United States District Court, D. Colorado
DAVID HELMER, FELICIA MUFTIC, MICHAEL MUFTIC, CRAIG KANIA, and OLIVER MARTIN, on behalf of themselves and all others similarly situated, Plaintiffs,
THE GOODYEAR TIRE & RUBBER CO., an Ohio corporation, Defendant.
R. BROOKE JACKSON, District Judge.
Plaintiffs are owners of homes in Colorado and Wisconsin who used defendant Goodyear's Entran 3 brand of rubber hose in their radiant heating systems. They allege that Entran 3 tubing degrades and leaks-a problem, they believe, caused by a defective design that will cause inevitable failure in all Entran 3 tubing. They are suing Goodyear under a theory of strict liability for design defect, and they purport to represent other owners of property in Colorado and Wisconsin where Entran 3 tubing was installed. Their motion for class certification has been fully briefed and was argued on February 28, 2014. For the reasons that follow, I conclude that plaintiffs have met the requirements of Rule 23 for purposes of certifying the Colorado class.
Entran 3 hose is a component of a radiant heating system. Basically the hose is embedded in various parts of a home (the floor, walls, or driveways, for example) and conveys heated fluids through those areas, dispersing heat in the process. Of course, the hose itself is only part of the radiant heating system. It must be connected to a manifold that heats the fluid and pumps it through the hose. The hose is connected to the manifold using clamps or adhesives.
Over the last two decades, Goodyear has manufactured different versions of Entran hose for an intermediary called Heatway. An earlier version, Entran II, was the subject of extensive litigation, including class litigation. Even before that litigation began, however, Goodyear began designing Entran 3. [ECF No. 88, Ex. 5 and 6.] This new design would be an inner tube of EPDM rubber surrounded by an ethylene vinyl (EVOH) barrier designed to prevent oxygen transmission. The entire hose was encased in an EPDM outer cover. [ Id. at Ex. 9, p. 3.]
Plaintiffs define the injury in this case as the design defect common to all members of the putative class. Specifically, plaintiffs identify two defects that, they claim, will lead to inevitable failure resulting from ordinary use. [ECF No. 99, Ex. B (Moalli Rebuttal) at 5, 7, 9.] The first alleged defect is "the use of EPDM rubber in Entran 3 to carry hot liquid for the lifetime of homes where the product was installed." [ECF No. 99 at 2.] The second alleged defect is inconsistent thickness and bonding between the EVOH and EPDM layers of the Entran 3 hose. [ECF No. 99 at 7 n.8.]
According to the testimony of one of the plaintiffs, David Helmer, the Entran 3 hoses in his home have caused significant problems. The hose is brittle and crispy (Helmer Dep., pp. 22-23); black particles from the hose have ended up in other components of the heating system ( id. at 29); and he has found fluid leaking from the system ( id. at 36). The Muftic plaintiffs have also experienced problems with their heating system. In June 2010, the Entran 3 hose in their home split and caused a massive leak resulting in damage to the flooring, walls, and fixtures. (Felicia Muftic Dep., pp. 35-39, 46-47, 52-55).
Plaintiffs offer the opinion of Dr. John E. Moalli in support of their arguments. According to Dr. Moalli, using EPDM rubber for use in radiant heating systems and attempting to bond a rigid layer of EVOH to a flexible hose were poor design choices. These choices led to a product that was destined to fail under foreseeable use. [ECF No. 99, Ex. B (Moalli Rebuttal) at 5, 7, 9.] Dr. Moalli performed several tests to reach this conclusion.
Goodyear attacks Dr. Moalli's opinion, claiming that his analysis was limited to one section of hose which was destroyed after testing and was therefore unavailable to Goodyear's experts. Goodyear offers the competing expert opinion of Dr. Jorgen Bergstrom. Dr. Bergstrom performed additional laboratory tests on Entran 3 hose, including some joint testing with Dr. Moalli. He concluded that Entran 3 is not defective, and any crispiness, embrittlement, or leakage of the hose would be due to improper installation. [ECF No. 116 at 228-33 (Dr. Bergstrom's testimony regarding his conclusions).] Bolstering Dr. Bergstrom's conclusions, Goodyear also provides the reports of Mr. Gary Tompkin, a former chief chemist at Goodyear, who examined hose in plaintiffs' homes. He concluded that improper clamps and adhesives were used, and that hoses were subject to excessive bending near the manifold connection. [ECF No. 93, Ex. B (Tompkin Report) at 2-20.]
Dr. Moalli and the plaintiffs respond that Dr. Bergstrom's methods were incapable of capturing the "progressive degradation and embrittlement of the hose from the failing rubber. [ECF No. 99, Ex. B (Moalli Rebuttal) at 3-6, 9-10.] Moreover, Mr. Tompkin's testimony was based primarily on visual field inspections and little scientific testing. [Def.'s Br. at 10.] These inspections, Dr. Moalli states, do not account for degradation of the interior of the hose.
Finally, evidence from the home of an unnamed putative class member, the Malmgren home, exhibits a leak in a hose that was otherwise installed correctly. [ECF No. 99, Ex. B (Moalli Rebuttal) at 7 ("The Malmgren hose was operated at relatively low temperatures, was not noted to be subjected to excessive bending stresses, and also had a constant tension clamp at the connection point."); ECF No. 93, Ex. B (Tompkin Report) at 15.] As Dr. Moalli points out, this supports the theory of a design defect and tends to undermine Goodyear's argument that individualized factors contributed to injuries among the putative class. [ECF No. 99, Ex. B (Moalli Rebuttal) at 7.]
A. Strict Liability for Design Defect.
At the hearing on class certification plaintiffs abandoned all claims except strict liability for design defect. "To recover on a theory of strict products liability [in Colorado], a plaintiff must establish that: (1) the product is in a defective condition unreasonably dangerous to the user or consumer; (2) the product is expected to and does reach the consumer without substantial change in the condition in which it was sold; (3) the defect caused the plaintiff's injuries; (4) the defendant sold the product and is engaged in the business of selling products; and (5) the plaintiff sustained damages." Bartholic v. Scripto-Tokai Corp., 140 F.Supp.2d 1098, 1106 (D. Colo. 2000) (citing Barton v. Adams Rental, Inc., 938 P.2d 532, 536-37 (Colo. 1997).
B. Class Certification Requirements.
It is axiomatic that a class action lawsuit is an exception to the general rule that "litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979)) (internal quotation marks omitted). Federal Rule of Civil Procedure 23 sets out the parameters governing class actions in federal courts. Rule 23(a) requires plaintiff to prove that
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). These prerequisites "limit the class claims to those fairly encompassed by the named plaintiff's claims. Dukes, 131 S.Ct. at 2550 (quoting General Telephone Co. of Northwest v. Falcon, 457 U.S. 147, 156 (1982)) (internal quotation marks omitted).
In addition to satisfying the four prerequisites in Rule 23(a), the putative class must fall into one of the categories listed in Rule 23(b). Plaintiffs here rely on the third category which permits certification if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3).
The U.S. Supreme Court recently emphasized that Rule 23 imposes weighty obligations on plaintiffs and certifying courts. Dukes, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 161) ("certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied'"). "Frequently that rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim." Id. Put another way, "sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question." Id. (quoting Falcon, 457 U.S. at 160).
Nevertheless, a peek at the merits is not an invitation to "turn the class certification proceedings into a dress rehearsal for the trial on the merits." Messner v. Northshore Univ. HealthSys., 669 F.3d 802, 811 (7th Cir. 2012). On the contrary the Supreme Court, after its decision in Dukes, explained that "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. ...