Hoog v. Dometic Corp.

1

KEVIN W. HOOG and REBECCA HOOG, Plaintiffs, v. DOMETIC CORPORATION, a Delaware corporation, Defendant.

No. CIV-20-00272-JD

United States District Court, W.D. Oklahoma

March 22, 2024

ORDER

JODI W. DISHMAN, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Dometic Corporation's Motion to Exclude Expert Declaration of Allan J. Kam (“Motion”) [Doc. No. 106]. Plaintiffs filed a response in opposition [Doc. No. 113]. For the reasons stated below, the Court grants in part and denies in part the Motion.^[1]

I. BACKGROUND

Plaintiffs seek money damages following a fire, which they allege was caused by a defective NDR 1292 gas absorption refrigerator (the “Refrigerator”) manufactured by Dometic. [Doc. No. 27 at 1].^[2] The Refrigerator was installed as original equipment in Plaintiffs' 2007 RV, which Plaintiffs purchased from a private party around October 26 2011. [Doc. No. 27 at 1, 18].

Dometic initiated recalls of select models of its gas absorption refrigerators through the National Highway Traffic Safety Administration (“NHTSA”) in 2006 and 2008. See id. at 14. Plaintiffs' Refrigerator model was not included in the recalls. Plaintiffs allege, however, that the NDR 1292 refrigerators share common design defects with the recalled models and that Dometic is aware “that these model refrigerators continue to fail and cause fires ....” Id. at 16. Notwithstanding this knowledge, Plaintiffs allege that “Dometic never stopped selling . . . its dangerously defective refrigerators . . ., nor . . . paused production and sales so that the refrigerators could be modified to operate safely.” Id. at 14. As a result, Plaintiffs allege that Dometic sold more than “3 million defective gas absorption refrigerators” in the United States from 1997 to 2017. See id.

Additionally, Plaintiffs allege that Dometic had an ongoing duty to disclose known defects and to conduct recall and retrofit campaigns of its gas absorption refrigerators in a timely manner. See id. at 16. To that end, Plaintiffs allege that Dometic breached its duty by “actively concealing and failing to accurately and completely disclose the dangerous safety-related design defects inherent in their gas absorption refrigerators,” including Plaintiffs' Refrigerator. See id. at 16-17. Rather, Plaintiffs contend that Dometic affirmatively represented that their gas absorption refrigerators were “free of defects.” See id. at 17.

Following the Court's Order [Doc. No. 36] granting in part and denying in part Dometic's Partial Motion to Dismiss [Doc. No. 29], Plaintiffs' remaining claims in their Second Amended Complaint include Count 1, strict liability/design defect; Count 2, strict liability/failure to warn; Count 3, negligence; Count 4, negligence/post-sale duty to warn; Count 5, negligence per se; Count 6, negligence/post-sale duty to conduct adequate recall/retrofit; and Count 8, to the extent it alleges unfair trade practices under the Oklahoma Consumer Protection Act. Dometic has filed a Motion for Partial Summary Judgment regarding Plaintiffs' claims in Counts 4, 5, 6, and 8 and regarding Plaintiffs' request for punitive damages. See [Doc. No. 107 at 36]. Thus, regardless of the Court's ruling on Dometic's pending motion for partial summary judgment, Counts 1, 2 and 3 will remain for trial.

Plaintiffs have proffered Allan J. Kam, an attorney who formerly worked for NHTSA, to testify about the policies, procedures, and processes regarding vehicle and equipment recalls; the duties and obligations of manufacturers of vehicle equipment; and the nature, manner, and procedures regarding the performance of recalls involving safety-related defects and non-compliance issues. [Doc. No. 71-1 at 7-8]. Mr. Kam's expert declaration, which includes his background and qualifications, along with a transcript of his videotaped deposition, are attached to the Motion. [Doc. Nos. 106-1 & 106-7].

Dometic moves to exclude Mr. Kam's proposed testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Dometic asserts that Mr. Kam's opinions are not relevant and will not help the trier of fact to understand the evidence or to determine a fact in issue because Plaintiffs' Refrigerator was not included in the recalls, nor was Mr. Kam asked to opine on whether it or other comparable models should have been included. [Doc. No. 106 at 10]. Additionally, Dometic asserts that Mr. Kam's proposed testimony should be excluded because he offers legal opinions on the requirements of the National Traffic and Motor Vehicle Safety Act (“the Safety Act”).^[3] [Doc. No. 106 at 11-14]. Further, Dometic contends that Kam's opinions will confuse or mislead the jury “into believing that a safety defect still exists in the recalled refrigerators because NHTSA did not make a finding of ‘no defect.'” See id. at 16. Likewise, Dometic asserts that Kam's opinions concerning the safety remedy provided as part of the recalls and whether NHTSA approved of the remedy are not relevant because Plaintiffs' Refrigerator did not contain the safety remedy. See id. at 16-19. Finally, Dometic asserts that Kam's opinion that Dometic's completion rates for the recalls were well below average is not relevant and is unreliable. See id. at 19-22.

In response, Plaintiffs assert that “Mr. Kam clearly has the necessary qualifications to offer the NHTSA-related testimony contained in his expert declaration at trial,” noting his testimony has been admitted in both federal and state courts throughout the country. [Doc. No. 113 at 5-6 & n.4]. Plaintiffs assert that Mr. Kam's specialized knowledge of NHTSA procedures for manufacturer-initiated recalls-a subject beyond the ken of the average juror-will assist the jury in understanding the evidence. See id. at 6-8. Additionally, Plaintiffs assert that Kam's proposed testimony concerning Dometic's completion rate for the recalls is reliable in that Kam based his opinion on equipment recalls reported to Congress by NHTSA. See id. at 9. Plaintiffs maintain that the “gravamen” of their negligent recall claim is that Dometic knew or should have known that its Model 1292 refrigerators were a fire hazard and should have included them in the recalls. See id. at 11. To that end, Plaintiffs assert that the issues of whether Dometic's recalls were timely, effective, and inclusive of all defective products are questions of fact for the jury, and that Mr. Kam's proffered testimony will provide the jury with the necessary framework to evaluate that evidence. See id. at 12. Finally, Plaintiffs assert that Mr. Kam does not offer any legal conclusions regarding the adequacy of Dometic's recalls because that is a fact question for the jury based on the evidence “and their understanding of the NHTSA recall process, as informed by Mr. Kam's specialized knowledge.” See id. at 13.

II. DISCUSSION

The Court's previous order denying Plaintiffs' Motion to Exclude the Opinions of Walter Oliveaux sets forth the applicable legal standards relevant to the admission of expert testimony, and the Court incorporates them herein by reference. [Doc. No. 135]. Dometic does not challenge Mr. Kam's qualifications.^[4] Rather, Dometic's arguments are directed at the reliability and relevance of Mr. Kam's proposed expert testimony.

A. Mr. Kam's opinions are generally relevant and helpful.

Plaintiffs, as the proponent of Mr. Kam's expert testimony, bear the burden of establishing its admissibility. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc). Under Rule 702, Plaintiffs must demonstrate to the Court “that it is more likely than not that . . . [Mr. Kam's] specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702(a). “Relevant expert testimony ‘must logically advance[] a material aspect of the case,' and be ‘sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.'” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (quoting Norris v. Baxter Healthcare Corp., 397 F.3d 878, 884 n.2 (10th Cir. 2005) and Daubert, 509 U.S. at 591). In assessing whether expert testimony will assist the trier of fact, a court should consider “whether the testimony ‘is within the juror's common knowledge and experience,' and ‘whether it will usurp the juror's role of evaluating a witness's credibility.'” Id. at 476-77 (quoting United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006)).

Dometic asserts that Mr. Kam's opinions will not help the trier of fact to understand the evidence or determine a fact in issue because Plaintiffs' Refrigerator was not included in the recalls, and Mr. Kam was not asked to opine-and did not opine-on whether Plaintiffs' Refrigerator or other comparable models should have been included in the recalls. [Doc. No. 106 at 10]; see also [Doc. No. 106-7 at 49]. Likewise, Mr. Kam did not opine-nor was he asked to opine-that the recalls were underinclusive, untimely, or in violation of any applicable Safety Act requirement. See [Doc. No. 106-7 at 19, 49]. Mr. Kam explained in his deposition that he was not asked to “conduct that kind of review.” Id. at 49. Dometic asserts that the opinions that Mr. Kam does offer have no bearing on the allegations in the Second Amended Complaint and “are not tied to any factual dispute in this case.” [Doc. No. 106 at 11].

Plaintiffs maintain that the “gravamen” of their negligent recall claim is that Dometic knew or should have known that its Model 1292 refrigerators were a fire hazard and should have included them in the recalls. [Doc. No. 113 at 11]. To that end, Plaintiffs assert that the issues of whether Dometic's recalls were timely, effective, and inclusive of...