# Gonzalez v. Corning

> District Court, W.D. Pennsylvania · March 31, 2016 · 317 F.R.D. 443

URL: https://www.frixlaw.com/law-library/cases/8776111

## Case

- **Full name:** Jaime GONZALEZ, Patricia Wright, Kevin West, and Gerald Boehm, On behalf of themselves and all others similarly similarly situated v. Owens CORNING and Owens Corning Sales, LLC, Defendants Edward Maag and Diane Maag, on behalf of themselves and all others similarly situated v. Owens Corning and Owens Corning Sales, LLC
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 31, 2016
- **Citations:** 317 F.R.D. 443; 2016 WL 1252988
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Conti
- **Judges:** Conti
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8776111

## How later opinions describe it (automated extraction)

- noting that plaintiffs could provide "no citation to any legal authority to support their foundational contention that a limited warranty of a set number of years is a representation about the useful life of a product" and concluding that "Plaintiffs' theory is not only novel …
- noting that causation must be proven for an implied warranty claim and finding that the plaintiffs could not “meet their burden to establish that causation can be proven by evidence that is common to the proposed four-state class.”

## Opinion text

OPINION
CONTI, Chief United States District Judge
These putative class actions were filed against Owens Corning and Owens Corning Sales, LLC (collectively, “Owens Coming” or “defendants”) and arise out of Owens Coming’s manufacture and sale of allegedly defective Oakridge-brand fiberglass asphalt roofing shingles. One case was filed against Owens Corning in this court, and three separate cases were filed in federal district courts in other states. Those other federal district courts transferred the three cases to this court. After being transferred two of those cases were consolidated for all purposes with the case filed here at civil action 13-1378. 1 (ECF No. 45.) The last case transferred to this court (Civ. No. 14-0826) was consolidated at civil action 13-1378 only for pretrial purposes. (14-cv-826, ECF No. 14.) The named plaintiffs in the four eases are Patricia Wright (“Wright”), Kevin West (“West”), Jaime Gonzalez (“Gonzalez”), Gerald Boehm (“Boehm”), and Edward and Diane Maag (the “Maags”) (collectively, “plaintiffs” or the “named plaintiffs”).
The procedural history, facts, and legal claims pertinent to each of the cases will be discussed in detail in the findings of fact that follow. By way of summary, plaintiffs contend that Owens Corning acted unlawfully by manufacturing Oakridge-brand shingles in accordance with defective design specifications, and by promising that all Oakridge-brand shingles would last for at least 25 years, when, due to those defective design specifications all Oakridge-brand shingles were “vulnerable” or “susceptible” to lasting no more than 20 years.
Plaintiffs filed a motion for class certification, seeking to certify classes pursuant to Federal Rules of Civil Procedure 23(b)(1)(B), (b)(2), and (b)(3). (ECF No. 150.) Plaintiffs’ motion was fully briefed by the parties, and the court conducted a hearing on the motion on December 17, 2015. (ECF Nos. 151-54, 161-62,164-66,169-70,12/17/2015 Minute Entry.) Thereafter, the parties filed proposed findings of fact and conclusions of law. (ECF Nos. 176-77.) Several weeks later, plaintiffs volunteered a notice of supplemental authority in further support of them motion for class certification. (ECF No. 179.) Owens Corning filed a short response thereto, and stated its willingness to more fully respond at the court’s request. (ECF No. 180.) The court did not request further briefing.
The court concludes that the proposed Rule 23(b)(1)(B) class cannot be certified because the named plaintiffs ask this court to answer a question that the Court of Appeals for the Third Circuit already answered. Owens Coming cannot, and has stated that it will not, relitigate the issue. In addition, the appellate court answered the question in a way that makes it impossible for this court to enter any classwide rulings with respect to the effect that Owens Coming’s bankruptcy proceedings have on proposed class members’ claims.
The court also concludes that the proposed Rule 23(b)(2) and Rule 23(b)(3) classes cannot be certified because, among other reasons, the named plaintiffs seek to pursue relief under various state-law theories that are not the same for all members of a proposed class, it is impossible to determine whether an owner is a member of the class, and the record contradicts any finding that either all (or even most or many) Oakridge- *451 brand shingles suffer from an common defect or Owens Corning represented that its Oak-ridge-brand shingles would not crack, de-granulate, fragment, or deteriorate for, or would have a useful life of, at least 25 years. Plaintiffs proffer no evidence about how often Owens Corning manufactured shingles “at or near” the allegedly defective “low-end” of its specifications. FOF 181. The only statistical evidence in the record reflects that only one half of one percent of Oakridge-brand shingle installations result in a warranty claim, and only half of the approximately 300 warranty claim shingles tested by plaintiffs measured “at or near” the allegedly defective “low end” of Owens Coming’s design specifications. The record reflects that plaintiffs acknowledge that not all Oakridge-brand shingles will be manufactured “at or near” the allegedly defective “low end” of Owens Coming’s design specifications, and plaintiffs never identify how near the “low end” of Owens Coming’s design specifications a measurement must be to qualify as design defect. With respect to plaintiffs’ claims that Owens Corning made misstatements about its Oakridge-brand shingles, plaintiffs fail to establish that Owens Coming made uniform representations about the expected useful life of Oakridge-brand shingles, or about whether the shingles would experience any form of deterioration for a set number of years.
Under those circumstances and as more fully explained in the findings of fact and conclusions of law, the court will deny plaintiffs’ motion for class certification.
FINDINGS OF FACT 2
A. The Proposed Classes
1. The Originally-Proposed Classes
FOF 1: In their initial briefing on the motion for class certification, plaintiffs moved to certify the following classes: Rule 23(b)(1)(B) Impaired Judgments Class: All individuals and entities that own a building or structure physically located in the United States on which Owens Coming’s Oakridge-brand shingles are or have been installed, where those shingles were purchased on or before September 26, 2006.
Rule 23(b)(2) Injunctive Relief Class and Rule 23(b)(3) Monetary Relief Class: All individuals and entities that own a building or structure physically located in the states of California, Illinois, Pennsylvania, or Texas on which Owens Coming’s Oakridge-brand shingles are or have been installed from 1992 through 2012.
(EOF No. 154 at 23.)
FOF 2: With respect to the originally-proposed Rule 23(b)(1)(B) class, plaintiffs explained in their initial briefing in support of the motion for class certification that “class members nationwide are vulnerable to Owens Corning asserting a dischargeability defense against them” even though the Court of Appeals for the Third Circuit ruled in favor of Wright and West on this bankruptcy-based defense during the pendency of the instant case. (EOF No. 154 at 34); Wright v. Owens Corning, 679 F.3d 101 (3d Cir.2012).
a. In October 2000, Owens Coming voluntarily filed for bankruptcy relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for District of Delaware. Wright, 679 F.3d at 103 ; Wright v. Owens Corning, 450 B.R. 541, 545 (W.D.Pa.2011).
b. Owens Coming’s final reorganization plan was confirmed on September 26, *452 2006. Wright, 679 F.3d at 103 ; Wright, 460 B.R. at 545.
c. In Wright, the court of appeals refused to retroactively apply a newly-announced bright-line legal test for determining whether a claim is discharged by a bankruptcy court’s entry of a confirmation order. Wright, 679 F.3d at 107-09 . The court of appeals instead engaged in a fact-specific inquiry, as required under the previously-applicable legal test, and concluded that Wright’s and West’s claims were not discharged by Owens Coming’s bankruptcy proceedings. Id.; see FOF 229-31.
FOF 3: The originally-proposed Rule 23(b)(2) and Rule 23(b)(3) classes shared the same class definition. Membership in the proposed Rule 23(b)(2) class, therefore, was coterminous with membership in the proposed Rule 23(b)(3) class. Owners were not required to demonstrate any kind of shingle deterioration, property damage, or actual repair or replacement costs in order to obtain relief.
a. At the hearing on plaintiffs’ class certification motion, in response to questions from the court about the seeming redundancy of the proposed Rule 23(b)(2) and Rule 23(b)(3) classes, plaintiffs clarified that the proposed Rule 23(b)(2) injunctive relief class was intended to be an alternative in the event that the court declined to certify the proposed Rule 23(b)(3) monetary relief class. (ECF No. 173 at 37-38.)
b. Plaintiffs explained at the hearing on them class certification motion that if the court refused to certify the Rule 23(b)(3) monetary relief class, then members of the proposed Rule 23(b)(2) class would obtain a declaration that the shingles are defective or that Owens Corning did not provide what was promised. (ECF No. 173 at 38-39.)
FOF 4: Plaintiffs sought to litigate four categories of legal claims on behalf of the classes proposed under Rules 23(b)(2) and 23(b)(3): (1) breach of express warranty (PA owners only); (2) breach of implied warranty of merchantability (PA, CA, and TX owners); (3) violation of state-specific consumer protection statutes (CA, TX, and IL owners); and (4) unjust enrichment (PA, CA, TX, and IL owners). (ECF No. 154 at 40-45.)
a. The unjust enrichment claim was the only cause of action on which plaintiffs sought class certification under the laws of all four states in which the named-plaintiffs’ structures are located. The three remaining causes of action were being pursued on behalf of varying combinations of owners located in the states of Pennsylvania, Illinois, California, and Texas. (Id. at 45.)
b. The named plaintiffs’ operative complaints assert numerous legal claims for which class certification was not being sought.
i. For example, although Gonzalez, Boehm, and the Maags plead breach of express warranty claims under Texas, California, and Illinois law, respectively, plaintiffs sought to pursue only the breach of express warranty claim asserted by Wright under Pennsylvania law on behalf of the class. FOF 21, 46, 70, 88.
ii. Similarly, although West and the Maags plead breach of implied warranty claims under Illinois law, the named plaintiffs sought to certify that legal claim on behalf of those owners whose structures are located in Pennsylvania, California, or Texas. Therefore, while owners in those three states would have their breach of implied warranty claims adjudicated on a classwide basis, owners in Illinois would not, and West and the Maags would, instead, affirmatively abandon those claims on behalf of the class. (ECF No. 173 at 21-32); FOF 21,46, 70, 88.
FOF 5: In a footnote to their opening brief, plaintiffs suggested certification of an alternative “liability-only class under Rule 23(c)(4), with damages handled in *453 separate proceedings.” (ECF No. 154 at 37 n.17; ECF No. 170 at 14.) Plaintiffs did not propose a list of issues that would be decided as part of such a class, but instead argued generally that a “liability-only class will fairly and efficiently advance this litigation” “[g]iven the parties’ dispute regarding an intrinsic product defect as well as Owens Coming’s deceptive representations about the reliability and durability of Oakridge.” (ECF No. 170 at 15.)
2. The Currently-Proposed Classes
FOF 6: In their proposed findings of fact and conclusions of law, plaintiffs seek certification of the same three classes under Rules 23(b)(1)(B), (b)(2), and (b)(3), with minor modifications having been made to the originally-proposed class definitions. The modifications made to the proposed class definitions are indicated below with strikethrough, underlining, and highlighting, and are discussed in substance in the findings of fact that follow.
Rule 23(b)(1)(B) Impaired Consistent-Judgments Class, defined as A all individuals and entities that own a building or structure physically located in the United States on which Owens Coming’s Oakridge-brand shingles are currently or have been installed, where those shingles were purchased on or before September 26, 2006.
A Rule 23(b)(2) Injunctive Relief Class and Rule 23(b)(3) Monetary Relief Class, defined as A all individuals and entities that own a building or structure physically located in the states of California, Illinois, Pennsylvania, or Texas on which Owens Coming’s Oakridge-brand shingles were are or have been installed from 1992 through 2012, and where those shingles manifested any cracking, degranulation, fragmentation, or deterioration during the warranty coverage period.
(ECF No. 178 at 18-19 (¶ l(a)-(b)).)
FOF 7: The most significant difference between the originally-proposed Rule 23(b)(1)(B) class, and the currently-proposed Rule 23(b)(1)(B) class is that a member of the currently-proposed Rule 23(b)(1)(B) class must own a building or structure on which Oakridge-brand shingles are currently installed. FOF 1, 6.
FOF 8: The purpose of the proposed Rule 23(b)(1)(B) class remains the same: to address the effect of Owens Coming’s bankruptcy discharge on owners who hold legal claims relating to Oakridge-brand shingles. FOF 2; (ECF No. 178 at 27-30 (¶¶ 41-51).) Plaintiffs contend that this class will protect “the rights of class members whose interests are otherwise vulnerable to inconsistent dischargeability rulings.” (Id. at 30 (¶ 51).)
FOF 9: The most significant difference between the originally-proposed Rule 23(b)(2) and Rule 23(b)(3) classes, and the currently-proposed Rule 23(b)(2) and Rule 23(b)(3) classes is that a member of both currently-proposed classes must demonstrate that one of the four shingle conditions listed in the class definition manifested during the term of the applicable warranty period. FOF 1, 3, 6.
FOF 10: Membership in the currently-proposed Rule 23(b)(2) class remains coterminous with membership in the currently-proposed Rule 23(b)(3) class. If an owner can demonstrate that the “shingles manifested any cracking, degranulation, fragmentation, or deterioration during the warranty coverage period,” then that owner is a member of both the Rule 23(b)(3) monetary damages class, and the Rule 23(b)(2) injunctive relief class. If an owner cannot demonstrate that the “shingles manifested any cracking, de-granulation, fragmentation, or deterioration during the warranty coverage period,” then that owner is a member of neither the Rule 23(b)(3) monetary relief class, nor the Rule 23(b)(2) injunctive relief class.
FOF 11: Despite the representations made by plaintiffs during the class certification hearing, plaintiffs do not, in their proposed findings of fact and conclusions of law, seek certification of the Rule 23(b)(2) injunctive relief class as an al *454 ternative to certification of the Rule 23(b)(3) monetary damages class. FOF 3(a) & 3(b).
FOF 12: Instead, in their proposed findings of fact and conclusions of law, plaintiffs contend that both a Rule 23(b)(3) and a Rule 23(b)(2) class should be certified because the former will provide relief for owners who have already “suffered substantial product failures” and the latter will “protect class members who have yet to suffer substantial product failures.” (ECF No. 178 at 30 (¶ 54)).
FOF 13: Plaintiffs seek to pursue the same four categories of legal claims on behalf of the classes proposed under Rule 23(b)(2) and Rule 23(b)(3) that were set forth in their original briefing: (1) breach of express warranty (PA owners only); (2) breach of implied warranty of merchantability (PA, CA, and TX); (3) violation of state-specific consumer protection statutes (CA, TX, and IL); and (4) unjust enrichment (PA, CA, TX, and IL). FOF 4, 21, 46, 70, 88; (ECF No. 178 at 34-43 (¶¶ 72-106).)
FOF 14: Even though plaintiffs, upon questioning by the court at the class certification hearing, expressed then-belief that the Rule 23(b)(2) and Rule 23(b)(3) classes should have state-by-state subclasses, and stated that they “would be happy to” propose state-specific subclasses in their post-hearing filings, plaintiffs do not propose state-specific subclasses in their proposed findings of fact and conclusions of law. (ECF No. 173 at 17-19.) Plaintiffs, instead, include a proposed conclusion of law that states: “To the extent that trial requires separate consideration of state-law claims, this Court reserves the right to certify separate state subclasses.” (ECF No. 178 at 19 (¶ 1(d)); see also ECF No. 178 at 34 (¶ 71); but see ECF No. 178 at 34 (¶72) and 36 (¶ 81) (making passing reference in proposed conclusions of law to state-specific subclasses for the express warranty and implied warranty claims even though those classes are never defined in plaintiffs’ submission).)
FOF 15: At the hearing on plaintiffs’ motion for class certification, the court explicitly advised plaintiffs that it was their obligation to propose state-specific subclasses at the class certification stage, and that the matter was not a trial management issue in this case. (ECF No. 173 at 18.) Plaintiffs nevertheless elected not to propose state-specific subclasses for the pi-oposed Rule 23(b)(2) and (b)(3) classes.
FOF 16: Plaintiffs do not include a Rule 23(c)(4) class in the list of classes that they ask the court to certify. (ECF No. 178 at 18-19 (¶1).) They do, however, include five paragraphs in their proposed findings of fact and conclusions of law which discuss a Rule 23(c)(4) liability-only class. (ECF No. 178 at 45-46 (¶¶ 115-119).)
a. Plaintiffs contend that a liability-only class is appropriate in this case because such proceedings will be efficient, with respect to both time and cost, and will allow for “focused damages proceedings.” (ECF No. 178 at 46 (¶¶ 118-19).)
b. Plaintiffs assert that a Rule 23(c)(4) class would “proceed to trial on the threshold question of liability for the Mowing claims: breach of express warranty under Pennsylvania law; breach of implied warranty under Illinois, Pennsylvania, and Texas law; violation of consumer protection laws in California, Illinois, and Texas; and unjust enrichment” because, “[n]ot-withstanding some minor differences between the legal theories, all these claims rest on a common core of facts: design defects in Oakridge; Owens Coming's knowledge of those defects; and deceptive representations about the reliability and durability of Oakridge.” (Id. at 45-46 (¶¶ 117,119).)
FOF 17: The class definitions for all three currently-proposed Rule 23(b) classes include:
a. Buildings and structures that are single-family dwellings, multi-family dwellings, commercial facilities, and government-owned properties. FOF 6.
*455 b. Owners that are individuals, corporations, unincorporated associations, and governmental or municipal entities. FOF 6.
c. Owners who purchased structures on which a previous owner installed Oak-ridge-brand shingles prior to the date of purchase. FOF 6.
d. Owners who jointly own a structure. FOF 6.
e. Owners for whom another individual or entity, such as a builder or contractor, selected Oakridge-brand shingles for installation on the structure. FOF 6.
f. For the proposed Rule 23(b)(2) and Rule 23(b)(3) classes, owners who purchased structures from which a previous owner removed Oakridge-brand shingles prior to transferring ownership to the current owner. FOF 6.
g. For the proposed Rule 23(b)(2) and Rule 23(b)(3) classes, owners whose Oakridge-brand shingles will not crack, degranulate, fragment, or deteriorate for 30 years, or more. FOF 193(f).
h. For the proposed Rule 23(b)(2) and Rule 23(b)(3) classes, owners whose Oakridge-brand shingles will not require repair or replacement for 30 years, or more. FOF 193(f).
i. For the proposed Rule 23(b)(2) and Rule 23(b)(3) classes, owners whose Oakridge-brand shingles will not cause a roofing leak, or otherwise cause property damage for 30 years, or more. FOF 193(f).
B. The Named Plaintiffs’ Cases, Claims, and Factual Circumstances
1. The Wright(PA) — West(IL) Case
FOF 18: On November 11, 2009, Patricia Wright (“Wright”) and Kevin West (‘West”) filed a putative class action complaint in this court. (09-CV-1567, ECF No. 1.) The operative complaint in the Wright-West case is the Third Amended Complaint, which was filed on November 30, 2012. (09-CV-1567, ECF No. 119.)
FOF 19: Wright and West aver that Owens Coming’s Oakridge-brand shingles are “plagued by design flaws that result in cracking, curling and degranulation” and “will eventually fail, causing property damage, and costing consumers substantial removal and replacement costs.” (09-CV-1567, ECF No. 119 ¶2.)
FOF 20: Wright and West propose certification of a nationwide class of individuals who “owned, own, or acquired” structures on which Owens Coming Oakridge roofing shingles “are or have been installed since 1986,” (09-cv-1567, ECF No. 119 ¶55.) An alternative class comprised of individuals who own structures located in Pennsylvania or Illinois is proposed. (Id. ¶¶ 8-9, 66 (Wright is a resident of Pennsylvania, and West is a resident of Illinois.).)
FOF 21: The Third Amended Complaint consists of ten counts. (09-cv-1567, ECF No. 119 at 21-33.) The legal claims asserted by Wright and West are:
*456 [[Image here]]
a. Facts Applicable to Wright
FOF 22: Wright had Owens Coming Oak-ridge-brand shingles installed on her home, which is located in Pennsylvania, no later than 1999. (09-CV-1567, EOF No. 1 ¶¶8, 47; EOF No. 162-4 at 20-23.)
FOF 23: Wright selected the Oakridge-brand shingles after visiting a commercial retailer, such as Home Depot or. Lowe’s, where she obtained a brochure for “Oakridge Shadow Premium Architectural Series Shingles.” (EOF No. 153-10 at 8 (depo. pgs. 94 and 97); EOF No. 153-12 at 14-18.) She gave or showed the brochure to the contractor that she hired to build an addition onto her home and instructed him to use the shingles she selected for the project. (EOF No. 162-4 at 19-20.)
FOF 24: The brochure obtained by Wright describes the six components of a complete Owens Coining Roofing System, of which the shingles are one part. (EOF No. 163-12 at 15-17.) The multi-compo-nent system is described as providing “long-lasting protection.” (Id. at 15.) With respect to the shingle component of the system, the brochure states that “[plerformanee is at the heart of every Owens Coming shingle,” the shingles offer “premium protection and enduring value,” and “[a]ll Owens Coming shingles have a tough, Fiberglass mat core that has become an industry standard.” (Id, at 16,17.)
FOF 25: The brochure obtained by Wright includes, on the cover, a graphic representing a “Limited 40 Year Product Warranty.” (EOF No. 153-12 at 14.) The brochure later explains that a purchaser “automatically get[s] limited shingle warranty coverage” and can purchase a warranty with additional benefits if the complete Owens Corning Roofing System is installed. (Id. at 16.) A chart is included in the brochure that lists the “shingle warranty” for various brands of Owens Corning shingles, and the “System Warranty Non-Prorated Period” applicable to each brand if the additional system warranty is purchased. (Id. (listing shingle and system warranties for Oakridge-, Prominence-, Supreme-, Supreme Shadow-, Glaslock-, and Classic-brand shingles).) The brochure states that the “40-year warranty* covers the prorated replacement cost of new shingles and labor.” (Id. at 17 (emphasis in original).) The asterisk directs the reader to “see actual warranty for details.” (Id.)
FOF 26: No one at the retail store told Wright anything about the warranty coverage for the Oakridge-brand shingles that she selected. (ECF No. 153-10 at 8 (depo. pg. 97).)
*457 FOF 27: Wright testified that “when we bought a 40-year shingle roof, we were promised that was supposed to have been a good roof.” (ECF No. 153-10 at 5-6 (depo. pg. 43).)
FOF 28: Although Wright has documentation of the total cost of the addition to her home on which the shingles were installed in 1999, that documentation does not reflect, and she does not and never did know, what portion of the $77,500 total cost was attributable to purchasing the Oakridge-brand shingles that she picked out, as opposed to related roofing supplies, or the labor associated with installing the roof, or other aspects of the addition project. (ECF No. 153-10 at 7 (depo. pgs. 83-84); ECF No. 162-4 at 12-13,20.)
FOF 29: No later than 2009, Wright experienced water leaking around the skylights in the addition. (ECF No. 162-4 at 23-24; ECF No. 153-10 at 4 (depo. pgs. 35-36).) Owens Coming’s expert witness in the field of roofing, James Johnson (“Johnson”), attributed the leakage to improperly installed flashing around the skylights in the addition. (ECF No, 162-7 at 6.) Plaintiffs’ expert witness, Dean Rutila (“Rutila”), agreed with Johnson, testifying during a Daubert hearing that the leaking around Wright’s skylights was not caused by problems with the Oakridge-brand shingles installed on the addition. (ECF No. 139 at 34.)
FOF 30: Wright contends that a roofer who inspected the roof after she experienced the water leak in 2009 reported to her that all the shingles on her roof were cracked. (ECF No. 153-10 at 9 (depo. pg. 121).) The roofer did not tell Wright that the cracked shingles caused water to leak around the skylights in the addition. (Id.) There is no evidence that the roofer advised Wright to immediately replace, or repaii', the shingles on her roof.
FOF 31: Wright submitted a warranty claim to Owens Coming, but rejected its $3,400 offer because the roof would cost her $13,000 to replace. (ECF No. 153-10 at 10-12 (depo. pgs. 131,137,146).)
b. Facts Applicable to West
FOF 32: West had Owens Corning Oak-ridge Pro 30 shingles installed on his home, which is located in Illinois, in 2005. (ECF No. 162-6 at 8; ECF No. 153-11 at 4-6; ECF No. 153-12 at 22, 24.)
FOF 33: West selected the Oakridge-brand shingle after visiting a commercial retailer located in “Galesburg,” where he obtained a one-page flyer for “Oakridge Pro 30 Onyx Black” shingles. (ECF No, 153-11 at 4-6; ECF No. 153-12 at 24.) West instructed the contractor he had hired to replace the roof on his house to use those shingles, and the contractor purchased the Oakridge-brand shingles on West’s behalf from the Alexander Lumber Company. (ECF No. 162-6 at 9-10.)
FOF 34: West does not know how much his contractor paid for the shingles, and testified that it is not readily apparent to him from the documentation that he has from the project what portion of the total cost is attributable to the cost of the shingles, as opposed to related supplies, and labor. (ECF No. 162-6 at 11; ECF No. 153-12 at 22.)
FOF 35: West does not recall anyone at the retail store giving him information about Owens Coming’s shingles. (ECF No. 162-6 at 9.) He maintains that the only representations made to him by Owens Coming are found in the one-page flyer that he obtained at the retail store. (ECF No. 162-6 at 28-29; ECF No. 153-12 at 24.)
FOF 36: The one-page flyer that West obtained at the retail store includes a graphic representing a “Limited 30 Year Product Warranty” and, in the text, lists a “30-Year Limited Warranty,” as well as a “70-MPH Wind Resistance Limited Warranty.” (ECF No. 153-12 at 24.) The flyer emphasizes the aesthetic appeal of the shingles and states that the shingles “offer increased curb appeal and low-maintenance durability.” (Id.)
FOF 37: West testified that the shingles were not durable because they did not *458 last for 30 years. (ECF-No. 153-11 at 13.)
FOF 38: In June 2009 water began to leak into West’s family room, which is located in the back of his home. (ECF No. 162-6 at 14.) This is referred to as the “back roof’ of West’s home.
a. West personally viewed the area from inside his house and outside his house, while on a ladder, and contacted the contractor who installed the roof, who visited several days later and caulked some cracks in the roof. (ECF No. 162-6 at 15-16.)
b. An insurance adjuster later inspected the roof and opined that the leak was being caused by either faulty shingles or airflow problems. (Id. at 16-17.)
c. West also contacted Owens Corning to make a warranty claim, which claim was denied because the cracks, which were vertical cracks, were deemed to have been caused by deck movement resulting from inadequate ventilation. (Id. at 19; ECF No. 153-11 at 9-10.)
d. Johnson confirmed the presence of both deck movement and inadequate ventilation during his visual inspection of West’s roof. (EOF No. 162-7 at 7-8.) There is no indication that Rutila conducted a visual inspection of West’s home. (ECF Nos. 151-5 to-7 and 154-2.)
FOF 39: West was unaware that the middle and main roofs of his house allegedly exhibited “cracking and degranulation” until shortly before his deposition was taken for purposes of this litigation in April 2010, when he was told about the condition of his shingles by an inspector hired by plaintiffs’ counsel. (ECF No. 162-6 at 20.)
FOF 40: West’s insurance company paid him more than the actual cost of the repairs to the ceiling in his family room, which was damaged by the water leak. (ECF No. 162-6 at 23-24,30.)
FOF 41: The contractor who replaced the roof on West’s house in 2006, reshingled the back roof, which is above his family room, free-of-charge, in 2009. (ECF No. 162-6 at 21-22,30.)
FOF 42: West is not seeking to recover for any property damage to his home, but does seek to recover the cost to reshin-gle his roof. (ECF No. 162-6 at 6, 30.) West does not specify whether this includes the middle, main, or back roofs, or some combination of the same. There is no evidence that West, to date, has reshingled any part of his roof, other than the back roof.
2. The Gonzalez(TX) Case
FOF 43: On February 22, 2013, the same attorneys who were representing Wright and West before this court, filed a putative class action complaint in the United States District Court for the Southern District of Texas on behalf of Jaime Gonzalez (“Gonzalez”) and a nationwide class of individuals who owned structures on which Owens Coming’s Oak-ridge-brand shingles were installed. (ECF No. 1 ¶ 54.) Alternatively, Gonzalez sought to represent a class of individuals who owned structures located in Texas, where the structure owned by Gonzalez is located. (Id. ¶ 55.)
FOF 44: Gonzalez filed a First Amended Class Action Complaint in which he abandoned his pursuit of a nationwide class and asked the court to certify a class of “individuals and entities that have owned, own, or acquired [structures] physically located in Texas on which Owens Coming Oakridge shingles are or have been installed since 1986.” (ECF No. 23 ¶ 54 (referred to as the “Gonzalez Texas Class” in the chart that follows).)
FOF 45: Gonzalez alleges that Owens Coming’s shingles are “defectively designed and manufactured in such a way that they fail prematurely, causing damage to the underlying structures,” which defects are manifested by “cracking, curling, degranulation,” among other things. (ECF No. 23 ¶¶ 11,13.)
FOF 46: The operative complaint in the Gonzalez case is the First Amended *459 Class Action Complaint. The First Amended Class Action Complaint consists of eight counts. (EOF No. 23 at 19-28.) The legal claims asserted by Gonzalez are:
[[Image here]]
FOF 47: Gonzalez had Owens Coining Oakridge-brand shingles installed on his home, which is located in Texas, no later than 2002. (EOF No. 162-10 at 10.)
FOF 48: Gonzalez selected the Oakridge Pro 30 shingle after visiting Leyendecker Lumber with the contractor who was building his home. (EOF No. 162-10 at 12-13; EOF No. 153-11 at 26.) Gonzalez recalls seeing a promotional display at the retail store, and being given a brochure or pamphlet by a salesman, all of which he recalls reflected a warranty of a set number of years. (EOF No. 162-10 at 15-16,18, 20, 21.)
FOF 49: The salesman at Leyendeeker Lumber told Gonzalez that the Oak-ridge-brand shingles were “one of their best sellers” and “had more warranty.” (EOF No. 162-10 at 17, 19.) Gonzalez’s contractor told him that “it’s a good shingle.” (Id. at 17.)
FOF 50: Gonzalez selected the Oakridge Pro 30 shingles based upon price and length of warranty. (EOF No. 162-10 at 16, 20; EOF No. 153-11 at 20.)
FOF 51: Gonzalez testified that a shingle with a 20-year warranty, for example, “should last 20 years.” (EOF No. 153-11 at 17.)
FOF 52: Although Gonzalez testified that he saw Owens Corning commercials on television, he could not recall the content of any of those advertisements. (EOF No. 162-10 at 23-24.)
FOF 53: Gonzalez did not know the price of the shingles he purchased and could only estimate that they cost “[a] couple of thousand” dollars. (EOF No. 162-10 at 22.) He did not know what the labor cost associated with installing the shingles was. (Id. at 24.)
FOF 54: Although the documentary evidence for Gonzalez’s project includes an invoice that reflects the purchase of roofing supplies from Leyendeeker Lumber, the exhibit provided to the court is illegible. (EOF No. 166-2 at 20-21; EOF No. 153-11 at 27.)
FOF 55: In 2012, Gonzalez experienced water leaking in his garage, kitchen (which is adjacent to the garage), and master bathroom. (EOF No. 162-10 at 26; EOF No. 166-2 at 5-11.)
FOF 56: The roof over Gonzalez’s garage is stucco, or cement, and has no shingles on it. (EOF No. 162-10 at 10-11; EOF No. 162-17 at 4; EOF No. 162-21 at 2.)
FOF 57: Gonzalez’s insurance company estimated the cost to repair the damage to *460 the interior of his house, in all areas, to be approximately $6,500. (ECF No. 162-17 at 2-4; ECF No. 166-2 at 5-11.)
FOF 58: The insurer paid Gonzalez for the cost to repair the interior of his home, less a deductible. (Id; ECF No. 166-3 at 2.)
FOF 59: Gonzalez testified that the insurance adjuster told him that the insurance company would not pay for the repair or replacement of the roof because “it was bad shingles.” (ECF No. 153-11 at 24-25.)
FOF 60: The insurance adjuster’s written report, however, states that “the ridge shingles had deteriorated. The field shingles however are in perfect condition.” (ECF No. 162-21 at 2.) Hip and ridge shingles, which fold over the peaks of a roof, are not Oakridge-brand shingles. (ECF No. 162-7 at 8.) Field shingles are Oakridge-brand shingles.
FOF 61: Gonzalez’s insurance carrier further reported that the stucco roof over the garage was cracked, and there were maintenance and insulation issues with the shingled roof over the master bathroom, but there was no storm damage to the roof. (EOF No. 166-2 at 24.)
FOF 62: Johnson opined that cracks in the cement roof above the garage caused the leaking in the garage and kitchen, and that the boot flashing for the soil stack in the master bedroom was improperly installed, causing the leaking in the master bathroom. (EOF No. 162-7 at 8-9.)
FOF 63: When Rutila inspected Gonzalez’s roof for purposes of preparing his April 2014 expert report, he noted that “[sjhingle tabs are cracked and the shingles have apparent surfacing granule loss.” (EOF No. 151-5 at 12-13.) Although recognizing the fact that the one-story attached garage has a “fluid applied membrane” roof, without any shingles, Rutila makes no further distinction between the unshingled garage roof and the remainder of the roof in offering his opinions, even though Gonzalez experienced leaking in the garage and adjacent kitchen. (Id.)
FOF 64: Gonzalez submitted a warranty claim to Owens Coming, which offered a payment of $162.63, representing the prorated replacement cost for the hip and ridge shingles on Gonzalez’s roof. (ECF No. 162-17 at 3.) Gonzalez’s warranty claim submissions include only pictures of hip and ridge shingles. (ECF No. 166-2.)
FOF 65: Gonzalez rejected Owens Coming’s warranty offer, stating that the damage to his roof was quoted to be in excess of $15,000, not including the nearly $7,000 in damage to the interior of his home, which was paid for by his insurance company. (ECF No. 166-3.) There is no evidence that Gonzalez actually replaced the shingles on his roof.
FOF 66: Owens Corning directed Gonzalez to submit additional samples and photographs if shingles other than the “hip and ridge” shingles were “bad/affected.” (ECF No. 166-03 at 2.) There is no evidence that Gonzalez ever supplemented his warranty claim submission to Owens Corning.
3. The Boehm(CA) Case
FOF 67: Several days after the Gonzalez case was filed in Texas, on February 28, 2013, a subset of the same attorneys who were representing Wright and West before this court and Gonzalez before the Texas district court filed a putative class action complaint in the United States District Court for the Central District of California on behalf of Gerald Boehm (“Boehm”) and a nationwide class of individuals who owned structures on which Owens Coming’s Oakridge-brand shingles were installed. (13-ev-936, ECF No. 35-1.) Alternatively, Boehm sought to represent a class of individuals who owned structures located in California. (⅛)
FOF 68: On April 16, 2013, Boehm filed a First Amended Class Action Complaint in the California district court, in which he abandoned his pursuit of a nationwide class and asked the court to certify a class of “individuals and entities that *461 have owned, own, or acquired [structures] physically located in the state of California on which Owens Coming Oak-ridge shingles are or have been installed since 1986.” (13-CV-936, ECF No. 35-1; Boehm, et al. v. Owens Corning, et al., No. 13-0355 (C.D.Cal.), ECF No. 13 ¶ 53 (referred to as the “Boehm California Class” in the chart that follows).)
FOF 69: Boehm makes the same allegations in his complaint as did Wright, West and Gonzalez about Owens Coming’s Oakridge-brand shingles being “plagued by design flaws that result in cracking, curling and degranulation” and “causing property damage, and costing consumers substantial removal and replacement costs.” (13-cv-936, ECF No. 35-1; Boehm, et al. v. Owens Coining, et al., No. 13-0355 (C.D.Cal.), ECF No. 13 2.)
FOF 70: The operative complaint in the Boehm case is the First Amended Class Action Complaint. (13-CV-936, ECF No. 35-1; Boehm, et al. v. Owens Corning, et al., No. 13-0355 (C.D.Cal.), ECF No. 13 ¶2.) The First Amended Class Action Complaint consists of twelve counts. (13-cv-936, ECF No. 35-1; Boehm, et al. v. Owens Corning, et al., No. 13-0355 (C.D.Cal.), ECF No. 13 at 17-29.) The legal claims asserted by Gonzalez are:
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FOF 71: In 1997, Boehm had Oakridge Shadow-brand shingles installed on the roof of his home, which is located in California. (EOF No. 154-25; ECF No. 162-8 at 3.)
FOF 72: Boehm visited Ford Wholesale where he viewed samples of different brands of shingles, as well as different Owens Coming shingles with varying warranty lengths. (ECF No. 162-9 at 10, 12-13.)
FOF 73: Boehm obtained a brochure from Ford Wholesale for Oakridge Shadow-brand shingles, and drove past a house that he was told had the color shingle that he was interested in using installed on it. (Id. at 10-11,13.)
FOF 74: The brochure includes a “Limited 40 Year Product Warranty” graphic and *462 states, in the text of the brochure, that a “40-year warranty* covers the prorated replacement cost of new shingles and labor.” (ECF No. 162-8 at 6 (emphasis in original).) The asterisk directs the customer to “see actual warranty for details.” (Id.)
FOF 75: Boehm’s contractor also gave him a copy of the “Limited Warranty on Roofing Shingles,” issued by Owens Coining in November 1997. (ECF No, 162-8 at 5.)
FOF 76: Boehm testified that he understood the warranty would be “deducted for the time [the shingles were] used.” (ECF No. 162-9 at 15.)
FOF 77: Although Boehm generally recalled Owens Coming commercials that included the “pink panther,” he did not remember the content of any such advertisement, and never saw any marketing materials, other than the brochure he obtained at Ford Wholesale, before purchasing the shingles for his roof in 1997. (ECF No. 162-9 at 10,17.)
FOF 78: Boehm selected the Oakridge Shadow-brand shingles based upon “the warranty, the name [Owens Corning], and the color,” and the architectural styles (ECF No. 162-9 at 13; ECF No. 153-11 at 33.)
FOF 79: Boehm decided to purchase the Oakridge-brand shingles that were accompanied by the warranty with the longest duration because each upgrade in the number of years for which the warranty applied only cost a few hundred dollars more, and he considered “it well worth the extra 4-or $500, whatever it was, to get the higher warranty.” (EOF No. 162-9 at 12.)
FOF 80: Boehm stated “my 40-year roof that I think should probably last 40 years” and that all he wants is for his “roof to last 40 years.” (ECF No. 162-9 at 3.)
FOF 81: In 2010, a roofer who was recoat-ing a drain system and replacing flashing around several solar lights on Boehm’s roof informed Boehm that the shingles on his roof “looked like they were starting to crack.” (ECF No. 162-9 at 7-8.)
FOF 82: In February 2011, Boehm submitted a warranty claim to Owens Corning, stating that there were top surface cracks mainly on south-facing slopes, but with evidence of cracks in most other areas. (ECF No. 162-9 at 18-19; ECF No. 162-8 at 3.)
FOF 83: Owens Corning offered a payment of approximately $2,300, which Boehm rejected because he estimated that it would cost more than double that amount to replace his roof. (ECF No. 153-11 at 34-35; EOF No. 162-8 at 2.) Boehm never obtained an estimate from a contractor for the cost to replace his roof. (EOF No. 162-9 at 22.)
FOF 84: The total cost to replace the roof on Boehm’s residence in 1997 was approximately $10,000, but there is no evidence in the record about what portion of that cost was attributable to the shingles purchased from Ford Wholesale for the project. (ECF No. 153-11 at 39; ECF No. 162-8 at 4.) Even though the invoice indicates a $4,150 payment to Ford Wholesale, the invoice reflects that the payment included materials and supplies other than shingles. (ECF No. 153-11 at 39.)
FOF 85: Boehm’s house has not suffered any property damage as a result of the allegedly faulty Oakridge-brand shingles, and Boehm submits no evidence that he, to date, has replaced the shingles on the roof of his house. (ECF No. 153-11 at 35; ECF No. 162-9 at 22-23.)
4. The Maag(1L) Case
FOF 86: The last of the four cases was filed in the United States District Court for the Southern District of Illinois on March 25, 2014, on behalf of Edward and Diane Maag (the “Maags” or the “Maag Case”) and a nationwide class of individuals “that have owned, own, or acquired” structures “on which Owens Corning Oakridge shingles are or have been installed since 1986.” (14-CV-826, ECF No. 2 ¶ 68.) Alternatively, the *463 Maags proposed certification of a class of individuals “that have owned, own, or acquired [structures] physically located in the state of Illinois on which Owens Corning Oakridge shingles are or have been installed since 1986.” (Id. ¶ 69.)
FOF 87: The Maags make the same allegations in their complaint as do the other named plaintiffs about Owens Coming’s Oakridge-brand shingles being “plagued by design flaws that result in cracking, curling and degranulation” and “causing property damage, and costing consumers substantial removal and replacement costs.” (14-CY-826, ECF No. 2 ¶ 2.)
FOF 88: The operative pleading in the Maag ease is the originally-filed Complaint. The Complaint consists of ten counts. (14-cv-826, ECF No. 2 at 21-33.) The legal claims asserted by the Maags are:
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FOF 89: In 1999, the Maags had Oakridge-brand shingles installed on their home, which is located in Illinois. (ECF No. 162-14 at 14.) .
FOF 90: The Maags selected the Oakridge Shadow-brand shingle during a visit to Leo Brown Lumber because of the color availability, architectural style, and length of warranty. (ECF No. 162-16 at 7-8; ECF No. 162-14 at 14.)
FOF 91: The Maags did not obtain any brochures or speak to any salespeople during the selection process. (ECF No. 162-16 at 8-10.) They did view a display board with samples of the shingles, which indicated that certain Owens Coming shingles were “40-year warranty shingles.” (ECF No. 162-19 at 9-10.)
FOF 92: The cost of the Oakridge-brand shingles in 1999 was $3,719.40. (ECF No. 162-14 at 20.)
FOF 93: Mr. Maag stated that “a 40-year warranty seemed to me to be a warranty which would compensate for defects for 40 years.” (ECF No. 162-14 at 27.) Mrs. Maag stated that shingles with a 40-year warranty “were going to be the longest-life shingles” and “would last 40 years, like they said it would.” (ECF No. 153-12 at (44,102).)
FOF 94: Following a tomado in 2011, the Maags hired a contractor to replace a shingle that had blown off their roof. (ECF No. 162-16 at 5-6, 11-12.) The contractor informed the Maags that the shingles on their roof were cracked and that the roof would need to be replaced in the next year or so. (Id.)
FOF 95: In December 2012, a different contractor who the Maags hired to repair shingles that had blown off the roof informed the Maags that pieces of shingles were coming off the roof because the shingles were disintegrating. (ECF No. 153-12 at 43.)
FOF 96: The Maags’ home never suffered property damage as a result of shingle *464 failure. (ECF No. 162-16 at 18; ECF No. 162-14 at 24, 26.)
FOF 97: The Maags accepted a settlement payment from Owens Corning in 2013 of $6,696.63. (ECF No. 162-16 at 2-3.) The Maags used the payment to purchase new Owens Corning shingles to replace them roof, at a total cost of approximately $16,000. (EOF No. 162-16 at 3, 14; ECF No. 162-14 at 26.)
FOF 98: By accepting the settlement payment, the Maags released Owens Corning from any and all liability related to the complaint they made to Owens Coming’s Customer Response Center about them shingles. (ECF No. 162-15 at 2-3.)
5. Summary of Named Plaintiffs’ Claims
FOF 99: Each named plaintiff contends that Owens Coming’s defective Oak-ridge-brand shingles cause two kinds of harm: a) property damage, and b) removal and replacement costs. FOF 19, 45, 69, 87.
FOF 100: Of the named plaintiffs, only the structures owned by Wright, West, and Gonzalez suffered property damage. FOF 29, 38-40, 55, 58, 81-82, 85, 96.
a. Plaintiffs concur that the damage caused to Wright’s roof was not caused by faulty Oakridge-brand shingles. FOF 29.
b. There is evidence that the damages caused to West’s and Gonzalez’s structures were not caused by faulty Oakridge-brand shingles. FOF 38-40, 60-62.
c. West’s and Gonzalez’s insurance carriers paid to repair the property damage to their structures. FOF 40, 58.
FOF 101: Of the named plaintiffs, the record reflects that only West and the Maags replaced the Oakridge-brand shingles on the roof of them structures. FOF 30-31, 41, 65, 85. 97.
a. West’s contractor replaced the back roof on his structure free-of-charge. FOF 41.
b. The Maags used a nearly $7,000 settlement payment that Owens Corning made in connection with their warranty claim to purchase new Owens Corning shingles to replace the shingles on them structure. FOF 97.
C. Owens Coming’s Oakridge-Brand Shingles and Warranty Data
FOF 102: Oakridge-brand shingles are fiberglass mat shingles, which means that the mat component of the shingle is made primarily of fiberglass. When the mat is made primarily of paper or cloth, the shingle is referred to as an organic shingle. (ECF No. 165 ¶ 11.)
FOF 103: The fiberglass mat is coated with an asphalt and limestone filler mix and then colored ceramic granules are applied on top. (Id. ¶¶ 10-24.)
FOF 104: Each of the shingle components is supplied to Owens Corning by different manufacturei-s from plants located throughout the country. (Id.) The characteristics of each component will vary from plant to plant to account for climate differences, and raw materials have changed in content and performance over the last two decades. (Id.)
FOF 105: At least 23 kinds of Oakridge-brand shingles were manufactured at 13 different plants in the United States during the proposed 20-year class period. (ECF No. 151-5 at 8-9; ECF No. 165 ¶ 6.)
FOF 106: Each Owens Corning plant designs shingles to perform in the climate of the location in which that plant is located, and correspondingly, where those shingles will likely be installed. (ECF No. 165 ¶¶ 7-8).
FOF 107: Owens Corning typically distributes shingles from particular manufacturing plants to particular states. (ECF No. 165 ¶7.) For instance, the Owens Coming manufacturing plant in Portland, Oregon, supplies shingles to customers located in “geo-zones” in the Pacific Northwest, while the plant in Jacksonville, Florida, supplies shingles to customers located in Florida and *465 Latin America. (ECF No. 153-12 at 8-9; ECF No 165 ¶¶ 6-7.)
FOF 108: During the proposed 20-year class period, Owens Coming used more than 500 design specifications to manufacture Oakridge-brand shingles. (ECF No. 162-61 ¶ 34; ECF No. 165 ¶ 43; ECF No. 165-1.)
a. Each specification provides a minimum, maximum, and target measurement for square weight, a target and minimum measurement for asphalt weight and tear strength, and a target measurement for mat weight. (ECF No. 162-61 ¶35; ECF No. 165-1 at 2-15.)
b. An Owens Corning design specification for an Oakridge-brand shingle is, therefore, not a list of exact measurements to which a shingle must be manufactured, but, instead, is a collection of mínimums, máximums, and target measurements for various features of the shingle which frame the acceptable, and preferable, parameters within which to manufacture a shingle at that particular plant, at that particular time, using those raw materials that are available at that location and time. (ECF No. 162-61 ¶ 35; ECF No. 165 ¶35; ECF No. 165-1 at 2-15.)
e. How the various features of a shingle, such as its square weight, asphalt weight, tear strength, and mat weight are coordinated with and related to each other affects the quality of a shingle. (ECF No. 159 at 4, 5-6, 7, 21.) One measurement, viewed in isolation, will not define the quality of a shingle. (Id.)
FOF 109: There is no dispute that all design specifications for Oakridge-brand shingles at issue in this case meet the applicable industry standard, ASTM D3462. That standard is “designed for the evaluation of products as manufactured.” (ECF No. 139 at 23; ECF No. 151-3 at 14-18.) The ASTM standard sets mínimums for such measurements as tear strength, net mass, mat mass, asphalt mass, and mineral matter mass for newly-manufactured shingles. (ECF No. 151-3 at 15-16.) Plaintiffs’ expert concedes that the standard does not establish performance requirements for installed fiberglass shingles and does not prescribe an expected service life for a shingle. (ECF No. 151-4 at 3 (¶11).)
FOF 110: Although other warranties could have been offered, and purchased, in connection with Oakridge-brand shingles, a limited shingle warranty was automatically provided with the installation of all Oakridge-brand shingles. (ECF No. 162-51 ¶¶ 4-5, 10-12 and Table A.) During the proposed 20-year class period, the term of the limited shingle warranty varied from 25 years, to a lifetime warranty, and provided for the replacement, at a prorated cost, of shingles that contain manufacturing defects that would reduce the usable life of the shingle or affect shingle performance. (Id.)
FOF 111: Owens Corning Oakridge-brand shingles were installed on more than six million structures between 2000 and 2012. (ECF No. 166-7 at 30.)
FOF 112: Less than one half of one percent of Oakridge-brand shingle installations produced a warranty claim between 2000 and 2012. (ECF No. 166-7 at 30; ECF No. 139 at 73.) Put another way, for every 1,000 structures on which Oakridge-brand shingles were installed, fewer than 5 owners submitted a warranty claim to Owens Corning.
FOF 113: Data produced by Owens Coming in this litigation indicates that, between 1992 and 2012, nearly 30,000 warranty claims were made in connection with Oakridge-brand shingles that were produced at manufacturing plants that typically distribute shingles for installation in Pennsylvania, Illinois, California, and Texas. FOF 103-04; (ECF No. 154-24 at 5; ECF No. 153-12 at 8-9; ECF No. 154-1 ¶ 44(c).)
FOF 114: Warranty claims are occasionally denied on the basis that the shingle submitted with the claim was not manufactured by Owens Corning. (ECF No. 154-1 ¶ 44(d).)
*466 FOF 115: Owens Coming administers warranty claims on a case-by-case basis. A product quality specialist is assigned to each warranty claim that Owens Corning receives. (EOF No. 162-51 ¶25.) The warranty claim review process may include reviewing documentation and photographs, gathering information from the owner or third parties, sending an inspector to the property, or testing the returned shingles. (Id. ¶ 26.) Claims are sometimes paid solely to preserve customer goodwill. (Id. ¶ 29.)
FOF 116: Owens Corning does not maintain records that identify all owners who had Oakridge-brand shingles installed on them structures from 1992 to 2012. (EOF No. 162-51 ¶ 22.)
FOF 117: Owens Corning does not maintain records that indicate all owners who hold a limited shingle warranty. (EOF No, 162-51 ¶ 22.)
D. Owens Coming’s Representations about Oakridge-brand Shingles
FOF 118: The record reflects that purchasers receive information about Oak-ridge-brand shingles while at retail locations, such as home improvement stores and lumber yards. Specifically, purchasers obtain brochures, pamphlets, and data sheets, and view sample boards and signage at retail outlets prior to selecting Oakridge-brand shingles. FOF 23-25, 33, 35-36, 48, 72-75, 77, 90-91. Purchasers may also speak with the contractor who will be installing the new shingles and sales associates at the retail location. FOF 49.
a. Plaintiffs submit no examples of product displays or sample boards made available at the retail point of sale, which several named plaintiffs indicate they relied upon in selecting Oak-ridge-brand shingles. FOF 48, 91.
b. Plaintiffs submit no examples of product packaging or inserts that accompany Oakridge-brand shingles at the retail point of sale, or when the product is delivered to the owner, or the owner’s contractor.
FOF 119: The named plaintiffs rely upon several different categories of evidence to support their contention that Owens Corning, during the entire proposed 20-year class period, “represented that Oakridge would last the duration of the warranty,” “encouraged consumers to associate Oakridge’s warranty durations with Oakridge’s durability,” or otherwise promised that Oakridge-brand shingles would have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty. (EOF No. 178 at 10 (¶¶ 39, 41); EOF No. 162-51 at 6; EOF No. 152-1 to-12; EOF No. 153-2 to -8; EOF No. 154-21 at 2.) These categories of evidence are: (1) product literature; (2) internal Owens Coming documents and communications; (3) testimony of the named plaintiffs; and (4) Owens Coming’s limited shingle warranty. The court will separately consider the content and significance of each category of evidence in the findings of fact that follow. The court will indicate when, instead of making findings about the evidence, inferences are being drawn from the evidence, or conclusions are being reached about the sufficiency of the record. None of the evidence relied upon by the named plaintiffs supports a finding that Owens Coming promised that all Oakridge-brand shingles would not experience cracking, de-granulation, fragmentation, or deterioration for, or would have a useful life of, at least 25 years.
1. Product Literature
a. The Group Exhibit of Brochures, Pamphlets, and Flyers
i. Findings of Historical Fact
FOF 120: The named plaintiffs submitted a group exhibit comprised of six Owens Corning brochures, pamphlets, and flyers to support their assertion that Owens Coming promised that all Oak-ridge-brand shingles would not experience cracking, degranulation, fragmentation, or deterioration for, or would have *467 a useful life of, the same number of years as the length of the limited warranty. (ECF Nos. 152-1 to-12, 153-1 to - 8.)
FOF 121: Although the record reflects the dates of these brochures, ECF No. 151-1 ¶ 27 (1995, 1999, 2002, 2004, 2007, and 2009), there is no other information about where the brochures were distributed, in terms of both geographic market and kind of retail outlet, how they were distributed, or for what period of time they were distributed.
FOF 122: None of the brochures include a statement that Oakridge-brand shingles will experience no cracking, degranulation, fragmentation, or deterioration for the same number of years as the length of the limited warranty.
FOF 123: None of the brochures include a statement that Oakridge-brand shingles will not require repair or replacement for the same number of years as the length of the limited warranty.
FOF 124: Although the materials refer to Oakridge-brand shingles using words such as durable, worry-free, quality, premier, and exceptional, those words are not always used in the same context, or to convey the same meaning. (ECF Nos. 152-1 at 3 (“enduring quality”), 152-1 at 5 (“quality protection”), 151-2 at 2 (“top-quality construction”), 152-2 at 4 (“premium protection” and “premier shingle”), 152-4 at 3 (“outstanding performance”), 152-4 at 5 (“worry-free performance”), 152-5 at 3 (“exceptional performance”), 152-6 at 2 (“25 years of performance”), 152-7 at 4 and 153-6 at 2-3 (“lasting performance and protection”), 152-12 at 3 (“low-maintenance durability”), 153-8 at 3 (“durable beauty”).)
FOF 125: The same materials equally tout, and in some examples emphasize, the aesthetic appeal of Oakridge-brand shingles. [ECF Nos. 152-1 at 3 (“rugged appearance of added dimension”) ], 152-1 at 5 (“subtle look of dimension”), 152-2 at 2 (“dimension-like, random look of wood”), 152-2 at 4 (“rugged wood-look beauty” “the greatest degree of added dimension”), 152-4 at 3 (“add depth and dimension to your roof’ “rich dimensional look” “exceptional beauty”), 152-4 at 5 (“special double shadows add drama and depth to your home”), 152-5 at 2 (“nature’s richest colors and deepest shadows”) (“rich dimension”), 152-5 at 3 (“softly textured look”), 152-6 at 2, 4 (“subtle shadows create interest” and “add[ ] depth and dimension”), 152-7 at 4 (“shadow lines create a dramatic, three-dimensional effect”), 152-12 at 3 (“subtle shadows... offer increased curb appeal”), 153-1 at 4 (“a more dimensional look”), 153-2 at 2 (“a dramatic, three-dimensional look”), 153-8 at 2 (“a warm inviting look”).
FOF 126: Some brochures discuss the benefits of purchasing a multi-component Owens Corning Roofing System, ECF Nos. 152-4 to -6, 152-7 to -11, 152-12, 153-1 to -6, 153-7 to -8, while others do not, ECF Nos. 152-1 to -3, see also ECF No. 162-5 at 9; ECF No. 162-5 at 12; ECF No. 162-8 at 6. Of the brochures that discuss the roofing system, some explain that increased warranty coverage can be purchased if the roofing system is installed, EOF Nos. 152-4, see also EOF Nos. 162-5 at 9, 162-8 at 6, while others do not, ECF Nos. 152-7 to - 11,152-12,153-1 to-6,153-7 to -8.
FOF 127: In some materials the length of the limited shingle warranty is included in the name of the Oakridge-brand product, e.g., Oakridge Pro 30, ECF No. 152-4 to-6,152-7 to-11,152-12,153-1 to-6, see also ECF No. 162-5 at 12, while in other brochures the name of the shingle includes no reference to the length of the limited shingle warranty, e.g., Oakridge Shadow, ECF No. 152-1 to-3, 153-7 to-8, see also ECF No.162-5 at 9, 26-30; EOF No. 162-8 at 6. Notably, while the majority of the brochures offered into evidence by the named plaintiffs include the length of the limited shingle warranty in the name of the product, e.g., ECF No. 152-1 to-12, 153-1 to-8, the majority of marketing materials produced by Owens Coming do not include the length of the limited warranty in the name of the *468 product, e.g., ECF Nos. 162-5 at 9, 26-30,162-8 at 6.
FOF 128: Each brochure includes a graphic referencing the limited shingle warranty of a set number of years and includes information about the scope of coverage or directs the reader to see the warranty for complete details. (ECF Nos. 152-1 at 5,152-2 at 2 & 4,152-4 at 4 & 6,152-5 at 3 & 7,152-6 at 2 & 4,152-7 at 4, 152-12 at 3, 153-2 at 2, 153-3 at 3, 153-4 at 4, 153-5 at 5, 153-6 at 2 & 3.)
FOF 129: Phrases such as “worry-free” and “low-maintenance” are used in some, but not all the brochures submitted into evidence by the named plaintiffs. See e.g., ECF Nos. 152-7 to -11, 153-7 to -8.
FOF 130: “Worry-free” appears in the materials as part of phrases such as “worry-free coverage with a full 25-year warranty” and “40 years of beautiful, worry-free performance.” (ECF Nos. 152-1 at 5,152-4 at 5.)
FOF 131: The named plaintiffs identify two instances in the materials in which the phrase “low-maintenance durability” is used. (ECF No. 152-12 at 3 and 153-5 at 5; ECF No. 178 at 10 (¶ 38).)
FOF 132: Some, but not all, of the materials include references to the amount and kind of asphalt used. (ECF Nos. 155-1 to -3, 152-7 to -12.) None of the brochures, however, include a statement that Oakridge-brand shingles will not require repair or replacement or will last for the same number of years as the limited warranty because of the amount or kind of asphalt used.
FOF 133: Plaintiffs identify only one brochure, which is dated 1999, that purportedly links asphalt to the useful life of Oakridge-brand shingles. ECF No. 154-4 to-6. Three times in the brochure Oak-ridge-brand shingles are referred to as having “[_] weathering-grade asphalt for [_] yearns of [_] performance.” (Id.) For the shingles sold with a 25-year limited warranty, weathering-grade is modified by the word “quality” and the word performance is not modified. (ECF No. 152-6 at 2.). For the shingles sold with a 30-year limited warranty, weathering-grade is modified by the word “extra” and the word performance is modified by the word “exceptional.” (ECF No. 152-5 at 3.). For the shingles sold with a 40-year limited warranty, weathering-grade is modified by “the most” and the word performance is modified by the phrase “beautiful, worry-free.” (ECF No. 152-4 at 5.)
ii. Inferences Drawn From, and Sufficiency of, the Evidence
FOF 134: The group exhibit of brochures, pamphlets, and flyers, in which certain words or phrases are used in only some specimens, cannot be the basis for any reasonable inference about the content and consistency of Owens Coming’s marketing activities, between 1992 and 2012, in Pennsylvania, Illinois, California, and Texas.
FOF 135: The group exhibit of brochures, pamphlets, and flyers does not support any reasonable inference that Owens Corning represented that Oakridge-brand shingles will last for at least 25 years, or for the same number of years as the length of the limited warranty.
FOF 136: Owens Coming does not use words such as “quality,” “premier,” “worry-free” or “low-maintenance” consistently in the group exhibit of brochures, pamphlets, and flyers.
FOF 137: When words such as “worry-free,” “low-maintenance,” appear in the group exhibit of brochures, pamphlets, and flyers they do not equate to a representation that all Oakridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, as plaintiffs contend. (ECF No. 178 at 10 (¶ 38).)
a. In both examples identified by plaintiffs in which the phrase “worry-free” is used, a connection is made between the absence of worry and Owens Coming’s limited shingle warranty. A limited warranty, which according to *469 Owens Coming’s literature, provides for payment of replacement costs, and sometimes labor, for faulty shingles, is something that would ease an owner’s worry or concern. Such statements assure the owner that if the shingles need repair or replacement during the warranty period, Owens Corning, and not the owner, will bear the cost. Statements about the security provided by a warranty are not a promise that the shingles will not need repair or replacement for the length of the warranty. That interpretation is actually counterintuitive.
b. Regardless, even if statements about shingles being “worry-free” could arguably be characterized as representations that the shingles will not crack, degranulate, fragment, or deteriorate or will not need repair or replacement for the length of the warranty, the record includes only these two isolated statements, made in brochures dated prior to 2000, and distributed in unknown geographical locations and through unspecified distribution methods. Plaintiffs identify no other use of such phrases in the record, ECF No. 178 at 10 (¶ 38), and the court could locate none in the exhibits filed in support of plaintiffs motion for class certification.
c. Plaintiffs proffer no evidence about what the phrase “low-maintenance” means to a purchaser of roofing shingles and provide no basis for this court to infer that “low-maintenance durability” equates to a representation that an Oakridge-brand shingle will last for at least 25 years, or for the same number of years as the limited shingle warranty.
d. Like the “worry-free” statements identified by plaintiffs, these “low-maintenance” statements are also isolated when viewed in the context of the breadth of the proposed class definitions.
FOF 138: References in the group exhibit of brochures, pamphlets, and flyers to the amount or quality of asphalt do not equate to a representation that all Oak-ridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, as plaintiffs contend. (ECF No. 178 at 10 (¶ 40).)
a. In the single brochure relied upon by plaintiffs, Owens Corning does not make any uniform or consistent representation about the effect that asphalt has on the useful life of a shingle. Although the shingles sold with the 30-and 40-year limited warranties reflect an increase in the amount of asphalt being used (from “extra” to “the most”), the performance is described as going from “exceptional” to “beautiful, worry-free,” not from exceptional to the best, or superior, performance. As such, the brochure does not suggest a direct correlation between the amount of asphalt used, and the level of performance.
b. Some brochures indicate that although different amounts of asphalt are used, the performance stays the same. (ECF Nos. 153-5 at 5) (“durable weathering-grade asphalt shingles bonded together with tough Fiberglas mat core for lasting performance and protection,”) ECF No. 153-6 at 2 {“extra weathering-grade asphalt shingles bonded together with tough Fiberglas mat core for lasting performance and protection,” 153-6 at 3 (“premium weathering-grade asphalt shingles bonded together with tough Fiberglas mat core for lasting performance and protection”) (emphasis added in each).)
c. As with other words and phrases identified by plaintiffs in Owens Coming’s marketing materials, the discussion of asphalt on which plaintiffs rely appears in one brochure, dated prior to 2000, which is an isolated example.
FOF 139: Plaintiffs offer no legal authority to support their crucial contention that phrases such as “exceptional,” “worry-free,” “low-maintenance,”: and “lasting” qualify as actionable representations *470 even though this legal contention is not without dispute. See Cheatham v. ADT Corp., 161 F.Supp.3d 815, 827 , No. 15-2137, 2016 WL 540832, at *9 (D.Ariz. Feb. 11, 2016) (claim that a security system provides “worry-free living” is puffery); Gold v. Lumber Liquidators, Inc., No. 14-5373, 2015 WL 7888906 , at *6-7 (N.D.Cal. Nov. 30, 2015) (statements about “high quality” or “high performance” are non-actionable puffery under California consumer protection statutes); Peruto v. TimberTech Ltd., 126 F.Supp.3d 447, 451-52 , 457-59 & n. 10 (D.N.J.2015) (finding phrase “designed to provide years of low-maintenance use and enjoyment” to be “puffery as a matter of law”); Elias v. Hewlett-Packard Co., 950 F.Supp.2d 1123, 1131-34 (N.D.Cal.2013) (statements about computer being “ultra-reliable” or “higher performance” were non-actionable puffery under California consumer protection statutes); Rochester Laborers Pension Fund v. Monsanto Co., 883 F.Supp.2d 835, 882 (E.D.Mo.2012) (statement about “exceptional performance” constituted inactionable puffery under federal securities laws); ConsulNet Computing, Inc. v. Moore, No. 04-3485, 2007 WL 2702446 , at *10 (E.D.Pa. Sept. 12, 2007) (promise that a website will “alleviate ’worry”’ is “mere puffery”); Hercules Machinery Corp. v. McElwee Bros., Inc., No. 01-3651, 2002 WL 31015598 , at *5 (E.D.La. Sept. 9, 2002) (“top quality” is a “classic example of puffery”).
b. The Named Plaintiffs Exhibits
i. Findings of Historical Facts
FOF 140: Three of the named plaintiffs produced copies of brochures or flyers that they saw before deciding to purchase Oakridge-brand shingles in support of their claims. Plaintiffs attached two of these items to their motion papers. (ECF Nos. 153-12 at 14-18 (Wright), 24 (West).) The court could only locate the last item in the papers filed by Owens Corning. (ECF No. 162-8 at 6-7 (Boehm).) The three specimens are dated 1997,1998, and 2005.
FOF 141: Boehm’s brochure, which is from approximately 1997, stresses the architectural style of the shingles, and states that they “feature the rugged look of wood, premium protection and enduring value,” and offer maximum protection from the elements due to “the most weathering-grade asphalt available and our tough Fiberglass mat construction.” (ECF No. 162-8 at 6.) The brochure includes a graphic depicting a “40 year limited product warranty.” (Id.) The text of the brochure states that the “40-year warranty* covers the prorated replacement cost of new shingles and labor” and instructs the reader to “see actual warranty for details.” (Id.)
FOF 142: Wright’s brochure, which is dated 1998, differs from Boehm’s brochure in that it emphasizes the benefits of purchasing an entire Owens Coming Roofing System, which is comprised of six parts, only one of which is the shingles. (ECF No. 153-12 at 14-18.) With respect to the shingle component of the roofing system, the brochure includes statements about premium protection, enduring value, the most weathering-grade asphalt, and a tough fiberglass mat. (Id. at 17.) The brochure includes a graphic depicting a “40 year limited product warranty.” (Id.) The brochure states that the “40-year warranty* covers the prorated replacement cost of new shingles and labor” and instructs the reader to “see actual warranty for details.” (Id.) Wright’s brochure, however, unlike Boehm’s brochure, offers a detailed comparison of the warranty periods, both prorated and non-prorated, for the limited shingle warranty as compared to the enhanced roofing system warranty, and explains that the latter warranty must be separately purchased. (Id. at 16.)
FOF 143: West’s 2005 flyer, unlike Boehm’s and Wright’s brochures, is only one page. It states that Oakridge-brand shingles offer increased curb appeal, low-maintenance durability, and a 30-year limited warranty*. (ECF No. 153- *471 12 at 24.) There are no statements about asphalt, the fiberglass mat, premium protection, or enduring value. The focus of the flyer is almost entirely on the aesthetic appeal of the shingles.
FOF 144: The promotional displays viewed by Gonzalez and the Maags at the retail outlet, and the brochure given to Gonzalez are not available for the court’s review. FOF 48, 91.
ii. Inferences Drawn from, and Sufficiency of, the Evidence
FOF 145: Rather than being probative of Owens Coming’s allegedly uniform representations that all Oakridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, the named plaintiffs’ materials include no such statements and demonstrate a general lack of consistency in Owens Coming’s product literature.
FOF 146: There is no basis, based upon the record before the court, to infer that the materials seen by Gonzalez and the Maags would have included any uniform representations about the useful life of Oakridge-brand shingles. As will be discussed in the findings of fact that follow, the only reasonable inference supported by the record is that these items likely included references to a limited shingle warranty of a set number of years. FOF 128.
2. Owens Coming’s Internal Documents and Communications
a. Findings of Historical Fact
FOF 147: The named plaintiffs submit various internal Owens Coming documents and communications to support their assertion that Owens Corning promised that all Oakridge-brand shingles would have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty. (ECF Nos. 153-9 at 3, 154-20, 154-21 at 2, 154-22 at 2,154-23 at 2,165-2 at 5; ECF No. 178 at 9 (¶ 35) and 10 (¶¶39, 41-43).)
FOF 148: The “Residential Roofing Technical Training Manual,” is more than 200-pages long, is dated 1995, ECF No. 165-2 at 5, and was used in 1998, ECF No. 165 at 11.
a. Plaintiffs cite to a single page of this 200-page document. (ECF No. 178 at 10 (¶ 41) (citing ECF No. 154-4 at 5); ECF No. 165-2 to-4.)
b. The page provides information about shingle warranties in general, including that they always cover manufacturing defects only and that even without manufacturing defects shingles eventually “wear out by losing granules to the point of looking bad,” but is not specific to Oakridge-brand shingles. (ECF No. 165-2 at 60.)
FOF 149: The presumed television commercial script is undated and proffered without any explanation about when it was drafted and when, if ever, it was created and broadcast. (ECF No. 178 at 10 (¶ 39)); (ECF No. 154-21 at 2.)
a. It appears that the script submitted into evidence is not a complete copy as the dialogue seems to end abruptly, which discounts its evidentiary significance. (ECF No. 154-21 at 2.)
b. Plaintiffs truncate the passage they quote from the script. The actual statement in the script is that “[ejqually important [as aesthetics], with a 30-year Limited Warranty and a 70-miles-per-hour Wind Resistance Limited Warranty, I know they’re durable.” (ECF No. 154-21 at 2.) Plaintiffs delete the reference to the ■wind resistance warranty in their proposed findings. (ECF No. 178 at 10 (¶ 39).)
FOF 150: “The Architect’s Roofing Answer Book” is dated 1996. Plaintiffs proffer no evidence that the book was used at any other time during the proposed 20-year class period. (ECF No. 178 at 10 (¶ 39)); (ECF No. 153-9 at 3-5.)
a. The answer book discusses Owens Coming’s “full complement of roofing *472 products” and nowhere refers specifically to Oakridge-brand shingles.
b. The book does not appear on its face to have been created for, or distributed to, the end purchaser of roofing shingles. It instead is directed at architects and builders, seemingly to encourage them to recommend, or use, Owens Coming's shingles on their projects. Plaintiffs offer no evidence to show the contrary.
c. The statement that plaintiffs excise from the book, and rely upon in their proposed findings of fact and conclusions of law, is taken out of context. Plaintiffs assert that the book states: “[T]he longer the warranty, the better the shingle.” (ECF No. 178 at 10 (¶ 39).) In the book, that statement is preceded by the word “Generally” and followed by an explanation that the warranty is prorated for both replacement costs and labor.
FOF 151: The 2006 Owens Corning Consumer Roofing Market Structure/Segmentation Study-upon which plaintiffs rely-reflects that warranties are not synonymous with durability and does not prove that purchasers equate durability with warranties when selecting shingles. (ECF No. 178 at 9 (¶ 35); ECF No. 154-20.) The study lists durability and warranty as the top two concerns when selecting roofing materials. (ECF No. 154-20 at 4.)
FOF 152: The August 23 and 24, 2006 email chain indicates that “Rob” [Dae-nen] and Bert Elliott “put together a first pass” at answering certain questions raised during two presentations about residential roofing products. (ECF No. 154-22 at 2.)
a.Plaintiffs provide no information about who attended those presentations and asked the identified questions, or under what circumstances “an Owens Coming employee” suggested these answers. (ECF No. 178 at 10 (¶ 42).) There is no indication that the suggested answers are Owens Coming’s “final” answers, or that the suggestions are made with any authority to speak on behalf of Owens Corning.
b. In any event, the suggested answers merely explain that some purchasers select an Oakridge-brand shingle with a 50-year warranty because it is a higher number than the 30-year warranty and that some contractors push a 50-year warranty in higher-end neighborhoods. (ECF No. 154-22 at 3.)
c. The suggested answers also discuss the terms and benefits of Owens Coming’s new lifetime warranty product. (Id.)
FOF 153: In a second email chain, which is dated January 26, 2011, plaintiffs contend that Owens Coming’s “quality director” agrees with another employee’s statement that “warranty enhancements are always due to following our competition.” (ECF No. 178 at 10 (¶ 43).)
a. As an initial matter, the employee makes various statements to which the alleged director responds, “You got it.” (ECF No. 154-23 at 2.) It is impossible, without further explanation, to determine with which statement, or statements, the director is agreeing.
b. In any event, even accepting plaintiffs’ characterization of the email as correct, a statement that Owens Corning changes its warranty terms in order to match what competitors offer is innocuous and is not probative that Owens Coming promised that all Oak-ridge-brand shingles would have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty.
b. Inferences Drawn from, and Sufficiency of, the Evidence
FOF 154: The single page from the training manual cannot support a reasonable inference that Owens Coming represented that all Oakridge-brand shingles would have a useful life of at least 25 *473 years, or for the same number of years as the length of the limited warranty, because it is not specific to Oakridge-brand shingles and only discusses shingle warranties generally. FOF 148.
FOF 155: The television commercial script cannot support a reasonable inference that Owens Corning represented that all Oakridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, because it is undated and incomplete and submitted without any information about where, if ever, it was broadcast, which are significant evidentiary deficiencies given that the proposed class definition includes owners located in four states over a period of twenty years. FOF 149.
FOF 156: The television commercial script cannot support a reasonable inference that Owens Coming represented that all Oakridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, because the script does not, as plaintiffs imply, associate the limited shingle warranty, standing alone, with the durability of Oakridge-brand shingles. FOF 149.
FOF 157: The architect’s answer book cannot support a reasonable inference that Owens Coming represented that all Oakridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, because it is not addressed specifically to Oakridge-brand shingles and is not directed to the ultimate purchaser of shingles. FOF 150.
FOF 158: The market study cannot support a reasonable inference that Owens Corning represented that all Oakridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, because the study identifies durability and warranty as two separate features. In other words, the study demonstrates that consumers want materials to last long (durability), and, if for some reason they do not, they want to be compensated for any repairs or replacement (warranties). Instead of proving that the length of a warranty and the useful life of a product are equivalent, as plaintiffs contend, the study is evidence that the two characteristics were separate, albeit related, features. FOF 151.
FOF 159: The two email chains cannot support a reasonable inference that Owens Corning represented that all Oak-ridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, because they are proffered without further explanation and contain no statements that are probative of promises that Owens Coming made to purchasers about the useful life of Oak-ridge-brand shingles. FOF 152-53.
3. The Named Plaintiffs’ Testimony
a. Findings of Historical Fact
FOF 160: Plaintiffs cite to the deposition testimony of the named plaintiffs in support of their contention that “consumers consistently believed that Oakridge shingles would last the duration of the warranty.” (ECF No. 178 at 11 (¶ 44).)
FOF 161: Only four of the six named plaintiffs, however, testified that they believed that Oakridge-brand shingles should last for the same number of years as the length of the limited shingle warranty. (ECF No. 153-11 at 13 (West— shingles should last 30 years “if that’s what they’re warranted”); ECF No. 153-11 at 17 (Gonzalez — shingle “should last 20 years” because “[i]t says it’s a 20-year warranty”); ECF No. 153-11 at 31-33 (Boehm — “my 40-year roof that I think should probably last 40 years”)); (ECF No. 153-12 at 36 (Mrs. Maag-shingles with a 40-year warranty would “last 40 years, like they said it would”).)
FOF 162: Wright testified that she thought that a “40-year shingle roof.. .was supposed to have been a good roof.” (ECF No. 153-10 at 5.)
FOF 163: Mr. Maag testified that the 40-year warranty on the Oakridge-brand *474 shingles “seemed to me to be a warranty which would compensate for defects for 40 years.” (ECF No. 153-12 at 50-51.) Although plaintiffs do not cite to this testimony, Mrs. Maag testified that shingles with a 40-year warranty would “last 40 years, like they said it would.” (ECF No. 153-12 at 36; see ECF No. 178 at 11 (¶ 45).)
b.Inferences Drawn from, and Sufficiency of, the Evidence
FOF 164: Even the testimony of the six named plaintiffs does not reflect that purchasers consistently equated the length of the limited shingle warranty with the useful life of Oakridge-brand shingles, FOF 161-63.
FOF 165: Mrs. Maag’s testimony demonstrates that two individuals who own the same structure on which Oakridge-brand shingles are installed can have different understandings of what Owens Coming’s limited shingle warranty provides or promises. FOF 163.
4. The Limited Warranty on Oakridge-brand Shingles
a. Findings of Historical Fact
FOF 166: A limited warranty is automatically provided with the installation of Oakridge-brand shingles. FOF 25, 110.
FOF 167: The record reflects that the shingle warranty is always modified by the word “limited,” and is almost always followed by either an explanation of the scope of coverage or an asterisk that directs the reader to see the actual warranty for complete details and limitations. FOF 25, 36, 74,128,141-43.
FOF 168: Contrary to plaintiffs’ assertion, Owens Corning did not always incorporate the length of the limited warranty into the name of the product throughout the proposed 20-year class period. FOF 127.
FOF 169: The record reflects that although a limited shingle warranty was always provided in connection with Oak-ridge-brand shingles, the same warranty does not apply to every Oakridge-brand shingle manufactured during the proposed 20-year class period.
a. Owens Corning offered at least nine different warranties between 1992 and 2012. (ECF No. 162-51 ¶ 4.)
b. The limited shingle warranty is only one kind of warranty that Owens Corning offered. (Id.)
c. Other warranties include the Platinum Promise Limited Warranty, the Tru-Proteetion Preferred Limited Warranty, and the System Advantage Roofing Limited Warranty. (Id.)
i. The prerequisites to coverage, and scope of coverage, differ with respect to each of these warranties. (Id. ¶¶ 4-9.)
ii. Some enhanced warranties require payment of an additional fee to obtain coverage. (Id. ¶¶ 4-17; ECF No. 162-39 at 4-5.)
d. The limited shingle warranties offered by Owens Corning between 1992 and 2012 differ in terms of, for example, length of coverage, transferability, coverage for labor and tear-off, coverage for installation defects, proration, and coverage for conditions such as algae and wind. (ECF No. 162-39, 162-51 to-60; ECF No. 162-51 ¶¶ Ilia)
i. By way of example, during the first seven years of the class period, warranties on Oakridge-brand shingles were nontransferrable. (ECF No. 162-61 ¶ 19.)
ii. After 1999, however, warranties on Oakridge-brand shingles could be transferred one time, but only if a small payment was made and a warranty transfer card was submitted to Owens Corning. (H. ¶¶ 19-22.)
iii. During the proposed 20-year class period, the length of the limited shingle warranties varied from 25, 30, 40, and 50 years. (ECF No. 162-51 at 6-6 (¶ 10 and Table A).)
*475 iv. In 2011, Owens Coming instituted a lifetime warranty on all Oakridge-brand shingles. (Id. at 6 (Table A); ECF No. 154-22 at 3.)
e. The limited shingle warranties offered between 1992 and 2012 contain explicit limitations on the availability of alternative legal remedies, implied warranties, and consequential damages. These provisions are not identical: for example, some limited warranties purport to entirely exclude implied warranties, ECF No. 162-53 at 37, 40, while others purport to only limit the duration of any implied warranties, ECF No. 162-53 at 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29. Some limited shingle warranties indicate that their terms can be changed without notice, ECF No. 162-53 at 31. All limited shingle warranties acknowledge that limitations may be prohibited by law in some states, e.g., ECF No. 162-53 at 3,19, 29,31, 40.
b. Inferences Drawn From, and Sufficiency of, the Evidence
FOF 170: Plaintiffs’ fundamental proposition that the limited shingle warranties qualify as a representation that all Oak-ridge-brand shingles will have a useful life of at least 25 years, or will last for the same number of years as the length of the limited warranty is contradicted by the record because the warranties are explicitly described as being limited, which denotes restrictiveness, not comprehensiveness. FOF 167.
FOF 171: Plaintiffs’ fundamental proposition that the limited shingle warranties qualify as a representation that all Oak-ridge-brand shingles will have a useful life of at least 25 years, or will last for the same number of years as the length of the limited warranty is contradicted by the record because the length of the warranty is not always incorporated into the name of the Oakridge product. FOF 168.
FOF 172: Plaintiffs’ fundamental proposition that the limited shingle warranties qualify as a representation that all Oak-ridge-brand shingles will have a useful life of at least 25 years, or will last for the same number of years as the length of the limited warranty is contradicted by the record because the terms, conditions, and limitations of the limited warranties were not the same throughout the proposed class period. FOF 169.
FOF 173: Plaintiffs offer no legal authority to support their crucial contention that Owens Coming’s limited shingle warranty qualifies as a representation that all Oakridge-brand shingles will have a useful life of the same number of years as the length of the limited warranty, even though this legal contention is not without dispute. In re IKO Roofing Shingles Prod. Liab. Litig., No. 2:09-md-2104 (C.D.Ill. Jan. 28, 2014) (ECF No. 338 at 35-36 (citing 1/28/2014, 4/12/2013, and 4/15/2013 decisions)); see Brooks v. GAF Materials Corp., 301 F.R.D. 229, 233 (D.S.C.2014) (recognizing, but finding inapplicable, the IKO MDL court’s findings); In re HardiePlank Fiber Cement Siding Litig., 12-md-2359, 2014 WL 2987657 , at *3 (D.Minn. June 30, 2014) (“An advertisement’s reference to a formal limited warranty does not, on its own, create a new informal promise that the product will last for a certain amount of time.”); Rasmussen v. Apple Inc., 27 F.Supp.3d 1027, 1035 (N.D.Cal.2014) (the purpose of a warranty is to contractually mark the point in time when the risk of paying for repairs shifts from the manufacturer to the consumer); Keegan v. Am. Honda Motor Co. Inc., 838 F.Supp.2d 929, 940-41 (C.D.Cal.2012) (same); Sears, Roebuck and Co. v. Tyco Fire Products LP, 833 F.Supp.2d 892, 899 (N.D.Ill.2011) (stating that under Texas law, an explicit statement must be made about the useful life of a product in order to assert warranty coverage on that basis).
FOF 174: Under all the circumstances and based upon this record, the limited warranties referenced in Owens Coming’s product literature cannot be reasonably *476 characterized as affirmative representations that Oakridge-brand shingles will have a useful life of at least 25 years, or for the same number of years as the length of the limited shingle warranty.
5. Ultimate Factual Findings: Representations about Oakridge-brand Shingles
FOF 175: The record does not support a factual finding that Owens Corning “represented that Oakridge would last the duration of the warranty,” “encouraged consumers to associate Oakridge’s warranty durations with Oakridge’s durability,” or otherwise promised that Oak-ridge-brand shingles would have a useful life of at least 25 years, or for the same number of years as the length of the limited warranty, as plaintiffs contend.
FOF 176: The record does not support a factual finding that Owens Coming represented that Oakridge-brand shingles would not need to be repaired or replaced for at least 25 years, or for the same number of years as the length of the limited warranty.
FOF 177: The record does not support a factual finding that Owens Corning represented that Oakridge-brand shingles would not experience any cracking, de-granulation, fragmentation, or deterioration for at least 25 years, or for the same number of years as the length of the limited warranty.
FOF 178: The record does not support a factual finding that Owens Corning represented that Oakridge-brand shingles would not experience excessive cracking, degranulation, fragmentation, or deterioration, beyond ordinary wear and tear, for at least 25 years, or for the same number of years as the length of the limited warranty.
FOF 179: The record does not support a factual finding that Owens Corning represented that a roof on which Oakridge-brand shingles are installed would not leak for at least 25 years, or for the same number of years as the length of the limited warranty.
FOF 180: The record does not support a factual finding that Owens Corning represented that a roof on which Oakridge-brand shingles are installed would not cause property damage for at least 25 years, or for the same number of years as the length of the limited warranty.
E. Design Defect
1. Findings of Historical Fact
FOF 181: According to plaintiffs, all Oak-ridge-brand shingles manufactured “from 1992 to 2012 (except those manufactured in Atlanta and Memphis) are defectively designed because Owens Coming’s specifications allow Oakridge to be manufactured at or near minimums for asphalt mass and tear strength” making them “susceptible” and “vulnerable” to cracking, premature deterioration, and failure. (ECF No. 178 at 3 (¶¶ 6,8-9).)
a. The Expert Opinion of Dean Rutila
FOF 182: Plaintiffs retained Simpson Gumpertz & Heger, an engineering firm, to investigate alleged problems with Owens Coming’s Oakridge-brand shingles and to provide expert opinions about the causes of the alleged failures of those shingles. (EOF No. 151-5 at 5.)
FOF 183: Mr. Dean Rutila (“Rutila”), a Senior Principal with Simpson Gumpertz & Heger and a civil engineer, was the individual responsible for the investigation. (EOF No. 151-5 at 4.)
FOF 184: Rutila “performed detailed laboratory documentation and testing on 298 shingle samples” that were returned to Owens Corning with a warranty claim. (EOF No. 151-5 at 6, 12, 19; ECF No. 139 at 38.) These shingle samples have been referred to as the “warranty shingles” in these proceedings.
FOF 185: It appears that Rutila also visually inspected approximately 700 shingle samples that were returned to Owens Corning with a warranty claim, but did *477 not conduct laboratory testing on them. (ECF No. 151-5 at 6,12; ECF No. 139 at 100.)
FOF 186: The warranty shingles were removed from structures after installation and weathering and sent to Owens Corning in connection with a claim being made pursuant to one of Owens Coming’s warranty programs. FOF 184. After processing and administration, the warranty shingles were stored by Owens Corning in a warehouse in Toledo, Ohio, for some time before Rutila studied them. (ECF No. 151-5 at 6.)
FOF 187: Rutila tested the warranty shingles to determine whether they met the standards set forth in ASTM D3462, using the ASTM test methods listed in D3462, all of which are designed to evaluate newly-manufactured products. (ECF No. 151-5 at 19-20; ECF No. 151-3 at 15-17 (referring to ASTM Test Methods D1922 and D228).)
FOF 188: Although Rutila claimed that he also tested a limited number of unused shingles obtained from some of the named plaintiffs, ECF No. 151-5 at 19, that data was not included in Rutila’s expert report, ECF No. 126 at 49.
FOF 189: Rutila reviewed Owens Coming’s warranties and warranty claim documents, industry standards and literature, and tested the warranty shingles in order to determine the causes of the alleged problems with Oakridge-brand shingles. (ECF No. 151-5 at 5, 9.) Rutila opined that: (1) the shingles have excessive granule loss because they are designed to meet the minimum mass of asphalt, which is inadequate to retain the mass of granules applied; and (2) the shingles are designed at minimum tear strengths, with fiberglass mats designed to meet the minimum standard for mat mass, which results in cracking. (Id. at 6-7.)
i. Owens Coming’s Daubert Motion
FOF 190: Owens Coming filed a motion challenging the admissibility of Rutila’s opinions. (ECF No. 92.) This court has a duty to evaluate and weigh expert testimony at the class certification stage. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 602 (3d Cir.2012).
FOF 191: At the Daubert hearing held on Owens Coming’s motion, the court expressed various general concerns with the admissibility of Rutila’s testimony, including that his testing appeared to suffer from an inherent selection bias, in that all the shingles Rutila tested were returned to Owens Coming in connection with a warranty claim, which indicates some level of dissatisfaction with the product, and appeared to be statistically insignificant, in that Rutila tested fewer than 300 shingles out of the millions of shingles manufactured during the proposed class period. (ECF No. 126 at 42-43.) The court continued the Dau-bert hearing, and ordered the parties to submit additional briefing about these, and other, issues. (Id. at 48-49; 1/21/15 Minute Entry.) Plaintiffs were instructed to produce Rutila to be questioned at the continued Daubert hearing.
FOF 192: At the continued Daubert hearing, plaintiffs conceded that Rutila’s testing would become irrelevant if Owens Coming stipulated that it manufactured all Oakridge-brand shingles within the parameters of the written design specifications it produced during discovery in this litigation. (ECF No. 139 at 6, 12-27.) Owens Coming agreed to this stipulation. (Id.) The court later clarified that Owens Corning did not stipulate, and the record would not support a finding, that all Oakridge-brand shingles were manufactured at the minimum measurements set forth in Owens Coming’s design specifications, but only that all shingles were manufactured somewhere within the parameters established by the various minimum, maximum, and target measurements set forth in Owens Coming’s design specifications. FOF 108; (ECF No. 139 at 63.)
FOF 193: After Owens Corning stipulated that it manufactured all Oakridge-brand shingles during the proposed 20-year class period within the parameters es *478 tablished by the various minimum, maximum, and target measurements set forth in its design specifications, the court ruled that Rutila could not rely upon the testing he conducted on the warranty shingles for any reason. (ECF No. 139 at 6, 25-27; ECF No. 159 at 3.) This ruling dispensed with the need for Rutila to demonstrate that his testing of the warranty shingles was statistically significant, unbiased, or otherwise reliable.
a. The court did not hear testimony or argument, and made no rulings, regarding the statistical significance or reliability of Rutila’s testing of the warranty shingles. The court described Rutila’s testing of the warranty as irrelevant and inadmissible. (ECF No. 139 at 26, 27; ECF No. 159 at 3.) For this reason, the Supreme Court’s recent decision in Tyson Foods, Inc. v. Bouaphakeo, — U.S. —, 136 S.Ct. 1036 , 194 L.Ed.2d 124 (2016), discussing the admissibility of representative evidence in class and collective actions cases is inapposite.
b. Rutila admitted at the continued Dau-bert hearing that his testing of the warranty shingles suffered from selection bias. (ECF No. 139 at 104.)
c. The court specifically explained that Rutila’s testing of the warranty shingles could only become relevant if Owens Coming were to attack his credibility on the ground that he had never seen an Oakridge-brand shingle, in which ease he could refer to his testing to prove otherwise. (ECF No. 139 at 24-27; ECF No. 159 at 3.)
d. Even in the rebuttal situation described above, however, the court explained that the validity and statistical significance of Rutila’s testing would not be relevant. (ECF No. 139 at 24-25, 95.) The testing would only demonstrate Rutila’s general familiarity with Oakridge-brand shingles.
e. Under these circumstances, the court finds plaintiffs’ suggestion in their proposed findings of fact and conclusions of law, ECF No. 178 at 4 n.l, that Owens Coming has opened the door to the admission of Rutila’s testing by arguing that Rutila cannot prove that all Oakridge-brand shingles suffer from a common design defect to be wholly inappropriate.
i. The court unambiguously explained that Rutila’s testing of the warranty shingles was inadmissible for this exact purpose. (ECF No. 139 at 24-27, 76-78,80,109.)
ii. The court explicitly held that Rutila would not be permitted to testify, based upon his testing of the warranty shingles, that all (or even most or many) Oakridge-brand shingles were manufactured at the allegedly-defective minimum design specification measurements. (ECF No. 139 at 110.)
iii.Following the court’s Daubert ruling, plaintiffs were tasked with proving their design defect claim by way of evidence other than Ru-tila’s testing of the warranty shingles. Owens Coming’s contention that plaintiffs failed to meet that burden does not “open the door” to the admission of Rutila’s testing to prove plaintiffs’ design defect claim. Plaintiffs’ argument is both circular and specifically prohibited by this court’s Daubert ruling.
ii. Rutila’s Post -Daubert Opinion
FOF 194: Rutila now contends that because Owens Coming’s design specifications allow or permit shingles to be manufactured “at or near” industry mín-imums for asphalt mass, mat mass, and tear strength, all Oakridge-brand shingles are “susceptible” and “vulnerable” to premature failure. (Id (¶¶ 6, 7, 9).) According to Rutila, a design specification that allows some Oakridge-brand shingles to be manufactured at higher measurements that will admittedly produce a longer-lasting shingle (“high-end shingles”), and some to be manufactured at lower measurements that will produce *479 a shingle that will not last more than 20 years (“low-end shingles”) is a defective design specification. (ECF No. 139 at 31, 82; see ECF No. 173 at 57-58 (describing an owner’s possession of “high-end shingles” as winning the “shingle lottery”).)
a. Rutila testified that not all Oakridge-brand shingles will be manufactured at the low-end of Owens Coming’s design specifications. (ECF No. 139 at 81.)
b. Rutila testified that he cannot determine whether a particular shingle was manufactured at the “high-end” or the “low-end” of a design specification without examining the roof, or a shingle removed from the roof. (ECF No. 139 at 32-33.)
c. Rutila offers no opinion about where, between the lower and the higher measurements set forth in Owens Coming’s allegedly defective design specifications, a shingle crosses the line and becomes defective.
i. Although Rutila testified at the continued Daubert hearing that a nondefec-tively designed shingle would have an asphalt mass of 20 to 23 pounds per shingle square, a net weight of 215 to 230 pounds per shingle square, and a mat mass right around 1.5 pounds per 100 square foot, ECF No. 139 at 41-42, the only measurement that Rutila could substantiate was the 1.5 pounds per 100 square foot mat mass, ECF No. 139 at 46-47, ECF No. 159 at 4, 21. The court ruled that Rutila could testify only about that measurement. (ECF No. 159 at 21-22.)
ii. The court ruled that Rutila would be permitted to testify, as a general proposition, but without reference to specific measurements (other than mat mass), that the inter-relationship and coordination between asphalt mass, net weight, and mat mass affects the performance and reliability of a shingle. (ECF No. 159 at 4, 5-6, 7, 21.)
d. Rutila testified that even if a shingle is manufactured in accordance with what he considered to be a defective design specification, he cannot testify about how long any particular shingle will last or whether any particular shingle will experience excessive granule loss or cracking during the term of a warranty. (ECF No. 139 at 33.)
e. Rutila testified that some shingles manufactured within the parameters of Owens Coming’s design specifications will last more than 20 years. (ECF No. 139 at 33, 93.)
f. Rutila testified that a shingle manufactured at the higher measurements set forth in Owens Coming’s design specifications will last 30 years. (ECF No. 139 at 33-34; 162-3 at 14.)
g. Rutila testified that an Oakridge-brand shingle manufactured at the low-end of Owens Coming’s design specifications will not last more than 20 years. (ECF No. 139 at 76-77, 81, 91; ECF No. 159 at 3.)
FOF 195: Although the court ruled that Rutila would be permitted to testify that low-end Oakridge-brand shingles would not last more than 20 years, plaintiffs offer no evidence to establish what proportion of Oakridge-brand shingles were manufactured as low-end shingles during the proposed 20-year class period. (ECF No. 139 at 76-77, 81, 91; ECF No. 159 at 3-)
a. Rutila offers no admissible opinion about what proportion of Owens Corning Oakridge-brand shingles were manufactured at or near the minimum design specifications for tear strength, mat mass, or asphalt weight.
i. This court ruled that any opinion based upon Rutila’s testing of the warranty shingles was not admissible. FOF 192-93. Although the court did not need to address the myriad defects in Rutila’s testing in reaching that ruling, some flaws include that:
a. Rutila’s sample size was only 300 shingles out of the millions of shingles *480 manufactured during the proposed class period. FOF 111, 184,191.
b. All shingles that were tested were sent to Owens Coming with a warranty claim, which is indicative of some level of dissatisfaction and product failure. FOF 184.
c. Rutila’s testing does not readily account for the differing conditions in which the shingles were in use prior to being sent to Owens Corning with a warranty claim.
d. Rutila tested the warranty shingles pursuant to an industry standard “designed for the evaluation of products as manufactured” which explicitly states that “[plhysical and performance requirements after application and during in-service use of the products described herein are beyond the scope of this material specification.” FOF187; (ECF No. 151-3 at 14.)
ii. Even if Rutila’s testing of the warranty claim shingles was admissible, Ru-tila, in his expert report, states that the “testing demonstrates that the mass of asphalt, mass of fiberglass felt and mass of surfacing are near is [sic] at or below minimum for approximately half of the 286 shingles with this data.” (ECF No. 151-5 at 21 (§ 6.1).)
b. Plaintiffs proffer no other evidence that is probative of the quantity of Owens Corning Oakridge-brand shingles that were manufactured as low-end shingles between 1992 and 2012. FOF 205-16.
FOF 196: Rutila testified that granule loss and cracking on a shingle can be caused by conditions other than a defective design specification, such as, for example, improper installation, poor ventilation, foot traffic, poor maintenance, and ordinary wear and tear. (ECF No. 139 at 33, 36-39; ECF No. 162-3 at 5, 8, 10, 12, 13, 15.)
a. Rutila testified that these conditions could cause a shingle to fail regardless of the design specification to which it was manufactured. (Id.)
b. Rutila testified that all shingles experience ordinary wear and tear, which will include granule loss, but that “excessive” granule loss is indicative of a defect. (ECF No. 139 at 33.)
c. In the context of this testimony, plaintiffs’ reliance in their proposed findings of fact and conclusions of law to Rutila’s eonclusory statement ruling out any other causes for degranulation or cracking of Oakridge-brand shingles for the entire proposed class period, and an industry article about the effects of ventilation on roofs, are not persuasive evidence to the contrary. (ECF No. 178 at 7 (¶¶ 26-27 (citing ECF No. 151-5 at 25 and ECF No. 151-9 at 2)).)
FOF 197: Rutila testified that he could not determine the cause of a roofing leak without seeing the roof. (ECF No. 139 at 33-34.)
FOF 198: Owens Coming’s expert witness James S. Johnson (“Johnson”) testified that different kinds of shingle cracks are caused by different factors. For example, a spidei’-web-like crack is distinguishable from a vertical crack, the latter of which is typically caused by deck movement or improper ventilation. (ECF No. 162-7 at 10.)
FOF 199: Johnson testified that not all shingle cracks are an indicator of imminent shingle failure. In this circumstance, a surface crack is distinguishable from a crack that is deep enough to compromise the shingle’s ability to adequately shed water. (Id.)
FOF 200: In addition to the insufficient asphalt mass and insufficient mat mass/ tear strength design defect theories proffered by Rutila in his original expert reports and testimony, Rutila advances a new design defect theory in plaintiffs’ proposed findings of fact and conclusions of law, i.e., that Owens Coming’s design specifications are defective because they allow an excessive amount of filler to be added to the asphalt. FOF 203. Before proceeding to analyze the record evi *481 dence in support of each of these three design defect theories, however, the court makes the following general findings.
a. The reference in plaintiffs’ proposed findings of fact and conclusions of law to the Atlanta and Memphis plants, ECF No. 178 at 3 (¶ 6), indicates that plaintiffs persist in their attempts to rely upon Rutila’s testing of the warranty shingles, despite the court’s Daubert rulings precluding that reliance.
i. Rutila excluded these two plants from his written expert opinions because warranty shingles from those two manufacturing plants were not available to him for testing. (ECF No. 151-4 at 6 (¶ 21(d)); ECF No. 151-5 at 11 (chart), 15 (§ 5.3.1.).)
ii. This court ruled during Daubert proceedings that Rutila cannot base his opinions on his testing of the warranty shingles. FOF 192-93.
b. Rutila offers his design defect opinions, which purport to apply to all Oakridge-brand shingles produced for the proposed 20-year class period, even though he “only [saw] Owens Corning specification ’targets’ for 2000 through 2012.” (ECF No. 178 at 2 (¶ 5); ECF No. 151-4 at 5 (¶ 21(b)); ECF No. 165-1 (design specifications from 1993 to 2012).)
c. Rutila never defines the point at which the measurements in Owens Coming’s design specifications go from being nondefective to defective for any of his three design defect theories. FOF 194(c).
d. Rutila never quantifies what proportion of Oakridge-brand shingles were manufactured as low-end shingles, under any of his three design defect theories, during the proposed 20-year class period, and, in fact, his testing of the warranty shingles, although inadmissible, indicates that allegedly defective shingles were produced only about half of the time. FOF 195(a).
FOF 201: Despite pointed and extended questions from the court at oral argument, ECF No. 173 at 91-99, plaintiffs offer no legal authority to support their theory that admittedly nondefective products can, nevertheless, be considered defectively designed if a design specification establishes a range of measurements, some of which will produce defective products and some of which will produce nondefective products, especially where, as here, plaintiffs failed to identify where within the range of measurements the design crosses the line from producing nondefective products to producing defective products or to quantify how often defective products, versus nondefective products, were produced, even though this legal contention is seemingly novel, illogical, and contrary to the weight of authority. Reyes v. Netdeposit, LLC, 802 F.3d 469, 485 (3d Cir.2015) (the standard is not whether it is mathematically or scientifically possible that one of the telemarketing firms used by defendants did not engage in the allegedly wrongful conduct, but whether plaintiff established that it is more likely than not that the telemarketing firms used by defendants engaged in the allegedly wrongful conduct); In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 847 (6th Cir.2013) (plaintiffs established that all Duet-brand washing machines were built to designs with “nearly identical engineering” that differed only in the machines’ size and aesthetics and expert witness opined that a common defect, failure to self-clean the tub, was present in all machines regardless of slight design differences); Marcus, 687 F.3d at 602-03 (expert witness testified, after reviewing “thousands of pages of specifications” that all tires, regardless of model or size, are substantially similar in construction and all tires manifest the same defective characteristic, i.e., extra stiffness); Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1172 (9th Cir.2010) (same design defect, i.e., a geometry defect in vehicle’s alignment, was present in each class member’s car); Pel *482 la Corp. v. Saltzman, 606 F.3d 391, 391 (7th Cir.2010) (all ProLine casement windows were designed to allow water to seep behind aluminum casing, which accelerated wood rot); Martin v. Ford Motor Co., 292 F.R.D. 252, 256-59, 267 (E.D.Pa.2013) (class action involved only “second generation” “rear twist beam axle,” which was manufactured by one company for fewer than five years); Brunson v. Louisiana-Pacific Corp., 266 F.R.D. 112, 114, 119 (D.S.C.2010) (all trimboard suffered from same manufacturing defects that made it rot, warp, and crack prematurely); Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21, 23, 28 (D.Mass.2003) (hosing used in radiant floor heating system was defectively designed causing oxidation, hardening, cracks, and eventually, leaks; testing and other evidence confirmed presence of defect in all hosing).
(a) Design Defect #1 — Insufficient Quantity of Asphalt
FOF 202: The first design defect identified by plaintiffs is that Owens Coming used insufficient quantities of asphalt for the amount of granules being applied to the shingles, causing the excessive granules to fall off, which degrades shingle performance. (ECF No. 151-4 ¶ 22(d); ECF No. 151-5 at 6, 21; ECF No. 151-6 at 4-5, 7-8; ECF No. 178 at 3 (¶ 6) and 5 (¶ 12).)
a. Granules, which are usually ceramic, are applied to the surface of a shingle after the fiberglass mat has been coated with an asphalt/filler mixture. (ECF No. 165 at 7 (¶19).) The granules are what provide color to the shingle. (Id. at (¶ 20).)
b. Rutila’s original expert report and supplemental declaration both identify this “insufficient quantity of asphalt” design defect as the cause of degranulation of Oakridge shingles. (ECF No. 151-5 at 6; ECF No. 151-4 at 6 (¶ 22).)
c. Plaintiffs specifically contend that “Owens Coming’s design specifications for Oakridge are defective because they allowed asphalt mass to be at or close to the 16 pounds-per-square foot minimum, but that [such an] asphalt mass is not sufficient to adhere mineral mass [granules] to the shingle.” (ECF No. 178 at 5 (¶ 12 (citing Rutila’s report, deposition, and Daubert hearing testimony)).)
i. Although testifying that the asphalt mass can only be deemed insufficient in relationship to the granule mass and other measurements, FOF 194(c)(ii), Rutila does not identify what amount of granule mass is appropriate if asphalt mass is at or close to 16 pounds-per-square foot. (ECF No. 139 at 30-31; ECF No. 151-8 at 6-6.)
ii. Although the court prohibited Rutila from relying upon the specific measurements to which he testified at the continued Daubert hearing because he produced no documentation or support for them, FOF 194(c)(i), plaintiffs, nevertheless, cite to Ruti-la’s testimony about these numbers to support this design defect theory. (ECF No. 178 at 5 (¶ 12) (citing ECF No. 139 at 29-33).) This is improper and such evidence will not be considered.
in. The record includes no evidence establishing how much granule mass is appropriate if asphalt mass is at or close to 15 pounds-per-square foot.
iv. The record includes no evidence establishing what shingle mass and mat mass is appropriate if asphalt mass is at, or close to, 15 pounds-per-square foot, so that granule mass can be calculated by subtracting asphalt mass and mat mass from shingle mass to arrive at granule mass.
(b) Design Defect #2 — Insufficient Quality of Asphalt
FOF 203: At oral argument and in plaintiffs’ proposed findings of fact and conclusions of law, plaintiffs advanced a new *483 asphalt-based design defect theory: de-granulation occurs because Owens Corning uses design specifications that allow the filler content of the asphalt to be at or above 66%. (ECF No. 173 at 62-63; ECF No. 178 at 5-7 (¶¶ 13-24).) In other words, plaintiffs now identify “insufficient quality of asphalt” as a design defect that causes Oakridge-brand shingles to degranulate. (ECF No. 178 at 9 (¶34).)
a. Filler is a stabilizer that is mixed with the asphalt before being applied to the fiberglass mat. (ECF No. 165 at 6-7 (¶¶ 16-17,19).)
b. Under ASTM D3462 the maximum filler permitted is 70% of the asphalt mixture. (ECF No. 151-3 at 16.) Under ASTM D3462, a shingle manufactured with a filler content of 66% falls within acceptable industry standards.
i. The Owens Corning design specification data offered into evidence reflects that the maximum filler percentage is always below 70%, the industry standard. (ECF No. 170-2 at 2-17.)
ii. The Owens Corning design specification data offered into evidence reflects that target filler percentage is typically at 67% or less. (Id.) The historic averages for all Owens Coming design specifications offered into evidence reflect target filler of 65.9% and a maximum filler of 67.1%. (Id. at 17.)
iii. None of the evidence propounded by plaintiffs contradicts these facts. (ECF No. 178 at 5 (¶¶ 14-16).)
c. There is no evidence in the record, expert or otherwise, that a design specification that sets filler content at 66% or higher is a defective design.
i. Rutila never proffered an opinion in a written expert report, during his deposition, or at the Daubert hearing that a specification that sets filler content above any particular percentage, including 66%, is a design defect,
a.The only reference to “filler percents [sic]” in Rutila’s submissions is a single paragraph in the declaration he filed in opposition to Owens Coming’s Daubert motion. (ECF No. 154-2 at 7 (¶ 23) (citing EOF No. 154-3).) The declaration refers to an internal Owens Coming report, dated January 5, 1995, that summarizes testing conducted “at the Houston roofing plant” in 1994 “primarily aimed at the Oak-ridge II product line.” (ECF No. 154-2 at 7 (¶23) (citing ECF No. 154-3 (“the Houston Report”)).)
(i) According to Rutila, the Houston Report concluded that filler percentages were too high and asphalt content too low for the Oakridge II product to last 25 years. (ECF No. 154-2 at 7 (¶ 23); see ECF No. 139 at 55 (testifying, at continued Daubert hearing, about this report).)
(ii) Rutila does not opine in any written report, based upon the Houston Report, or any other evidence, that a design specification with filler content set at 66%, or any particular percentage, is a defective design.
(iii) The court never ruled that Rutila could proffer an expert opinion that a design specification with filler content set at or above 66% was defective. FOF 182-200.
ii. The Houston Report, to which Rutila cites, does not state that a design specification that allows filler content to be 66% is defective. (ECF No. 178 at 6-7 (¶¶ 19-20, 24).)
a. The Houston Report recognizes, generally, that a correlation can exist between filler percentage and shingle performance. (ECF No. 154-2 at 4.)
b. The Houston Report recommends a specific reduction in filler percentage for one line of lightweight Oakridge-brand shingles, but explains that filler percentages could not be reduced on “heavy weight” Oakridge-brand shingles because face-to-face sticking increased as a result. (ECF No. 154-3 at 7.)
c. Owens Coming’s Materials Engineer Leader for the Roofing and Asphalt *484 Division explains that “technology and raw materials for the manufacture of Oakridge shingles have changed significantly since this report was written in 1995.” (ECF No. 165 ¶38.)
d. The Houston Report evidences an isolated issue, expeiienced at one point in time more than twenty years ago and in one manufacturing plant in connection with one kind of Oakridge-brand shingle.
iii. The internal and industry documents to which plaintiffs cite in their proposed findings of fact and conclusions of law do not state that a design specification setting filler content at or above any particular percentage, including 66%, is defective.
a. As stated above, the Houston Report does not state that a filler percentage at, or in excess of, 66% constitutes a design defect. FOF 203(c)(i) - (iii)(a); (ECF No. 178 at 5-7 (¶¶17, 19-20, 24).)
b. The 1993 article from the 10th Conference on Roofing Technology, states that “increasing filler percentages does not materially improve shingle performance,” but does not state that a filler percentage at any specific level is a design defect. (ECF No. 178 at 5 (¶ 13).) The article does not identify any particular filler percentage as being acceptable or unacceptable. The article does not discuss Owens Corning or Oakridge-brand shingles specifically. In addition, the article is outdated given the advances in material composition and technology in the shingle industry. (ECF No. 165 at 12 (138).)
e. The internal Owens Corning communications and presentations about the cost of asphalt do not indicate that a filler percentage at, or in excess of, 66% constitutes a design defect. (ECF No. 178 at 5-6 (¶¶ 17-18).)
(i) The internal discussions are sporadic.
(ii) The internal discussions reject certain production options on the basis of cost, but do not indicate that the selected, less-expensive, options constitute design defects.
b) The internal emails from 2006 and 2009, which consider adjustments to filler percentages at particular plants to address specific quality control issues, do not state that a filler percentage at, or in excess of, 66% constitutes a design defect. (ECF No. 178 at 6 (¶¶ 21, 2

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8776111. Public record. Not legal advice.