A Motorcycle Built for Two

To capitalize on our increasing popularity, the contributors at Abnormal Use have floated the idea of pursuing product sponsorship deals, e.g., Old Spice becoming the official deodorant of the blog. Today, I adopt the Honda Gold Wing as the blog’s unofficial motorcycle. No motorcycle better speaks to the classic risk-aversion of the defense attorney. I, personally, have never seen a Gold Wing rider 1) without a helmet or 2) cruise at a speed in excess of 35 miles per hour. In addition, the design of the Gold Wing promotes the use of Daubert against all oncoming Plaintiffs’ attorneys.

In American Honda Motor Co. v. Allen, No. 09-8051, 2010 WL 1332781 (7th Cir. Apr. 7, 2010) the Seventh Circuit considered the application of Daubert prior to an order certifying a class. Honda sought leave to appeal the district court’s grant of class certification. Plaintiffs, unhappy purchasers of Gold Wings, asserted that the bike had a design defect: Namely, the motorcycle does not properly compensate for “wobble.” Imagine the front wheel of your bike shaking from right to left to the point where you would lose control. (Note: A Google search will reveal multiple videos on motorcycle wobble not appropriate to link here.). Plaintiffs’ claims were based entirely on the expert report of Mark Ezra, who has testified against Honda since the mid-1980s. Ezra developed a wobble decay standard, which set forth that a motorcycle, by its design, should dissipate a certain amount of wobble so that the rider does not react to the wobble.

The District Court, for multiple reasons, was critical of Mr. Ezra’s science, but declined to exclude him at such an early stage of the proceedings. The Seventh Circuit ruled that this failure to exclude was an abuse of discretion and “exclusion is the inescapable result” in this matter. Going forward, the Seventh Circuit noted that some substantive decisions may have to be made prior to deciding the motion for class certification.

We hold that when an expert’s report or testimony is critical to class certification, . . . a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on a class certification motion.

Id. No longer can a Plaintiff bootstrap his way to class certification by hiring an expert. As we noted earlier here, the Seventh Circuit seems earnestly concerned in making sure Defendants are treated fairly in federal class actions, or, in this case purported class actions. While Plaintiffs’ complaint may pass muster under Iqbal/Twombley, the Seventh Circuit sends yet another message to Plaintiffs: Consider Daubert before filing your class action. Moreover, the Seventh Circuit has set forth another method for a court to consider the substance of a lawsuit early in the litigation. Defendants, begin working on your Daubert motions right away.

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