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Rothbaum v. Samsung Telecommunications America, LLC

United States District Court, D. Massachusetts

September 29, 2014

AMY ROTHBAUM, individually and on behalf of all others similarly situated, Plaintiff,

Page 186

For Amy Rothbaum, individually and on behalf of all others similarly situated, Plaintiff: Adam M. Stewart, Edward F. Haber, LEAD ATTORNEYS, Rachel M. Brown, Shapiro Haber & Urmy LLP, Boston, MA; Gina M. Tufaro, Mark A Butler, Michael A. Schwartz, Paul O. Paradis, PRO HAC VICE, Horwitz, Horwitz & Paradis, New York, NY.

For Samsung Telecommunications America, LLC., Defendant: Robert M. Buchanan, Jr., LEAD ATTORNEY, Brian A. Davis, Jared M. Barnes, Margaret E. Ives, Choate, Hall & Stewart, Boston, MA.

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This case is a putative class action brought by plaintiff Amy Rothbaum against defendant Samsung Telecommunications America, LLC (" Samsung" ). Rothbaum alleges that Samsung knowingly sold its Captivate, Fascinate, Vibrant, and Epic 4G phones (collectively, the " Samsung Phones" ) with a design defect that causes the phones to shut down randomly (the " Random Shut Down Defect" ). Rothbaum alleges that Samsung was aware of this defect, but continued to sell the defective phones, and its express warranty provided an inadequate remedy because it only required the defendant to exchange her defective phone for another defective phone. Accordingly, Rothbaum alleges that Samsung violated Massachusetts and Texas laws governing the implied warranty of merchantability. Rothbaum also alleges a violation of M.G.L. Chapter 93A. Rothbaum brings this action on behalf of a putative class of all persons who purchased a new Samsung Phone manufactured, distributed, or sold by Samsung from July 2010 to present.

In May 2012, the court denied Samsung's motion to dismiss, concluding that Rothbaum had stated a claim for a violation of the implied warranty of merchantability under Massachusetts law because she had plausibly alleged that the phones were defective and that Samsung's attempted remedy, a replacement phone, failed of its essential purpose. The court

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also allowed Rothbaum to file a Second Amended Complaint to add a claim under Chapter 93A, concluding that the amendment was not futile. The court deferred consideration of Rothbaum's claim under Texas law.

Following the close of discovery, Samsung filed a motion for summary judgment. This motion focuses on the phone that Rothbaum received in March 2011 (the " Replacement Phone" ), which replaced the original Samsung Phone she purchased in October 2010. Samsung argues that there are no genuine disputes of material fact and that there is no competent evidence that Rothbaum's Replacement Phone is defective in a manner that violates the implied warranty of merchantability. More specifically, Samsung argues that there is no evidence that the Replacement Phone was defective upon receipt, that there is no evidence that her phone has the defect alleged in the Second Amended Complaint, and that Samsung has offered a complete remedy that Rothbaum has improperly rejected. Samsung has also filed a motion to exclude the expert report of Kenneth Thompson, an engineer who examined Rothbaum's Replacement Phone and reviewed Samsung's internal documents to determine the prevalence of the Random Shut Down Defect.

For the reasons explained below, the defendant's motion to preclude the expert report and the defendant's motion for summary judgment are being allowed. In essence, even when viewed in the light most favorable to Rothbaum, the evidence is insufficient to permit a reasonable factfinder to conclude that any Random Shut Down Defect caused more than a mere inconvenience to Rothbaum, and such an imperfection in a product does not violate the implied warranty of merchantability. Nor does it permit a finding that Chapter 93A has been violated. As Thompson's opinion that 100% of the Samsung Phones are defective is inadmissible under Federal Rule of Evidence 702, and there is no other evidence to support such a conclusion, Samsung at most failed to disclose a potential problem and that would not constitute a violation of Chapter 93A. Therefore, judgment will be entered for the defendant.


A. The Motion to Dismiss and the Motion to Amend

Rothbaum filed her original Complaint on March 24, 2011, and filed an Amended Complaint as a matter of right on April 7, 2011. The defendant filed a Motion to Dismiss on June 30, 2011. In response, Rothbaum filed a Motion for Leave to File Second Amended Complaint (the " Motion to Amend" ), seeking to: add three new types of phones to the list of allegedly defective Samsung phones; add an allegation that she purchased the phone separate and apart from any wireless service contract; and add a claim under M.G.L. Chapter 93A, § § 2, 9.

In support of the Motion to Dismiss and in opposition to the Motion to Amend, Samsung argued that: (1) the Uniform Commercial Code (" UCC" ) does not apply to Rothbaum's purchase of the phone because it was made pursuant to a contract for telecommunications services; (2) Rothbaum's individual breach of warranty claim fails because she did not provide Samsung with the required notice and an opportunity to cure the defect; (3) Rothbaum's Class claim fails because she has not alleged that the Class members provided individualized notice of the defect; (4) Rothbaum's Texas law claim fails because Texas law does not apply to the purchase of her phone under a choice-of-law analysis; and (5) Rothbaum failed to state a

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valid Chapter 93A claim. Rothbaum opposed all of these arguments.

At the May 31, 2012 hearing and in a subsequent Order, the court denied Samsung's Motion to Dismiss with regard to Count I (breach of implied warranty) and Count II (Chapter 93A). See May 31, 2012 Order ¶ 2. The court reserved judgment on Count III of the Second Amended Complaint, which alleges breach of implied warranty under Texas law, for decision on class certification or summary judgment. See id.

The court explained these rulings at the May 31, 2012 hearing. First, the court concluded that it was plausible that the UCC applies to the contract. See May 31, 2012 Tr. 21:1-2. The court explained that it was unclear whether Rothbaum had signed a bundled contract for both the phone and the underlying phone services, and that further factual development would be necessary before the claim could be dismissed on that ground.[1] Second, the court concluded that Count I should not be dismissed for lack of notice to Samsung, see id. 22:1-4, because it was not clear from the face of the Complaint that Samsung was prejudiced by a lack of notice, and that even if no notice had been given directly to Samsung, the court assumed for purposes of the Motion that notice to the retailer, AT& T, was sufficient, see id. 23:4-14.[2] Third, the court found that Rothbaum had plausibly alleged that Samsung's proposed remedy -- a replacement phone -- failed of its essential purpose because it would have been defective as well, and therefore there was no obligation to provide an opportunity to cure. See id. 24:18-21. Finally, the court found that the addition of the Chapter 93A claim in the proposed Second Amended Complaint would not be futile, see id. 28:17-19, because such a claim would rise or fall with the claim of breach of the implied warranty of merchantability, see id. 29:2-15.

B. Protective Order, September 2013 Scheduling Conference, and Summary Judgment Briefing

On December 21, 2012, the parties filed a Joint Motion for a Protective Order (Docket No. 55), which the court " allowed with amendments." See April 19, 2013 Order.

The scheduling conference on September 16, 2013 was largely devoted to discussing the issues for a possible motion for summary judgment. The defendant explained that it wished to file a targeted motion for summary judgment, prior to class certification, on the threshold issue of whether Rothbaum's phone actually has the defect alleged. The court explained that:

If it's going to turn out that Ms. Rothbaum is subject to some unique defense because her phone is not defective or not defective in the manner alleged in the . . . Second Amended Complaint . .., it's important to find [out] sooner rather than later.

Sept. 16, 2013 Tr. 38:12-16. The court also stated that, if it became apparent that Rothbaum would not be an adequate representative because of a unique defense, " since the complaint has been amended twice, [it would] not permit[] a motion to amend to add additional class representatives." Id. 24:11-13.

The parties also discussed the issue of expert testimony. The defendant had already had one of its engineers examine Rothbaum's phone. Although Rothbaum had an expert who had examined the

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phone, she had not designated that expert as one who would testify.

As memorialized in the September 18, 2013 Order, the court ordered the defendant to file the report of its expert, see Sept. 18, 2013 Order ¶ 1, and to produce any records relevant to its expert's conclusion that Rothbaum's phone appeared to have a construction consistent with a manufacturing change, id. ¶ 2. The court also ordered the plaintiff to file by October 31, 2013 any affidavits in support of her claim that her phone has the alleged Random Shut Down Defect and disclosures concerning any expert testimony. Id. ¶ 3. In addition, the court ordered the defendant to make its expert disclosures by December 2, 2013. Id. ¶ 5. The court established a briefing schedule for summary judgment, id. ¶ ¶ 8-11, which was subsequently extended, see Feb. 21, 2014 Electronic Order.

Samsung filed its Motion for Summary Judgment and its Motion to Preclude the Expert Report of Ken Thompson. Rothbaum filed oppositions to both motions. The court held a hearing on both motions on August 28, 2014, and took the motions under advisement.

The court subsequently issued an Order directing the defendant to submit a memorandum concerning whether, prior to issuing this Memorandum and Order publicly, the court should provide the defendant an opportunity to propose the redaction of citations to particular information in sealed documents. See Aug. 29, 2014 Order at 1. The Order stated that if the defendant wished to propose redactions it should explain why the information at issue justifies an exception to the general " presumption that the public ought to have access to judicial records," especially " to 'materials on which a court relies in determining the litigants' substantive rights.'" Fed. Trade Comm'n v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 408 (1st Cir. 1987) (quoting Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986)).

On September 4, 2014, Samsung reported that it did " not object to the accurate citation of information contained in [its sealed] documents" and, therefore, did not request an opportunity to propose redactions of such citations in this Memorandum and Order. Memo. of Non-Objection by Def. STA at 2.


The resolution of the Defendant's Motion to Preclude the Expert Report of Ken Thompson affects the evidence that the court may consider when deciding the motion for summary judgment. It is, therefore, being decided first.

Thompson's expert report expresses two material opinions. First, Thompson concludes that " Plaintiff's Captivate Phone is defective because this phone is designed and manufactured in a way that causes this phone to randomly power itself off when it is in 'sleep' mode without any human intervention." Thompson Report at 2, Barnes Decl. Ex. A. Second, Thompson states that " the Captivate phones sold in the United States are defective for this same reason." Id. As Thompson clarified at his deposition, it is his opinion that " 100 percent of [such phones] are defective." See Thompson Dep. at 70:14-17, Barnes Aff. Ex. J.

For the reasons explained below, the court is allowing the defendant's motion and excluding the Thompson report. His expert opinion is based on minimal personal observation of the plaintiff's phone, and a highly selective and distorted reading of documents provided by the defendant. It is, therefore, not sufficiently reliable to be admitted as evidence.

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A. Standard of Review

In deciding a motion for summary judgment, the court may consider only evidence that would be admissible at trial or could be presented in admissible form. See Fed.R.Civ.P. 56(c)(2); Gorski v. N.H. Dep't of Corr., 290 F.3d 466, 475-76 (1st Cir. 2002); Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998).

The admissibility of expert evidence is evaluated under the standards established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The district court acts as a gatekeeper to ensure the reliability of proposed expert testimony. Federal Rule of Evidence 702, which codified Daubert, sets forth the standards to be applied:

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. Factors to determine the reliability of a theory or technique include whether the theory or technique has been tested and subjected to peer review and publication, the known or potential error rate, and the acceptance of the theory or technique within the relevant scientific community. Daubert, 509 U.S. at 593-94. These factors are flexible and are designed to focus the court on the " evidentiary relevance and reliability" of the proposed testimony. Id. at 595.

It is often, but not always, inappropriate to exclude expert evidence in deciding a motion for summary judgment. As explained by the First Circuit:

[G]iven the complex factual inquiry required by Daubert, courts will be hard-pressed in all but the most clearcut cases to gauge the reliability of expert proof on a truncated record. Because the summary judgment process does not conform well to the discipline that Daubert imposes, the Daubert regime should be employed only with great care and circumspection at the summary judgment stage.
* * *
[C]ourts must be cautious -- except when defects are obvious on the face of a proffer -- not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility.

Cortes-Irizarry v. Corporaci on Insular De Seguros, 111 F.3d 184, 188 (1st Cir. 1997). Furthermore, credibility and weight are left to the jury and are not to be dealt with as a matter of Daubert gatekeeping. Seahorse Marine Supplies, Inc. v. Puerto Rico Sun Oil Co., 295 F.3d 68, 81 (1st Cir. 2002).

B. Discussion

As indicated earlier, Thompson's report involves two separate sections: his observations of Rothbaum's Replacement Phone, which is the centerpiece of this litigation, and his analysis of Samsung's internal documents.

1. Thompson's Observations of the Samsung Phones

Samsung argues that Thompson did not apply any expertise to ...

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