A US District Court Judge recently barred testimony from three witnesses retained by Plaintiffs in the MDL action which seeks a finding that Pella Corp.’s Architect Series and Designer Series are defective. Specifically, Plaintiff’s experts are barred from entering testimony suggesting that “leakage paths” allow water to penetrate into vulnerable areas of the windows as a result of defective design. (See In re: Pella Corporation Architect and Designer Series Windows Marketing, Sales Practices and products Liability Litigation, MDL 2514, Case No. 14mn1, D. S.C.; 2016 U.S. Dist. LEXIS 171502).
The expert testimony will be excluded for failing to consider “alternative theories” and or causes for the alleged problem.
Wood Preservation Series and Leakage Paths
The challenged experts had stated that the wood treatment used to protect wood and other areas of the windows is insufficient. During their site inspections, the experts viewed 477 windows, documented the interior and exterior conditions of 336 windows and observed the conditions of the wood sash components outboard of the frame gasket of 252 windows. Judge Norton agreed with Pella that the testing conducted by the plaintiffs’ experts was unreliable because it did not conform with ASTM standard E2128.
inspections and testing focused almost exclusively on Windows owned by the named plaintiffs in this litigation. All of the named plaintiffs certainly felt that something was wrong with their Windows, and thus, focusing on these allegedly defective Windows would seemingly tend to overstate the incidence of Window problems in the overall population. Moreover, plaintiffs appear to indicate that the water testing focused on Windows that already exhibited signs of damage. This further suggests that the water testing overstates the likelihood of Window failure in the overall population. Of course, the court cannot determine whether these biases impacted the outcome of the investigation without more information, but it is clear that the Windows used in the investigation were not randomly selected.”
Judge Norton also concluded the significance surrounding the fact the experts could not bullet point one prevailing issue leading to the degradation.