Simmons v. Ford Motor Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 18-CV-81558-RAR

CLARENCE SIMMONS, et al.,

Plaintiffs,

v.

FORD MOTOR COMPANY,

Defendant.

___________________________________/

ORDER DENYING DEFENDANT’S OMNIBUS

MOTION TO EXCLUDE PLAINTIFFS’ EXPERTS

THIS CAUSE comes before the Court upon Defendant’s Omnibus Motion to Exclude

Plaintiffs’ Experts’ Opinions [ECF No. 114] (“Motion”). The Court has reviewed Defendant’s

Motion, Plaintiffs’ Response in Opposition [ECF No. 128]; Defendant’s Reply in Support [ECF

No. 142]; and other relevant portions of the record. For the reasons set forth below, it is hereby

ORDERED AND ADJUDGED that Defendant’s Omnibus Motion to Exclude Plaintiffs’

Experts’ Opinions [ECF No. 114] is DENIED.

BACKGROUND

This is a Class Action suit brought by Plaintiffs on behalf of themselves and similarly

situated members of a purported Nationwide Class and multiple State Classes against Ford Motor

Company alleging design defects of Ford Mustang-, Expedition-, and Explorer-branded vehicles.

See Second Amended Class Action Complaint [ECF No. 70] (“Compl.”) at 1–2. The alleged defect

causes “the Class Vehicles’ aluminum panels to corrode and the exterior paint on the aluminum

body parts to bubble, flake, peel, rust and/or blister.” Id. at 2. Plaintiffs’ Motion for Class

Certification is presently before the Court. See generally [ECF No. 151]. In support of their

Motion for Class Certification, Plaintiffs offer three expert witnesses: Erik Anderson (design

defect), Edward Stockton (damages), and Kirk Kleckner (warranty valuation). Mot. at 1.

Defendant filed the instant Motion requesting that this Court strike all three of Plaintiffs’ class

certification experts pursuant to Federal Rules of Evidence 410, 402, and 702, as well as the

Supreme Court’s decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Id.

LEGAL STANDARD

Federal Rule of Evidence 702 “controls the admission of expert testimony.” United States

v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc). When expert testimony is introduced

under Rule 702, “the party offering the expert testimony bears the burden of laying the proper

foundation, and that party must demonstrate admissibility by a preponderance of the evidence.”

City of S. Miami v. Desantis, No. 19-22927, 2020 WL 7074644, at *3 (S.D. Fla. Dec. 3, 2020)

(citing Rink v. Cheminova, Inc., 400 F.3d 1286, 1291–92 (11th Cir. 2005)). “The presumption is

that expert testimony is admissible, so that once a proponent has made the requisite threshold

showing, further disputes go to weight, not admissibility.” Id. (quoting Little v. Wash. Metro. Area

Transit Auth., 249 F. Supp. 3d 394, 408 (D.D.C. 2017)) (internal quotation marks omitted). Thus,

“the rejection of expert testimony is the exception rather than the rule.” Moore v. Intuitive

Surgical, Inc., 995 F.3d 839, 850 (11th Cir. 2021) (quoting Fed. R. Evid. 702 Advisory

Committee’s Note to 2000 Amendments).

As the Supreme Court explained in Daubert, the purpose of the expert admissibility rules

is for district courts to serve as “gatekeepers to ensure that speculative, unreliable expert testimony

does not reach the jury.” Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1335 (11th Cir. 2010) (citing

Daubert, 509 U.S. at 597 n.13) (internal quotation marks omitted). However, this role must be

properly balanced with a parties’ right to a jury trial where “[v]igorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

In the Eleventh Circuit, the admissibility inquiry has been distilled down to three factors,

which require the district court to consider whether:

(1) the expert is qualified to testify competently regarding

the matters he intends to address;

(2) the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined by the

sort of inquiry mandated in Daubert; and

(3) the testimony assists the trier of fact, through the

application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a

fact in issue.

City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998). These factors are

referred to as qualification, reliability, and helpfulness. Frazier, 387 F.3d at 1260. While “there

is inevitably some overlap among the basic requirements—qualification, reliability, and

helpfulness—they remain distinct concepts and the courts must take care not to conflate them.”

Id.

With respect to qualification, an expert may be qualified based on “knowledge, skill,

experience, training, or education.” J.G. v. Carnival Corp., No. 12-21089, 2013 WL 752697, at

*3 (S.D. Fla. Feb. 27, 2013) (citing Furmanite Am., Inc. v. T.D. Williamson, 506 F. Supp. 2d 1126,

1129 (M.D. Fla. 2007)). “An expert is not necessarily unqualified simply because [his] experience

does not precisely match the matter at hand.” Id. (citing Maiz v. Virani, 253 F.3d 641, 665 (11th

Cir. 2001)). “[S]o long as the expert is minimally qualified, objections to the level of the expert’s

expertise go to credibility and weight, not admissibility.” Clena Invs., Inc. v. XL Specialty Ins.

Co., 280 F.R.D. 653, 661 (S.D. Fla. 2012) (citing Kilpatrick v. Breg, Inc., No. 8-10052, 2009 WL

2058384, at *1 (S.D. Fla. June 25, 2009)). “After the district court undertakes a review of all of

the relevant issues and of an expert’s qualifications, the determination regarding qualification to

testify rests within the district court’s discretion.” Carnival Corp., 2013 WL 752697 at *3 (citing

Berdeaux v. Gamble Alden Life Ins. Co., 528 F.2d 987, 990 (5th Cir. 1976)).

The reliability inquiry requires the court to determine “whether the reasoning or

methodology underlying the testimony is scientifically valid and . . . whether that reasoning or

methodology properly can be applied to the facts in issue.” Frazier, 387 F.3d at 1261–62 (citation

omitted) (internal quotation marks omitted). Generally, to make this determination, the district

court examines: “(1) whether the expert’s theory can be and has been tested; (2) whether the theory

has been subjected to peer review and publication; (3) the known or potential rate of error of the

particular scientific technique; and (4) whether the technique is generally accepted in the scientific

community.” Id. (citing Quiet Tech. DC-8, Inc. v. Hurel-Dubois, UK Ltd., 326 F.3d 1333, 1341

(11th Cir. 2003)). The Eleventh Circuit has emphasized that alternative questions may be more

probative in the context of determining reliability as these factors are not dispositive. See id.

Accordingly, trial judges are afforded “considerable leeway” when assessing reliability. Id. at

1258 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

For example, in design defect cases where “a proposed expert’s opinion relies principally

upon his experience and knowledge, the Court must satisfy itself that the witness has appropriately

explained how his experience leads to the conclusion he reached, why that experience provides a

sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Clena

Invs., Inc, 280 F.R.D. at 663 (citing United States v. Brown, 415 F.3d 1257, 1261 (11th Cir. 2005)).

Accordingly, “design experts, like experience-based experts generally, are not necessarily required

to ‘test’ their opinions.” Anderson v. FCA U.S., LLC, No. 16-558, 2019 WL 826479, at *4 (M.D.

Ga. Feb. 21, 2019) (citing Clena Invs., Inc, 280 F.R.D. at 663); see also Pineda v. Ford Motor Co.,

520 F.3d 237, 248–49 (3d Cir. 2008) (“Pineda proffered Clauser as an engineering expert who

understood the stresses and forces that might cause glass to fail. Clauser’s specialized, rather than

generalized, experience in this area allowed him to recognize that exerting a force on one area of

the rear liftgate glass before exerting a force on another area of the glass could lead to its shattering.

Clauser did not have to develop or test alternative warnings to render an opinion . . . .”); Schenone

v. Zimmer Holdings, Inc., No. 12-1046-J-39MCR, 2014 WL 9879924, at *5–8 (M.D. Fla. July 30,

2014) (“In some cases, the expert’s experience in conjunction with knowledge, skill, training or

education alone may provide a sufficient basis to the reliability of the expert’s opinion.”). While

testing is generally not required in design defect cases, “an expert’s unexplained assurance that

[his] opinions rest on accepted principles” is not enough. Furmanite Am., Inc., 506 F. Supp. 2d at

1130 (citing McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1242 (11th Cir. 2005)) (emphasis

added).

The final element—helpfulness—considers whether the expert testimony applies to

“matters that are beyond the understanding of the average lay person.” Edwards v. Shanley, 580

F. App’x 816, 823 (11th Cir. 2014) (quoting Frazier, 387 F.3d at 1262). “Proffered expert

testimony generally will not help the trier of fact when it offers nothing more than what lawyers

for the parties can argue in closing arguments.” Frazier, 387 F.3d at 1262–63. This prong requires

trial courts to “exclude expert testimony that is ‘imprecise and unspecific,’ or [when the] factual

basis is not adequately explained.” Id. (quoting Cook ex rel. Est. of Tessier v. Sheriff of Monroe

Cty., Fla., 402 F.3d 1092, 1111 (11th Cir. 2005)). To be helpful, a nexus must exist between the

offered opinion and the facts of the case. McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir.

2004) (citing Daubert, 509 U.S. at 591). For example, testimony is not helpful “where a large

analytical leap must be made between the facts and the opinion.” Id. (citing Gen. Elec. Co. v.

Joiner, 522 U.S. 136 (1997)).

Although sometimes helpful, a hearing is not necessary for the Court to fulfill its

gatekeeping role of determining whether an expert’s testimony meets the requirements set forth in

Daubert. See Corwin v. Walt Disney Co., 475 F.3d 1239, 1252 n.10 (11th Cir. 2007); see also

United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (holding that Daubert hearings are

not required); Cook ex rel. Estate of Tessier, 402 F.3d at 1113 (noting that the trial court was under

no obligation to hold a Daubert hearing). The decision to hold a Daubert hearing is within the

discretion of the Court. United States v. Junkins, 537 F. Supp. 2d 1257, 1259 n.1 (S.D. Ala. 2008)

(denying the Government’s requests for a hearing because it would not have materially advanced

the Court’s understanding of the issues). Here, a Daubert hearing will not materially advance the

Court’s understanding of the proposed expert testimony and the issues before it. Thus, the Court

declines to hold one. Corwin, 475 F.3d at 1252 n.10 (“hearings are not prerequisite to such

determinations under the Federal Rules or established law.”)

ANALYSIS

Defendant’s Motion impermissibly tows the line between a challenge to class certification,

a challenge to the overall merits of Plaintiffs’ case, and a challenge to the reliability and helpfulness

of Plaintiffs’ experts—despite being stylized as solely the latter. Defendant appears to conflate

the requirements of Comcast Corp. v. Behrend, 569 U.S. 27 (2013) with the standards the Supreme

Court laid out for evaluating the admissibility of expert testimony in Daubert. In Comcast, the

Supreme Court held that a “district court may not certify a class without establishing with

admissible evidence that damages can be measured on a class wide basis and are consistent with a

plaintiff’s liability case.” Hays v. Nissan N. Am., Inc., No. 17-00353, 2019 WL 12054662, at *2

(W.D. Mo. Sept. 26, 2019). However, the inability of a single expert to satisfy class certification

requirements through their testimony alone is not an appropriate indicum of the admissibility of

the expert’s testimony under Daubert. In challenging Plaintiffs’ experts, Defendant cites several

cases that relate solely to the standards for class certification as opposed to the standards that

establish the admissibility of expert testimony.

For example, in challenging expert Edward Stockton, Defendant states that “his opinions

are insufficient to satisfy Plaintiffs’ burden of proving that damages can be calculated on a class

wide basis.” Mot. at 21. This argument has no basis under Daubert and ignores the simple fact

that Stockton’s opinion alone need not satisfy Plaintiffs’ burden of establishing damages in order

for him to be qualified to give testimony in this case. Similarly, Defendant challenges expert Erik

Anderson because he is purportedly unable to establish that the “alleged defect is material and the

material defect affects the market value of the vehicles.” Mot. at 11 (cleaned up). Like the

argument on class wide damages, this argument ignores the fact that to be admissible, Anderson’s

“testimony need not prove the plaintiffs’ case by [itself]; [it] must merely constitute one piece of

the puzzle that the plaintiffs endeavor to assemble[.]” City of Tuscaloosa, 158 F.3d at 565.

Additionally, in Defendant’s Reply, the challenge to Anderson’s reliability discusses the overall

merits of Plaintiffs’ case, stating, “[a]s a legal matter, Plaintiffs’ theory should not survive

summary judgment.” Reply at 5.

These arguments are inappropriate not only because the Court presently has before it

Plaintiffs’ fully briefed Motion for Class Certification [ECF No. 151], but because these arguments

have no bearing on the reliability of individual experts. To consider these arguments would not

only be a waste of judicial resources as it would require the Court to review Defendant’s arguments

against class certification multiple times, but it would also be legally impermissible to do so

because this Circuit’s precedent requires “a district court [to] conclusively rule on any challenge

to the expert’s qualifications or submissions prior to ruling on a class certification motion.” Sher

v. Raytheon Co., 419 F. App’x 887, 890–91 (11th Cir. 2011). Accordingly, this Order addresses

whether the three challenged experts’ testimony is admissible under Daubert, not if their testimony

is sufficient to establish class certification or whether Plaintiffs could succeed on the merits

through the testimony of these experts alone.1 The Court will address each expert in turn.

I. Erik Anderson

Defendant’s Motion seeks to exclude the opinions of Erik Anderson (“Anderson”). See

Mot. at 3–10. Anderson is a proposed mechanical engineering and vehicle design expert who has

opined on the alleged design defects of the Class Vehicles—which Plaintiffs maintain results in

increased susceptibility to early-onset filiform corrosion initiating at the trim end of the outer panel

of the hood of said vehicles. See generally [ECF No. 100-3] Expert Report of Erik Anderson

(“Anderson Report”).

Anderson has a Bachelor of Science in Mechanical Engineering from the University of

Michigan and spent 16 years working for Nissan and then Honda. Anderson Report at 2–3. At

both Nissan and Honda, he was responsible for designing hoods and other body parts to minimize

the potential for corrosion. Id. However, Defendant does not challenge Anderson’s qualifications.

Mot. at 3. Instead, Defendant claims Anderson’s opinions are unreliable and unhelpful because

“(1) errors on critical issues pervade his report, (2) he ignores all aspects of the design of Class

1 In its Motion, Defendant also challenges Plaintiffs’ experts’ testimony under Rules 401 and 402 of the

Federal Rules of Evidence. Mot. at 1. This argument is easily disposed of. Rule 401 simply states

“[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be

without the evidence; and (b) the fact is of consequence in determining the action[,]” while Rule 402 states

that “[i]rrelevant evidence is not admissible.” Here, Plaintiffs’ experts offer testimony regarding the

existence of a design defect and the potential for damages. As this is a consumer class action alleging the

existence of a design defect and requesting damages due to said defect, this “evidence is clearly relevant

under Rule 401’s low bar.” United States v. Chukwu, 842 F. App’x 314, 319 (11th Cir. 2021).

Vehicles except one, (3) he never tested his opinions in any appropriate way, and (4) his opinions

are not relevant because he has no idea how Class Vehicles perform relative to other vehicles class

members might have purchased.” Id. Although Defendant seems to confuse reliability and

helpfulness throughout its Motion, the first three criticisms constitute an attack on Anderson’s

reliability while the fourth goes to helpfulness. However, the Court finds that Anderson’s opinions

meet the standards for both reliability and helpfulness under Daubert. Thus, the Anderson Report

warrants consideration at the class certification stage.

a. Reliability

Although Defendant raises potential errors with Anderson’s opinions, the Court does not

find Anderson’s methodology “so unreliable to warrant exclusion.” Ohio State Troopers Ass’n,

Inc. v. Point Blank Enterprises, Inc., No. 18-63130, 2020 WL 1666763, at *4 (S.D. Fla. Apr. 3,

2020); see also Banta Props., Inc. v. Arch Specialty Ins. Co., No. 10-61485, 2011 WL 13096149,

at *4 (S.D. Fla. Dec. 20, 2011) (“Quelette’s method was not so unreliable that the Court can rule

as a matter of law that the jury should not hear his opinion.”); Leblanc v. Coastal Mech. Servs.,

LLC, No. 4-80611, 2005 WL 8156075, at *2 (S.D. Fla. Sept. 15, 2005) (“[T]he Court cannot find

that the information relied upon by Dr. Leporowski to form her opinion so unreliable and lacking

in probative weight so as to warrant the wholesale exclusion of her testimony.”).

First, Defendant claims that Anderson erroneously stated that on the Mustang and Explorer

hoods, Ford only applied over-hem sealer to the leading edge of the hoods. Mot. at 3. To support

this contention, Defendant points to the Anderson Report, which shows Explorer hoods with

annotations indicating that over-hem sealer was applied to the leading edge of the hood and

approximately halfway up the sides of the hood. Id. (citing Anderson Report at 9). Further, the

Anderson Report includes an exhibit showing that the S550 Mustang, introduced in 2015, had

over-hem sealer around the full perimeter of the hood. Id. Defendant states that this is further

supported by Ford’s CAD drawings that show the S550 Mustang had a full perimeter hem sealer.

Id.

These mistakes, to the extent they can be characterized as such, clearly go to the weight

the factfinder may ultimately choose to afford Anderson’s opinions as opposed to their

admissibility. In fact, it is not clear from the record that these were mistakes at all. As Plaintiffs

point out in their Response, whether Anderson correctly considered the location of the over-hem

sealer on the Explorer is largely semantics because the Explorer’s hood features a broad curve

design such that it is unclear where the leading-edge ends, and the sides begin. Resp. at 4.

Moreover, the allegedly erroneous opinion related to the Mustang appears to be a result of

Defendant’s own erroneous response to an interrogatory. Id. at 3–4. The Anderson Report cites

Defendant’s First Supplemental Answer to Interrogatory No. 19, where Defendant states that it did

not adopt full perimeter over-hem sealer until the 2017 model year Mustang. Anderson Report at

34. Defendant’s Interrogatory Response was not amended until after Anderson had completed his

report. See Interrogatory No. 19 (indicating that it was served on January 19, 2021). Thus,

questioning Anderson’s reliability based on his supposedly mistaken assertion that Ford only

applied over-hem sealer to the leading edge of the Mustang hood in 2015 would be misguided.

Second, Defendant claims that Anderson’s examination and analysis of twelve market

exemplar hoods was erroneous. Mot. at 4–5. Defendant posits that Anderson only examined ten

hoods—only six from Class Vehicles, and only three from vehicles that were driven less than six

years. Id. at 4. Further, Defendant claims this test was flawed because Anderson only examined

hoods with visible signs of corrosion. Id. at 5. Once again, this challenge is largely semantics.

Anderson examined ten hoods and two tailgates, and eight vehicles were the same models as the

Class Vehicles, albeit two of which were from earlier or later model years. Anderson Report at

12; 16; 35. Although Defendant is correct that Anderson examined hoods with corrosion, Plaintiffs

point out that “Anderson chose hoods with the corrosion for the purpose of investigating where it

initiates typically . . . and how it grows[,]” contrasting the locations where corrosion presented to

“the locations of the hem joint that did not exhibit corrosion[.]” Resp. at 5. He then used this

information to form his overall conclusion that the over-hem seal led to corrosion.

Third, Defendant maintains that Anderson ignored all aspects of the Class Vehicles’

designs except one. Mot. at 6. Defendant alleges that Anderson “consciously ignored additional

protections put into Ford hoods, instead focusing only on the leading edge of the hood.” Id.

Specifically, Defendant believes Anderson’s report is deficient due to a failure to consider “other

drainage enhancement” and “the corrosion protection systems in Explorers and Mustangs.” Id. In

regard to the Expedition, Defendant claims that Anderson failed to consider the corrosion

protection system in place when concluding that the Explorer’s hood “has no drain path for trapped

moisture[,]” and noting that the vehicle “has no over-hem sealer anywhere on the hood.” Id. at 7

(quoting Anderson Report at 11). But concluding that a single aspect of the Class Vehicle resulted

in corrosion in no way indicates that Anderson ignored all other aspects of the Class Vehicles’

designs. Indeed, nothing in Anderson’s report indicates that he failed to consider “other drainage

enhancement” or “the corrosion protection systems in Explorers and Mustangs[;]” instead, his

overall conclusion implies that these features were insufficient to mitigate the possibility of

corrosion based on the presence of design defects. Once again, the extent of Anderson’s

consideration of the Class Vehicles’ various design aspects goes to weight not admissibility.

Defendant’s final reliability challenge rests on the claim that Anderson conducted “no

appropriate testing.” Id. at 7. In making this argument, Defendant relies on the purported issues

with Anderson’s examination and analysis of twelve market exemplar hoods. Id. at 7–8.

Defendant claims that although Anderson holds this analysis out as a test, it was flawed because

Anderson failed to consider other sources of corrosion. Id. This argument ignores the fact that

Rule 702 does not require a design engineer, like Anderson, whose opinion is based on experience,

knowledge, training, and education, to perform any testing. Anderson’s opinions are based on his

knowledge, experience, and education as a mechanical engineer and vehicle design expert. To

suggest that a lack of empirical testing is automatic grounds for exclusion is directly contradicted

by Daubert’s treatment in the Eleventh Circuit. See Frazier, 387 F.3d at 1262 (“These [Daubert]

factors are illustrative, not exhaustive; not all of them will apply in every case, and in some cases

other factors will be equally important in evaluating the reliability of proffered expert opinion.”)

(citing Kumho Tire, 526 U.S. at 150–52; Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir.

1999)).

In short, Defendant’s reliability arguments fail to establish that any purported mistakes in

the Anderson Report warrant his exclusion. Further, the lack of empirical testing is not enough to

overcome the reliability of Anderson’s opinions based on his extensive experience in vehicle

design. The Court is satisfied that Anderson “has appropriately explained how his experience

leads to the conclusion he reached, why that experience provides a sufficient basis for the opinion,

and how that experience is reliably applied to the facts[,]” through testimony regarding his past

roles in designing anti-corrosion systems in similar vehicles and consulting on these issues in

numerous representative matters. Clena Invs., Inc., 280 F.R.D. at 663.

b. Helpfulness

While Defendant claims Anderson does not opine on how Class Vehicles compare to other

vehicles with respect to corrosion, the Court is convinced that Anderson’s testimony is sufficiently

helpful to assist “the trier of fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue.” City of Tuscaloosa, 158 F.3d

at 562. Specifically, Defendant claims “that absent evidence that Ford vehicles perform

significantly worse than its competitors with respect to corrosion, Anderson’s opinion that Ford

vehicles are ‘defective’ because they do not all meet the six year 100% corrosion free standard is

not relevant to Plaintiffs’ theories.” Mot. at 12.

While Defendant may be correct that Plaintiffs cannot succeed on the merits without

proving the alleged defect is material and the material defect affects the market value of the

vehicles, Anderson’s “testimony need not prove the plaintiffs’ case by [itself]; [it] must merely

constitute one piece of the puzzle that the plaintiffs endeavor to assemble before the jury.” City of

Tuscaloosa, 158 F.3d at 565. Anderson’s testimony that an alleged design defect in the Class

Vehicles results in increased susceptibility to early-onset filiform corrosion initiating at the trim

end of the outer panel of the hood would clearly be helpful to a lay person in determining whether

the defect is material and whether that defect impacts the market value of the vehicles.

Lastly, although unnecessary at this stage of the litigation, Plaintiffs maintain they could

establish that the Class Vehicles’ hoods fail at a significantly higher rate than comparable vehicles

through the testimony of other experts. Resp at 11–12. Thus, it is clear that Anderson’s testimony

is sufficiently helpful to constitute a “piece of the puzzle” that would allow a trier of fact to

determine the ultimate issue. City of Tuscaloosa, 158 F.3d at 565.

II. Edward Stockton

Defendant’s Motion similarly seeks to exclude the expert opinions of Edward Stockton

(“Stockton”). Mot. at 12. Stockton is a proposed damages expert who has opined on the existence

and extent of the damages; assisted the Plaintiffs in developing methods for quantifying and

allocating those damages; and has given an opinion on whether it is possible to execute those

methods on a class-wide basis. See generally [ECF No. 97-3] Exhibit 42, Expert Report of Edward

M. Stockton (“Stockton Report”).

Stockton has a Bachelor of Arts in Economics from the University of Western Michigan

as well as a Master of Science in Agricultural and Resource Economics from the University of

Arizona. Stockton Report at 1–2. For the past 23 years, Stockton has served in various roles in

The Fontana Group, a consulting firm that provides economic consulting services and expert

testimony regarding the retail motor vehicle industry. Id. at Tab 1, 1–2. Stockton presently serves

as the Vice President and Director of Economics Services of the Fontana Group and has consulted

in some capacity on over 200 representative client assignments, many of which involved design

defects in automobiles. Id. However, once again, Defendant does not challenge Stockton’s

qualifications. Mot. at 12. In its Motion, Defendant parses Stockton’s report into two opinions:

“1) giving everyone in the class the cost to replace the hoods on their vehicles will give everyone

the ‘benefit of their bargain’ and (2) he will be able to calculate (but has not yet calculated) the

cost of replacing the hoods.” Id. (citations omitted).

Defendant challenges Stockton’s opinion on three grounds: 1) “Stockton’s ‘benefit of the

bargain’ model of damages ignores the actual bargain struck by consumers[;]” 2) “Stockton’s

model is contrary to the economic theory on which he purports to rely[;]” and 3) “Stockton’s cost

of repair method of measuring benefit of the bargain damages is irrelevant and contrary to

applicable law[.]” Mot. at 12–18 (cleaned up). The first two criticisms are essentially an attack

on the reliability of Stockton’s testimony, while the third questions its helpfulness. However, the

Court finds that Stockton’s opinions meet the standards for both reliability and helpfulness under

Daubert. Thus, the Stockton Report warrants consideration at the class certification stage.

a. Reliability

In challenging Stockton’s reliability, Defendant first alleges that Stockton’s “benefit of the

bargain” model ignores the actual bargain struck by consumers. Mot. at 12. Defendant posits that

Stockton never looked at Ford’s warranty and never considered the terms of any actual bargain.

Id. While a Plaintiff’s expert’s failure to consider the terms of the warranty in a damages model

may be a death knell at the class certification stage, Stockton is not the sole damages expert offered.

See generally [ECF No. 97-3] Exhibit 43, Declaration of Kirk Kleckner (“Kleckner Report”).

Instead, Plaintiffs have offered Stockton to evaluate economic loss using repair cost as a proxy,

which could ultimately be one component of their overall theory of damages. Resp. at 21. Indeed,

Plaintiffs offer the Kleckner Report to establish that various models “can be used to value the

extended warranties in this case.” Id. Thus, the Stockton Report is not unreliable solely because

it did not directly factor in the warranty when evaluating economic loss using repair cost as a

proxy. Further, it is unclear whether Stockton failed to take into account the warranty given his

underlying assumption that “the reasonable expectation[] of consumers” is a “defect-free vehicle[]

or remedies (warranties) in the event that the vehicle is not delivered in a defect-free condition.”

Stockton Report at 9.

The contention that Stockton “never considered the terms of any actual bargain[,]” is a

similarly flawed challenge to his reliability as an expert. Stockton was retained to assist Plaintiffs

in developing a method for quantifying and allocating damages. Id. at 19. In doing so, he utilized

his knowledge and experience to determine that repair cost used as a proxy for benefit of the

bargain damages would allow the class members to receive the “benefit of their bargain because

they would be put in the same position they would have been had the car not been sold with the

[defect] – [the repair] is the cost necessary to make the vehicles conform to the value Plaintiffs

thought they were getting in the price tendered.” Sloan v. Gen. Motors LLC, No. 16-07244, 2020

WL 1955643, at *48 (N.D. Cal. Apr. 23, 2020) (citing Falco v. Nissan N. Am. Inc., No. 13-00686,

2016 WL 1327474, at *12 (C.D. Cal. Apr. 5, 2016)). As Plaintiff points out, this exact method

has been approved by numerous federal courts, as in Hays, 2019 WL 12054662 (approving

Stockton’s benefit-of-the-bargain model), Sloan, 2020 WL 1955643 (same), and Nguyen v. Nissan

N. Am., Inc., 932 F.3d 811 (9th Cir. 2019) (generally approving of repair cost as a proxy for benefit

of the bargain damages). Accordingly, the Court is satisfied with Stockton’s reliability as it relates

to consideration of the warranty.

Secondly, Defendant criticizes Stockton for not properly applying expected utility theory.

Mot at 15. However, a close examination of the Stockton Report clearly indicates otherwise. For

example, Stockton states that consumers consider “the future performance of a good or service and

the risk associated with different levels of performance.” Id. (emphasis omitted). He proceeds to

cite “classical decision theory” as a basis for his opinion that consumers “choose options perceived

at the time of purchase to be preferable to alternatives when discrete choices are available.” Id.

(citing Stockton Report at 4). And he also posits that consumers balance positive and negative

“expected utilities” across “competing goods and services.” Id. (citing Stockton Report at 5)

(emphasis omitted). Most importantly, the Stockton Report concludes that “[t]hese expected

outcomes . . . assess potential purchases by taking into account . . . the probabilities of positive

and negative outcomes, the timing of the probability of positive and negative outcomes, and the

magnitude and direction of those potential outcomes.” Id. (citing Stockton Report at 6) (emphasis

omitted).

Notably, Defendants’ exact argument was rejected in Hays. 2019 WL 12054662 at *4. In

Hays, not only was the court considering the sufficiency of the application of expected utility

theory in a case related to a corrosion-based design defect against an automobile manufacturer, but

both plaintiffs and defendants offered the exact same experts that the parties offer here. Id. Just

as the court found in Hays, this Court finds that Stockton’s understanding and application of

expected utility theory is sufficiently reliable to survive a challenge under Daubert. Stockton

reliably outlines the principles of expected utility theory and appears to apply them to the facts at

issue. Defendants main critique, that Dr. Harless, Defendant’s economist, disagrees with

Stockton’s application of the theory, goes to weight, not admissibility; in other words, the trier of

fact would be tasked with determining which experts’ methods they find to be more credible.

b. Helpfulness

Defendant challenges the relevance of Stockton’s testimony because “Stockton’s repair

cost model for benefit of the bargain damages is contrary to how Florida, California, and New

York measure benefit of the bargain damages.” Mot. at 18. Specifically, Defendant cites this

Court’s opinion in Ohio State Troopers Ass’n v. Point Blank Enters., 481 F. Supp. 3d 1258, 1284

(S.D. Fla. 2020), aff’d., 20-13588, 2021 WL 4427772, at *2 (11th Cir. Sept. 27, 2021) for the

proposition that benefit of the bargain damages are not available in Florida. But the simple fact

that such damages are unavailable in Florida does not render Stockton’s Report inadmissible. “To

avoid exclusion on Daubert grounds, it is only necessary for Plaintiffs to demonstrate that the

measure of damages set forth in [Stockton’s] report can apply to at least one of Plaintiffs’ claims.

That is because [Stockton’s] testimony is admissible even if it may only assist the trier of fact with

determining ‘a fact in issue’ (provided the other Daubert requirements are satisfied).” Ohio State

Troopers Ass’n, 2020 WL 1666763 at *6 (citing Rink, 400 F. 3d at 1292). Accordingly, for

purposes of Daubert, as long as benefit of the bargain damages are available in one of the thirteen

states under the laws of which this action is brought, Stockton’s testimony would “assist the trier

of fact with determining ‘a fact in issue[.]’”2 Thus, Stockton’s testimony is sufficiently helpful

under Daubert.

III. Kirk Kleckner

Finally, Defendant’s Motion seeks to exclude the opinions of Kirk Kleckner (“Kleckner”).

Kleckner is a Certified Public Accountant and a proposed damages expert who has opined on his

ability to calculate the value of the warranty for specific vehicle components under Ford’s

warranties and the valuation methodologies underlying these hypothetical calculations. Kleckner

Report at 1–3.

Kleckner has a Bachelor of Arts in Accounting and Business Administration from Wartbug

College as well as a Master of Business Administration from the University of Minnesota.

Kleckner Report at Exhibit A. His experience includes seven years as the Chief Financial Officer

of an automotive dealership group; 19 years with an accounting firm, including roles as

shareholder, Chief Operating Officer, and Director of Business Valuation and Litigation Support

Services; and performing services for hundreds of companies in a wide array of industries,

including retail car dealerships, property and casualty insurance, warranty insurance, and

2 For example, Plaintiffs have asserted claims under Alabama law, which “has long followed the ‘benefit

of the bargain’ rule.” Reynolds v. Mitchell, 529 So. 2d 227, 233 (Ala. 1988).

distribution. Id. Kleckner has served as an expert in four major automotive warranty related class

action settlement valuation determinations. Id. at 1.

However, once again, Defendant does not challenge Kleckner’s qualifications. Mot. at 21.

Defendant instead criticizes what they believe is “[Kleckner’s] only conclusion . . . that available

methodologies exist to determine the value of a warranty for a vehicle component and those

methodologies are applicable in this particular case.” Id. at 22 (quoting Kleckner Report at 1)

(internal quotation marks omitted). Defendant argues that, because the Kleckner Report makes no

mention of overpayment or ineffective repairs, his opinion “does not advance the question in

dispute for which the opinion is proffered”—hence, “there is no ‘fit’ and the opinion should be

excluded.” Id. (quoting Boca Raton Cmty. Hosp., Inc. v. Tenet Healthcare Corp., 502 F. Supp. 2d

1237, 1249 (S.D. Fla. 2007)) (internal quotation marks omitted). Additionally, Defendant

criticizes Plaintiffs’ characterization of Kleckner’s testimony in their Motion for Class

Certification. Id. at 21–22.

Defendant’s arguments, once again, confuse the requirements of Comcast and Daubert.

Carideo v. Whet Travel, Inc., No. 16-23658, 2018 WL 1367444, at *11 (S.D. Fla. Mar. 16, 2018)

(“[T]he Court must be careful not to conflate questions of admissibility of expert testimony with

the weight appropriately to be accorded to such testimony by the fact finder.”). Under the

requirements of Rule 702, there is no requirement that Kleckner calculate class wide damages or

show precisely how they will be calculated. The Kleckner Report provides a detailed description

of the various approaches reasonably relied upon by courts and experts in his field for valuing

Plaintiffs’ damages as to the Unfair and Deceptive Warranty Classes. Kleckner Report at 3.

Kleckner discusses how the Market Approach, the Cost Approach, or both, can be used to value

the extended warranties in this case. Id. at 3–4. Finally, Kleckner details a list of factors that

would be essential in making the calculations. /d. None of Defendant’s arguments undercut the

fact that Kleckner’s “testimony will aid the trier of fact in determining one or more facts 1n issue,”

Serendipity at Sea, LLC v. Underwriters at Lloyd’s of London Subscribing to Pol’y No. 187581,

No. 20-60520, 2021 WL 981028, at *4 (S.D. Fla. Mar. 16, 2021), or that the testimony “concerns

matters that are beyond the understanding of the average lay person.” Frazier, 387 F.3d at 1262.

The ability to calculate class-wide warranty damages is clearly at issue and thus, Kleckner’s

testimony is helpful under Daubert. Moreover, the sufficiency of his testimony to establish class

certification has no bearing on admissibility; any averred weaknesses in the Kleckner Report will

be properly considered during the Court’s review of Plaintiffs’ Motion for Class Certification.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant’s

Omnibus Motion to Exclude Plaintiffs’ Experts’ Opinions [ECF No. 114] is DENIED.

DONE AND ORDERED in Fort Lauderdale, Florida, this 22nd day of December, 2021.

UNITED STATES DISTRICT JUDGE

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