United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANT'S MOTIONS TO EXCLUDE AND
DENYING PLAINTIFFS' MOTION FOR CLASS
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Motion for Class
Certification of Plaintiffs Charles Van Tassel and Jeremy
Plank (collectively “Plaintiffs”) and Defendant
State Farm Automobile Insurance Company's (“State
Farm”) motions to exclude the proffered expert
testimony of Dr. Bernard Siskin, Ph.D. (“Siskin”)
and Angelo Toglia, Jr., P.E. (“Toglia”). Dkts.
42, 44, 48. Also pending before the Court is State Farm's
motion for partial summary judgment, which the Court will
address in a separate order. Dkt. 60. The Court has
considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and,
for the reasons stated herein, denies State Farm's
motions to exclude and Plaintiffs' motion for class
23, 2015, Plaintiff Trina Jenkins (“Jenkins”)
filed her complaint in this action. Dkt. 1. On February 23,
2016, Plaintiffs Jenkins, Van Tassel, and Plank filed an
amended complaint adding claims from Van Tassel and Plank.
Dkt. 28. On August 16, 2016, the Court issued a scheduling
order establishing deadlines for the disclosure of expert
testimony, motions to exclude expert testimony, and motions
for class certification. Dkt. 33. On October 14, 2016,
Plaintiffs timely filed their disclosure of expert witnesses.
August 7, 2017, the Court issued an order extending the
deadlines for motions to exclude and motions for class
certification to August 30, 2017. Dkt. On September 5, 2017,
State Farm untimely filed its motions to exclude the
testimony of Siskin and Toglia. Dkts. 42, 44. On September 6,
2017, Plaintiffs untimely filed their motion for class
certification. Dkt. 48. Neither party has objected to the
untimeliness of any of these motions.
September 13, 2017, the Court again extended the scheduling
order by delaying the deadlines for the parties'
responses to the filed motions until October 5, 2017. Dkt.
51. On October 5, 2017, this response deadline was further
extended to October 10, 2017. Dkt. 53.
October 10, 2017, State Farm responded to Plaintiffs'
motion for class certification and Plaintiffs responded to
State Farm's motions to exclude. Dkts. 54, 58, 62. On
November 13, 2017, the parties filed their replies. Dkts. 69,
Plaintiff Van Tassel's Claim
January 14, 2015, Plaintiff Van Tassel's vehicle was rear
ended by an underinsured motorist. Dkt. 56-1 at 129. The same
day, Plaintiff Van Tassel reported the accident to State
Farm. Id. On January 30, 2015, Plaintiff Van Tassel
informed State Farm that he “want[ed] diminished
value” to be covered in his Underinsured Motorist
(“UIM”) claim. Id. at 133.
result of the accident, Plaintiff Van Tassel's vehicle
required over $16, 000 in repairs, which was paid for in part
by the at-fault driver's insurance while the rest was
paid for under Plaintiff Van Tassel's policy with State
Farm for UIM coverage. Dkt. 56-1 at 129-30; Dkt. 49-22 at 4;
Dkt. 49-23 at 8, 13; Dkt. 56-1 at 129. The repairs included
body and frame repairs. Dkt. 49-23 at 3-5, 10.
the vehicle went through initial repairs, Plaintiff Van
Tassel began to notice paint flakes on the repaired portion
of the vehicle and a vibration while driving. Dkt. 56-1 at
13, 26. After these problems surfaced, Plaintiff Van Tassel
requested that State Farm conduct an additional inspection to
make sure there was no remaining unrepaired damage, but State
Farm refused. Dkt. 49-22 at 6. While it is clear that State
Farm handled Plaintiff Van Tassel's accident as a UIM
claim, State Farm noted the record lacks any indication that
he submitted a specific claim for diminished value with
Plaintiff Plank's Claim
3, 2015, Plaintiff Plank was in a collision caused by an
at-fault driver who turned into his lane of traffic in front
of him. Dkt. 56-1 at 30. After the accident, Plaintiff Plank
discussed diminished value coverage via phone call with the
State Farm insurance agency where he obtained his policy,
however he never discussed diminished value with a State Farm
representative handling his claim. See Id. at 35.
The at-fault driver's insurer handled Plaintiff
Plank's claim, including approximately $19, 000 in
repairs. Id. at 188.
letter dated October 21, 2015, Plaintiff Plank informed State
Farm of his pending settlement offer from the at-fault
driver's insurer in the amount of the at-fault
driver's policy limit. Dkt. 56-1 at 154. In the letter,
Plaintiff Plank offered State Farm ten days in which to
purchase Plaintiff's cause of action against the at-fault
driver for the remaining sum under the applicable policy
limit, “so as not to prejudice [State Farm's] right
of subrogation.” Id. The letter also indicated
that Plaintiff Plank would be making a UIM claim for the
remaining balance of the diminished value of his vehicle
after he received a response from State Farm. Id.
Attached to the letter was a statement from a Ford dealer
estimating Plaintiff Plank's loss in diminished value at
approximately $10, 000. Id. at 153-54.
Plaintiff Plank accepted the settlement payment from the
at-fault driver's insurer. Id. at 52. In an
entry dated November 27, 2015, State Farm's claim file
indicates the letter was received and that the person making
the entry requested a return call be made to Plaintiff
Plank's attorney to determine whether he had indeed
settled his diminished value claim with the at-fault
driver's insurer. Id. at 150. The record does
not reflect whether this return call was ever made or whether
Plaintiffs' attorney responded. It does not appear that
any further request or information was submitted to State
Farm by Plaintiff Plank after the letter dated October 21,
Motions to Exclude Expert Testimony
Farm has filed motions to exclude the proffered expert
testimony of witnesses Siskin and Toglia. Dkts. 42, 44.
Expert testimony is only admissible if it satisfies several
criteria, including the requirement that it “is the
product of reliable principles and methods.”
Fed.R.Evid. 702(c). “Thus, before admitting expert
testimony, courts must make a ‘preliminary
assessment' of (1) whether the expert is qualified to
present the opinion offered, (2) ‘whether the reasoning
or methodology underlying the testimony is . . . valid, '
and (3) ‘whether that reasoning or methodology properly
can be applied to the facts in issue.'” Lewert
v. Boiron, Inc., 212 F.Supp.3d 917, 924 (C.D. Cal. 2016)
(quoting Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 597 (1993)). In order to facilitate the Court's
gatekeeper function for such testimony, the Federal Rules of
Civil Procedure require that expert disclosures be
accompanied by a “detailed and complete written report,
stating the testimony the witness is expected to present
during direct examination, together with the reasons
therefor.” Fed.R.Civ.P. 26(a)(2) advisory
Farm challenges Siskin's report on the basis that it is
premised on data that is either improperly outdated or
unavailable for testing the reliability of Siskin's
linear regression analysis. An “expert's opinion
testimony must satisfy the requirements of Rule 702-but that
requires consideration of the overall sufficiency of the
underlying facts and data, and the reliability of the
methods, as well as the fit of the methods to the facts of
the case.” United States v. W.R. Grace, 504
F.3d 745, 765 (9th Cir. 2007).
report relies upon a spreadsheet database purporting to
contain data gathered regarding numerous vehicles with model
years of 1995 to 2001 being sold at auction across the
country. To collect the data for the study, inspectors were
sent across the United States to inspect the price and
condition of vehicles being sold at wholesale auction and
record their findings on a provided form. Dkt. 43-1 at 12-14,
51. This information was subsequently compiled into
spreadsheets summarizing the data. See Id. at 27,
34, 39. Unfortunately, except for the spreadsheet database,
the underlying records for this study have since been lost or
destroyed, including the completed reports from the vehicle
inspectors, any materials provided to the inspectors, any
copy of the form used for data collection, and Siskin's
own notes. Id. at 7-12. Siskin has noted that when a
study such as this is submitted to a journal, the underlying
records are generally not submitted, as it is the coding and
the results which are tested, as opposed to the actual data.
Id. at 52.
the parties' submissions in support of and in opposition
to Siskin's report, the Court concludes that State
Farm's arguments do not constitute reasons for excluding
Dr. Siskin's report at this stage. Siskin's report
describes a two-step methodology for determining class-wide
damages that can be reliably replicated by other experts.
See Dkt. 43-2 at 2-7. Accordingly, Siskin's
expert testimony is of valuable assistance to the extent that
it describes the existence of such a methodology.
State Farm is correct that Siskin's specific regression
analysis from 2001 is outdated and a poor “fit”
for the facts of this case. Whether the age of the underlying
data likely results in a more “conservative”
damages estimate does not matter, as the study was based on
an examination of very different vehicles than are available
in the market today and both parties acknowledge that this
will have a material impact on the results of the linear
regression analysis. Moreover, the loss of the underlying
inspection reports, notes, and even the form used to record
the data makes it impossible for State Farm to accurately
test the reliability of the spreadsheet database upon which
Siskin's 2001 regression analysis is based. Therefore, to
the extent Plaintiffs might seek to use Siskin's report
to rely upon the 2001 ...