Schechner v. Whirlpool Corporation

Filing 168

OPINION and ORDER Overruling Plaintiffs' 149 Objections; Overruling Defendant's 150 Objections to Discovery Master's Report and Recommendation; and Denying 96 Sealed Motion; Denying 110 Motion to Strike; Denying 111 Motion to Strike; Denying 112 Motion to Strike Expert Opinions. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TOBY SCHECHNER, et al.,

Case No. 2:16-cv-12409

Plaintiffs,

HONORABLE STEPHEN J. MURPHY, III

v.
WHIRLPOOL CORPORATION,
Defendant.
/

OPINION AND ORDER
OVERRULING OBJECTIONS TO
DISCOVERY MASTER'S REPORT
AND RECOMMENDATION [149, 150], AND DENYING
MOTIONS TO STRIKE EXPERT OPINIONS [96, 110, 111, 112]
On April 16, 2018, Plaintiffs filed a motion for class certification. ECF 71, 83
(under seal). In support of their motion, Plaintiffs offered the expert testimony of Mr.
Colin Weir. See ECF 87-9 (declaration of Weir) (under seal). On May 31, 2018,
Defendant filed its response to Plaintiffs' motion to certify class. ECF 91 (under seal).
In support of its response, Defendant offered the expert testimony of Dr. Itamar
Simonson, Dr. Keith Ugone, and Dr. Robert Rauschenberger. See ECF 91-22 (under
seal) (Simonson Report); ECF 91-31–91-39 (under seal) (Ugone Report); ECF 91-11–
91-12 (under seal) (Rauschenberger Report).
On June 8, 2018, Defendant filed a motion to strike Mr. Weir's opinions. ECF
96 (under seal). On July 27, 2018, Plaintiffs filed motions to strike the opinions of Dr.
Simonson, ECF 110, Dr. Ugone, ECF 111, and Dr. Rauschenberger, ECF 112.

1

On August 28, 2018, the Court appointed Mr. Daniel Sharkey to issue a report
and recommendation on the motions to strike. ECF 125. On October 30, 2018, Mr.
Sharkey issued his report and recommendation ("Report"), recommending that the
Court deny the motions to strike. ECF 142. On December 4, 2018, Plaintiffs filed their
objections to the Report. ECF 149. On the same day, Defendant filed its objections to
the Report. ECF 150.
BACKGROUND
The litigation is a putative class action in which Plaintiffs allege that
Whirlpool's marketing and advertising for its ovens with AquaLift self-cleaning
technology ("AquaLift ovens") were false, deceptive, and misleading because the
ovens did not clean as effectively as advertised. ECF 5, PgID 68.
I.

Mr. Weir's Opinions
Plaintiffs' expert, Mr. Weir, calculated price premiums that consumers

allegedly paid on a class-wide basis related to Defendant's alleged misrepresentations
about the self-cleaning mechanism. ECF 87-9 (under seal). His calculations used
conjoint analysis and hedonic regression analysis. Id. at 10888 (under seal). Conjoint
analysis uses survey data. Survey respondents rank their preferences of product
attributes and prices or choose the most preferred attribute or combination of
attributes. The choices are evaluated statistically to calculate the value of each
attribute as compared to the others. See ECF 142, PgID 26217. "Hedonic regression
is a statistical tool that attempts to explain" the relative importance of various

2

independent variables—such as product features—on the dependent variable, price.
See id. at 26224.
Mr. Weir's conjoint analysis presented respondents with choices of ovens with
various combinations of product attributes. See ECF 87-9, PgID 10895 (under seal).
His hedonic regression analysis compared the prices consumers paid for ovens with
and without the AquaLift feature. See id. at 10916, 10922 (under seal). Mr. Weir's
calculations determined price premiums of 10.58% and 10.83% through conjoint and
hedonic regression analyses, respectively. Id. at 10888, 10926 (under seal).
Mr. Weir opined that individualized inquiry was not required in order to
calculate total class-wide damages—which would not be affected by variations in
purchase price, individual interpretations of the claim that the ovens were selfcleaning, individual behavior or use of the ovens, or individual reasons for purchasing
the ovens. Id. at 10926–27 (under seal).
II.

Dr. Simonson's Opinions
Defendant's expert Dr. Simonson criticized Mr. Weir's opinions,1 ECF 91-22,

PgID 11649–50 (under seal), and provided his own opinion. He conducted a survey
intended to measure the impact of AquaLift on consumers' purchase intentions and
perceptions of oven features and consumers' expectations about the pyrolytic selfcleaning feature. Id. at 11650 (under seal). He performed consumer research on
ovens, self-cleaning options, and pyrolytic self-cleaning technology.

Dr. Simonson also criticized the opinion of another one of Plaintiffs' experts, Dr.
Kamins.

1

3

Dr. Simonson's survey used a mocked-up advertisement of a hypothetical Home
Depot "AquaLift Self-Cleaning" oven. Id. at 11695 (under seal). The mocked-up
advertisement was modified from a real Home Depot advertisement that did not say
"AquaLift" before "Self-Cleaning." Id. at 11694 (under seal). The survey respondents
were split among panelists who saw the advertisement that referred to AquaLift SelfCleaning and a control group that saw an advertisement that did not mention AquaLift
or self-cleaning. Id. at 11690, 11693 (under seal). Dr. Simonson asked several questions
to assess the impact of the AquaLift value, including asking respondents about their
likelihood of buying the presented oven. Id. at 11690–91 (under seal). After executing
his survey, Dr. Simonson provided coders with the data to create groupings or
categories for overlapping responses. Id. at 11703 (under seal).
Dr. Simonson concluded that there was no significant difference in purchase
intentions between respondents shown the Whirlpool oven with "AquaLift SelfCleaning" and those shown the oven without the feature. Id. at 11704 (under seal).
He also noted that the respondents who used and valued the self-cleaning feature
were likely to acquire information about it before purchase. Id. at 11715 (under seal).
He concluded that overall ratings of the oven's features were not enhanced by the
AquaLift feature and that respondents had unrealistic expectations of self-cleaning
oven features. Id. (under seal).
III.

Dr. Ugone's Opinions
Defendant presented Dr. Ugone's expert opinion to rebut Mr. Weir's opinions

and to opine as to whether the claimed classwide damages in the case could be

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reliably evaluated using a common proof—i.e., without individualized inquiry. ECF
91-31, PgID 12190 (under seal). Dr. Ugone criticized Mr. Weir's conjoint analysis and
hedonic regression analysis and concluded that Mr. Weir's methodologies did not
yield a reliable measure of classwide damages. Id. (under seal). He also concluded
that individualized inquiry was required to reliably calculate the claimed damages.
Id. at 12192 (under seal).
IV.

Dr. Rauschenberger's Opinions
Defendant's expert Dr. Rauschenberger, a cognitive psychologist, opined on

human factors regarding consumers' use and experiences of the ovens. Dr.
Rauschenberger reviewed case-specific materials and scientific literature about
human decision-making and behavior, conducted in-home inspections of Plaintiffs'
ovens, and evaluated oven cleaning methods (including AquaLift). ECF 91-11, PgID
11258 (under seal).
Dr. Rauschenberger made nine conclusions. First, appliance purchase
decisions were complex mental transactions that were not dominated by a single
factor. Id. at 11322 (under seal). Second, definitions of "clean" and acceptable levels
of manual effort vary from individual to individual. Id. (under seal). Third, having
compared AquaLift, standard, and pyrolytic ovens under controlled conditions, the
AquaLift oven required less time and a similar amount of effort as a pyrolytic oven to
clean. Id. (under seal). Fourth, some consumers had unrealistic expectations of the
performance of an oven described as "self-cleaning." Id. (under seal). Fifth, consumers
experienced diverse expectations about AquaLift technology—some of which were

5

inaccurate—due to varying levels of attention to AquaLift product information and
past experiences with pyrolytic and standard ovens. Id. (under seal). Sixth, Plaintiffs'
dissatisfaction was attributable at least in part to misuse of their AquaLift ovens. Id.
at 11323 (under seal). Seventh, based upon a review of literature about pyrolytic
ovens, pyrolytic ovens required substantial manual interaction. Id. (under seal).
Eighth, the instructions that came with AquaLift ovens were easy to follow and welldesigned. Id. (under seal). Ninth, purchasers of AquaLift ovens were not uniformly
dissatisfied with the ovens. Id. (under seal).
STANDARD OF REVIEW
The Court may "adopt or affirm, modify, [or] wholly or partly reject or reverse"
the Sharkey Report. Fed. R. Civ. P. 53(f)(1). Because the parties have not stipulated
otherwise, the Court "must decide de novo all objections to findings of fact made or
recommended" in the Report. Fed. R. Civ. P. 53(f)(3). The Court also "must decide de
novo all objections to conclusions of law made or recommended" in the Report. Fed.
R. Civ. P. 53(f)(4).
The Federal Rules of Evidence address the admissibility of expert testimony.
"A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.

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Fed. R. Civ. P. 702.
The Court must ensure that a proffered expert's testimony "rests on a reliable
foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 597 (1993). The Court's gatekeeping function reaches proffered expert
testimony based on specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 148–50 (1999).
The Supreme Court has not decided whether a district court must undertake
a Daubert analysis at the class-certification stage. In re Carpenter Co., No. 14-0302,
2014 WL 12809636, at *3 (6th Cir. Sept. 29, 2014). The Sixth Circuit has held that a
district court does not abuse its discretion in applying Daubert to critical expert
witnesses. Id.
But "[t]he Seventh Circuit requires a district court to conclusively rule on any
challenge to an expert's qualifications or submissions if his/her report or testimony is
'critical to class certification' before ruling on the merits of the motion to certify a
class." Id. (citing Am. Honda Motor Co. v. Allen, 600 F.3d 813, 815−16 (7th Cir. 2010))
(emphasis added). The Eleventh and Seventh Circuits require a district court to
conduct a conclusive Daubert inquiry. E.g., Sher v. Raytheon Co., 419 F. App'x. 887,
890 (11th Cir. 2011); Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 812–
14 (7th Cir. 2012). The Eighth Circuit, by contrast, has affirmed a district court's
more tailored analysis examining "the reliability of the expert opinions in light of the
available evidence and the purpose for which they were offered." In re Zurn Pex
Plumbing Prods. Liab. Litig., 644 F.3d 604, 610, 614 (8th Cir. 2011). The Sixth Circuit

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has not directly determined the extent to which a district court must apply Daubert
during the class certification stage.
DISCUSSION
I.

Defendant's Motion to Strike Mr. Weir's Opinion
Defendant moves to exclude three of Mr. Weir's opinions under Federal Rule

of Evidence 702 and Daubert: (1) his conjoint analysis opinion, (2) his hedonic
regression opinion, and (3) his fixed-percentage price premium opinion. ECF 96, PgID
14172 (under seal).
Mr. Sharkey recommended that the Court deny Defendant's motion to exclude
Mr. Weir's opinions. ECF 142, PgID 26213. First, he concluded that Mr. Weir's
conjoint analysis was sufficiently reliable to be admissible. Id. at 26217. Mr. Sharkey
addressed Defendant's arguments that: consumers ascribe different meanings to the
term "self-clean;" Mr. Weir exaggerated the "AquaLift clean" label over a hypothetical
"AquaLift partial-clean" label; Mr. Weir's survey suffered from focalism bias; and that
the survey fails to account for supply-side considerations to measure price premiums.
Id. at 26219. Mr. Sharkey explained that "self-cleaning" was not such a confusing
term as to render Mr. Weir's opinion unreliable—indeed, Defendant used the term in
its own advertisements. Id. at 26220. He then noted that although Mr. Weir's
"AquaLift partial-clean" label was hypothetical, it related sufficiently to the facts and
allegations of the case. Id. at 26221. Mr. Sharkey also explained that the survey's
alleged focalism bias—which might allow a survey respondent to discover the target
of the survey—affected the weight of the survey but did not render it unreliable. Id.

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at 26222. Finally, Mr. Sharkey reasoned that Mr. Weir sufficiently considered the
supply-side factors in measuring the price premium because his analysis compared
the self-cleaning ovens as Defendant allegedly marketed them and the partial selfcleaning ovens as Defendant allegedly actually provided them and the associated
price premiums for both. Id. at 26223.
Next, Mr. Sharkey concluded that Mr. Weir's hedonic regression analysis was
sufficiently reliable to be admissible. Id. at 26224. Mr. Sharkey addressed
Defendant's arguments that: (1) Mr. Weir's hedonic regression analysis confounded
the value of the "self-clean" feature with other, non-cleaning features; and (2) Mr.
Weir relied upon an insufficient data set. Id. Mr. Sharkey explained that although
both alleged infirmities affected the weight of the evidence, they did not render the
evidence inadmissible. Id. at 26225, 26227.
Finally, Mr. Sharkey concluded that a fixed-price premium of recovery was
sufficiently reliable given Plaintiffs' reliance on a benefit-of-the-bargain theory of
recovery. Id. at 26227–28. He addressed Defendant's argument that Mr. Weir's fixedprice premium approach did not conduct individualized inquiries to determine the
damages that each individual consumer incurred. Id. at 26228. Mr. Sharkey
explained that Mr. Weir's fixed-price premium quantifies the reimbursement for
consumers who purchased a self-cleaning oven that turned out to be non-selfcleaning, and, furthermore, Mr. Weir's approach calculates the average of what
consumers experienced regarding the self-cleaning attribute. Id. at 26228–29.

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Defendant objects to three of Mr. Sharkey's conclusions about Mr. Weir's
opinions.2 First, it objects to the conclusion that Mr. Weir's conjoint analysis
sufficiently considered supply-side factors. ECF 150, PgID 26452. Second, Defendant
objects to the conclusion that it is not the Court's role currently to evaluate whether
Mr. Weir's hedonic regression analysis can isolate the premium associated with the
ovens' cleaning performance. Id. Third, it objects to the conclusion that no individual
damages inquiry is required because Plaintiffs pursue a benefit-of-the-bargain theory
of recovery. Id.
a. Defendant's Objection Regarding Mr. Weir's Conjoint Analysis
Defendant argues that Mr. Weir's conjoint analysis failed to take into account
supply-side considerations such as the "effect that marketplace competition among
manufacturers and retailers had on the price retailers might have charged for
'AquaLift partial-clean' ovens, regardless of what consumers might have been willing
to pay for them." ECF 150, PgID 26458. Defendant argues that Mr. Weir's use of real
world price points does not reflect the interplay of supply and demand "absent the
alleged self-cleaning misrepresentation." Id. at 26459.
Prices are set by supply and demand. See Apple, Inc. v. Samsung Elecs. Co.,
No. 11-CV-01846-LHK, 2014 WL 976898, at *11 (N.D. Cal. Mar. 6, 2014). To be
reliable, then, Plaintiffs' analysis of prices must cover both supply-side and demandside considerations.

The Court addresses Defendant's objections in the order the Report covered the
underlying portions of Mr. Weir's opinions.

2

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Other courts have addressed the extent to which conjoint analyses must
account for supply-side factors in order to be admissible.
[C]onjoint analyses can adequately account for supply-side
factors . . . when (1) the prices used in the surveys
underlying the analyses reflect the actual market prices
that prevailed during the class period; and (2) the
quantities used (or assumed) in the statistical calculations
reflect the actual quantities of products sold during the
class period.
Hadley v. Kellogg Sales Co., 324 F.Supp.3d 1084, 1105 (N.D. Cal. 2018). For example,
courts have found that conjoint analyses sufficiently took into consideration supplyside considerations when the survey used actual market prices and took into account
the fixed supply of the products. See, e.g., id. at 1105–06; Fitzhenry-Russell v. Dr.
Pepper Snapple Grp., Inc., 326 F.R.D. 592, 605 (N.D. Cal. 2018); In re Dial Complete
Mktg. & Sales Practices Litig., 320 F.R.D. 326, 334–36 (D.N.H. 2017); In re Lenovo
Adware Litig., No. 15-md-02624-RMW, 2016 WL 6277245, at *21 (N.D. Cal. Oct. 27,
2016).
Here, Mr. Weir's conjoint analysis sufficiently considered supply-side
considerations. He analyzed the prices for self-cleaning ovens and partially selfcleaning ovens and the price premiums between the two. Allegedly, Defendant
supplied partially self-cleaning ovens instead of fully self-cleaning ovens. The price
premium for partially self-cleaning ovens captured the differential for partially
cleaning ovens as allegedly supplied. (And, as Mr. Sharkey correctly noted, a price
premium for a partially cleaning oven is different from a price premium for a noncleaning oven, which Defendant is not alleged to have supplied.) Consumers allegedly

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demanded fully self-cleaning ovens. Mr. Weir's conjoint analysis thus acknowledged
what was allegedly actually supplied and what was allegedly actually demanded.
And Mr. Weir's conjoint analysis assumed fixed supply. He used actual prices
advertised and actual sales price data in selecting a market-based product price
point. See ECF 87-9, PgID 10903 (under seal). The analysis applied to past sales:
"[T]his price premium applies to the sale of every Whirlpool branded oven model with
AquaLift that was purchased by each Class member." Id. at 10905 (under seal). Mr.
Weir's analysis thus assumes the fixed supply of products. His conjoint analysis
therefore sufficiently considered supply-side factors to be reliable.
Mr. Weir's exclusion of additional supply-side factors goes to the weight of his
opinion, not its admissibility. The Court therefore overrules Defendant's objection
regarding supply-side considerations in Mr. Weir's conjoint analysis.
b. Defendant's Objection Regarding Mr. Weir's Hedonic Regression Analysis
Defendant argues that Mr. Weir's hedonic regression analysis could not isolate
the impact of only AquaLift ovens' disputed cleaning performance on customer
preference. ECF 150, PgID 26456. Defendant points out that AquaLift ovens also
include cleaning benefits and non-cleaning benefits, such as a larger window and
cavity and improved cooktop performance. Id. Defendant therefore objects to Mr.
Sharkey's statement that it is not the Court's role to determine facts related to which
alleged features an AquaLift Oven may contain or which alleged features are
important to consumers. Id. at 26457. Citing Comcast Corp. v. Behrend, 569 U.S. 27,

12

35 (2013), Defendant argues that the Court must determine whether the model aligns
with Plaintiffs' theory of liability. Id. at 26457–58.
Comcast requires that a class-action damages model must be tied to the
plaintiffs' theory of liability, or else "it cannot possibly establish that damages are
susceptible of measurement across entire class for purposes of Rule 23(b)(3)." 569 U.S.
at 35. Defendant's argument concerning Comcast therefore does not go to
admissibility—it goes to class certification. "Admissibility turns on whether [the
expert]'s methodology is sufficiently reliable; whether it satisfies Comcast and shows
that a class should be certified is another question altogether[.]" In re ConAgra Foods,
Inc., 90 F. Supp. 3d 919, 946 (C.D. Cal. 2015).3 The Comcast standard therefore does
not govern admissibility.
Rule 702 and Daubert govern admissibility. A preponderance of the evidence
shows that Mr. Weir's hedonic regression analysis is verifiable and comports with
established scientific principles. Defendant does not dispute that hedonic regression
is a valid statistical tool. And the analysis is relevant to the issues in the case, as it
attempts to identify a price premium associated with the self-cleaning label at issue.

ConAgra involved allegations that ConAgra's "100% Natural" label on Wesson Oils
caused putative class members to believe the products contained no genetically
modified organisms or GMO ingredients. There, the expert's hedonic regression
analysis focused only on the price premium attributable to the "100% Natural" label.
90 F. Supp. 3d at 1024. The District Court for the Central District of California found
the expert's hedonic regression analysis admissible. Id. at 948. But the analysis did
not satisfy Comcast because "it does not isolate the price premium attributable to
consumers' belief that ConAgra's products did not contain GMOs." Id. at 1025.
3

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The alleged deficiencies that Defendant identifies in Mr. Weir's hedonic regression
analysis—namely, the failure to consider non-cleaning benefits of AquaLift Ovens—
goes to the strength of his opinion, not its reliability. See ConAgra, 90 F. Supp. 3d at
946; e.g., Singleton v. Fifth Generation, Inc., 5:15-CV-474 (BKS/TWD), 2017 WL
5001444, at *7 (N.D.N.Y. Sept. 27, 2017) (finding expert's hedonic regression analysis
admissible); In re NJOY, Inc. Consumer Class Action Litig., CV 14–428–JFW (JEMx),
2016 WL 787415, at *4 (C.D. Cal. Feb. 2, 2016) (finding expert's hedonic regression
analysis admissible).4 The Court therefore overrules Defendant's objection regarding
Mr. Weir's hedonic regression analysis.
c. Defendant's Objection to Mr. Sharkey's Statement about Whether Mr. Weir's
Fixed-Percentage Price Premium Approach Needed to Undertake Highly
Individualized Inquiry
Defendant next objects to Mr. Sharkey's conclusion that an individual damages
inquiry is not required at the admissibility stage because Plaintiffs pursue a benefitof-the-bargain theory of recovery. ECF 150, PgID 26453. Defendant concedes that Mr.
Sharkey's finding—that Mr. Weir's fixed-percentage price premium approach was
relevant to prove Plaintiffs' benefit-of-the-bargain theory—was sufficient to deny
Defendant's motion under Rule 702. Id. at 26454. Defendant instead takes issue with
Mr. Sharkey's observation of Mr. Weir's statement that "no individual inquiry is
necessary" under a benefit-of-the-bargain theory. Id. (citing ECF 142, PgID 26229).

In each of those cases, parties attacked the expert's hedonic regression analysis for
failing to take into account particular factors, but those arguments did not go to
admissibility. The arguments were addressed later in the court's Comcast analysis
for class certification.
4

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Its reason for objection is that Mr. Sharkey's statement is "wrong as a matter of class
certification law." Id. at 26455. Defendant argues that several individualized facts
are necessary for the Court's Rule 23 analysis.5 Defendant argues that the following
factors are required for the Court's Rule 23 analysis: "whether the putative class
members'

purchase

decisions

were

related

to

the

AquaLift

self-cleaning

representation," "their expectations about AquaLift's cleaning performance," and
"their level of satisfaction with AquaLift." Id. at 26455.
Defendant's objection takes Mr. Sharkey's statement out of context. As
Defendant recognizes, the Court appointed Mr. Sharkey to address the admissibility
of expert opinions. Mr. Sharkey was observing Plaintiffs' characterization of their
damages theory for the purposes of determining whether Mr. Weir's analysis was
relevant and reliable enough to be admissible. Class certification analysis is separate
from admissibility analysis. See, e.g., ConAgra, 90 F. Supp. 3d at 946. The lack of
individualized inquiry speaks to the weight of Mr. Weir's opinion—which the Court
will assess in its Rule 23 analysis—but not its admissibility. Mr. Weir's fixedpercentage price premium approach is sufficiently relevant and reliable to be
admissible. The Court therefore overrules Defendant's objection regarding Mr.
Sharkey's statement about individualized inquiry.

Defendant also notes that by being tied to a benefit-of-the-bargain theory, Mr. Weir's
model "fails to measure available damages for Plaintiffs' unjust enrichment claims,
and Plaintiff Oliarny's and Plaintiff Simmons's claims under the Idaho Consumer
Protection Act and New Mexico Unfair Practices Act, respectively." Id. at 26454.
5

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II.

Plaintiffs' Motion to Strike Dr. Simonson's Opinion
Plaintiffs move to exclude Dr. Simonson's testimony for eight reasons. First,

they argue that Dr. Simonson is not qualified to render opinions about self-cleaning
functionality or consumer expectations. ECF 110, PgID 21155. Second, they assert
that Dr. Simonson's Home Depot advertisement does not replicate marketplace
conditions because he altered the advertisement and failed to include in-store or
point-of-purchase advertising, such as in-store placard or marketing material. Id. at
21157–60. Third, they maintain that the survey confused respondents as to which
self-cleaning process—i.e., pyrolytic or otherwise—they needed to address. Id. at
21161. Fourth, they challenge Dr. Simonson's acceptance and reliance on Defendant's
position that AquaLift could not be isolated from unrelated features, such as aesthetic
and appearance characteristics. Id. at 21164. Fifth, they take issue with the survey
responses' coding, which commingled and subsumed coding categories and created
unrelated groupings. Id. at 21167. Sixth, Plaintiffs criticize the survey for not
accounting for information known to Defendant, such as consumer expectations of
how oven cycles work and perform. Id. at 21172–73. Seventh, they challenge Dr.
Simonson's questions for being open-ended and leading to non-exhaustive responses.
Id. at 21174. And eighth, they dispute Dr. Simonson's "What is pyrolytic?" question,
demanding that it should really be "What is self-clean?" because he did not provide
respondents with the meaning of "pyrolytic" or any context that associated "pyrolytic
with self-clean." Id. at 21175–76.

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Broadly, Plaintiffs' arguments fall into three categories: (1) arguing that Dr.
Simonson is not properly qualified; (2) attacking the reliability of his consumer
survey; and (3) criticizing the processing of the data from the survey. See ECF 142,
PgID 26230.
Plaintiffs argue that Simonson is not properly qualified to provide his opinions
about consumers' beliefs about ovens because he needs to have expertise in consumer
behavior and consumer research and specialized knowledge in the technical operation
of the ovens. ECF 110, PgID 21155–56. Mr. Sharkey explained that the argument
was unpersuasive, because Dr. Simonson is a professor of marketing who has
performed thousands of consumer surveys and is thus qualified to opine on consumer
surveys and market research. ECF 142, PgID 26231–32. He further concluded that
Dr. Simonson was qualified to analyze survey techniques. Id. at 26232. Finally, Mr.
Sharkey observed that Defendant presented Dr. Simonson as a survey and marketing
expert only, not an oven expert, so technical oven expertise was not necessary. Id.
Next, Plaintiffs argue that Dr. Simonson's survey data was unreliable because
the mocked-up advertisement deviated from marketplace reality. Mr. Sharkey
explained, however, that Simonson's survey sufficiently approximated marketplace
reality and was therefore reliable. ECF 142, PgID 26234; Wells Fargo & Co. v.
WhenU.com, Inc., 293 F. Supp. 2d 734, 766 (E.D. Mich. 2003). Mr. Sharkey noted that
the rest of Plaintiffs' criticisms—concerning Dr. Simonson's survey questions and
data—went to the weight and not the admissibility of Dr. Simonson's conclusions.
ECF 142, PgID 26233.

17

Plaintiffs attack the processing of the survey data, which grouped or
categorized overlapping responses. They argue that Dr. Simonson's results are
unreliable because of the improper grouping of consumer responses. Mr. Sharkey
explained that these arguments went to the weight of the opinions but not their
admissibility. He emphasized that Defendant provided Plaintiffs with the individual
survey responses,6 so that Plaintiffs can test the coding to challenge Dr. Simonson's
conclusions or to re-categorize the results. Id. at 26235. And Mr. Sharkey
recommended that the Court deny Plaintiffs' motion to strike Dr. Simonson's
opinions. Id.
Plaintiffs object to Mr. Sharkey's Report for several reasons. First, they argue
that the Court should strike Dr. Simonson's conclusions about consumer
expectations—i.e., whether consumer expectations about self-cleaning capabilities
are realistic. ECF 149, PgID 26305. Second, they criticize the Report for not
addressing Dr. Simonson's assumption that AquaLift's self-cleaning feature can be
isolated for the price premium damages analysis. Id. at 26307. Third, they challenge
the Report's conclusions about the mocked-up Home Depot advertisement and Dr.
Simonson's testing of "pyrolytic self-clean" instead of "self-clean." Id. at 26308.
a. Plaintiffs' Objection Regarding Dr. Simonson's Conclusions About
Consumer Expectations
Plaintiffs argue that Dr. Simonson was not qualified to conclude that
consumers had unrealistic or inaccurate perceptions of self-cleaning effectiveness

The verbatim responses are not located on the docket. See ECF 91-22 (not containing
Exhibit J). Plaintiffs possess them, however, as evidenced by their sampling of the
verbatim responses. See ECF 110-4.

6

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because he does not have a technical background and did not conduct any technical
tests about the ovens' self-cleaning ability. Id. at 26305. They criticize Dr. Simonson
for relying on too few documents in determining that there was a discrepancy in
consumer expectations of ovens' self-cleaning effectiveness.
Dr. Simonson has extensive expertise in consumer behavior and consumer
research. See ECF 91-22, PgID 11644, 11647 (under seal). He is therefore qualified
to measure and observe consumers' perceptions and expectations about the
effectiveness of ovens' self-cleaning feature. Plaintiffs are therefore arguing that he
cannot opine on any difference or discrepancy between consumer expectations and
reality because he did not conduct technical tests on the ovens to determine a
realistic baseline.
But, in forming his opinion, Dr. Simonson not only reviewed another
manufacturer's manual for its pyrolytic self-cleaning oven but also studied
Defendant's documents detailing the process of cleaning an AquaLift oven. See ECF
91-22, PgID 11713 ("Range Care" for AquaLift oven) (under seal); id. at 11714 ("Oven
Cleaning Quick Reference Guide" for AquaLift oven) (under seal)7; id. at 11966–67
("Care and Maintenance" for another manufacturer's oven) (under seal). Dr.

The AquaLift "Range Care" sheet instructs the user to "Remove the residual water
and loosened soils with a sponge or cloth immediately after the Clean cycle is
complete." ECF 91-22, PgID 11713 (under seal). It provides further manual
instructions "if any soils remain," and recommends running "an additional Clean
cycle for stubborn soils." Id. (under seal). Similarly, the "Oven Cleaning Quick
Reference Guide" recommended removing soils with a sponge or soft dry cloth after
the cycle is complete and removing remaining soils with a "non-scratch scrubbing
sponge or plastic scraper." Id. at 11714 (under seal).
7

19

Simonson remarked that the documents indicated that significant user involvement
is required to run a self-cleaning cycle effectively. Id. at 11710 (under seal). According
to his survey, however, many consumers instead believed that the ovens required no
or minimal involvement. Id. (under seal). Dr. Simonson thus based his opinions upon
sufficient facts and data—his survey results and Defendant's product user guides and
instructions. The documents are sufficiently reliable and relevant to his opinions
about consumer expectations. His opinions about a discrepancy in consumer
expectations of ovens' self-cleaning effectiveness are therefore admissible. The Court
will overrule Plaintiffs' objection.
b. Plaintiffs' Objection Regarding Dr. Simonson's Assumption that AquaLift
Self-Clean is Not a Standalone Product Feature
Plaintiffs argue that Dr. Simonson failed to consider evidence that AquaLift
self-clean is an isolated product feature. ECF 149, PgID 26307. They criticize him for
relying on the deposition of Defendant's general manager and a small subset of
documents. Id. at 26308.
Dr. Simonson challenged Mr. Weir for treating AquaLift self-clean as an
isolated product feature. Dr. Simonson noted,
[T]he AquaLift feature was offered on specific models that
tended to have a higher-end feature set and which also
were associated with distinctive aesthetic/appearance
characteristics . . . (e.g., a larger window in the oven door
and a larger cooking cavity compared to other models with
a pyrolytic self-cleaning feature that were sold before and
during the time when the subject ovens were introduced).
ECF 91-22, PgID 11686–87 (under seal). Dr. Simonson based this statement on
deposition testimony and pertinent product-related documents. See id. at 11687,

20

11731–11737 (under seal). Dr. Simonson's assumption, then, is rooted in sufficient
facts and data to be reliable. See Fed. R. Evid. 702(b). Admissibility of Dr. Simonson's
opinion does not turn on whether the AquaLift self-clean feature is actually isolatable
as an economic matter. The Court will overrule Plaintiffs' objection.
c. Plaintiffs' Objection Regarding Dr. Simonson's Use of a Modified Home
Depot Advertisement and Dr. Simonson's Survey of "Pyrolytic Self-Clean
Technology" Instead of "Self-Clean"
Plaintiffs renew their arguments that Dr. Simonson's opinions are unreliable
because his survey used a modified Home Depot advertisement and because it asked
respondents the meaning of "pyrolytic self-clean" instead of "self-clean" technology.
First, Plaintiffs argue that the modification of the advertisement—which
added "AquaLift" before "self-clean"—changed the prominence of the terms in the
advertisement. ECF 149, PgID 26309. They aver that the modifications misled
respondents to believe they were viewing a real advertisement—because it was
represented as a real advertisement—and confused respondents as to the meaning
of "self-clean." Id. at 26310.
Dr. Simonson's modification of the advertisement was minor and was not so
removed from reality as to render his opinions unreliable. Dr. Simonson left most of
the advertisement unchanged. See ECF 122, PgID 22946. For example, Dr.
Simonson's mocked-up advertisement included actual price information, oven
dimensions, oven pictures, and several bulleted oven features—of which AquaLift
was only one. See id. at 22944–45. Plaintiffs can plausibly attack Dr. Simonson's
survey design for not utilizing an original advertisement in addition to the mockedup and control advertisements. But the criticisms Plaintiffs raise go to the weight of
21

his opinion and not its admissibility. Dr. Simonson's modifications are not so removed
from marketplace reality as to render his opinions from the survey inadmissible. See
Wells Fargo, 293 F. Supp. 2d at 766.8
Second, Plaintiff's argue that Dr. Simonson's testing of the meaning of
"pyrolytic self-cleaning" did not capture consumers' understanding of "self-cleaning,"
because testing the meaning of "pyrolytic self-cleaning" (1) was irrelevant to the case
or Plaintiffs' allegations and (2) confused respondents. ECF 149, PgID 26312. They
argue that he should have provided context for the association between "pyrolytic"
and "self-cleaning." ECF 110, PgID 21176.
Testing the meaning of "pyrolytic self-cleaning" is not irrelevant to the case or
Plaintiffs' allegations. Pyrolytic self-cleaning is a more traditional form of selfcleaning that is not present in AquaLift ovens.9 See ECF 91-22, PgID 11649 (under
seal). Dr. Simonson stated that he tested for "pyrolytic self-cleaning" as a control. Id.
(under seal). He explained, "[I]f there is evidence that ovens that offer a traditional
self-cleaning feature—'pyrolytic self-cleaning'—are similarly misunderstood, then we
can attribute these misperceptions to consumers' limited understanding or

Furthermore, the Court is not convinced by Plaintiffs' concern "with the fact that
the survey specifically referred to the advertising shown to respondents as real or as
it appears on the retailer web site." ECF 149, PgID 26310; see also ECF 110, PgID
21157. The control advertisement would have represented the same thing. But the
control advertisement was modified, too—as it necessarily needed to be in order to
serve as a control. Plaintiffs do not explain how a survey could have used a real
advertisement while also providing a control advertisement.
8

The term "pyrolytic self-cleaning" therefore necessarily excludes AquaLift selfcleaning, whereas the term "self-cleaning" can encompass both pyrolytic and
AquaLift self-cleaning.
9

22

misperception of what the term 'self-cleaning' entails." Id. at 11655 (under seal). Dr.
Simonson found that consumers had unrealistic expectations of self-cleaning
features. Id. at 11715 (under seal). Testing whether consumers misunderstood
"pyrolytic self-cleaning" was therefore relevant to whether consumers misperceived
the AquaLift self-cleaning feature specifically or self-cleaning features generally.
And to the extent that Plaintiffs argue that respondents do not know what
"pyrolytic" meant or were confused by it, the confusion could equally be shared by
actual consumers. Thus, the lack of definition of "pyrolytic" does not render Dr.
Simonson's survey conclusions unreliable. Plaintiffs can plausibly criticize Dr.
Simonson, for example, for not presenting one group of respondents with the simple
"self-cleaning" term instead of "pyrolytic self-cleaning," but these methodological
arguments go to the weight of his opinion and not its admissibility.
The Court therefore overrules Plaintiffs' objections to Mr. Sharkey's
conclusions regarding Dr. Simonson's opinions. It will deny Plaintiffs' motion to strike
the opinions of Dr. Simonson.
III.

Plaintiffs' Motion to Strike Dr. Ugone's Opinions
Plaintiffs move to strike Dr. Ugone's opinions on six grounds under Federal

Rule of Evidence 702 and Daubert. First, they maintain that Dr. Ugone is predisposed
against classwide damages or a common proof approach. ECF 111, PgID 21688.
Second, they argue that Dr. Ugone failed to conduct his own conjoint survey and is
not qualified to do so. Id. at 21690–91. Third, they point to Dr. Ugone's unfamiliarity
with Sawtooth Software, which Mr. Weir employed. Id. at 21693. Fourth, they

23

challenge Dr. Ugone's testimony that the AquaLift self-cleaning product feature was
not isolatable from other enhancements. Id. at 21695. Fifth, they criticize Dr. Ugone
for not performing independent conjoint or hedonic regression analyses. Id. at 21700.
And sixth, they ask the Court to exclude as a legal conclusion Dr. Ugone's testimony
that there is no common evidence to support class certification. Id. at 21702.
Mr. Sharkey categorized Plaintiffs' arguments into two groups: (1) those
attacking Dr. Ugone for his biases, and (2) those challenging Dr. Ugone's
qualifications to provide a rebuttal opinion to a conjoint analysis or hedonic
regression damages calculation. ECF 142, PgID 26236. Mr. Sharkey recommended
denying Plaintiffs' motion. He explained that any predisposition against classwide
damages goes only to the weight, and not the admissibility, of the expert's opinion.
Id. at 26236–37. He also noted that Dr. Ugone's education and experience in
economics and his critical analysis of Mr. Weir's report demonstrated the requisite
amount of specialized knowledge. Id. at 26237. Finally, Mr. Sharkey recommended
that Dr. Ugone did not need to conduct his own conjoint analysis or hedonic regression
for his criticism of Mr. Weir's analysis to be admissible. Id.
Plaintiffs raise four objections to Mr. Sharkey's recommendations regarding
Dr. Ugone's testimony. First, they contest Dr. Ugone's assumption that the AquaLift
feature cannot be isolated from other oven enhancements. ECF 149, PgID 26297.
Second, they renew their request for the Court to strike as legal conclusions Dr.
Ugone's position that individualized inquiry was necessary. Id. at 26299. Third, they
challenge Dr. Ugone's "unrivaled bias against classwide damages," which they aver

24

the Report understated. Id. at 26300. And fourth, they criticize Dr. Ugone's ability or
qualifications to perform or critique a conjoint analysis. Id. at 26303.
a. Plaintiffs' Objection Regarding Dr. Ugone's Opinion on the Isolatability of
the AquaLift Feature
Plaintiffs object that the Report did not address their arguments regarding Dr.
Ugone's conclusion that the AquaLift feature was not isolatable. ECF 149, PgID
26297.
The Court is not persuaded by Plaintiffs' arguments that attack Dr. Ugone for
ignoring Defendant's advertisements which suggest that AquaLift was a standalone
feature. See ECF 111, PgID 21696–98 (excerpts of Defendant's product information
pages). Dr. Ugone did not opine that AquaLift and other benefits were never
marketed together; instead, he opined that they were positively correlated and had a
positive impact on oven prices. See ECF 121, PgID 22385–86; ECF 91-32, PgID
12247–49 (under seal). Dr. Ugone concluded that Mr. Weir's "coefficient on AquaLift
captured the additional value attributable to the cleaning features and the additional
value attributable to the non-cleaning features (for which Named Plaintiffs are not
claiming damages)." ECF 91-32, PgID 12249 (under seal). The existence of webpages
marketing AquaLift and other benefits together does not render Dr. Ugone's
conclusion unreliable.
To the extent Plaintiffs argue that Dr. Ugone relied on too narrow a set of
documents in assuming that the AquaLift feature was not isolatable, the argument
is unconvincing. Dr. Ugone observed that AquaLift ovens had features outside of selfcleaning, such as larger capacities, a smooth door interior, larger windows, a better

25

cooktop burner layout, and the ability to use the stovetop during the cleaning cycle.
Id. at 12247 (under seal). In making the observations about the coexistence of
AquaLift and other benefits, Dr. Ugone relied upon deposition testimony of
Defendant's employees and documentary evidence. Id. at 12246–48 (under seal). He
also relied upon consumer insight and survey documents identifying key purchase
drivers or factors influencing price. Id. at 12247–48; ECF 91-34, PgID 12304–08
(under seal). Dr. Ugone relied upon sufficient facts and data in concluding that Mr.
Weir failed to isolate AquaLift from other benefits. His opinion is therefore
admissible.
b. Plaintiffs' Objection Regarding Dr. Ugone's Conclusion that Individual
Inquiry is Necessary
Plaintiffs object that the Report did not explicitly analyze their argument that
Dr. Ugone's conclusion that individualized inquiry was needed should be stricken as
a legal conclusion. ECF 149, PgID 26299. They take issue with Dr. Ugone's conclusion
that the individual inquiries—such as consumer expectations, purchase drivers, and
consumers' satisfaction with AquaLift's cleaning ability—are needed to quantify the
consumers' injuries. ECF 111, PgID 21703.
"[A] witness may not testify to a legal conclusion." Hyland v. HomeServices of
Am., Inc., 771 F.3d 310, 322 (6th Cir. 2014) (citation omitted). But "[a]n opinion is not
objectionable just because it embraces an ultimate issue." Fed. R. Evid. 704(a). An
expert testifying about factual issues may state opinions "that suggest the answer to
the ultimate issue[.]" Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir. 1994).

26

Dr. Ugone made an economic conclusion, not a legal conclusion, about whether
individualized inquiry was necessary. Mr. Weir had calculated an average price
premium across the putative class. Dr. Ugone criticized Mr. Weir for assuming that
all individuals in the group experienced the effect captured by the average. He opined
that Mr. Weir's calculated average did not account for real economic variations among
individual consumers. ECF 91-32, PgID 12225 (under seal). Dr. Ugone's position on
whether individualized inquiry was necessary thus spoke to "the quantum of [the]
injury" and the "economic nexus" between the claimed harm and the alleged
misrepresentation. ECF 91-34, PgID 12304–05 (under seal). Dr. Ugone's expert
opinion was economic in nature and did not reach the ultimate legal conclusion. The
Court still must determine, as part of its Rule 23 analysis, whether individual
inquiries are necessary for class certification as a legal matter. The Court will not
strike Dr. Ugone's opinion that individualized inquiry is needed.
c. Plaintiffs' Objection Regarding Dr. Ugone's Bias
Plaintiffs object to Mr. Sharkey's conclusion that Dr. Ugone's alleged bias was
not disqualifying, arguing that the Report understated Dr. Ugone's bias. ECF 149,
PgID 26300.
Whether Dr. Ugone is unlikely to embrace classwide damages does not render
his testimony inadmissible. Allegations of an expert's bias go to credibility, not
admissibility. See Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1332 (11th Cir. 2014)
(citing United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 2001)); DiCarlo
v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000)); Cmtys. for Equity v. Mich.

27

High Sch. Athletic Ass'n, No. 1:98-cv-479, 2007 WL 5830967, at *3 (W.D. Mich. May
2, 2007). Dr. Ugone did not unquestioningly oppose classwide damages. Instead, Dr.
Ugone's response to Mr. Weir's testimony applied his educated understanding of
economic principles to the facts and theory of the case. Dr. Ugone has an extensive
background in economics, so he has sufficient specialized knowledge to assist the
finders of fact in deciding the issues of the case. Kumho Tire, 526 U.S. at 148–49.
Plaintiffs' attacks on Dr. Ugone for his predisposition against classwide damages go
to the weight of his opinions. The Court will overrule their objection.
d. Plaintiffs' Objections Regarding Absence of Conjoint Analysis by Dr. Ugone
Plaintiffs object that Dr. Ugone could not testify as to his expertise in surveytaking and market simulation and therefore could not opine pertaining to conjoint
analysis. ECF 149, PgID 26303.
But Dr. Ugone's response to Mr. Weir's price premium calculation presented
essentially economic criticisms. Dr. Ugone is qualified to testify about economics, so
his economic critiques of Mr. Weir's opinions are admissible. For example, Dr. Ugone
criticized Mr. Weir's methodology for failing to account fully for supply-side factors,
such as including competitors' products, and to predict market prices. ECF 91-34,
PgID 12293, 12298 (under seal).
To the extent Dr. Ugone attacked the design or administration of Mr. Weir's
conjoint survey, he did not do so from a consumer survey design perspective. Instead,
he questioned the economic validity of Mr. Weir's survey. For example, Dr. Ugone
argued that Mr. Weir's survey omitted attributes that were relevant to consumers

28

purchasing ovens and predictive of the prices consumers were willing to pay. ECF 9133, PgID 12272–75 (under seal). Dr. Ugone also argued that the survey's choice sets—
including prices—did not represent realistic product choices on the market. Id. at
12279 (under seal). Those criticisms are of economic matters.
And although Dr. Ugone may not be an expert in using Sawtooth, he raised
centrally economic concerns with Mr. Weir's use of it. For example, Dr. Ugone noted
that Sawtooth's market simulation "assumes an 'objective of maintaining' a constant
market share in a competitive market setting" and criticized it for not yielding values
representing "profit-maximizing prices and output levels." ECF 91-34, PgID at
12295–96. Dr. Ugone relied upon the software documentation to conclude that Mr.
Weir measured willingness-to-pay and not price premium and that Mr. Weir
interpreted his market simulation as market equilibrium. Id. at 12300–03. Dr. Ugone
thus provided fundamentally economic observations about Mr. Weir's conclusions
and methodology. Dr. Ugone's lack of direct experience in conducting consumer
surveys or utilizing Sawtooth software goes to the weight of his opinions and not their
admissibility. The Court will overrule Plaintiffs' objection and deny their motion to
strike Dr. Ugone's opinions.
IV.

Plaintiffs' Motion to Strike Dr. Rauschenberger's Opinions
Plaintiffs move to strike eight of Dr. Rauschenberger's nine conclusions—all

except for his eighth conclusion that Defendant's user instructions were welldesigned and easy to follow. See ECF 112, PgID 21964. Plaintiffs' motion also
criticized human-factors evidence as being highly subjective. Id. at 21949. But they

29

conceded in their reply brief that they did not intend to attack the entire humanfactors field. ECF 137, PgID 26041–42 (under seal).
Plaintiffs argue that Dr. Rauschenberger's first conclusion—regarding the
complexity of the appliance purchase decisions—is not relevant to the allegations of
their complaint or their motion for class certification. ECF 112, PgID 21951. They
challenge his second conclusion—about individual expectations of "clean"—for being
a legal conclusion, for not responding to Plaintiffs' allegations, and for ignoring
documentary evidence. Id. at 21952–93. Plaintiffs argue that Dr. Rauschenberger is
not qualified to issue his third conclusion comparing cleaning performance among
AquaLift, standard, and pyrolytic ovens. Id. at 21954. They criticize his fourth
conclusion—regarding consumers' unrealistic expectations of self-cleaning oven
performance—for not assisting the trier of fact, for ignoring evidence (such as
Defendant's advertising and marketing), and for Dr. Rauschenberger's lack of
expertise in survey design. Id. at 21956–57. Plaintiffs argue that his fifth
conclusion—that consumers had various expectations about AquaLift technology—is
irrelevant, outside of his expertise, and contrary to evidence (such as Plaintiffs'
testimony). Id. at 21958–59. They challenge his sixth conclusion—observing the
tidiness of Plaintiffs' homes and attributing Plaintiffs' dissatisfaction with their
ovens to misuse—for irrelevance, failing to reach actual conclusions, lack of
objectiveness, and lack of recognized methodology. Id. at 21959–63. They argue that
his seventh conclusion—that historical oven models require manual interaction—was
not relevant to Plaintiffs' allegations or testimony. Id. at 21963. And they criticize his

30

ninth conclusion—asserting that buyers of AquaLift ovens are not uniformly
dissatisfied with the ovens—for relying only on Defendant-provided documents and
for being unreliable, as Dr. Rauschenberger had not independently tested consumers'
satisfaction levels. Id. at 21964–65.
Mr. Sharkey recommended that the Court deny Plaintiffs' motion to strike Dr.
Rauschenberger's opinions. ECF 142, PgID 26244.
He determined that Dr. Rauschenberger's first and second conclusions were
sufficiently relevant. The diversity of factors that drive appliance purchases and
consumer thinking could be relevant to Plaintiffs' consumer-protection and warranty
claims, their benefit-of-the-bargain element of their warranty claims, and state-ofmind element of their unjust-enrichment claims, and classwide damages. Id. at
26239–40.
Mr. Sharkey found that Dr. Rauschenberger was sufficiently qualified to issue
his third conclusion about cleaning times for comparable ovens, because his testing
and the conclusion were relevant to his training and experience in the human-factors
field of psychology. Id. at 26241–42. As Plaintiffs recognize, Dr. Rauschenberger
testified that he performed his side-by-side comparison test to determine what a
consumer would do with different ovens under "naturalistic circumstances." ECF 112,
PgID 21954 (citing ECF 112-2, PgID 21975–76 (Dr. Rauschenberger's deposition
testimony)).
Mr. Sharkey concluded that Dr. Rauschenberger's fourth and fifth conclusions
were reliable and relevant. ECF 142, PgID 26240. In opining that consumers had

31

differing expectations of self-cleaning ovens and AquaLift technology, Dr.
Rauschenberger had reviewed publicly available product literature, peer-reviewed
scientific publications, Defendant's internal consumer research, Plaintiffs' deposition
testimony, and product rankings. Id.; see also 91-11, PgID 11295–303 (under seal).
Dr. Rauschenberger applied his background in psychology to these materials to form
his conclusions about human behavior and expectations. ECF 142, PgID 26240–41.
Mr. Sharkey reported that the sixth conclusion—that Plaintiffs' misuse of their
ovens led to their dissatisfaction—was reliable in principles and methodology. Id. at
26243. Dr. Rauschenberger followed an inspection protocol for Plaintiffs' ovens, cited
specific facts from his inspections, and reviewed literature, Plaintiffs' deposition
testimony, and Defendant's instructions on how to use AquaLift. Id.
Mr. Sharkey also found that Dr. Rauschenberger's seventh conclusion—that
historical "self-cleaning" ovens required manual cleaning—was relevant, because the
conclusion could speak to Plaintiffs' damages theory. Id. at 26241.
Finally, Mr. Sharkey concluded that Dr. Rauschenberger's ninth conclusion—
that AquaLift oven purchasers were not uniformly dissatisfied with their ovens—was
sufficiently reliable. Id. at 26244. Dr. Rauschenberger had reviewed call-center data.
Id. Furthermore, reliance by an expert on documents provided by their clients does
not render the opinions unreliable. Id.
Plaintiffs object to the Report by asking the Court to strike Dr.
Rauschenberger's opinions arising from his side-by-side testing of the ovens—
namely, his third conclusion. ECF 149, PgID 26314. Plaintiffs criticize Dr.

32

Rauschenberger's methodology for using Defendant's preferred testing method—the
"stripe test"—instead of a more "objective" and "impartial" testing method—such as
the Consumer Reports "monster mash" test. Id. at 26314–15. They also challenge Dr.
Rauschenberger for not having experience running self-cleaning cycles and for not
seeking expertise and background knowledge on consumers' typical cleaning
methods. Id. at 26315–16. Plaintiffs argue that the Report did not analyze whether
Dr. Rauschenberger's methodology was biased. Id. at 26316.
a. Plaintiffs' Objection Regarding Dr. Rauschenberger's Methodology
Plaintiffs' arguments about Dr. Rauschenberger's use of the stripe test go to
the weight, not the admissibility, of his conclusion. The stripe test is sufficiently
scientifically reliable. It is a "standardized" and "reproducible" method of measuring
the cleaning performance of ovens and "simulate[s] reasonable levels of soiling with
different foodstuffs that the average consumer may . . . encounter when cleaning his
or her oven." ECF 91-11, PgID 11262–63 (under seal). Dr. Rauschenberger used a
technique that is testable and scientifically valid. See Glaser v. Thompson Med. Co.,
32 F.3d 969, 972 (6th Cir. 1994) (citation omitted).
Plaintiffs' concern about the test being Defendant's recommended testing
protocol goes to weight, not admissibility.10 Dr. Rauschenberger even explained why
he did not use the Consumer Reports method. The Consumer Reports method involved
what he considered "extreme test conditions"—"coating the entire oven cavity with

Similarly, Plaintiffs' argument that Dr. Rauschenberger's use of Defendant's
testing protocol is biased goes to the weight of his opinion. See ECF 112, PgID 21955;
ECF 149, PgID 26316.

10

33

an extreme load" of soils. ECF 91-11, PgID 11306 (under seal); see also ECF 112-2,
PgID 21976 (Dr. Rauschenberger's deposition testimony). Even though he did not use
the Consumer Reports method, he did utilize "monster mash" soil material in his
stripe test. ECF 91-11, PgID 11263 (under seal). In any event, Dr. Rauschenberger is
not required to use every available testing method for his conclusions to be
admissible. The Court will overrule Plaintiffs' objection on this ground.
b. Plaintiffs' Objection Regarding Dr. Rauschenberger's Expertise
Plaintiffs' argument that Dr. Rauschenberger lacks sufficient expertise to
render his third conclusion is not convincing. Plaintiffs have already acknowledged
that Dr. Rauschenberger's comparison test was meant to determine what a consumer
would do with different ovens under "naturalistic circumstances." ECF 112, PgID
21954 (citing ECF 112-2, PgID 21975–76 (Dr. Rauschenberger's deposition
testimony)). Furthermore, Dr. Rauschenberger explained how he followed each
machine's documentation on recommended cleaning practices. ECF 91-11, PgID
11260 (under seal). Recommended cleaning practices presumably would inform
consumers cleaning an oven under "naturalistic circumstances." The test—and Dr.
Rauschenberger's third conclusion—is therefore tied to his expertise in humanfactors psychology and is relevant to Dr. Rauschenberger's other conclusions
interpreting Defendant's materials about AquaLift technology.
Dr. Rauschenberger has valid psychological expertise and his testimony can
assist the trier of fact. See Fed. R. Evid. 702. The value of his human-factors
expertise—and asserted lack of cleaning experience—in a cleaning experiment goes

34

to the weight, not the admissibility, of his opinion. The Court will overrule Plaintiffs'
objection and deny Plaintiffs' motion to strike Dr. Rauschenberger's opinions.
ORDER
WHEREFORE, it is hereby ORDERED that Plaintiffs' objections [149] and
Defendant's objections [150] to the discovery master's report and recommendation are
OVERRULED.
IT IS FURTHER ORDERED that Defendant's motion to strike the opinions
of Colin Weir [96] and Plaintiffs' motions to strike the opinions of Itamar Simonson
[110], Keith Ugone [111], and Robert Rauschenberger [112] are DENIED.
SO ORDERED.

Dated: February 28, 2019

s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 28, 2019, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager

35