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

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videotape — which showed non-OEM bumpers shattering in impact tests — for the jury on the ground that plaintiffs’ lay opinion witnesses had relied on these materials in forming their opinions. R. 4405-06, 12008-09. That decision was wrong as a matter of law. As explained above, lay opinion witnesses may only testify based on their own personal observations and experience and therefore are not allowed to rely on materials like the Consumer Reports article and video in forming their opinions — let alone testify about such materials. See Novak, 163 Ill.2d at 103. Furthermore, the court permitted plaintiffs to tout the Consumer Reports material far beyond the confines of the limited purpose for which it was introduced. The material was clearly not admissible as substantive evidence: plaintiffs made no attempt whatsoever to prove that any of the parts depicted in the video or discussed in the article had ever been installed on a State Farm-insured vehicle. In addition, State Farm never had an opportunity to cross-examine either the authors of the article or the source of the videotaped images. Nevertheless, plaintiffs were repeatedly allowed to use the Consumer Reports material as if it were substantive evidence. For example, plaintiffs’ counsel cited sections of the article to a State Farm witness, asking several times “Do you disagree with the scientists at Consumer Reports on that statement?” R. 7680-84, 12020. In closing argument, plaintiffs mentioned the material at least five times, referring to it as “the Consumer Reports magazine article that is not in evidence, but that you heard about,” R. 12990, and responding to State Farm’s argument that plaintiffs had not introduced evidence about specific non-OEM parts with the assertion that “[i]ts not true, however, to say you didn’t see any parts. You saw them in the Consumer Reports video. You saw them.” R. 12979; see also R. 12977-78, -104-
12984-85. The perversion of ostensible Rule 703 material into substantive evidence touted for its truth was flagrant, and the circuit court’s refusal to stop it was a clear abuse of discretion. People v. Houser, 305 Ill.App.3d 384, 395 (4th Dist. 1999) (“Rule 703 cannot be used to make an end-run around other evidentiary principles in an effort to sully the defendant with otherwise inadmissible evidence”). The circuit court also erred in allowing plaintiffs to play for the jury a videotape — complete with musical soundtrack — prepared by Ford Motor Company’s “Marketing Office” more than fifteen years ago to compare a fender manufactured by Ford with a non- OEM fender. Not surprisingly, the non-Ford fender did not fare well in the Ford marketing test: in fact, it appeared to corrode before the jury’s eyes. PX 1325. The two Ford employees who testified about the video were unable to provide any information about the non-OEM fender, except to say that it had been bought “somewheres” between 1984 and 1986, well before the class period began. R. 6686-87, 6694. There was no evidence that the same kind of fender had ever been installed on a State Farm policyholder’s car at any time, let alone during the class period. Nor was there any basis to believe that the corrosion test pictured in the videotape had been fairly conducted. C. 27506. Under these circumstances, the Ford videotape never should have been admitted. 48/ 48/ The “test” of parts manufactured prior to the class period was especially prejudicial in light of abundant evidence that the quality of non-OEM parts has improved over time. R. 10953-54, 8049-50, 8085. “[I]t is well settled” that videotapes of “experiments are incompetent unless the essential elements of the experiment are shown to be substantially similar to those existing at the time” of the charged conduct. Hubbard v. McDonough Power Equip., Inc., 83 Ill.App.3d 272, 280 (5th Dist. 1980); accord Swajian v. General Motors Corp., 916 F.2d 31, 36 (1st Cir. 1990) (videotape recreating circumstances dissimilar to those of charged conduct is not proper as evidence or a demonstrative exhibit). -105-
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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
Page 7 and 8:
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
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
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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
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
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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
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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 and 124: eflected a policy of “discriminat
Page 125: “speak up for justice.” R. 1301
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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