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Ray Williams, et al v. Wells Fargo Bank

February 21, 2012


The opinion of the court was delivered by: Robert N. Scola, Jr.united States District Judge


THIS MATTER is before the Court on the on the QBE Defendants' Motions to Exclude Expert Witness Briny Birnbaum (ECF Nos. 142 & 150), and the Plaintiff's Corrected Motion for Class Certification (ECF No. 129). For the reasons explained in this order, the Motions to Exclude the Expert are denied and the Motion for Class Certification is granted.


In this putative class-action lawsuit, the Plaintiffs have alleged that the Wells Fargo Defendants and the QBE Defendants colluded in a scheme to artificially inflate the premiums charged to homeowners for force-placed insurance on property, after the homeowners self-placed insurance policies had lapsed. The Plaintiffs' claims of unjust enrichment and breach of the covenant of good faith and fair-dealing challenge the alleged manipulation of the force-placed insurance process in general, the payment arrangement between Wells Fargo Bank and the other Defendants, and Wells Fargo Bank's participation in the overall scheme intended to provide illegal kickbacks and commissions to the entities involved.

The Plaintiffs have moved to certify a class, consisting of all borrowers that had mortgages with and/or serviced by Wells Fargo Bank, on property located within the State of Florida, that were charged premiums for a force-placed insurance policy within the applicable statute of limitations through April 7, 2011. The Defendants contend that a class should not be certified in this matter because there are too many individual considerations that must be taken into account as to each putative class-member. Relatedly, the Defendants have moved to exclude the testimony of the Plaintiffs' expert, offered in support of their request to certify a class. On February 9, 2012, the Court held a hearing on the parties' arguments regarding class certification. The Motion for class certification was initially briefed based on the Plaintiffs' proposed nationwide class. After the briefing, but before the hearing, the Plaintiffs revised the proposed class definition, limiting the class to only Florida properties.


A.Motion To Exclude Expert Witness

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. A trial court determining the admissibility of expert testimony under Rule 702 must engage in a three-part inquiry, considering whether: "(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in [Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)]; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011). "Daubert instructs courts to consider the following factors: (1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community." McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002).

It is not the role of the trial court to make conclusions about the persuasiveness of the expert's opinions, rather, "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Rosenfeld, 654 F.3d at 1193. (quotations/citations omitted). "[I]n most cases, objections to the inadequacies of a study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility." Id. (quotations/citations omitted). Before certifying a class action, a district court must sufficiently evaluate and weigh expert testimony on the issue of class certification. Sher v. Raytheon Co., 419 F. App'x 887, 890 (11th Cir. 2011).

B.Motion To Certify Class

The decision to certify a class action is governed by Federal Rule of Civil Procedure 23. The party seeking certification must demonstrate, first, that: "(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). "A class action may be maintained if Rule 23(a) is satisfied and if . . . the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).

"The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2550 (2011) (quotations omitted). Rule 23's "four requirements -- numerosity, commonality, typicality, and adequate representation -- effectively limit the class claims to those fairly encompassed by the named plaintiff's claims." Id. (quotations omitted).


A.Motion To Exclude Expert ...

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