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In re Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and Products Libaility Litigation

United States District Court, D. South Carolina, Charleston Division

December 12, 2016




         This matter is before the court on defendant Pella Corporation's (“Pella”) motion to exclude the expert testimony of Michael Louis (“Louis”), Daniel Clark (“Clark”), and Andrew Faulkner (“Faulkner, ” together with Louis and Clark, the “SGH Experts”) of Simpson, Grumpertz, and Herger (“SGH”). For the reasons set forth below, the court grants Pella's motion.

         I. BACKGROUND

         The plaintiffs in this consolidated multi-district litigation are owners of certain Pella Architect Series and Designer Series Windows manufactured between 1997 and 2007 (the “Windows”). Plaintiffs allege that the Windows suffer from a common defect resulting in damage to the Windows and adjoining walls. ECF No. 135, Pls.' Resp. 8-9. On the basis of these allegations, plaintiffs filed multiple actions in separate jurisdictions, which have been referred to this court for coordinated or consolidated pretrial proceedings. ECF No. 1, MDL Panel Consolidation Order.

         Plaintiffs identified the SGH Experts[1] as expert witnesses pursuant to Federal Rule of Evidence 702 and provided a report (the “SGH Report”) detailing the SGH Experts' opinions. The SGH Experts opine that the Windows suffer from a defective “water management system” which contains numerous “leakage paths”[2] that allow water to penetrate into vulnerable areas of the Windows. See ECF No. 38-1 in Case No. 2:14-cv-3307, Dilly Mot. to Certify Class 2. Specifically, the SGH Experts contend that the Windows suffer from: (1) water leakage between the sash and the frame due to insufficient compression of the frame gasket; (2) sealant failure in the sash glazing pocket; and (3) sealant failure in the frame corner. Pls.' Resp. Ex. 1, SGH Report 83. The SGH Experts further opine that the wood treatment used to protect these and other areas of the Windows is insufficient. Id.

         The SGH Experts base these opinions on data collected through site inspections, destructive testing, water testing, visits to Pella manufacturing plants, and a review of Pella documents and industry literature. Id. at 2. During their site inspections, the SGH Experts viewed 477 Windows, documented the interior and exterior conditions of 336 Windows, and observed the conditions of the wood sash components outboard of the frame gasket of 252 Windows. Id. at 51, 52; Pls.' Resp. 9. The SGH Experts observed the internal condition of the Windows through destructive testing. SGH Report at 56-66.

         The SGH Experts conducted two types of water tests: (1) a “spray rack test, ” where water was sprayed on the outside of the Windows while a sealed vacuum was placed on the inside of the Windows to simulate wind driven rain; and (2) a “nozzle test, ” where a narrow stream of water was sprayed onto isolated portions of the Windows. Id. at 52, 53. The SGH Experts conducted spray rack tests on 45 Windows from 13 homes, finding some form of leakage in 67% of the tested Windows, and conducted nozzle tests on 53 Windows from 11 homes, finding some form of leakage in 91% of the tested Windows. Id. at 54.

         The SGH Experts also visited a number of Pella manufacturing plants, where they noted inconsistencies in Pella's manufacturing processes, particularly with respect to the wood treatment application process. Id. at 54-55. They also evaluated Pella's compliance with WDMA I.S.-4 (“IS-4”), an industry standard for wood treatment performance published by the Window and Door Manufacturers Association (“WDMA”). Id. at 73-83.

         Pella filed the instant motion on December 14, 2015, arguing that the opinions contained in the SGH Report were not admissible under Rule 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). ECF No. 129. Plaintiffs filed a response on January 14, 2016, ECF No. 135, and Pella filed a reply on January 29, 2016. ECF No. 142. The court held a hearing on the matter on September 8, 2016. Plaintiffs filed a letter supplementing certain issues discussed at the hearing on September 30, 2016.[3] The matter is now ripe for the court's review.

         II. STANDARD

         Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         The proponent of an expert witness's testimony bears the burden of proving that such testimony meets the requirements of Rule 702 by a preponderance of evidence. Daubert, 509 U.S. at 592 n. 10. District courts serve as gatekeepers for expert testimony, and carry a “special obligation” to ensure that expert testimony is reliable and relevant. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The court must therefore ensure that an expert's testimony is based on “scientific knowledge, ” and “will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 U.S. at 592. The first inquiry asks “whether the reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-93. Several nondispositive factors should be considered in determining the reliability of a particular scientific theory or technique: whether it (1) can be and has been tested; (2) has been subjected to peer review and publication; (3) has a known or potential rate of error; and (4) has attained general acceptance in the pertinent scientific community. See id. at 593-94. These factors are not exclusive; what factors are relevant to the analysis “depend[] upon the particular circumstances of the particular case at issue.” Kumho Tire, 526 U.S. at 150. In conducting the reliability inquiry, the focus “must be solely on principles and methodology, not on the conclusions that they generate.” Id. at 595.

         The second inquiry “goes primarily to relevance.” Id. at 591. Relevance is determined by ascertaining whether the testimony is sufficiently tied to the facts of the case such that it will aid the jury in resolving a factual dispute. Id. at 593. “A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702, Advisory Committee's Note to 2000 Amendments. “Daubert did not work a ‘seachange over federal evidence law, ' and ‘the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.'” Id. (quoting United States v. 14.38 Acres of Land Situated in Leflore Cnty., 80 F.3d 1074, 1078 (5th Cir. 1996)).


         Pella advances several arguments against the admission of the SGH Experts' opinions. First, Pella argues that the SGH Experts' leakage opinions are based on flawed testing and insufficient data. Def.'s Mot. 14-19, 28-30. Pella also challenges the SGH Experts' qualifications to opine on the sufficiency of the Windows' wood treatments, and again argues that the methodology underlying such opinions does not support the SGH Experts' conclusions. Id. at 24-25, 31. Finally, Pella argues that the SGH Experts' opinions should be excluded because they engaged in the spoliation of evidence. Id. at 31. The court finds that the instant motion can be resolved on the basis of the SGH Experts' methodology and qualifications, and therefore, declines to address the spoliation issue.

         A. Testing Procedures

         Pella argues that the SGH Experts' opinions are unreliable because the SGH Experts did not look into potential alternative causes of the Windows' damage-such as installation errors, construction defects, or condensation-and based their opinions on flawed testing. Id. at 15-17. Plaintiffs argue that the SGH Experts' investigation and testing were conducted in accordance with the American Society for Testing and Materials (“ASTM”) standard for “[e]valuating [w]ater [l]eakage of [b]uilding [w]alls, ” Standard E2128 (“ASTM E2128”), and that compliance with this standard evinces their reliability. Pls.' Resp. 22-23.

         A failure to consider potential alternative causes may render an expert's testimony inadmissible. See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 265 (4th Cir. 1999) (requiring expert to provide some explanation for discounting a proposed alternative cause). However, an expert need not “rule out every potential cause.” In re Fosamax Prod. Liab. Litig., 647 F.Supp.2d 265, 278 (S.D.N.Y. 2009) (quoting Israel v. Spring Indus., 2006 WL 3196956, at *5 (E.D.N.Y. Nov. 3, 2006). Daubert simply requires that an expert “address obvious alternative causes and provide a reasonable explanation for dismissing specific alternate factors identified by the defendant.” Id. (quoting Israel, 2006 WL 3196956, at *5). If an expert meets this threshold, then the failure to investigate potential alternative causes simply affects the weight of the evidence. Westberry, 178 F.3d at 265 (“The alternative causes suggested by a defendant ‘affect the weight that the jury should give the expert's testimony and not the admissibility of that testimony, ' unless the expert can offer ‘no explanation for why she has concluded [an alternative cause offered by the opposing party] was not the sole cause.'” (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 156-57 (3d Cir. 1999)).

         Here, there is some evidence in the record suggesting the SGH Experts wholly ignored possible alternative causes and began their investigation assuming that the Windows leaked. See Pls.' Resp. Ex. 3, Louis Dep. 176:16-19 (stating that SGH was not hired to evaluate “issues outside of the window itself”). Plaintiffs claim that the SGH Experts focused their investigation on a defect-related leakage theory only after conducting preliminary visual inspections, which revealed stains and other wood deterioration associated with leakage. Id. at 151:15-19 (explaining that “whenever we've seen that damage, the staining and damage on the windows, we've always associated that with leakage”). But Louis admits that leakage is not the only possible cause of wood staining and it is impossible to determine the cause of wood staining simply by viewing the stain itself. Id. at 151:21-152:2, 154:14-16. Thus, it is questionable whether the SGH Experts' observations of wood staining provide a “reasonable explanation for dismissing” alternative causal factors. In re Fosamax, 647 F.Supp.2d at 278 (quoting Israel, 2006 WL 3196956, at *5). One might argue that the SGH Experts' failure to directly investigate such alternatives is enough to preclude their testimony, regardless of whether the water testing was flawed. However, given Louis's knowledge and experience in the area of window leakage and design, the court will assume, without deciding, that the observed wood stains provide at least a reasonable justification for the SGH Experts' decision to focus their investigation on possible defect-related leakage.

         But even this rather generous assumption does not put the issue of alternative causes to rest. The court must consider the SGH Experts' treatment of alternative causes in their investigation as a whole. Kumho Tire, 526 U.S. at 150 (recognizing that Daubert's “gatekeeping inquiry must be ‘tied to the facts' of a particular ‘case'” (quoting Daubert, 509 U.S. at 591)). Because it is impossible to determine the specific cause of wood staining by simply viewing the stain itself, Louis Dep. 151:21-152:2, 154:14-16, the SGH Experts must rely on more than visual observations to support their conclusion that defect-related leakage, and not some other mechanism, such as improper installation or construction defects, caused the observed wood staining and deterioration. The SGH Experts offer the water tests as additional support for their leakage theory, explaining that these tests were designed to “recreate observed water stains and trace leakage paths reported by the homeowners.” SGH Report 52. Of course, simply “recreating” the staining, without more-i.e. showing it is theoretically possible to expose the damaged portions of the Windows to water through the alleged “leakage paths”-does very little to elevate the SGH Experts' defect-theory above other potential causes. It is not enough under Daubert to show that leakage is a possible cause of the Windows' damage, the SGH Experts must justify their conclusion that it is the most probable cause. This demands a showing of probability, not possibility.

         ASTM E2128 solves this problem by placing certain constraints on the investigative testing protocol in an attempt to identify the actual cause of the leakage or other water infiltration. The standard contemplates investigative testing as a means of “verify[ing] and extend[ing] a hypothesis arrived at during the document review and inspection phases.” ASTM E2128 § 10.1. The “primary purpose” of this testing “is to recreate leaks that are known to occur, ” and compare these recreations to evidence of the actual leaks, such as wood staining. Id. § But the standard makes it clear that these recreations “should simulate the actual conditions under which leakage has been observed.” Id. § 10.2.1. “Testing at an environmental exposure level that the building has never experienced and has little likelihood of experiencing may lead to incorrect conclusions.” Id. § 10.2.2. These constraints strengthen the inferences that can be drawn from these recreations by tying them to the facts of the case. Showing that the Windows will leak under a given set of conditions undeniably provides some support for the assertion that the Windows leaked in a particular case, but the more the tested conditions differ from the conditions the Windows actually experienced, the more likely it is that the testing does not replicate the Windows' actual performance. On the other hand, the more the tested conditions “simulate the actual conditions under which leakage has been observed, ” id. § 10.2.1, the more confident one can be that the results are representative of the Windows' actual performance. Put simply, to the extent the SGH Experts' testing failed to recreate actual conditions, it failed to examine whether the Windows possess the propensity to leak under the facts of this case. Thus, the constraints imposed by ASTM E2128 are necessary to reduce the analytical gap between the SGH Experts' testing and their conclusions. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”).

         Pella argues that the air pressures used in the spray rack tests and the volume of water used in the nozzle tests subjected the Windows' to unrealistic conditions. Def.'s Mot. 3-6. Plaintiffs contend that the testing protocols they utilized are permitted under ASTM E2128. Pls.' Resp. 23-24. Regardless of whether plaintiffs' contention is true, it is deceptive. ASTM E2128 is a general standard that outlines a systematic approach to investigating the cause of wall leaks and the principles that should guide that investigation. ASTM E2128 § 5.1. The standard is not exclusively used to diagnose leakage in windows; it is broad enough to apply to any leakage in an “exterior wall, ” which it defines as “a system [that includes] its exterior and interior finishes, fenestration, structural components and components for maintaining the building interior environment.” Id. § 1.1. Unsurprisingly then, ASTM E2128 does not outline precise instructions that can be mechanically applied in all investigations, but instead relies on the investigator to exercise judgment in tailoring the investigation to the case. Id. § 4.1.2 (recognizing that “all activities may not be applicable . . . for a particular evaluation program”); Id. § 10.2.8 (recognizing that “[d]iagnostic testing can [] be adapted from in-service quality assurance testing procedures such as [ASTM] ¶ 1105”). Thus, the fact that the SGH Experts did not deviate from the wide range of testing protocols available under ASTM E2128 is unremarkable. The more important inquiry is whether the SGH Experts' methodology complied with the standard's general directives-particularly, the directive to conduct investigative testing under conditions that the product is likely to have actually experienced. ASTM E2128 §§ 10.2.1, 10.2.2.

         1. Spray Rack Testing

         The SGH Experts' spray rack tests applied 5 gallons of water per square foot per hour to the outside of the Windows in accordance with a separate standard, ASTM E1105, and applied air pressure of up to 100% of the Windows' “standard test pressure”-a magnitude of air pressure derived from the manufacturer's performance rating.[4] ASTM E1105 sets out the general procedures for conducting spray rack testing. Def.'s Mot. Ex. 5, ASTM E1105 § 1.2. Although ASTM E1105 is a “quality assurance” test, used for evaluating compliance with specific performance standards rather than actual performance, ASTM E2128 provides for the use of ASTM E1105 testing in a diagnostic setting, but explicitly requires that such testing be “adapted” for diagnostic purposes.[5] ASTM E2128 § 10.2.7. As discussed above, diagnostic testing must account for the actual conditions the product experienced. See ASTM E1105 § 10.2.1.

         Pella argues that the SGH Experts' use of the Windows' standard test pressure was inappropriate, given the spray rack tests' diagnostic purpose. Def.'s Mot. 4-5. The SGH Experts conducted the spray rack tests at zero pressure, one-third of the Windows' standard test pressure, two-thirds of the standard test pressure, and the full standard test pressure. SGH Report 52-53. ASTM E1105 does not explicitly provide any guidance on the appropriate air pressure to apply, but a separate organization, the American Architectural Manufacturing Association (“AAMA”), has developed several standards which provide guidelines on the specific application of ASTM E1105 in various contexts. See Def.'s Mot. Exs. 6-9. Pella highlights two of these standards, AAMA 502[6] and AAMA 511, to argue that the SGH Experts' use of the Windows' standard test pressure was unreliable. The SGH Experts' spray rack testing protocols are most analogous to AAMA 502, which calls for the use of the same standard test pressure scale applied in this case. See Clark Dep. 8:6-20 (acknowledging that the two-thirds standard test pressure is found in AAMA 502). AAMA 502 was designed to verify performance of newly installed products, AAMA 502 § 1.1, while AAMA 511 was designed specifically to guide professionals in adapting existing testing standards for diagnostic purposes under ASTM E2128. AAMA 511 § 2.1. Thus, AAMA 511 is clearly the more reliable standard to apply in this case.[7] ...

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