Dennis Lynch v. TROPICANA PRODUCTS, INC.
OPINION. Signed by Judge William J. Martini on 5/31/17. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
IN RE: TROPICANA ORANGE JUICE
MARKETING AND SALES PRACTICES
Civ. No. 2:11-07382
This Document Relates To:
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiffs bring this class action against Defendant Tropicana Products, Inc.
(“Defendant”), alleging numerous violations of common law and state consumer protection
laws, in connection with Defendant’s sale of orange juice. This matter comes before the
Court on the parties’ motions to exclude the testimony of three proffered expert witnesses
prior to the class certification phase of litigation. There was no oral argument. Fed. R.
Civ. P. 78(b). For the reasons set forth below, the parties’ motions are DENIED.
The named plaintiffs (“Plaintiffs”) are citizens from New Jersey, New York,
California, and Wisconsin, who purchased Defendant’s “not-from-concentrate” orange
juice from December 2005 to the present. See Am. Compl. (“Compl.”) ¶¶ 17–24, ECF No.
32. Defendant is a division of Pepsi Co., Inc., which is a Delaware corporation with its
principal place of business in Purchase, New York. Id. at ¶ 25. The Court assumes the
parties’ familiarity with the claims, facts and procedural history of the case.
On September 16th, 2016, the Court dismissed without prejudice all of the parties’
pending motions before the Court, including three motions to exclude expert testimony,
except for Plaintiff’s motion to compel discovery. See ECF No. 195. On December 19th,
2016, the Court denied Plaintiffs’ motion to compel, thereby providing the parties’ an
opportunity to refile the instant motions. See ECF Nos. 205, 206. Notably, the Court
ordered that all expert challenges be filed prior to Plaintiffs’ motion for class certification.
Accordingly, on January 13, 2017, Defendant moved to exclude the expert
testimony of Dr. Arvind Narayanan. See Mot. to Preclude the Test. of A. Narayanan
(“Narayanan Mot.”), ECF No. 209. On January 18th, 2017, Plaintiffs moved to exclude
the expert testimonies of Dr. Keith Ugone and Dr. Ravi Dhar. See Mot. to Exclude the
Test. of K. Ugone (“Ugone Mot.”), ECF No. 214; Mot. to Strike the Survey of and Exclude
Ops. of R. Dhar (“Dhar Mot.”), ECF No. 217. The parties timely filed oppositions and
reply briefs. See Br. in Opp’n to Def.’s Mot. to Preclude Test. (“Narayanan Opp’n”), ECF
No. 220; Reply to Pls.’ Resp. to Def.’s Mot. to Preclude Test. (“Naryanan Reply”), ECF
No. 224; Br. in Opp’n to Pls.’ Mot. to Strike the Survey of and Exclude Ops. (“Dhar
Opp’n”), ECF No. 227; Br. in Opp’n to Pls.’ Mot. to Exclude Test. (“Ugone Opp’n”), ECF
No. 230; Resp. in Supp. of Pls.’ Mot. to Strike and Exclude (“Dhar Reply”), ECF No. 236;
Resp. in Supp. of Pls.’ Mot. to Exclude (“Ugone Reply”), ECF No. 238.
Federal Rule of Evidence 702 governs the admissibility of expert testimony,
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
Under Rule 702, therefore, expert testimony will be admissible only if it is both relevant
and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). The
proponent of expert evidence must demonstrate its admissibility by a preponderance of the
evidence. Id. at 592 n. 10.
The Supreme Court has held that when determining whether expert testimony is
reliable, courts may consider (1) whether a theory or technique “can be (and has been)
tested;” (2) “whether the theory or technique has been subject to peer review or
publication;” (3) “the known potential rate of error;” and (4) whether there is “general
acceptance” in the methodology in the relevant scientific community. Daubert, 509 U.S.
at 593–94. Importantly, “[t]he factors drawn from Daubert . . . are neither exhaustive nor
applicable in every case.” Pineda v. Ford Motor Co., 520 F.3d 237, 248 (3d Cir. 2008)
(citations and quotations omitted). The Daubert factors apply “not only to testimony based
on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’
knowledge.” See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (citing
Fed. R. Evid. 702).
In serving its “gatekeeper function” and assessing the reliability of an expert’s
methodology, the Court must be mindful that in order to be admissible, an expert’s method
need not be the “best” method or one that is demonstrably correct. “Rather, the test is
whether the ‘particular opinion is based on valid reasoning and reliable methodology.’”
Oddi v. Ford Motor Co., 234 F.3d 136, 145–46 (3d Cir. 2000) (citation omitted). “Rule
702 . . . has a liberal policy of admissibility.” See Kannankeril v. Terminix Int’l, Inc., 128
F.3d 802, 806 (3d Cir. 1997). “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are traditional and appropriate
means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
Daubert applies equally to the class certification phase of a class action as it does
during trial. See In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015)
(“[A] plaintiff cannot rely on challenged expert testimony, when critical to class
certification, to demonstrate conformity with Rule 23 unless the plaintiff also demonstrates,
and the trial court finds, that the expert testimony satisfies the standard set out in
Daubert.”). Critically, however, “[t]he main purpose of Daubert exclusion is to protect
juries from being swayed by dubious [expert] testimony.” See In re Zurn Pex Plumbing
Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). The trial court’s “gatekeeping function”
is, therefore, reduced “‘when the gatekeeper is keeping the gate only for himself.’” See id.
(quoting United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005)); see also
Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010) (noting that the
“usual concerns” of Daubert—i.e., “keeping unreliable expert testimony from the jury”—
are not present during a bench trial). At class certification, the district court serves as the
trier-of-fact and no jury is present. Accordingly, the Court will weigh the parties’ expert
challenges in light of this consideration.
In general, the Court finds that the parties’ motions are essentially premature
arguments for and against class certification. Neither party presents a concerted challenge
to the qualifications of the experts they would have this Court exclude. Instead, they make
various arguments purportedly attacking the reliability and relevance of each expert’s
testimony; however, the Court is well equipped to consider any such deficiencies at class
certification and afford them the appropriate weight in deciding whether Plaintiffs have
met their Rule 23 burden. See Brown, 415 F.3d at 1269. For this reason, the Court will
deny all three motions to exclude the expert testimonies. In the interest of completeness,
the Court will briefly address each motion below.
A. Defendant’s Motion to Exclude Dr. Narayanan
Dr. Narayanan is an Assistant Professor in the Department of Computer Science at
Princeton University who specializes in “privacy, anonymity, and computer security
research.” See Walsh Decl., Ex. 1, Expert Decl. of A. Narayanan ¶¶ 1–2, ECF No. 211.
He submits, and Defendant does not challenge, that he is “a recognized authority in deanonymization, which is a strategy in data mining in which anonymous data is crossreferenced with other sources of data to re-identify the anonymous data source.” Id. at ¶
4. Plaintiffs retained Dr. Narayanan in this case to provide a method in which to verify
claims submitted by purported consumers of Tropicana Pure Premium (“TPP”) using data
collected by retailers at the point of sale from loyalty card programs and member only
clubs. Id. at ¶ 9. Dr. Narayanan proposes a five-step methodology, which includes the
development of a computer software program, to verify whether individual claimants did
in fact purchase TPP during the class period. See id. at ¶¶ 21–34.
Defendant primarily challenges the reliability of Dr. Narayanan’s proposed
verification methodology on the ground that it has never been tested on real point-of-sale
data from any retailer of TPP. See Narayanan Mot. at 6–16. While this may be true,
Defendant does not contest Dr. Narayanan’s ability to perform his proposed methodology
in the event that such data exists. Instead, Defendant focuses on the fact that Dr. Narayanan
has not secured the requisite data and, therefore, does not know if it exists. See id.
Defendant’s arguments are clearly directed at Plaintiffs’ ability to ascertain the class as
required under Rule 23. It is true that Plaintiffs must do more than “merely propose a
method of ascertaining a class without evidentiary support that the method will be
successful” at class certification. See Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir.
2013). But that is a question for certification, not for the admissibility of Dr. Narayanan’s
Defendant also weakly argues that Dr. Narayanan’s proposed methodology does not
“fit” the case—i.e., it is not relevant. See Narayanan Mot. at 16–18. Defendant repeats the
same points about Dr. Narayanan’s assumption that point-of-sale data exists and that he
can properly incorporate it into his methodology. Again, this is an argument against
ascertainability, which the Court will entertain at the proper time. The Court is persuaded
that Dr. Narayanan is qualified and that his proposed methodology would be both reliable
and relevant to class certification, assuming the availability of the requisite data.
Defendant’s motion is, therefore, DENIED.
B. Plaintiffs’ Motion to Exclude Dr. Ugone
Dr. Ugone is an economist who provides economic, financial, and/or damagesrelated consulting services to his clients. Ecklund Decl., Ex. 2, Decl. of K. Ugone (“Ugone
Rep.”) ¶¶ 1, 18, ECF No. 216. He specializes “in the application of economic principles
to complex commercial disputes,” and is “generally retained in cases requiring economic,
financial, and/or damages-related analyses.” Id. at ¶ 19. Defendant retained Dr. Ugone to
perform economic analyses and criticisms of Plaintiffs’ damages model, the expert
opinions of Drs. Weir and Toubia, and the feasibility of Plaintiffs’ proposed method of
identifying putative class members. See id. at ¶ 5.
Plaintiffs first contend that Dr. Ugone is not qualified to offer opinions on Plaintiffs’
proposed methodology of ascertaining putative class members because he is not a computer
scientist and cannot credibly opine on computer databases or rebut Dr. Narayanan’s
opinions. See Ugone Mot. at 5–6. The Court is aware that Dr. Ugone is not a computer
scientist; however, Dr. Ugone has extensive experience in commercial litigation, including
numerous class actions, and he is well equipped to opine on several issues. See Ugone
Rep. at ¶¶ 17-20. The Court is capable of weighing Dr. Ugone’s opinions in light of the
fact that he is not an expert in computers.
Plaintiffs next argue that Dr. Ugone’s testimony should be barred because his
opinions are contrary to law and, therefore, do not “fit” the case. See Ugone Mot. at 6–11.
Dr. Ugone’s primary criticism of Plaintiffs’ damages model is that it fails to account for
individualized factors in the purchasing decisions of potential putative class members. See
Ugone Rep. at ¶¶ 24–40. Plaintiffs contend that the “law is unequivocal; one who makes
a false statement to another is liable.” See Ugone Mot. at 7. The multiple state and
common laws at issue in this case are far from unequivocal and their meanings are clearly
in dispute. See Ugone Opp’n at 11–12. If Plaintiffs prove to be correct, then the Court is
capable of disregarding those portions of Dr. Ugone’s opinions, if any, that contradict the
law; however, any such portions do not negate his economic analyses and criticisms of
Plaintiffs’ damages model, which are squarely within his expertise.
Finally, Plaintiffs argue that Dr. Ugone improperly narrates the evidence and that
his opinions would be unfairly prejudicial to the jury, which warrants exclusion under Rule
403. See Ugone Mot. at 11–13. As noted above, there is no jury present at class
certification. The Court’s “gatekeeping function” is, therefore, less of a concern and these
arguments are easily rejected. See Brown, 415 F.3d at 1269. Accordingly, Plaintiffs’
motion to exclude Dr. Ugone is DENIED.
C. Plaintiffs’ Motion to Exclude Dr. Dhar
Dr. Dhar is a professor at the Yale School of Management with expertise in
“consumer behavior, consumer psychology, branding, marketing management, marketing
strategy, survey methodology and evaluation.” See Ecklund Decl., Ex. 2, Expert Rebuttal
Report of Prof. R. Dhar (“Dhar Rep.”) ¶¶ 1, 4, ECF No. 219. Defendant retained Dr. Dhar
to “evaluate the reasons that putative class members purchase [TPP],” to rebut certain
conclusions reached in the Toubia report, “to opine on whether putative class members
demonstrate a common perception of [TPP],” and to opine on “whether preferences of
putative class members vary.” See Dhar Rep. at ¶¶ 8–10.
A large portion of Dr. Dhar’s report focuses on criticism of Plaintiffs’ expert, Dr.
Olivier Toubia. See id. at ¶¶ 24–40. Dr. Toubia was retained by Plaintiffs to conduct a
survey determining consumers’ perceptions of TPP and estimate the impact of those
preferences when consumers learned that TPP contained added natural flavoring and had
been in storage for more than one month and up to one year. See Ecklund Decl., Ex. 3,
Expert Report of Dr. O. Toubia (“Toubia Rep.”) ¶ 7. According to Dr. Dhar, the Toubia
survey’s use of “leading” questions was problematic because it “provide[d] a specific
understanding of a product attribute that respondents might not ordinarily attend to in the
marketplace,” thereby inflating the percentage of respondents who purported to believe
that TPP does not contain added flavoring or is stored for a certain period of time. See id.
at ¶ 36. As part of his response, Dr. Dhar performed his own survey, incorporating openended questions, as a counterweight to the leading questions used in Dr. Toubia’s survey.
See Dhar Rep. at ¶¶ 41–49.
Plaintiffs first move to strike the Dhar survey on the basis that it is improper rebuttal
evidence, which Dr. Dhar should have produced in an initial expert report. See Dhar Mot.
at 7–11. Defendant counters, in part, by arguing that the Dhar Report is a “responding”
report and, therefore, not held to the same standard as other rebuttal reports. See Dhar
Opp’n at 4–6. Defendant’s argument is ridiculous. Defendant entitled Dr. Dhar’s report
“Expert Rebuttal Report of Professor Ravi Dhar.” It was clearly intended to rebut the
methodology of the Toubia survey and the Court will hold it to the standard of rebuttal
evidence. See Fed. R. Civ. P. 26(a)(2)(C).
Nonetheless, Plaintiffs’ argument also fails. “The admissibility of evidence in
rebuttal is committed to the discretion of the trial judge.” United States v. Chrzanowski,
502 F.2d 573, 576 (3d Cir. 1974). “The proper function and purpose of rebuttal testimony
is to explain, repel, counteract or disprove the evidence of the adverse party.” Id. In the
Third Circuit, there is no “bright-line rule that every opinion by an expert must be
preliminarily stated in [an initial] report, or forever be precluded.” See Hill v. Reederei F.
Laeisz G.M.B.H., Rostock, 435 F.3d 404, 423 (3d Cir. 2006). Thus, Dr. Dhar’s survey is
admissible if it was conducted “to explain, repel, counteract or disprove” Dr. Toubia’s
survey, which the Court finds to be the case. See Chrzanowski, 502 F.2d at 576; Crowley
v. Chait, 322 F. Supp. 2d 530, 550–52 (D.N.J. 2004).
Plaintiffs also argue that Dr. Dhar’s opinions should be excluded because they are
contrary to law and do not “fit” the case. See Dhar Mot. at 11–15. This argument mirrors
Plaintiffs’ last challenge to Dr. Ugone and the Court rejects it for the same reasons. The
Court finds Dr. Dhar’s report and testimony to be reliable and relevant to the issue of class
certification. Accordingly, Plaintiffs’ motion to exclude Dr. Dhar is DENIED.
For the reasons stated above, the parties’ motions to exclude the expert testimonies
of Drs. Narayanan, Ugone and Dhar are DENIED. An appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: May 31, 2017
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