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

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The erroneous misuse of the Ford and Consumer Reports material was highly prejudicial. In a long trial about often dry issues, the videos provided a dramatic interlude that undoubtedly had a substantial impact on the jury. The citation of an article from a trusted source like Consumer Reports, as well as the “attention grabbing” images on the videotapes, went “directly to the heart of the litigation” and thus directly affected the outcome of the trial. Rotolo v. Digital Equip. Corp., 150 F.3d 223, 225 (2d Cir. 1998) (vacating jury verdict due to plaintiffs’ reliance on inadmissable videotape). F. State Farm’s Evidence Disproved Plaintiffs’ Claims Of Universal Inferiority, Confirming That The Only Way The Case Could Be Fairly Tried Was By Looking At The Facts Of Each Individual Repair. Because the jury was not instructed that plaintiffs had to prove the universal inferiority of non-OEM parts, its verdict cannot be taken as a finding that all such parts are inferior. But if it could somehow be read in that way, the verdict would be contrary to the manifest weight of the evidence. See Hastings v. Gulledge, 272 Ill.App.3d 861, 863 (5th Dist. 1995) (a verdict “is against the manifest weight of the evidence if the opposite conclusion is clearly evident or if the jury findings are unreasonable, arbitrary, and not based upon any of the evidence”). The overwhelming weight of the evidence at trial showed that non-OEM parts could not be universally condemned and that the only way to determine whether they restored a policyholder’s vehicle to its pre-loss condition was to look at the individual facts and circumstances of each repair. State Farm’s evidence showed that there were non-OEM parts that were as good as OEM parts and that many such parts had been successfully used to restore vehicles to their pre-loss condition. See, e.g., R. 9858-59, 11341-42; 10992-94 (eyewitness testimony that -106-
Polywheels company makes both the OEM and non-OEM versions of a Ford header-panel and that the only difference is the label on the box); 7995-96, 8007-09, 8070-72, 9038-39, 9697. Unlike plaintiffs’ anecdotal evidence, this evidence was highly probative on the critical factual question at trial — whether all non-OEM parts sold during the class period were so inferior that State Farm necessarily breached its contracts whenever it specified such parts. As plaintiffs’ own expert admitted, although many examples of bad non-OEM parts cannot prove that all such parts are bad, even one example of a good non-OEM part is enough to disprove a claim of universal inferiority. R. 7196-97. In addition to this evidence, State Farm presented evidence about the marketplace’s reaction to non-OEM parts during the class period that conclusively rebutted any claim that all non-OEM parts were inherently inferior. If all of the millions of non-OEM parts installed on vehicles since 1987 were as bad as plaintiffs claimed — fitting poorly, rusting, denting, shattering, and creating safety problems — used car markets would have reacted and consumers would have flooded not only State Farm, but also insurance regulators with complaints. But the evidence at trial made it clear that there was no such reaction. The uncontradicted real-world evidence was that used car buyers do not care whether a vehicle has been repaired with OEM or non-OEM parts. The publisher of the “Black Book” — the industry bible for used cars — testified that, if non-OEM parts affected value, the issue “would be flagged” in the market and reflected in his guide. R. 10278. But in fact valuation guides do not even mention non-OEM parts as a factor affecting the market value -107-
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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
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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
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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
Page 27 and 28:
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
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 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: 12984-85. The perversion of ostensi
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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