In Re: MacBook Keyboard Litigation

Northern District of California, cand-5:2018-cv-02813

Redacted Expert Report of D. Niebuhr

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0 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED 0 United States District Court Northern District of California Case No.: 5:18-cv-02813 IN RE MACBOOK KEYBOARD LITIGATION Expert Report of David Niebuhr August 14, 2020 CONTAINS CONFIDENTIAL INFORMATION SUBJECT TO A PROTECTIVE ORDER FILED UNDER SEAL 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 TABLE OF CONTENTS I. ASSIGNMENT II. QUALIFICATIONS III. OVERVIEW OF RELEVANT LAPTOP COMPONENTS IV. SUMMARY OF OPINIONS V. BASES FOR OPINIONS VI. RESEARCH RESULTS VII. INSPECTIONS VIII. CONCLUSION 1 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 I. ASSIGNMENT 1. I have been retained as an expert witness by Chimicles Schwartz Kriner & Donaldson- Smith LLP and Girard Sharp LLP in connection with a proposed class action lawsuit in which the Plaintiffs allege that their MacBooks failed due to the keys registering more than once, getting stuck, and/or not registering at all when pressed (the "Defect"). 2. I was engaged to review and assess the existence of the Defect and its root cause. To this end, I reviewed Apple's failure analysis and other technical documents and witness testimony, and visually inspected the internal components of several MacBooks. In this preliminary expert report, I explain, provide background on, and opine on the cause of failures of the butterfly mechanism keyboard in these computers. 3. My opinions are based upon my 25 years of experience in the field of mechanical engineering and metallurgy, my inspection and testing of MacBooks, and my review of public materials and materials produced in this litigation as set out in Section IV, below. 4. In connection with my work as an expert, Niebuhr Metallurgical Engineering is being compensated at a rate of $300 per hour for consulting, and $350 per hour for deposition testimony and court appearances, plus reimbursement for reasonable expenses. No portion of my compensation is dependent or otherwise contingent on the content of my testimony. 5. This report contains my preliminary conclusions, based upon the information I have reviewed to date, concerning the butterfly mechanism keyboards used in MacBooks. My work on this matter is ongoing and, as such, this report represents only those opinions I have formed to date. I understand discovery is ongoing. My opinions are therefore subject to modification and supplementation based upon my continuing analysis of materials provided, additional information received in discovery or separately obtained, as well as any information, materials, and analysis disclosed in any other experts' reports. II. QUALIFICATIONS 6. I am an Adjunct Professor in the Mechanical Engineering department at California Polytechnic State University in San Luis Obispo, California. I teach courses in mechanics, experimental design, and mechanics of materials to undergraduate students. In the past I was a professor of materials engineering in which I taught courses to both undergraduates and graduates in materials selection and design, failure analysis, physical metallurgy, electronic materials, and 2 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 tribology. Additionally, I have taught several courses in consumer product design and failure analysis with faculty in other disciplines. 7. I have also conducted research for the university in tribology, which is the study of friction and wear of materials. My research included two summer appointments to NASA's Jet Propulsion Laboratory as a visiting scholar. 8. I am a member of the American Society of Materials, a professional organization comprised of metallurgical and materials engineers. 9. I have extensive experience in root cause failure analysis and evaluation of mechanical designs of electro-mechanical consumer products. I am the owner and founder of Niebuhr Metallurgical Engineering in San Luis Obispo, California, where I have performed expert and consulting services in several cases related to product design, materials selection, and the identification of design flaws and ways to mitigate them. My resume, attached as Exhibit A, lists my qualifications, publications I authored over the last ten years, and cases in which I have testified as an expert at trial or by deposition over the last four years. 10. I began my studies at California Polytechnic State University in San Luis Obispo, graduating in 1993 with a B.S. in Materials Engineering. I then attended Oregon Graduate Institute of Science & Technology, graduating in 1997 with a Ph.D. in Materials Science and Engineering. I have a professional engineering license in the subject of metallurgy. 11. My background and experience provide me with a comprehensive and specialized understanding of the mechanical and material design of consumer electronics. I have performed numerous detailed analyses of materials and how they are integrated into systems to optimize performance. I have applied my design and failure analysis expertise to, among other electronic products, thermal printers, hard disk drives, solenoids, and various medical devices. I have relevant expertise in electronic product-failure testing and analysis as well as in materials selection based on products' operational requirements. III. OVERVIEW OF RELEVANT LAPTOP COMPONENTS 12. The keyboard is the primary way users interface with a laptop. It is made up of a key matrix, a grid of miniature circuits underneath each individual key that is connected to the Printed Circuit Board, or PCB, which serves as the keyboard's command center. When a key is pressed, it collapses the components beneath it, sending a small electrical current to the PCB that completes 3 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 the circuit. The laptop's processor compares the location of the closed circuit on the key matrix to its character map memory, and then registers the associated character. 13. (Rule 30(b)(6) Deposition of Michele Goldberg ("Goldberg Depo."), at 130:20-131:4; 131:22-133:4). 14. A. (Goldberg Depo., at 166:10-167:4). In order to access the PCB, the top case must be detached from the bottom case (housing the motherboard, processor, memory, and batteries) and screen, which requires dismantling the laptop. The keys attach to web casing, with a hole for each key. Once screws are removed the keyboard can be peeled back from the web casing. Figure 1. Inside of Top Case Figure 2. Inside of Bottom Case (view looking up) (view looking down) 15. (Goldberg Depo., at 55:15-18). 4 0 In re MacBook Keyboard Litig. – 5:18-cv-02813. (Goldberg Depo., at 50:7-18; 51:3-16). (APL-MBKeyboard_00134030). 16. In 2014, Apple patented a "butterfly" switch for laptop keyboards.1 The butterfly switch is a single assembly mechanism, the movement of which resembles a butterfly flapping its wings. The two wings attach to a hinge in the middle, in a "V" or "U" shape. (Deposition of Bryan McDonald ("McDonald Depo.") at 76:14-20; Goldberg Depo., at 50:3-51:2; 64:3-11.) (APL-MBKeyboard_00134030.) 1 Leong, C., et. al., 2014, Low-Travel Key Mechanisms Using Butterfly Hinges (https://patentimages.storage.googleapis.com/84/7a/c8/856d96347b47ae/US20140116865A1.pdf); see also Leong, C., et. al., 2016, Keyboard Assemblies Having Reduced Thickness and Method of Forming Assemblies (https://patentimages.storage.googleapis.com/e2/09/49/c05a0e669a6f68/US20160336128A1.pdf); Wang, P.X., et. al., 2018, Ingress Prevention for Keyboards (https://patentimages.storage.googleapis.com/76/4e/44/6be3f1ed36a5bf/US20180068808A1.pdf); Leong, C., et. al., 2018, Low-Travel Key Mechanism for an Input Device (https://patentimages.storage.googleapis.com/d3/25/85/4149a202042b10/US20180137996A1.pdf) 5 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 17. Key "travel" distance refers to the vertical displacement of a key measured from its resting position to its fully compressed position. (Goldberg Depo., at 37:1-7.) In other words, travel is the distance in millimeters that a key must be depressed before its key strike is registered. We can define the flat plane of the keyboard as the X-Y plane, and the direction perpendicular to that plane as the Z axis. (McDonald Depo., at 27:9-28:25.) The key travel is on the Z axis, moving up and down. (Id.) As discussed in more detail below, the travel distance feature on a keyboard factors heavily into the overall thickness of a laptop. 18. (APL- MBKeyboard_00686248; APL-MBKeyboard_00698206; Goldberg Depo., at 36:11-14, 38:11-20; McDonald Depo., at 31:19-32:1). McDonald Depo., at 26:4-19). 19. (APL-MBKeyboard_00686248; APL-MBKeyboard_00698206). (Goldberg Depo., 38:21-39:7). . (Goldberg Depo. at 50:3-51:2; 82:7- 11). This combination of materials and architecture provides a stiffer feel and does not make an acoustic click when a key is pressed. 20. . (APL- MBKeyboard_00992840; APL-MBKeyboard_00992843). (McDonald Depo., at 25:24-27:5, 31:2-18). 6 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 Figure 1. Gaps between aluminum web. Left image illustrates low magnification, right image better illustrates gap that can range from 350 to 500 microns. 21. (Goldberg Depo., at 111:7-12). (Goldberg Depo., at 112:24-113:12). 22. While there are other minor components resting in between the keycap and the PCB, the primary components described above are common to all of the MacBook models at issue in this case. IV. SUMMARY OF OPINIONS2 23. Apple manufactured and sold sixteen models3 of MacBooks with a materially similar butterfly mechanism keyboard design. These MacBooks span three "generations" that were sold between March 2015 and March 2020. Based on my analysis, I conclude that each of these butterfly keyboard MacBooks is defective. . (APL-MBKeyboard_00148630; APL-MBKeyboard_00154844; APL- MBKeyboard_00992840; APL-MBKeyboard_00992843). 2 Specific materials that I have reviewed and analyzed appear in the footnoted text of this report. 3 SAC, ¶ 205. 7 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 (APL-MBKeyboard_00780296.) (APL-MBKeyboard_00051910). 24. Hundreds of thousands of consumers have reported MacBook butterfly keyboard failures involving keys that stick, register multiple times when pressed only once, or stop registering keystrokes entirely. (Rule 30(b)(6) Deposition of Jared Williams ("Williams Depo."), at 60:18-24, 78:19-79:8; Rule 30(b)(6) Deposition of Cheri Gandy ("Gandy Depo."), at 55:2-18.) (Goldberg Depo., at 105:7-15 139:19-24, 140:10-20, 154:6-22; Rule 30(b)(6) Deposition of Pradyumna Prabhumirashi ("Prad Depo."), at 193:20-195:25, 196:23-197:7; APL- MBKeyboard_00299124; APL-MBKeyboard_00204786.) My preliminary analysis corroborates Apple's findings. 25. The critical components of the butterfly keyboard design were the same for all MacBooks in question: 4 Apple's Supplemental Responses to Plaintiffs' First Set of Interrogatories, Nos. 4, 11-12; https://www.change.org/p/apple-apple-recall-macbook-pro-w-defective-keyboard-replace-with-different- working-keyboard 8 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 (APL-MBKeyboard_00686248.) (APL-MBKeyboard_00698206; APL-MBKeyboard_01154640 at – 652 (2019 models); see also Goldberg Depo. at 38:21-39:10). 26. Further, all sixteen butterfly models (Goldberg Depo., at 154:6-22; McDonald Depo., at 25:24-27:5, 31:2-18; APL- MBKeyboard_00204786.) inhibit particles wedged below the keycaps from exiting. 27. My analysis thus applies to all sixteen models of Apple MacBooks with butterfly keyboards. I confirmed—both from a close review of Apple's documents and deposition testimony, and based on my own examination of several MacBooks—that the design of the butterfly mechanism keyboard is materially and functionally similar for all models of butterfly MacBooks. 28. Between March 2015 through early March 2020, Apple manufactured and sold MacBooks with the butterfly keyboard.5 The expected useful life of an Apple laptop is four years.6 Based on Apple's data, MacBooks that have been in the field for four years showed Id. By contrast, the 5 APL-MBKeyboard_01178967. 6 See https://www.apple.com/environment/answers/; https://support.apple.com/keyboard-service- program-for-mac-notebooks; see also Anh Hoang, Weili Tseng, Shekar Vishwanathan, and Howard Evans, Life Cycle Assessment of a Laptop Computer and its Contribution to Greenhouse Gas Emissions (January 2009) (available at https://www.researchgate.net/publication/268414508_Life_Cycle_Assessment_of_a_Laptop_Computer_a nd_its_Contribution_to_Greenhouse_Gas_Emissions#:~:text=The%20demand%20for%20higher%20perf ormance,between%203%20to%204%20years. 9 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 .7 The failure rate for the butterfly mechanism keyboards is substantially higher than predecessor scissor keyboards. Here I also note that the (Gandy Depo., at 53:19-54:8, 57:3-58:23, 106:22-108:11, 109:18-110:3, 113:4-10, 115:4-20, 118:19-21, 120:2-8; Williams Depo., at 86:8-87:9, 94:15-23, 108:3-21, 117:21-118:5, 161:7-15; see also APL- MBKeyboard_00673583; APL-MBKeyboard_00046528; APL-MBKeyboard_00238774; APL- MBKeyboard_00238782; APL-MBKeyboard_00024223.) 29. My overall opinion, based upon my analysis to date, is that the butterfly keyboard MacBooks were defectively designed and that the cause of the widespread keyboard failures is the uniformly low-travel distance and the tighter gaps between the keycap and keyboard casing. Because of their flawed design, these MacBooks will continue to fail in the future, and they are substantially more likely to fail than scissor keyboards. V. BASES FOR OPINIONS 30. My opinions are based upon Apple's internal documents, deposition testimony, and discovery responses (including the material cited in this report), my background and experience, publicly available information (including relevant Apple patents), and laboratory analysis. 31. I began by reviewing and interpreting Apple's internal failure analysis documents, discovery responses, and excerpts of deposition testimony of the following Apple employees: Jeffrey LaBerge, Nathan Yoder, Scott McEuen, Shelly Goldberg, Pradyumna Prabhumirashi, Bryan McDonald, Jared Williams, and Cheri Gandy. The case materials I reviewed are cited in text and footnotes to this report. 32. I next reviewed the allegations and customer complaints in the Second Amended Consolidated Complaint, Apple's public statements concerning the MacBook and its failures, the reports of MacBook keyboard failures in online articles and posts. The failures described in these posts and comments are materially similar, which support the conclusion that the problem is attributable to a common hardware defect. The information I reviewed is listed in the footnotes and the text of this report. 7 Apple's Supplemental Responses to Plaintiffs' First Set of Interrogatories, No. 10. 10 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 33. To help interpret the results of Apple's failure analysis, I then reviewed Apple's relevant keyboard patents. I also reviewed materials concerning the useful life and obsolescence period of laptop computers. The patents and materials I reviewed are cited in the footnotes and the text this report. 34. Finally, I examined five butterfly keyboard MacBooks to test my interpretation of Apple's root cause and failure analysis findings. I provide details of these examinations, including images, later in this report. VI. RESEARCH RESULTS A. The Butterfly Keyboard Is Defective 35. My analysis confirms that the butterfly mechanism keyboard is defective. . (APL-MBKeyboard_00166732; APL-MBKeyboard_00780296; see also Rule 30(b)(6) Deposition of Jeffrey LaBerge ("LaBerge Depo."), at 122:9-23; Williams Depo. at 60:18-61:6.) (Apple's Supplemental Responses to Plaintiffs' First Set of Interrogatories, Nos. 7-8.) 36. Apple released its first laptop with the new butterfly keyboard, the 2015 MacBook (model "J92"), in the Spring of 2015. . (McDonald Depo., at 32:2-4; APL- MBKeyboard_00031197). APL-MBKeyboard_00031197). (APL-MBKeyboard_00493517; Goldberg Depo., at 65:11-24.) (McDonald Depo., at 29:23-11) 37. (APL- MBKeyboard_00046505; APL-MBKeyboard_00046507; see also LaBerge Depo., at 185:17- 186:3; SAC ¶¶ 145-146.) 11 0 In re MacBook Keyboard Litig. – 5:18-cv-02813. (APL-MBKeyboard_00166732; APL- MBKeyboard_00780296.) 38. (APL- MBKeyboard_00040482.) (Goldberg Dep., at 130:21-131:21.) 39. Each of the sixteen Apple laptops with a butterfly mechanism keyboard is (APL-MBKeyboard_00148630; APL- MBKeyboard_00148630; Goldberg depo, 130:21-131:21.) (APL-MBKeyboard_00040482.) 40. (APL-MBKeyboard_00203431; APL-MBKeyboard_00203435.) FMEA is a standard industry design analysis tool used to document current knowledge and take action to reduce or prevent future failures.8 (APL-MBKeyboard_00203435; APL- MBKeyboard_00245400.) 41. (Id.) nd 8 See APL-MBKeyboard_00547049, APL- MBKeyboard_00709907; 00026569 (J140A FMEA); 00111081 (J122 FMEA); 00113349 (FMEA for MUK); 00134030 (FMEA for J79/80/130); 00134079 (FMEA for J130); 00195316 (J79 FMEA); 12 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 '" (APL-MBKeyboard_00285047; APL-MBKeyboard_00500250.) 42. In addition, . (APL- MBKeyboard_00704483; APL-MBKeyboard_00704484; APL-MBKeyboard_00704509; see also Prad Depo., 193:23-194:6.) B. The Butterfly Keyboard's Low Travel and Tight Spaces Result in Particle Contamination 43. (APL-MBKeyboard_00134079; APL-MBKeyboard_00126599; APL-MBKeyboard_00379860). 44. (Goldberg Depo., at 111:7-12.) (APL-MBKeyboard_00704484; APL-MBKeyboard_00051910.) . (APL- MBKeyboard_00051910.) . (Goldberg Dep. at 133:5-135:13; APL-MBKeyboard_00695303; APL-MBKeyboard_00695319). (APL-MBKeyboard_00051910.) 13 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 (APL-MBKeyboard_00704484.) 45. It is my opinion that key failures due to trapped particles are (APL- MBKeyboard_00154845; APL-MBKeyboard_00204786; APL-MBKeyboard_00704493; APL- MBKeyboard_00570607.) C. All Generations of the Butterfly Keyboard Have the Same Defective Design 46. Each of the three generations of butterfly mechanism keyboards (Goldberg Depo., at 131:10- 20; APL-MBKeyboard_00040482; APL-MBKeyboard_00780274; APL- MBKeyboard_00154844; APL-MBKeyboard_00657556; APL-MBKeyboard_00766208.) Apple's special program for butterfly laptop owners with failed keyboards recognizes that the Defect is uniform across all sixteen models, by including all sixteen in the program. (https://support.apple.com/keyboard-service-program-for-mac-notebooks). APL-MBKeyboard_01167143; APL-MBKeyboard_00696262.) VII. INSPECTIONS 47. In addition to reviewing Apple documents and testimony, customer complaints, and patents, I conducted a visual inspection of the internal components of the MacBook. 48. To confirm my interpretation of Apple's findings, I inspected, photographed, disassembled, and characterized five butterfly keyboard MacBooks that I determined were affected by keyboard issues consistent with the Defect as described in the plaintiffs' complaint and in Apple's documents. My inspection and analysis consisted of: (1) visual inspection of case, keyboard, and monitor to note any cosmetic damage; (2) inspection of keyboard using a low- 14 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 powered microscope; (3) charge battery, boot up to ensure functionality; (4) open "Notes" program; (5) conduct random key testing to determine functionality; (6) note failure mode of specific keys (K01, K05, or K61); (7) clean keyboard per Apple instructions: https://support.apple.com/en-us/HT205662; (8) remove key caps from both functional and nonfunctional keys; (9) evaluate area for presence of particles and substance; (10) document and dissect key by removing butterfly mechanism; and (11) open bottom cover to inspect components of bottom case. Each of the MacBooks tested had debris underneath the keys and within the butterfly mechanism key structure. 49. My inspection supports my conclusion that the butterfly keyboard is defective and susceptible to failure due to small particles that get trapped in its operating environment. All of the computers I examined had numerous keys that didn't perform as a user would expect. Table A, on the next page, summarizes the types of key failures observed on the individual models, coded according to Apple's failure data set. Specific keys were noted as problematic and inspected with a microscope to determine the primary cause of failure. Particles were noted in the MacBooks that demonstrated the keyboard problems. 15 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 Table A. Key Failures Observed on MacBooks MacBook Model Code/Generation Failing Key Failure Mode No. Keys Specific Keys Do Not Work ("no make") Inspected Sticky Key(s) K61 – Repeat characters (double-click) No Make Sticky Keys Double-click 1. 12" MacBook, Retina, Right X X 2015 Arrow, (C02QGDRYGF84) Down Arrow 2. 12" MacBook, Retina, Z, X, X X X 2015 Down (C02Q90U0FWW3) Arrow 3. 12" MacBook, 2016 Space X (C025P0L6GTHV) Bar 4. 12" MacBook, 2016 Shift X X (C02RT9B0H3QX) (right), Down Arrow 5. 15" MacBook Pro, 2018 B, I, K X X (C02XJ0CJJG5M) 50. Images from my inspections of the computers follow. 51. I accessed the butterfly mechanism by using a "pick-type" tool to initially get underneath the keycaps, and then used a "spudger" tool to pry and rotate the keycap with gentle upward pressure in an effort to avoid damaging the fragile clips. With the keycap removed, the entire butterfly key structure could be observed. Figure 1. Butterfly Mechanism Indicating Anchor Points to Keycap and Housing 16 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 52. The stainless steel dome is depicted in the center of Figure 1, above. Removal of the dome reveals the contact pad which is part of the PCB. The four corners of the contact pad act as one leg of the circuit. The center is the other leg of the circuit which is completed when the dome makes contact with the center. Figure 2. Key with Butterfly Mechanism Removed MacBook No. 1 53. Upon inspection of MacBook No. 1, the right arrow and down arrow keys exhibited failures. Evaluation by typing was repeated after cleaning with compressed air but the problems persisted. 54. The right arrow key would operate only after repeatedly depressing on different parts of the key (top corner, bottom corner, etc.). Debris was found under the keycap as shown in Figures 3 and 4, on the next page. Figure 3 is an overview of right arrow after keycap removal. The red boxes are areas with large amounts of debris. Figures 4-6 are magnified images of the debris found in several areas under the key, ranging in size from <10 microns to 500+ microns. 17 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 Figure 3 Figure 4 Figure 5 Figure 6 55. The down arrow key in MacBook No. 1 also had sporadic functionality. Foreign debris was present as illustrated in Figures 7 and 8. Figure 7 is an overview of down arrow after keycap removal. Numerous particles were present, with at least six exceeding 500 microns in size. This is significant as a particle of between 400 and 500 microns can wedge itself under the butterfly key and freeze its motion. Figure 8 is the magnified image of a hard particle observed in the vicinity of the butterfly mechanism. 18 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 Figure 7 Figure 8 MacBook No. 2 56. Upon inspection of MacBook No. 2, the Z, X, and down arrow keys exhibited failures. The Z and X keys required repeated excessive pressure in order for them to register a key strike. The down arrow key was nonfunctional. No measurable improvement in performance occurred after cleaning with the air. 57. Particles were seen under the Z, X and down arrow keycaps. Figure 9 is an overview of down arrow after keycap removal illustrating particles in the 300 – 400 micron range (black arrows). Figure 9 MacBook No. 3 58. Upon inspection of MacBook No. 3, the space bar key exhibited failures. The space bar was inconsistent during typing, exhibiting no make (i.e., failing to work on the screen). When the keycap was removed there was debris underneath. The space bar was reattached, and the 19 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 keyboard cleaned with compressed air. Subsequent testing did not reveal improvement in "no make" failures. The keycap was removed a second time and the distribution of particles looked unchanged. 59. Figure 10 is an overview of the space bar key, after keycap removal, that had particles ranging in size from 10 microns to 2 mm. Figure 11 is another magnified image of these particles within MacBook No. 3. Figure 10 Figure 11 MacBook No. 4 60. Upon inspection of MacBook No. 4, the down arrow and Enter keys exhibited failures. The down arrow key was nonresponsive. Cleaning with air did not fix the problem. The Enter key had sporadic functionality. 61. Figure 12 is a magnified image of the down arrow after keycap removal showing evidence of wear on the nub. This wear appeared to be abrasive – similar to being rubbed with sand paper – and evidenced break down of the material. 20 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 Figure 12 MacBook No. 5 62. Upon inspections of MacBook No. 5, the B, I and K keys exhibited failures. This model utilized the membrane under keyboard ("MUK") that Apple added to some later models. The MUK did not cover where the keycap connected to the butterfly mechanism. As a result, there were openings for particles to enter. 63. The B, I and K keys all operated sporadically, exhibiting "no make" and double-click failures. The keys were removed for observation, then replaced, and the keyboard was cleaned with compressed air, which did not resolve the issues. Particles ranging from 10 microns to over 500 microns were observed around and under the MUK for all keys observed. 64. Figure 13 illustrates the areas where particles can circumvent MUK. The particles are trapped by the MUK and work their way under the butterfly as seen in Figure 14, which is the likely cause of the failures of the three keys on MacBook No. 5. These particles were measured to be in the 200 – 300 micron range. Figure 13 Figure 14 21 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 65. Figure 15 depicts the particles found under the B key in MacBook No. 5. Figure 16 depicts additional particles observed under the MUK after keycap removal. Figure 15 Figure 16 VIII. CONCLUSION 66. Based upon all of the material available to me – including (1) the voluminous consumer reports of failed butterfly keyboard MacBooks; (2) the facts stated in Plaintiffs' complaint; (3) Apple's failure analysis, root cause, and other technical documents; (4) the testimony of its witnesses; and (5) my research and inspection of failed MacBooks – I conclude to a reasonable degree of engineering certainty that the butterfly keyboard MacBooks suffer from a Defect which causes their keys to get stuck, register a keystroke multiple times despite being pressed only once, or fail to register at all. This Defect thus prevents the keyboard from functioning. The Defect inheres. These design elements result in internal and external foreign particles getting trapped under the keys and preventing ter. Each of the sixteen MacBook models that Apple manufactured with the butterfly mechanism keyboard failed and at rates substantially above those regarded as tolerable in the industry. 67. I reserve the right to supplement and modify my opinions based on further analysis and testing using additional evidence that may be developed. * * * 22 0 In re MacBook Keyboard Litig. – 5:18-cv-02813 I declare under penalty of perjury under the laws of the United States that the above is true and correct. Executed on August 14, 2020 in San Luis Obispo, California. ______________________________ _______________________________ David Niebuhr 23 0 David V. Niebuhr, Ph.D., P.E. 1290 Alder Court • San Luis Obispo, California 93401 (805) 234-7081 david@metallurgyconsultant.com Executive Summary x Metallurgical, Mechanical, and Materials Engineer with over 25 years of experience x Areas of practice: ferrous alloy processing & behavior, failure analysis & prevention, materials analysis & selection in product development. x Areas of expertise: physical metallurgy, failure analysis, degradation mechanisms (corrosion and wear) and characterization of materials x Experienced director of hundreds of projects with total revenue greater than $150 million Professional Experience President, Niebuhr Metallurgical Engineering • 2005 – Present San Luis Obispo, California x Responsible for managing operation, marketing & business development x Domestic and International customer base x Emphasis on failure analysis of industrial and consumer products, including product development, design and materials selection x Expert witness testimony in both civil / criminal court and state / federal court o Retained as an expert in 30+ cases o Deposition and Trial testimony experience x Industries served included: manufacturing/ consumer products, high technology, aerospace, infrastructure, municipal and oil & gas Adjunct Professor, California Polytechnic State University • 2007 –Present San Luis Obispo, CA x Instructor in Mechanical & Architectural Engineering Departments x Responsible for development and instruction of undergraduate lectures & labs x Metallurgical consultant for students and faculty. Director of Forensic Business Unit, Intertek • 2011 – 2013 Sunnyvale, California x Metallurgical / Materials Engineer determining root cause failures of systems and/or components. Recommended material modifications and/or process changes to customer x Expert in materials degradation mechanisms, including corrosion, wear & fracture x Specified and oversaw materials characterization using local analytical labs x Responsible for managing group with $4M in annual consulting projects x Testifying Expert in Legal and Insurance (subrogation) claims (state & federal court) Professor of Materials Engineering, California Polytechnic State University • 1999 - 2006 San Luis Obispo, California 1 0 x Developed and instructed ~12 courses (4 new) for undergraduate and graduate students, including Failure Analysis, Corrosion, Tribology, NDE, Materials Characterization & Physical Metallurgy x Active researcher and consultant in failure analysis, corrosion and tribology x Managed research grants ($500k) while employing graduate and undergraduate students x Acquired research equipment leveraging industry grants with state money x Technical Advisor (failure analysis and tribology) for College of Engineering Visiting Scholar, Jet Propulsion Laboratory (California Institute of Technology) Pasadena, California x Research project to evaluate wear and friction in low pressure CO2 environments x Atomic Force Microscopy project investigating friction in several inert atmospheres as compared to ambient conditions. x Research project characterizing CdSe Quantum Dots (QD) via Atomic Force Microscope (AFM) o Analysis of shape and morphology as a function of QD synthesis parameters o Design of experiments to evaluate how synthesis parameters influenced size and properties o Measurement & characterization of photoluminescence properties Design Engineer / Tribologist, Quantum Corporation Milpitas, California x Team Leader, Hydrodynamic Bearings (HDB) development group x Responsible for implementation and testing of (HDB) spindle motors into three drive programs x Materials / Wear / Failure Analysis consultant responsible for designing, testing and evaluating new materials for a wide variety of cross-departmental projects x Designed & Purchased $100k materials analysis lab which streamlined HDB wear evaluation Academic Preparation Ph.D. Materials Science and Engineering Oregon Health Science University, Portland, Oregon Concentrations: Tribology (Wear) and Materials Characterization Dissertation: Self-Lubricating Composite Plasma Sprayed Coatings Advisor: Dr. Paul Clayton (deceased) B.S. Materials Engineering California Polytechnic State University, San Luis Obispo, California Senior Project: Hydride Kinetics in Zirconium lined, Zircaloy™ (UO2) Fuel Rods P.E. Licensed Professional Engineer (Metallurgical), State of California. License # 1957 Notable Projects (Examples of 500 + Projects) x Failure analysis of thermal printers used in Ziosk™ table ordering tablet x Analysis of beta design compact microwave ovens to increase efficiency x Failure analysis of aviation radar system due to degradation of dielectric coating in waveguide. x Assessment of magnetron durability in commercial microwave ovens x Analysis of residential fire caused by microwave oven power supply failure 2 0 x Failure analysis of high-efficiency gas water heater after explosion and escaped water x Characterization and design of new piezoelectric material for force sensors x Inspection of pressurized super-heated water vessel following exposure to corrosive material x Damage assessment large structures following exposure to concentrated sulfuric acid fumes x Development of carbide hardened tool steel for industrial knives & cutting tools x Process development for improved IF sheet steels for extreme forming applications x Modification of 904L stainless steel for improved resistance to sulfidation x Investigation of weld cracking in class 300 20 inch pipe flanges for Shell Oil x Selection of steel alloys for underground salt cave hydrogen storage x Investigation of hydrogen embrittlement in high pressure natural gas pipe x Development of weld pre and post heating process for 30 inch oil pipe and flange x Pipeline cracking assessment in sour gas supply pipes x Boiler tube Assessment of oxidation, wall thinning and prediction of remaining service life (multiple projects in this area) x Failure analysis of corroded & leaking 100,000 gallon crude oil tank x Corrosion and fretting fatigue failure analysis of pipe joint subjected to high frequency vibration x Weld procedure development for ASTM grade 70-40 steel valve used in a hydroelectric plant x Failure analysis of 904L stainless steel in the presence of concentrated sulfuric acid x Failure analysis of a closed loop water cooling system / analysis of corrosion products x Corrosion and fatigue failure of surgical steel blades x Characterization and design of new piezoelectric material for force sensors x Failure analysis of fractured hip implant (multiple projects on this topic) x Metallurgical advisor to small rotary engine start-up company based in Indio, CA x Corrosion mitigation of alloy steel in aqueous sulfur environments x Design and characterization of polymer tanks holding concentrated sulfuric acid x 52100 steel bearing failure analysis used in heavy machinery (several projects in this area) x Fatigue cracking investigation of aluminum alloy for high performance off road vehicles x Weld procedure development for ASTM grade 70-40 steel valve used in a hydroelectric plant Technical Publications Niebuhr, D., "Friction and wear behavior of engineering alloys in a simulated martian (CO 2) environment, a preliminary study," 16th International Conference on Wear of Materials, Volume 263, Issues 1-6, 10 September 2007, pp. 88-92. Niebuhr, D. "Cavitation erosion behavior of ceramics in aqueous solutions," 16 th International Conference on Wear of Materials, Volume 263, Issues 1-6, 10 September 2007, pp. 295-300. Niebuhr, D. "Metallurgical Failure Analysis of a Horse Trailer: A Criminal Investigation," Journal of Failure Analysis and Prevention, Volume 6 (4), August 2006. pp. 25-30. Niebuhr, D. and M. Scholl, "Performance of Steel / Polymer Plasma Sprayed Coatings," Journal of Thermal Spray Technology, ASM International. Vol. 14 (4), December 2005. pp. 1-7. Niebuhr, D. "Teaching Failure Analysis as an Independent Design Experience," Proceedings of the ASEE Annual Conference, Portland, OR, 2005. 3 0 Niebuhr, D., "Abrasive Wear as a Function of Microstructure in Metals," Proceedings of the 19th Annual National Educators Workshop, October 2004. Niebuhr, D., "Cavitation / Erosion Wear as a Function of Microstructure in Metals," Proceedings of the 19th Annual National Educators Workshop, October 2004. Niebuhr, D. and W.D. Forgeng, "Age Hardening of Aluminum Alloys," Proceedings of the 19th Annual National Educators Workshop, October 2004. Niebuhr, D., Smith H., "Integrated Laboratories vs. Traditional Laboratories, Is there a difference?" Proceedings of the ASEE Annual Conference, Salt Lake City, CA, 2004. Niebuhr, D. "Discovering the Source of Properties in Alloys: Metallographic Examination," 17th Annual National Educators Workshop. 2002. Li, M., Niebuhr, D., Atteridge, D., and Mekeesho, L. "A Computational Model for the Prediction of Steel Hardenability," Metallurgical and Materials Transactions, Vol. 29B. No. 3, June 1998. Niebuhr, D., Scholl, M., and Clayton P. "Self-Lubricating Composite Plasma Sprayed Coatings," Proceedings from the 9th National Thermal Spray Conference, ASM International, 1996. Li, M., Niebuhr, D, Atteridge, D., and Mekeesho, L. "Computing Jominy Hardness Curves of Steels," Proceedings of the International Symposium on Phase Transformations during the Thermal/Mechanical Processing of Steel, CIM, Montreal, 1995 Testimony Within Last Four Years Trials October 2019 Tabletop Media LLC v. Citizen Systems of America Corporation; Citizen Systems Japan No. 2:16-cv-07140_PSG-ASW Los Angeles Federal Court Depositions July 2020 – Sanchez vs Linn Energy LLC, et al., Case No: S-1500-CV-283816-SDS July 2019 – Jason Fong vs Donna J. Wood, et al. Case No: 17CIV02038 December 2018 – TableTop Media LLC vs Citizen Systems Corp. No. 2:16-cv-07140_PSG-ASW August 2018 – TableTop Media LLC vs Citizen Systems Corp. No. 2:16-cv-07140_PSG-ASW Professional Service & Affiliations National Science Foundation Proposal Panel Reviewer Metallurgical and Materials Transactions Reviewer Materials Science A Reviewer American Society of Engineering Education Proceedings Reviewer 4 0 American Society of Metals (ASM) American Society of Testing & Materials (ASTM) National Eagle Scout Association Life Member 5