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

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that a non-OEM part is inferior to its OEM counterpart). They were also permitted to speculate about safety issues, even though none of the bodyshop witnesses had any personal knowledge or expertise in that area. Not surprisingly, when pressed to identify the factual basis for their opinions, several of the bodyshop witnesses confessed that they were relying on such incompetent foundations as promotional brochures produced by Mazda and General Motors to tout the advantages of their OEM parts, R. 5929; PX 1214 at 32-35, or a Consumer Reports magazine article. R. 4507LL-MM. Admitting such testimony was clear error. These are not the kinds of materials on which a reputable expert would rely in forming an opinion about the quality of all non- OEM parts. Moreover, even if an expert could have properly relied on such materials, a lay witness may not. Rather, a lay opinion witness is limited to offering opinions predicated on his own personal knowledge — and may not under any circumstances testify based on a review of materials of which he has no “personal knowledge.” People v. Novak, 163 Ill.2d 93, 103 (1994). The circuit court also erred by allowing plaintiffs, over State Farm’s objection, R. 7154, to introduce into evidence a marketing survey purporting to show that 96% of bodyshops did not like non-OEM parts. PX 1316. Plaintiffs cited the survey in closing argument as “probably the most important piece of evidence here today,” R. 12989, suggesting that it alone proved the inherent inferiority of non-OEM parts. The survey should have been excluded both as hearsay (the person who conducted it was not available to explain his methodology), C. 26658, and because it was not probative of whether non-OEM parts were actually inferior. The survey merely confirmed that bodyshops prefer OEM parts, -88-
which is not surprising because they make more money selling them. See PX 1316 at 7-15 (70% of bodyshops agree that OEM parts are more profitable to sell than non-OEM parts). While allowing plaintiffs to offer the biased views of bodyshop owners about the quality of non-OEM parts, the circuit court inexplicably refused to allow State Farm to tell the jury about the views of state legislatures and insurance regulators. If the trial was to be a swearing contest based on personal opinions about non-OEM parts, the court at least should have allowed State Farm to tell the jury that, although bodyshops and car companies had campaigned for years to outlaw the specification of non-OEM parts, no state had agreed to do so. See, e.g., R. 9136-37. State Farm should also have been allowed to tell the jury that the majority of states expressly allow insurance companies to specify non-OEM parts so long as they are of like kind and quality — reflecting a legislative finding that there are a substantial number of non-OEM parts that meet that description. The circuit court, however, refused to allow regulators to testify about their states’ conclusions regarding non- OEM parts, on the ground that the jury could not be told about the differing state laws and regulations governing the specification of non-OEM parts. C. 28966; R. 10142. Once again, the court’s desire to preserve the case as a class action skewed its evidentiary rulings, preventing the jury from hearing a critical counterpoint to the opinions of plaintiffs’ bodyshop witnesses. 2. The Opinions Of Plaintiffs’ Expert Witnesses Were Inherently Unreliable And Should Not Have Been Admitted. Another shortcut that tainted the trial of this case was the circuit court’s decision to allow plaintiffs’ experts to offer a variety of overblown generalizations about non-OEM parts. To be admissible in Illinois, expert testimony must reflect “specialized knowledge” -89-
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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
Page 19 and 20:
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
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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 and 108: to its pre-loss condition.” R. 12
Page 109: quality of non-OEM parts. See Baltu
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
Page 159 and 160: 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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