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

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necessary or admissible in an individual breach of contract case, where the plaintiff would concentrate on a specific part or parts that had allegedly failed to restore his particular vehicle to its pre-loss condition. But it was the only way plaintiffs could even attempt to prove their case on a classwide basis. As demonstrated below, the circuit court abused its discretion by admitting this highly prejudicial evidence, requiring reversal of the judgment. 36/ Because this is the only kind of evidence plaintiffs could possibly muster to prove their case on a classwide basis, the circuit court should be ordered to decertify the class. 1. Plaintiffs’ Bodyshop Witnesses Greatly Exceeded The Permissible Scope Of Lay Opinion Testimony. One of the more remarkable features of this case was the parade of lay witnesses plaintiffs were allowed to march before the jury to declare their completely uninformed opinions about non-OEM parts. One after another, bodyshop owners and workers — whose shops earn more installing the pricier OEM parts than they do installing non-OEM parts, R. 6738-39, 7096-97 — proclaimed non-OEM parts to be “all junk.” R. 6762; accord R. 5892 (“there is not a single after-market part that is not junk”); R. 5860. Though none had ever attempted to perform any scientific tests on non-OEM parts, they opined that such parts are all inferior in design, quality, corrosion protection, and structural integrity, R. 4507KK-LL, 4509, and “maybe” are unsafe, R. 4507.20. None of these lay witnesses had any expertise in metallurgy, design, or structural engineering. As a result, it was an abuse of discretion for the circuit court to allow them to offer their wholly uninformed opinions regarding the 36/ See Grant v. Petroff, 291 Ill.App.3d 795, 803 (5th Dist. 1997) (reversal required where error in admission of evidence is “substantially prejudicial, thereby affecting the outcome of the trial”). -86-
quality of non-OEM parts. See Baltus v. Weaver Div. of Kidde & Co., 199 Ill.App.3d 821, 837 (1st Dist. 1990) (a witness whose “only recitation of qualifications was 20 years as an auto mechanic” installing particular parts “may [have] expertise in their [installation], but it does not mean he has the knowledge, skills, and experience as a manufacturer or designer” of those parts). 37/ Illinois courts, like federal courts, allow lay witnesses to offer opinion testimony “‘limited to those opinions or inferences which [were] rationally based on the[ir] perception[s]’” and sufficiently reliable to be “‘helpful’” to the jury. Freeding-Skokie Roll- Off Serv., Inc. v. Hamilton, 108 Ill.2d 217, 222 (1985) (quoting Fed. R. Evid. 701). Absent expertise or specialized knowledge, a lay witness’s opinion testimony is admissible, however, only if it is grounded in his or her “personal observation and recollection of concrete facts.” Id. Most of the testimony of plaintiffs’ bodyshop witnesses was not grounded in any first-hand perceptions or concrete facts. Rather than limiting themselves to opining that non- OEM parts they had actually installed seemed to fit poorly — an opinion they could have derived from first-hand experience — plaintiffs’ bodyshop witnesses were permitted to wax eloquent about the purportedly universal inferiority of all non-OEM parts, including myriad types of parts that they had never seen. PX 1214 at 53 (“I don’t have to look at it” to know 37/ See also Bogosian v. Mercedes Benz of N. Am., 104 F.3d 472, 477 (1st Cir. 1997) (a witness’ “extensive experience in automotive repair” does not establish the requisite “significant expertise — by way of knowledge, skill, experience, training, or education — in relevant areas such as the design or manufacture of automobiles or their components”); Davis v. International Harvester Co., 167 Ill.App.3d 814, 827 (2d Dist. 1988) (truck driver not qualified to opine about safety of truck design). -87-
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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
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member’s vehicle other than those
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William Anderton, who had previousl
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categorically inferior and, in fact
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specified on their repair estimates
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Second, plaintiffs sought “instal
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parts] are inferior.” R. 12539 (
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had an adequate remedy at law if St
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loss condition. Instead of requirin
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ARGUMENT I. Class Certification Vio
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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 and 106: the jury was focused on the wrong i
Page 107: to its pre-loss condition.” R. 12
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
Page 157 and 158: 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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