Madison - St. Clair Record

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Class action run by some of region’s biggest firms want Chrysler to replicate expert’s work; Defense calls it ‘fantastical’

Federal Court

By The Madison County Record | Nov 12, 2019


BENTON – Damage expert Michael Williams didn’t give Chrysler data behind a report for a class action because he expected Chrysler to replicate his work, class counsel Christopher Baucom argues at U.S. district court. 

“Standard practice is to produce the underlying files together with instructions for replicating their analyses,” Baucom wrote on Nov. 4. 

“In litigation involving analyses like Dr. Williams’s, the first step for the opposing expert is virtually always to replicate the expert’s work.” 

Baucom wrote that Chrysler could upload the files Williams provided and click a button, a process that would take a few hours at most. 

Chrysler counsel Kathy Wisniewski denied responsibility for replication on Nov. 6. 

“It is not surprising that plaintiffs cite no law for this fantastical position,” Wisniewski wrote. 

“It is almost certain that no court has even been asked to address this type of far fetched and illogical argument.” 

She wrote that not until October did plaintiffs reveal that Williams expected Chrysler to replicate his files. 

“Apparently, Chrysler was supposed to scry this information earlier from its crystal ball,” she wrote. 

Belleville city attorney Brian Flynn sued Chrysler in 2015, not as counsel but as representative of Chrysler buyers who installed UConnect information devices. 

Flynn relied on a report in Wired magazine that hackers seized a vehicle on a closed course under conditions they controlled. He also sued UConnect maker Harman International Industries. 

He alleges double damage, claiming he paid more for his vehicle than he should have paid and would receive less when he sells it. 

Former district judge Michael Reagan certified a class but retired this March without bringing the action to trial. 

His replacement, District Judge Staci Yandle, hasn’t set a trial date. 

Williams, a University of Chicago economist, delivered a report for plaintiffs in June. So did survey expert Michael Kemp, formerly of Charles River Associates. 

University of Texas professor Ernan Haruvy analyzed Williams’s report for Chrysler, and Keith Ugone of Analysis Group analyzed Kemp’s report. 

Chrysler received a “supplemental declaration” from Kemp on Oct. 14, and one from Williams on Oct. 15. 

On Oct. 28, Chrysler counsel Stephen D’Aunoy moved to strike the declarations as violations of an order against rebuttal reports. 

Harman International joined the motion. 

D’Aunoy wrote that the reports made it clear that the experts didn’t produce all the materials they relied on for their first reports. 

He wrote that Williams produced 196 files for the first time. 

He wrote that Haruvy reported an enormous impact of sampling bias. 

He wrote that Williams tried to negate his original opinions with three tables of calculations for willingness to pay, and further that Williams stated Haruvy should have reviewed and relied on this data, “even though he never previously provided it.” 

Survey expert Kemp described tests he didn’t explain in the original report or identify at deposition, according to D’Aunoy. 

“He also relies on new, never before disclosed, focus groups he designed in the late 1990s,” D’Aunoy wrote. 

“Plaintiffs do not get to make their own rules.” 

A week later, for plaintiffs Baucom wrote that striking the declarations would create reversible error, cost millions of dollars, and waste the court’s time.

He wrote that Williams provided all his work papers and instructions for using a computer program to generate results. 

“Rather than follow those instructions, Chrysler’s counsel told their expert what they wanted him to do,” Baucom wrote. “This led to analyses that are patently wrong. 

“Allowing a party to present opinions known to be false, without any ability for the opposition to clarify the record, flies in the face of any notion of justice.” 

He wrote that Chrysler didn’t dispute that its analyses were egregiously wrong or that its experts relied on the wrong materials and calculations. 

He found the assertion that Williams withheld almost 200 files absolutely false, writing that Haruvy had access to every one of them. 

“All he had to do was replicate Dr. Williams’s work in accordance with Dr. Williams’s instructions and common industry practice,” Baucom wrote.. 

He wrote that the court should allow the reports even if they are rebuttals. 

“If the court believes additional discovery is needed, it can be accommodated, as there is no trial date,” he wrote. 

He wrote that he wouldn’t oppose reopening depositions for Williams and Kemp. 

Wisniewski, replying for Chrysler two days later, wrote, “Plaintiffs’ opposition reveals their desperation to cover for their own mistakes.” 

She wrote that even if a court order didn’t forbid the reports, they would still be disallowed because they were served way too late. 

She wrote that plaintiffs urged the court to treat Chrysler’s refusal to engage in a fight as some type of admission that its experts relied on wrong materials. 

“Plaintiffs also falsely argue that Chrysler does not contend that their expert’s new reports are incorrect or inaccurate in any way,” she wrote. 

“These arguments are ridiculous.” 

She also wrote that a motion to strike experts based on unauthorized and untimely disclosure is not the place for defending one’s expert, and that plaintiffs admitted Williams didn’t produce documents, “yet they are still claiming this was not an error but the right thing to do.” 

She wrote that plaintiffs declared there was no surprise about the reports.  

“Chrysler was surprised, in fact it was shocked, by plaintiffs’ service of new expert reports,” she wrote. 

She wrote that if Chrysler’s experts are just wrong, there should have been no need for new reports. 

“Plaintiffs can simply cross examine Chrysler’s experts on the stand and show the jury how they are wrong,” she wrote. 

She wrote that their only reason for espousing new opinions based on new data was because their original reports were unsupportable. 

The region’s biggest firms run the action. 

Baucom practices at Armstrong Teasdale, and the roster of class counsel includes four of his colleagues. 

Wisniewski and D’Aunoy practice at Thompson Coburn, and five of their colleagues represent Chrysler.  

The class counsel roster includes former U.S. attorney Stephen Wigginton of Troy and Belleville lawyers Lloyd M. Cueto and Christopher Cueto. 

Six lawyers from Chicago, Milwaukee, and Detroit represent Harman International.

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