Hart et al v. BHH LLC et al
Filing
161
OPINION & ORDER re: 132 MOTION to Preclude; 130 MOTION to Preclude; 138 MOTION to Preclude: For the foregoing reasons, Plaintiffs' motion seeking to exclude Borth and Whitford's expert testimony (ECF No. 130) is grante d in part and denied in part. Opinions 2, 6, 7, 9, and 12 of the Borth Report, as well as Borth's opinions regarding consumer understanding, are excluded at trial. Plaintiffs' motion seeking to exclude Boedeker's expert testimony (ECF No. 132) is granted in part and denied in part. Boedeker's opinions regarding whether the Products were effective is excluded at trial. Boedeker may, however, discuss Product effectiveness consistent with this Opinion & Order. BHH's motion seeking to exclude Potter's expert testimony (ECF No. 138) is denied. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 130, 132, and 138. (Signed by Judge William H. Pauley, III on 7/19/2018) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOANNE HART and SANDRA BUENO, on
behalf of themselves and all others similarly
situated,
Plaintiffs,
-againstBHH, LLC d/b/a BELL + HOWELL, et al.,
Defendants.
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15cv4804
OPINION & ORDER
WILLIAM H. PAULEY III, Senior United States District Judge:
Joanne Hart and Sandra Bueno (“Plaintiffs”) bring this class-action lawsuit for
fraud, breach of warranty, and violations of the California Legal Remedies Act. Plaintiffs move
to preclude expert testimony from Dr. Paul Borth and Dr. Philip Whitford, repeller-efficacy
experts for Defendants BHH, LLC and Van Hauser, LLC (“BHH”) (ECF No. 130). By separate
motion, BHH moves to preclude expert testimony from Dr. Michael F. Potter, Plaintiffs’
repeller-efficacy expert (ECF No. 138). Finally, Plaintiffs also move to preclude testimony from
Stefan Boedeker, BHH’s rebuttal expert on damages (ECF No. 132). For the following reasons,
Plaintiffs’ motions are granted in part and denied in part, and BHH’s motion is denied.
BACKGROUND
This class-action lawsuit involves ultrasonic pest repellers manufactured and
sold by BHH and purchased by Plaintiffs (the “Products”). Plaintiffs claim the Products are
ineffective and that BHH committed fraud and breached warranties. As such, both parties seek
to introduce expert testimony regarding the Products’ efficacy.
I.
Repeller-Efficacy Experts
While this Court analyzes the arguments in more detail below, it notes that these
Daubert motions read like ships passing in the night. Both parties’ experts opine on whether the
Products were effective for “their stated purpose.” But the parties disagree over that “stated
purpose.” Accordingly, each expert tested “effectiveness” in relation to his own characterization
of the Products’ purpose and came to opposite conclusions.
Plaintiffs posit that the Products are either completely ineffective or, at best,
merely drive pests into cabinets and behind furniture. Thus, they believe the Products failed to
live up to BHH’s warranties. BHH counters that the Products are “effective” because they
change pests’ behavior. But the parties dueling interpretations of efficacy tests go to the weight,
not admissibility, of the evidence. A jury will determine the Products’ “stated purpose,” and that
decision will inform how much weight each type of test is given.
A. Defendants’ Repeller-Efficacy Experts
The heart of Plaintiffs’ argument is that Borth and Whitford relied on a series of
efficacy tests conducted by BHH in China (the “Tests”), which Plaintiffs claim are unreliable.
BHH conducted seven Tests, all with a similar design: various pests were able to choose
between two rooms, one with a Product turned “on” and one with a Product turned “off.” (See
Decl. of Yitzchak Kopel in Supp. of Pls.’ Mots. to Preclude the Expert Test. of Dr. Paul Borth
and Dr. Philip Whitford and the Rebuttal Expert Test. of Stefan Boedeker, ECF No. 135 (“Kopel
Decl.”), Exs. 4, 5, 6, 18, 20, 22, & 23.) Two of the Tests were conducted in empty dorm rooms
in which the pests could roam free, and five of the Tests were conducted using two Plexiglas
chambers connected by a tunnel. (See Kopel Decl., Exs. 4, 5, 6, 18, 20, 22, & 23.) Each Test
2
included a pre- and post-test period, during which the Products were turned “off.” (Kopel Decl.,
Exs. 4, 5, 6, 18, 20, 22, & 23.)
Borth relied on five of the Tests, in addition to another efficacy test to which
Plaintiffs do not object, to conduct a “chi-square statistical test” on the Products’ efficacy. (See
ECF No. 156, Ex. 3 (“Borth Report”) at 26. 1) In essence, Borth combined the results of various
efficacy tests to render his opinion that the Products worked. Plaintiffs argue that because the
Tests themselves are unreliable, Borth’s chi-square tests must also be unreliable. Borth also
relies on a 1984 study published by James B. Ballard (“Ballard Study”). (Borth Report at 7–8.)
Finally, Borth includes opinions on topics ranging from consumer understanding of Product
packaging to consumer diligence in following Product instructions. (See, e.g., Borth Report at 7,
11.) The Borth Report offers 20 opinions in total. Ultimately, Plaintiffs seek exclusion of (1)
Borth’s opinions on Product efficacy because of his reliance on the Tests and the Ballard Study;
(2) his opinions regarding consumer understanding; and (3) specific Opinions 2, 6, 7, 9, and 12
of the Borth Report.
Whitford relies on two of the Tests, as well as various academic studies on
ultrasonic repellers. (See ECF No. 151, Ex. 17 (“Whitford Report”).) Plaintiffs object to his
opinions to the extent they are based on the Tests and a study he conducted on mice at his
farmhouse using a non-BHH repeller (the “Home Study”). (See ECF No. 151, Ex. 17
(“Whitford Report”), at 2–3, 18–19, 39–49.) In the Home Study, Whitford set his repeller device
“on” from August to December 2009 and “off” from August to December 2010, then counted the
mice he captured, as well as their droppings, for each year. (See Whitford Report at 39.) He
1
Any page references to the Borth Report are to ECF pages.
3
also set the repeller device “on” from November 2012 to November 2013. (See Whitford Report
at 39.)
B. Plaintiffs’ Repeller-Efficacy Expert
Potter offers the inverse—namely, that the Products were ineffective. Potter
served as the “National Technical Director” of Orkin, “the world’s largest pest control
company,” where he handled testing, evaluation, and selection of pesticides, traps, and devices
for controlling insects and rodents. (Kopel Decl., Ex. 9 (“Potter Report”) ¶ 6.) After leaving
Orkin, and for the past 26 years, his time “has been spent solving insect and rodent problems”
while serving as a professor at the University of Kentucky, and he has “authored publications on
cockroaches, ants, spiders, rodents, and other household pests.” (Potter Report ¶ 7.) Further,
throughout his “career as a practicing urban entomologist . . . [he has] evaluated numerous
devices, including electronic pest repellers for their effectiveness against insects and rodents.”
(Potter Report ¶ 7.)
His opinions in this matter are based on (1) “a series of experiments [using the
Products] designed by [him] in collaboration with two of the top research labs that evaluate pest
controls,” (the “Experiments”) (Potter Report ¶¶ 27–28), and (2) literature studying ultrasonic
devices similar to the Products, (Potter Report ¶ 52 & Part IX).
Potter designed two sets of Experiments—one set on cockroaches, ants, and
spiders, the other on mice. (Potter Report ¶ 27.) In each insect Experiment, two chambers made
of plywood and Plexiglas were connected by a cardboard tube. (Potter Report ¶ 30.) For each
type of insect, two pairs of connected chambers were set up—one pair containing Products and
one without to serve as a control. (Potter Report ¶ 30.) Testers introduced cockroaches and ants
to the chambers using various forms of harborage (places in a home where pests may hide, such
4
as furniture) because those types of insects typically take shelter in harborage. (Potter Report ¶¶
30–32.) Spiders were not placed in harborage because they typically do not seek it. (Potter
Report ¶ 33.) Before the Products were turned on, “both sides of each enclosure were
provisioned with food.” (Potter Report ¶ 30.)
In the rodent Experiments, six vacant apartments were divided into two groups of
three apartments, with one set serving as a control and the other set, which contained Products,
serving as the “treatment.” (Potter Report ¶ 40.) The apartments contained “front rooms” where
the mice began, and “back rooms” to which mice could escape from the front room. (Potter
Report ¶ 44.) For each “treated” apartment, two Products were plugged into wall sockets.
(Potter Report ¶ 43.) Mice were released into the apartments, which were “modified to minimize
escape of introduced mice,” and included harborage. (Potter Report ¶ 42.) Moreover, Potter
relied on various studies conducted on non-BHH ultrasonic repellers to form his opinions,
similar to Borth’s reliance on the Ballard Study and Whitford’s reliance on his Home Study.
BHH argues that the Experiments were unreliable because Potter (1) used
harborage; (2) counted pests that stayed within harborage as “repelled”; (3) provided the pests
with food; (4) provided no way for the pests to completely escape their enclosures; (5) is not an
expert on rodents; and (6) did not rely on the Products’ instructions. They also argue that the
studies Potter cited were unreliable because they were old, tested non-BHH repellers, and set
forth insufficient data to demonstrate whether their repellers emitted sound at the same frequency
and amplitude as the Products. BHH further argues that Potter “parrots” the results of the
Experiments and studies, serving as Plaintiffs’ mouthpiece.
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II.
Defendants’ Rebuttal Expert on Damages
In rebuttal to Plaintiffs’ damages expert, Defendants offer Boedeker. Plaintiffs
argue that Boedeker’s testimony should be precluded because Boedeker’s (1) testimony exceeds
the scope of rebuttal in that he opines on the effectiveness of Defendants’ products; (2) opinions
regarding the market value of the Products’ ancillary features are not reliable because he used
wholesale prices rather than retail prices; and (3) criticisms of Weir’s average price calculation
are unreliable because they are not based on sufficient data. (See Pls.’ Mem. of Law in Supp. of
Their Mot. to Preclude the Rebuttal Expert Test. of Stefan Boedeker, ECF No. 133 (“Boedeker
Mot.”), at 1.) Defendants counter that Boedeker stays within the scope of Weir’s opinions and
bases his opinions on reliable principles and methods.
In addition, Defendants argue that Plaintiffs offer two untimely expert reports
written by Weir, both of which should be ignored. However, “Defendants did not file a notice of
cross motion; instead they seek that relief on the cover of their memorandum of law filed in
opposition to [Plaintiffs’] motion. . . . [T]h[is type of] cross motion is procedurally improper and
is denied on that basis and without regard to its merits.” Sbarra v. Port Auth. of N.Y. & N.J.,
2011 WL 4344078, at *8 (S.D.N.Y. Sept. 9, 2011). See Fed. R. Civ. P. 7(b) (“A request for a
court order must be made by motion.”); TransAtlantic Lines LLC v. Amergent Techs, LLC, 2017
WL 78511, at *6 (S.D.N.Y. Jan. 6, 2017) (affirming magistrate judge’s ruling to strike a
memorandum of law requesting sanctions where there was no pending cross motion for
sanctions); Corr. Officers Benevolent Ass’n of Rockland Cty. V. Kralik, 2011 WL 1236135, at
*1 n.2 (S.D.N.Y. Mar. 30, 2011) (declining to consider a “cross-motion” where plaintiffs
requested relief via an opposition motion, without filing a notice of motion).
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DISCUSSION
I.
Standard
Federal Rule of Evidence 702 governs the admissibility of expert and other
scientific or technical 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.
In determining whether expert testimony is admissible, a court must assume a
gatekeeper function to determine whether “the expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S.
579, 597 (1993); accord Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 184 (2d Cir.
2001). Although the Daubert analysis was initially developed to examine scientific testimony, it
applies with equal force to other types of expert testimony, including testimony from economists.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The proponent of expert testimony
must establish admissibility by a preponderance of the evidence. Bourjaily v. United States, 483
U.S. 171, 175–76 (1987). And this Court has broad discretion in determining whether to admit
expert testimony, including rebuttal testimony. Amorgianos v. Nat’l R.R. Passenger Corp., 303
F.3d 256, 265 (2d Cir. 2002); United States v. Tejada, 956 F.2d 1256 (2d Cir. 1992).
“The Supreme Court has identified a number of factors that may be considered in
assessing reliability,” but there is “not a definitive checklist or test, as the gatekeeping inquiry
must be tied to the facts of a particular case, and will necessarily vary from case to case.” In re
LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 3d 430, 467 (S.D.N.Y. 2018)
7
(quotation marks and citations omitted). As such, a reliability analysis is “flexible,” and “the law
grants a district court the same broad latitude when it decides how to determine reliability as it
enjoys in respect to its ultimate reliability determination.” Restivo v. Hessemann, 846 F.3d 547,
576 (2d Cir. 2017) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141–42 (1999)).
Relevance, on the other hand, “can be expressed as a question of ‘fit’—‘whether expert
testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury
in resolving a factual dispute.’” In re Fosamax Prods. Liab. Litig., 645 F. Supp. 2d 164, 173
(S.D.N.Y. 2009) (quoting Daubert, 509 U.S. at 591).
Further, “[a] minor flaw in an expert’s reasoning or a slight modification of an
otherwise reliable method will not render an expert’s opinion per se inadmissible.” Amorgianos,
303 F.3d at 267. “This limitation on when evidence should be excluded accords with the liberal
admissibility standards of the federal rules . . . .” Amorgianos, 303 F.3d at 267. Thus, “[a]s long
as an expert’s scientific testimony rests upon good grounds, based on what is known, it should be
tested by the adversary process—competing expert testimony and active cross-examination—
rather than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or
satisfactorily weigh its inadequacies.” Emamian v. Rockefeller Univ., 2017 WL 6804074, at *1
(S.D.N.Y. Dec. 20, 2017) (quotation marks omitted). “Vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.
“[O]nly serious flaws in reasoning or methodology will warrant exclusion.” In re Fosamax, 645
F. Supp. 2d at 173.
8
II.
Dr. Borth and Dr. Whitford
A. The Tests
The bulk of Plaintiffs’ moving papers is dedicated to the Tests relied on by Borth
and Whitford. Specifically, Plaintiffs argue that their opinions are inadmissible because they are
founded on unreliable Tests. Plaintiffs raise a host of arguments concerning unreliability: (1)
the Tests lacked experimental controls; (2) for the Tests using tunnels, pests found in the tunnels,
rather than in chambers, were counted as repelled; (3) harborage was not used during the Tests;
(4) multiple pests were kept in the same enclosures during the Tests; (5) the Tests failed to
memorialize the species of pests used; (6) dead pests were replaced mid-test; and (7) the Tests
were not replicated. 2 These arguments fail.
It is true that the “[f]ailure to test for alternative causes or to use control
experiments may provide a basis for exclusion.” Astra Aktiebolag v. Andrx Pharm., Inc., 222 F.
Supp. 2d 423, 488 (S.D.N.Y. 2002), aff’d sub nom. In re Omeprazole Patent Litig., 84 F. App’x
76 (Fed. Cir. 2003). But the Tests had experimental controls. “[I]t is axiomatic that, when
designing an experiment to test whether an observed result was caused by [a] given variable, the
control or benchmark group must lack that variable.” Fed. Hous. Fin. Agency v. Nomura
Holding Am., Inc., 2015 WL 539489, at *5 (S.D.N.Y. Feb. 10, 2015). The Tests did exactly
that. During the pre- and post-tests, pests were left to roam for multiple days while the Products
were turned off. (See Kopel Decl., Exs. 4–6, 18, 20, 22, 23.) “It is not required . . . that an
expert categorically exclude each and every possible alternative cause in order to render the
proffered testimony admissible.” Astra Aktiebolag, 222 F. Supp. 2d at 488. Whether the
controls used in the Tests were as worthy as those used in the Experiments is for the jury to
2
Plaintiffs concede that not every purported deficiency applies to each Test.
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decide, but on a motion to exclude an expert this Court “should only exclude the evidence if the
flaw is large enough that the expert lacks good grounds for his or her conclusions.” Amorgianos,
303 F.3d at 267 (internal citations and quotation marks omitted).
Plaintiffs’ arguments regarding the method of counting pests and the use of
harborage go to weight, not admissibility. See Amorgianos, 303 F.3d at 267. These were merely
choices regarding the Tests’ design and do not affect reliability. BHH’s experts cannot testify
that the Products were effective even if harborage were used, given that the Tests were run
without harborage, but that is not what they seek to do. Rather, Borth and Whitford seek to
testify that the Test results demonstrate the repellers affected the pests. On cross-examination,
Plaintiffs are free to inquire about whether counting non-chambered pests inflated the Test
results, or whether an empty room is a realistic test. But that does not mean the tests were
unreliable—instead, they were “slight modification[s] of an otherwise reliable method.”
Amorgianos, 303 F.3d at 267.
Plaintiffs’ arguments concerning cross-contamination of pests, memorialization of
species, and the replacement of dead pests are not persuasive. See In re Fosamax, 645 F. Supp.
2d at 173. These alleged flaws are better addressed through the adversary process than by
exclusion. See Amorgianos, 303 F.3d at 267.
Finally, Plaintiffs argue that the tests were not replicated by the testing companies
or by BHH’s experts. This argument also lacks merit. Replication falls under the first Daubert
factor, which addresses whether a scientific methodology can be or has been tested. See
Daubert, 509 U.S. at 593–94; Jarvis v. Ford Motor Co., 1999 WL 461813, at *4–5 (S.D.N.Y.
July 6, 1999). Therefore, for Daubert purposes, replication means that experiments are capable
of repetition, not that experts must repeat the same experiment again and again to demonstrate
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reliability. See LeFevre v. Sec’y, Dep’t of Veterans Affairs, 66 F.3d 1191, 1194 (Fed. Cir. 1995)
(“In evaluating any study for the purpose of making such [positive association] determinations,
the [tester] shall take into consideration whether the results are statistically significant, are
capable of replication, and withstand peer review.”); Beyer v. Anchor Insulation Co., 238 F.
Supp. 3d 270, 281 (D. Conn. 2017) (“[A] study’s results must be capable of replication.”);
United States v. Norwood, 939 F. Supp. 1132, 1136 (D.N.J. 1996) (finding an expert reliable
where study was, among other things, “capable of replication and objective measurement”).
Here, other than duplicating the precise species of pest used, the Tests are capable of replication.
In fact, BHH replicated the two types of Tests multiple times. (See Kopel Decl. Exs. 4–6, 18,
20, 22, 23.)
B. Borth’s Other Opinions
1. Ballard Study
Plaintiffs contend the Ballard Study does not conclude that the Products are
effective, so Borth cannot use it to support such a conclusion. However, the Ballard Study states
that cockroach “activity was increased by the active ultrasound-emitting device.” (See Kopel
Decl., Ex. 7 (“Ballard Study”) at 1).) And, as Plaintiffs concede, “Borth states that Ballard
(1984) found that cockroach ‘activity was increased by the active ultrasound-emitting device.’”
(Mem. of Law in Supp. of Pls.’ Mot. to Preclude the Expert Test. of Dr. Paul Borth and Dr.
Philip Whitford, ECF No. 131 (“Borth & Whitford Mot.”), at 16 (citing Borth Report at 6–7).)
This is a proper use of the Ballard Study. Further, Plaintiffs’ argument that Borth ignores the
Ballard Study’s statement that the importance of its observations is difficult to interpret is of no
moment. That statement does not undermine the Ballard Study’s reliability—it limits its
applicability. (Borth & Whitford Mot. at 16.) Plaintiffs are free to cross-examine Borth on
11
whether the results of the Ballard Study are as strong as he suggests. In other words, this, again,
should be tested through the adversary process. See Emamian, 2017 WL 6804074, at *1.
2. Specific Opinions
Plaintiffs challenge five specific opinions in Borth’s report—namely, Opinions 2,
6, 7, 9, and 12, as well as Borth’s opinions regarding consumer understanding. Plaintiffs contend
that these opinions are inadmissible factual interpretations or legal conclusions. This Court
agrees.
“[E]xperts are not percipient witnesses. They are witnesses who, by virtue of
specialized expertise, are able to provide opinions or information beyond the ken of the
layperson. It is therefore inappropriate for experts to act as a vehicle to present a factual
narrative of interesting or useful documents for a case, in effect simply accumulating and putting
together one party’s story.” Scentsational Techs., LLC v. Pepsi, Inc., 2018 WL 1889763, at *4
(S.D.N.Y. Apr. 18, 2018) (quotation marks omitted). Though “[i]t is certainly the case that an
expert may and often must rely on facts[,] . . . if the statements go beyond recitation of how a
document is supportive of an opinion and are instead a characterization of the document for the
purposes of having the fact finder accept that interpretation as fact, the expert goes too far.”
Scentsational Techs., 2018 WL 1889763, at *4; see United States v. Duncan, 42 F.3d 97, 101 (2d
Cir. 1994) (quoting United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)) (“Generally,
the use of expert testimony is not permitted if it will ‘usurp . . . the role of the jury in applying
th[e] law to the facts before it.’”).
The same holds true for legal conclusions—“the use of expert testimony is not
permitted if it will usurp . . . the role of the trial judge in instructing the jury as to the applicable
law.” Duncan, 42 F.3d at 101 (quotation marks omitted). “When an expert undertakes to tell the
12
jury what result to reach, this does not aid the jury in making a decision, but rather attempts to
substitute the expert’s judgment for the jury’s. When this occurs, the expert acts outside of his
limited role . . . . [As such,] this Court requires the exclusion of testimony which states a legal
conclusion.” Duncan, 42 F.3d at 101.
Borth’s opinions regarding consumer understanding, as well as Opinions 2
(concerning whether the Products contained the same set of instructions), 6 (concerning whether
BHH had the discretion to change its packaging), and Opinions 7, 9, and 12 (each of which
concerns the operation of Hart and Bueno’s minds) of the Borth Report are all excluded. See
Scentsational Techs., 2018 WL 1889763, at *4; In re M/V MSC Flaminia, 2017 WL 3208598, at
*18 (S.D.N.Y. July 28, 2017) (“An expert report may provide insight about specialized practices
in an industry, but it must not substitute for the factfinder[’]s owns findings, nor may it present
opinions in the form of legal conclusions regarding the reasonableness or prudence of a
defendant’s actions, or the scope of a [party]’s knowledge.”); Highland Capital Mgmt., L.P. v.
Schneider, 551 F. Supp. 2d 173, 182 (S.D.N.Y. 2008) (excluding expert testimony where expert
opined on a defendant’s belief that the value of a security was “deeply discounted” because
“[o]pining about a party’s state of mind, as [the expert] does here, is impermissible”); In re
Rezulin Prod. Liab. Litig., 309 F. Supp. 2d 531, 547 (S.D.N.Y. 2004) (“Inferences about the
intent or motive of parties or others lie outside the bounds of expert testimony.”); Fed. R. Civ. P.
702 (allowing experts to impart only “scientific, technical, or other specialized knowledge [that]
will help the trier of fact to understand the evidence or to determine a fact in issue.”).
C. Whitford’s Home Study
Plaintiffs argue that Whitford should be precluded from relying on his Home
Study because it used different repellers than those at issue in this litigation and it lacked
13
adequate experimental controls. (Borth & Whitford Mot. at 17–19.) These arguments are
unpersuasive.
First, experts may rely on analyses of similar technologies to the technology at
issue in rendering their opinions. See Zuchowicz v. United States, 140 F.3d 381, 385–86 (2d
Cir. 1998) (affirming district court’s admission of a medical expert who, in part, based his
opinion regarding whether a drug caused plaintiff’s disease on its similarities to those “of
accepted cases of drug-induced” disease and on “cases involving classes of drugs that are known
to cause other,” similar diseases). And any differences between repellers can be tested on crossexamination. See Amorgianos, 303 F.3d at 267. Ultimately, Whitford’s analysis of a similar
ultrasonic repeller “fit[s] . . . [with] the facts of the case.” In re Fosamax, 645 F. Supp. 2d at 173
(quotation marks omitted).
Second, the Home Study used experimental controls—Whitford turned the
devices on during 2009 and off during 2010. As discussed, “[i]t is not required . . . that an expert
categorically exclude each and every possible alternative cause in order to render the proffered
testimony admissible.” Astra Aktiebolag, 222 F. Supp. 2d at 488; see also In re Fosamax, 645 F.
Supp. 2d at 173; Emamian, 2017 WL 6804074, at *1.
III.
Dr. Potter
BHH advances a smattering of purported deficiencies in Potter’s testimony. They
fit into four categories: (1) the studies Potter relies on are unreliable; (2) Potter “parrots” the
studies rather than offering his own opinions; (3) the Experiments are unreliable; and (4) Potter
“parrots” the results of the Experiments. None are persuasive.
14
A. The Studies
BHH dwells on Potter’s reliance on articles discussing tests of ultrasonic devices
similar to, but not manufactured by, BHH. (See Defs.’ Mem. of Law in Supp. of Their Mot. to
Preclude the Expert Test. of Pls.’ Proffered Expert Witness, Michael F. Potter, ECF No. 142
(“Potter Mot.”), at 5–10.) Such a challenge is puzzling considering both of BHH’s efficacy
experts rely on studies and tests of non-BHH repellers, and Borth relies on the Ballard Study.
(See Borth Report at 6; Whitford Report at 2–3.) BHH cannot “have [its] cake and eat it too.”
(Defs.’ Reply Mem. of Law in Supp. of Their Mot. to Preclude the Expert Test. of Pls.’ Proffered
Expert Witness, Michael F. Potter, ECF No. 158, at 10.)
It is proper for Potter to buttress his Experiments with studies demonstrating that
repellers employing similar technology are also ineffective. See Zuchowicz, 140 F.3d at 385–86.
BHH said it best: “Dr. [Potter] is simply using [these studies] as an example of ultrasound’s
effect on” pests. (Defs.’ Resp. in Opp. to Pls.’ Mot. to Preclude the Expert Test. of Dr. Paul
Borth and Dr. Philip Whitford, ECF No. 145, at 12.) Ultimately, this issue goes to weight, not
admissibility. See Amorgianos, 303 F.3d at 267.
B. The Experiments
BHH argues that the Experiments were unreliable because Potter (1) used
harborage; (2) counted pests that stayed within harborage as “repelled”; (3) provided the pests
with food; (4) provided the pests with no way to completely escape their enclosures; (5) is not an
expert on rodents; and (6) did not rely on the Products’ instructions. These arguments are
meritless.
BHH’s arguments regarding use of harborage, methods for counting pests as
“repelled,” use of food, and whether the pests could escape the enclosures fail because they go to
15
weight, not admissibility. See Amorgianos, 303 F.3d at 267. None of these alleged deficiencies
undermine the science behind the Experiments. Thus, they serve as points on which BHH is free
to cross-examine Potter.
BHH’s argument about Potter’s qualifications on rodents is also unavailing.
Potter served as National Technical Director of the world’s largest pest control company, where
he handled testing, evaluation, and selection of pesticides, traps, and devices for controlling
rodents. (Kopel Decl., Ex. 9 (“Potter Report”) ¶ 6.) He has since spent the last 26 years “solving
insect and rodent problems” as a professor at the University of Kentucky, and he has authored
publications on rodents. (Potter Report ¶ 7.) Further, he has spent his career “evaluat[ing]
numerous devices, including electronic pest repellers for their effectiveness against insects and
rodents.” (Potter Report ¶ 7.)
Finally, BHH contends that Plaintiffs failed to follow BHH’s instructions when
conducting the Experiments. But this ignores the fact that the subject of this litigation is what a
reasonable consumer would have understood those instructions to mean. This Court will not
exclude expert testimony because Plaintiffs did not conduct tests using BHH’s interpretation of
the instructions, rather than their own. These interpretations will be tested by the adversary
process. See Emamian, 2017 WL 6804074, at *1.
C. Parroting
BHH’s final argument is that Potter “parrots” the results of the Experiments and
studies he relies on. Although BHH is correct that testifying experts may not parrot studies or
act as conduits for consulting experts, it misapplies the principle. Courts apply this doctrine
when an expert is not qualified to interpret the “parroted” results. “If an expert simply presents
the findings and experts opinions of others, that expert must be independently qualified in the
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subject. . . . [A]n expert may certainly present the findings and conclusions of those whose work
he or she supervised and that he or she could personally replicate if necessary. But a proffered
expert may not simply pass off as their own, or serve as a vehicle for presenting, the opinions of
others in subjects on which the proffered expert is not personally qualified.” In re M/V MSC
Flaminia, 2017 WL 3208598, at *22. For instance, in Malletier v. Dooney & Bourke, Inc., the
court excluded an expert’s testimony where he relied solely on a consulting expert for statistical
analysis, because he was “not qualified to conduct or interpret statistical analyses,” and thus
served as a “mouthpiece” for that consultant. Malletier v. Dooney & Bourke, Inc., 525 F. Supp.
2d 558, 664–66.
Here, Potter designed the Experiments himself and applied those results to
information gleaned from studies, consulting experts, and his prior experience to form his overall
opinion. (Potter Report ¶¶ 27–28.) In other words, Potter based his opinions on his expertise,
the Experiments, outside studies, and consulting experts. And even if he had not designed the
Experiments, he is more than qualified to interpret their results. See Tomita Techs. USA, LLC v.
Nintendo Co., 2013 WL 4101251, at *2 (S.D.N.Y. Aug. 14, 2013), aff’d, 594 F. App’x 657 (Fed.
Cir. 2014) (holding that plaintiff’s expert had not “parroted” a consulting expert, because the
challenged expert “reviewed documentation . . . in addition to his own testing . . . and applied to
that information his extensive experience”); Medisim Ltd. v. BestMed LLC, 861 F. Supp. 2d
158, 169 (S.D.N.Y. 2012) (“Where a testifying expert has expertise in the field covered by a
consulting expert and independently verifies the latter’s conclusions, there is no danger that the
former is acting as a mere ‘mouthpiece or conduit’ of the latter.”); see also In re M/V MSC
Flaminia, 2017 WL 3208598, at *22 (“Therefore, to the extent that [the expert’s] report simply
repeats the findings of other experts and proffers them as his own despite his lack of
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qualifications in the relevant field, the Court agrees those portions must be excluded.” (emphasis
added)).
IV.
Boedeker
A. Scope of Rebuttal Testimony
Plaintiffs contend that Boedeker’s testimony exceeds the scope of Weir’s opinions
by commenting on the effectiveness of Defendants’ Products. They argue such testimony is
improper because (1) Weir does not opine on the effectiveness of the Products, but rather
assumes for his damages calculations that the Products were worthless; and (2) such testimony is
outside of Boedeker’s expertise. (See Boedeker Mot. at 2–7.) Defendants counter that Boedeker
is not offering testimony on effectiveness. Rather, he seeks to rebut Weir by demonstrating that
Weir’s starting assumption of the Products’ total worthlessness is incorrect. In essence,
Defendants argue that Plaintiffs may not be able to prove complete worthlessness, and if they
cannot, their damages model is incorrect. (See Defs.’ Resp. in Opp. to Pls.’ Mot. to Preclude,
ECF No. 146 at 5–9.)
Federal Rule of Civil Procedure 26 governs rebuttal experts and allows expert
testimony “intended solely to contradict or rebut evidence on the same subject matter identified
by another party.” Fed. R. Civ. P. 26(a)(2)(D)(ii). “Rebuttal evidence is properly admissible
when it will explain, repel, counteract or disprove the evidence of the adverse party.” Scott v.
Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 44 (S.D.N.Y. 2016) (quotation marks omitted).
Thus, “[t]he scope of a rebuttal is limited to the same subject matter encompassed in the
opposing party’s expert report,” and a “rebuttal expert report is not the proper place for
presenting new legal arguments, unless presenting those arguments is substantially justified and
causes no prejudice.” Scott, 315 F.R.D. at 44. However, rebuttal experts may rely on new
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methodologies “for the purpose of rebutting or critiquing the opinions of [the opposing party’s]
expert witness.” Park W. Radiology v. CareCore Nat’l LLC, 675 F. Supp. 2d 314, 326
(S.D.N.Y. 2009). They also “may rely on facts or other data in evidence when constructing an
expert report.” Scott, 315 F.R.D. at 45. And, scope aside, rebuttal experts still must meet
Daubert standards. Scott, 315 F.R.D. at 44.
Boedeker admits he is not an expert on the efficacy of ultrasonic repellers. (See
Kopel Decl., Ex. 21, Boedeker Tr. 25:5–11.) Yet he still offers such opinions. (See, e.g., Kopel
Decl., Ex. 26 (“Boedeker Report”), ¶¶ 23–38.) This is obviously improper—he cannot give
expert testimony about a subject in which he lacks expertise. Plaintiffs need not argue scope to
preclude these opinions. However, Boedeker also opines that, had Weir considered that a jury
could find the Products were not completely worthless, his damages calculation would have been
different. This is proper rebuttal because it offers a new methodology—one in which complete
worthlessness is not assumed. See Park West, 675 F. Supp. 2d at 326. Such testimony thus falls
within the scope of Weir’s opinions. As such, Boedeker may rely on or invoke other experts’
opinions regarding whether a product is effective, so long as he uses them to challenge Weir’s
damages methodology and not to show whether the Products were effective. Scott, 315 F.R.D. at
45 (“[A]n expert may rely on facts or other data in evidence when constructing an expert
report.”).
B. Sufficient Facts or Data
Plaintiffs’ other grounds for preclusion stem from their belief that Boedeker’s
opinions are based on insufficient facts or data. First, Plaintiffs argue that Boedeker’s opinions
and hedonic regression analysis regarding the market value of the Products’ ancillary features are
not reliable because he used wholesale prices rather than retail prices. But Defendants explain
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that Boedeker offers his hedonic regression analysis to demonstrate how the effectiveness of
ancillary Product features could impact price—something he claims Weir failed to take into
account. For instance, Boedeker posits, if a Product served as a nightlight and a repeller, it may
still retain some value if the repeller feature failed but the nightlight feature did not. Simply put,
Boedeker did not conduct the hedonic regression to prove that his version was correct. Rather,
he conducted it to show that Weir should have made such a calculation. (Boedeker Report ¶ 60.)
This is permissible because “the defendant has no burden to produce models or methods of their
own; they need only attack those of the plaintiffs’ experts.” Scott, 315 F.R.D. at 44 (quotation
marks omitted).
Second, Plaintiffs argue that Boedeker’s criticisms of Weir’s average price
calculation are unreliable because Boedeker’s calculations are not based on sufficient data. This
is unpersuasive. Boedeker only included Products that contained sales pricing information in his
calculations, rather than substituting an average price for Products without requisite inventory
data. (Boedeker Report ¶¶ 21–22.) In other words, he offers a new methodology for the average
price calculation, which is permissible. See Park W., 675 F. Supp. 2d at 326. Plaintiffs’
disagreement with that decision does not give rise to the preclusion of Boedeker’s testimony.
Boedeker’s “slight modification of an otherwise reliable method . . . will not render [his] opinion
per se inadmissible.” Amorgianos, 303 F.3d at 267. “[I]t should be tested by the adversary
process,” not precluded. Emamian, 2017 WL 6804074, at *1.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion seeking to exclude Borth and
Whitford’s expert testimony (ECF No. 130) is granted in part and denied in part. Opinions 2, 6,
7, 9, and 12 of the Borth Report, as well as Borth’s opinions regarding consumer understanding,
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are excluded at trial. Plaintiffs’ motion seeking to exclude Boedeker’s expert testimony (ECF
No. 132) is granted in part and denied in part. Boedeker’s opinions regarding whether the
Products were effective is excluded at trial. Boedeker may, however, discuss Product
effectiveness consistent with this Opinion & Order. BHH’s motion seeking to exclude Potter’s
expert testimony (ECF No. 138) is denied. The Clerk of Court is directed to terminate the
motions pending at ECF Nos. 130, 132, and 138.
Dated: July 19, 2018
New York, New York
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