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

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introduce testimony from consumer advocates who would have explained that the specification of non-OEM parts is a pro-consumer practice that makes repairs less costly and prevents the car companies from charging the kinds of monopoly prices for repair parts they used to charge before the non-OEM market developed. See, e.g., R. 10109-11. Nor was State Farm allowed to explain to the jury that it is a mutual company, owned by its policyholders, and therefore was motivated only by a desire to protect its policyholders — and not by the need to generate profits for shareholders. C. 28988. Whatever the merits of these rulings may have been before the trial began, it was a clear abuse of discretion for the circuit court to continue to adhere to them once plaintiffs stood up in opening argument and started throwing mud at State Farm. Plaintiffs accused State Farm of foisting non-OEM parts on “vulnerable” “minorities,” such as “blacks, Hispanics, and particularly Vietnamese,” and a “little old lady,” while bestowing OEM parts on “well-shod” policyholders whose “golfing buddies” might be lawyers. 46/ R. 6007-10, 4507.18, 4441, 13002. Plaintiffs implied that State Farm was cheating policyholders by providing cheaper parts than class members had paid for and asked the jury to force State Farm to give up the ill-gotten “money” it had supposedly “made” from this misconduct. R. 13008. Then, in closing argument, plaintiffs urged the jury to speak up for justice, invoking the specter of “Nazis” herding victims to the gas chamber, while good people failed to 46/ This was not the first time that plaintiffs’ lead trial counsel has made the unfortunate decision to play the race card in a civil trial. The Mississippi Supreme Court recently reversed a verdict that Mr. Barrett had obtained in a breach of contract action in part because of his “obvious effort to inflame the emotions of the jury” by “blatantly play[ing] the ‘race card’ before the jury.” General Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 271-72 (Miss. 1999). -102-
“speak up for justice.” R. 13013-14. State Farm objected to plaintiffs’ attacks on its motives and character and three times moved for a mistrial, but the circuit court refused to take any action. R. 4454-59, 4563-64, 6049-52, 12378. That decision was a clear abuse of discretion in and of itself. The innuendo in this case was unfounded, see Wernowsky v. Economy Fire & Cas. Co., 106 Ill.2d 49, 55- 56 (1985), irrelevant, see Plooy v. Paryani, 275 Ill.App.3d 1074, 1088-89 (1st Dist. 1995), and unduly prejudicial, GRAHAM, supra, § 403.1, at 189. 47/ But the court made matters much worse by refusing to allow State Farm to defend itself by explaining its true motives. If the jury believed that State Farm profited from using non-OEM parts, it could attribute a motive to State Farm — greed — that would make sense of plaintiffs’ theory that State Farm deliberately chose to breach its contracts with 4.7 million policyholders. But the jury never learned the truth and imposed $450 million in damages — including $243 million linked to State Farm’s “savings” — based on a false impression created by one-sided evidentiary rulings. Third, the circuit court also abused its discretion by allowing plaintiffs to parade before the jury a videotaped news segment about a Consumer Reports article critical of non- OEM parts. Neither the article nor the videotape had been admitted into evidence. Nevertheless, plaintiffs were allowed to cite from the article and repeatedly play the 47/ Only two people testified to State Farm’s alleged policy of discrimination: a disgruntled former junior State Farm employee in Colorado who quit fifteen years ago — long before the class period even started — and a bodyshop owner in West Virginia with limited exposure to State Farm. R. 4507.12, 6025-26. Plaintiffs did not produce any statistical evidence suggesting discrimination; nor did they point to any class member who claimed to have been the victim of discrimination in the specification of crash parts. -103-
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No. 5-99-0830 IN THE APPELLATE COUR
Page 3 and 4:
Charles Hester Enters. v. Illinois
Page 5 and 6:
In re Fibreboard Corp., 893 F.2d 70
Page 7 and 8:
State v. Piedmont Funding Corp., 38
Page 9 and 10:
Hansberry v. Lee, 311 U.S. 32 (1940
Page 11 and 12:
1. Plaintiffs’ Body Shop Witnesse
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People v. Clayton, 302 Ill.App.3d 2
Page 15 and 16:
VPHI, Inc. v. National Educ. Traini
Page 17 and 18:
Okada v. MGIC Indem. Corp., 823 F.2
Page 19 and 20:
Zekman v. Direct Am. Marketers, Inc
Page 21 and 22:
Malooley v. Alice, 251 Ill.App.3d 5
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NATURE OF THE CASE This is an appea
Page 25 and 26:
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
Page 31 and 32:
paid the difference in cost out of
Page 33 and 34:
epair estimate specified only OEM p
Page 35 and 36:
potential class members whose names
Page 37 and 38:
member’s vehicle other than those
Page 39 and 40:
William Anderton, who had previousl
Page 41 and 42:
categorically inferior and, in fact
Page 43 and 44:
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
Page 53 and 54:
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
Page 61 and 62:
fenders to its pre-loss condition.
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a result of Allstate’s specificat
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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 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: eflected a policy of “discriminat
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-
Page 165 and 166: deterrence and therefore must be va
Page 167 and 168: 517 U.S. at 576. This case is not i
Page 169 and 170: either higher premiums or the incre
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