STEVEN D. MERRYDAY, District Judge.
On December 29, 2014, Steven Thomas bought a Winnebago recreational vehicle from Camping World in Dover, Florida, for $252,495, excluding the sales tax, the finance charge, a trade-in allowance, and miscellaneous fees. Winnebago warrantied the interior of the vehicle for twelve months, and Freightliner warrantied the chassis for twelve months. Suing (Doc. 1) Winnebago and Freightliner under the Magnuson-Moss Warranty Act for breach of express warranty, Thomas alleges that eighteen "problems" plague the vehicle:
(Doc. 23-2 at 16, Thomas's response to an interrogatory) Thomas alleges that the defendants failed to repair the purported defects despite several opportunities. The defendants move (Docs. 22, 36) for summary judgment.
Section 2310(d) of the Magnuson-Moss Warranty Act provides a federal venue for a warranty claim if the amount in controversy from the claim exceeds $50,000, but a state's substantive law governs the claim.
Limited to the vehicle's chassis, the Freightliner warranty conceivably might cover five of the purported defects (D, E, F, G, and H). Unless an ordinary juror can reasonably attribute a product's failure to a defect rather than to another cause (for example, ordinary wear and tear, abnormal usage, or improper maintenance), the plaintiff must proffer competent and admissible opinion testimony that a manufacturing defect more likely than not caused the failure. See Bailey, 350 F.Supp.2d at 1045. In Bailey, the plaintiff alleged that the "squeaking" of a recreational vehicle's brakes evidenced a defect, but the plaintiff's expert "expressed no opinion" whether the "noisy brake system constitue[d] a defect." 350 F.Supp.2d at 1045. Because the "proper functioning of a motorhome brake system is not within the reasonable purview of an average layperson," the plaintiff's failure to proffer expert testimony that a defect caused the "squeaking" resulted in summary judgment for the defendant. Bailey, 350 F.Supp.2d at 1045. Because several other causes, including abnormal use, a collision, misalignment of the tires, improper installation of shock absorbers, or a defect in another component of the vehicle, might explain the purported problems conceivably attributable to Freightliner, Thomas must proffer expert testimony that a chassis defect likely caused the vehicle's problems. Absent competent testimony of causation, an ordinary juror cannot reasonably infer that an unrepaired defect likely caused the problems.
Freightliner's expert, Dennis Rostenbach, examined the vehicle and found no unrepaired defect. (Doc. 35) To refute Freightliner's argument that the absence of an unrepaired defect requires granting summary judgment for Freightliner, Thomas proffers the testimony of George Agutter, a purported recreational-vehicle expert. Agutter, who after several years in the boating and the home-inspection industries founded an "RV pre-purchase inspection business" in 2011, "visually inspected" Thomas's vehicle.
Also, Agutter "defers" to Freightliner expert Rostenbach to determine whether Thomas's vehicle suffers from a chassis defect. (Agutter Depo. at 84-90 and 173) As noted above, Rostenbach opines that the vehicle suffers from no defect covered by Freightliner's limited warranty. (Doc. 35-3) Rostenbach states that the tires require alignment, but Freightliner's limited warranty excludes alignment. (Doc. 35-2 at 23) Also, Rostenbach states that the misaligned tires "can be easily corrected" for "less than $2,000." (Doc. 35-3 at 3) The opinion of Freightliner's expert, to whom the plaintiff's purported expert defers, shows no unrepaired Freightliner defect.
As in Bailey, the plaintiff's purported expert expresses no opinion that an unrepaired defect caused the vehicle's problems. Even if Agutter opines that an unrepaired defect persists, Agutter's "expert" opinion is inadmissible. Under Rule 702, Federal Rules of Evidence, a witness qualified "by knowledge, skill, experience, training, or education" may testify as an expert. Agutter, who lacks a certification from the Recreational Vehicle Industry of America (Agutter Depo. at 17), who lacks any "accolades, accreditations, [or] certifications that pertain to recreational vehicles" (Agutter Depo. at 24), who until 2011 lacked any "recreational vehicle experience whatsoever" (Agutter Depo. at 26), and who lacks training in the repair of a recreational vehicle (Agutter Depo. at 26, 41), is unqualified to identify a defect in the vehicle. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), requires excluding Agutter's testimony.
Admittedly not trained or experienced in the maintenance or repair of a recreational vehicle (Thomas Depo. at 34, 42-44, 136), Thomas lacks the knowledge necessary to isolate a defect as the cause of the vehicle's purported problems. Rostenbach's unrebutted testimony shows the absence of an unrepaired defect, and Thomas's lay opinion cannot defeat summary judgment. See Pearson v. Winnebago Indus., Inc., 2016 WL 6893937 at *6 (M.D. Fla. Nov. 23, 2016) (Lammens, J.) (holding that the plaintiffs could not "overcome the [expert] evidence of no defect simply by offering their own personal opinion that the RV . . . was not functioning properly"); Davenport v. Thor Motor Coach, Inc., 2015 WL 13021664 at *5 (M.D. Fla. Aug. 6, 2015) (Adams, J.) (granting summary judgment where the defendant's expert found no defect and where the plaintiffs "have no testifying expert and have admitted that they possess no technical knowledge" about a recreational vehicle's operation); McLaughlin v. Monaco RV LLC, 2015 WL 5355465 (M.D .Fla. Sept. 14, 2005) (Honeywell, J.) (same).
Thomas argues that Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981) (Ervin, J.), permits an inference that Thomas's vehicle suffers from a defect and requires denying summary judgment. In Cassisi, the plaintiff's dryer caught fire, and the fire consumed the house. Although the plaintiff's expert opined that the fire began inside the dryer, the expert could not "pinpoint a specific defect within the dryer," which was severely damaged. Explaining that a non-defective dryer will not combust spontaneously, Cassisi holds that proof of a "malfunction" during normal use permits an inference of a defect, which inference requires denying summary judgment.
Winnebago's expert, Enoch Hutchcraft, identifies no unrepaired defect covered by Winnebago's warranty. (Doc. 23-1) Winnebago argues (Doc. 22 at 14-15) that Hutchcraft's opinion excludes the possibility of an unrepaired defect caused by Winnebago's materials or craftsmanship. According to Winnebago, Thomas's failure to rebut Hutchcraft's opinion with reliable expert testimony requires granting summary judgment for Winnebago. Thomas correctly responds that he need not proffer expert testimony of a simple problem (as opposed to a "technically complex" problem) and that Thomas's opinion suffices to show a factual dispute. (Doc. 30 at 7 ("Winnebago does not address whether, and if so how, the complaints of Mr. Thomas are so technically complex that the jury would not be able to understand them, thus necessitating expert testimony.")) Of the eighteen purported defects identified in Thomas's interrogatory, nine appear not to require expert testimony:
Unlike in Bailey and unlike the problems purportedly attributable to the Freightliner chassis, an ordinary juror likely can infer a defect in these items without expert testimony, and Thomas's testimony suffices to establish a factual dispute about the problems above.
Even though Thomas's testimony evidences an unrepaired defect from Winnebago's craftsmanship or materials, Thomas fails to proffer evidence about the diminution in value from the purported defects. Under Section 672.714, Florida Statutes, which mirrors the Uniform Commercial Code, the measure of damages is the difference in value at the time of acceptance between a defective and a non-defective product. Although a plaintiff need not establish damages with scientific precision, a finder of fact cannot calculate damages based on "speculation or guesswork." Smith v. Austin Dev. Co., 538 So.2d 128, 129 (Fla. 2d DCA 1989) (Schoonover, J.).
Not knowledgeable about recreational vehicles (Thomas Depo. at 142), Thomas admittedly cannot estimate the damages from the purported defects.
Thomas complains of several defects in a recreational vehicle. But Thomas's purported expert, George Agutter, expresses no opinion whether the vehicle's problems resulted from a defect or from another cause, for example, ordinary wear and tear or inadequate maintenance. Agutter defers to a Freightliner-certified technician to determine whether the vehicle suffers from an unrepaired defect, and Freightliner-certified technician Dennis Rostenbach identifies no unrepaired defect in Freightliner's craftsmanship or materials. Also, Thomas — who "do[es] not know" the diminution in value attributable to the purported defects — fails to proffer an appraisal or other evidence of damages. Viewing the record favorably to Thomas, no reasonable finder of fact could conclude that Freightliner failed to repair a defect. Even if Thomas shows evidence of an unrepaired defect, no competent evidence shows the diminution in value attributable on December 29, 2014, to the purported defects. Freightliner's motion (Doc. 36) for summary judgment is
In contrast to the purported defects in the Freightliner chassis, nine purported defects in Winnebago's craftsmanship or materials appear not to require expert testimony. However, Thomas proffers no appraisal or other competent evidence of damages, which failure precludes determining the diminution in value on December 29, 2014. Because Thomas fails to proffer evidence of damages, Winnebago's motion (Doc. 22) for summary judgment is