Bowling v. Johnson & Johnson et al

Filing 117

OPINION AND ORDER: Bowling's application for class certification is hereby DENIED. Defendants' motion to exclude the expert testimony of J. Michael Dennis and Colin Weir, and Bowling's motion to exclude the expert testimony of Douglas Nguyen, Carol A. Scott, David J. Reinstein, and Denise Martin, are DENIED as moot with leave to refile. The parties' requests to file various exhibits and briefing papers under seal are DENIED with leave to refile within ten days, as outlined ab ove. Because it arguably contains reference to information that the parties have requested be maintained under seal, this Order shall be filed under TEMPORARY SEAL. The parties are directed to meet and confer and to advise the Court in writing within ten business days of this Order whether they believe that any portion should be redacted prior to its public docketing. Because the Court resolves these motions on the papers, Defendants' request for oral argument, Dkt. No. 99, is hereby denied. This resolves Dkt. Nos. 33; 39; 67; 75; 83; 86; 93; 98; 99; 103; and 106. SO ORDERED. (Signed by Judge Alison J. Nathan on 3/29/2019) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Suzanna Bowling,
Individually and on Behalf of All Others Similarly
Situated,
l 7-cv-3982 (AJN)
Plaintiff,
OPINION & ORDER

-vJohnson & Johnson and McNeil Nutritionals, LLC,
Defendants.

ALISON J. NATHAN, District Judge:

Plaintiff Suzannah Bowling brings this suit against McNeil Nutritionals, LLC ("McNeil")
the distributor of the butter alternative spread Benecol, and Johnson & Johnson, its parent
company. Bowling alleges that the statement "No Trans Fat," which appeared on Benecol 's
labeling until 2011, was false and misleading, and brings claims for unjust enrichment, violation
of New York General Bus Law ("NYGBL") §§ 349 and 350, negligent misrepresentation, and
fraud. Now before the Court is Bowling's motion to certify a class of persons who purchased
Benecol in New York from January 1, 2008 to December 31, 2011. In addition, both parties
have moved to exclude expert testimony proffered by their opponents. For the reasons set forth
below, Bowling's motion for class certification is DENIED. Both parties' motions to exclude
expert testimony are also DENIED as moot,

I.

Background
The Court assumes familiarity with the factual background in this matter as set forth its

March 28, 2018 Memorandum Opinion & Order. See Dkt. No. 26.

Briefly, the underlying case concerns the labeling of two products distributed by McNeil
from 2008 to 2011-Benecol and Benecol Light Spreads. Both versions of Benecol are
marketed as cholesterol-lowering healthier alternatives to butter or margarine, See Dkt. No. 38
at 2; Dkt. No. 56 at 1. During the relevant period, Benecol and Benecol Light Spreads were sold
with th~ statements "No Trans Fat" or "No Trans Fatty Acids" on the outer packaging. See Dkt.
No. 38 at 1; Dkt. No. 56 at 1. However, one of the ingredients in the spreads is partially
hydrogenated soybean oil, which contains trans fats. See id. Because the amount of trans fat per
serving was less that 0.5 g, FDA regulations dictated that Benecol's nutrition information list
"0g" trans fat per serving. See Dkt. No. 38 at 6; Dkt. No, 56 at 1. Despite this feature of the
FDA regulations, the FDA does not authorize the "no trans fat" claims on the labeling. 1 See Dkt.
No. 26 at 7.
Plaintiff in this case states that she suffers from a severe sensitivity to trans fats and
avoids consuming them, Dkt. No, 57, Ex. A ("Bowling Dep.) at 26: 1-27:25. According to her
deposition testimony, Bowling purchased a tub of Benecol Light at a Walmart in White Plains,
New York in 2011, after the "No Trans Fat" label caught her eye. Id. at 141: 1-142;23. In her
deposition, Bowling estimated that the purchase was made "either in May or later June," and
denied that it could have been as late as fall 2011. Id. at 149: 10-25. In her Declaration, Bowling
states that she made the purchase in "the second half of 2011." Dkt. No, 35 ~ 2. After cooking a
meal with the Benecol Light that she purchased, Bowling asse1is that she experienced severe
gastrointestinal distress, which she attributes to the trans fats in the product. See Bowling Dep.

1

On July 21, 2017, Defendants filed a motion to dismiss the complaint on preemption grounds based on the
argument that the "no trans fat" label was permitted under federal regulations, Dkt. No. 11, In an Opinion dated
March 28, 2018, this Court rejected Defendants argument, concluding that the FDA nutrient content claim
regulations did not authorize a "trans fat free" content claim. See Dkt. No. 26,

2

at 144: 12-20. Bowling testifies that she "called and wrote" Johnson & Johnson after the incident
to obtain a refund but was unsuccessful. Bowling Dep. at 148:23-150:5.
Defendants dispute the veracity of several of Bowling's key claims. First, they submit
that their internal database of shipping records for products sold to retailers and distributors since
October 2008 shows that "Benecol Light Spread was never shipped to any Walmart or Walmart
distribution center" in the period from 2008"2018. Dkt. No. 61 ~ 5, The database also indicates
that "no Walmart store or distribution center received any shipments of Benecol product before
late September 2011." Id. at~ 6. Second, Defendants state that they keep regular records of
customer telephone and email complaints, but that a thorough search of these records produced
"zero records" of any telephone or email contact by Bowling either in 2011 or with any reference
to Benecol. Dkt. No. 62 ~~ 4-11.
Defendants have also submitted evidence that Bowling is bound by a covenant not to sue
arising from a settlement agreement in an umelated lawsuit between the parties, See Dkt, No,
57, Ex. I. That case concerned Bowling's claims against McNeil and Johnson & Johnson for
consumer fraud related to the labeling of a Listerine product, See ;d, at 1-2. On May 27, 2015
in exchange for monetary consideration, Bowling signed an agreement that provides, in relevant
part:
Plaintiffs agree that they and their agents, successors, assigns, personal representatives,
heirs, executors, trustees and administrators will forever refrain from instituting,
maintaining, collecting, proceeding, cooperating or assisting in the prosecution against
[Johnson & Johnson, McNeil, or related entities] on any claim, demand, action, cause of
action or liability, arising out of or related to the Action or products sold by McNeil,
whether or not now known, suspected or claimed, which they have ever had, now have or
hereafter may have.

3

Id. at 3. Bowling was represented by Bursor & Fisher P.A., who are also Plaintiffs counsel in
this action, Id. at 10. Bowling does not dispute that this agreement exists, but generally declined
to discuss its particulars due to its confidentiality provision. Bowling Dep. at 207:3-219:1.
Bowling filed this lawsuit on May 25, 2017, alleging that the "no trans fat" claims were
false and misleading because Benecol does, in fact, contain trans fats. See Dkt. No. 1. Bowling
seeks to recover against Defendants for breach of express warranty, breach of implied warranty
of merchantability, unjust enrichment, violation of New York's General Business Law Sections
349 and 350, negligent misrepresentation, and fraud. See id.
On July 30, 2018, Bowling moved to certify and represent two classes:
All persons who purchased Benecol Regular Spread or Benecol Light Spread from
January 1, 2008 to December 31, 2011 in the United States (the "Nationwide Class"); and
All persons who purchased Benecol Regular Spread or Benecol Light Spread from
January 1, 2008 to December 31, 2011 in New York (the "New York Class").
Diet. No. 38 at 4. Defendants opposed this motion, in part on the grounds that this Court lacks
personal jurisdiction over out-of-state claims and because individualized issues of law would
predominate in the nationwide class action.· See Dkt. No. 56 at 22-25. In light of this critique,
Bowling withdrew her motion "solely with respect to the nationwide class." Dkt. No. 79 at 2,
n.2. The motion for class certification of the New York Class is now fully briefed and ripe for
this Court's consideration.
In addition, the Court will address the parties' respective motions to exclude expert
testimony. On October 11, 2018, Defendants moved to exclude the expert testimony of J.
Michael Dennis and Colin Weir, submitted in support of Bowling's motion for class
certification, Diet. No, 75. On November 16, 2018, Bowling moved to exclude the expert

4

testimony of Douglas Nguyen, Carol A. Scott, David J. Reibstein, and Denise Martin, submitted
by Defendants in opposition to class certification. Dkt. No. 83.
Finally, the parties have moved to file various exhibits and motion papers either entirely
under seal or with redactions. See Dkt. Nos. 39; 67; 86; 93; 98; 103; 106.
II.

Legal Framework .
In order to qualify for class certification, a plaintiff must first demonstrate that the class it

proposes satisfies the four prerequisites of Federal Rule of Civil Procedure 23(a). Those
requirements are:
(1)
(2)
(3)
(4)

the class is so numerous that joinder of all members is impracticable;
there are questions of law or fact common to the class;
the claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
the representative parties will fairly and adequately protect the interests of the
class.

Fed. R. Civ. P, 23(a). These "four requirements-numerosity, commonality, typicality, and
adequate representation -effectively limit the class claims to those fairly encompassed by the
named plaintiffs claims." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,349 (2011) (internal
quotation marks omitted). "A class may be certified only if, 'after a rigorous analysis,'
the. , . court is satisfied that the prerequisites of [Rule 23(a)] are met." Roach v. T.L. Cannon

Corp., 778 F.3d 401,405 (2d Cir. 2015) (quoting Comcast C01p. v. Behrend, 569 U.S. 27, 33
(2013)),
Assuming the requirements of Rule 23(a) are met, a plaintiff must then establish that
certification is appropriate for one of the three reasons set forth in Rule 23(b). Here, Bowling
seeks ce1iification under Rule 23(b)(3), which authorizes class certification ifHquestions of law
or fact common to class members predominate over any questions affecting only individual

5

members," and "a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
"The party seeking class ce1tification bears the burden of establishing by a preponderance
of the evidence that each of Rule 23 's requirements have been met." Johnson v. Nextel

Commc'ns Inc., 780 F.3d 128, 137 (2d Cir. 2015); see also Dukes, 564 U.S. at 350 ("Rule 23
does not set forth a mere pleading standard. A party seeking class ce1tification must
affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove
that there are in fact sufficiently numerous parties, common question of law or fact, etc.")
(emphasis in original). Accordingly, although a Rule 23 inquiry should not "extend into a
protracted mini-trial of substantial portions of the underlying litigation," the "district judge must
receive enough evidence, by affidavits, documents, or testimony," including expe1t evidence as
appropriate, to "be satisfied" that the necessary elements of class certification have been
established. In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006); see also

Comcast, 569 U.S. at 35 (directing courts to, for example, "conduct a rigorous analysis" of
damages model proffered by ce1tification proponent's expert) (internal quotation marks omitted).

III.

Discussion
A. Rule 23(a) Factors
The Cou1t first assesses whether Bowling has met her burden to establish that the four

requirements of Rule 23(a) are met.
As for the first requirement, the Comt is satisfied that the proposed New York class is "so
numerous thatjoinder of all members is impracticable." Fed. R. Civ. P. 23(a)(l). In the Second
Circuit, "numerosity is presumed at a level of 40 members." Consol. Rail Corp. v. Hyde Park,
47 F.3d 473,483 (2d Cir. 1995).

6

Even assuming that there were multiple
repeat customers, the Court easily concludes that there were far more than 40 individual
purchasers, Indeed, Defendants do not contest that the numerosity requirement is satisfied. See

generally Dkt. No. 56,
The Court is also satisfied that the commonality requirement is met because "there are
questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). This requirement is met
if "even a single question of law or fact [is] common to the members of the class." Dukes, 564
U.S. at 369. For purposes of Rule 23(a), the common question of law or fact need not
predominate, but it must be capable of resolution in a classwide proceeding. Id. at 350. (Class
"claims must depend upon a common contention of such a nature that it is capable of classwide
resolution-which means that determination of its truth or falsity will resolve an issue that is
central to the validity of each one of the claims in one stroke."),
Bowling claims that class members overpaid for Benecol because the "No Trans Fat"
claim on the label was false. Accordingly, to determine liability, the Court will need to
determine whether the "No Trans Fat" label was false or misleading, and whether the class
members paid a higher price for the product because of this label. These are common questions
capable ofclasswide resolution for purposes of Rule 23(a)(2), Indeed, courts have routinely
found the Rule 23(a) commonality requirement satisfied when a putative class representative
claims that a product's manufacturer "defrauded purchasers" by making a claim on the product's
label. Eben v. Kangadis Food Inc., 297 F.R.D. 561,565 (S.D,N.Y. 2014); see also In re Scotts

EZ Seed Litig., 304 F.R.D. 397,405 (E.D.N.Y. 2015); Dzielak v. Whirlpool Corp., No. 2:12-89
(KM)(JBC) 2017 WL 6513347, at *5 (D.N.J Dec. 20 2017). Moreover, Defendants do not argue

that the commonality requirement is not met here, but rather that "individualized issues of

7

exposure and causation will predominate over common issues of law and fact." Dkt, No, 56 at 2,
Therefore, the commonality requirement is met.
As for the third and fourth requirements, Defendants argue that Bowling can meet neither
the typicality nor the adequacy prerequisites because she is subject to unique defenses that
"threaten to become the focus of the litigation," Rocco v. Nam Tai Elecs., Inc., 245 F.R,D, 131,
135 (S,D.N.Y. 2007), For the reasons set forth below, the Court agrees,

1. Unique Defenses

If Defendants raise the argument that a "unique defense" applies to the putative class
representative, courts analyze the issue under either the typicality or adequacy prongs of Rule
23(a). See, e.g., In re Flag Telecom Holdings, Ltd. Sec. Litig., 245 F.R.D, 147, 163 n, 18
(S.D,N,Y. 2007) (vacated in part on other grounds) (noting that defendants' "unique defense"
arguments "are relevant to both Rule 23 's typicality and adequacy of representation
requirements"), The Second Circuit has instructed that "the mere existence of individualized
factual questions with respect to the class representative's claim will not bar class
ce1tification .. , [but] class· certification is inappropriate where a putative class representative is
subject to unique defenses which threaten to become the focus of the litigation." Gmy Plastic

Packaging Co1p. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir,
1990) (abrogated on other grounds), The relevant inquiry at this stage is whether any unique
defenses "will unacceptably detract from the focus of the litigation to the detriment of absent
class members," In re Omnicom Gip., Inc., Sec. Litig., No. 02 CIV. 4483 (RCC), 2007 WL
1280640, at *4 (S.D,N.Y. Apr, 30, 2007) (citing Baffa v. Donaldson, LujkJn & Jenrette Sec.

Corp., 222 F.3d 52, 59 (2d Cir. 2000)). The Court need not resolve whether a unique defense
would ultimately succeed on the merits; rather, certification must be refused if the Court is

8

"confronted with a sufficiently clear showing of the defense's applicability to the representative
plaintiff." Id. On the other hand, the typicality and adequacy requirements may be met if the
proffered unique defenses "seem to rest on little more than speculation." Wallace v. IntraLinks,
302 F.R.D. 310,316 (S.D.N.Y. 2014).
Defendants raise three possible unique defenses that may apply to Bowling's claims: (1)
that her medical claims regarding her sensitivity to trans fats and negative reaction to Benecol
render her unreliable and her claims atypical; (2) that she appears to have given false testimony
about key elements of her claim; and (3) that she is bound by a covenant not to sue Defendants.
The Court will address each argument in turn.

a. Medical Issues
Defendants argue that Bowling's medical issues "translate to different motivations for
avoiding trans fats and raise[] defenses unique to Bowling that do not apply to other members." 2
Dkt. No, 56 at 8. Bowling replies that the medical issues are irrelevant to her theory of liability:
"Plaintiff-like all class members-was injured at the time of purchase when she paid a price
premium for Benecol solely attributable to the No Trans Fat Claim." Dkt. No. 79 at 2. The
Court agrees with Bowling. Though Bowling did testify concerning her alleged reaction to
consuming Benecol, she does not seek to recover damages based on the· illness, and so her

asserted claims match those of other putative class members, even if she has others potential
claims that she has chosen not to pursue. As a result, attacks on the veracity of Bowling's
medical claims are not a valid defense to the action. Bowling's medical issues do not defeat
typicality or adequacy.

2 In

support of their argument, Defendants have proffered medical testimony from expert medical witness
Dr. Douglas L. Nguyen. See Dkt. No, 57, Ex. 12. Plaintiff has moved to exclude this testimony. Dkt. No. 83.
Because the Court determines that the disputed medical issues are irrelevant, it need not determine the admissibility
of Dr. Nguyen's evidence at this stage, as discussed more fully in Section III (B).
9

b. Covenant Not to Sue
Defendants also argue that Bowling is bound by the covenant not to sue Defendants "for
any claim.,. arising out of or related to ... products sold by [Defendants]" contained in the 2015
settlement agreement between the parties. See Dkt. No. 57, Ex. I at 3. Bowling does not contest
the existence or validity of the covenant, but argues that (1) Defendants waived the defense by
failing to bring it as a compulsory counterclaim or to 1:aise it in their Answer; and (2) "a covenant
not to sue is not a defense to class certification or to this action." Dkt. No. 79 at 4.
With respect to Bowling's first argument, the Court disagrees that Defendants were
required to raise the defense in a counterclaim. Under Rule 13(a)(l)(A), a counterclaim is
compulsory only if it "arises out of the transaction or occurrence that is the subject matter of the
opposing party's claim." Fed, R. Civ. P. 13(a)(l)(A); see also Paramount Pictures Corp. v.

Allianz Risk Transfer AG, 141 A.D.3d 464,467 (N.Y, App. Div. 2016) (determining that a claim
for breach of a covenant not to sue "aro[se] out of the (same] transaction or occurrence" as the
parties' claims in federal court, and therefore should have been brought in that action) (quoting
Fed. R. Civ. P. 13(a)(l)(A)). Because the settlement agreement was unrelated to the subject
matter of Bowling's claims in this suit, a claim for breach of the covenant not to sue is not a
compulsory counterclaim. In addition, though Bowling states that Defendants failed to raise the
covenant as an affirmative defense in their Answer, the filing reveals that they pleaded a defense
under the doctrine of "informed consent, release and waiver," which could encompass a
covenant not to sue, Dkt. No. 27 at 13. Moreover, even if Defendants have failed to effectively
plead the defense, whether it would be waived in this action is far from clear. See, e.g., Sompo

Japan Ins. Co. of Am. v. N01folk S. Ry. Co., 891 F. Supp. 2d 489,495 n.8 (S.D.N.Y. 2012)

10

(rejecting argument that defendants waived a defense based on a covenant not to sue in the
absence of a showing of bad faith, prejudice, or delay in the proceedings),
Bowling's argument that "a covenant not to sue cannot be enforced to bar a plaintiff from
filing suit" is similarly unavailing. Dkt. No. 79 at 4. Even if the existence of a covenant not to
sue is not a "complete bar" to filing an action, it is nonetheless a defense applicable to Bowling
only and therefore relevant to the class certification analysis. See Colton v. New York Hospital,
53 A.D.2d 588, 588 (N.Y. App. Div. 1976) (affirming the denial of summary judgment despite
the existence of a covenant not to sue on the grounds that "the sufficiency of the release should
be left for determination at trial."). Of course, a covenant not to sue is not a "defense to class
certification," but it is a unique defense to Bowling that will require further litigation to
determine its applicability and appropriate remedy, and is therefore relevant to the typicality and
adequacy prongs of Rule 23(a). The Court finds Bowling's arguments insufficient to rebut
Defendants' showing that her claims in this case may be subject to a covenant not to sue.
In addition, the Court concludes that a covenant not to sue is the type of "unique defense"
that could "unacceptably detract from the focus of the litigation to the detriment of absent class
members," In re Omnicom Grp., 2007 WL 1280640, at *4. In cases where some putative class
members have signed releases that may be applicable to their claims, courts have declined to
ce1tify a class on the grounds that an "attack on the settlements or releases would clearly present
individual issues as to the circumstances surrounding the obtaining of the release." Ingenito v.

Bermec Co,p., 376 F. Supp. 1154, 1171 (S.D.N.Y. 1974); see also Romero v. Flaum Appetizing
Cmp., 2011 U.S. Dist. LEXIS 23782, at* 14-22 (S.D,N.Y. Feb. 28, 2011) (collecting cases);
Spann v. AOL Time Warner, Inc., 219 F.R.D. 307, 318 (S.D.N.Y, 2003) (finding typicality and
adequacy requirements unmet where some putative class members executed releases because

11

"the Releases insert individual issues into this lawsuit, and those individualized issues prevent a
finding that the Plaintiffs' claims are typical of those brought for the benefit of the Class,,);

Walker v. Asea Brown Boveri, Inc,, 214 F,R,D. 58, 65 (D, Co1m. 2003) (finding typicality
requirement unmet where named plaintiffs executed releases, because "a fact-specific inquiry
will be necessary to determine whether either of the named plaintiffs knowingly and voluntarily
waived their rights").

It may be that the covenant not to sue is not binding or is inapplicable to Bowling's
claims here, but, in light of the foregoing analysis, the Court concludes she will be required to
"devote considerable time" to rebutting its applicability. In re lndep. Energy Holdings PLC Sec.

Litig., 210 F,R.D. 476,481 (S,D.N.Y. 2002) (quoting Landry v. Price Waterhouse Chartered
Accountants, 123 F.R.D. 474,476 (S,D,N,Y,1989)).
c. Credibility on Key Issues
Defendants argue that Bowling's inconsistent or incredible testimony concerning her
purchase ofBenecol calls into question her veracity on key issues. See Dkt. No. 61 at 9-10,
Specifically, Defendants note that she testified to buying Benecol Light at Walmart either in May
or June of 2011 or in the second half of 2011, but Defendants' records indicate that Benecol
Light was never sold at Walmart. See id. In addition, Bowling testified that she contacted
customer service to request a refund, but there are no records of such contact. Id. Bowling does
not attempt to explain these factual issues, but argues that her credibility on "peripheral details"
is not relevant to this motion. Dkt. No. 76 at 5,
The credibility of a plaintiff can be considered in a motion for class certification, and
denial is appropriate "in cases where the plaintiffs credibility is so vulnerable to attack that the
plaintiff is subject to unique defenses making his claim atypical and antagonistic to the other

12

members of the class." Cruden v. Bank of New York, Nos. 85 Civ. 4170 (JFK), 85 Civ. 4219
(JFK), 85 Civ. 4570 (JFK), 1988 WL 9514, at *5 (S.D.N,Y. Feb, 1, 1988) (citing Kline v. Wolf,
88 F.R.D. 696, 698 (S.D,N.Y. 1981)). A "mere failure to recall certain relevant facts," however,
is not sufficient. Downfo v. Care/ink, Inc,, No. 16-CV-5868 (JPO), 2018 WL 3585282, at *7
(S,D.N.Y. July 26, 2018). Here, Defendants have presented umebutted evidence that Bowling
could not have purchased Benecol Light in the manner in which she has testified; she is therefore
"vulnerable to serious attacks" on her credibility. Kline v. Wolf, 702 F.2d 400, 401 (2d Cir.
1983), Nor can the Court conclude that the circumstances of Bowling's purchase are
"peripheral.'' Indeed, this case is analogous to Kline, in which the Second Circuit upheld a
district court's denial of class certification when a putative class representative testified that he
had purchased the stock at issue in the case in July after reading a rep01i that the record reflected
had not been issued until August. Id. at 401-403. Though the Court does not reach a conclusion
at this stage that Bowling testified falsely, there is nevertheless sufficient justification for the
conclusion that she would not be an adequate class representative in light of the substantial
credibility issues that threaten to undermine her claims. See id. at 403.
***
The Court concludes that Defendants have made a sufficiently clear showing that
Bowling is subject to a covenant not to sue that may be a defense to her claims, In addition,
Defendants have raised credible concerns about the central factual predicate of Bowling's
claim-that she purchased Benecol during the relevant period. Cf Famular v. Whirlpool Corp.,
16 CV 944 (VB), 2019 U.S. Dist. LEXIS 44907, at *8 (S.D.N.Y. Mar. 19, 2019) (rejecting
unique defense argument regarding class representative's standing because plaintiff had
"demonstrated, by a preponderance of the evidence, that he purchased a qualifying washing

13

machine"). These defenses are "meritorious enough to require the plaintiff to devote
considerable time" to rebut them. Lapin v. Goldman Sachs & Co., 254 F.R.D. 168, 1'79
(S.D.N.Y. 2008) (quoting Hallet v. Li & Fung Ltd., No. 95 Civ. 8917 (JSM), 1997 WL 621111,
at *3 (S.D.N.Y. Oct, 6, 1997)); see also Baffa, 222 F.3d at 60 (affirming the district cou1t's
denial of class certification based on a combination of potentially valid defenses and
individualized factual questions). The typicality and adequacy requirements of Rule 23(a) are
not satisfied here.
For these reasons, the Court concludes that the Rule 23(a) prerequisites are not met, and
therefore that Bowling's motion for class ce1tification must be denied. Accordingly, the Comt
does not reach the question of whether Bowling has met the Rule 23(b) requirements.

B. Daubert Motions
The pa1ties have filed motions to exclude the expe1t testimony offered by their opponents
in support of or in opposition to the instant motion for class certification. See Dkt. Nos. 75, 83.
The Court notes that "[n]either the Supreme Court nor the Second Circuit has definitively
decided whether the Daubert standard governs the admissibility of expe1t evidence submitted at
the class certification stage." Chen-Oster v. Goldman Sachs & Co., 114 F. Supp. 3d 110, 114
(S,D,N.Y, 2015), Despite this lack of clarity, courts in the Second Circuit regularly "subject
expert testimony to Daubert's rigorous standards insofar as that testimony is relevant to the Rule
23 class certification analysis." Scott v. Chipotle Mexican Grill, Inc., 315 F.R.D. 33, 55
(S,D.N.Y, 2016). In these instances, the "scope of the Daubert analysis is cabined by its purpose
at this stage: the inquiry is limited to whether or not the expert reports are admissible to establish
the requirements of Rule 23." Chen-Oster, 114 F, Supp. 3d at 115 (internal citation and
quotation marks omitted).

14

In this case, the Court declines to apply the Daubert standard to the parties' expert
testimony because that testimony is not, in this instance, "relevant to the Rule 23 class
certification analysis." Scott, 315 F.R.D. at 55. As discussed above, Bowling fails to meet the
Rule 23(a) prerequisites. In reaching this conclusion, the Court does not rely on any expert
testimony submitted by the parties, nor would consideration of this testimony alter the Court's
findings at this stage. Specifically, the challenged testimony is relevant to (1) whether individual
issues of causation will predominate due to consumers' differing reasons for purchasing Benecol,
(2) whether Bowling has presented a class-wide damages model that is "consistent with [her]
liability case" and that can "measure only those damages attributable to that theory," and (3)
whether Bowling's testimony about her medical condition is reliable. Comcast, 569 U.S. at 35.
With respect to (I) and (2), these questions are relevant to the Rule 23(6) requirements that
"questions of law or fact common to class members predominate over any questions affecting
only individual members," and that "a class action is superior to other available methods foi'
fairly and efficiently adjudicating the controversy," which the Court did not reach, Fed, R. Civ.
P. 23(6)(3). As for (3), the Court concludes that the veracity of Bowling's claims about her
medical conditions is irrelevant to the typicality and adequacy prerequisites because health is
unrelated to the theory of liability advanced in the class certification motion, Accordingly, both
motions to exclude expert testimony are denied in full as moot.

If they deem them relevant to the evidence before the Court on subsequent prnceedings in
this case, the parties are free to refile their motions. See Chen-Oster, 114 F, Supp. 3d at 115 ("It
would be premature to decide [at the class certification stage] whether aspects of an expert
opinion that go exclusively to the merits and not to the elements of Rule 23 would be admissible
in subsequent proceedings."),

15

IV.

Sealing
Finally, the parties have made various requests to file briefing papers and exhibits with

redactions or entirely under seal. See Dkt. Nos. 39; 67; 86; 93; 98; 103; 106, The bases for the
applications are that the documents contain (1) Defendants' proprietary business information; (2)
medical information; (3) confidential settlement information; (4) deposition testimony that a
party has designated confidential under the Stipulated Protective Order entered in this case at
Dkt. No, 22. For the reasons discussed below, the Court finds that these requests are
significantly overbroad and insufficiently justified.
In line with earlier conclusions of the courts of this District, the documents at issue are
"judicial documents" for purposes of the framework for evaluating sealing requests set forth by
the Second Circuit in Lugosch v. Pyramid Co. of Onondaga, 435 F,3d 110 (2d Cir. 2006), See,

e.g., Tropical Sails Corp. v. Yext, Inc., 14-cv-7582 (JFK), 2016 WL 1451548, at *3 (S,D.N,Y,
Apr. 12, 2016) ("[E]xhibits supporting a motion for, or opposition to, class certification would
certainly be relevant to the judicial function and useful to the judicial process in probing behind
the pleadings to determine whether the plaintiffs suit meets the special criteria set forth in Rule
23 for class certification"); Marin. Gawker Media LLC, 13-cv-4347 (AJN), 2015 WL 7288641,
at *2 (S.D.N.Y, Nov, 16, 2015) (deeming "documents submitted in connection with Plaintiffs
Motion for Class Certification" to be judicial documents for purposes of the Lugosch analysis),
Furthermore, having carefully reviewed the documents' contents, the Comt determines that there
is a significant presumption of access to the subject information under both the common law and
the First Amendment. Mark, 2015 WL 7288641, at *2; cf Lugosch, 435 F.3d at 121
("[D]ocuments submitted to a court for its consideration in a summary judgment motion are-as

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a matter of law-judicial documents to which a strong presumption of access attaches, under
both the common law and the First Amendment.").
The analysis does not end here, however. Some redactions and limited sealing may
nevertheless be appropriate if the parties can make a sufficient showing to overcome the
presumption of access. See Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., No. 6:12-CV00196 (BKS)(ATB), 2017 WL 9400673, at *3 (N.D.N.Y. Jan. 6, 2017) ("Having concluded that
both the common law and First Amendment provide a right of access to the documents, the
Court must consider whether countervailing factors outweigh the presumption of access and
whether continued sealing is justified under 'the more stringent First Amendment framework."')
(quoting Lugosch, 435 F.3d at 124).
For example, medical information may properly be filed under seal in some
circumstances in light of the weighty privacy interests at stake. See United States v. Amodeo, 71
F.3d 1044, 1051 (2d Cir. 1995) (noting that "illnesses" are a subject matter than is traditionally
considered private), With respect to proprietary business information, competitive harm from
the disclosure of such information is "potentially sufficient to defeat the presumption in favor of
disclosure." See Standard Inv. Chartered, Inc. v. Nat 'l Ass 'n Sec. Dealers, Inc., 07-CV-2014
(SWK) 2008 WL 199537, at *8 (S.D.N.Y. Jan. 22, 2008),· see also Standard Inv. Chartered, Inc.

v. Fin. Indus. Regulatory Auth., Ind., 347 Fed.Appx. 615,617 (2d Cir, 2009) (upholding a
decision that held that the patty's "interest in protecting confidential business information
outweighs the qualified First Amendment presumption of public access"). Courts in this district
have also noted that "there may well be valid reasons to keep settlement terms confidential,
particularly when the settlement itself was conditioned on confidentiality." Utica Mut. Ins., 2017
WL 9400673, at *5 (internal quotation marks omitted). On the other hand, there is no basis for

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sealing where the parties "have submitted the settlement documents for the identification of a
motion and have not identified any privacy concerns (with any specificity)," Id. (quoting Louis

Vuitton Malletier, S.A. v, Hyundai Motor Am., No. 10 CIV. 161 l(PKC), 2012 WL 1022258, at
*3, (S.D,N.Y. Mar. 22, 2012). The parties are advised that "the mere existence of a
confidentiality agreement covering judicial documents is insufficient to overcome the First
Amendment presumption of access." Aioi Nissay Dowa Ins. Co. v. Prosight Specialty Mgmt. Co.,

Inc., 12-cv-3274 (JPO), 2012 WL 3583176, at *6 (S.D.N.Y. Aug. 21, 2012) (internal quotation
marks omitted),
Though continued sealing may be justified for one or several of the reasons cited by the
parties and discussed above, they have not provided the Court with sufficient or particularized
justifications for the broad sealing that they seek, making it impossible for the Court to weigh the
countervailing interests. Accordingly, the parties' motions for sealing are hereby DENIED.
Within ten business days of the date of this Order, the parties may resubmit proposed redactions
that are narrowly tailored in light of the above analysis. In addition, the parties shall support
their application for redactions and/or sealing with authority and articulated reasoning that is
specific to the content that they seek to keep under seal. If no further application is made within
this time frame, the umedacted materials must be filed on the public docket.
V.

Conclusion

Bowling's application for class certification is hereby DENIED. Defendants' motion to
exclude the expert testimony of J. Michael Dennis and Colin Weir, and Bowling's motion to
exclude the expert testimony of Douglas Nguyen, Carol A. Scott, David J. Reinstein, and Denise
Martin, are DENIED as moot with leave to refile. The parties' requests to file various exhibits

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and briefing papers under seal are DENIED with leave to refile within ten days, as outlined
above.
Because it arguably contains reference to information that the parties have requested be
maintained under seal, this Order shall be filed under TEMPORARY SEAL. The parties are
directed to meet and confer and to advise the Court in writing within ten business days of this
Order whether they believe that any portion should be redacted prior to its public docketing,
Because the Court resolves these motions on the papers, Defendants' request for oral
argument, Dkt. No. 99, is hereby denied.
This resolves Dkt. Nos, 33; 39; 67; 75; 83; 86; 93; 98; 99; 103; and 106.
SO ORDERED,

Dated: March~, , 2019
New York, New York

United States District Judge

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