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

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plants was to observe the process by which they manufactured non-OEM parts. Griglio admitted that he never tested or analyzed a single non-OEM part, let alone performed a sideby-side test of a non-OEM part and its OEM counterpart, to determine whether the manufacturing processes he had observed in fact produced inferior products. R. 5377-78. Thus, he lacked any basis on which to offer a categorical opinion about the quality of all non-OEM parts. William Anderton also based his opinion on a wholly inadequate sample. He opined that non-OEM parts are universally inferior to OEM parts, R. 5752, on the basis of only three tests involving a very limited sample of the universe of non-OEM part types, primarily sheet metal. R. 5791-92. Furthermore, Anderton admitted that test reports generated by his own division at Allstate contradicted his conclusion of universal inferiority: those reports show that some of the non-OEM parts he and his company tested were just as good as OEM parts, and that several OEM parts were worse than their non-OEM counterparts. R. 5792-93, 5799-802, 5806-07. Perhaps most incredible of all was Dennis Bender, who predicated his opinion that non-OEM parts did not restore vehicles to their pre-loss value on a single, biased marketing “study” that General Motors had commissioned him to perform as part of its advertising campaign to expand its crash parts market. R. 4999-5000, 5004-05, 5018. Bender admitted that the purpose of the study was not objective: “General Motors had a story to tell, and the consuming public was the audience they wanted to reach.” R. 5014. Moreover, General Motors had pre-selected two cars and replacement parts, made the repairs, and performed accelerated aging on the car before Bender’s marketing firm was hired. R. 4997-99. Thus, -92-
Bender could not swear that the non-OEM parts selected were fairly representative, nor could he say whether both cars had been subjected to equivalent treatment. 40/ In any event, it is absurd to suggest that a single repair with a handful of non-OEM parts could ever provide a basis for concluding that all of the tens of thousands of non-OEM parts available in the marketplace are inferior. Car parts are not fungible: the design of a headlamp differs from the design of a hood, and the fact that one might have a defect is not probative of the quality of the other. Numerous courts have made this common sense point. For example, the Fifth Circuit has held that the plaintiff could not prove that a joint assembly in 1983 Ford Escorts was defective by offering evidence of defects in different Ford parts, different Ford models, or Ford Escorts manufactured in different years. Johnson v. Ford Motor Co., 988 F.2d 573, 579-80 (1993). Similarly, in Floyd v. General Motors Corp., 960 P.2d 763, 766 (Kan. App. 1998), the court affirmed exclusion of evidence of a steering defect in GM’s 1992 models to prove a steering defect in its 1988 model. 41/ And in Rios, the Cook County Circuit Court refused to certify a class virtually identical to the one here because it would be “illogical for the Court to examine a [mere] handful of the . . . 30,000 non-OEM parts[,] to make a comparison to OEM parts[,] and somehow [to] extrapolate from that that therefore the whole 40/ Bender did confess that, when he observed that the hood of the car repaired with GM parts was misaligned, he instructed GM to fix it. R. 5016. The very nature of the test — as well as Bender’s apparent desire to ensure that its outcome would be favorable to GM — demonstrates its inherent unreliability as the basis for forming any general opinions with respect to the quality of non-OEM parts. 41/ Accord Ducharme v. Hyundai Motor Am., 698 N.E.2d 412, 416 (Mass. App. 1998); Brock v. Caterpillar, Inc., 94 F.3d 220, 224-26 (6th Cir. 1996); Freund v. Fleetwood Enters., 956 F.2d 354, 360-61 (1st Cir. 1992); see also Ford Paint Litig., 182 F.R.D. at 220. -93-
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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
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of evidence State Farm would be ent
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that are incongruous with the effic
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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 and 110: quality of non-OEM parts. See Baltu
Page 111 and 112: which is not surprising because the
Page 113: In this case, plaintiffs’ experts
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
Page 161 and 162: that will subject him to punishment
Page 163 and 164: 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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