United States District Court, N.D. Illinois, Eastern Division
IN RE: FLUIDMASTER, INC., WATER CONNECTOR COMPONENTS PRODUCTS LIABILITY LITIGATION MDL No. 2575
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge
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 , 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  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.
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
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.
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.
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.
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.
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). 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).
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).
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.
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).
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).
Federal Rule of Civil Procedure 23
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).
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).
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).
parties have filed several Daubert motions in
connection with Plaintiffs' motion for class
certification. “[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' Daubert Motions
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.
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.
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).
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
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.
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
motion to exclude Meek's opinions and testimony  is
Dr. Sanjay K. Rao
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,
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.]
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.
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.
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; (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.
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.
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. 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.
motion to exclude Dr. Rao's opinions and testimony [378;
379] is denied.
Dale Edwards, P.E.
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.
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.
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.
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.
Edwards's Original Report
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.
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.
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. 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.
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. 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].”).
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.
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.
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
Plaintiffs' motion to exclude Edwards's opinions and
testimony  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.
Edwards's Rebuttal Report
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.
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.
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
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. 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  is denied.
Dr. Vijay Gupta
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.
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.
Dr. Gupta's “Back-Of-The-Envelope”
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
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
A: I did.
Q: Is that included - are the results of your failure
analysis included in your report which you filed in this
A: Yes, it is.
Q: Were there any other written documents created as a result
of your failure analysis?
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.
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.
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. Such a Daubert
challenge lacks merit.
Dr. Gupta's Deposition Mistake and Subsequent
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.
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.
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.]
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. [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.
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
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.
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.
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. 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
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
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
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. ¶¶
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).]
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
Q: Okay. Are you aware that there's a second report by
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.]
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
motion to exclude Dr. Gupta's opinions and testimony
 is denied, and Plaintiffs' motion to strike Dr.
Gupta's September 9, 2016 declaration  is denied in
part and granted in part.
Dr. Brian Palmer
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
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
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.”
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.
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 ...