Kendall Dealership Holdings, LLC v. Warren Distribution, Inc.

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KENDALL DEALERSHIP HOLDINGS, LLC, )
)
Plaintiff, )
)
vs. )
)
WARREN DISTRIBUTION, INC., a Nebraska )
Corporation, )
) No. 3:18-cv-0146-HRH
Defendant. )
_______________________________________)
)
WARREN DISTRIBUTION, INC., )
)
Third-party plaintiff, )
)
vs. )
)
ELECTRONIC COMPONENTS )
INTERNATIONAL, INC. and ELECTRICAL )
COMPONENTS CANADA, INC., )
)
Third-party defendants. )
_______________________________________)
O R D E R
Joint Motion to Strike Expert Sean Shideh
Defendant Warren Distribution Inc. and third-party defendants Electrical Components
International, Inc. and Electrical Components Canada, Inc. move to strike Sean Shideh as an
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expert witness.1 This motion is opposed by plaintiff Kendall Dealership Holdings, LLC.2
Oral argument was requested and has been heard.
Background
This case arises out of claims that some 8,000 engine block heaters which plaintiff
purchased from Warren were defective. Warren allegedly purchased the engine block heaters
from ECI and the engine block heaters were allegedly manufactured by ECC.3 Plaintiff has
asserted breach of contract, UTPA, breach of the implied warranty of merchantability, and
breach of the implied warranty of fitness for a particular purpose claims against Warren.
Plaintiff seeks actual, consequential, and punitive damages.
Plaintiff retained Sean Shideh, an automotive/mechanical engineer, as an expert
witness. Shideh was retained
to review a large volume of documents and advise if a defect in
an engine block heater (EBH), under part number PU140-00913
(913), that was designed, manufactured, and distributed by ECI,
ECC, and Warren Distribution was the root cause of fire
incidents that occurred in some Toyota vehicles in Canada and
Alaska in 2016 and 2017.[4]
1Docket No. 128.
2Docket No. 159.
3Third Party Complaint at 3, ¶ 8, Docket No. 21.
4Shideh Expert Report at 1, Exhibit A, Joint Motion to Strike [etc.], Docket No. 128.
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These documents, according to plaintiff, included “numerous correspondence between ECI,
ECC, TCI, other vendors/suppliers, field investigations, duplication tests, manufacturing
quality check sheets, drawings, pictures, X-Ray images, . . . and deposition transcripts of two
ECI and ECC employees with correlating exhibits.”5
Plaintiff contends that Shideh’s “opinion is that there was ‘a manufacturing defect in
the assembly of the heater female connector in 2016 and 2017.’”6 But his report does not say
this. Rather, Shideh’s expert report contains three “conclusions”:
1) “Errors in installation procedures of EBH 913 by Toyota dealer technicians
cannot be considered a factor in these fires.”7
2) “Fires occurring in this specific period also cannot be related to sudden
changes in engine design and engine compartment packaging by Toyota
as noted by ECI/ECC as a possibility for the reason of heaters experiencing
high temperatures.”8
3) “The evidence pointed to a manufacturing defect in the assembly of the
heater female connector in 2016 and early 2017, which appears to have
5Kendall Dealership Holdings, LLC’s Opposition to Motion to Strike Expert Sean
Shideh at 3, Docket No. 159.
6Id. at 4.
7Shideh Expert Report at 3, Exhibit A, Joint Motion to Strike [etc.], Docket No. 128.
8Id.
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been successfully remedied after improvements in the ECI/ECC operations
and/or countermeasures put in the new part.”9
Warren, ECI, and ECC (referred to herein as “defendants”) now move to strike Shideh
as an expert witness. In their opening brief, defendants appeared to rely on both Rule 26 and
Daubert as a basis for striking Shideh. However, defendants’ argument focuses on Daubert,
and the court will address defendants’ motion to strike as one challenging the admissibility
of Shideh’s proposed expert testimony based upon Rule 702, Federal Rules of Evidence.
Discussion
Rule 702, which governs the admissibility of expert testimony,
provides that expert opinion evidence is admissible if: (1) the
witness is sufficiently qualified as an expert by knowledge, skill,
experience, training, or education; (2) the scientific, technical,
or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (3) the
testimony is based on sufficient facts or data; (4) the testimony
is the product of reliable principles and methods; and (5) the
expert has reliably applied the relevant principles and methods
to the facts of the case.
City of Pomona v. SQM North America Corp., 750 F.3d 1036, 1043 (9th Cir. 2014). “Before
admitting expert testimony into evidence, the district court must perform a ‘gatekeeping role’
of ensuring that the testimony is both ‘relevant’ and ‘reliable’ under Rule 702.” United
States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1188 (9th Cir. 2019) (quoting Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993)). “Relevancy simply requires that ‘the
9Id. at 4.
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evidence logically advance a material aspect of the party’s case.’” Id. (quoting Estate of
Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014)). “‘[R]eliability’ . . .
requires that the expert’s testimony have ‘a reliable basis in the knowledge and experience
of the relevant discipline.’” Id. at 1188-89 (quoting Barabin, 740 F.3d at 463). “The district
court must assess whether ‘the reasoning or methodology underlying the testimony is
scientifically valid’ and ‘properly can be applied to the facts in issue[.]’” Id. at 1189 (quoting
Daubert, 509 U.S. at 592–93). “‘The district court is not tasked with deciding whether the
expert is right or wrong, just whether his testimony has substance such that it would be
helpful to a jury.’” City of Pomona, 750 F.3d at 1044 (quoting Alaska Rent-A-Car, Inc. v.
Avis Budget Group, Inc., 738 F.3d 960, 969-70 (9th Cir. 2013)). “The court must assess the
expert’s reasoning or methodology, using as appropriate criteria such as testability,
publication in peer-reviewed literature, known or potential error rate, and general accep-
tance.” Id. “But these factors are ‘meant to be helpful, not definitive, and the trial court has
discretion to decide how to test an expert’s reliability as well as whether the testimony is
reliable, based on the particular circumstances of the particular case.’” Id. (quoting Primiano
v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)). “[O]bjections to the inadequacies of” an
expert’s analysis “are more appropriately considered an objection going to the weight of the
evidence rather than its admissibility[.]” Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1188
(9th Cir. 2002). “[T]he factfinder may be confronted with opposing experts, additional tests,
experiments, and publications, all of which may increase or lessen the value of the expert’s
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testimony. But their presence should not preclude the admission of the expert’s
testimony—they go to the weight, not the admissibility.” Kennedy v. Collagen Corp., 161
F.3d 1226, 1230-31 (9th Cir. 1998). “[T]he rejection of expert testimony is the exception
rather than the rule.” Abarca v. Franklin County Water Dist., 761 F. Supp. 2d 1007, 1039
(E.D. Cal. 2011) (citation omitted).
Defendants first argue that Shideh’s opinion will not be relevant because he offers no
conclusion as to whether there was a manufacturing defect or design defect. Defendants
argue that Shideh’s report is vague in that he only states that the evidence “points” to a
manufacturing defect but that he does not state, on a more likely than not engineering basis,
that the block heaters at issue were defective in design or manufacture. As such, defendants
argue that Shideh’s opinion is irrelevant because it will not be helpful to a jury.
Shideh’s opinion that the evidence points to a manufacturing defect is indeed vague.
However, as the Ninth Circuit Court has observed, “[l]ack of certainty is not, for a qualified
expert, the same thing as guesswork.” Primiano, 598 F.3d at 565. Here, defendants have not
challenged Shideh’s qualifications as an expert. Rather, they challenge the substance of his
opinion. The court is not persuaded by plaintiff’s argument that Shideh’s suggestion as to
the vector of evidence is stronger than the more usual “more likely than not” opinion. On
the contrary, the Shideh opinion strikes the court as being weak and in effect a “punt” to the
jury. But, despite the weakness of Shideh’s opinion, it is not irrelevant simply because he
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did not express his opinion in terms of it being “more likely than not” that a manufacturing
defect existed.
Defendants next argue that Shideh’s opinion is not relevant because he did not address
the cause of the vehicles fires in general. Defendants also argue that Shideh’s attempt to
provide an opinion as to causation at his deposition fails. At his deposition, Shideh testified
that his conclusions were based on the fact that “[t]here were no significant remarkable
reports before this period and there is none after . . . the recall.”10 The recall in question was
a July 20, 2017 recall issued by Toyota Canada, which stated that “[t]he electrical power
cords of [some] dealer installed accessory engine block heaters may have been improperly
manufactured, resulting in contact between wires that could cause a short circuit. If a short
circuit occurs, the wire insulation may overheat, increasing the risk of a fire.”11 Shideh
opined that the vehicle fires may have been related to a product defect because there were
fires before the recall but no fires after the recall. Defendants argue that Shideh’s correlation
between the time when there were no known engine block heater fires and the time when
such fires appear to have occurred is too slight to be considered relevant. See United States
v. Valencia, 600 F.3d 389, 425 (5th Cir. 2010) (“[e]vidence of mere correlation, even a
strong correlation, is often spurious and misleading when masqueraded as causal evidence,
because it does not adequately account for other contributory variables”).
10Video Deposition of Shahrokh ‘Sean’ Shideh at 66:14-23, Exhibit B, Joint Motion
to Strike [etc.], Docket No. 128.
11Toyota Recall, Exhibit C at 1, Joint Motion to Strike [etc.], Docket No. 128.
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In response, plaintiff argues that although correlation may not be sufficient on its own
to establish causation, “where evidence of correlation itself is potentially relevant and
unlikely to mislead the jury, an expert who reliably discerns this relationship can present such
conclusions to the jury.” Id. Plaintiff argues that Shideh’s opinion is based on a number of
factors, temporal proximity being only one, and thus, it is appropriate for him to consider the
temporal relationship in reaching his conclusion that there may have been a manufacturing
defect in the engine block heaters.
When considered in the light of other facts, such as testing done by Toyota Canada
and/or ECC/ECI, Shideh’s causation opinion offered at his deposition is relevant.
Information as to the time period when fires appear to have occurred would “logically
advance[] a material aspect of [plaintiff’s] case.” Messick v. Novaritis Pharmaceuticals
Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) (citation omitted). Defendants’ arguments by and
large go to the weight to be given the foregoing evidence, not its relevancy.
But even if Shideh’s causation opinion testimony is relevant, which it is, defendants
argue that he should still be stricken as an expert because his testimony will not be reliable.
As the Supreme Court has observed, “‘[t]rained experts commonly extrapolate from existing
data.’” City of Pomona, 750 F.3d at 1049 (quoting General Elec. Co. v. Joiner, 522 U.S. 136,
146 (1997)). But, “where expert opinion is ‘connected to existing data only by the ipse dixit
of the expert’ . . . there may be ‘too great an analytical gap between the data and the opinion
pr[o]ferred’ to support inclusion of the testimony.” Id. (quoting General Elec. Co., 522 U.S.
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at 146). Defendants argue that here there is too great of an analytical gap between the
information on which Shideh claims his opinion is based and that opinion. In short,
defendants argue that Shideh has not provided an adequate basis for his opinion that the
evidence points to a manufacturing defect. Defendants contend that Shideh’s opinion is
based on three matters: his examination of five or six vehicle fires, his review of the recall
notice from Toyota Canada, and his review of documents produced in discovery by
ECC/ECI. Defendants argue that none of these support any kind of conclusion that there was
a manufacturing defect in the 8,000 block heaters which plaintiff purchased from Warren.
Defendants insist that these three matters, individually or combined, do not provide an
adequate basis for Shideh’s conclusion. In other words, defendants argue that Shideh’s
opinion evidence is unreliable because it is not based on sufficient facts or data.
In deciding the instant motion, the court’s focus has primarily been upon the question
of whether Shideh’s opinion is based upon sufficient facts or data. The court finds that
Shideh’s opinion – that “[t]he evidence pointed to a manufacturing defect in the assembly
[of engine block heaters]”12 – is supported by sufficient facts or data by reason of his reliance
upon the examination of several engine block heaters, Toyota Canada’s recall notice,13 and
Shideh’s documents review. That said, Shideh’s report and his deposition testimony offer
12Shideh Expert Report at 3, Exhibit A, Joint Motion to Strike [etc.], Docket No. 128.
13Although the recall notice itself would not be admissible, an expert may rely on
information he learned via the notice. West v. Bayer HealthCare Pharmaceuticals Inc., 293
F. Supp. 3d 82, 92 (D.D.C. 2018).
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no scientific principles, technology, or specialized knowledge that would answer the
question: “Were all of the engine block heaters produced during the relevant time period
defective or, what seems more likely, what was the failure rate?” The court recognizes that
there are probably some reliable principles which might have been brought to bear on these
questions, but Shideh did not apply such principles and his report and testimony do not
answer these questions. Shideh has not provided any basis for projecting his opinion about
the defective manufacture of the engine block heaters to the total universe of block heaters
purchased by plaintiff from Warren. Shideh may offer his opinion that the evidence points
to a manufacturing defect in the engine block heaters and he may explain that opinion to the
extent he did so at his deposition. But, with Shideh’s expert testimony limited, as it must be,
to his report and deposition testimony, plaintiff will have to look elsewhere for evidence of
how it was impacted by the alleged manufacturing defect.
Conclusion
Defendants’ motion to strike Shideh as an expert is denied.
DATED at Anchorage, Alaska, this 13th day of April, 2021.
/s/ H. Russel Holland
United States District Judge
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