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

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OEM parts is not part of the class for which certification is sought”). And plaintiffs made a conscious choice to waive their argument that class members who had disposed of their vehicles had been damaged because their vehicles had diminished in value as a result of the installation of non-OEM parts. C. 19195-96. But then plaintiffs realized that they had no way to separate class members who could claim damages from those who could not: State Farm’s records do not show which class members’ vehicles had actually been repaired with non-OEM parts, let alone which class members still owned such vehicles. Thus, the only way to figure out who could claim damages would be to look at each individual class member’s repair and to inspect each individual vehicle. Faced with this dilemma, plaintiffs recognized that they needed a new damages theory to preserve the illusion of commonality necessary to continue the case as a class action. Thus, less than three months before trial (and almost two years after filing their complaint), class counsel paid a visit to their damages expert, who two days later produced a report that for the first time mentioned specification damages. R. 7220-21. Under this newly concocted theory, plaintiffs simply declared that breach and damage occurred simultaneously the moment a class member received a repair estimate specifying non-OEM parts. R. 13008 (“when they put these things on the estimate, that’s when the damage occurs”). Plaintiffs thus avoided any need to prove the fact of damages: damages were presumed from membership in the class. R. 7203, 7216. Having made up a theory under which everyone in the class would be damaged, plaintiffs proceeded to make up a measure of damages, declaring that specification damages were equal to the difference in cost between the non-OEM part on the estimate and the -74-
corresponding OEM part. R. 7169. In order to estimate that damage figure, Mathur took State Farm’s estimate of the amount it had saved class members from 1987 to 1997 by using non-OEM parts, extrapolated to get a figure for the full class period through February 1998, and declared the resulting figure — $243,700,000 — to be the classwide “specification” damages. R. 7169-70. 34/ The circuit court committed reversible error by allowing plaintiffs to present their theory of specification damages to the jury. Mathur himself conceded that specification damages made no economic sense: Q: So, from an economic perspective, which is all that you are qualified to testify about, you would have to tell us that your theory of direct damages doesn’t make economic sense; isn’t that true, sir? A: That is correct. Q: Thank you. So, according to you, as an economist, and not as a lawyer, using theories that plaintiffs’ lawyers have tried to give you, is a policyholder entitled to damages merely because State Farm quoted a non-OEM part on their estimate, as long as State Farm did restore the car to its pre-loss condition? A: No. R. 7222-23. Mathur also conceded that policyholders whose cars were restored to pre-loss condition or who sold their cars for fair market value (without any deduction for non-OEM parts) suffered no economic injury. R. 7227, 7230. Nevertheless, because plaintiffs’ counsel instructed him to do so, he offered a theory of damages that compensated everyone who received an estimate that specified non-OEM parts whether or not they had suffered any 34/ Mathur’s “savings” figure differs from State Farm’s total estimate of savings for the ten-year period of $366 million because Mathur eliminated the amounts State Farm reported saving as a result of specifying non-OEM parts on repair estimates for third-party insurance claims, which were not at issue in this litigation. -75-
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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
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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
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 (
Page 49 and 50: 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
Page 55 and 56: members.” Slimack v. Country Life
Page 57 and 58: 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: this decision, plaintiffs were excu
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 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
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for this Court to alter that author
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y using parts of like kind and qual
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plaintiffs’ failure to identify a
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percentage of the class (New York a
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committing fraud: if all non-OEM pa
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specification damages they had soug
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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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