more your honour's may it please the court jonathan cell been on behalf of plaintiff appellants i'd like to reserve five minutes and i understand i have to keep track of that i think you we're here today because under rule twenty three the court had an obligation to conduct  rigorous analysis of the evidence and yet you literally ignored the single most important piece of evidence in the entire record on the single factor on which it denied class certification which was commonality and under this court holding in the wall in case commonality is already a very low threshold easily satisfied in here we satisfied it in spades in particular with a document that honda did not produc third go round on class certification the history there is that the court had dramatically limited our discovery to a handful of issues after twice so i'm looking at the famous supreme court case and will resolve an issue that is central to the validity of each one of the claims in one stroke close quote so what is the common contention that you say fits that supreme court definition is the common conduct contention is the same common contention as in wall one and the other cases and it has to do with this one common defect and that one common defect is the same defect that our expert found it's the same that honda's own engineers found in two thousand and nine in this document we didn't get until very late in the case and if i could walk the court it will take just a moment that document is that you are eighty six  hyundai element document it is and i'm going to address why it's not just a honda element document because it sets forth on the face of the document if you look at the right of the six this is where the common defect is set forth so if you look on that page it talks about the  before the district court when it made its determination regarding classification it was your honor it was produced to us after we filed our third motion for class certification we filed our opening papers they produced the document we put  that we have to go to the district court record as opposed to the excerpts or record to find where this was submitted to the district court what are you saying yes is the simple answer to candidates in the dockets docket three thirty four one at five to seven three thirty four daschle one yes ma'am ok at five to seven ok and three thirty four dash two ok at seven to eight is there any reason these documents were not record i have no explanation i apologize that they were not they should have been the actual documents themselves that you are eighty six ninety three and one thirty two are there but where we cited them we should have put them in and i just procedurally if the district court didn't have this before i entered the decision then it could be their right for the district court to feel to consider it i would agree i don't think there's any dispute that the district court had them before them and both sides addressed them but if i could go back to the document for medicare that answers your question drudgery so we start with the element which is the s u v and we find out why under the description what the question is this is a one hundred internal engineering analysis that only gets triggered after a certain number of failures so they thought it was important enough to conduct this analysis and that this first page is the end result of the analysis this is their end result document and it tells us that the regular regulator plate is failing at the upper cable location and it goes on to describe the defect they tested the plastic and they tested the metal and then they go on to propose a common solution to the problem in the third paragraph under description so they say why are we doing this we're having problems with this thing failing at higher than expected rates what's the defect they define it and i want to come back to that in a second because there's another page that does that in more detail and then they propose a common solution if you turn over i'm sure where i was with you to where you saying where's the comma solution i'm sorry the third paragraph of the description just about the element but if you drop back to page you are one thirty two we should be the last page in that collection there's a page untitled summary and it says b three which is the honda design group proposes to issue the c m d w g which is the countermeasure drawing we just talked about the solution of s t v there's your  this solution was rolled out for all of these vehicles i think there may be some dispute this is very cryptic language to it is it is it is and if you go if you go don't you know how do or how do we know that this cryptic admission from honda positive right and the answer i think is that there wasn't a dispute that this was actually rolled out i don't think there's any dispute in the record anywhere that they rolled out the same solution for the element the different question of pilot and the accord it's a different question if you're relying on this document that's a good mission of a common d and that extends it stands not only to the element but to the plan right that's seen a lot from that one line it is your honor it is also explained by our expert dr activating in a part of his testimony that wasn't addressed by their motion where he explained what these documents meant so so i am not meaning to be glib about this but there was no dispute in the record and i'd be surprised if my friend disputes that that asinine v is the pilot at this document in any way he never mentions it he goes through and knocks out our entire expert who by the way reached the exact same conclusion using the same terms creep and fatigue at the same points identified the same defect behind engineers did back in two thousand and nine this was all before the district court for sentences on classification no commonality no mention of this document if the district court looked at this one sentence that you're this in context with expert testimony and there was not a dispute and i'm not meaning to be argumentative with your honor but but the question of whether this so i do the element was not a was not a question so i argument that this e r one thirty two combined with your expert was enough or you're saying this alone i think this document alone is enough to establish how you know you can look at well and it's more than they easily satisfied here our expert did far more than that and i asked you a little bit about your expert so personal peers he used a very small sample  to answer you quickly here your honor because i do want to reserve a little bit of time on the small sample size he wasn't conducting a statistical sample to try to extrapolate failure rates he was trying to determine why does this fail and so he did what a scientist does and he did actually more than what honda did internally when they did it he went out and looked at a couple of dozen of these things somewhere the named plaintiffs as was done all that was done in wallan somewhere he went to random junk yards and found vehicles that had intact doors and looked at them if that's not  for lack of a better word of b s detector i don't know what is he went looked at ones that were randomly selected all have the same failure mechanism so he wasn't trying to opine as to what's the failure rate he wasn't making an extrapolation he was asking a more fundamental scientific question why is this happening the answer why it's happening is that you have a particularly weak interface between the cable and the plastic and it the normal vibrations and this is where the vibrational testing comes in at the normal range of vibrations that honda pilots undergo those frequencies aren't dampened and it causes this failure over repetitive use through creeping fatigue and that's exactly if you look at page ninety three it's exactly what they found as of the regulator failure no one ever offered any other potential causes so in his own testing he looked at it he saw failure mechanism he came up with a hypothesis he sent it to an electron microscop the lab where they said yup that's what's happening he went out and did road testing yup that's what happed what's happening honda did a test vehicle as part of the litigation it was happening on every one of them on the honda test vehicle honda never put forward they speculate about other causes they never came what they are asking for is for honda to be responsible for any window regulator that has had to been replaced up until today and they're asking for an extended warranty for future replacements caused by their defect theory fundamental to the plaintiff's theory in this case is the fact that the window regulator assemblies do not last long enough it is it is big into their defect theory because even concludes that when the window regulator assemblies are first installed in the cars there are more than strong enough to hold the windows so over time they fell so basically plaintiff's theory is that these window regulator assemblies fail due to old age the problem that mr aka van had that judge wilson pointed out and the problem that  which we can go into a moment but do not establish any defect theory in any vehicle other than potentially the element is that the plaintiffs never define how long is long enough how long do these window regulator assemblies have to work with how to repair and with out that answer which you can applied to each and every window regulator semele with out the answer of how long is long enough you have no common defect theory and you have no ability to assess whether a failure is a failure or is not so we got this one to ask you about more one more and it seems on  point what's your best argument to distinguish will or won't actually is on point if you look at the fact that there were actually two types of relief that was in wall and one was related to the defect in the vehicle geometry that caused or alleged to cause premature tire wear the second and  what injury is caused by that and wallin and edwards and what have you the injury is a devaluation of the vehicle it's the the portion of wall and where certification was allowed was for the injury of which the plaintiffs in that case allege was common across all customers what woman did not allow for certification and said pradelle individual issues predominate is the same type of relief that sought in this case which was repairing the placement of tires that in fact prematurely war and then as to the that remedy walling was very clear individual issues as it relates to causation will predominate and the plaintiffs in this case want honda to reimburse customers who had to replace a window regulator assembly that failed as a result of their defect that's the same as the so trying to find some light between the two and i'm having a little trouble i understand and in order to answer the question you have to look at the defect in walling the defect the allegation was there was a defect in t in the vehicle geometry from day one that geometry is misaligned if you do an analysis it's misaligned and then it causes things to happen let's look at the defect in this in this case my point your argument is the carriers are defective because they don't last long enough and because they don't last long enough they are defective so the distinction you're making is that while in the defect existed from day one asserting that all tires will eventually wear prematurely as a result of the geometry defect but the question is is it defective on day one can be answered and whether it causes something or you the expert opinion against albert and would judge wilson found was the opinion that the window regulator assemblies need to last for ever or at least the life of the vehicle and if the vehicle continues on for forty years then the window regulator assembly needs to continue on for forty years it wasn't based on any industry standard it wasn't based on any comparative testing it wasn't based on any peer reviewed literature all of the elements that you would go through to determine whether an expert opinion adalbert all of it was absent for the opinion that the window regulator assemblies should last essentially indefinitely and interesting i'm sorry the plaintiffs are saying that the regulators are defective not that they should last for defect is that's what's that's what's circular or to sign because of the design of this they're saying that because of the design the regulators are defective and are designed forensics this is not a this is not a he's unqualified argument with no basis what you're saying his opinions are reliable because he didn't analyze i think you said a sufficient sample size is that that was part of it as well but i'm trying to figure out why would he need to analyze this think complete significant sample in order to pine on the general design or the product it seems like every regulator has the something i don't want to talk to me but let me just ask you i mean why it seems like mr payment could offer an opinion about the design of the regulators by observing and testing even just one regulator and he did offer an opinion what he said was when they are manufactured when they're new and the window regulator assemblies are more and this is a quote more than strong enough to support the window he did not say that the material used for the carrier plate was improper material he did not say as counsel suggested that the interface is particularly weak he did not say that the design itself is defective in such in so far as what he's saying is that it just doesn't last long enough that's the essence of his opinion it should in his opinion last indefinite well that but there wasn't even in his report i think that was based on a question a deposition where that response was alyssa did his document his report doesn't really say that well and let me read let me reach you just quickly the plaintiff the actual articulated enough to withstand a dynamic in vibrational forces which it millions of vibrations equivalent to raising and lowering the window tens of times per second that occur when the vehicle is driven on the ordinary use not of durable or nuff that's what they say is the defect but to understand what strong and durable enough is somebody has got to articulate what strong and durable enough is so that you know that these are not so the  notion that time is baked into that theory it has to be baked into that theory because he's not saying unlike wolen the geometry of the frame is defective and causes the premature tire w this is the window regulators are not strong and durable enough and we know that because they fell ok why is that why is it failing at three hundred thousand miles a problem why is failure one hundred thirty two thousand miles a problem there's no time definition other than the notion that they supposed to last forever council you're running out of time and i wanted to talk with you about the document then plaintiff's counsel allowed on a thing the district court did not consider the single most important piece of evidence of commonality in our eighty six in the hour when thirty two said could you discuss that sure can donda element of let's if i can refer the court to your one twenty three other one twenty one two three of your honor's questions what this page depicts is the accord the m d x the pilot and the element and it's talking about good quote warranty levels versus not good saying why is the element having failures when the other vehicles are not so in other words it's juxtaposing it's not saying that the other vehicles have a design for a defect it's juxtaposing the element against those and asking why is the element having a problem and the other vehicles are not well cancel opposing counsel says on the r one thirty two there is no dispute that summary refers to all of the models including the pilots which a response to that so let me address that the as you can see from your one twenty three the problem with the element was that there was a design difference between the element and the other three vehicles and remedy the fix to deal with the elements problem to beef up the carrier plate for the element so in order for the element to to work as honda wanted to they beefed up the carrier i just one thirty to refer to other models it's their juxtaposing the other instead of instead of having two different replacement parts now they're just common izing the carrier plate for the other vehicles as well so they would have to tip to pursue plaintiff's theory  essentially hard it would have to say even though this carrier plate can work in these other vehicles we're going to have and if we replace one will have essentially production control and it's more economically efficient we're going to we should not stick them in the other ones because were there were failures and honda was addressing those failures it doesn't mean just because something fails i mean it's defective they made it better can i go back to he are eighty six  the so the description there is the regulator carrier plate is failing at the upper cable location at a rate for the model in arizona cost of these claims is more than one hundred thirteen thousand today warranty costs is approximately seventeen thousand slash model year for this concern it's that last sentence i want to ask you about doesn't that suggest that there are failures within the warranty period so we don't have to speculate whether this is don't we have here at a mission by hard that there is a problem with the regulators and that this problem is the least in some cases manifesting itself as early as the first three years the documents can be read to suggest that the element has experience failures within the warranty period and for the element the cause is the design the angle between the window and the window regulator as to the other vehicles yes there are a fair so you're saying again that your real opinion does not the district court order does not address whether the court did or did not consider the document on both sides presented the document honda's position was this document is entirely irrelevant to plaintiff's common defect theory and on the face of the think your honor i'll try to be very quick and want to get back to you on your question about what else we put in the record around that document and again it's from the excerpts are i'm sure it's from the docket below three thirty four dash one at six to seven  almost document i believe it is but i believe the court has access to that but we can file it as a supplemental excerpt of record if you like as to if that would be helpful without argument attached to it the hot document is important because  commonality we may be wrong maybe there's no defect in the honda pilot but my friend just acknowledged that it's the same design of the carrier in the plate across all the pilots so either all the pilots have a defective carrier plate or none do you know but this is about the element which has the same design except for an angle right except for the angle in which that's hung in the window that's the difference he's pointing to so we lose element document is sufficient under dogs to show commonality for the pilot i do because it's literally the same design except for the way that angle and they can argue that to the jury they can say no no no the element had a defect the element had an is the common defect is exactly what honda found and what we found and as set forth in our expert but also in their own documents and they had failures they didn't just have failures of the element they hit their internal triggers on the  pilot as well they had thirteen hundred just from our class thirteen hundred failures within warranty they had more than ninety nine thousand nationwide not just california but the claims rates are we're expecting our projected by the various experts below anywhere from thirteen to seventy one percent so they weren't just having failures with respect to the element now we lose if they're right that the defect isn't the materials on the web or constructed in the vibrations that something about the angle will lose but everyone loses every member of that california class should lose that case if they're right but if we're right every single one of them wins and that's the commonality of the design and the commonality of the defect and i just want to point to one other case at window regulator case which this court reversed class certification on because of a damages problem that we solved that we don't have so they upheld certification on every other ground on very similar in fact less evidence lasts or not your honor was exactly right with your questions it's about whether there was a defect at the time it was sold which is no different than the defect that issue in welland and tires are a consumable you expect to replace your tires over time our case stronger nobody expects to have to replace their window regulators in the life of a car i never have i've never known anybody who has the wrong place but every place to want a regulator before