United States District Court, D. South Carolina, Charleston Division
IN RE PELLA CORPORATION ARCHITECT AND DESIGNER SERIES WINDOWS MARKETING, SALES PRACTICES AND PRODUCTS LIBAILITY LITIGATION.
C. NORTON UNITED STATES DISTRICT JUDGE
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.
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
identified the SGH Experts 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” 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.
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.
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.
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.
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. The matter is now ripe for the
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
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
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)).
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.
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.
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)).
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.
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.
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. §
10.1.1.3. 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.”).
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 §§
Spray Rack Testing
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. 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. 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.
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 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. ...