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

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

August 24, 2017




         This matter is before the court on plaintiffs' motion to alter or amend the court's December 12, 2016 order (“Order”) granting 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”).[1] For the reasons set forth below, the court denies plaintiffs' 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 at 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.

         Plaintiffs identified the SGH Experts as experts in the field of engineering and produced a report detailing the SGH Experts' opinions in this case (the “SGH Report”). In that report, the SGH Experts opine 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. ECF No. 135-1, SGH Report at 83. The SGH Experts further opine that the wood treatments used to protect these and other areas of the Windows are insufficient. Id. The SGH Experts base these opinions on data collected through site inspections, water testing, destructive testing, visits to Pella manufacturing plants, and a review of Pella documents and industry literature. Id. at 2. Much of the debate in this matter centers on the SGH Experts' water tests. The SGH Experts conducted two types of water tests: (1) “spray rack tests, ” in which 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) “nozzle tests, ” in which a narrow stream of water was sprayed onto isolated portions of the Windows. SGH Report at 56-66.

         On December 14, 2015, Pella filed a motion to exclude the SGH Expert's testimony pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). ECF No. 129. Pella argued that: (1) the SGH Experts' opinions were based on flawed testing and insufficient data; (2) the SGH Experts were not qualified to opine on the Windows' wood treatments, and that their wood treatment opinions were based on unreliable methodology; and (3) the SGH Experts' opinions should be excluded due to their spoliation of evidence. Id. at 14-19, 24, 25, 28-31. In response, the plaintiffs pointed to the SGH Experts' qualifications and their reliance on certain industry standards governing the investigation of water leakage-particularly, American Society for Testing and Materials (“ASTM”) standard E2128-as assurances of their methodological reliability. ECF No. 135 at 12-18, 23-24. The court ruled that: (1) the SGH Experts' inspections were not enough to sustain their opinions; (2) the SGH Experts' spray rack tests and nozzle tests did not comply with ASTM E2128; (3) plaintiffs had failed to explain how the SGH Experts reliably extrapolated from their observations to find a product-wide defect; (4) the methodology underlying the SGH Experts' wood treatment opinions was not reliable; and (5) the SGH Experts were not qualified to render an opinion on the sufficiency of Pella's wood treatment. ECF No. 171.

         On January 17, 2017, plaintiffs filed the instant motion to alter or amend the Order pursuant to Federal Rule of Civil Procedure 59. ECF No. 176. Pella responded on February 16, 2017, ECF No. 179, and simultaneously filed a motion to strike previously undisclosed affidavits and testimony that were filed alongside plaintiffs' motion. ECF No. 180. Plaintiffs filed a reply in support of their motion to alter or amend, ECF No. 181, and a response to Pella's motion to strike on March 2, 2017. ECF No. 183. Pella filed a reply in support of its motion to strike on March 9, 2017. ECF No. 184. The motions are now ripe for the court's review.

         II. STANDARDS

         A. Motion to Alter/Amend

         While Rule 59(e) does not provide a standard under which a district court may alter or amend a judgment, the Fourth Circuit has recognized that a court may grant a Rule 59(e) motion “only in very narrow circumstances: (1) to accommodate an intervening change in controlling law, (2) to account for new evidence not available at trial, or (3) to correct a clear error of law or prevent manifest injustice.” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002). Rule 59(e) motions may not be used, however, to make arguments that could have been made before the judgment was entered. See Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Moreover, “[a] party's mere disagreement with the court's ruling does not warrant a Rule 59(e) motion, and such a motion should not be used to rehash arguments previously presented or to submit evidence which should have been previously submitted.” Sams v. Heritage Transp., Inc., No. 2:12-cv-0462, 2013 WL 4441949, at *1 (D.S.C. August 15, 2013).

         Rule 59(e) provides an “extraordinary remedy that should be used sparingly.” Pac. Ins. Co., 148 F.3d at 403 (internal citation omitted); Wright v. Conley, No. 10-cv-2444, 2013 WL 314749, at *1 (D.S.C. Jan. 28, 2013). Whether to alter or amend a judgment under Rule 59(e) is within the sound discretion of the district court. See, e.g., Bogart v. Chapell, 396 F.3d 548, 555 (4th Cir. 2005).

         B. Federal Rule of Evidence 702 and Daubert

         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.

         District courts serve as gatekeepers for expert testimony. The court has a “special obligation” to ensure that expert testimony is relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).

         Under Daubert, the court must address two questions: (1) whether the expert's testimony is based on “scientific knowledge”; and (2) whether the testimony “will assist the trier of fact to understand or determine a fact in issue.” 509 U.S. at 592. The first question is answered by assessing “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. In considering these factors, the focus “must be solely on principles and methodology, not on the conclusions that they generate.” Id. at 595. The factors are not exclusive; what factors are relevant to the analysis “depends upon the particular circumstances of the particular case at issue.” Kumho Tire, 526 U.S. at 150.

         The second inquiry “goes primarily to relevance.” Daubert, 509 U.S. 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 notes. “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)).


         Plaintiffs argue that the court erred by:

(1) Failing to consider the qualitative nature of engineering investigations;
(2) Finding that the SGH Experts failed to investigate alternative causes;
(3) Finding that SGH used inappropriate testing methodologies;
(4) Holding to the SGH Experts to rigid statistical requirements in evaluating the sufficiency of the SGH Experts' sample; and
(5) Finding that Louis was not qualified to opine on wood treatment.

         The court addresses each argument in turn.

         A. Qualitative Analysis

         Plaintiffs first argue that

[t]he [c]ourt erred by analyzing the technical field of engineering with the inapposite framework of the rigid and quantitative practices of laboratory science. The practice of engineering is not based on strict adherence to the four corners of any particular standard or guideline, and is a qualitative practice rather than quantitative. In other words, engineering investigations and resulting opinions are not susceptible to ...

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