In Defective Shingles Class Action, Third Circuit Rejects Novel “Expected Useful Life” Defect Theory Premised on Warranty Period
The Third Circuit recently confirmed that plaintiffs must provide evidence of a specific defect, capable of classwide proof, in order to prevail on proposed class claims, holding that, where defective design is “an essential element of Plaintiffs’ misrepresentation-based claims,” whether proof of the defect “is susceptible to classwide evidence is dispositive of whether Plaintiffs can satisfy predominance” under Rule 23(b)(3).
In Gonzalez v. Owens Corning, the plaintiffs sued the manufacturer of Oakridge fiberglass roofing shingles, claiming that their shingles, which were subject to warranties of 25 years or more, were “plagued by design flaws that result in cracking, curling and degranulation” and “will eventually fail.” The plaintiffs argued that the product warranties amounted to representations about the shingles’ expected useful life. Plaintiffs did not dispute that the design specifications for all shingles met the applicable industry design standard (“ASTM”), but claimed that compliance with the ASTM specifications did not consistently yield shingles that would last the stated warranty period. Thus, plaintiffs claimed that the issue of “defectiveness should be judged by the expected useful life of the shingles as represented by the applicable warranty period.” The plaintiffs’ expert, whose testimony was largely stricken as unreliable under Daubert, acknowledged that there was no single set of measurements applicable to all shingles that would constitute a design defect and that a shingle would have to be individually inspected to determine whether it is defective or not. The District Court, in a 185-page opinion, denied class certification on numerous grounds, including that the presence of a design defect was an essential element of Plaintiffs’ misrepresentation-based claims and they could not be proven by common evidence. While plaintiffs sought to certify express and implied warranty, unjust enrichment, and state consumer protection claims premised upon a common defect and misrepresentations of useful life, the court declined certification because “the defect question is primary because success on each claim requires a finding that the Oakridge shingles are defectively designed.”
In affirming the denial of class certification, the Third Circuit explained that the “Plaintiffs’ theory of design defect—which absolves them of the need to identify any particular problems with their shingles—is the focus of Plaintiffs’ appeal.” “Regardless of the theory of liability pursued, Rule 23 requires, if nothing else, that a putative class must describe the product’s defect on a classwide basis. If the proponents of the class do not allege a defect common to the class, the defectiveness of a given product is, by necessity, not susceptible to proof by classwide evidence.” Accordingly, Gonzalez categorically rejected the plaintiffs’ attempt to circumvent the need to identify a common defect by, in effect, redefining the concept of defect “to equate the existence of a defect with the mere possibility that one might exist.” This “novel reformulation of the concept of a product defect could not be permitted to work an end run around the requirements of Rule 23(b)(3).” Thus, resolving the defect issue could only be done by examining each individual shingle.
After the Gonzalez trial court opinion was issued, the New Jersey District Court in Stern, et al. v. Maibec, Inc. — a case alleging that eastern white cedar (wood) shingles were defective — issued its decision denying class certification for fundamentally the same reasons. Like the Gonzalez plaintiffs, the Stern plaintiffs relied upon a novel “defect” theory proffered by the same expert as in Gonzalez. The Stern plaintiffs claimed that because shingles had a propensity to move (cup or curl), they were defectively designed and manufactured, and that the movement of wood shingles constituted “decay” under the 50-year warranty against decay, despite the plain meaning of the term “decay” in the wood industry and in applicable industry standards. The District Court found that plaintiffs’ expert was unqualified and his opinions unreliable, and thus, inadmissible under Daubert. Because all of the legal claims — warranty, misrepresentation, and consumer protection — were premised upon a product defect theory, class certification was denied, not only because there was no evidence of product defect, but because individualized inspections of each class members’ shingles would be necessary to determine if there was some problem with the shingles. It is becoming increasingly clear that courts within the Third Circuit are less inclined to accept such “novel” defect theories without supporting evidence.