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Jenkins v. State Farm Mutual Automobile Insurance Co.

United States District Court, W.D. Washington, Tacoma

January 24, 2018

TRINA JENKINS, et al., Plaintiffs,



         This matter comes before the Court on the Motion for Class Certification of Plaintiffs Charles Van Tassel and Jeremy Plank (collectively “Plaintiffs”)[1] 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 certification.


         On July 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. Dkt. 34.

         On 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.

         On 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.

         On 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, 70, 71.


         A. Plaintiff Van Tassel's Claim

         On 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.

         As a 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.

         After 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 accompanying documentation.

         B. Plaintiff Plank's Claim

         On June 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.

         In a 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.

         Ultimately, 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, 2015.


         A. Motions to Exclude Expert Testimony

         State 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 committee's note.

         1. Siskin's Report

         State 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).

         Siskin's 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.

         Reviewing 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.

         Nonetheless, 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 ...

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