In Re Zurn Pex Plumbing Products Liability

with to Tom & image Accordingly, respect Oz. began with design mensional Jerry publicity based on the first products and photo stills public from the domain grant poster, modify the district court’s was to create we goal the posters, movie summary judgment permanent of the the film character. and recognizable as product the three injunction the to be consistent with inference only reasonable categories products above for perspective and of described establish details added to to Gone the Wind The Wizard chosen be consis- with and full realization were of result, Jerry all & respect As Oz. With to later Tom characters. with the film tent to make posters, to each two- is authorized of details AVELA the addition visual repro- image reproductions, to create faithful but not public domain dimensional im- on other poster images makes duce those movie product three-dimensional the make works products “further or to derivative use of the delineation permissible Jerry. Accordingly, in” and we the feature- based on Tom the characters contained of Silverman, summary judgment affirm of grant 870 F.2d at the length films. See Bros, permanent injunc- the affirm the dis- Warner and Accordingly, also we tion re- summary crafted district court with grant judgment trict court’s of Bros, Tom spect Jerry products. to all other & respect The Wizard Warner the Wind and Oz Gone with of III. CONCLUSION injunction category for this of permanent products. reasons, foregoing For we affirm large part grant the district court’s of sum- also held characters We above Bros, mary on the judgment to Warner Jerry public of Tom and are not and the addition, copyright infringement In issue of domain. because the charac- injunction. re- through resulting permanent We copyright protection ters achieved respect category all but first verse with one the short films before domain, in corre- poster public products, AVELA we vacate movie entered permanent injunction posters necessarily sponding part the later movie characters, remand those even the use of entered the district court. We exhibit permanent injunc- poster movie the first requires but modification proceedings Bros.’s authorization. Rus- tion and further consistent Warner See sell, (“Therefore, opinion. 612 F.2d at since with ‘Pygmalion’ exhibition of the film necessar-

ily parts involves exhibition Shaw’s copyrighted, plaintiffs which is still

play, may prevent renting

here defendants from

the film for exhibition without their au- Bros,

thorization.”). has granted Warner to the extent it has

such authorization challenge that it averred will not the re- PEX re ZURN PLUMBING movie, (or posters production “posters LIABILITY PRODUCTS cards).” lobby lobby cards as LITIGATION Therefore, may use the first AVELA Cox; Terry Cox; Haugen; Jerry & for the short film Denise poster, Tom Kevin Boot, Hvezda; Haugen; Puss the fashion de- Robert Car Gets Christa Jody Hvezda; Minnerath; Brian publicity above for the materials rie scribed Oelfke, Minnerath; on be- with the and The Michelle for Gone Wind Wizard of half and all of themselves others

similarly situated, Plaintiffs-

Appellees, Pex, Inc.; Industries,

Zurn

Inc., Defendants-Appellants. Justice,

American Association for Curiae.

Amicus

No. 10-2267. Appeals,

United States Court

Eighth Circuit. 16, 2011.

Submitted: March July

Filed: En

Rehearing Rehearing Banc 16, 2011.* Sept.

Denied * Judge Melloy participate grant petition rehearing did in the would consid- en Judge eration or this matter. decision of Col- banc. loton, Judge Judge Gruender and Benton DC,

Mason, Washington, Michael A. brief, McShane, Francisco, CA, on San for appellees. WOLLMAN, MURPHY,

Before GRUENDER, Judges. Circuit MURPHY, Judge. Circuit brought ac- Minnesota homeowners Pex, tion1 Inc. against Zurn (Zurn) Industries, Inc. alleging that brass compаny’s used in the linked cross (PEX) systems are polyethylene plumbing inherently pretrial defective. motions sought the homeowners' class certification warranty, for protection, their consumer claims, and Zurn to negligence and moved strike the of two of the home- experts. After Zurn’s denying owners’ expert testimony, motion to strike granted district court2 the homeowner re- quests for class certification for their war- ranty claims, negligence and but it denied for claims. protection their consumer Zurn from appeals the district court’s cer- tification order. affirm. We I. a home O’Neal, manufactures and markets argued, Minneapolis,

James A. plumbing system tubing, PEX MN, uses Borger, Connolly, John P. Daniel J. copper alternative to traditional water Fiterman, Amy Snieg, R. A. David Minne- pipes. are Carlson, tubing systems PEX marketed MN, apolis, Jay Robert M. C. install, cheaper, longer as to easier and CA, Bulger, Diego, San and Richard B. Goetz, lasting copper plumbing systems. than Lazatin, M. Los Angeles, Carlos systems CA, The Zurn PEX have been install- brief, on the for appellants. throughout ed in homes United States. Magnuson, argued, Eric John Minne- its systems Zurn has sold PEX Bratvold, MN, Diane B. K. apolis, Robert year warranty. limited Jr., Rudd, Shelquist, J. Gordon Minne- MN, Raiter, apolis, plumbing systems Shawn in this Michael St. issue Paul, MN, LaDuca, Gary joined together using E. PEX tubes Charles J. are only Montgomery, 1. This United action involves claims Minne- The Honorable Ann D. by plaintiffs sota homeowners. Claims filed Judge States District for the District of Minne- in other states have also been consolidated in sota. pretrial proceed- District Minnesota ings by Judicial on Panel Multidistrict Litigation. § See U.S.C. 1407. fitting crimp. a brass A placed auger tube is dispersive electron spectroscopy, mi- fitting, crimp around a is tightened testing, crohardness materials analysis, tube, around the outside of the chemistry and the water analysis, and static load resulting pressure creates a testing. performed seal between He also a “U-bend” fitting. experiment the tube and the The homeowners where metal samples from the allege fittings that the brass were bent shape used these into a U and then systems tested to are “doomed to leak determine their susceptibility within war- ranty” subjected SCC. Dr. Staehle susceptibility because of their samples these strain, (SCC) stress immersed them in cracking corrosion different which re- wa- solutions, ter sults from a and then pressure combination of checked them after two, four, and six corrosion. months. He argue The homeowners concluded that his experiments inevitably showed that begins “rapid SCC to affect Zurn’s SCC would occur” in Zurn’s brass fittings upon fittings. brass their installation and exposure to water. The SCC increases knowledge Based his about SCC and over time and fitting eventually begins tests, his numerous Dr. Staehle concluded leak, causing costly water damage to process “[t]he failure in Zurn fittings argues homes. Zurn that SCC is not an starts as soon they exposed are inherent defect and that is instead water,” domestic “[significant numbers of variety caused of factors which in- leak-causing failures appear to occur in as improper clude overly installation and cor- “[tjhere single year,” little as a is no rosive water. Some the homeowner evidence ... the Zurn fittings can leaked, plumbing systems have but others рerform reliably years for 25 ... nor are have not. there any bases for a much longer design of years.” life about 40 Dr. Staehle attrib- parties

The disagreed pretrial about dis- uted the poor performance of fittings covery. The sought homeowners a single to choice of poor materials and to manufac- phase discovery plan, but Zurn suggested turing. rejected He theory discovery. bifurcated The district court SCC Zurn’s fittings was caused un- adopted Zurn’s approach and ordered that usually corrosive water or improper instal- phase the first discovery of address the lations. question limited of class certification. At

the close of phase the first discovery, of Dr. Blischke is a statistician and Profes- the homeowners moved for class certifica- sor Emeritus at the University of South- tion. Zurn opposed it and moved to strike ern California. He has written a number testimony from two of the homeowners’ of on product books reliability and warran- experts, Roger Dr. W. Staehle and Dr. ties. Dr. Blischke undertook a study of Wallace R. Blischke. Zurn PEX plumbing systems analyzed the failure rate of systems those

Dr. Staehle is the former Dean of the Zurn’s brass fittings. He grounded his University of Minnesota Institute of Tech- analysis on the available data nology. He has been researching and obtained from Zurn. Since he found that publishing articles on SCC for over 40 data incomplete, he required was to make years. Dr. Staehle examined Zurn brass assumptions about the “mean time to fail- fittings, including some which had leaked ure” experienced by the brass fittings. as well as some which were new. He conducted a bаttery of fittings. tests on the Based on witness testimony and docu- His tests scanning included electron mi- ments indicating that Zurn considered 40 croscopy, dispersive electron spectroscopy, years average to be the lifetime of PEX its in- its focused Daubert conducting a mean After Blischke assumed

systems, Dr. mo- the district court denied Zurn’s quiry, years. Using that of time to failure the ex- to strike the of tions average assuming that figure and however, clear, perts. The court made contained brass installation household rulings not final and that its its were of 99% homes fittings, he calculated change might view the issues as discov- in at least one of a leak experience would was ery continued and additional evidence Dr. years. Blischke within produced. analysis based on the same also conducted figures failure time to alternate mean then turned to the The district court system The failure years. and 100 Fed. question of class certification under longer high even when rates remained claims fell R.Civ.P. 23. The homeowner project- were figures to failure categories: mean time into consumer three broad warranty, negli- protection, ed. breach of claim, the gence. For each homeowners disagreed ‍​​‌​‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​​‌‍appro- about the parties The certify following moved to class: v. Merrell Daubert priate application All entities that own persons and Pharmaceuticals, Inc., 509 U.S. Dow structure located within State (1993), 125 L.Ed.2d 113 S.Ct. Pex Minnesota that contains The home- stage. class certification system with Zurn3 brass plumbing expert testimony should urged owners in- crimp fittings. proposed if it stage аt this were “so only be excluded cludes, limitation, per- all such without provide information flawed cannot Zurn or sons or entities who contacted requisites of class certifi- to whether the their Zurn Pex representatives its about argued, met.” Zurn how- cation have been system plumbing and were denied ever, that court should conduct partially warranty coverage for denied full and conclusive Daubert be- system plumbing failure of the Zurn Pex a class. certifying fore based on claim “corrosion” warranty the or that by not covered a court charted middle The district warranty ap- alleged other limitations positions urged by the the course between plied. reviewing After the evidence parties.

had been the court concluded produced, by definition used the district This was inquiry that a full and conclusive Daubert analyze court to the Rule 23 class certifica- at necessary productive not would be respect tion to the requirements with stage particularly litigation, It categories three of homeowner claims. opinions change the could expert since on what it termed the “core dis- focused discovery. The court in- during continued pute the which arose out parties” between 23(b)(3)’s inquiry a Daubert ques- stead conducted focused requirement of Rule Dr. opinions to assess whether the class law or fact common to the tions of Blischke, Dr. based on their predominate questions. Staehle and over individual reliability expertise areas of and the of The first that the issue court determined evidence, con- analyses respect of the available reliance in their individual the amenable deciding protection issues sumer claims not should be considered It to to refused relating class certification. class wide resolution. to system with plumbing a the class defini- the class must have 3. The district court amended by adding proposed by crimp fittings. tion homeowners brass Zurn clarify the word to that members of "Zurn" claims, no only “necessary one extent to certify a class for those and determine decision. court appealed that The the nature the evidence that has would be claims, sufficient, warranty deter- if plaintiffs general next addressed the allega- questions true, predominate mined that common prima tions were out a make facie them, a and certified class of warran- case for the class.” v. Blades Monsanto Finally, Co., (8th Cir.2005). the court a ty claimants. certified We negligence class for the claims. It limited required have never a district court scope limited the of that class to those conclusively decide at the class certifica- already members who “suffered dam- had stage what ultimately tion evidence will age property,” to their that is those who at admissible trial. already injury recognized had suffered an Here, agree both sides that the relevant in tort. expert testimony must be evaluated and 28(f) interlocutory Rule brings this weighed by the court it before decides to of the order issued appeal class. Zurn certify urges that we adopt warranty negli- certifying court rule, a new district requiring a court to gence argues classes. Zurn that the dis- determine an conclusively early stage, expert have excluded trict should just expert whether or not evidence is of Dr. Staehle and Dr. Blischke opinions support sufficient to class certification un- in declining and that it erred to conduct der Rule but also whether that evi- calls full conclusive Daubert

what ultimately dence will be admissible at trial. further before certification. Zurn urges approach It us to follow used applied contends that the district court panel Circuit Seventh American Hon- wrong standard and abused its discretion Allen, Company, da Motor Inc. certifying warranty negligence (7th Cir.2010) curiam). (per 816-17 by including persons classes and erred plumbing sys- whose class plaintiffs The American Honda yet tems had not leaked. sought certify motorcycle class design owners based on an alleged defect

II. their affecting motorcycles. 23(c)(1)(A) that a provides Rule relied on had who created his methodology court should address certifi class own and standards which he practicable at an after a “early single motorcycle. cation time then tested used sues or as a person represen developed only is sued These tests had been “to deciding tative.” When whether a common assist with lawsuit and not con- [were] predominate through over individual issues of logical indepen- issues ceived the flow 23(b)(3), research,” one,” under Rule the court con “sample should dent had a size of “rigorous analysis” including by acceptance” “lack[ed] duct and the scientific parties community. the “examination what would Id. at 816. The Seventh Cir- required prove trial.” Reli panel dealing at Avritt v. сuit was thus with a case Co., Ins. 615 1029 expert astar F.3d with conclusions based on flawed Life (8th Cir.2010). Expert disputes methodology sample “concern and a size of one ing setting preference the factual of the case” should when it stated its for an early stage be resolved at the class certification full conclusive and Daubert review.4 Stores, Inc., appears It no other circuit has followed the it. See Dukes v. Wal-Mart 603 Honda, approach in and (9th Cir.2010) (en banc), advocated American n. 22 sitting rejected at least one court en banc has positions, it examined the very- extreme parties’ in us is the case before The record light of expert opinions Hon- the in reliability the in American from one different alleged that purpose case has evidence the party No the available and da. similarly testimony hardly here expert they the can were offered.5 We which Dr. Staehle agree Both sides flawed. following prec- trial court for our fault the in their qualified are well and Dr. Blischke Blades, and we see no reason edent they gener- used fields respective that one the “cardinal rule ... abandon methodologies. ally recognized and reliable prior by decision of is bound the panel that the district Zurn nonetheless contends Luebbers, Owsley v. panel.” class certifi- determine at the court should Cir.2002). Moreover, we are not discovery merits stage, and before cation of American approach convinced commenced, or not the whether has even would be most workable Honda ultimately be admitted will expert opinions litigation or that it would serve complex at trial. than the one fol- management better case' not favor circuit does precedent Our own by the district court here. lowed Blades, In urged by Zurn. approach court sought The district examine which a district court decision approved we reliability expert testimony light Dau- rejected for a full explicitly request existing state of the evidence of the stage. at the certification bert requirements in mind. The with Rule 23’s affirmed, concluding at 569. We why in this case record illustrates “findings as to that the district court’s why requir- appropriate was approach limited to properly experts’ disputes were in- more conclusive Daubert ing an even whether, appellants’ allegations if basic would stage at the class certification quiry suffice, true, common could were evidence impractical. have been As case, to setting the factual given respect to Dr. Blischke: court noted injury.” Id. at 575. classwide show circum- analysis Dr. Blischke’s Zurn terms declining to conduct what availability scribed inquiry, full and conclusive Daubert However, as merits discov- claims data. properly focused Blades be- ery unfolds and more information of the evi- “determining] the nature available, year comes Dr. Blischke’s sufficient, plain- if the that would be dence failure for the time to estimate mean true, were general allegations tiffs may not may be admissible. prima case for the class.” make out facie Id. at 567. sought after all bifur- It was which limited discovery which resulted in a cated followed

In this district court stage, prе- the class certification a “tai- record at it termed applying Blades what kind of conclusive Rejecting venting. both full and analysis. lored” Daubert -, apply grounds, “Daubert U.S. sion that did not rev'd on other (2011). While stage 180 L.Ed.2d 374 S.Ct of class- the certification case panel mentioned the Dukes, an Eleventh Circuit proceedings.” 131 Wal-Mart v. action unpublished opinion, the issue in in a recent at The court here made S.Ct. 2554. district weight certain case was the afforded to rejected the home- no such conclusion. It testimony, admissibility. expert Sher not its all consider owner contention that it should 09-15798, Fed.Appx. Raytheon, No. 419 v. fatally and evidence that “not flawed” 890, (11th 887, at *3 Cir. 2011 WL 814379 conducting apply by a proceeded to Daubert 9, 2011) (unpublished). Mar. light inquiry reliability in expert into focused evidence. Supreme Court of the available the 5. The dissent notes that recently court's conclu- a district “doubt[ed]”

613 Alan requested. Zurn later Daubert bench trials. See Charles inquiry Daubert Gold, Wright, James 29 Fed. Prac. is little doubt that bifurcated Victor While there 6266, (2010), § may efficiency increase in a com- & Proc. Evid. n. 90.2 and discovery this, cases of it means there cited. The “usual concerns the plex case such also may keeping expert [.Daubert ] the available evidence. unreliable gaps rule — adapt jury present not Expert may have to as such from opinions —are by discovery, setting.” such a gaps Corp. are filled merits Metavante v. Bank, 748, Emigrant will reexamine 619 F.3d 760 district court be able to its Sav. (7th Cir.2010). rulings. See v. St. Jo- evidentiary Walzer 1108, (8th Hosp., 1113 seph State 231 F.3d correctly points out we re- Cir.2000) rulings (“Evidentiary made a quire only on rely courts admis- during trial court motiоns limine are summary sible at the judgment evidence A preliminary____”). rulings court’s on Co., stage, v. see Tuttle Lorillard Tobacco may class certification issues also evolve. 917, Cir.2004), 924 but the (“An 23(c)(1)(C) See order Fed.R.Civ.P. questions quite are then different than at grants denies class certification the stage. class certification Because sum- may be or amended before final altered mary judgment litigation ends without a judgment.”). trial, the court must review the evidence in “is inherently light certification of what would Class be admissible before tentative,” Lybrand Livesay, jury. & v. either the court or Coopers See Fed.R.Civ.P. 463, 56; 11, 2454, Inc., Lobby, 437 469 n. 98 S.Ct. 57 v. Liberty U.S. Anderson 477 (1978), may 242, 248, “require 2505, L.Ed.2d re U.S. 106 S.Ct. 91 L.Ed.2d (1986). visiting completion discovery,” full upon Blades, F.3d at 567. Zurn’s desire contrast, inquiry court’s for an exhaustive and conclusive Daubert “tentative,” motion for class certification is completion before merits “preliminary,” Coopers and “limited.” & discovery cannot be reconciled with the Lybrand, 437 U.S. at 469 n. 98 S.Ct. inherently preliminary pretrial nature 2454; Blades, 400 F.3d at The evidentiary rulings. and class certification only must determine if “questions law or main purpose of Daubert ex fact common to predomi class members protect juries questions clusion from being affecting only is nate over indi swayed dubious vidual testimony. scientific members action [and if] class is That is not at implicated superior interest the class to other available methods for stage judge fairly efficiently adjudicating certification where the is the the con 23(b)(3). “ga troversy.” decision maker. The district court’s Fed.R.Civ.P. As tekeeping function” under Daubert generally en certification decisions are sures that evidence “submitted to made before the close of disсovery, merits ” jury sufficiently analysis necessarily prospec is relevant and reli court’s is able, Inc., Blades, Technologies, subject Bonner ISP 259 tive and to change, (8th Cir.2001) (emphasis F.3d and there is bound to be some added), evidentiary uncertainty. is need for “[t]here but less Because deci gatekeeper keep gate certify when the sion to class is far a conclu from gatekeeper keeping gate only judgment sive on the merits of Brown, himself,” necessity ... accompanied by United States v. is “of (11th Cir.2005). procedure appli Similar rea the traditional rules and application cable support stringent sons less to civil trials.” Eisen v. Carlisle & 614 Zurn, 178, 2140, According ap to Dr. Staehle S.Ct. U.S.

Jacquelin, (1974). in an strain his plied unrealistic amount of 40 L.Ed.2d his overall testing “U-bend” which affected district court conclude We invariably fittings conclusion that its brass a focused Dau by conducting not err did would SCO. In the view of experience the reliabil analysis which scrutinized bert Dr. to expert, Zurn’s Staehle’s decision testimony light of the expert ity of the apply testing speci a 20% strain brass and the cur for class certification criteria the actual mens was unreasonable because the doing the so state of evidence. rent properly strain installed brass requisite “rig the district court conducted respond was The homeowners lower. analysis” parties’ the claims to orous the was in the con 20% strain reasonable liabili “whether the defendant’s determine text of More experiments. Dr. Staehle’s may be established ty to all over, they argue disagreement that any Avritt, 615 at common evidence.” appropriate only over af the strain level evidence, weight fects the of the not its admissibility. III. here The issue is similar to one tailored Daubert concluding After its DC-8, Quiet Technology addressed Inc. analysis, the district court denied Zurn’s Ltd., v. Hurel-Dubois UK 326 F.3d opinions offered motion to strike the (11th Cir.2003). There, expert ap- Dr. and Dr. Blischke. On its Staehle (computational used reliable method fluid dispute Zurn does not either of the peal dynamics), parties wheth disputed but qualifications methodology. expert’s expert “put wrong er the information” reputations experts Their as eminent a computer program into that he used to respective question. fields are not their compute Id. his results. at 1343-44. The Rather, argues opinions their parties circuit court determined that when facts not based on “sufficient or data”

were dispute specific “the numbers” be used therefore have been stricken. should analysis, in an otherwise reliable scientific Having already concluded ... “alleged flaws are of character applied legal the district court the correct expert’s] impugn accuracy of [the in declining standard to strike the results, reliability general not the scientific evidentiary we will opinions, reverse those of his methods.” Id. 1345. The district rulings only upon showing that it abused not discre had therefore abused its in way discretion which “affected a its by declining expert’s tion exclude party’s rights.” substantial Weitz Co. v. under Daubert. at 1346. Ob evidence Id. (8th Washington, MH 631 F.3d jections ‍​​‌​‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​​‌‍generally reliable scientific evi Cir.2011). that, keep We in mind also weight, admissibility. go dence to its not its rule, general the factual basis of an “[a]s 1345-46, id. at cited. See cases goes expert opinion credibility of the Bonner, testimony, admissibility.” validity not one of Dr. challenged by at 929 (quoting Chicago inputs Hose Staehle’s also Co., Zurn. The district court concluded that Transp. Nw. Cir.1996)). question proper Such be ex strain should only fundamentally applied if un in the U-bend tests went to “the cluded “is so results, Dr. supported accuracy [but] that it can offer no Staehle’s assistance jury.” general validity Id. at scientific of his meth- 929-30. Supreme pointed longer As the Court out there bases for a design ods.” much Daubert, expert’s evaluating years.” in when life about Dr. Blischke also solely focus ... must be on opinion, provided “[t]he additional calculations on based methodology, not on the principles longer figures, up mean time to failure they generate.” conclusions that 509 U.S. years, figures and those still showed 2786. A district court 113 S.Ct. failure high years. rates within 25 necessarily has “considerable discretion” expert to admit testimo-

deciding whether that claims there were other ny disputed. where the factual basis is in Dr. approach. weaknesses Blischke’s It Marvin Lumber & Cedar Co. v. PPG In- assumptions fittings faults his that brass (8th Cir.2005). Inc., dus., randomly fail would different house court not We conclude did that an average holds and household would in declining abuse its discretion to strike fittings. have 50 The record that shows testimony. Dr. Staehle’s actually range Dr. Blischke considered a analyses, just variables in his he as did attack Dr. Zurn’s main on Blisch considering fig when mean time to failure testimony system about failure rates ke’s rates, provided ures. He failure for exam that assumed a mean time to failure is he 40, 50, 60, ple, fittings based on and 100 attempting rather than to calculate figure system. per approach household This was figure that from available data. Dr. reasonable, for expertise Dr. Blischke’s is explained necessary it Blischke reliability, plumbing statistics and or figure a mean to assume time failure metallurgy. His can help a fact warranty because he lacked reliable data finder understand implications opin pointed from Zurn. He to Zurn’s inade ions offered other experts such as Dr. quate keeping record and evidence that If a Staehle. factfinder doubts Dr. Blisch many stopped of its customers had re assumptions, ke’s then the factfinder will porting began reject leaks after Zurn rely discount his ultimate conclusions or directly claims. Zurn does not his alternate which account for calculations Dr. it dispute position Blischke’s different values. possibilities Such do not generally acceptable to include a reason validity of Dr. diminish Blischke’s sci analysis in a assumption able statistical expert’s opinions entific methods. An are when there is insufficient data to calculate simply not inadmissible because an under particular value. may lying assumption be contestable. Because Dr. Blischke’s assumed mean Lumber, Marvin 401 F.3d at 916. figure time to failure unsupported, was not did not abuse its discre- The district court indicated that it was declining opinion. tion in to exclude his aware of certain limitations in Dr. Blisch- adopted analysis Dr. Blischke testified that he a 40 given ke’s had his year figure weight.” mean time to failure after ex- It “proper evidence its also not- amining report which Zurn itself rе- ed that as additional evidence is uncovered years discovery, year to 40 “a lifetime” “Dr. during ferred normal Blischke’s 40 fittings. may for its He also stated that he estimate for the mean time to failure reports prepared by may relied on other not be There is noth- admissible.” example, ing stage witnesses in this case. For in the record at this to show that Dr. “fundamen- expert opinion opinions Dr. Staehle’s there was “no Blischke’s are so tally unsupported” require evidence ... the Zurn can as to exclusion. Bonner, perform reliably years for 25 ... nor are 259 F.3d at 929-30. See 616 closely up ques- standing court did is bound with the that the district

We conclude denying grant tion of whether and how the law will abuse its discretion not err or the homeowners’ him to strike relief.” Id. Zurn’s motion testimony. claim, asserting warranty In a allege a “to enough” plaintiff “is not for IV. a product that a line contains defect members of the argues Zurn that some product manifesting that a is at risk for standing bring to warranty class lacked defect; rather, must al plaintiffs court their claims and that product actually that lege their exhibited by certifying that class. therefore erred alleged Simplicity, defect.” O’Neil v. ordinarily afford the district court We (8th Cir.2009). Inc., 574 F.3d determining whether “broad discretion O’Neil, example, crib owners failed to class,” Young certify to a Arthur & Co. cognizable warranty state claims because (8th Reves, Cir.1991), 937 F.2d they alleged had not that their cribs actu essentially “the factual basis of recognizing that ally dangerous exhibited a defect ... the certification and the dis- children; might have harmed their a mere power manage trict court’s inherent might dеvelop likelihood that crib a dan pending litigation,” control Gene & Gene gerous enough. defect was not Id. at 503- LLC, BioPay LLC v. 541 F.3d 04. (5th Cir.2008). only for While we reverse discretion, that a district court abuse of Zurn that argues plaintiffs those “abuses its discretion if it commits an er- plumbing systems have not whose Blades, ror of law.” 400 F.3d at 566. group accurately leaked —a most referred “dry plaintiffs”6 to as the no stand —have may certify A district court ing they, because like the crib owners in class, however, “if it contains members O’Neil, inju cognizable have not suffered a Avritt, standing.” lack at who 615 F.3d ry. that respond The homeowners If ability 1034. members “who lack the correctly district court determined that the bring a themselves” aré in a suit included dry plaintiffs alleged have a current harm class, jurisdiction the court lacks over their they that the Zurn allege because brass claims, id., see and we therefore review fitting upon contained a defect installation novo, see, standing challenge Zurn’s de warranty breach of Minnesota law. See Co., e.g., Curtis Lumber Inc. v. Louisiana §§ Minn.Stat. 336.2-313 & 2-314. Corp., Pac. Cir. 2010). standing, plaintiff Pointing To show bears to several words the class order, establishing “injury argues the burden of fact certification fairly ... chal that a traceable to the did not follow our rule defendant, lenged likely required action of the manifestation of a for a defect is O’Neil, claim. be redressed favorable decision.” See [to] Stores, Inc., point Braden v. Wal-Mart 503. At one the district court com- (8th Cir.2009). 585, 591 In most cases mented that the homeowners were “not question plaintiff] required allege prove “the whether has a a manifesta- [a injury It сognizable sufficient to confer tion of defect.” had however stated [a] injury. group legally cognizable This is thus While Zurn refers to these class members as injury” plaintiffs, presumes "dry “no that label appropriately more referred negative question— to a answer contested plaintiffs.” whether or not these have suffered a dry plaintiffs standing therefore had the home- The previous sentence in its claims, bring the brass fit- their and the district court “prove had to owners certifying recover in in in order to did not err class which tings are defective” are read the sentences included them. warranty. When posi- it clear that the court’s together, Zurn that further contends the give warranty rise to a was that to

tion defect, court its discretion in contain a but abused fitting claim a must dry already granting caused exter- class certification to the that it need not have plaintiff interpreting claims before damage. position nal This consistent warranty. of limited company’s if was some lack of terms even there with O’Neil warranty argues in court’s statement It that its bars claim the district precision fitting already unless a has leaked. In applicable standard. O’Neil never support Zurn cites its own statement dis that a child would have indicated claiming implied along mani- warranties with the injured by a crib for a defect to be following warranty, sentence: “Under this fest. you only if right have to reimbursement distinct from dry plaintiff The claims are alleged or leak is determined to failure any brought by hypothetical injury “no product(s) be a direct result of the dry plaintiffs because the had plaintiffs,” in warranty covered this and occurred dur fittings brass exhibited a alleged their ing warranty (emphasis period” add plaintiffs defect. contrast ed). The respond homeowners that SCC O’Neil, argue do not the homeowners by warranty. is a failure covered fittings merely developing “risk” SCC. afflicts all of the They allege SCC interpretation warranty of Zurn’s use, of water con- fittings upon regardless all application dry plain- and its of the practices. they or installation As ditions question tiffs is a common that lends itself it, already manifest in all put have SCC “is to efficient class wide resolution under this contention systems.” They supported Saltzman, Corp. Rule 23. Pella Dr. testimony. Staehle with (7th Cir.2010); 391, see also Wo- example, develops that SCC opined, Am., LLC, Jaguar lin v. Land Rover N. they “Zurn ... as soon as are Cir.2010); 1173-74 exposed to domestic water.” Given Co., v. Ford Motor Daffin evidence, court did not err in (6th Cir.2006). disputes 553-54 While dry plaintiffs were determining may overlap Rule criteria about injury” parties simply not “no because questions going to the merits systems yet had not leaked. plumbing their the district court should not resolve the merits of the case at class certification. conclude that the district did We Blades, If, at a 400 F.3d at 567. later concluding not err the claims date, to conclude that the dry cognizable are under Minne- the court were may dry plaintiff by claims are indeed barred warranty they law and that seek sota may warranty, decertify their Zurn’s limited damages they proving if succeed definition, defect in the class or amend the class see claim of a universal inherent 23(c)(1)(C); Daffin, warranty. Fed R. Civ. P. breach of See Minn.Stat. summary 336.2-714; grant judgment § Peterson v. Bendix Home F.3d (Minn.1982) Inc., Zurn on сlaims under Rule 56. Sys., 318 N.W.2d such no breach For these reasons we find abuse (explaining damages available for UCC). decision to discretion the district court’s warranty under the Minnesota including “rigorous inquiry” liability these into whether certify a “may be with common evi- plaintiffs. established Avritt,

dence.” See 615 F.3d at 1029. The V. by pointing homeowners first out respond recognized that the district court the re- argues that the dis also certifying quirement rigorous for it to conduct a trict court erred the warran analysis paragraph containing because their in the same ty negligence classes predominate language do not criticized Zurn. The questions common Fed. questions. clearly granted over individual See court stated that it would 23(b)(3). review the district “[o]nly rigorous R.Civ.P. We class certification after a of law novo rulings court’s on issues de analysis proposed of the class and the re- application and its of the law for abuse 23,” quirements citing of Rule General Blades, Falcon, of discretion. 566. Telephone Co. the Southwest of 147, 161, 457 102 72 U.S. S.Ct. 23(b)(3)’s requirement Rule (1982). L.Ed.2d 740 fur- The homeowners that common issues of fact or law must emphasize rigor ther of the court’s predominate questions over individual analysis is shown the facts that it re- proposed “tests whether class members jected certification as of to some their adjudi sufficiently are cohesive to warrant scope claims and modified the of the class by representation.” cation Amchem as to others. Prods., Windsor, 591, 623, Inc. v. 521 U.S. (1997). of Our review the record and the district L.Ed.2d 689 S.Ct. court’s certification order indicates that it require Individual issues are those which rigorous a conducted to dеcide that varies from member “evidence whether “common evidence could suffice prima showing. member” to make a facie Blades, prima make out facie case for the class.” ques at 566. Common Blades, 400 F.3d at 566. court did not prima tions are those for which a facie simply take as true all of the can be homeowner through case established common allegations. scrutinizing In addition to determining evidence. Id. When “whether witnesses, parties’ expert of the questions predominate, common a court carefully the court examined the home- must preliminary inqui conduct limited along owner claims with Zurn’s defenses. ry, looking behind the but that pleadings,” In considering request the homeowner for ‍​​‌​‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​​‌‍inquiry should determining be limited to whether, pro- if class certification of their consumer plaintiffs’ “general allega claims, true, example, weighed tection for tions are common evidence could suf rejected they their fice contention could prima to make out a facie case for the prove by common evidence that all con- class.” Id. in scope, While limited this Avritt, sumers “failed to receive the same materi- analysis should “rigorous.” also be al omission” of information “essential in 615 F.3d at 1029. making purchase” the decision to Zurn’s complains about the district court’s product. taking mention of “the allega- substantive plaintiffs complaint comparison tions A protec- as true” consumer considering while a motion for certifi- warranty negli- tion claims with the cation. Zurn premise gence contends claims is instructive. As we ex- Medical, Inc., “рermeates all of plained the district court’s find- in In re St. Jude Cir.2008), ings and conclusions” and cannot a typical be recon- F.3d “[i]n requirement plaintiff ciled with the that it conduct fraud common-law must may have caused installation differences the defen- he or she received show fittings. in Zurn’s brass SCC and relied misrepresentation alleged dant’s proof individual requiring it.” Claims claims the respect With not amenable to generally reliance are given concluded that district court evi- common because defect, class certification claim of a universal homeowner to make out not “suffice could cause will not in- question “proximate dence class.” See individual predominately facie case volve determina- prima tions, of that issue Blades, In the case and resolution 400 F.3d at 566. would Similarly, re- to the class.” common premised negligence claims warranty and negligence claims the spect defect, product inherent universal and on a liability question determined that “[t]he however, rely on common may individually specific require does facie case prima to establish evidence by Zurn.” proposed tailored examinations individual reli- there is no similar because court stated that it was “con- The district claims.7 See for such requirement ance the Plaintiffs have adduced vinced 336.2-313, 3; § cmt. Lubbers v. Minn.Stat. support theory their sufficient evidence (Minn. 398, Anderson, 539 N.W.2d warranty respect of the case” claim); 1995) (elements negligence a Pe- of negligence claims. (elements terson, a at 318 N.W.2d 52-53 claim). warranty at certification question The class already plaintiffs

is not have whether of individual While the existence proven through their claims common evi may important a court’s defenses Rather, questions it is whether dence. Jude, class, certify a see St. decision capable through law dr fact of resolution 840, at the relevance of such defenses F.3d predominate over indi common evidence subjected rigorous to the same must be Blades, 400 at questions. vidual 566- claims. The district plaintiffs’ as of the record and the district light that indi examined Zurn’s assertion analysis, predominance court’s we discern faulty installa vidual water conditions no of discretion in its abuse decision failures might alleged have caused the tion grant warranty class certification as to the product to a universal defect. opposed discovery as negligence classes.8 Merits plaintiffs’ also considered the in the district The court remains to be undertaken continues, not evi the bases for the argument that there was sufficient court and as necessarily prospective rul- that individual conditions or district court’s showing dence question common to all members of allegation all of Zurn’s brass fit- critical 7. The along tings by defect with suffer from universal the district court. the classes certified expert testimony supports which it differ- recently this case from that consid- entiates that it doubts 8. The dissent indicates whether Supreme Wal-Mart v. ered Court in sufficiently court conducted a the district There, plaintiffs sought certifica- Dukes. "rigorous analysis” of the class certification of a nationwide class of over million tion experi- questions presented. We note allegedly suffered sex discrimina- women who judge page enced trial in this case issued 31 Court concluded that tion Wal-Mart. The order, examining produced evidence presented any "signifi- had not requirement respect to each Rule 23 for the "general had a proof” cant that Wal-Mart proposed classes. The time restraints three might policy which have of discrimination” by busy it unrealistic faced trial courts make 23(a)(2)’s commonality require- satisfied Rule opinions expect polished exhaustive and contrast, Here, at 2553. ment. 131 S.Ct. legal all the issues before them. a universal defect raises the evidence of component standing The “core is an proce- The rules of civil ings may change. changes unchanging part if essential and of the case- flexibility such dure allow for or-controversy requirement of Article III.” are needed. Lujan Wildlife, 504 U.S. Defenders of 555, 560, 112 S.Ct. 119 L.Ed.2d 351 VI. (1992). dry plaintiffs, party The record thoroughly reviewing the After invoking jurisdiction, federal bear the bur- light court in made in the district establishing they den of have stand- law, that the dis- controlling we conclude ing. See id. S.Ct. 2130. As legal not commit error or trict court did “ such, a may only ‘be defined such Accordingly, its class abuse discretion. its way anyone within it would have certification order is affirmed. standing[,]’ plaintiff ... a can- named represent persons a class of who lack GRUENDER, Judge, dissenting. Circuit ability bring suit Av- themselves.” Because I conclude that Co., ritt v. Reliastar Ins. Life when it certi- court abused its discretion (8th Cir.2010) (quoting Denney fied the breach of class and the AG, v. Deutsche Bank class, respectfully I negligence dissent. (2d Cir.2006)). party аsserting standing must dem- I. DISCUSSION ‘injury onstrate that he “has suffered an Warranty A. Breach Class— protected fact’—an of a legally invasion Standing (a) particu- interest which is concrete and larized, (b) imminent, court holds that those and actual or not warranty conjectural hypothetical.” Republican class who own Klobuchar, Party that have not failed or leaked-—the so- Minn. v. 381 F.3d (8th Cir.2004) 785, “dry plaintiffs” called suffered an (quoting Lujan, 791-92 —have 560, 2130). injury “cognizable and have stated 504 U.S. at 112 As the [claims] S.Ct. notes, today question under Minnesota law.” Ante at court “the whether conclusion, 617. To reach this the court plaintiff] cognizable injury has a suffi- [a improperly precedent closely characterizes our cient to standing up confer is bound “liability question and overlooks the axiom that does with the of whether and how the vacuum; in a grant exist there must be law will him relief.” v. Braden Wal- (8th Stores, Inc., showing damage.” 585, of some Briehl v. Gen. Mart 588 F.3d 591 623, Cir.2009); Seldin, Corp., Motors 628 Cir. see also v. 422 Warth 1999) 490, 500, (quoting 2197, v. Tire Feinstein Firestone U.S. 95 45 L.Ed.2d S.Ct. Co., (1975) 595, & Rubber 602 F.Supp. (stating 535 343 that into (S.D.N.Y.1982)). party asserting standing whether the has injury an in fact shown “often turns on the every appeal, “On writ error or asserted”). nature and source of the claim question first and fundamental is that of review a We district court’s determination jurisdiction.” Great So. Fire Hotel Proof party standing that a has de novo. Consti- Jones, 449, 453, Co. v. 177 20 U.S. S.Ct. Nelson, Party v. tution S.D. (1900). 690, 44 L.Ed. 842 Failure to estab- (8th Cir.2011). 417, 420 juris- lish standing deprives this court of particularly vigilant diction to hear the suit. v. Steel Co. Citi- “Courts have been Env’t, 103, requiring allegations injury zens a Better 523 U.S. or dam- (1998). Briehl, ages liability 140 210 in products S.Ct. L.Ed.2d cases.” injury personal suffered a result analysis is who Central F.3d at 627. defect, allegedly defеctive crib. alleged an only of not allegation of that defect. manifestation also the but court, to our the O’Neils In their brief analysis, in the juncture At this critical that contains a ser- argued “Plaintiffs’ crib applied veered off course court that the drop ious hardware defect allows “Plaintiffs need legal standard: wrong from crib frame. This separate side to fit that the brass prove only allege gap hardware defect creates allows not conform to defective and do tings are trapped an infant or child to be between required to warranty. They are not drop side and the crib frame. The of that a manifestation allege prove present in over 1 million of De- defect ” Plumbing In re Zurn Pex Prods. defect.” brief, reply In their fendants’ cribs.... (D.Minn. F.R.D. Litig., Liab. every that “each and the O’Neils stressed ' 2010). sup a statement is without Such ‘older-style Graco crib has hardware’ fact, circuit. In is well “[i]t in our port drop causes the side to detach from the allegedly of an purchasers established entrapment gap frame and creates an crib recogniz product legally have no defective injures infants and small children. has not alleged where the defect claim able model that the The Graco crib Plaintiffs they own.” product itself in the manifested grandchildren sleep for their purchased Briehl, v. (quoting 172 F.3d at 628 Weaver (emphasis original). has defect” F.R.D. Corp., 172 Chrysler Thus, argued, the O’Neils “Plaintiffs have (S.D.N.Y.1997)). specific of a pleaded existed defect [sic] that has exhibited or ‘manifested’ itself today applies the Although the court the Graco crib that the Plaintiffs own.” standard, it nonetheless holds legal proper persuaded. Even alleged cogni- Our was not dry plaintiffs have so, though alleged the O’Neils that their crib doing misap- the court injury. zable that had Simplicity, contained defect manifested our decision O’Neil plies (8th Cir.2009). hardware, Inc., in drop-side In that itself the the F.3d 501 the had failed to state a case, a crib held that O’Neils purchased and Jill O’Neil John warranty they claim because cognizable a mechanism—a drop-side that featured separation that “a the alleged [of to had not allowing one side of the crib mechanism in lowered, ever occurred their place drop-side] ha[d] it easier to a “making O’Neil, 574 F.3d at 503. For a it from the crib.” Id. crib.” child into and remove succeed, “plaintiffs we held that pur- the claim years at 502. Four after O’Neils crib, product actually that their ex- allege Product must the the Consumer chased such, Id. As alleged manufacturer hibited the defect.” Safety and the Commission satisfactorily product performs where “a voluntary a recall of about one “announced defect, alleged an no and never exhibits ... a hardware prompted million cribs (quoting at 504 drop- the cause of action lies.” Id. possible that made it defect 628). Briehl, crib, 172 F.3d at The O’Neils’ creating the a side to detach from because, they alleged while get in a child could claim failed dangerous gap which that the hardware defect was manifest sued the manu- caught.” Id. The O’Neils crib, alia, they allege did not that the for, express their inter breach facturer separation in the defect resulted Id. at 503. The implied warrantiеs. essence, we from the crib. drop-side a class of plaintiffs purported represent a simply owning prod- that pur- who had held O’Neil all in Minnesota persons give alleged defect does not crib, any individuals uct with excluding chased that If alleged merely claim until defect the O’Neils had rise to a drop separated their side had from their perform unsatisfac- product causes the crib—with no accompanying allegation of that “the O’Neils’ crib torily. (finding Id. injury alleged to child—the defect the alleged defect” even not exhibited the has manifested, crib’s hardware would have alleged that a defect though the O’Neils longer the crib no would have functioned manifested). had intended, as and the O’Neils would have alleged that the de- Just as the O’Neils cognizable By had a claim. if the analogy, simply had “manifested” the exis- fect dry plaintiffs alleged had that their Zurn crib, dry of the hardware in their tence leaks, alleged exhibited defect argue here that “the chemical plaintiffs manifested, plumbing would be prod- process physical [stress corrosion] would no longer ucts have functioned as already sys- manifest in all cracking[] is intended, dry plaintiffs and the would have Likewise, just as the tems.” O’Neils failed cognizable dry claim. But the hardware defect resulted allege alleged they have not this—and thus have crib, drop separating in the side from their alleged injury a sufficient to establish dry plaintiffs allege fail to standing. process cracking corrosion has stress O’Neils, dry plaintiffs Like the at- Zurn fittings. caused leaks their See id. tempt to problem by alleg- circumvent this (“The performs just crib O’Neils’ as ing they have suffered an economic intended, injury and thus there is no brief, injury. According to the O’Neils’ relief.”). no basis for they sought bargain “the benefit of their today The court our misconstrues deci- Defendants, or the difference First, ways. sion in in at two O’Neil least they value of the crib were promised, attempts distinguish the court that deci- namely fully functioning drop side crib by stating sion that the O’Neils “had not received, ... they and what a crib contain- alleged actually that their cribs exhibited a ing a hardware defect that makes the crib dangerous might defect that have harmed an unsafe environment for children and only their children” but instead had al- prevents the drop functioning side from “a leged might mere likelihood that a crib represented.” According dry plain- develop dangerous defect.” Ante at 616. tiffs in the instant their economic contrary, To the allege O’Neils did not injury includes “the decreased value —be- merely that their crib was at risk of devel- cause of the inherent defects —of the defect; oping a they expressly hardware plumbing itself’ and replacing “the cost of alleged every that “each and Graco crib” systems.” Further, dry plaintiffs the ar- had defective hardware —a defect gue products they the Zurn re- might have harmed their children. We fittings subject to the process of ceived— held that such allegations were insufficient cracking stress corrosion not conform —do because the hardware defect had not mani- products with the they prom- which were drop-side fested itself: the had sepa- not fittings that would the “outlast life of ised— rated from the and the crib crib continued rejected a home.” We the “benefit of the Second, perform as intended. the bargain” argument in prob- O’Neil: “[t]he man, attacks a stating straw that “O’Neil that, argument lem with this because never indicated that a child would have to the O’Neils’ crib has not exhibited the injured by a defect, crib for a defect to be alleged they necessarily have re- true, manifest.” Ante at 617. While this ceived the benefit of bargain. their The distinction no light inquiry. purchased functioning sheds on the O’Neils a crib awith had not injury that she to have a crete economic that crib continues and drop-side O’Neil, bargain the because drop-side.” received the benefit of functioning words, though the even drug In other that was purchased at 504. a defective she their crib exhibited alleged that O’Neils than it was. thought to be much safer hardware, the they received ben- defective risks to patients known of Duract’s Had alleged the bargain of the because efit liver, have the Rivera claimed she would not in the crib had not resulted defect Duract for a lower purchase been able Likewise, it was intended. performing as com- drugs that riskier price, presuming fittings Zurn dry plaintiffs purchased the price. panel market A mand a lower from the as intended that have functioned unanimously disagreed the Fifth Circuit they filed this to the date purchase date of Rivera, and held that and members Therefore, they too have re- litigation. class, standing putative lacked because bargain. the benefit of ceived alleged partic- a concrete and they had reached a similar con The Fifth Circuit proteсted inter- injury legally ularized Labs., Wyeth-Ayerst clusion Rivera v. paid pain est: “Rivera for an effective Cir.2002). In that F.3d 315 killer, just she that —the ben- and received purchased ingested and Elizabeth Rivera bargain.” at 320. “Duract efit of her Id. Duract, Wyeth-manufactured painkiller. Wyeth provided additional worked. Had complaints of liver receiving after Soon safer, plain- Duract warnings or made taking drug, patients failure from position they in the same tiffs would be Duract from the market. Wyeth removed occupy now.” Id. Rivera, Duract functioned as for whom plaintiffs Just as the Rivera and problems, not cause liver intended and did of their bar- O’Neil received benefit patients of “all sought represent gain, dry plaintiffs too did the so purchased, had prescribed, who were for, dry bargained case. physi Duract but suffered no ingested had own, Zurn function exact- now Riv injury.” Id. at 317. cal or emotional id.; In re Canon ly a con- as intended.9 See argued that she had suffered era cf. widgets an avoidable properly fail as result of Allowing plaintiffs who own func- defect, injury each creates a loss of tioning fittings to under the benefit sue $50,000, economically group experience bargain theory only then the will is not failures, injured buyers re- enti- but also could result in double and the will be inefficient $500,000 covery. Bridgestone/Firestone, damages. Inc. See In re in tort That is tled to loss; Litig., compensation Liab. Tires Prods. for the entire full (7th Cir.2002) ("Plaintiffs injury describe the spend more than manufacturer should not $500,000 physical Sup- than and seek to widgets as financial rather make the safer. however, uninjured buyers of the tort domain and into pose, move thе suit out could (the theory vehicle was not the flaw- damages that of contract that the risk collect valuable; widget and thus is not merchanta- less one described each less of failure made ble, warranty theory).... injury, It is not clear that they known of the risk of these had contend, actually from buyers they paid only moves the locus this maneuver would have $9,500 compensates fully widget expected per- law per tort to contract. If tort the—for $500, any injured, physically injury then widget those who are of is and each cost products function buyer recoveries those whose used the difference in could have (or compensation."). properly price sure, purchase mean excess to self-in- to insurance pro- Judge exchange Bridgestone/Firestone, bearing Easterbrook for the the risk in why sys- apt theory of a mixed price). vided an illustration On the 990 unin- lower recovery and tort buyers in both contract of jured tem of would collect a total $495,000. outlay leads to inefficient outcomes: The manufacturer's full $995,000 ($500,000 injured example. Defendant sells Consider $495,000 $10,000 uninjured 1,000 buyers + to the 990 widgets apiece. If 1% tion, F.R.D. Litig., 237 the Cameras district court must undertake a (S.D.N.Y.2006)(“A ‘rigorous analysis’ that plaintiff purchases who includes examina- tion of what parties required the would be that never digital camera malfunctions Avritt, prove at trial.” 615 F.3d at 1029 ordinary period over its of use cannot be (citing Montenez, Elizabeth M. v. 458 F.3d said to have received less than what he (8th Cir.2006)). 779, 786 “The court may bargained he made pur- for when the upon also be called disputes ‘resolve chase.”). concerning setting the fаctual that, I would conclude until the defect ” case.’ Id. (quoting Blades v. Monsanto they allege manifests so that their Zurn Co., Cir.2005)). 400 F.3d intended, longer perform no rigorous analysis Such a is even more dry plaintiffs injury have suffered no appropriate in light of the amendments and, fact—economic or there- otherwise— made “First, to Rule 23 in 2003. fore, O’Neil, lack standing. See 574 F.3d amended rule from prior removes Rule Rivera, 505; 320; Briehl, at 283 F.3d 23(c)(1)(C) provision that class certifi- 172 F.3d at 628-29. ‘may Second, cation be conditional.’ amended replaces provision rule Warranty B. Breach of Class —Pre- 23(c)(1)(A) prior Rule that a class certifica- dominance tion decision practica- be made ‘as soon as Questions of law and fact common to the ble’ with a provision requiring the decision remaining members of the breach of war- ” early ‘at an practicable time.’ Miles v. ranty class—those members whose Zurn (In Co., Lynch Merrill & re Initial Pub. plumbing products exhibit leaks and no (2d Offering Litig.), Sec. longer perform as pre- intended —do not Cir.2006). Moreover, Advisory “the Com- questions dominate over affecting individu- mittee states that court that ‘[a] is not Thus, al members. I would conclude that satisfied requirements of Rule 23 putative breach of warranty class fails have been met should refuse certification ” predominance to meet the requirement of (alteration they until have been met.’ Id. 23(b)(3). Fed.R.Civ.P. 23(c)(1)(C) in original) (citing Fed.R.Civ.P. 2003). Adv. Comm. Notes may certify “A court a class under Rule 23(b)(3) only if it ... ques- finds Before it determined ‍​​‌​‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​​‌‍the breach of tions of law or fact common to the mem- warranty class met predominance re- bers of predominate the class over quirement, the district court conceded questions affecting only individual mem- that, warranty specifical- “[b]ecause Zurn’s bers, and that a class action superior ly excludes improper failures due to instal- other available methods for the fair and lation and corrosive water quality, individ- adjudication efficient of the controversy.” questions ual proximate may cause exist Machs., Inc., Bridgeport Szabo v. as to class members whose Zurn[] brass (7th Cir.2001) (citing Fed.R.Civ.P. crimp fittings already have failed and who 23(b)(3)); Avritt, see also 615 F.3d at 1029. have resulting property suffered damage.” “In making [predominance] its determina- In re Zurn Plumbing, Pex 267 F.R.D. at $50,000

buyers) nearly ages would be every buyer, double the total damages product’s loss created every injured buyer defect. This both the —creates overcompensate buyers would both right compensation right as a and the incen- class and spend system induce manufacturers to overcompensates tives. A mixed inefficiently buyers much to reduce precautions. the risks of and leads to excess (internal system omitted). defects. A consistent in dam- Id. at 1017 n. 1 citations $500—

625 concluded, one cracking howev- rosion and not because 563. The district er, majority of the the vast of reasons excluded from because of the number damage property suffered class had “not warranty coverage, the court will district only of a noncon- replacement and seek engage to in individual factual be forced cause issues forming product,” proximate op- and inquiries regarding installation Id. predominate. would not homeowner’s erating conditions of each products. Even if all Zurn plumbing Zurn plain- dry I hold that the Because would fail from stress cor- fittings eventually will remaining standing, only tiffs lack factor, im- cracking, rosion another like putative breach of warran- members of installation, already operation, abnormal or fittings proper those whose ty class are conditions, remaining plain- For these water exposure have leaked. to corrosive tiffs, pre- of causation questions individual may prop- still have caused the failure and To questions. common es- dominate over erty damage experienced by plain- these Minnesota, a warranty claim in tablish words, plain- even “if the tiffs. other (1) the existence of prove must plaintiff true,”10 general allegations are tiffs’] (2) warranty, a breach of that warranty, Blades, 566, 400 F.3d at common evidence (3) breach a causal link between the and plaintiffs would be insufficient for these to Peterson v. alleged harm. See warranty prove their breach of claim. Inc., 50, N.W.2d Sys., Bendix Home 318 Therefore, I would conclude that the dis- (Minn.1982). express The Zurn 52-53 by certify- trict court abused its discretion caused warranty failures or leaks excludes ing the breach of class. alia, tear, breaks “damage due to by, inter before, during, damages or other external Negligence C. Class —Predominance installation,” harmful, to “exposure after or Similar individual issues of causation unauthorized, unanticipated chemicals or predominate over common issues for those or corrosive water condi- or substances negligence in the class. The dis- plaintiffs tions,” “dаmage or wear from abnor- question trict court found that fact “[a] accident, abuse, conditions, mal operating does exist as to whether the failures are misuse, unauthorized alterations or re- single multiple due to a cause or causes. those expert opined Zurn’s pair.” prove crimp If can fit- Plaintiffs on well water or used plaintiffs who relied uniform, tings suffer from a inherent de- subjected fittings their water softeners defect, sign manufacturing and that environment. As extremely corrosive only the defect is the cause of failure such, prove that their cases, majority proximate then of stress cor- failed because 10. While the court in Blades employed my proposition that a "[t]he view that 566, Blades, judge accept must all of the com language, F.3d at it went on district 400 allegations deciding plaint's when whether to require court conduct certify "may require cannot be found in Rule 23 and rigorous analysis that the court Szabo, setting nothing going has to recommend it.” disputes to the factual to resolve 675; overlap Hydrogen re Peroxide disputes may F.3d at accord In and such 305, (3d case," Litig., Cir. id. at Since our Antitrust 552 F.3d the merits of the Blades, 2008); (In re Brown v. Am. Honda New Motor our court has continued decision Export Litig.), 522 F.3d "under Vehicles Can. Antitrust emphasize that district courts must Miles, (1st Cir.2008); 471 F.3d at 'rigorous analysis’ includes exami take a Inc., 41-42; Unger Amedisys required parties would be nation of what Cir.2005); Avritt, (5th Gariety v. Grant prove F.3d at 1029 321-22 Thornton, LLP, at trial.” M., 786). Cir. En (quoting Elizabeth 2004). comports rigorous analysis gaging in such a predominantly ing competing perspectives.” indi between

cause will not involve Sec., Inc., In re Zurn Pex determinations.” viduаl West Prudential (7th Cir.2002). 267 F.R.D. at 565. This conclu Plumbing, Therefore, because in- matter, As an initial problematic. sion is predominate dividual issues of causation reasoning court’s is circular: issues, over common I conclude that the court, if essentially, according the district by court also abused its discretion prove proximate can causa certifying negligence class. evidence, prox common “then through tion predominantly not involve

imate cause will D. Daubert and Class Certification See id. This individual determinations.” IWhile would not have reached the merely a of the is restatement conclusion question of whether the district court predominance inquiry. inquiry should have conducted a full into to show that stress importantly, More admissibility plaintiffs’ experts’ of the cracking proximate was the corrosion testimony under Daubert v. Merrell Dow failure, plaintiff of the each will need cause Pharmaceuticals, Inc., U.S. prove property damage that his (1993), S.Ct. 125 L.Ed.2d 469 I dis- by caused an inherent defect in Zurn’s agree with the court’s discussion and anal- alternatively, fittings and, caused — ysis of this issue. conditions, in- improper corrosive water First, the court errs characterizing stallation, use, improper operat- abnormal controlling our decision in Blades this such, conditions, ing or another factor. As 612-13, question, see ante at because inherently inquiry this will be individual Blades, Blades did not it. address nature and not conducive to class-wide res- defendants asked the district court to con- Moreover, Zurn presented olution. has inquiry duct a full Daubert into the admis- testimony that stress corrosion sibility of the plaintiffs’ of the сracking only occurs when its are key expert. The district court refused to subjected to and a unusual stress corrosive Daubert, admissibility address under stat- environment. The district court did not ing that “I appropriate believe for me analysis” “rigorous regarding undertake a stage to consider all evidence at this of the contradictory testimony parties’ Blades, proceedings.” experts to determine whether stress corro- court). (quoting the district After the dis- cracking requires sion a corrosive environ- plaintiffs’ expert trict court considered the ment cracking or whether stress corrosion evidence, it ruled favor of the defen- occurs in water within the lifetime of dants, determining “[expert] testi- fittings. resolving ques- Without this mony impact does not show that can be tion, I way see no whether determine on a demonstrated class-wide basis.” Id. proof common is sufficient for the plain- court). (quoting the district We affirmed tiffs’ case to succeed. While that, ruling and held “in on class certifica- merits, necessary bleeds into the it is tion, may required a court to resolve determine the factual setting of the case. disputes concerning the factual setting of judge may ques- “A district not duck hard the case. This extends the resolution of by observing tions that each side has some expert disputes concerning import support, considerations relevant to concerning evidence factual set- may class certification also affect the deci- ” ting sion on .... Id. at 575. believe the Tough questions “[W]e the merits. must decided, squarely necessary findings experts’ be faced and if district court’s as to the whether, by holding evidentiary hearings disputes properly and choos- were limited to

627 true, expert at that allegations were Id. 814. Plaintiffs’ stated appellants’ if basic suffice, given steering the wobble or oscillation of the common evidence could assembly setting dissipate of to show class- should within one sec- factual the added). prevent reacting Id. ond so as to from injury.” (emphasis riders wide it. to on the test one GL 1800 Based Thus, in Blades addressed our decision motorcycle, expert the that all concluded fact finding of the court’s scope the district motorcycles 1800 GL failed the standard conflicting expert testimo- respect and, thus, he had devised were defective. have ny, not whether the should Honda the argued expert’s opinions place. been admitted the first Because reliability failed the standards established prevailed Blades the the defendants by the ex- Daubert. district court While and, therefore, appeal did not district court pressed reliability reservations about the court’s to conduct a full the district refusal opinions, of the the court declined strike analysis, Daubert the court Blades sim- expert’s the “at report early stage presented not with and did not ply was proceedings,” the id. at the (quoting 815 question admissibility the the decide court), granted district mo- plaintiffs’ under Dau- proffered the evidence tion for class certification. such, appro- As of the question bert. the of a priate scope district court’s Daubert The Seventh Circuit reversed and held that, at the stage expert’s class certification “when an report or testimo- by ny certification, in Blades not decided court and has is critical to class is here[,] open until question remained ... a district court must conclusive- today. ly any challenge court’s decision rule expert’s qualifications or rul- prior submissions question, resolve this I open To note ing on a That class certification motion. the Supreme first Court has ex is, the district court must full perform a disapproval position of the taken pressed analysis Daubert before certifying the Stores, today. the court See Wal-Mart if class at situation warrants.” Id. Dukes, -, 131 Inc. v. 564 U.S. S.Ct. 815-16. Because relied on their 2553-54, (2011) L.Ed.2d 374 180 expert’s a defect opinion there was (“The District Court concluded that Dau motorcycles common to all GL 1800 apply expert testimony did not bert 23(b)(3) predominance meet the Rule re- stage pro the certification of class-action ” quirement because court (in ceedings. is so .... We doubt that must predominance determine before cer- omitted)). statement, ternal citation “The class, tifying a con- Seventh Circuit sure, dictum, ... to be but inferior cluded that district court could courts can take their cues from the Su analysis reliability defer a conclusive of the preme Sky Court’s dicta.” Scheduled and admissibility of this evidence to a later Bd., ways, Inc. Mediation Nat’l 738 date. (8th Cir.1984). Second, I expounded appropriate find the standard The Eleventh Circuit American applied Co., holding Raytheon two of our sister circuits. American Honda’s Sher v. Allen, (11th Motor Co. v. Fed.Appx. Honda F.3d 813 WL Cir.2010) curiam), 2011) J.). (Hill, (per (unpublished) Cir. Mar. court certified a of Honda The district in Sher сertified a motorcycle class had who purchasers alleged despite front marked differences between assembly steering expert testimony presented by par- of their GL 1800 motor “wobble[d],” ties, cycles excessively. stating: or shook case, i.e., necessary stage prima just at this more than is not [I]t facie ” (internal proverbial ‘pretty good winner litigation to declare case.’ Id. citations omitted). battling war of the ex- parties’ in the and chemical perts dueling or statistics issue, join If I were to reach the I would type This of determi- concentrations.... the Seventh and Eleventh Circuits and require weigh nation the Court to would open question resolve this in our circuit presented engage the evidence full requiring courts to conduct a style critique proffered of the Daubert analysis certifying Daubert before a class which would experts qualifications, be expert’s opinion whenever an is central to stage At inappropriate.... of the reliability class certification and the of that litigation, inquiry therefore an into the opinion challenged. is I conclu reach this admissibility proposed Plaintiffs’ ex- First, sion for.a number of reasons. testimony forth in pert as set Daubert 2003 to Rule 23 amendments removed the an inappropriate, would be because such provision “may that class certification be analysis delves too far into the merits of Miles, 39; conditional.” 471 See F.3d at Plaintiffs’ case. 23(c)(1)(C). Requiring Fed.R.Civ.P. a full Sher, 889, analysis Daubert Fed.Appx. at 2011 is natural extension of 419 WL (second 814379, concept that class at *2 and third certification should alterаtions court). permitted be conditional and should original) (quoting the district only rigorous application after a The Eleventh Circuit reversed: Rule Stores, requirements. 23’s See Wal-Mart that, The American Honda court found U.S.-, 2550-54; Miles, 131 S.Ct. at warrants, if the situation 471 F.3d at 39-41. perform a full court must Daubert anal- ysis certifying before “A class. dis- Second, I find counterintuitive to allow trict court is the It gatekeeper. must district courts to utilize inadmissible ex- reliability expert’s determine of the pert testimony to factual disputes resolve experience and training as well as the Blades, stage. at the class certification methodology used. The [district] we held that: any challenge must also resolve preliminary The inquiry at the class cer- reliability provided by of information stage may require tification the court to if expert that information is relevant to disputes going resolve to the factual set- establishing any require- of the Rule 23 ting disputes may and such ments for class certification.” We overlap the merits of the case. None- agree. theless, disputes may such be resolved Id., 890, Fed.Appx. at only 2011 WL insofar as necessary resolution is (alteration (inter original) at *3 determine the nature of the evidence omitted) Honda, sufficient, nal (quoting citations Am. that would be if the 815-16). 600 F.3d at true, The Eleventh Circuit general allegations were to make went on to prima hold that the “district court out a facie case for the class. The erred as a sufficiently matter of law not closer at dispute the class certifica- evaluating and weighing conflicting expert stage tion comes the heart of the tеstimony claim, on class certification. It the more the court cautious error for the district court to decline to in ensuring should be it must be yet declare a proverbial, tentative winner. resolved in order to determine the na- The required prove, plaintiff Plaintiffs are at the ture of the evidence the would stage, just require. certification more than (internal requirement’ must be nent of a Rule 23 citations Blades, at 567 F.3d reliable; omitted). conducting enough expert it is not purpose ” Dukes, testimony fatally the relevance ‘not flawed.’ is to ensure is Daubert (Ikuta, J., testimony. dissenting) Lau at 639 reliability Prods., Inc., 42); Miles, 471 F.3d at see also (quoting v. Senco zon Cir.2001). certain Inc., “It to make No. C 08-2820 Pecover v. Elec. Arts basing whether expert, VRW, that an LEXIS 2010 U.S. Dist. expe personal (“Given 2010) studies

upon professional (N.D.Cal. Dec. *8 the same rience, in the courtroom employs judicial consume vast re- class actions rigor that characterizes intellectual level of many defendants face and that sources in the relevant expert of an practice pressures settlement as re- substantial Carmichael, Tire Co. v. Kumho field.” certification, ... hardly it sult of class 1167, 137, 152, 143 119 S.Ct. 526 U.S. flimsy expert allow appropriate seems (1999). principles are These 238 L.Ed.2d opinions plaintiffs’ [Rule] to buttress 23 of class the context equally applicable analysis of arguments.... Daubert ev- [A] v. See Dukes Wal-Mart certification. pru- seems ery challenged expert opinion Inc., Stores, 639 Cir. 603 F.3d obligation the court’s fulfilling dent rev’d, 2010) (Ikuta, J., 564 U.S. dissenting), with [Rule] ensure actual conformance 374 -, 180 L.Ed.2d 131 S.Ct. 23....”). (2011). all must “assess The district court why Plaintiffs advance two reasons at the evidence admitted of the relevant adopt should not the American Hon- and determine stage certification class First, plaintiffs argue that da standard. has requirement Rule 23 whether each analysis full Daubert at the mandating a met, just judge would resolve been stage “would render the class certification pre- any other threshold dispute about of Rule ‘early language time’ Miles, practicable continuing a lawsuit.” requisite virtually meaningless” ig- and “would 23 42; Hydrogen see also In re 471 F.3d at the information avail- nore limitations of at Litig., 552 F.3d 323 Antitrust Peroxide created ... bifur- experts able to the respect to class cer- opinion with (“Expert However, discovery.” because class tification, to a cated like matter relevant conditional, a longer are no rigorous calls for certifications requirement, Rule 23 delay certifying a district court should analysis.”). all until it satisfied that Rule 23 is Honda, the district in American Just as met, even if addi- requirements have been case as to statement the instant court’s discovery is needed to as- targeted tional admissibility of and Blischke’s Staehle reliability expert’s opinions. of an sess the conclu- testimony reports “is even requiring a district court to Importantly, open questions of what sory; it leaves analysis before cer- a full Daubert conduct testimony may experts’] portions of [the discourages plaintiffs who tifying a class (or decide) exclude.” will have decided to a may proceeding have no intention of Honda, (holding Am. submitting unreli- the merits from trial on conclusively refusal to the district court’s pur- for settlement expert able class, determine, certifying before Wendt, F.3d poses. See Schleicher reliable “expert report whether (7th Cir.2010) (noting that 682-83 certifi- support Plaintiffs’ class enough to substantially increases the “certification discre- was an abuse of request” cation suits); tion). evidence, value” Wal-Mart settlement any other “Like (In Stores, Inc. re Visa Inc. v. Visa U.S.A. compo- introduced ‘establish evidence Check/MasterMoney admissibility of Litig.), Antitrust Staehle Blischke’s tes- Cir.2001) (“The (2d timony.11 effect of F.3d leverage in parties’ certification on settle- II. CONCLUSION life.”), is a fact of ment over- negotiations I dry Because would conclude that the Miles, grounds ruled on other plaintiffs allege injury have failed to Szabo, 24; at 675 (noting and, therefore, fact standing, lack and be- “puts bet-your-compa- class certification predominate cause individual issues over managers ny decision to [defendant’s] plaintiffs common those issues for remain- may settlement even if induce a substantial ing class, of warranty the breach I weak”). position the customers’ would reverse the district court’s certifica- Second, argue plaintiffs mandating tion of the breach of class. Be- analysis at the a full Daubert class certifi- I cause would conclude that individual is- stage unnecessary cation also “is because predominate sues over common issues for expert opinions at class certification are class, those negligence in the I III judge” an Article considered and would reverse the district court’s certifica- jury. agrees The court this Thus, tion of negligence class as well. believe, however, 613. I position. Ante at I respectfully dissеnt. argument that this misses the mark. Our be that concern should not

judge weigh expert admissible cannot tes-

timony properly. We should be con- cerned, instead, the case proceed will Gary QUINNETT, Appellant, L. beyond class certification on the of basis inadmissible, expert unreliable testimony. testimony that “[E]xpert is not scientifical- IOWA; Department State of Iowa of admitted, ly reliable should not be even ‘at Services; Roy Administrative ” early stage proceedings.’ this Am. Williams; Anderson, Appellees. Mollie (internal

Honda, 600 at 819 quotation No. 10-2870. omitted). marks Appeals, United States Court such, question As were I to reach this Eighth Circuit. the instant I would reverse the dis- 16, 2011. Submitted: ‍​​‌​‌‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​​‌‍March certify trict court’s decision the breach July Filed: warranty negligence and the class remand the case the district court to conduct a full Daubert inquiry as to the First, analysis

11. Such a full Daubert would Dr. have Blischke did not conclude that the apt particularly fittings been in this case as the have a time to failure dis mean of 40 questionable years; trict average court relied he assumed an mean-time-to- years of Dr. Blischke when it certified failure rate of 40 number derived —a According breach of class. from a Zurn that showed that erosion test its court, fittings Blischke display Dr. “concluded that did not erosion after 40 Second, fittings years. assumption have a mean time to failure of 40 Dr. Blischke’s years, approximately fitting which means half unreliable while no on its face: failed likely years years' ap units will within 40 fail the Zum test after 40 worth of water it, proximately passed will fail through half after.” In re Zurn had Dr. Blischke assumed However, Plumbing, Pex 267 F.R.D. at 556. will within 40 half of fail years. respects. statement is troublesome in two

Case Details

Case Name: In Re Zurn Pex Plumbing Products Liability

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 6, 2011

Citation: 644 F.3d 604

Docket Number: 10-2267

Court Abbreviation: 8th Cir.