No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

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R. 12575-77, 12552. The court concluded that, even though there were no IPI instructions for class actions, there was no need to go beyond the IPI instructions on breach of contract in order to fully and fairly instruct the jury. R. 12464-65. That conclusion was wrong, as a matter of law. See Swartz v. Sears, Roebuck & Co., 264 Ill.App.3d 254 (1st Dist. 1<strong>99</strong>3) (it is error to refuse to give a non-IPI instruction where there are no pattern instructions on the issue in question and the IPI instructions are an incorrect statement of law). How class actions work is not intuitively obvious to lay people. Thus, “it [is] impossible to say that jurors, without instruction, would know the burden of proof to be applied in a particular case.” Rikard v. Dover Elevator Co., 126 Ill.App.3d 438, 441 (5th Dist. 1984). The instruction the circuit court ultimately gave to the jury was at best confusing and at worst affirmatively misleading. The court instructed the jury that “[p]laintiff class members and defendant State Farm entered into a contract” — as if there were only one contract between State Farm and the millions of class members. It went on to explain that plaintiffs had the burden of proving three things: that “the members of the plaintiff class perform[ed] all obligations required of them under the contract”; that “defendant failed to perform its obligations under the contract and breached said contract”; and that “as a result of the breach of contract, the plaintiff class sustained damages.” A. 61. The court never explained what it meant for State Farm to breach its “contract” with the class — whether that meant that plaintiffs had to prove that State Farm failed to restore all or almost all or most or many or only some of the class members’ vehicles to their pre-loss condition. In closing argument, State Farm reiterated the burden of proof that plaintiffs had assumed: to prove that “all the parts are always inferior, and always failed to return the car -84-
to its pre-loss condition.” R. 12874-75. In rebuttal, however, plaintiffs’ counsel characterized State Farm’s position as “nonsense,” stating that it was “not our burden in this case” to prove that every one of the millions of non-OEM parts specified by State Farm was inferior. R. 12987. He argued that plaintiffs were required to prove only that “it is more probably true than not true that State Farm broke its promise to the class of like kind and quality parts,” id., again without providing any explanation as to what that meant. As a result of the inadequacy of the instructions, the jury was left to its own devices to decide what level of proof was required in order to render judgment in favor of the entire class. Because the court also refused to propound any of State Farm’s suggested jury interrogatories — which would have inquired as to whether the jury had found that State Farm had breached its contracts with either the class representatives individually or all of the members of the class (R. 12596) — there is no way of knowing what standard the jury in fact chose to apply. Under those circumstances, State Farm is entitled, at the very least, to have the breach of contract judgment vacated. Because it is apparent that plaintiffs cannot meet their burden of proof on a classwide basis without inquiring into the individual facts of each transaction, however, the circuit court should be ordered to decertify the class. C. The Circuit Court Erred In Admitting Baseless Opinion Testimony Purporting To Show The Universal Inferiority Of <strong>No</strong>n-OEM Parts. Although plaintiffs convinced the court not to instruct the jury that they were required to prove the inferiority of all non-OEM parts in order to obtain a verdict against State Farm, at trial plaintiffs did attempt to prove that proposition. Their evidence, however, consisted largely of gross generalizations by witnesses who did not have the expertise or the data on which to base their sweeping opinions. Such testimony would not have been -85-
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No. 5-99-0830 IN THE APPELLATE COUR
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Charles Hester Enters. v. Illinois
Page 5 and 6:
In re Fibreboard Corp., 893 F.2d 70
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State v. Piedmont Funding Corp., 38
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Hansberry v. Lee, 311 U.S. 32 (1940
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1. Plaintiffs’ Body Shop Witnesse
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People v. Clayton, 302 Ill.App.3d 2
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VPHI, Inc. v. National Educ. Traini
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Okada v. MGIC Indem. Corp., 823 F.2
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Zekman v. Direct Am. Marketers, Inc
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Malooley v. Alice, 251 Ill.App.3d 5
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NATURE OF THE CASE This is an appea
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STATUTES INVOLVED Relevant portions
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to its “pre-loss condition.” DX
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OEM parts. 5/ At least two states
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paid the difference in cost out of
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epair estimate specified only OEM p
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potential class members whose names
Page 37 and 38:
member’s vehicle other than those
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William Anderton, who had previousl
Page 41 and 42:
categorically inferior and, in fact
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specified on their repair estimates
Page 45 and 46:
Second, plaintiffs sought “instal
Page 47 and 48:
parts] are inferior.” R. 12539 (
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had an adequate remedy at law if St
Page 51 and 52:
loss condition. Instead of requirin
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ARGUMENT I. Class Certification Vio
Page 55 and 56: members.” Slimack v. Country Life
Page 57 and 58: of evidence State Farm would be ent
Page 59 and 60: that are incongruous with the effic
Page 61 and 62: fenders to its pre-loss condition.
Page 63 and 64: a result of Allstate’s specificat
Page 65 and 66: insurance regulators and consumer a
Page 67 and 68: have been the overwhelming predomin
Page 69 and 70: some class members and the issue of
Page 71 and 72: not sooner, that plaintiffs could n
Page 73 and 74: explained above, class members who
Page 75 and 76: Even if the court had been right in
Page 77 and 78: value” of “parts at the time of
Page 79 and 80: page 7, supra. All of these statute
Page 81 and 82: (7th Cir. 1995) (decertifying class
Page 83 and 84: As the circuit court itself recogni
Page 85 and 86: the same shortcut, arguing — just
Page 87 and 88: epresentatives who appeared at tria
Page 89 and 90: — was injured by the alleged dece
Page 91 and 92: Litig., 182 F.R.D. at 225. Basic fa
Page 93 and 94: Meineke’s continued financial via
Page 95 and 96: this decision, plaintiffs were excu
Page 97 and 98: corresponding OEM part. R. 7169. In
Page 99 and 100: Mathur’s testimony was particular
Page 101 and 102: end of the day, Mathur conceded tha
Page 103 and 104: Zimny, 256 Ill.App.3d 386, 390-91 (
Page 105: the jury was focused on the wrong i
Page 109 and 110: quality of non-OEM parts. See Baltu
Page 111 and 112: which is not surprising because the
Page 113 and 114: In this case, plaintiffs’ experts
Page 115 and 116: Bender could not swear that the non
Page 117 and 118: OEM part construction “had some d
Page 119 and 120: theory, even non-OEM parts that are
Page 121 and 122: of his training or expertise”). P
Page 123 and 124: eflected a policy of “discriminat
Page 125 and 126: “speak up for justice.” R. 1301
Page 127 and 128: 12984-85. The perversion of ostensi
Page 129 and 130: Polywheels company makes both the O
Page 131 and 132: parts — was simply a made-for-lit
Page 133 and 134: In contrast, each of the 47 other s
Page 135 and 136: occurred outside Illinois. 51/ In t
Page 137 and 138: laws of the State where the policy
Page 139 and 140: This Court should follow the weight
Page 141 and 142: other states, Illinois cannot apply
Page 143 and 144: state’s law when it is not within
Page 145 and 146: headquartered in Michigan); Endo, 1
Page 147 and 148: for this Court to alter that author
Page 149 and 150: y using parts of like kind and qual
Page 151 and 152: plaintiffs’ failure to identify a
Page 153 and 154: percentage of the class (New York a
Page 155 and 156: committing fraud: if all non-OEM pa
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specification damages they had soug
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A. It Is Unconstitutional To Punish
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that will subject him to punishment
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fact benefitted from access to non-
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deterrence and therefore must be va
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517 U.S. at 576. This case is not i
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either higher premiums or the incre
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No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

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