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

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economic loss. R. 7220-21 (Q: “That was given to you by plaintiffs’ lawyers; isn’t that right?” A: “That is correct.”). Mathur assumed that plaintiffs’ theory was “legal” rather than economic. R. 7221, 7229, 7233. In fact, however, there is no such thing as presumed “legal” damages for breach of contract. Plaintiffs may recover in a breach of contract action only if they can prove actual damages, that is, economic losses suffered as a result of the breach. See Economy Fire & Cas. Co. v. GAB Bus. Serv. Inc., 155 Ill.App.3d 197, 201 (3d Dist. 1987) (plaintiff must show that “loss or damages resulted directly” from the breach); Prevendar v. Thonn, 166 Ill.App.3d 30, 36 (2d Dist. 1988) (same). Thus, a contracting party who has received the benefit of his bargain has no standing to seek damages. Yet under plaintiffs’ specification theory, even those class members who received OEM parts at no additional cost — who plaintiffs conceded received the benefit of their bargain, C. 17018 — were entitled to specification damages. For that reason alone, the circuit court should have rejected plaintiffs’ theory of “specification” damages as a matter of law. Allowing Mathur to instruct the jury from the witness stand about the recoverability of “legal” damages was also an abuse of discretion. Experts may not testify about the law; that is for the judge to decide. <strong>No</strong>r are they permitted to serve as mouthpieces for theories concocted by lawyers; instead, they must contribute a professional opinion that adds to the case. See, e.g., Mid-State Fertilizer Co. v. Exchange Nat’l Bank, 877 F.2d 1333, 1340 (7th Cir. 1989) (observing that “ukase in the guise of expertise is a plague in contemporary litigation” and advising that “[j]udges should not be buffaloed by unreasoned expert opinions”). -76-
Mathur’s testimony was particularly prejudicial because the circuit court improperly refused to instruct the jury about fundamental damages principles. For example, the court refused State Farm’s proposed instructions that it “cannot be liable if a class member disposed of his or her vehicle after it was repaired with non-OEM crash parts and did not lose money due to the fact that the car was repaired with non-OEM crash parts,” A. 74, and that “State Farm cannot be liable if a class member had non-OEM crash parts specified in his or her repair estimate, but had OEM crash parts installed on his or her vehicle at no additional cost to him or her,” A. 73. The court also refused to instruct the jury that “[t]he mere fact that a non-OEM crash part was specified in a class member’s repair estimate is not sufficient to establish State Farm’s liability.” A. 70. Indeed, despite holding that the viabilty of specification damages was a jury issue, the court refused to tell the jury that it was free to reject Mathur’s theory of specification damages. A. 71. All of these instructions were proper statements of the law, and all were necessary to dispel the erroneous impression Mathur had been allowed to create. The court’s refusal to give these instructions was an abuse of discretion, which in and of itself entitles State Farm to reversal of the specification damages. See Martoccio v. Western Restaurants, Inc., 286 Ill.App.3d 390, 392 (5th Dist. 1<strong>99</strong>7) (reversing trial court for abuse of discretion in failing to give proper instruction). 2. The Classwide Installation Damages Are Hopelessly Speculative. Plaintiffs also claimed entitlement to “installation” (or “consequential”) damages. These were defined as damages to pay the cost of replacing the non-OEM parts on class members’ cars with OEM parts and included the cost of new OEM parts, the cost of labor to replace the non-OEM parts with OEM parts, and the cost of a rental car for two days -77-
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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
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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
Page 25 and 26:
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 (
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 and 96: this decision, plaintiffs were excu
Page 97: corresponding OEM part. R. 7169. In
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
Page 147 and 148: for this Court to alter that author
Page 149 and 150:
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
Page 169 and 170:
either higher premiums or the incre
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