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`Exhibit A
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`(Redacted)
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
`
`IN RE: MACBOOK KEYBOARD
`LITIGATION
`
`Case No. 5:18-cv-02813-EJD
`
`ORDER GRANTING MOTION TO
`CERTIFY CLASS; GRANTING IN
`PART AND DENYING IN PART
`APPLE’S MOTION TO STRIKE
`EXPERT OPINIONS OF HAL J.
`SINGER; GRANTING MOTION TO
`STRIKE EXPERT OPINIONS OF
`DAVID V. NIEBUHR
`
`Re: Dkt. No. 229, 238, 239
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`Plaintiffs Kyle Barbaro, Joseph Baruch, Steve Eakin, Lorenzo Ferguson, Benjamin Gulker,
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`Michael Hopkins, Adam Lee, Kevin Melkowski, and Zixuan Rao (“Plaintiffs”) bring this
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`proposed class action against Defendant Apple, Inc. (“Apple” or “Defendant”) on behalf of
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`purchasers of MacBook laptops equipped with allegedly defective “butterfly” keyboards. There
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`are several motions currently before the Court: (1) Plaintiffs’ Motion for Class Certification (Dkt.
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`No. 233-21, “Class Certification Motion”);1 (2) Apple’s Motion to Strike the Expert Opinions of
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`Hal J. Singer, Ph.D. (Dkt. No. 237-46, “Singer Motion to Strike”); (3) Apple’s Motion to Strike
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`the Expert Opinions of David V. Niebuhr, Ph.D. (Dkt. No. 237-49, “Niebuhr Motion to Strike”);
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`(4) Apple’s Objections to New Evidence Submitted With Plaintiffs’ Reply in Support of Class
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`Certification (Dkt. No. 261, “Objections”); and (5) Apple’s Administrative Motion for Leave to
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`File a Surreply and Expert Report in Support of Opposition to Plaintiffs’ Motion for Class
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`1 All docket numbers cited in this order refer to the unredacted document filed under seal.
`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
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`Certification (Dkt. No. 279-4, “Motion for Surreply”).
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`On February 4, 2021, the Court held a hearing on the pending motions. At that hearing,
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`the Court indicated that the Objections would be overruled for the purpose of the Court’s
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`consideration at the class certification stage, without prejudice to renewal. Likewise, the Court
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`indicated that Motion for Surreply would be denied given the robust discussion at the hearing.
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`Having considered the parties’ submissions and oral arguments on the remaining motions,
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`the Court hereby GRANTS Plaintiffs’ Class Certification Motion, GRANTS in part and DENIES
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`in part the Singer Motion to Strike, and GRANTS the Niebuhr Motion to Strike.
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`I.
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`Background
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`Plaintiffs are eleven consumers from California, Massachusetts, New York, Illinois,
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`Florida, Washington, New Jersey, and Michigan. Second Amended Consolidated Class Action
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`Complaint, Dkt. No. 219 (“SAC”) ¶¶ 8-18. Plaintiffs bring this proposed class action against
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`Apple on behalf of purchasers of MacBook laptops equipped with allegedly defective keyboards,
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`known as “butterfly” keyboards. Specifically, Plaintiffs request that this Court certify a proposed
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`class consisting of “all persons who purchased, other than for resale, within California, New York,
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`Florida, Illinois, New Jersey, Washington, or Michigan, an Apple MacBook from any of the
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`model years 2015-2017, an Apple MacBook Pro from any of the model years 2016-2019
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`(excluding the 16 [inch] MacBook Pro released in November 2019), or an Apple MacBook Air
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`from any of the model years 2018-2019” (the “Class”). Plaintiffs also seek to certify subclasses of
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`purchasers in the seven states listed in the Class definition, to appoint Plaintiffs as Class and
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`subclass representatives, and to appoint the law firms of Girard Sharp LLP and Chimicles
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`Schwartz Kriner & Donaldson-Smith LLP as class counsel.
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`A. The Butterfly Keyboard
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`In the spring of 2015, as part of its release of an all-new MacBook, Apple released the first
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`ever Apple-designed keyboard, the butterfly keyboard. Declaration of Claudia M. Vetesi In
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`Support of Apple Inc.’s Opposition to Plaintiffs’ Motion for Class Certification (Dkt. No. 236,
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
` 2
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`Northern District of California
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`United States District Court
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`

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`Case 5:18-cv-02813-EJD Document 298 *SEALED* Filed 03/08/21 Page 3 of 30Case 5:18-cv-02813-EJD Document 306-2 Filed 03/19/21 Page 4 of 31
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`
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`“Vetesi Decl.”) Ex. A (Rule 30(b)(6) Deposition of Laura Metz (“Metz Dep.”)) at 125:6-16. The
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`butterfly keyboard is nicknamed for the stainless steel switch under the keycap, which bears a
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`resemblance to butterfly wings. The butterfly switch acts as a mechanical lever, which exerts
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`pressure on the other key components to activate the key.
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` Vetesi Decl. Ex. B (Rule 30(b)(6) Deposition
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`of Shelly Goldberg (“Goldberg Dep.”)) at 131:1-4.
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`Before the butterfly design, Apple had always used the industry-standard “scissor”
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`mechanism. Goldberg Dep. at 36:10-14. The scissor mechanism registered keystrokes through a
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`rubber dome and two pieces in the switch housing that interlock in a “scissor” or “X” shape. See
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`Vetesi Decl., Ex. C. They key difference between the scissor design and the butterfly design is the
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`travel distance of the key stroke, i.e. how far the user must press the key before the electrical
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`circuit is completed and the computer registers the user’s keystroke. Goldberg Dep. at 37:1-3.
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`The butterfly keyboard utilizes a low-travel design,
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`Goldberg Dep. at 38:11-14.
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`The low-travel design allowed the butterfly keyboard to be 40% thinner than the prior
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`scissor mechanism keyboards, which in turn allowed Apple to produce its thinnest and lightest
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`MacBook ever. Metz Dep. at 125:6-8. Following its release in 2015, the butterfly keyboard was
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`incorporated into 16 new MacBook models, including the MacBook released in 2016 and 2017, as
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`well as the MacBook Pro models released between 2016 and 2019, and the MacBook Air models
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`released in 2018 and 2019 (together, the “Class Laptops”). Id., Ex. H at Suppl. Resp. to Interrog.
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`Nos. 7-8, Ex. D.
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
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`B. The Alleged Defect
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` Plaintiffs allege that the butterfly keyboard is defective. Specifically, Plaintiffs allege that
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`the low-travel design of the butterfly mechanism makes the keys prone to fail when minute
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`amounts of dust or debris enter the sensitive area beneath the switch.
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`Class Certification Motion at 3 (citing Goldberg Dep. at 105:16-106:3).
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`Although it is common for debris to accumulate in a keyboard of any type, Plaintiffs allege that
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`Id. at 3-4. According to Plaintiffs, it is this phenomenon that caused the various issues Plaintiffs
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`experienced with their laptops.
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`There are three main issues that Plaintiffs and other consumers experienced with the
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`butterfly keyboard: (1) keys failing to register (“no make”), (2) keys registering multiple times
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`with a single press (“double make”), and (3) keys exhibiting a sticky behavior when pressed
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`(“sticky keys”).
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`C. Design Iterations
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`Within a short time after the release of the butterfly keyboard, Apple noticed that
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`customers were returning the butterfly-equipped MacBook at a higher rate than predecessor
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`products. Dkt. No. 224-5, Class Certification Motion at Ex. C (Deposition of Jeffery LaBerge) at
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`70:6-22. Apple began working on modifications to the design to address reported issues with
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`debris affecting keyboard performance. For example,
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` Goldberg Dep. at 103:1-20.
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
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`subsequent models are summarized in the chart below:
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`Model
`Early 2015 MacBook
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`Design Components
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`The design iterations in these and
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`Early 2016 MacBook
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`2016 MacBook Pros
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`2017 MacBook and MacBook Pros
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`2018 MacBook Pros and MacBook Air
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`2019 MacBook Pros and MacBook Air
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
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`Case 5:18-cv-02813-EJD Document 298 *SEALED* Filed 03/08/21 Page 6 of 30Case 5:18-cv-02813-EJD Document 306-2 Filed 03/19/21 Page 7 of 31
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`See Dkt. No. 237-11, Apple Inc.’s Opposition to Plaintiffs’ Motion for Class Certification
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`(“Opp.”) at 5-7; Vetesi Decl. Ex. H (Suppl. Resp. to Interrog. Nos. 7-8). The parties dispute
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`whether and the extent to which these design changes had an impact on keyboard issues
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`attributable to the butterfly design.
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`In addition to these incremental design changes, in June 2018, Apple also introduced a
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`special Keyboard Service Program (“KSP”), which provides free keyboard repairs and
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`replacements of butterfly keyboards for four years. See Dkt. No. 224-6 at Ex. 35. The KSP
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`covers all 16 models of the Class Laptops at issue in this case. Through the KSP, Apple may
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`replace a butterfly keyboard that is not working properly with the
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` of the
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`butterfly keyboard, but the Class Laptops are not compatible with non-butterfly keyboards.
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`D. Plaintiffs’ Claims
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`Plaintiffs each purchased a new MacBook with a butterfly keyboard that failed in some
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`capacity. Plaintiffs all testify that had they known of the butterfly keyboard defect, they would not
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`have bought these computers or would have bought them only at a much lower price. Rao Decl.,
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`¶¶ 2-3, 7; Baruch Decl., ¶¶ 2-3, 9; Laurent Decl., ¶¶ 2-3, 12; Marin Decl., ¶¶ 2-3, 8; Barbaro Decl.,
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`¶¶ 2-3, 8; Eakin Decl., ¶¶ 2-3, 11; Hopkins Decl., ¶¶ 2-3, 8; Lee Decl., ¶¶ 2-3, 10; Melkowski
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`Decl., ¶¶ 2-3, 9; Ferguson Decl., ¶¶ 2-3, 10; Gulker Decl., ¶¶ 2-3, 10.
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`Plaintiffs move to certify the Class defined above as to their claims for (1) breach of
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`implied warranty in violation of the Song-Beverly Consumer Warranty Act, Cal. Civ. Code § 1792
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`et seq., and for violations of (2) the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et
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`seq. (“UCL”); (3) the Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (“CLRA”);
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`(4) the Washington Consumer Protection Act, Wash. Rev. Code § 19.86.010 et seq.; (5) the
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`Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq.; (6) the Illinois
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
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`Consumer Fraud and Deceptive Business Practices Act, Ill. Comp. Stat. § 505/1 et seq.; (7) the
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`New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1 et seq.; (8) the New York General
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`Business Law § 349; and (9) the Michigan Consumer Protection Act, Mich. Comp. Laws §
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`445.901 et seq. Plaintiffs also propose certification of the seven constituent state subclasses for
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`purposes of case management.
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`II.
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`Daubert Motions
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`Federal Rule of Evidence 702 permits opinion testimony by an expert if the proponent
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`demonstrates that: (i) the expert is qualified; (ii) the evidence is relevant to the suit; and (iii) the
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`evidence is reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589–90, 113 S. Ct.
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`2786, 125 L. Ed. 2d 469 (1993); Young v. Cree Inc., No. 4:17-CV-06252-YGR, 2021 WL 292549,
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`at *4 (N.D. Cal. Jan. 28, 2021). An expert witness may be qualified by “knowledge, skill,
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`experience, training, or education.” Fed. R. Evid. 702. To be considered reliable, scientific
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`opinions must be based on scientifically valid principles. Daubert, 509 U.S. at 589. The
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`proponent of expert testimony has the burden of proving admissibility in accordance with Rule
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`702. Fed. R. Evid. 702, Advisory Committee Notes (2000 amendments).
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`At the class certification stage, the Court does not make an ultimate determination of the
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`admissibility of an expert’s opinions for purposes of a dispositive motion or trial. Dukes v. Wal-
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`Mart Stores, Inc., 603 F.3d 571, 602 (9th Cir. 2010), rev’d, 564 U.S. 338, 131 S. Ct. 2541, 180 L.
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`Ed. 2d 374 (2011); Millenkamp v. Davisco Foods Int’l, Inc., 562 F.3d 971, 979 (9th Cir. 2009).
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`Rather, the court considers only whether the expert evidence is “useful in evaluating whether class
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`certification requirements have been met.” Tait v. BSH Home Appliances Corp., 289 F.R.D. 466,
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`495–96 (C.D. Cal. 2012) (citing Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.
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`2011)); see also Rai v. Santa Clara Valley Transportation Auth., 308 F.R.D. 245, 264 (N.D. Cal.
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`2015). At class certification, “the relevant inquiry is a tailored Daubert analysis which scrutinizes
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`the reliability of the expert testimony in light of the criteria for class certification and the current
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`state of the evidence.” Id.
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
` 7
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`Northern District of California
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`United States District Court
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`

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`
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`A. Dr. Singer
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`Plaintiffs submitted the expert report of Dr. Singer to support their Class Certification
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`Motion, and in particular, to support their argument that economic injury and aggregate damages
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`can be determined on a class-wide basis. Dr. Singer is a Managing Director at Econ One, a Senior
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`Fellow at George Washington University’s Institute for Public Policy, and an Adjunct Professor at
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`Georgetown University’s McDonough School of Business, where he has taught Advanced Pricing
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`to MBA candidates since 2014. See Dkt. No. 224-10, Class Certification Expert Report of Hal J.
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`Singer, Ph.D. (“Singer Rpt.”) ¶ 4. Apple does not challenge Dr. Singer’s qualifications and the
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`Court finds that he is well-qualified to testify as an expert economist.
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`Dr. Singer offers two methods of calculating economic injury and damages using data and
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`methods common to the Class: a hedonic regression analysis and a choice-based conjoint analysis.
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`The Court considers the relevance and reliability of these methods separately.
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`i. Hedonic Regression Analysis
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`Hedonic regression analysis is commonly used in economics to isolate the contribution of a
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`particular attribute to the price of a product that has many attributes. See Singer Rpt. ¶ 10. In this
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`case, Dr. Singer uses a regression analysis comparing Apple desktop computers and Apple laptop
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`computers in order to isolate what he calls the “mobility premium,” the impact of an Apple
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`computer’s mobility on its market price. Id. ¶ 12. The theory on which this method rests is that
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`the alleged keyboard defect results in an unreliable built-in keyboard, requiring consumers to
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`purchase and utilize an external keyboard. The need to use an external keyboard impairs the
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`mobility of the laptop because external keyboards are awkward, costly, or infeasible to transport
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`and use in many situations. Opp. at 12-15. In other words, “if a laptop computer’s keyboard stops
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`working, requiring the use of an external keyboard, the laptop effectively becomes a desktop
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`computer.” Singer Rpt. ¶ 12. Thus, Plaintiffs argue that the mobility premium can be used to
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`measure the diminution in value of the Class Laptops attributable to the alleged keyboard defect.
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`Apple makes a number of arguments as to why the regression analysis is unreliable in its
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
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`design, but also argues that even if the mobility premium is reliably calculated, it does not
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`accurately relate to Plaintiffs’ theory of damages in this case. The Court agrees. Calculating
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`damages based on the mobility premium operates on the assumption that when the alleged
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`keyboard defect manifests, it leads to a total inability to use the built-in keyboard. As Apple
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`points out, this assumption ignores the fact that a number of the named Plaintiffs themselves
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`testified that they were still able to use their laptops, albeit in a limited capacity, despite the
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`keyboard issues they experienced. See Vetesi Decl. Ex. Q (Deposition of Kyle Barbaro) at 29:7-
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`17, 56:5-8 (girlfriend has been using MacBook at issue since end of 2019); id., Ex. X (Deposition
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`of Joey Baruch (“Baruch Dep.”)) at 50:20-21 (still uses MacBook at issue); id., Ex. O (Deposition
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`of Michael Hopkins) at 61:12-19 (same); id., Ex. V (Deposition of Steve Eakin (“Eakin Dep.”)) at
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`123:3-14 (continues to use MacBook at issue without external keyboard approximately 33% of
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`time time); id., Ex. W (Deposition of Bo Laurent (“Laurent Dep.”)) at 99:4-17 (continues to use
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`MacBook at issue without external keyboard approximately 50% of the time). Thus, it is not
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`factually accurate to assume that whenever the keyboard defect manifests, the user must rely on an
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`external keyboard.
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`Moreover, even if a consumer is forced to use an external keyboard, the regression analysis
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`operates on the second misconception that using an external keyboard renders a laptop completely
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`immobile. While transporting an external keyboard may be more difficult than transporting a
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`laptop alone, it is still possible to do so in many circumstances. Again, many of the named
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`Plaintiffs testified to using their laptops with an external keyboard in a way that maintained at
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`least some of the mobility of the laptop. See, e.g., Laurent Dep. (Plaintiff Laurent testifying that
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`he uses his laptop with an external keyboard at his desk and without an external monitor elsewhere
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`in the house, and that he travels with the laptop and external keyboard at times); Eakin Dep.
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`(Plaintiff Eakin testifying that he uses his laptop with the external keyboard about two-thirds of
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`the time); Dkt. No. 237-33, Ex. Y (Deposition of Benjamin Gulker) (Plaintiff Gulkin testifying
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`that his wife uses an external keyboard at her office and transports the laptop to and from home).
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
` 9
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`Northern District of California
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`United States District Court
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`In none of these cases would it be accurate to measure Plaintiffs’ damages as a total loss of the
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`mobility of their laptop, as Dr. Singer’s regression analysis does.
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`Because the Dr. Singer’s regression analysis relies on the untenable assumptions that the
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`keyboard defect inevitably requires an external keyboard and that an external keyboard leads to a
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`complete loss in laptop mobility, the Court does not find this theory relevant to the ability to
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`calculate class-wide damages. Therefore, the Court GRANTS Apple’s Motion to Strike as to Dr.
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`Singer’s regression analysis.
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`ii. Choice-Based Conjoint Analysis
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`Choice-based conjoint (“CBC”) analysis is a well-recognized economic method used to
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`study and quantify consumer preferences. In re Arris Cable Modem Consumer Litig., 327 F.R.D.
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`334, 373 (N.D. Cal. 2018) (“conjoint analysis is a generally reliable, well recognized method for
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`estimating how consumers value different attributes of a product.”). A CBC analysis is based on a
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`survey in which consumers are asked to pick between two products, each of which is comprised of
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`a bundle of features. Singer Rpt. ¶ 32. Through a series of these choices, respondents indirectly
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`reveal the value they attribute to an individual feature, without knowing what feature was being
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`tested. Id.
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`In this case, Dr. Singer designed a survey in which consumers age 18-59 who had
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`previously bought an Apple laptop were presented with a “choice set” of alternative laptops, each
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`with a set of attributes including the model, price, and presence or absence of a defect. Id. ¶¶ 35-
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`40. By determining the price at which a consumer would choose a laptop with a keyboard defect
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`over laptops with no defects, Dr. Singer’s model measures the discount a customer would demand
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`before purchasing a MacBook with a disclosed keyboard defect. Id. ¶¶ 41-42.
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`Apple argues that the CBC method is irrelevant because it measures a consumer’s
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`willingness to pay for a laptop with a keyboard defect that is certain to manifest, rather than a
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`defect that manifests only a small percentage of the time. The survey instructions stated that if
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`respondents selected a MacBook with a defect, they should “assume the defect will appear
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
` 10
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`Northern District of California
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`United States District Court
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`

`

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`sometime after [their] purchase” and that once the defect appears, Apple would attempt to repair it
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`at no cost to the consumer. Singer Rpt. ¶ 36. In his deposition, Dr. Singer explained that this
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`design was intentional because economic literature suggests that respondents are likely to be
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`confused by a disclosure of risks or probabilities that a defect will manifest. Vetesi Decl. Ex. K
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`(Deposition of Hal J. Singer, Ph.D (“Singer Dep.”)) at 226:19-227:7. In order to account for the
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`risk that the defect will manifest, Dr. Singer instead discounted the survey results after-the-fact by
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`the probability of the defect arising. Singer Rpt. ¶¶ 45-54.
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`Apple argues that if consumers are unable to accurately assess what they would pay for a
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`computer with a risk of a keyboard defect, then a CBC analysis is an unreliable method for
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`measuring damages. Singer Motion to Strike at 8. The Court disagrees. Dr. Singer chose not to
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`incorporate the risk of manifestation in the survey, but rather to apply that risk to the survey
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`results instead. While there may be more than one reasonable way to account for the risk of
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`manifestation, the Court finds that Dr. Singer’s choice is supported by legitimate economic
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`literature and is reliable. See Singer Dep. at 110:19-111:11; Reply Report of Hal J. Singer, Ph.D.
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`(“Singer Reply Rpt.”) ¶¶ 22, 29-32, 68-69, 77.
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`Moreover, in his reply report, Dr. Singer provided the results of a modified version of his
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`CBC analysis in which he incorporated the risk of manifestation in the survey itself. See Singer
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`Reply Rpt., ¶¶ 32-36. According to the results of this modified survey, informing respondents of
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`the probability of failure, as Apple suggested, actually generates a higher damages estimate
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`because consumers are fundamentally risk averse. Id. at ¶ 34. Apple objected to the Court’s
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`consideration of Dr. Singer’s Reply report and the results of the second survey. The Court
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`overruled Apple’s objection at oral argument. At the class certification stage, Plaintiffs need only
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`demonstrate that damages are capable of being determined on a class-wide basis. See Just Film,
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`Inc. v. Buono, 847 F.3d 1108, 1121 (9th Cir. 2017) (holding that, “[a]t this stage, Plaintiffs need
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`only show that such damages can be determined without excessive difficulty and attributed to their
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`theory of liability”); Roy v. Cty. of Los Angeles, No. CV1209012ABFFMX, 2018 WL 3436887, at
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
` 11
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`Northern District of California
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`United States District Court
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`

`

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`Case 5:18-cv-02813-EJD Document 298 *SEALED* Filed 03/08/21 Page 12 of 30Case 5:18-cv-02813-EJD Document 306-2 Filed 03/19/21 Page 13 of 31
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`*4 (C.D. Cal. July 11, 2018) (stating “the question is only whether Plaintiffs have presented a
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`workable method for calculating class-wide damages.”) (alteration and citation omitted).
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`Plaintiffs rely on Dr. Singer’s reports not for the damages figures they produce, but for the
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`conclusion that a CBC analysis offers a workable method to calculate class-wide damages. On
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`this point, the Court finds both the Singer Report and the Singer Reply Report relevant and
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`helpful.
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`Apple separately argues that Dr. Singer failed to consider supply-side factors that would
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`affect the CBC analysis, including “[Apple’s] own costs and the offerings, pricing and promotions
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`of competitors,” or “reactions by Apple’s competitors.” Singer Motion to Strike at 9. Although
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`the parties dispute the extent to which the analysis should include competitive behavior, the Court
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`is satisfied that it is possible for such factors to be accounted for within the CBC analysis, even if
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`they are not included in the analysis Dr. Singer already conducted. Singer Rpt. ¶¶ 45-54
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`(describing how his analysis accounts for supply-side considerations by using Apple’s cost and
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`price-cost margin data); see Smith v. Keurig Green Mountain, Inc., No. 18-CV-06690-HSG, 2020
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`WL 5630051, at *10 (N.D. Cal. Sept. 21, 2020) (finding sufficient, at the class certification stage,
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`a hypothetical scenario showing how the model worked).
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`The Court finds Dr. Singer’s CBC analysis reliable and relevant to Plaintiffs’ theory of
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`class-wide damages. Therefore, the Court DENIES Apple’s Motion to Strike this portion of Dr.
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`Singer’s Expert Opinion.
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`B. Dr. Niebuhr
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`Plaintiffs also engaged Dr. David Niebuhr, a metallurgical engineering specialist to review
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`and assess the existence of the alleged keyboard defect. Dr. Niebuhr is an Adjunct Professor in
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`the Mechanical Engineering department at California Polytechnic State University in San Luis
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`Obispo, California, with 25 years of experience in the field of mechanical engineering and
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`metallurgy. Apple moves to exclude Dr. Niebuhr’s report pursuant to Rule 702 on the grounds
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`that he is unqualified and that his opinions are unreliable and irrelevant.
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`Case No.: 5:18-cv-02813-EJD
`ORDER GRANTING MOTION TO CERTIFY CLASS; GRANTING IN PART AND DENYING
`IN PART APPLE’S MOTION TO STRIKE EXPERT OPINIONS OF HAL J. SINGER;
`GRANTING MOTION TO STRIKE EXPERT OPINIONS OF DAVID V. NIEBUHR
` 12
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`Northern District of California
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`United States District Court
`
`

`

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`Case 5:18-cv-02813-EJD Document 298 *SEALED* Filed 03/08/21 Page 13 of 30Case 5:18-cv-02813-EJD Document 306-2 Filed 03/19/21 Page 14 of 31
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`i. Qualifications
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`Apple argues that Dr. Niebuhr’s testimony should be precluded because he is not qualified
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`to offer an opinion on the design or performance of the keyboards at issue in the case. Niebuhr
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`Motion to Strike at 3. Apple points out that Dr. Niebuhr has no experience inspecting, testing,
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`designing, or performing failure analysis on keyboards or laptops. Id. Nor has he ever served as
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`expert related to keyboards, laptops, or computers. Id.; Vetesi Decl. Ex. P (Deposition of David
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`Niebuhr, Ph.D. (“Niebuhr Dep.”)) at 28:7-29:6. Apple argues that keyboards are one of the most
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`complex components of a computer and that prior experience with keyboards is thus particularly
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`important. Id. Given his lack of keyboard specific experience, Apple argues that Dr. Niebuhr’s
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`testimony “did not ‘grow[] out of pre-litigation research’ and does not otherwise satisfy the first
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`prong of Rule 702.” Niebuhr Motion to Strike at 3 (citing Daubert v. Merrell Dow Pharm., Inc.,
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`43 F.3d 1311, 1318 (9th Cir. 1995)).
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` “Experts are not required to have previous experience with the product at issue[.]”
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`Czuchaj v. Conair Corp., No. 313CV01901BENRBB, 2016 WL 4414673, at *3 (S.D. Cal. Aug.
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`19, 2016); see also Abaxis, Inc. v. Cepheid, No. 10-CV-02840-LHK, 2012 WL 2979019, at *3
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`(N.D. Cal. July 19, 2012) (“Rule 702 imposes no requirement that experts have personal
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`experience in an area to offer admissible testimony relating to that area.”). Dr. Niebuhr has
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`experience in performing failure analysis involving contamination of electrical devices such as
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`hard drives, which Plaintiffs argue qualifies him to offer his opinion on the cause of failure in the
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`butterfly keyboard design. The Court agrees. Given Dr. Niebuhr’s indisputable experience in
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`materials science, mechanical engineering, and failure analysis, he need not have specific
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`experience with keyboards in order to offer expert testimony on the electro-mechanical
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`components and cause of failure of the butterfly keyboards in this case. See, e.g., In re Silicone
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`Gel Breast Implants Prod. Liab. Litig., 318 F. Supp. 2d 879 (C.D. Cal. 2004) (“A court abuses its
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