United States District Court, D. South Carolina, Charleston Division
IN RE PELLA CORPORATION ARCHITECT AND DESIGNER SERIES WINDOWS MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION.
C. NORTON, UNITED STATES DISTRICT JUDGE
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”). For the reasons set forth below, the court
denies plaintiffs' 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 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.
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.
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.
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.
Motion to Alter/Amend
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).
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
Federal Rule of Evidence 702 and Daubert
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.
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).
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.
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)).
argue that the court erred by:
(1) Failing to consider the qualitative nature of engineering
(2) Finding that the SGH Experts failed to investigate
(3) Finding that SGH used inappropriate testing
(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
court addresses each argument in turn.
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 ...