In a rare and cautionary opinion, the U.S. District Court for the District of New Jersey has precluded the testimony and report of an expert proffered by a defendant in opposition to certification in a consumer product class action.

Specifically, in conducting a Daubert analysis at the class certification stage—an exercise long supported by class action defendants—Judge Dennis Cavanaugh held that the report and testimony of a human factors expert proffered by a motor vehicle company was “speculative, unreliable, and irrelevant.” Although the court may have been unduly proscriptive, the opinion stands as an important reminder that the increased scrutiny of experts at the class certification stage is a two-way street.

In Neale, et al. v. Volvo Cars of North America, LLC, et al., eight named plaintiffs representing a putative nationwide class sued a the defendant, alleging a uniform design defect in the sunroof drainage systems of various vehicle models. As is common, plaintiffs alleged that the defendent had longstanding knowledge of the alleged defect and, had the company disclosed it, plaintiffs would have purchased a different vehicle or paid less for the vehicle in question.

In support of its opposition to class certification, the defendent submitted an expert report addressing the factors influencing consumer purchasing decisions. Two conclusions in that report were at issue in the court’s opinion. First, the expert opined that automobile owner’s manuals, often hundreds of pages long, are not a typical source of information for consumer purchasing decisions, and that purchasers “will not all elect to read the information plaintiffs demand should have been provided by Volvo.” The expert had not reviewed the relevant owner’s manuals, however, and the court agreed with plaintiffs that failing to do so rendered the expert’s opinion “speculative and without foundation.”

Second, the expert opined on the effectiveness of recall campaigns, citing one study’s conclusion that, on average, 70 percent of vehicle owners respond to recall notices, with response rates ranging from 23 percent to 96 percent. The court echoed plaintiffs’ criticism, however, that the expert had not determined where Volvo owners fall within that range, similarly rendering the opinion speculative and without foundation. As a result, the court granted plaintiffs’ motion to preclude the expert’s report and testimony.

Ballard Spahr’s Product Liability and Mass Tort Group has substantial experience defending class actions involving consumer fraud, warranty, and product liability allegations in New Jersey and around the country. For more information, please contact Neal Walters at 856.761.3438 or, or Michael R. Carroll at 856.761.3452 or

Copyright © 2013 by Ballard Spahr LLP.
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Product Liability and Mass Tort