[00:00:00] Speaker 04:
Good afternoon, Your Honors.

[00:00:02] Speaker 04:
May it please the Court, Melissa Yates of Kessler-Topaz Meltzer and Check on behalf of Appellants.

[00:00:08] Speaker 04:
I would like to reserve five minutes for rebuttal.

[00:00:11] Speaker 02:
Thank you.

[00:00:11] Speaker 02:
All right.

[00:00:11] Speaker 02:
Really watch your clock, okay?

[00:00:13] Speaker 02:
Yes.

[00:00:14] Speaker 02:
Thank you.

[00:00:15] Speaker 04:
The District Court overstepped its role as a gatekeeper and usurped the role of the jury when it acted as a fact-finder and excluded Dr. White.

[00:00:25] Speaker 04:
Ninth Circuit law makes clear that Daubert and Rule 702 are meant to screen the jury from unreliable nonsense opinions and junk science, and are not meant to exclude opinions merely because they are impeachable.

[00:00:40] Speaker 04:
City of Pomona and Alaska Renacar teach us that the district court is not tasked with determining whether the expert is right or wrong, and that the reliability test is not the correctness of the expert's conclusions

[00:00:54] Speaker 04:
but the soundness of his methodology.

[00:00:57] Speaker 04:
Here, the district court violated these basic principles by engaging in free-form fact-finding to weigh the evidence and determine whether it agreed with Dr. White's conclusions.

[00:01:08] Speaker 04:
This is reversible error.

[00:01:10] Speaker 04:
This case is not a close call.

[00:01:12] Speaker 04:
Dr. White is not a professional expert.

[00:01:15] Speaker 04:
He is a serious academic who is Yale-educated

[00:01:18] Speaker 03:
It doesn't really matter what his qualifications are in the abstract.

[00:01:23] Speaker 03:
Doesn't it matter how he applied the standard under Rule 702?

[00:01:28] Speaker 03:
I don't think there's any question that he's well-educated and has good experience.

[00:01:34] Speaker 03:
And Judge Staten did not criticize any of that.

[00:01:36] Speaker 03:
What she criticized was how he applied the standard that was appropriate for evaluating whether the product was defective.

[00:01:45] Speaker 04:
That's correct, Your Honor.

[00:01:47] Speaker 04:
Dr. White's experience and education can serve as a reliable basis and a foundation for his testimony, and he performed a fulsome engineering analysis here.

[00:02:01] Speaker 04:
Dr. White's experience in fluid mechanics and thermodynamics helped inform

[00:02:07] Speaker 04:
the fulsome analysis, which he detailed in a 42-page report.

[00:02:11] Speaker 00:
Can you, Council, can you help me?

[00:02:13] Speaker 00:
I was having a tough time figuring out what the design defect theory was.

[00:02:18] Speaker 00:
So every water pump degrades from exposure to coolant and heat over time, right?

[00:02:26] Speaker 00:
But the theory is that there's a certain thing about these type of internal water pumps that are defective because it accelerates the erosion process.

[00:02:36] Speaker 00:
And what I was looking to see was whether Dr. White mentioned a certain temperature, a tipping point temperature or something else, or what the actual defect theory is.

[00:02:48] Speaker 00:
So can you explain what that theory is?

[00:02:50] Speaker 04:
Yes, Your Honor.

[00:02:52] Speaker 04:
What's important to keep in mind about these water pumps is that they are installed inside the engine block.

[00:02:59] Speaker 04:
And as a result, Ford and Mazda engineers, when they were designing the water pumps,

[00:03:04] Speaker 04:
had to take into consideration that thermal environment when designing the pumps, and they failed to do that.

[00:03:11] Speaker 04:
And so what Dr. White's analysis shows is that the bellows and the mechanical seal in these water pumps is made of HNBR, which is a type of rubber, and that rubber is exposed to coolant

[00:03:26] Speaker 04:
at high temperatures, higher than they would be if it was placed outside of the engine block.

[00:03:31] Speaker 04:
But because the seal is inside the engine block, it's exposed to friction, it's exposed to hot oil, and that raises the temperatures in the spring bellow chambers.

[00:03:41] Speaker 00:
But is it a theory that all internal water pumps are inherently defective because they are exposed to more, I guess, factors that really degrade them?

[00:03:52] Speaker 04:
No, his theory is very specific.

[00:03:55] Speaker 04:
Dr. White identified a specific design defect, which is the unshielded HMBR bellows in a mechanical seal that's placed inside the engine and exposed to high temperatures and coolant.

[00:04:07] Speaker 04:
And so not all internal water pumps are defective.

[00:04:12] Speaker 00:
They are subject to different designs.

[00:04:13] Speaker 00:
Is this HMBR material?

[00:04:15] Speaker 04:
It is the material in combination with the fact that it's unshielded and exposed to

[00:04:21] Speaker 04:
high coolant temperatures and the coolant itself.

[00:04:24] Speaker 04:
So it suffers thermal degradation and it suffers chemical degradation.

[00:04:29] Speaker 00:
So one of the arguments that you raise is that the district court improperly assumed that this should have been a comparative analysis and it wasn't.

[00:04:40] Speaker 00:
But if the benchmark is not comparative to something else,

[00:04:43] Speaker 00:
How would one someone know that this happens to be defective?

[00:04:48] Speaker 00:
relative to what you know what you know because You just told me that all internal water pumps face higher temperatures and in coolant So what what is if not a comparison to another what internal water pump?

[00:05:02] Speaker 00:
How does one determine whether something is defectively designed versus not?

[00:05:07] Speaker 04:
so and

[00:05:08] Speaker 04:
The way he did that, comparative data is not required.

[00:05:11] Speaker 04:
He used the same type of methodology that he would use in his research.

[00:05:15] Speaker 04:
He performed a fulsome engineering analysis, and I can talk about the various steps that he took to perform that analysis.

[00:05:22] Speaker 04:
But it's the type that engineers use when they're determining failure mode.

[00:05:26] Speaker 04:
It's the same type of analysis that's included in the teardown reports that are in the record that Ford and Mazda

[00:05:33] Speaker 04:
engineers used when they were determining what caused water pump failures?

[00:05:36] Speaker 00:
And we'll get to those tear down reports in a moment, but I think what the district court was keying into was it's hard to know what the actual defect theory is because there's no temperature that Dr. White says.

[00:05:50] Speaker 00:
If you reach a certain level of this temperature, it's going to accelerate the erosion of it.

[00:05:55] Speaker 00:
or relative to another water pump.

[00:05:58] Speaker 00:
It's just, it's not clear why he is giving reliable evidence to show that this is defective as opposed to not.

[00:06:05] Speaker 04:
It's defective because the Bellows is unshielded and exposed to these high temperatures.

[00:06:10] Speaker 04:
And he performs thermal resistance modeling and a thermodynamic analysis to show that that material is exposed to thermal degradation.

[00:06:18] Speaker 04:
And so comparative data is not required.

[00:06:21] Speaker 04:
He cites to the Kameling study

[00:06:23] Speaker 04:
which supports his opinion that this exposure

[00:06:28] Speaker 04:
to thermal degradation over time will cause compression set and will cause the bellows to lose elasticity.

[00:06:35] Speaker 04:
And so he performed a very thorough detailed analysis.

[00:06:41] Speaker 04:
First of all, he looked at the seal function and the closing force analysis.

[00:06:45] Speaker 04:
He used mathematical equations to determine the closing force and the face pressure that was required.

[00:06:53] Speaker 04:
And this showed the effect of the bellows design and degradation on the seal balance and leaks.

[00:06:57] Speaker 04:
Basically, he explained that when there's not sufficient closing force, then the bellows can no longer hold the seal faces tight together, and then a leak can occur.

[00:07:08] Speaker 04:
His thermodynamic and thermal resistance modeling showed that heat is transferred into the spring bellows chamber due to friction and hot oil temperatures surrounding the pump casing, and to show that the exposure to the high temperatures and coolant degrades the bellows to the point where it can no longer maintain the tightness around the seal.

[00:07:27] Speaker 00:
So can I ask about the, what was the study that you said, the rip down study, the examination of the four water pumps, the district court found that there was no evidence that the deformation was caused by the design defect as opposed to other potential causes of overheating.

[00:07:46] Speaker 00:
So why, as also a basis for exclusion, why was that incorrect?

[00:07:51] Speaker 04:
That was incorrect because the district court was weighing the evidence and determining whether she agreed with White's conclusions.

[00:07:58] Speaker 04:
opined that the degradation was caused by the exposure to high temperatures and coolant.

[00:08:04] Speaker 04:
And the district court looked at that and surmised whether there could have been alternative causes or whether the degradation could have been caused by something else.

[00:08:13] Speaker 04:
And that's not the role of the district court.

[00:08:16] Speaker 04:
The district court, this circuit's law is very clear under Kennedy, under Alosu.

[00:08:22] Speaker 00:
I don't know that I see it as weighing so much as just testing the reliability of the evidence.

[00:08:28] Speaker 00:
If the district court is asking the question, well, one theory is that this design defect causes what we see here, and another one is actually overheating from other things could result in the same thing.

[00:08:41] Speaker 00:
How do we know that the design defect is the cause?

[00:08:44] Speaker 00:
Why is that weighing evidence as opposed to ascertaining whether it's reliable for him to have opined that way?

[00:08:50] Speaker 04:
Because instead of looking at all of the foundational data that supported Dr. White's report and instead of looking at the steps of his methodology, which supported his opinion, the court looked at one

[00:09:04] Speaker 04:
piece of deposition testimony and decided, okay, well, maybe the degradation occurs after the Bellows fails, not before.

[00:09:11] Speaker 04:
There was no evidence in the record to show that.

[00:09:14] Speaker 04:
In fact, the evidence in the record from Mazda and Ford's Terre d'Or reports is completely in line with White's findings that the degradation occurs before the water pump failure and actually leads to the water pump failure as a result of being exposed to the high temperatures and the coolants.

[00:09:32] Speaker 04:
And so for the district court to determine whether she agreed with White's conclusions was going too far.

[00:09:39] Speaker 04:
That really should go to the jury.

[00:09:41] Speaker 04:
And the way we deal with that type of expert testimony, Mazda can go in front of the jury.

[00:09:46] Speaker 04:
They can say, our experts don't think that the degradation was caused by that.

[00:09:51] Speaker 04:
They can point to their record evidence.

[00:09:53] Speaker 04:
We can point to our record evidence.

[00:09:54] Speaker 04:
They can cross-examine Dr. White.

[00:09:56] Speaker 04:
And then the jury can weigh that evidence and determine whether they believe there was a common design defect or not.

[00:10:02] Speaker 03:
You're not suggesting that only where there's junk science or nonsense that a trial court can exclude evidence, are you?

[00:10:11] Speaker 03:
That was the beginning of your comment, and I noted that in your brief as well.

[00:10:15] Speaker 03:
It goes well beyond junk science, doesn't it?

[00:10:18] Speaker 04:
Certainly not, Your Honor.

[00:10:19] Speaker 04:
But what I was suggesting is we're dealing with a serious expert here who performed a sound methodology, the same type that he uses in his research.

[00:10:29] Speaker 04:
The same type that Ford and Mazda engineers used when they performed failure mode analyses to determine the failure mode of the water pumps.

[00:10:38] Speaker 04:
If you look at the Ford analysis of the police vehicles, which is in the record and which Dr. White cites to as corroboration of his theory, Ford engineers there performed a failure mode analysis that is very similar to the analysis that Dr. White performed here.

[00:10:56] Speaker 04:
they reached the same conclusion, that thermal degradation was causing the bellows to degrade, was causing them to form compression set, fatigue cracks, lose elasticity, and not be able to maintain the seal tight together, and then allow leaks.

[00:11:13] Speaker 04:
So this is a defect that is in design.

[00:11:15] Speaker 04:
It's one that occurs from day one, and it's one that harms all of the plaintiffs and consumers in the same way.

[00:11:23] Speaker 04:
I'll also note

[00:11:24] Speaker 04:
It's a defect that causes real consequences.

[00:11:27] Speaker 04:
Our plaintiffs have testified that they experienced engine failure while driving 50 miles an hour on the highway.

[00:11:34] Speaker 04:
They were exposed to safety risks.

[00:11:36] Speaker 04:
They had to pay thousands of dollars to replace the water pump and sometimes $10,000 or more to replace the entire engine as a result of the failure.

[00:11:45] Speaker 04:
And so that's something to keep in mind when we're talking about materiality.

[00:11:48] Speaker 00:
I'm sorry.

[00:11:49] Speaker 00:
One of the issues that came up in the briefing is about being able to extrapolate from the four pumps to a class-wide root cause problem.

[00:11:59] Speaker 00:
Is there a problem there?

[00:12:01] Speaker 00:
Should Dr. White or someone or plaintiffs have provided other type of evidence to support such a broad kind of statement that this affects the class?

[00:12:12] Speaker 00:
you know, real-world testing, something else in addition to just the four analyses.

[00:12:18] Speaker 04:
He actually looked at six water pumps, so he looked at four failed and two new OEM water pumps and compared his measurements in those pumps.

[00:12:28] Speaker 04:
And so I think that six is an appropriate number.

[00:12:32] Speaker 04:
The number depends on the engineering analysis, the facts of the case.

[00:12:37] Speaker 04:
I would note that defendant's expert Lee also looked at six pumps, so both experts felt six pumps were enough.

[00:12:42] Speaker 04:
The Ford study, even though Ford had access to numerous failed pumps because it was their police vehicles that they were studying, they only looked at 16 pumps.

[00:12:51] Speaker 04:
So when you're determining a design defect and using a specific failure mode analysis, as Dr. White did here, that number of pumps is sufficient.

[00:13:01] Speaker 04:
And it's not the only thing he did as part of his analysis.

[00:13:03] Speaker 04:
The inspection, the measurements, that was part of the analysis.

[00:13:07] Speaker 04:
He also measured, he plotted load versus deflection

[00:13:12] Speaker 04:
curves, he calculated spring rate changes over deflection to show the stiffness required, and he modeled the thermal resistance modeling to show how heat is transferred into the spring bellows chamber in an internal water pump such as this that's placed inside the engine.

[00:13:28] Speaker 02:
Now is your class a class of people whose water pumps have actually failed?

[00:13:35] Speaker 04:
The class is not limited to that.

[00:13:37] Speaker 04:
All 12 plaintiffs, their water pumps did fail and they experienced horrific, many times, situations where their car stopped while they were driving.

[00:13:46] Speaker 04:
They had to spend

[00:13:47] Speaker 04:
tens of thousands of dollars to replace the engines or thousands of dollars to replace the pump.

[00:13:52] Speaker 04:
But it's not limited that way.

[00:13:54] Speaker 04:
And Wolin and Winn tell us that in a consumer fraud case like this, manifestation is not required.

[00:13:59] Speaker 04:
The harm here is not whether every water pump fails.

[00:14:02] Speaker 04:
It's the fact that Mazda knew about a known defect at the point of sale and didn't disclose it.

[00:14:08] Speaker 04:
And so the injury to plaintiffs here

[00:14:10] Speaker 04:
Like and when is overpayment due to that failure to disclose and we do have evidence of that in the record Dr. Gaskin our damages expert performed a conjoint showing that consumers felt the water pump defect

[00:14:26] Speaker 04:
was important to be considered and was material in considering the purchasing decisions.

[00:14:31] Speaker 02:
And is it your position that had they been placed external to the engine, they would not have failed or they were less likely to fail?

[00:14:40] Speaker 04:
Dr. White is not offering an opinion on that, and he doesn't need to offer an opinion on external water pumps or how they should be designed.

[00:14:47] Speaker 04:
There are various different external water pumps in different designs.

[00:14:50] Speaker 02:
His problem is with the use of the HNBR elastomer.

[00:14:55] Speaker 04:
It is with the use of the HNBR elastomer and the fact that it's unshielded and exposed to the coolant.

[00:15:00] Speaker 04:
And if you look at the Ford 2020 redesign, which Mazda did not adopt, Ford engineers looked at similar data that Dr. White looked at, and they decided that a redesign was necessary.

[00:15:12] Speaker 04:
And the way they redesigned the mechanical seal, they made it more compact.

[00:15:17] Speaker 04:
They put a metal frame around the seal so that the bellows would not

[00:15:23] Speaker 04:
be subject to high temperatures and coolant, and they added a wave spring so that there was less strain.

[00:15:28] Speaker 04:
And all of these things fix the exact defect that Dr. White opined about.

[00:15:34] Speaker 04:
They reduce the strain, they reduce the exposure to coolant in high temperatures, and they prevent the bellows from degrading.

[00:15:48] Speaker 04:
I will save my rebuttal time, unless Your Honors have additional questions.

[00:15:52] Speaker 04:
Thank you.

[00:15:53] Speaker 04:
Thank you.

[00:16:03] Speaker 01:
May it please the court, Michael Malo, Shukardi, and Bacon on behalf of the Mazda defendants.

[00:16:11] Speaker 01:
Your honors, certainly in the questioning of appellant counsel, identified many of the topics that I wanted to highlight for you.

[00:16:19] Speaker 01:
But let's start from the back end of

[00:16:23] Speaker 01:
the discussion that we just heard.

[00:16:26] Speaker 01:
The plaintiffs in this case are seeking the impairment of value at the time of sale for a defect that they claim exists in these vehicles.

[00:16:37] Speaker 01:
Fundamental to their theory is the notion that the defect that Dr. White posits actually caused failures such that there could be

[00:16:49] Speaker 01:
an impairment to value at the time of sale.

[00:16:54] Speaker 01:
Fundamentally, Judge Staton's problem with Dr. White's opinions is that there was no connection between the hypotheses he set forth, and he set forth four different hypotheses as to how the defect could impact

[00:17:10] Speaker 01:
mechanical seals in the water pumps, and whether actually vehicles failed in the field as a result of his defect theory.

[00:17:21] Speaker 01:
And this causation connection was critical to their case, because how can there be impairment in the vehicle's value if the theory that Dr. White posits actually doesn't manifest or doesn't manifest at any rate to actually be material?

[00:17:40] Speaker 01:
That's fundamentally what Judge Staten was dealing with when she was reviewing his opinion, reviewing the plaintiff's claim with support for his opinion, and what the actual issues in the case were.

[00:17:54] Speaker 00:
Well, Ms.

[00:17:54] Speaker 00:
Yates is positing that Judge Staten weighed the evidence and didn't properly apply summary judgment standards.

[00:18:02] Speaker 00:
So why is she incorrect?

[00:18:06] Speaker 01:
Your Honor, Judge Staten did not weigh the evidence.

[00:18:10] Speaker 01:
What Judge Staton did was look at the hypotheses and then look to see what the foundational basis was for those hypotheses and whether those hypotheses were tested.

[00:18:22] Speaker 01:
Plaintiffs spend a tremendous amount of time talking about the Alosu case and the Ramirez case.

[00:18:32] Speaker 01:
And the point they try to make in both of those cases is Dr. White didn't need to do any testing.

[00:18:39] Speaker 01:
He can have his theory, and that's sufficient.

[00:18:43] Speaker 01:
But that's not what the case law actually stands for.

[00:18:48] Speaker 01:
Ramirez cites in the quote about testing, Ramirez cites to Messick versus Novartis Pharm, pharmaceutical score.

[00:19:00] Speaker 01:
And in that case,

[00:19:07] Speaker 01:
there's a discussion of whether a theory can be tested.

[00:19:12] Speaker 01:
And then, Messick cites to Daubert.

[00:19:18] Speaker 01:
And actually, the language in Daubert is much more specific than what was called in a Messick.

[00:19:27] Speaker 01:
The Daubert language regarding testing is that, and I quote from Daubert, ordinarily a key question to be answered in determining whether a

[00:19:38] Speaker 01:
theory or technique, is scientific knowledge that will assist to try or fact, would be whether it can be, and here's the part that got left out of Ramirez, and that got left out of Messick, parenthetical, and has been, and parenthetical, tested.

[00:19:59] Speaker 01:
And that was clear that there was a reason for this.

[00:20:01] Speaker 01:
It says scientific method today is based on generating hypotheses and testing

[00:20:06] Speaker 01:
than them to see if they can be falsified.

[00:20:09] Speaker 01:
Indeed, this methodology is what distinguishes science from other fields of human inquiry.

[00:20:17] Speaker 01:
Dr. White didn't do anything to test his hypotheses.

[00:20:23] Speaker 01:
Looking at four internal water pumps, what Judge Staton said was, you're looking at the degradation of the HMBR.

[00:20:32] Speaker 01:
But you can't tell me what caused it.

[00:20:35] Speaker 01:
And causation of the degradation could be either because there was some event where the water pump fails, heat is generated, and it causes degradation after the fact of failure.

[00:20:48] Speaker 01:
Or it could be degradation because some other malfunction or some other cause elevated the heat in the engine

[00:21:02] Speaker 01:
that the water pump is exposed to beyond 135C or beyond its capability.

[00:21:10] Speaker 01:
And Judge Sanchez, you picked up an extremely important point.

[00:21:18] Speaker 01:
It is absolutely certain, at some point, water pumps will fail.

[00:21:23] Speaker 01:
Because every water pump is exposed to heat.

[00:21:26] Speaker 01:
The HMBR in every water pump is exposed to coolant.

[00:21:30] Speaker 01:
They will fail over time.

[00:21:33] Speaker 00:
So why isn't it enough for plaintiffs to bring up it's a combination of HNBR, internal water pump, unprotected, and here's some thermodynamic evidence to show that that was the cause of what we see with these four water pumps.

[00:21:52] Speaker 00:
Why isn't that sufficient for Daubert purposes in your view?

[00:21:56] Speaker 01:
Good question.

[00:21:58] Speaker 00:
Well, thank you.

[00:22:00] Speaker 01:
Because what was done by Dr. White was some mathematical calculations.

[00:22:07] Speaker 01:
That is not how experts in this field identify root cause and address root cause.

[00:22:15] Speaker 01:
Judge Lynn, you asked at the beginning, it's not whether Dr. White is qualified, it's whether he uses those qualifications

[00:22:26] Speaker 01:
in a way that is an identified standard, a methodology that is reliable.

[00:22:30] Speaker 01:
He did not do that here.

[00:22:32] Speaker 02:
Yeah, so I just had a question about that, because it seems to me that's a merits question, because Dr. Wright testifies that this is caused by that.

[00:22:44] Speaker 02:
And then I would say that I would see the defense is naturally saying, no, it isn't.

[00:22:49] Speaker 02:
There are many other causes of this.

[00:22:51] Speaker 02:
It could be caused by XXXYZ.

[00:22:56] Speaker 02:
That would be a jury question.

[00:22:58] Speaker 02:
What was actually the cause?

[00:23:01] Speaker 01:
Well, I absolutely agree.

[00:23:02] Speaker 01:
It's a marriage question.

[00:23:05] Speaker 01:
The question is, does it have the sufficient reliability to get to a jury?

[00:23:11] Speaker 01:
As counsel suggests, every admissibility issue could be the subject across examination.

[00:23:22] Speaker 01:
The question, though, is, does the experts

[00:23:26] Speaker 01:
theory or opinion have sufficient reliability to get to a jury.

[00:23:32] Speaker 01:
And what Judge Staten opined is it does not, because there's a theory that has gone untested.

[00:23:39] Speaker 02:
And by testing, it doesn't mean like... But there's a case law that says you can project, based on the results you have, you can project your theory, as long as it's based on scientific principles.

[00:23:52] Speaker 02:
Isn't that what he did here?

[00:23:54] Speaker 01:
But the scientific principle that's missing here is the testing.

[00:23:58] Speaker 01:
And when I team testing, I don't mean a specific test.

[00:24:00] Speaker 01:
I mean the challenging of the hypothesis to determine that the hypothesis has merit.

[00:24:05] Speaker 01:
That was not done here.

[00:24:07] Speaker 01:
Well, it certainly wasn't done by Dr. White.

[00:24:10] Speaker 01:
Ironically enough, it was done by Dr. Lee, where she, from her testing, shows why the things that he says don't happen and can happen.

[00:24:20] Speaker 01:
But to her credit, Judge Staton didn't get involved in what Dr. Lee, Mazda's expert, said.

[00:24:25] Speaker 01:
She focused on what Dr. White said, or more importantly, what he didn't say or didn't do.

[00:24:32] Speaker 01:
The idea, again,

[00:24:34] Speaker 01:
Plaintiff's theory is, because this water pump is put into an internal engine, it degrades faster.

[00:24:42] Speaker 01:
It degrades prematurely.

[00:24:45] Speaker 01:
It degrades in such a way that causes the mechanical seal to lose its function.

[00:24:53] Speaker 01:
Where's the support for that?

[00:24:57] Speaker 01:
There is no support for that.

[00:24:59] Speaker 01:
It's just theory.

[00:25:00] Speaker 01:
And to her credit, Judge Staten dug into that, into Dr. White's report.

[00:25:06] Speaker 01:
She dug deeply into his report.

[00:25:08] Speaker 01:
And when she came out of that report, she says, I don't understand how you go from these theories

[00:25:15] Speaker 01:
to what actually happened to the four water pumps that you looked at from the planet's vehicles.

[00:25:21] Speaker 01:
I don't understand how you go from your theories to saying that the water pumps in the rest of the vehicles fail based on your defect theory.

[00:25:32] Speaker 01:
I don't understand how you can say that there's

[00:25:36] Speaker 01:
higher occurrence of failure, or it's more propensity to fail when you haven't looked at any data comparing what a external water pump would do versus an internal water pump will do, where you say that the HMBR is exposed to higher temperatures, but you don't tell me what that temperature is.

[00:25:58] Speaker 01:
You show me nothing to suggest that it's a higher temperature such that it's going to cause an accelerated

[00:26:05] Speaker 01:
deterioration of the HNBR.

[00:26:08] Speaker 01:
All of that is missing from what Dr. White's opinion and what Dr. White did.

[00:26:14] Speaker 01:
That's the problem Judge Staton had with his opinion.

[00:26:17] Speaker 01:
She's not weighing it.

[00:26:18] Speaker 01:
Weighing.

[00:26:19] Speaker 00:
Do other manufacturers use HNBR for internal water pumps?

[00:26:25] Speaker 01:
Those are two questions.

[00:26:28] Speaker 01:
So the answer to your question is yes.

[00:26:30] Speaker 01:
Even the water pump that was redesigned by Ford uses HMBR.

[00:26:36] Speaker 01:
It is a completely different design because the vehicles at issue were completely different in terms of their usage than the Mazda passenger vehicles.

[00:26:46] Speaker 01:
Let me address that real quickly for a second.

[00:26:50] Speaker 01:
Dr. White does discuss

[00:26:52] Speaker 01:
the investigations related to the Ford police cruisers.

[00:26:59] Speaker 01:
And yes, the water pump that was originally in the police cruisers is the same water pump that was used in the Mazda vehicle.

[00:27:07] Speaker 01:
The problem is that's where the similarity stops.

[00:27:11] Speaker 01:
The environment, which is purportedly critical to Dr. White's opinion, right?

[00:27:17] Speaker 01:
The environment, it's much hotter inside this internal engine.

[00:27:20] Speaker 01:
is based on the police cruiser investigations.

[00:27:23] Speaker 01:
We know from those documents that police cruisers use a different oil that allows for a much higher temperature than what's in the Mazda passenger vehicles.

[00:27:34] Speaker 01:
We know that the duty cycle from the police cruisers creates a higher temperature over a prolonged period of time, and the documents in fact specifically say above 135C.

[00:27:49] Speaker 01:
that will accelerate deterioration of HMBR.

[00:27:55] Speaker 01:
What those studies don't say, however, is that the HMBR deterioration causes the failure.

[00:28:04] Speaker 01:
So we have documents that really are apples and oranges, but on the ultimate conclusion that Dr. White is trying to reach, those documents don't even support his opinion there either.

[00:28:18] Speaker 01:
And the teardown reports that counsel had talked about earlier and that your honor alluded to, there were hundreds of those reports, not six.

[00:28:29] Speaker 01:
And those reports identify myriad reasons for water pump failures.

[00:28:38] Speaker 01:
Almost none of them having anything to do with Dr. White's theory.

[00:28:43] Speaker 01:
And the ones that sound a little bit like Dr. White's theory,

[00:28:48] Speaker 01:
We're police cruisers.

[00:29:08] Speaker 01:
There's been discussion about the application of Rodzicki to this case.

[00:29:14] Speaker 01:
And certainly, the extrapolation of four failed water pumps, where no specific cause can be identified to the entirety of a class, as Grodzicki suggested, is inappropriate.

[00:29:33] Speaker 01:
But there's actually another similarity between Grodzicki and this case.

[00:29:38] Speaker 01:
And that is, Dr. Akhavan in Grodzicki,

[00:29:43] Speaker 01:
actually did conduct testing.

[00:29:46] Speaker 01:
He did analyze certain aspects of functionality for the window regulator assemblies.

[00:29:52] Speaker 01:
The problem with the testing and the problem with the analysis is it didn't have any connection to the defect theory.

[00:30:02] Speaker 01:
And we have that same exact problem here as well with Dr. White.

[00:30:07] Speaker 01:
The mathematical calculations,

[00:30:10] Speaker 01:
the notion of an enhanced temperature inside the engine compartment.

[00:30:18] Speaker 01:
None of those actually tie to his theory of failure.

[00:30:23] Speaker 01:
And the theory of failure is that the HMBR degrades to such an extent that somehow it allows those mechanical seals that need to be kind of pressed against each other to no longer be pressed against each other.

[00:30:39] Speaker 01:
and coolant floods between those seals and washes out the grease that allows the water pump to function without failure.

[00:30:55] Speaker 01:
Where in his report, where in any of the analyses that he conducted, is there anything tying that failure mode

[00:31:05] Speaker 01:
anything that happened in the four water pumps that he looked at that fell from the plaintiff's vehicles or any other class vehicle.

[00:31:16] Speaker 01:
Judge Staten didn't find it.

[00:31:20] Speaker 01:
We didn't find it.

[00:31:22] Speaker 01:
I submit your honors will not find it either because it doesn't exist.

[00:31:40] Speaker 01:
Your honor, let me conclude, and I know there's significant time left, so if you have questions, by all means, please ask them.

[00:31:46] Speaker 01:
But let me conclude with this.

[00:31:51] Speaker 01:
It cannot be sufficient in a class action for an expert to not do the work that's necessary to confirm at the summary judgment phase the existence of a defect and the manifestation of that defect in

[00:32:10] Speaker 01:
the field.

[00:32:13] Speaker 01:
The possibility that something may be causing vehicles to fail is far insufficient.

[00:32:24] Speaker 01:
It needs to be probable.

[00:32:26] Speaker 01:
It needs to be likely.

[00:32:30] Speaker 01:
And your honors need look no further than, and we're kind of blessed in this case because we have old cars at issue here.

[00:32:37] Speaker 01:
They were old when we had the case and when we were arguing summary judgment.

[00:32:41] Speaker 01:
They're even older now.

[00:32:42] Speaker 01:
We have old cars.

[00:32:44] Speaker 01:
These cars have exceeded the 150,000 miles that Dr. White opines they shouldn't have actually achieved based on his defect theory.

[00:32:56] Speaker 01:
We don't know, he never testifies about a manifestation right because according to Dr. White, it doesn't matter.

[00:33:07] Speaker 01:
He doesn't care whether one car fails, millions of car fails, no cars fail based on his defect theory.

[00:33:17] Speaker 01:
To him, it's irrelevant.

[00:33:18] Speaker 01:
It doesn't matter.

[00:33:19] Speaker 01:
What he's opining about is the possibility that this exists.

[00:33:22] Speaker 01:
This defect exists.

[00:33:24] Speaker 01:
And just because it exists, plaintiffs should be paid.

[00:33:30] Speaker 01:
for an impairment of value, an impairment of value that may never have actually caused any cars to fail, let alone an entire class of cars, which Dr. White-O-Pines really should never have made it to 150,000 miles based on his theory.

[00:33:50] Speaker 01:
But we know that in excess of 90% of those cars seem to have gotten past 150 without failure, without water pump failure.

[00:34:00] Speaker 01:
And I'm not talking about without water pump failure based on his theory.

[00:34:04] Speaker 01:
We're talking about without failure based on any reason.

[00:34:10] Speaker 01:
Judge Staten was right to exclude his report.

[00:34:13] Speaker 01:
He didn't do the homework an expert in the field needed to do to support

[00:34:20] Speaker 01:
to have a basis for his opinions.

[00:34:23] Speaker 01:
He didn't connect the causation that he needed to.

[00:34:27] Speaker 01:
He didn't do any comparative analysis.

[00:34:29] Speaker 02:
All right, Counsel, you have a minute and a half, but you don't really need to use it.

[00:34:36] Speaker 02:
I think you said the last two minutes have been spent repeating the same thing.

[00:34:41] Speaker 02:
So we understand what you're arguing.

[00:34:45] Speaker 01:
Thank you, Your Honor.

[00:34:46] Speaker 01:
I appreciate the time.

[00:34:47] Speaker 01:
Thank you.

[00:34:54] Speaker 04:
It is undisputed in this case that the internal water pumps were supposed to last 150,000 miles.

[00:35:00] Speaker 04:
Mazda employees testified that that was the development target and that's how long they should have lasted because they were placed inside the engine block, which prevented them from being inspected or replaced.

[00:35:17] Speaker 04:
Ramirez talks about the fact that an expert's methodology doesn't require a specific type of testing.

[00:35:24] Speaker 04:
It requires that it can be testable.

[00:35:26] Speaker 04:
Dr. Lee, Mazda's expert here, detailed all of the ways in which she tested White's methodology and his opinions here.

[00:35:35] Speaker 04:
In addition, White did perform testing.

[00:35:38] Speaker 04:
He performed the same type of testing and analysis that other engineers performed.

[00:35:43] Speaker 04:
He used

[00:35:47] Speaker 04:
tools to perform precise measurements of the spring bellows chamber, the spring bellows height, the assembly, and to compare those measurements and failed pumps to new pumps to show that degradation caused compression set and to show that there was a loss of elasticity because these bellows were being exposed to heat and coolant.

[00:36:06] Speaker 04:
He also did opine on the additional heat.

[00:36:12] Speaker 04:
that these bellows are exposed to because they are within the engine block.

[00:36:17] Speaker 04:
In fact, he cited fundamentals of thermodynamics textbooks.

[00:36:21] Speaker 04:
He cited a culminating study showing HNBR experiences thermal degradation and compression set.

[00:36:29] Speaker 04:
at temperatures within the engine's normal operating ranges, and cited the Hertz paper showing that chemical degradation also occurs because the bellows are fully immersed in and not shielded from this high temperature coolant.

[00:36:43] Speaker 04:
He thereafter modeled the spring bellows chamber as a closed and an open thermodynamic system.

[00:36:50] Speaker 04:
And through this analysis, he showed that there were two ways that heat was being transferred into the spring bellows, through friction,

[00:36:57] Speaker 04:
and through the hot oil that was on the pump casing and being conducted into the spring bellows chamber.

[00:37:03] Speaker 04:
As a result, his testing and analysis showed that the coolant temperature in the spring bellows chamber was 10 to 15 degrees Celsius higher than the temperature displayed on the coolant gauge.

[00:37:15] Speaker 04:
This analysis served a foundation for his reliable opinions that this specific design where HNBR is unshielded

[00:37:25] Speaker 04:
and placed in hot, high temperature coolant causes degradation, causes compression set, causes the bellows to lose elasticity.

[00:37:34] Speaker 04:
and causes them to fail to be able to hold the seal tight together, which then causes leaks.

[00:37:41] Speaker 03:
Failure rates.

[00:37:41] Speaker 03:
Let me ask you one question about what you just said.

[00:37:44] Speaker 03:
The higher temperature than the coolant gauge, that is a measurement inside the engine, correct?

[00:37:52] Speaker 03:
So what he was saying was the temperature is actually hotter than it appears on the gauge.

[00:37:58] Speaker 04:
It is hotter than it appears on the gauge, and that's one of the reasons that plaintiffs who were driving did not get a warning.

[00:38:04] Speaker 03:
OK, let me get to my point.

[00:38:06] Speaker 03:
That is not a measurement of the external kind of pump.

[00:38:11] Speaker 03:
It's a statement that it's hot inside the engine.

[00:38:15] Speaker 03:
It's hotter than one would think.

[00:38:17] Speaker 03:
Is that the point of what you've decided?

[00:38:19] Speaker 04:
Yes, it is not comparing to external pumps.

[00:38:23] Speaker 04:
It is talking about the fact that the spring bellows chamber holds

[00:38:28] Speaker 04:
hot coolant inside of that chamber, additional heat is conducted into the chamber through friction, through the hot oil temperatures being conducted through the pump casing.

[00:38:38] Speaker 04:
And as a result, the coolant itself is 10 to 15 degrees higher than the coolant outside of that chamber.

[00:38:44] Speaker 04:
And so the coolant inside the chamber where the bellows is immersed is much higher than is shown on the temperature gaze and is within the range of temperatures that the Kamaling study says degrade

[00:38:57] Speaker 04:
And so those scientific publications, along with his thermal resistance modeling, show that his theory is reliable and is supported by facts and data.

[00:39:11] Speaker 04:
Gradsky is wholly an opposite.

[00:39:14] Speaker 04:
The expert there admitted that the vibrational testing he did, there was no correlation between that and the window regulator failures.

[00:39:24] Speaker 02:
Okay, Councilor, you're over your time, so thank you very much.

[00:39:28] Speaker 02:
Great, thank you.

[00:39:30] Speaker 02:
Sunnyvale versus Mazda Motor of America is submitted and this session of the court is adjourned for today.