claims (Pennsylvania, Vermont, Alabama, Minnesota, Arizona, Illinois, North Dakota, Georgia, Maine, California, and New Hampshire) involving seventeen issues. In response to this class certification motion, Defendant filed two motions to exclude Plaintiffs' experts. Plaintiffs returned the favor by filing five motions of their own plus a motion to strike. The Court held a four-hour oral argument on all of the pending motions on February 22, 2017.

         II. Legal Standard

         A. Daubert

         Federal Rule of Evidence (“Rule”) 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), govern the admissibility of expert testimony. See Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010).[1] Rule 702 permits the admission of expert opinion testimony if “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702(a).

         Trial courts are “tasked with determining whether a given expert is qualified to testify in the case in question.” Gayton, 593 F.3d at 616. “Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony.” Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). “[A] court should consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

         Trial courts are also obligated to act as gatekeepers to ensure that the expert testimony is both relevant and reliable. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49 (1999); Daubert, 509 U.S. at 589. To establish relevance, the proponent must show that the expert's “reasoning or methodology properly can be applied to the facts in issue, ” and “the testimony will assist the trier of fact with its analysis of any of the issues involved in the case.” Daubert, 509 U.S. at 593; Smith, 215 F.3d at 718; Fed.R.Evid. 702.

         To establish reliability, the proponent must show that the expert's testimony is based on “sufficient facts or data, ” that it is “the product of reliable principles and methods, ” and that those methods have been “reliably applied * * * to the facts of the case.” Fed.R.Evid. 702. District courts have “latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable.” Gayton, 593 F.3d at 616. Daubert lists a number of relevant considerations in evaluating an expert's reasoning and methodology, including testing, peer review, error rates, and acceptability in the relevant scientific community. Daubert, 509 U.S. at 593-94. “[T]he test of reliability is flexible, ” however, “and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire, 526 U.S. at 141 (internal quotation marks omitted). The overriding purpose of the Daubert inquiry is to scrutinize proposed expert witness testimony to determine whether it has “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” so as to be deemed reliable enough to present to a jury. Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (quoting Kumho Tire, 526 U.S. at 152). Expert testimony may not be based on “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590; Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”). And “any step that renders the analysis unreliable under the Daubert factors renders the expert's testimony inadmissible.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994).

         Thus, in evaluating a motion to exclude expert testimony under Rule 702 and Daubert, the Court considers whether the proffered expert (1) is qualified, (2) has employed a reliable methodology, (3) offers opinions that follow rationally from the application of the expert's methodology and qualifications, and (4) presents testimony on a matter that is relevant to the case at hand. See Kumho Tire, 526 U.S. at 151-53; Joiner, 522 U.S. at 146; Daubert, 509 U.S. at 589-93; Walker v. Soo Line R. R. Co., 208 F.3d 581, 586 (7th Cir. 2000). “The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

         B. Federal Rule of Civil Procedure 23

         To be certified as a class action, a proposed class must satisfy the requirements of Federal Rule of Civil Procedure 23(a) and one of the three alternative requirements in Rule 23(b). Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). Rule 23(a) provides that a named party may sue on behalf of individuals who are similarly situated if: (1) the class is so numerous that joinder of all putative class members is impracticable (“numerosity”); (2) there are questions of law or fact common to the putative class (“commonality”); (3) the claims or defenses of the named party are typical of the claims or defenses of the putative class members (“typicality”); and (4) the named party will fairly and adequately protect the interests of the class (“adequacy”). Fed.R.Civ.P. 23(a). “[A] proposed class must always meet the Rule 23(a) requirements.” Messner, 669 F.3d at 811. “Because Rule 23(a) provides a gate-keeping function for all class actions, ordinarily we * * * begin there and only turn our attention to Rule 23(b) after we [are] certain that all of Rule 23(a)'s requirements ha[ve] been met.” Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360, 374 (7th Cir. 2015).

         When certification is sought under Rule 23(b)(3), as it is here, the proponents of the class must also show that: (1) questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members (“predominance”); and (2) a class action is superior to other available methods of resolving the controversy (“superiority”). Messner, 669 F.3d at 811. Moreover, the class must also meet Rule 23's “implicit requirement of ‘ascertainability, '” meaning that the class is “defined clearly and based on objective criteria.” Mullins v. Direct Digital, LLC, 795 F.3d 654, 659 (7th Cir. 2015).[2]

         Plaintiffs bear the burden of proving that they are entitled to class certification. Messner, 669 F.3d at 811. Although class certification proceedings are not “a dress rehearsal for the trial on the merits, ” id., the Court does not presume that all well-pleaded allegations are true for purposes of deciding the certification question. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676-77 (7th Cir. 2001). Rather, before the Court allows a case to proceed as a class action, it “should make whatever factual and legal inquiries are necessary under Rule 23.” Id. at 676. “A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores v. Dukes, 564 U.S. 338, 350 (2011) (emphasis in original). But the showing need not be “to a degree of absolute certainty. It is sufficient if each disputed requirement has been proven by a preponderance of evidence.” Messner, 669 F.3d at 811. The Court exercises broad discretion in determining whether class certification is appropriate given the particular facts of the case. See Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998).

         III. Analysis

         Both parties have filed several Daubert motions in connection with Plaintiffs' motion for class certification.[3] “[A] district court must make the necessary factual and legal inquiries and decide all relevant contested issues prior to certification, ” including Daubert motions. Am. Honda Motor Co. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010). Here, Plaintiffs have moved to exclude Scott Meek, Dr. Sanjay K. Rao, Dale Edwards, Dr. Vijay Gupta, and Brian Palmer, Ph.D. Defendant has moved to exclude five of Plaintiffs' technical experts and two of their experts who opine on issues related to damages. The Court begins with Plaintiffs' motions.

         A. Plaintiffs' Daubert Motions

         1. Scott Meek

         Defendant retained Scott Meek to opine on the technical design of the coupling nut, whether that design is defective, and the stresses that could cause the coupling nut to fail. Meek holds a Bachelor of Science in Mechanical Engineering and a Bachelor of Arts in Materials Science. He is one of the owners of Forensic Engineering Consultants, which performs failure analyses in the field of mechanical engineering and material sciences. [386-1, at 3.] Meek has served as a consultant performing failure analyses of various products for the last 40 years, the last fifteen of which “have largely involved analyzing failures in connection with the plumbing industry.” [339-15, at 3.] In that capacity, he has “evaluated hundreds of plumbing component failures on behalf of the plumbing industry and over two thousand plumbing component failures on behalf of the insurance industry.” Id. He is a Registered Professional Engineer with the State of Texas and a member of the Society of Plastics Engineers.

         Despite this extensive, highly specialized experience, Plaintiffs argue that Meek lacks the “specialized knowledge” needed to assist the jury for two reasons. [385, at 3.] First, Plaintiffs argue that Meek is “not an expert in the field of elastomers”-that is, polymers with elastic properties such as rubber. This argument rests on a single exchange from Meek's deposition:

Q: Do you consider yourself an expert on elastomers?
A: Probably not elastomers per se because I haven't done much failure analysis with those.

[386-1, at 32:8-12.] Because Meek's opinions are premised in part on the interactions between Defendant's cone washer (made of an elastomer) and its coupling nut, Plaintiffs contend that Meek's lack of qualifications precludes him from offering his opinions. Second, Plaintiffs argue that Meek cannot opine on plastic design because he lacks “formal education in plastics design, ” “has never taken any college level classes in plastic design, ” “has never designed a plastic part himself, ” and has never published on plastic design. [386, at 5.] Plaintiffs seek to exclude “any opinion in his report related to the design or failure of [Defendant's] coupling nut.” Id.

         These qualifications challenges are without merit. Plaintiffs do not question Meek's qualifications as an expert in the broader field of material sciences, which encompasses polymers like elastomers. Their only argument is that he is not “an expert in the more specialized field of elastomers”-a “subset” of material sciences. [432, at 3.] “Ordinarily, courts impose no requirement that an expert be a specialist in a given field.” Gayton, 593 F.3d at 618 (citation omitted). “The fact that an expert may not be a specialist in the field that concerns [his] opinion typically goes to the weight to be placed on that opinion, not its admissibility.” Hall v. Flannery, 840 F.3d 922, 929 (7th Cir. 2016).

         Here, Defendant does not offer Meek as an “elastomers expert” and Plaintiffs never explain why specialization in the component parts underlying Meek's failure analysis is necessary to admit his opinions. In other words, apart from this single deposition answer, Plaintiffs offer no reason to believe that Meek's relevant education and four decades of experience with material sciences and mechanical engineering would not qualify him to opine on a particular application of that education and experience to the facts of this case. Meek's unwillingness to accept Plaintiffs' framing and reluctance to describe himself as an expert in elastomers “per se” despite his extensive relevant experience with plastics and polymers is fodder for cross-examination, not a basis for exclusion under Rule 702.[4]

         The same is true regarding Meek's qualifications to offer design opinions. In evaluating his qualifications under Daubert, this Court must “consider [Meek's] full range of experience and training.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (emphasis added). Yet, Plaintiffs' motion largely consists of asking this Court to focus narrowly on one alleged gap in Meek's resume and ignore the rest of his experience. For example, Plaintiffs assert that Meek lacks a “formal education in plastics design, ” but omit any of discussion of the fact that his “formal education in material science * * * encompasses plastics, ” “much of his college level [training] dealt with design, engineering and material science, ” and he has attended “probably 20 seminars” since college involving plastics, some of which addressed design. [386-2, at 125:24- 128:1.] Likewise, Plaintiffs stress that Meek “has never designed a plastic part himself” [385, at 5], but never grapple with the fact that Meek spent the last forty years analyzing the failure of products he did not personally design. While Plaintiffs dismiss as “conclusory” the claim that “assessing the conditions under which products fail inherently involves analysis of their design” [432, at 5; 415, at 13], Plaintiffs do not explain why that intuitively obvious statement is wrong. Moreover, Meek testified that his mechanical engineering and plastics background qualify him to opine on issues connected to plastic design. [See 386-1, at 31:4-13.] That Plaintiffs elicited this answer but chose not to explore his claim any further does not render this testimony “conclusory.” It makes it unrebutted.

         An expert may be qualified based on experience alone. See Trustees of Chi. Painters & Decorators Pension, Health & Welfare v. Royal Int'l Drywall & Decorating, Inc., 493 F.3d 782, 787-88 (7th Cir. 2007) (“[W]hile extensive academic and practical expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience.” (citations and quotation marks omitted)). And “[t]he notion that [Daubert] requires particular credentials for an expert witness is radically unsound.” Tuf Racing Prod., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). Meek's opinions regarding the reasons for the coupling nut's failure (misuse rather than design) appear to be well within the scope of his forty years of experience working in failure analysis, material sciences, and mechanical engineering. Plaintiffs' bare assertion that Meek cannot opine on design-related issues without possessing specialized design-related formal education and particularized experience “designing plastic parts for manufacture” [386, at 5] is inconsistent with the requirements of Rule 702 and Daubert. Plaintiffs fail to explain why the experience that Meek actually possesses is insufficient to qualify him to offer his opinions, and that failure dooms their Daubert challenge.

         Plaintiffs' motion to exclude Meek's opinions and testimony [385] is denied.

         2. Dr. Sanjay K. Rao

         Defendant retained Dr. Sanjay K. Rao to assess the efficacy of Plaintiffs' proposed conjoint survey sampling plan and design, which would be used to calculate classwide damages. Conjoint analysis is a statistical technique used to determine how consumers value the different individual attributes of a product. See Saavedra v. Eli Lilly & Co., 2014 WL 7338930, at *4 (C.D. Cal. Dec. 18, 2014). Dr. Rao is a Vice President in Life Sciences at the consulting firm Charles River Associates and oversees the practice group's strategic marketing research, including survey modeling, design, and execution. He received his Ph.D. in Marketing from the Wharton School of the University of Pennsylvania, and his doctoral dissertation was titled, “An Empirical Appraisal of Conjoint Choice Simulators, ” which “studied alternative methods for simulating consumer choices and market shares from their evaluations of product features and concepts.” [334-7, ¶ 2.]

         Plaintiffs do not challenge Dr. Rao's qualifications. Instead, they raise two objections to the substance of Dr. Rao's opinions. First, they argue that his report is “replete” with “ipse dixit conclusions.” [380, at 2.] Here is one example of what Plaintiffs characterize as ipse dixit:

Factors such as advertising, product availability in a store, the type and amount of shelf space given to it, in-store price discounting and product promotions have an impact in influencing product choice at the actual point of purchase. Such factors are especially important to consider when a product is not directly sold to a customer by the manufacturer, but finds its way to him/her through a distribution network comprising of wholesalers and retailers, who also engage in valid marketing practices including, but not limited to, price mark ups, discounting and non-price promotional programs. These factors become so much more important in influencing customer choice at the store when the product category contains several competing brands all vying for the same customer's choice. The more differentiated a product is perceived to be relative to its competition, for example, the lower the role of product price (compared to competitors) in influencing product choice.

[334-7, ¶ 13.] Second, Plaintiffs challenge Dr. Rao's statements using the phrase “common knowledge” (or some variant) as offering improper expert testimony because they “do not provide something more than what is obvious to the layperson.” [380, at 6.] This is one of the representative examples that Plaintiffs highlight: “It is commonly understood that conjoint analysis is a preference scaling methodology, i.e. it is designed and best utilized to understand respondent preferences for components of a product as presented to them through concise and realistic descriptions in a research setting.” [334-7, ¶ 13.] Plaintiffs argue that Dr. Rao “does not explain how he knows this information to be ‘common knowledge, '” and that this “common knowledge” is really his own knowledge. [380, at 4.]

         As both examples show, Plaintiffs' arguments miss the mark by a wide margin. In an ipse dixit opinion, the expert asserts a “bottom line” conclusion, but lacks any articulable facts to substantiate that conclusion or completely fails to explain the reasoning or methods employed to reach that conclusion. United States v. Noel, 581 F.3d 490, 497 (7th Cir. 2009) (“[Expert's] testimony that the photos met the definition of child pornography was a bare conclusion that provided nothing but the bottom line, i.e., that [defendant] possessed illegal photos. Had [expert] provided some basis for this explanation, perhaps her testimony would have been of some use for the jury. But she did not do so. She, in essence, told the jury nothing more than, ‘I am familiar with the definition of child pornography, and this meets that definition because I said so.'”); Minasian v. Standard Chartered Bank, PLC, 109 F.3d 1212, 1216 (7th Cir. 1997) (“[Expert] asserts that banks just don't accelerate the principal indebtedness because of shortcomings of the kind [borrower] displayed. Apparently we are supposed to take this on faith, because [expert] did not gather any data on the subject, survey the published literature, or do any of the other things that a genuine expert does before forming an opinion[.] * * * [A]n expert's report that does nothing to substantiate this opinion is worthless, and therefore inadmissible.”). Some ipse dixit opinions are merely subjective assertions that are impermeable to challenge and incapable of repetition by anyone other than the professed expert. See, e.g., Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 418 (7th Cir. 2005) (“Asked repeatedly during his deposition what methods he had used to generate projections, [expert] repeatedly answered ‘my expertise' or some variant (‘my industry expertise', ‘[my] awareness, ' and ‘my curriculum vitae')-which is to say that he either had no method or could not describe one.”). Others are simply bare conclusions with “no facts, no hint of an inferential process, no discussion of hypotheses considered and rejected.” Mid-State Fertilizer Co. v. Exch. Nat. Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989). In all cases, the “gap between the data and the opinion proffered” is connected only by the expert's say-so, making it insurmountable. Joiner, 522 U.S. at 146.

         This bears no resemblance to Dr. Rao's opinions here. Dr. Rao amply explains the reasons he finds the proposed survey design insufficient to achieve its desired result. [334-7, ¶¶ 8-21.] In the example above, Dr. Rao articulates differences between estimating consumer behavior in retail versus research settings, such as “factors” that may be important influences on in-store purchasers, but less important when a product is not sold directly to customers. After listing these factors, Dr. Rao concludes that “[a]t no point in the [Plaintiffs' expert's] Report does [she] mention these factors, let alone discuss how she would respect their influence on the two classes of customers” in her analysis. Id. ¶ 13. He further critiques the groups included and excluded from the survey plan (id. ¶¶ 8-9, 11), the failure to disclose information related to sample size calculations (id. ¶ 10), gaps in how the survey will address a survey respondent's familiarity with the product or attributes (id. ¶¶ 14-15), the survey's omission of product attributes and failure to ensure proper measurement of trade-offs between attributes (id. ¶¶ 16- 20), and the failure to incorporate market level data to inform the survey design (id. ¶ 21). In other words, Dr. Rao critiques the survey design by identifying specific flaws in that design and connecting those flaws to his conclusion. To assert his opinions are “devoid of analysis” [433, at 4] misapprehends the substance of Dr. Rao's report and the requirements of Rule 702.

         In large part, Plaintiffs' motion appears to conflate the requirement that an expert support his or her conclusions with reasons and the concept that each sentence in an expert report should have a citation. [380, at 5 (“The majority of Dr. Rao's declaration consists of numerous statements devoid of citation or substantiation.”).] Rule 702 imposes no minimum citation requirement. That principle has particular purchase here because (1) many of Dr. Rao's survey critiques can be found in the Federal Reference Manual on Scientific Evidence-a source of generally accepted principles of survey research that courts routinely rely on to evaluate expert opinions;[5] (2) Dr. Rao's list of reliance materials cites a Journal of Choice Modeling article, which discusses many of the same conjoint analysis issues Dr. Rao raised [347-7, at 32]; (3) Dr. Rao wrote his doctoral dissertation on conjoint analysis; and (4) Plaintiffs do not argue that any of these “unsupported” statements is contrary to well-established survey principles. See Erickson v. Baxter Healthcare, Inc., 151 F.Supp.2d 952, 965 (N.D. Ill. 2001). Dr. Rao's relative lack of inline citations does not make his survey design critiques “subjective” or ipse dixit. If Plaintiffs believe his critiques are misplaced, they can attempt to show that through cross-examination.

         The same result is required for Plaintiffs' challenge to Dr. Rao's “common knowledge” statements. Even a cursory reading of these statements [see 380, at 3-4] shows that Dr. Rao uses “common” or analogous language to mean generally understood by survey design experts. [See, e.g., 334-7, ¶ 13 (“It is commonly understood that the results from a conjoint analysis conducted in such a setting should not be extrapolated to the real world setting such as a retail store.”); id. ¶ 14 (“It is intuitive and reasonable to expect that consumers participating in a survey-based exercise designed to collect raw data for conjoint analysis are familiar with product brand names and other product attributes to which they are expected to respond.”).] The phrase “common knowledge” is not a talismanic incantation that, when invoked, unthinkingly mandates an expert's exclusion. Plainly, these opinions derive from Dr. Rao's specialized knowledge related to survey design and are not commonplace observations governed by Rule 701.

         Plaintiffs' focus on Dr. Rao's statement that, “It is common knowledge that products such as water supply lines and toilet connectors are purchased by professional plumbing specialists who are called upon by homeowners and residents to install new supply lines or connectors, or to fix damaged lines or connectors, in their places of residence” (id. ¶ 9) is equally misplaced. The Court does not read this prefatory statement as Dr. Rao's expert “opinion.” It is a background premise to set up why Dr. Rao believes Plaintiffs' sampling plan is flawed-an opinion that turns on the application of his specialized knowledge and experience to the facts of this case.[6] This premise also appears to be undisputed, as Dr. Rao cites in his report a June 2009 survey of plumbers “actively purchasing water supply lines” that was relied on by Plaintiffs' expert. See id. ¶ 13 n.2. This is not an instance where the “subject matter [of Dr. Rao's opinions] as a whole is obvious to a lay person.” Schutt Mfg. Co. v. Riddell, Inc., 673 F.2d 202, 205 (7th Cir. 1982) (emphasis added). And this “court is not compelled to exclude the expert just because the testimony may, to a greater or lesser degree, cover matters that are within the average juror's comprehension.” Hall, 93 F.3d at 1342. Thus, the fact that some of the underlying premises of Dr. Rao's opinions may, in part, be derived from generally known facts does not remove his opinions from the “specialized knowledge” encompassed by Rule 702.

         Plaintiffs' motion to exclude Dr. Rao's opinions and testimony [378; 379] is denied.

         3. Dale Edwards, P.E.

         Defendant retained Dale Edwards to analyze eight of Plaintiffs' failed water connectors, and opine on the causes of those failures. He performed a “non-destructive” examination of these connectors that included digital photography, dimensional measurements, scanning electron microscopy, and electronic dispersive x-ray spectroscopy. Edwards's original expert report describes the physical characteristics of each of the connectors and the results of his analysis, concluding that all of the connectors exhibit some corrosion from chlorine or chloride on the surfaces of the stainless steel wire braids. [339-20, at 2-9.] He opines that the failure of the connectors was “due to exposure to corrosive chlorine-containing chemicals.” Id. at 10.

         The conclusion section of his report, however, goes significantly further. Edwards also opines that (1) all of the connectors were permanently deformed from “excessive bending” that occurred during “improper installation”; (2) the corrosion on the water connectors “would have been clearly visible for months or possibly even years, ” which means “the majority of the failures, which are an extremely small percentage of the number of connectors in the field, could have and should have been detected by normal inspections”; (3) “[p]eople normally understand that they should exercise care for their stainless steel appliances by not subjecting them to corrosive cleaners or environments”; and (4) the faucet connectors that Edwards examined “were properly designed for their intended use and would not have failed in the manner observed if proper care had been exercised during their installation and use.” Id. at 9-10. All of these opinions purport to be based on a “reasonable degree of scientific and engineering certainty.” Id. at 10. Except for the third opinion, Edwards does not elaborate on these conclusions elsewhere in his report. Regarding the third point, Edwards includes the following discussion:

It is clear that the presence of chlorine on the surfaces of the connectors was likely due to improper exposure of the connectors to corrosive chlorine-containing products that were improperly stored under the sinks where the connectors were installed. The exposure may have been due to storage of open containers that caused a corrosive atmosphere in the sink cabinet or in some cases, may have been improperly applied directly to the connectors. Improper storage or application of such corrosive chlorine-containing products to the connectors for cleaning or otherwise, would contradict common warnings and/or instructions on such products. In fact, warnings on the packaging of many of these chlorine-containing cleaning products relate to it being a corrosive material and that, among other things, contact with metals should be limited to avoid pitting and corrosion. Exposure to these corrosive chemicals is not something that the product was designed for and a corrosive environment is one that should not be expected. Properly closed containers of cleaning products would not have caused contamination of the stainless steel connector surfaces and would not have led to the failures that occurred.

Id.

         Edwards also submitted a rebuttal report to respond to one of Plaintiffs' experts, Dr. Tim A. Osswald. [339-21.] Edwards's rebuttal report largely attempts to qualify Dr. Osswald's conclusions by pointing out why alternative materials were not superior to the materials Defendant used or, at least, do not show that the materials that Defendant used are inadequate. Edwards also analyzes the literature relied on by Dr. Osswald, which Edwards claims actually reinforces these two points.

         Plaintiffs move to exclude Edwards's opinions on two grounds. First, they claim that the “great majority” of the opinions in his original expert report “lack foundation, lack a scientific basis, and are unreliable under Rule 702.” [392, at 7.] Second, they claim that Edwards's rebuttal opinions are not true rebuttal and are ipse dixit. Id. at 11-13. Defendant's response brief focuses almost entirely on Edwards's qualifications (which, other than a cursory attempt to label him as a “professional expert” (id. at 6-7), were not seriously questioned) and the reliability of his inspection methodology (which appears not to have been challenged at all (id. at 10-11)). Defendant also explains how Edwards's opinions substantively “rebut” Dr. Osswald's conclusions, such as by pointing out how Dr. Osswald's comparisons are “misleading and irrelevant from an engineering perspective.” [419, at 13.] The defense of the relevance of Edwards's other opinions in his original report about improper installation, inspection, and chemical storage-all purportedly “based on his vast experience”-is limited to one paragraph. Id. at 12. Defendant makes no attempt to defend the reliability of these opinions.

         i. Edwards's Original Report

         The Court agrees that many of Edwards's opinions in his original expert report are unsupported and therefore unreliable. “If an opinion is fundamentally unsupported, then it offers no expert assistance to the jury.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). Here, there is a striking disconnect between the “Laboratory Investigation” section of the report and the “Conclusions” section. The investigation section includes photographs, measurements, and descriptions of the physical characteristics of the connectors as well as the chlorine measurements detected. At least three of Edwards's conclusions have no discernable link to this investigation.

         First, Edwards concludes, “The faucet connectors that I examined were properly designed for their intended use and would not have failed in the manner observed if proper care had been exercised during their installation and use.” [339-20, at 10 (“Conclusion 5”).] Edwards's report does not say how he concluded that the connectors were “properly designed” or “would not have failed” had “proper care been exercised.” He does not identify a method for determining a “proper” versus improper design, how he applied that method here, or even what specific facts, literature, or experience he relied on to conclude the design was proper. He does not explain how he ruled out the possibility that the connectors would still have failed even with proper care. He simply asserts this conclusion to be true without any support. Rule 702 demands more.

         Second, Edwards concludes, “The majority of the failures, which are an extremely small percentage of the number of connectors in the field, could have and should have been detected by normal inspections of the connectors.” Id. at 10 (“Conclusion 3”). Edwards analyzed eight connectors, not a “majority of the failures” that occurred in the field, and thus has no factual basis to conclude whether the majority “could or should have” been uncovered through inspection. To the extent that Edwards really meant a majority of the eight connectors, this conclusion fares no better.[7] Edwards does not indicate what “normal inspections” are or how he determined what “could or should have” been uncovered by them. If this conclusion is based on Edwards's experience, he never explains “how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.'” Fed.R.Evid. 702, Advisory Committee note on 2000 Amendments.

         In connection with Conclusion 3, Edwards also states that “[m]any of the failures that were examined were grossly corroded along the entire length of the connectors and this would have been clearly visible for months and possibly years before the failures occurred.” [339-20, at 10.] An opinion about the degree of corrosion on the connectors that he analyzed is within the scope of his expertise and supported by the inspection, measurements, and testing that Edwards performed. Plaintiffs do not contend otherwise. However, Edwards does not explain how he can conclude that this corrosion “would have been clearly visible for months and possibly years.” Without any support, this opinion is unreliable under Rule 702 and cannot be considered.[8] See, e.g., Threet v. Correctional Health Care Mgmt. of Okla., Inc., 2009 WL 3335596, at *5 (W.D. Okla. Oct. 15, 2009) (“[I]t does not suffice for an expert to say, in effect, ‘I have 30 years experience in the field. So trust me, the answer is X.' That formulation is the classic ipse dixit approach foreclosed by [the Supreme Court].”).

         Third, Edwards concludes that “[p]eople normally understand that they should exercise care for their stainless steel appliances by not subjecting them to corrosive cleaners or environments. The same level of care should be used with any stainless steel product including stainless steel braided water supply connectors.” [339-20, at 10 (“Conclusion 4”).] Unlike Dr. Rao, Edwards advances this kind of opinion as his “conclusion.” It is not apparent how this conclusion is based on any “scientific, technical, or other specialized knowledge.” Fed.R.Evid. 702(a). At his deposition, Edwards testified that this opinion is “based on [his] own use of stainless steel appliances, ” and he has “no specific data” regarding what people normally understand about such care, “other than just conversations through the years that I've had with people and seeing the instructions that come with these products.” [392-1, at 71:13-74:7.] Defendant does not argue that such undescribed hearsay conversations “through the years” with unknown people are a sufficiently reliable basis to offer expert testimony about the public's general understanding of the proper care for stainless steel appliances. Nor does Defendant argue that Edwards, with his decades of experience and materials and forensic engineering background, is representative of what “[p]eople normally understand.” Whether his opinion is unsupported or offers nothing more than a lay opinion, it is inadmissible under Rule 702.

         This is also true of Edwards's opinions about improper chemical storage, which are not listed as “Conclusions” but appear in the report's terse “Discussion” section. As noted, Edwards concludes that “[i]t is clear that the presence of chlorine” was due to improperly stored chlorine-containing products “under the sinks where the connectors were installed, ” which may contradict the warnings on the products. [339-20, at 10.] Edwards offers no factual basis for this conclusion, let alone any reason to believe this conclusion is “clear.” “[T]he courtroom is not the place for scientific guesswork, even of the inspired sort.” Myers v. Ill. Cent. R. Co., 629 F.3d 639, 645 (7th Cir. 2010) (citation omitted). And, again, if this opinion is an inference from Edwards's experience, his report does not explain what specific experience supports his conclusions or how that experience has been reliably applied here. Such unsupported speculation falls short of the reliability required under Rule 702.[9]

         This leaves only two of Edwards's opinions with a connection to his laboratory analysis: his unchallenged opinion regarding chlorine-caused corrosion on the connectors [339-20, at 10 (“Conclusion 1”)] and the conclusion that the “kinking” and “excessive bending” on the connectors indicate “improper installation” (id. at 9-10 (“Conclusion 2”)). Edwards's installation opinion, however, must fall too. His report is silent as to how he determined that the bending occurred during installation rather than at some other point in time. He does not describe any tests performed, interviews conducted, testimony reviewed, specific experience relied upon, or any other facts or data that could lead him to exclude any other events (e.g., the bursting of the connector) and time periods (e.g., breakdown of the connector over time) as a cause of the kinking or bending. See Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 434 (7th Cir. 2013) (“[A] court may consider ‘[w]hether the expert has adequately accounted for obvious alternative explanations.'” (citation omitted)). This opinion is little more than ipse dixit.

         Accordingly, Plaintiffs' motion to exclude Edwards's opinions and testimony [390] is granted with respect to Conclusions 2, 3, 4, and 5, including the opinions contained in the Discussion regarding improper storage, but denied as to the remainder of his original report.

         ii. Edwards's Rebuttal Report

         Plaintiffs' arguments about Edwards's rebuttal report are somewhat in tension. On the one hand, they argue that Edwards does not “actually rebut” Dr. Osswald's conclusions because Edwards agrees that certain facts are “true” or “undisputed.” [392, at 11.] On the other hand, they claim that Edwards “criticize[s]” Dr. Osswald's conclusions in what amounts to “cross-examination material, ” but those criticisms are without sufficient support. Id. at 12-13. Neither argument withstands scrutiny.

         “The proper function of rebuttal evidence is to contradict, impeach or defuse the impact of the evidence offered by an adverse party.” Peals v. Terre Haute Police Dep't, 535 F.3d 621, 630 (7th Cir. 2008) (citation omitted). Testimony offered under the guise of a rebuttal expert report that simply provides additional support for the expert's original opinions is improper. Id. Here, Dr. Osswald opines that an alternative material (polyvinyl chloride or PVC) could have been used to make the water connector's hose and that PVC's properties are superior to the materials used by Defendant. Edwards attempts to “impeach” or “diffuse” these opinions in several ways. He opines on the ways in which PVC is inferior to Defendant's materials, such as temperature resistance, flexibility, and potential negative health effects. [339-21, at 2-3.] He explains that the literature relied on by Dr. Osswald concerns the wrong product (that is, not plasticized PVC). Id. at 4. He also includes a “detailed” section of the report analyzing the literature relied upon by Dr. Osswald, pointing out how those sources show PVC is not superior to Defendant's materials on various metrics or could be offered to support the use of Defendant's materials. Id. at 4-6.

         Plaintiffs are correct that Edwards agrees in passing with Dr. Osswald on certain characteristics of PVC (such as its availability, its higher short-term tensile strength, and its acceptability as a product). However, Edwards does so to contextualize Dr. Osswald's opinions and explain why these conceded facts are less important, distinguishable, or irrelevant to assessing the defectiveness of the materials used by Defendant. See, e.g., id. at 3 (“While it is true that plasticized PVC has been around for several decades and has been used in various hose applications, many of these applications were not NSF-61 (National Sanitation Foundation-61) compliant for use with potable water.” (emphasis added)). This is standard rebuttal.

         Unlike Edwards's original report, his rebuttal report is not ipse dixit. Again, Plaintiffs fixate on counting citations, not on whether Edwards provided reasons for his conclusions and those reasons are sufficiently reliable.[10] Plaintiffs overlook the fact that Edwards's purpose is to use the same “handbooks and other literature” that Dr. Osswald cites to rebut his opinions. Id. at 5-7. In doing so, Edwards does not simply assert that Dr. Osswald is wrong, but explains why. For example, Edwards includes a page of technical reasons why he believes Defendant's materials “maintain their strength to much higher temperatures” than PVC. Id. at 4. His literature critiques similarly explain how, for example, some of Dr. Osswald's sources “have little to do with potable water applications that must be tested for extraction of plasticizers and other chemicals due to long-term exposure” because they relate to only “propane and butane gas, farming applications, heating oil, gasoline and pharmaceutical applications.” Id. at 6. Plaintiffs' belief that Edwards should have cited something else in addition to the sources cited by Dr. Osswald is not a valid Daubert challenge, since “[t]he soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact.” Smith, 215 F.3d at 718. Edwards provides an independent analysis of sources relied on by an opposing expert and an explanation as to why those sources undermine the conclusions reached by that expert. Cf. Amari Co. v. Burgess, 2012 WL 5389787, at *15 (N.D. Ill. Nov. 2, 2012) (“Rather than independently analyzing the data to provide an alternative conclusion, the experts simply criticize [plaintiff's expert].”). This is not ipse dixit. See Mid-State, 877 F.2d at 1339; Zenith, 395 F.3d at 419. Accordingly, Plaintiffs' motion to exclude Edwards's rebuttal opinions and testimony [390] is denied.

         4. Dr. Vijay Gupta

         Defendant retained Dr. Vijay Gupta to opine on the existence of design, material, or manufacturing defects in the 1-304 coupling nut used in Defendant's toilet connector and whether creep rupture would occur if the coupling nut was properly installed. [423, at 4.] Dr. Gupta is a Professor of Mechanical and Aerospace Engineering at the University of California Los Angeles, with a Ph.D. in Mechanical Engineering and a M.S. in Structural Engineering. According to his expert report, “At age 31, [he] became one of the youngest Full Professors with tenure in the US, only 5 years after receiving [his] Ph.D. degree.” [339-17, ¶ 2.] He has “lectured on applied mechanics, fracture mechanics, materials science, biomechanics, mechanical engineering design, and manufacturing-related courses and topics for over 25 years.” Id. ¶ 3.

         Plaintiffs move to exclude Dr. Gupta's opinions on two grounds. First, they argue that Dr. Gupta “tested the wrong product” because he brought the wrong coupling nut to his deposition. [389, at 2.] Second, they claim that Dr. Gupta's conclusions are unreliable because at his deposition, he testified that one part of his analysis was based on a “back-of-the envelope” calculation. Id. The Court takes the second argument first.

         i. Dr. Gupta's “Back-Of-The-Envelope” Statement

         Plaintiffs argue that Dr. Gupta “conceded the crudeness of his calculations” to generate the “failure analysis data he relied upon in forming his opinions.” [389, at 8.] Here is the relevant exchange from Dr. Gupta's deposition:

Q: What was involved in the failure analysis?
A: Well, the first step in the failure analysis is to - for whether or not the hand tightening can result in the failure, would be to look at what levels of torque one can generate using their hand. And that was the first step. Then you estimate what kind of axial force you're going to generate inside the coupling nut assembly by understanding the mechanism by which the force is generated. And then you look at what is the maximum stress you're going to generate inside the body of the nut. And then you compare that with some failure limits of the material to come to a conclusion whether or not the hand tightening torques can result in the failure of the material or not.
Q: And did you do all that in connection with your assignment for Fluidmaster?
A: I did.
Q: Is that included - are the results of your failure analysis included in your report which you filed in this case?
A: Yes, it is.
Q: Were there any other written documents created as a result of your failure analysis?
A: No.
Q: Was there data generated?
A: No. I did a back-of-the-envelope calculation, and it is something you can just do it just using a calculator. And those numbers are all within less than 800 PSI as the highest stress levels which you will generate inside the body of the coupling nut. And so there was no calculations I provided on a piece of paper, but that is something I can do just on -
Q: The back of an envelope?
A: - the back of an envelope.
Q: Okay. How much time have you spent on you assignment for Fluidmaster since you were retained?
A: I have not added all the hours, but it is definitely well beyond 200 hours.

[389-4, at 26:8-27:23.] Plaintiffs did not seek to clarify what Dr. Gupta meant by the phrase “back-of-the-envelope, ” content to rest their entire Daubert argument on any potential ambiguity that could be read into that phrase.

         The Court is not persuaded. Dr. Gupta testified that the results from his failure analysis are in his report, which is filled with charts, figures, formulas, calculations, and cited sources. Plaintiffs do not point to any specific analysis in his report that is “crude” or “off-the-cuff” [437, at 11] because his detailed, complicated calculations unquestionably are not. As the context from deposition questions shows, Dr. Gupta's answers are about written documents and data that are not in his report. To claim, as Plaintiffs do, that Dr. Gupta “conceded he generated no data or even a single document” (id. at 10) when he spent “well beyond 200 hours” preparing a fifty-page report is a patent misreading of his testimony.

         Here, Dr. Gupta referenced one calculation he made that is not in his report, which he views as “something you can just do * * * using a calculator.” [389-4, at 27:10-13.] The fact that a Mechanical and Aerospace Engineering Professor found the calculation of pressure per square inch simple enough to do on a calculator (or even the back of an envelope) does not- without significantly more-suggest his opinions are “the antithesis of scientifically reliable expert opinion testimony.” [389, at 9.] Plaintiffs did not ask him to perform those calculations or otherwise challenge his PSI calculation. They do not identify an alternative, purportedly more rigorous method for calculating PSI that they claim should have been employed here. Nor do they explain precisely how calculating PSI on a calculator, even assuming it was a rough calculation, fatally undermines the reliability of his conclusions. Plaintiffs simply seize on Dr. Gupta's word choice-which they opted not to explore further at his deposition-and then proclaim his opinions are entirely unreliable.[11] Such a Daubert challenge lacks merit.

         ii. Dr. Gupta's Deposition Mistake and Subsequent Declaration

         Plaintiffs' first Daubert argument appears to be mainly a factual dispute. Dr. Gupta was asked to bring to his deposition the physical materials that he tested in connection with his June 29, 2016 supplemental expert report. [437, at 4.] At the deposition, he agreed that the materials he brought were representative examples of what he used in his experiments. [373-3, at 76:10- 17.] The hose that Dr. Gupta brought to the deposition, however, has a “Made in China” label. Id. at 85:3-6, 103:18-23. The coupling nut that is relevant to this litigation-the 1-304 coupling nut-was not made in China. In 2010, Defendant started outsourcing production of its coupling nut to Coastal, a manufacturer in China, which produced a “two-winged design comprising acetal” that looks different than the 1-304 coupling nut. [389, at 5.] Plaintiffs conducted the remainder of Dr. Gupta's deposition apparently thinking that Dr. Gupta had tested the wrong coupling nut, making the opinions in his 2016 supplemental report irrelevant.

         Following the deposition, Defendant did not revise Dr. Gupta's report or otherwise indicate there was any error in Dr. Gupta's testimony. Dr. Gupta submitted an errata sheet making only two minor changes to his deposition testimony, but neither correction related to the materials brought to the deposition. As a result, Plaintiffs filed their Daubert motion, leading off with an argument challenging this seemingly significant error in Dr. Gupta's analysis.

         Defendant responds that Dr. Gupta “accidentally caused” “confusion” at his deposition by bringing the wrong product with him. [423, at 7 n.3.] Defendant attaches a declaration from Dr. Gupta dated September 9, 2016, in which he states, “I checked my laboratory records and files and confirm[ed] that I inadvertently brought the wrong hose body to the deposition.” [423-1, ¶ 4.] The hose he brought to the deposition “belongs to a Coastal toilet connector that [he] had taken apart and examined at a different time and which was not the subject of [his] supplemental expert report.” Id. Dr. Gupta reiterated that “[t]he tests [he] conducted, and which are the subject of [his] 2016 Supplemental Expert Rebuttal Report, were performed only on Fluidmaster 1-304 coupling nuts, the acetal coupling nut that is at issue in this case.” Id. ¶ 5. His declaration includes photographs of the 1-304 coupling nut and the Coastal coupling nut and states that a “visual inspection” shows that the two products are “readily distinguishable.” Id. ¶ 7. According to Defendant, then, “the evidence confirms that the correct and representative product was analyzed and tested” by Dr. Gupta, and Plaintiffs' Daubert arguments must fail. [423, at 11-12.]

         Plaintiffs cry foul. They claim the fact that Dr. Gupta “mixed-up the hoses and coupling nuts” means he “did not maintain the parts he tested in any particular manner” and it is impossible to know which products, in fact, Dr. Gupta tested. [437, at 8-9.] They also argue that Dr. Gupta's failure to “maintain chain of custody” and “sloppy” lab practices show that all of his opinions are unreliable. Id. at 9. Plaintiffs note that they “previously requested exemplar plastic nuts from [Defendant] for their own testing” but were informed none existed, which means that either Dr. Gupta tested the wrong product or Defendant violated its discovery obligations. Id. at 6-7. Plaintiffs also filed a motion to strike Dr. Gupta's new declaration, claiming it is a new untimely “expert report” submitted in violation of Federal Rule of Civil Procedure 26.[12] [See 450.] As a remedy for this alleged misconduct, Plaintiffs seek exclusion of Dr. Gupta's declaration and his supplemental report or, alternatively, discovery of all documents referenced in his new report, all correspondence between Defendant's counsel and Dr. Gupta, another deposition of Dr. Gupta, and for Defendant to pay the fees and costs for Dr. Gupta's original deposition, any additional document discovery, and the Daubert motion. Id. at 16.

         Defendant offers several responses. First, it points out two important facts that it neglected to emphasize in its Daubert response brief: (1) Dr. Gupta “clearly brought” the correct 1-304 coupling nut to the deposition, just not the correct hose [460, at 6-7]; and (2) “Dr. Gupta provided several videos and photos of the testing on the Fluidmaster 1-304 coupling nuts (clearly without ‘wings'), which were produced to Plaintiffs prior to Dr. Gupta's deposition” (id. at 7). Thus, Dr. Gupta's declaration confirming that he tested the correct coupling nut was not a “new” expert opinion. Second, Defendant argues that parties may submit declarations attached to Daubert response briefs that offer limited responses to points raised by the opposing party's motion (or, alternatively, such declarations are permissible supplementation under Federal Rule of Civil Procedure 26(e)). Id. at 9-10, 12-13. Third, Defendant claims that there is no prejudice or unfair surprise to Plaintiffs and no bad faith by Defendant, and thus additional discovery and striking the declaration are unwarranted.

         The Court finds this dispute to be significantly overstated. If Dr. Gupta brought the correct coupling nut to the deposition and Defendant disclosed video and photos of him testing the correct coupling nut, then that should be sufficient to resolve whether Dr. Gupta, in fact, tested the correct coupling nut. Plaintiffs do not contend that these videos and photos [see 464, at 2-5] show Dr. Gupta tested the Coastal coupling nut. While Plaintiffs assert in their reply that Defendant does not present “evidence” that Dr. Gupta brought the correct coupling nut to the deposition [466, at 6], this fact should be easily verifiable. Either the plastic bag of “exemplars” from the deposition-which apparently was not marked as a deposition exhibit-has the 1-304 coupling nut in it or it does not. If Plaintiffs do not have the bag, they could look at the video of Dr. Gupta's deposition [437, at 4] or talk with someone who attended the deposition to confirm this fact. The Court finds it inconceivable given the volume of paper that has been filed on this issue that, if Plaintiffs were correct and Defendant had misrepresented to the Court that Dr. Gupta brought the 1-304 coupling to his deposition, Plaintiffs would not present something-a picture of the bag, a close-up screenshot from the deposition video, a declaration from a deposition attendee-to show that this was a lie. The fact that Plaintiffs do not is telling; it suggests that there is no genuine dispute over the fact that Dr. Gupta brought the correct coupling nut to his deposition.

         In other words, Plaintiffs' Daubert challenge seeks to extrapolate from the fact that Dr. Gupta admittedly and mistakenly brought the wrong hose to the deposition to mean that Dr. Gupta tested the wrong coupling nut, his lab is in disarray, and all of his opinions are unreliable. Other evidence (e.g., the photographs and video contemporaneous with his testing, the references to the 1-304 coupling nut in his report, the 1-304 coupling nut he brought to the deposition, and his declaration) refutes those inferences. Except for this all-but immaterial mistake, Plaintiffs do not otherwise seriously challenge the reliability of Dr. Gupta's methodology. They cite no authority holding that Dr. Gupta's opinions are unreliable unless he performed a “material analysis” on Defendant's coupling nut to verify it was “the same as the 1-304 coupling nuts at issue.” [389, at 6.] And Rule 702 does not require experts to second guess whether the attorneys who retained them have supplied them with relevant materials to analyze absent some reason to believe these materials are incorrect. See Tuf, 223 F.3d at 591; Walker, 208 F.3d at 588. If Plaintiffs wanted to challenge Dr. Gupta's “chain of custody” or preservation of evidence practices, they easily could have done so during his deposition. They did not. Plaintiffs cannot layer speculation upon speculation-e.g., this concession “raises more questions than it answers” [437, at 9]-to successfully challenge an expert's reliability, and doing so falls well short of persuading this Court to strike Dr. Gupta's entire 2016 supplemental report.

         Nor does Dr. Gupta's short September 2016 declaration clarifying factual issues constitute a “new” expert report that violates the expert disclosure rules. Supplemental declarations from experts that merely respond to specific Daubert criticisms or “harmlessly repeat information provided in the earlier reports” do not violate Rule 26. Allgood v. Gen. Motors Corp., 2006 WL 2669337, at *5 (S.D. Ind. Sept. 18, 2006). Such clarifying declarations from experts are a routine part of Daubert motions.[13] Here, Dr. Gupta responds to factual issues raised at his deposition that serve as the basis for Plaintiffs' motion-namely, whether he tested the coupling nut associated with the hose he brought to the deposition. Such clarification of a factual mistake does not trigger mandatory sanctions under Federal Rule of Civil Procedure 37.

         But this entire course of events was avoidable. After reviewing Plaintiffs' Daubert motion, Defendant should have contacted Plaintiffs, explained the mistake, and offered to have Dr. Gupta sit for limited deposition on this issue. Plaintiffs should have agreed and withdrawn their Daubert motion, enabling them to reevaluate whether to raise a reliability challenge based on Dr. Gupta's additional deposition testimony. Instead, the parties have wasted their time on a declaration from Dr. Gupta, a Daubert response and reply, and a full round of motion to strike briefing debating the range of possible sanctions.

         The Court will order what should have been obvious and agreed upon by everyone: Dr. Gupta must sit for another deposition. This deposition will be limited to 60 minutes and the deposition's topic is limited to issues raised by Dr. Gupta's mistake in bringing the wrong hose to his August 5, 2016 deposition, including his laboratory protocols and how Dr. Gupta confirmed from his laboratory files that he tested the correct coupling nut. In advance of that deposition, Dr. Gupta will be required to produce all documents that he relied on to determine that he tested the correct coupling nut (subject to any applicable privilege or protection). Defendant must produce to Plaintiffs the 1-304 coupling nut(s) that Dr. Gupta tested. No fees and costs will be awarded.[14]

         Before moving on, the Court addresses one issue raised mainly by Plaintiffs' motion to strike. Dr. Gupta's declaration tacks on a response to another issue that arose at his deposition: whether he reviewed a rebuttal report from Plaintiffs' expert, Dr. Michael Bak. Dr. Gupta stated that following his deposition, he “reviewed [his] files, ” found a copy of Dr. Bak's report, and confirmed that he had previously reviewed it. [408, ¶ 9.] He stated, “Nothing in the Bak Rebuttal Report changes my opinions rendered in this case, ” and his previously submitted report “rebuts the points made in the Bak Rebuttal report.” Id. ¶¶ 9-10.

         Plaintiffs claim prejudice, arguing that Dr. Gupta completely changed his deposition testimony in his declaration. Here is how Plaintiffs present Dr. Gupta's testimony in their brief: Dr. Gupta “was questioned at his 2016 deposition and confirmed he did not consider Dr. Bak's report: Q: So you didn't consider that [October 2014 report] in preparing your supplemental report, then? A: That's correct.” [437, at 7-8 (emphasis added).]

         Here is Dr. Gupta's actual testimony:

Q: And with respect to the 2014 expert report of Michael Bak, is that the September 2014 expert report which would be the expert report that you had before you prepared your first report?
A: Yes.
Q: Okay. Are you aware that there's a second report by Dr. Bak?
A: These are - and I may have missed that report. I remember there was a report submitted toward the end of - after my deposition, and so I don't have a good recollection whether I saw it or not. Yeah.
Q: So you didn't consider that in preparing your supplemental report, then?
A: That's correct.
Q: Okay. Do you have - but - do you have any information or - let me start over. Do you have any recollection about what Dr. Bak addressed in the second report?
A: I have a - if I had read it, then I will - I don't have a recollection of that.
Q: And I will tell you that the report was filed in October 2014 - A: Okay.
Q: - and it was subsequent to your deposition. And it is entitled, ‘The Rebuttal Report of Michael Bak, Ph.D.' A: Okay.
Q: But you didn't consider it in connection with your supplemental report, correct?
A: If I read that report at some point and - because of all the opinions I've written over here are basically based on all information I have, you know, remembered from my last deposition and everything I've considered in this case.
Q: Okay. But it wasn't something you've told your lawyers to put on this list, correct?
A: This is correct. So if I read it - because there is a lot of - so even if I read it and there were certain opinions he may have expressed and if those opinions did not change my opinion, then I basically thought there was no reason to bring that in in this particular list here.

[437-3, at 54:14-56:8.]

         The Court should not have to fact-check whether the parties' representations are accurate. Only by ignoring all of the surrounding testimony could Plaintiffs represent that Dr. Gupta “stated clearly and unequivocally that he did not consider Bak's rebuttal report.” [466, at 7.] Dr. Gupta testified repeatedly that he could not recall whether he looked at this report. He indicated that if he had and it did not change his opinions, he would not have put it on his reliance list. In his declaration, Dr. Gupta stated that he had, in fact, received the report and it did not change his opinions. Dr. Gupta's declaration is not a “new” opinion-after all, he says his opinions are unchanged-or even inconsistent with his deposition testimony. Plaintiffs opted not to ask further questions about Dr. Bak's rebuttal report despite Dr. Gupta's uncertainty about whether he had read it. [See 437-3, at 55:25-56:12.] Plaintiffs cannot manufacture “prejudice” by offering snippets of testimony that misrepresent the testimony's substance as a whole. Questions about Dr. Bak's rebuttal report are off-limits at Dr. Gupta's next deposition.

         Plaintiffs' motion to exclude Dr. Gupta's opinions and testimony [387] is denied, and Plaintiffs' motion to strike Dr. Gupta's September 9, 2016 declaration [446] is denied in part and granted in part.

         5. Dr. Brian Palmer

         Defendant retained Dr. Brian Palmer, a Vice President of Charles River Associates with a Ph.D. in economics from the Massachusetts Institute of Technology, to “analyze Fluidmaster's claims data and other related information to assess the failure rate of Fluidmaster's 1-304 coupling nut used in connection with toilet connectors.” [383-1, ¶ 1.] Plaintiffs raise a host of methodological challenges to Dr. Palmer's opinions, arguing that these flaws collectively undermine the reliability and relevance of Dr. Palmer's conclusions.

         To start, Plaintiffs explain that a “failure rate” (i.e., the number of products that fail divided by total sales) is not the same as a “claims rate” (i.e., the number of claims filed with a company about a product's failure divided by the total sales). At his deposition, Dr. Palmer agreed that these are “two different things”-the claims rate will almost always be smaller than the failure rate. [383-3, at 17:7-17, 21:2-5.] Nevertheless, Defendant euphemistically characterizes Dr. Palmer's claims rate opinion as the “known failure rate” and insists that a claims rate is the “best proxy” for a failure rate. [411, at 5, 9.] Defendant offers no statistical, economic, scientific, or otherwise reliable basis to support that claim. Neither could Dr. Palmer at his deposition. “[A]n inference or assertion must be derived by the scientific method.” Daubert, 509 U.S. at 590. “A supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method and are reliable and relevant.” Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999). Defendant is likely correct that, “statistically speaking, there would need to be drastically more failures in the field than reported for any difference in the failure rate and claims rate” to matter. [411, at 10.] But that does not mean Dr. Palmer can simply assert these measures are the same without a reasoned basis for doing so. Dr. Palmer has not measured and cannot opine on the “failure rate” of Defendant's product.

         Next, Plaintiffs challenge whether Dr. Palmer's “claims rate” methodology is reliable, attacking both the calculation of total sales (the denominator) and total claims (the numerator). With respect to total sales, Plaintiffs identify three alleged errors: (1) Dr. Palmer used manufacturing data, not sales data, to estimate total sales-meaning that he assumed that every manufactured product was sold and installed; (2) Dr. Palmer included roughly 4.6 million toilet connectors with Coastal coupling nuts, inflating his total sales of the 1-304 coupling nut by 14%; and (3) to determine the amount of United States sales, Dr. Palmer used the ratio of U.S. to non-U.S. sales in 2010 and then applied that same ratio for every year between 1993 to 2009. With respect to total claims, Dr. Palmer eliminated 22% of coupling nut claims and 13% of hose burst claims-without any decrease in total sales-because of missing data associated with those claims. Thus, Plaintiffs claim that Dr. Palmer manipulated his methodology to deflate his numerator and inflate his denominator, creating an artificially and unreliably low “claims rate.”

         In an effort to place Plaintiffs' criticisms in context, Defendant attaches a declaration from Dr. Palmer to its response brief. [See 411-1.] Dr. Palmer's declaration states that even if he accepted all of Plaintiffs criticisms, his analysis would be materially unchanged-mainly because the size of the denominator (total sales) is so large that it dwarfs the impact of these changes. Dr. Palmer's report indicates that the claims rate for plastic nut claims is 0.0050% and the rate for hose bursts is 0.0047%. [339-22, ¶ 4.] In other words, 99.995% and 99.9953% of products manufactured did not result in a filed claim. According to Dr. Palmer, even if he (1) assumed that 40% of the manufactured water connectors were never sold; (2) removed all of the Coastal coupling nuts claims and sales; and (3) added back in the previously excluded 22% of coupling nut claims and 13% of hose burst claims, it would only change his analysis by roughly .004% for plastic nut claims and .003% for hose burst claims. [411-1, ¶ 5.] Thus, even accepting Plaintiffs' criticisms, 99.99% of Defendant's products did not result in a filed claim.

         Defendant also attempts to explain why Dr. Palmer's methodological choices are reliable. Defendant argues that Dr. Palmer used “the best data available” to reach his conclusion because this is the data that Defendant uses in the ordinary course of business. [411, at 11-12.] Dr. Palmer, in fact, used actual sales data for 2003 through 2015 and only used manufacturing data for 1993 to 2002. Regardless, “it simply defies reason and the company's profit motive to believe that Fluidmaster would manufacture goods and not sell them.” Id. at 15. With respect to the Coastal coupling nuts, Defendant takes a position inconsistent with its argument concerning Dr. Gupta, arguing that Coastal coupling nut sales are properly counted because that product is part of the class definition. Id. at 7. Dr. Palmer also ...


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