Waller vs. FCA Could Be a Game Changer in California's Lemon LawMay 19, 2020 – Article
On May 6, 2020, the California Appeals Court, Second Appellate District, certified for publication its opinion in Lamar Waller v. FCA US LLC, holding the mere possibility of causation does not provide adequate foundation for expert testimony. Waller is the first opinion in the lemon law field which limits the testimony of a testifying expert and specifically Anthony Micale. In the underlying action, the trial team from Hawkins Parnell & Young obtained a unanimous defense verdict in a breach of warranty/lemon law matter which also included a fraud cause of action. Prior to trial, the defense obtained favorable deposition testimony from plaintiff’s expert, Anthony Micale, that a faulty fuel pump relay could cause a loss of vehicle power/acceleration. Counsel was able to get Mr. Micale to repeatedly testify the fuel pump relay was only a “possible” cause of the loss of power and not a probable cause.
At trial, defendant requested a 402-hearing challenging the basis of Mr. Micale’s expert opinion. The trial court limited Mr. Micale’s testimony regarding the fuel pump relay as he could not say it was more likely than not the cause of the loss of power. Plaintiff appealed arguing the trial court abused its discretion by limiting the testimony.
The Waller opinion provides California trial courts and litigants much needed instruction and guidance regarding the admissibility of expert testimony specifically in the lemon law context under Sargon Enterprises, Inc. v. University of Southern Cal. (2012) 55 Cal.4th 747, 700-771 (Evidence Code section 801 prohibits an expert witness from opining on matters based on speculation, conjecture, or devoid of foundation). The Court’s decision affirms the trial court’s exclusion of expert testimony that a component part was only a possible, not probable, cause of a claimed failure and product defect and thus was too speculative to assist the trier of fact. Typed opn. 2, 9-10. While the subject matter of the Waller matter was the fuel pump relay on a 2013 Dodge Durango, this exact scenario is the subject of disputes in hundreds of lemon law cases throughout California. Experts in the litigation have repeatedly attempted to offer causation opinions that follow the same speculative process as the one that played out in Waller. Despite the prevalence of such improper opinions, there was not a single published opinion before Waller in the lemon law caselaw that addressed the exclusion of expert testimony under Sargon.
Specifically, Mr. Micale, the expert in the Waller matter routinely offers speculative opinions in California trials. In one particular case, Mr. Micale was permitted to testify for four days about issues with a vehicle he attributed to the vehicle’s software. Mr. Micale offered these opinions to the jury without having even seen the coding for the software or having performed any tests of the software. Mr. Micale simply opined the software of the vehicle must be bad because of the symptoms the vehicle exhibited. Additionally, Mr. Micale does not have any advanced degrees in software development or testing. Waller now provides defendants with a much-needed opinion to argue these types of opinions should be excluded.
The Court’s decision also makes clear “circular reasoning” is not a proper basis for an admissible expert opinion. Typed opn. 2, 12. In the Waller matter, this Court reasoned the expert’s opinion was inadmissible because the only evidence he identified supporting his opinion that the new relay was failing and causing a loss of power was the loss of power itself. The Court reasoned this type of circular argument is not the proper basis for an expert opinion. Expert testimony in lemon law is replete with similar circular arguments. Experts, and especially Mr. Micale, repeatedly opine the cause of an issue is evidenced simply by the existence of the condition. Mr. Micale has repeatedly offered opinions that the cause of a vehicle’s alleged loss of power is the engine overheating because the radiator fan is not operating properly. Mr. Micale has no evidence the radiator fan is malfunctioning other than the loss of power. He has offered this opinion despite evidence the vehicles exhibited no other signs of overheating including any warning indicator lights or audible chimes, coolant leaks, or steam coming from the hood. Mr. Micale has adopted “circular reasoning” as the bedrock of his opinions. While the Sargon case does discuss this type of improper argument, having a published case specifically related to a lemon law case provides necessary guidance for the trial courts and litigants on the proper framework for expert testimony.
Defendants should also use the Waller opinion to prevent plaintiffs and their experts from requiring defendants to accomplish the impossible of proving the negative. Mr. Micale has become an expert in this type of burden shifting. Mr. Micale regularly opines that a vehicle is defective because it is not recording Diagnostic Trouble Codes (DTCs are codes used by technicians to diagnosis an issue with a vehicle). As a result, a DTC is never found and thus the vehicle must be defective. He has no evidence of this issue occurring other than the fact that no DTC is found. Mr. Micale adds a further level of speculation by opining this issue is intermittent. He dismisses even the possibility that in fact nothing is actually wrong with the vehicle. The Court’s opinion in the Waller gives clear guidance to the trial courts that this type of opinion is improper.
The Waller opinion could have a far-reaching impact on hundreds of lemon law matters throughout the state that also contain a fraud cause of action. In addition to a rise in standard lemon law cases, there has been an increase in cases which include a fraud-concealment cause of action. Issues involving causation become even more important in the context of fraud. While the fraud cause of action in the Waller matter involved allegations regarding the TIPM, the same theories and tactics are being utilized in cases involving nearly all auto manufacturers. Plaintiffs and their experts have simply adopted these speculative opinions and theories to fit any manufacturer or vehicle.
The Court’s Waller opinion regarding specific causation is one that has not been fully articulated in the lemon law context. Typed opn. 2, 10. The Court noted “that evidence of defects in the TIPM system as a whole did not support an opinion that the fuel pump relay might have been the specific cause of the loss of power.” (Emphasis in original). The Court went on to opine, “According to Waller, the same problem of loss of power occurred both before and after the fuel pump relay in the TIMP was bypassed. This seems to rule out the TIPM fuel pump relay as the specific cause of the power loss (or at the least shows it was not a but-for cause).” This is a clear delineation of specific causation in the lemon law context. Plaintiffs’ experts routinely opine the specific cause of an issue is a failed component even when the component is replaced, and the problem persists. Plaintiffs’ experts also routinely make the opposite but equally flawed argument that the specific cause of an issue is a faulty component even where the issue is resolved when a different component is replaced. For example, Mr. Micale routinely opines a vehicle’s failure to start is caused by a specific component even when the failure to start is resolved by replacement of a completely different component. Defendants should use the Waller opinion to exclude this type of expert opinion as it does not amount to reliable testimony.
The potential for the Waller opinion to curtail the speculative opinions offered by plaintiffs’ experts is immense. The opinions expressed by the Appeals Court should be used to limit not only the testimony of plaintiffs’ mechanical/engineering experts, but also their “fraud” experts. Expert opinions such as those offered by Dr. Barbara Luna are similarly replete with speculative testimony that does not meet the standard established by the Waller opinion. Waller is the first of what will hopefully become a growing number of cases in which the testimony of plaintiffs’ experts is limited or excluded, resulting in a slow but sure turning of the tide in the lemon law litigation.
Waller v. FCA US LLC, B292524 (Cal. Ct. App. 2020)