In re: Scotts EZ Seed Litigation

Filing 317

OPINION AND ORDER re: 226 MOTION to Preclude Bryan Hopkins From Offering Expert Testimony. filed by Gwen Eskinazi, Vance Smith, David A. Browne, Lance Moore, Stacy D. Lonardo, Michael Arcuri, Nancy Thomas, 221 MOTION for a n Order to Exclude Plaintiffs' Proffered Expert Colin B. Weir, pursuant to Daubert, and Rules 702 & 403 of the Federal Rules of Evidence . filed by The Scotts Miracle-Gro Company, Inc., The Scotts Company LLC, 222 MOTION for Summary Judgment . filed by Gwen Eskinazi, Vance Smith, David A. Browne, Lance Moore, Stacy D. Lonardo, Michael Arcuri, Nancy Thomas, 231 MOTION for an Order to Strike Plaintiffs Local Rule 56.1 Statement (Plaintiffs' 56.1 Sta tement to be filed under seal) re: 222 MOTION for Summary Judgment . . filed by The Scotts Miracle-Gro Company, Inc., The Scotts Company LLC, 229 MOTION to Strike Portions Of The Declaration Of Eric Nelson. filed by Gwen Eskinazi, Vance Smith, David A. Browne, Lance Moore, Stacy D. Lonardo, Michael Arcuri, Nancy Thomas, 227 MOTION to Preclude Douglas Soldat From Offering Any Expert Testimony On The Performance Of EZ Seed At Half Water Rat es. filed by Gwen Eskinazi, Vance Smith, David A. Browne, Lance Moore, Stacy D. Lonardo, Michael Arcuri, Nancy Thomas, 220 MOTION for an Order to Exclude Plaintiffs' Proffered Expert Douglas E. Karcher, pursuant to Daubert, and R ules 702 & 403 of the Federal Rules of Evidence . filed by The Scotts Miracle-Gro Company, Inc., The Scotts Company LLC, 217 MOTION for an Order Decertifying the Class pursuant to Fed. R. Civ. P. 23 . filed by The Sco tts Miracle-Gro Company, Inc., The Scotts Company LLC, 225 MOTION to Preclude Scotts From Offering Expert Testimony By Eric Nelson And Michael Faust Concerning EZ Seed's Performance At Half-Water Levels. filed by Gwen Eskinazi, Vance Smith, David A. Browne, Lance Moore, Stacy D. Lonardo, Michael Arcuri, Nancy Thomas, 216 MOTION for Summary Judgment . filed by The Scotts Miracle-Gro Company, Inc., The Scotts Company LLC, 228 MOTION to Strike T he Declarations Of Tiffany Peoples And Emily Winters Pursuant To Fed. R. Civ. P. 56(c)(4) and 56(h). filed by Gwen Eskinazi, Vance Smith, David A. Browne, Lance Moore, Stacy D. Lonardo, Michael Arcuri, Nancy Thomas, 224 MOTION to Prec lude Scotts From Offering Any Expert Testimony On Consumers' Understanding Of The 50% Thicker Claim. filed by Gwen Eskinazi, Vance Smith, David A. Browne, Lance Moore, Stacy D. Lonardo, Michael Arcuri, Nancy Thomas, 223 MOT ION to Preclude Scotts From Offering Any Expert Testimony On The Existence Or Amount Of The Price Premium Attributable To The 50% Thicker Claim. filed by Gwen Eskinazi, Vance Smith, David A. Browne, Lance Moore, Stacy D. Lonardo, Mic hael Arcuri, Nancy Thomas, 219 MOTION for an Order to Exclude Plaintiffs' Proffered Expert J. Michael Dennis, pursuant to Daubert, and Rules 702 & 403 of the Federal Rules of Evidence . filed by The Scotts Miracle-Gro Compan y, Inc., The Scotts Company LLC, 218 MOTION for an Order to Exclude Plaintiffs' Proffered Expert Ramamirtham Sukumar, pursuant to Daubert, and Rules 702 & 403 of the Federal Rules of Evidence . filed by The Scotts Miracle-Gr o Company, Inc., The Scotts Company LLC. Defendants' motion to exclude the testimony of plaintiffs' damages expert Colin B. Weir is GRANTED in part and DENIED in part. The remainder of the Daubert motions and motions to strike are DENIE D. Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Plaintiffs' partial motion for summary judgment is DENIED. Defendants' motion to decertify the class is DENIED. All counsel are directed to appear for an in-person status conference on September 22, 2017, at 2:15 p.m., at which time the Court expects to set a trial date and a schedule for pretrial submissions. By September 15, 2017, the parties shall submit a Joint Pretrial Order in accordance wit h the Court's Individual Practices. The Clerk is instructed to terminate the motions. (Docs. ##216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 231). SO ORDERED., (Pretrial Order due by 9/15/2017., Status Conference set for 9/22/2017 at 02:15 PM before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 8/7/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE SCOTTS EZ SEED LITIGATION
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OPINION AND ORDER
12 CV 4727 (VB)

Briccetti, J.:
Lead plaintiffs Michael Arcuri, David Browne, Gwen Eskinazi, Stacy Lonardo, Lance
Moore, Vance Smith, and Nancy Thomas (collectively, “plaintiffs” or “lead plaintiffs”) bring
this consumer class action against defendants The Scotts Miracle-Gro Company, Inc., and The
Scotts Company LLC (collectively, “Scotts” or “defendants”). Plaintiffs allege causes of action
for false advertising, breach of warranty, and unjust enrichment under New York and California
law.
Now pending are fifteen motions, consisting of nine Daubert motions (Docs. ##218, 219,
220, 221, 223, 224, 225, 226, 227), cross-motions for summary judgment (Docs. ##216, 222),
defendants’ motion to decertify the class (Doc. #217), defendants’ motion to strike plaintiffs’
Rule 56.1 statement (Doc. #231), and plaintiffs’ motions to strike three declarations in whole or
in part (Docs. ##228, 229). For the following reasons, defendants’ motion to exclude plaintiffs’
expert, Colin B. Weir, is GRANTED in part and DENIED in part; defendants’ motion for
summary judgment is GRANTED in part and DENIED in part; and the remaining motions are
DENIED.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d).
BACKGROUND
The parties submitted briefs, statements of fact (“SOF”), and declarations (“Decl.”), with
supporting exhibits, which reflect the following factual background.
1

Scotts Turf Builder EZ Seed (“EZ Seed”) is a “combination product” consisting of
mulch, seed, and fertilizer. (Pls.’ SOF ¶ 3). The mulch in EZ Seed is made “from ground and
compressed coconut shell fibers, which are super-absorbent.” (Id. ¶ 4). Retail sale of EZ Seed
began in January 2009. It is sold “in a variety of package sizes, and with varying seed blends, or
‘flavors.’” (Id. ¶ 6).
During the relevant period, EZ Seed packaging included one of the following claims:
50% THICKER WITH HALF THE WATER**
**Versus ordinary seed when each was watered at half the recommended rate.
Results may vary.
(See Pls.’ Ex. E).
An alternative version of the claim states:
50% THICKER WITH HALF THE WATER††
††Results 32 days after planting; each watered at half the recommended rate for
ordinary seed. Results may vary.
(Defs.’ Response to Pls.’ SOF ¶ 10). 1
In addition, EZ Seed packages included a graphic showing two images side-by-side,
under the “50% THICKER WITH HALF THE WATER††” label, purporting to show a patch of
grass grown using EZ Seed on one side, and using “ordinary seed” on the other. (Pls.’ SOF ¶
12). Below the images, a disclaimer reads: “*Subject to proper care,” 2 and “††Results 32 days

1

Defendants dispute that every EZ Seed product packaging included the 50% thicker
claim. (See Defs.’ Response to Pls.’ SOF ¶ 42). However, plaintiffs point out the product
defendants cite for this—EZ Seed Dog-Spot Repair—“is not at issue in this case.” (Pls.’ Reply
SOF ¶ 42).
2

Scotts denies that the “subject to proper care” disclaimer applies to the 50% thicker
claim. It maintains the “proper care” disclaimer relates instead to the claim also included on the
packaging, but not at issue in this lawsuit, which reads, “so you can grow thick, beautiful grass
anywhere!*.” (Defs.’ Response to Pls.’ SOF ¶ 17; see also id. ¶ 165 (“‘proper care’ is not part of
the 50% thicker claim, which, by definition, compares EZ Seed versus ordinary seed when both
are not treated with proper care.”)).

2

after planting; each watered at half the recommended rate for ordinary seed. Results may vary.”
(Defs.’ Response to Pls.’ SOF ¶ 17).
These claims are referred to together as the “50% thicker” claim.
From January 2009 through 2013, approximately 1,524,812 packages of EZ Seed were
sold in California and approximately 992,338 packages of EZ Seed were sold in New York.
(Defs.’ Ex. 14, Weir Report, ¶ 12).
“Around the end of 2013” Scotts removed the 50% thicker claim from EZ Seed
packaging. (Defs.’ Ex. 1, David Report, ¶ 52). The last day it shipped EZ Seed with the 50%
thicker claim was on March 4, 2014. (Pls.’ SOF ¶ 29). However, Scotts began to use another
claim—“50% thicker will less water† †Versus ordinary seed when both were watered at less than
the recommended rate, after 21 days. Results may vary.”—on secondary packaging. (Defs.’
Response to Pls.’ SOF ¶ 30). At the same time, Scotts added a claim that EZ Seed “Holds Up to
6X its Weight in Water” to the retail packaging of EZ Seed. (Id. ¶ 34).
This class action lawsuit is brought by seven named plaintiffs, who purchased EZ Seed in
New York or California between 2010 and 2012. By Memorandum Decision dated January 26,
2015, the Court certified two classes:
(i)

All persons who purchased EZ Seed in the state of California containing
the label statement “50% Thicker With Half the Water,” excluding
persons who purchased for purpose of resale (the “California Class”).

(ii)

All persons who purchased EZ Seed in the state of New York containing
the label statement “50% Thicker With Half the Water,” excluding
persons who purchased for purpose of resale (the “New York Class”).

(Doc. #127, “Class Cert. Decision,” at 3).
As the Court stated in its decision certifying the class, “[t]he crux of plaintiffs’
complaints is that EZ Seed does not grow grass at all or, in the alternative, does not grow grass
as advertised by the 50% thicker claim.” (Class Cert. Decision at 3). Plaintiffs Browne and
3

Smith purchased EZ Seed in California and represent the California Class. The California Class
brings claims under California’s Unfair Competition Law (“UCL”), False Advertising Law
(“FAL”), and Consumer Legal Remedies Act (“CLRA”), in addition to claims for breach of
express warranty and unjust enrichment. Plaintiffs Arcuri, Eskinazi, Lonardo, Moore, and
Thomas purchased EZ Seed in New York and represent the New York Class. The New York
Class brings claims under New York’s General Business Law (“GBL”), in addition to claims for
breach of warranty and breach of contract.
DISCUSSION
There are currently fifteen motions pending before the Court. The Court will first
address three purely legal issues raised in defendants’ motion for summary judgment, because
those issues affect the remainder of the motions. Second, the Court will address the parties’
competing Daubert motions. Third, the Court will address the remainder of defendants’
arguments for summary judgment and plaintiffs’ motion for summary judgment. Finally, the
Court will resolve defendants’ motion to decertify the class.
I.

Preliminary Issues Raised in Defendants’ Motion for Summary Judgment
A.

Legal Standard

The Court must grant a motion for summary judgment if the pleadings, discovery
materials before the Court, and any affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit under the governing
law. . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

4

A dispute about a material fact is genuine if there is sufficient evidence upon which a
reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010) (citation omitted). It is the moving party’s burden to establish the absence of any genuine
issue of material fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010).
If the non-moving party has failed to make a sufficient showing on an essential element
of his case on which she has the burden of proof, then summary judgment is appropriate.
Celotex Corp. v. Catrett, 477 U.S. at 323. If the non-moving party submits “merely colorable”
evidence, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at
249-50. The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated
speculation.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations
omitted). The “mere existence of a scintilla of evidence in support” of the non-moving party’s
position is likewise insufficient; “there must be evidence on which the jury could reasonably
find” for it. Dawson v. Cty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the Court construes the facts, resolves all ambiguities, and draws
all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc.
v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a
reasonable inference could be drawn in favor of the non-moving party on the issue on which
summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).

5

In deciding a motion for summary judgment, the Court need only consider evidence that
would be admissible at trial. Nora Bevs., Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d
Cir. 1998).
B.

Worthlessness Claim

In its class certification decision, the Court noted plaintiffs had two theories of liability:
(i) that “EZ Seed ‘does not grow grass at all’ and thus is worthless,” (the “worthlessness claim”)
and (ii) plaintiffs “paid an inappropriate premium for EZ Seed based on Scotts’ allegedly false
50% thicker claim.” (Class Cert. Decision at 5, 13).
Defendants now move for summary judgment on the first, “worthlessness claim.”
In response, plaintiffs contend “there is no such claim in the case.” (Pls.’ Opp. at 1, n.1).
Accordingly, defendants’ motion for summary judgment on this point is denied as moot,
and plaintiffs’ “worthlessness claim” is dismissed. The only remaining theory of liability is that
the 50% thicker claim was false or misleading.
C.

The California Claims

Defendants next argue the California claims must be dismissed because they are entitled
to safe harbor with respect to the 50% thicker claim.
The Court agrees with respect to the UCL, FAL, and CLRA claims, but not with respect
to the California express warranty claim or the California unjust enrichment claim.
“‘[C]ourts may not use the unfair competition law to condemn actions the Legislature
permits.’” Alvarez v. Chevron Corp., 656 F.3d 925, 933 (9th Cir. 2011) (quoting Cel-Tech
Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 184 (1999)). Specifically,
“‘[i]f the Legislature has permitted certain conduct or considered a situation and concluded no
action should lie, courts may not override that determination.’” Id. (quoting Cel-Tech

6

Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th at 184). In other words, when
legislation provides such a “safe harbor,” “‘plaintiffs may not use the general unfair competition
law to assault that harbor.’” Id. (quoting Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel.
Co., 20 Cal. 4th at 184). See also Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016)
(quoting Cel–Tech Commc'ns, Inc. v. Los Angeles Cellular Tele. Co., 20 Cal. 4th at 182) (“In
California, unfair competition claims are subject to the safe harbor doctrine, which precludes
plaintiffs from bringing claims based on ‘actions the Legislature permits.’”). “This rule applies .
. . to actions by the California legislature.” Martin v. Medtronic, Inc., 2017 WL 825410, at *15
(E.D. Cal. Feb. 24, 2017) (citing Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1164 (9th
Cir. 2012)). “For the safe harbor doctrine to apply, the challenged conduct must be
‘affirmatively permitted by statute—the doctrine does not immunize from liability conduct that is
merely not unlawful.’” Id. (quoting Ebner v. Fresh, Inc., 838 F.3d at 963). “[C]ourts have
recognized that the [safe harbor] doctrine equally applies to claims under the [UCL,] CLRA and
FAL.” Barber v. Nestlé USA, Inc., 154 F. Supp. 3d 954, 958 (C.D. Cal. 2015) (citations
omitted).
The California Department of Food and Agriculture (“CDFA”) regulates fertilizing
material and, in particular, is charged with registering labels used on fertilizers pursuant to the
California Food and Agricultural Code (“CFAC”). (See Regan Ex. 21, Gunasekara Decl., ¶ 3).
The CFAC requires that “[e]very lot, parcel, or package of fertilizing material distributed into or
within this state shall have . . . a label as required by the secretary, by regulation.” CFAC §
14631. It further states “[t]he secretary may require proof of labeling statements and claims
made for any fertilizing material,” and that “[t]he secretary shall cancel the approval of, or refuse
to approve, a fertilizing material label if the secretary determines that adequate proof of label

7

claims does not exist.” Id. In addition, Section 14681 of the CFAC prohibits the distribution of
“misbranded fertilizing materials,” which includes fertilizing materials that contain “labeling
[that] is false or misleading in any particular way.”
Here, on July 28, 2008 and December 8, 2009, Scotts submitted applications to the
CDFA for fertilizing material registrations to substantiate the 50% thicker claim. (Pls.’ SOF ¶
734). The CDFA reviewed four studies Scotts submitted to support the claim. By letter dated
April 14, 2010, a senior scientist at the CDFA informed Scotts of the CDFA’s conclusion that the
50% thicker claim was substantiated. (Pls.’ Ex. UUU, Nov. 17, 2015, Gunasekara Decl., ¶ 14,
Ex. 8). Accordingly, the California safe harbor applies here.
Plaintiffs contend summary judgment on this point is inappropriate because one of the
studies the CDFA relied on when it approved the 50% thicker claim “was a complete fake.”
(Pls.’ Br. at 1). In particular, plaintiffs point out that one field trial the CDFA scientist relied on
states on the first few pages that the trial was conducted in Gainesville, Florida, but in fact—as
indicated on subsequent pages—it was conducted in Marysville, Ohio. (Pls.’ SOF ¶ 745; Pls.’
Ex. WWW). Plaintiffs have not, however, submitted any evidence that supports the conclusion
that this renders the study a “fake.” They cite deposition testimony by two CDFA scientists who
stated they personally did not create or catch an error in what Scotts submitted. (Pls.’ Ex. XXX,
Ba Dep., at 61 (“Q: Can you explain why there’s data from Ohio attached to a report that says
it’s from Gainesville, Florida? A: Well, that [sic] speculation on my part. . . . Q: You did not do
that? A: Of course not.”); Pls.’ Ex. CCC, Gunasekara Dep., at 49 (“it’s definitely an oversight
on my part that I didn’t catch that.”). Neither scientist testified or suggested the study was a
“fake.” Moreover, the CDFA scientist who originally reviewed the 50% thicker claim rereviewed his work in connection with this litigation and submitted an affidavit stating, among

8

other things, that it is his “and the CDFA’s belief that Scotts has not submitted ‘fabricated’ data
or ‘fake’ studies,” which is “confirmed by the fact that the CDFA has not made any efforts to
penalize Scotts (as CDFA is statutorily authorized to do) . . . [n]or does the CDFA have any
intentions of penalizing Scotts or referring Scotts to the Attorney General with respect to its EZ
Seed Application.” (Regan Decl. Ex. 129, Aug. 25, 2016, Gunasekara Decl. at ¶ 11).
Based on a careful review of all of the relevant testimony and documents put forward by
the parties, the Court finds no reasonable jury could conclude the Scotts trial was a “fake,” and
therefore there is no issue of material fact as to this issue.
Finally, plaintiffs argue the CDFA’s review was not “sufficiently formal to trigger” the
application of the safe harbor. However, the Court agrees with defendants that the question of
whether there was “a formal and deliberative process akin to notice and comment rulemaking or
an adjudicative enforcement action,” applies only to federal agency approval. Hofmann v. Fifth
Generation, Inc., 2015 WL 7430801, at *6 (S.D. Cal. Nov. 20, 2015) (“a federal regulator’s
actions create a safe harbor only under the same circumstances required for preemption,” where
“the agency’s actions ‘[are] the result of a formal, deliberative process akin to notice and
comment rulemaking or an adjudicative enforcement action.’”) (quoting Koenig v. Snapple
Beverage Corp., 713 F. Supp. 2d 1066, 1076 (E.D. Cal. 2010)). The cases addressing approval
by California state agencies do not discuss such a requirement. See e.g., Alvarez v. Chevron
Corp., 656 F.3d at 933–34.
Accordingly, defendants are entitled to summary judgment with respect to the California
UCL, FAL, and CLRA claims. However, neither party addressed in their briefing what affect
this has on the California express warranty claim or the California unjust enrichment claim, both

9

of which the Court previously determined to be appropriate for class treatment. (Class Cert.
Decision at 18-19). Accordingly, at least for now, those claims may proceed.
D.

Statutory Damages Under New York GBL Sections 349 and 350

Defendants next argue statutory damages are not available in class actions brought under
New York GBL Sections 349 and 350. 3
The Court disagrees.
Defendants assert that “[w]hen the New York legislature amended sections 349 and 350
to permit private rights of action [prior to which only the New York Attorney General could
enforce these sections], it did so on the condition that statutory damages would not be
recoverable under sections 349 and 350 in a class action.” (Defs.’ Br. at 7). They point to
legislative history that indicates the original bill as proposed would have expressly permitted
class actions, but that bill was rejected. Ultimately, a compromise was reached to maintain the
ability to recover statutory damages under Sections 349 and 350, but to strike the language that
specifically authorized class action suits. The intended effect of this compromise was to permit
class actions under GBL 349 and 350, but with the understanding that such class actions would
be limited by Section 901(b) of the New York Civil Practice Law and Rules (“CPLR”) 4 to the
recovery of actual damages only. 5
3

Defendants make the same argument in their motion for class decertification papers. The
Court has considered all of the briefing on this point in reaching its conclusion in this section.
4

Section 901(b) provides: “Unless a statute creating or imposing a penalty, or a minimum
measure of recovery specifically authorizes the recovery thereof in a class action, an action to
recover a penalty, or minimum measure of recovery created or imposed by statute may not be
maintained as a class action.”
5

See, e.g., Defs.’ Ex. 31 (“[T]his bill differs from a bill passed by the Assembly earlier this
session . . . which specifically authorized class action suits. That provision . . . was deleted in an
effort to strike a compromise with the Senate. It should be noted that this change does not bar
class actions . . . rather, class actions, for actual damages (not s[t]atutory damages) would still lie
10

However, the Supreme Court in Shady Grove Orthopedic Associates, P.A. v. Allstate Ins.
Co., 559 U.S. 393 (2010) (“Shady Grove”) addressed the interplay between Section 901(b) and
Rule 23 of the Federal Rule of Civil Procedure and determined that, because Rule 23 permits
class actions to be maintained with certain specific criteria, but contains no limitation on the
types of damages recoverable, Section 901(b)’s limitation on the ability to maintain class actions
only for actual damages conflicted with Rule 23, and therefore could not stand, at least in federal
court. Shady Grove, 559 U.S. at 399 (“Because § 901(b) attempts to answer the same question—
i.e., it states that Shady Grove’s suit “may not be maintained as a class action” (emphasis added)
because of the relief it seeks—it cannot apply in diversity suits unless Rule 23 is ultra vires.”).
See also Kurtz v. Kimberly-Clark Corp., 2017 WL 1155398, at *11 (E.D.N.Y. Mar. 27, 2017)
(“A majority of the Court concluded that section 901(b) and Rule 23 do conflict, and that Rule
23 represents a lawful exercise of Congress’s procedural rulemaking power.”).
Defendants claim Shady Grove is inapplicable and statutory damages are not permitted
because “in affirmatively amending the substantive law (GBL §§ 349 and 350) to add private
rights of action under each, the legislature sought to allow for recovery, in a class action, of
actual damages but not statutory damages.” (Defs.’ Br. at 9). They point to language in Shady
Grove stating that the Court did not need to “decide whether a state law that limits the remedies
available in an existing class action would conflict with Rule 23.” 559 U.S. at 401.

under Article 9 of the CPLR.”); Defs.’ Ex. 32 (“This bill does not diminish a part[y’]s right to
initiate a class action. However, in a class action suit the plaintiffs could recover only actual
damages under CPLR §901(b).”); and Defs.’ Ex. 30 (“By taking class action language out of the
bill and by inserting the limiting language of ‘may bring an action in his own name to enjoin’
instead of ‘may bring an action in his own name on behalf of a class of similarly situated
persons’ I feel a fair compromise was set upon.”).

11

The problem with defendants’ argument is that GBL Sections 349 and 350 do not on their
face prohibit statutory damages in class actions. 6 Instead, the legislative history shows the
legislators’ intent was specifically to rely on CPLR Section 901(b) for that prohibition. But
Section 901(b) is no longer valid in federal court after Shady Grove.
Even though the Court does not agree with the implications of Shady Grove—including
that class actions for statutory damages under Sections 349 and 350 may be brought in federal
court, but not state court—it is constrained by them. See Kurtz v. Kimberly-Clark Corp., 2017
WL 1155398, at *58 (“A certified damages class under Rule 23 is not controlled by section
901(b)—statutory damages under section 349(h) are available on a class basis in federal court,
even though they would be barred by section 901(b) if the same action were to proceed in state
court.”); Guido v. L’Oreal, USA, Inc., 2013 WL 3353857, at *16–17 (C.D. Cal. July 1, 2013)
(“The Court acknowledges that, under New York procedural rules, a class action to recover
statutory damages under section 349(h) cannot be maintained [under N.Y. C.P.L.R. § 901(b)] . . .
These rules do not apply to a class action proceeding in federal court, however, despite the risk
of forum shopping this divergence in state and federal law creates.”).
Finally, defendants argue statutory damages in this case “would be grossly excessive and
offend due process.” (Defs.’ Br. at 13). The Court is sympathetic to defendants’ position;
however, this argument is premature at this stage. The Court cannot determine as a matter of law

6

In relevant part, Section 349(h) provides, “[i]n addition to the right of action granted to
the attorney general pursuant to this section, any person who has been injured by reason of any
violation of this section may bring an action in his own name to enjoin such unlawful act or
practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both
such actions.” Section 350(e) provides, “[a]ny person who has been injured by reason of any
violation of section three hundred fifty or three hundred fifty-a of this article may bring an action
in his or her own name to enjoin such unlawful act or practice, an action to recover his or her
actual damages or five hundred dollars, whichever is greater, or both such actions.”

12

that the “the aggregation in [this] class action of large numbers of statutory damages claims . . .
distorts the purpose of both statutory damages and class actions.” Parker v. Time Warner
Entm’t Co., L.P., 331 F.3d 13, 22 (2d Cir. 2003). Defendants’ motion is therefore denied in this
respect without prejudice to raising it again if and when a jury has actually awarded damages, at
which time defendants may make the appropriate motion for a reduction of that award. See id.
(“[I]t may be that in a sufficiently serious case the due process clause might be invoked, not to
prevent certification, but to nullify that effect and reduce the aggregate damage award.”).
Accordingly, the Court concludes statutory damages under GBL Sections 349 and 350
are available to the New York Class. Defendants’ motion for summary judgment with respect to
statutory damages under GBL Sections 349 and 350 must therefore be denied.
II.

Daubert Motions
The Court next turns to the parties’ competing motions for the exclusion of expert

testimony under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (“Daubert”). In
particular, defendants seek to exclude the expert opinions of J. Michael Dennis, Colin B. Weir,
and Douglas E. Karcher. 7 Plaintiffs, for their part, move to exclude defendants’ experts Bryan
Hopkins, Douglas Soldat, Eric Nelson, and Michael Faust, and they seek to prohibit defendants
from presenting any expert testimony regarding consumer understanding of the 50% thicker
claim, or any testimony regarding the existence or amount of the price premium attributable to
the 50% thicker claim.
With the exception of defendants’ motion as to Weir, which is granted in part as
explained below, all these motions are denied.
7

By Notice dated September 1, 2016, plaintiffs withdrew the January 7, 2016, declaration
and report of another of their experts, Dr. R. Sukumar. (Doc. #263). Defendants’ motion for the
exclusion of Dr. Sukumar (Doc. #218) is therefore denied as moot.

13

A.

Legal Standard

Under Rule 702 of the Federal Rules of Evidence, a witness “who is qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony
is based on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the facts of the
case.”
“In Daubert, the Supreme Court articulated four factors pertinent to determining the
reliability of an expert’s reasoning or methodology: (1) whether the theory or technique relied on
has been tested; (2) whether the theory or technique has been subjected to peer review and
publication; (3) whether there is a known or potential rate of error and the existence and
maintenance of standards controlling the technique’s operation; and (4) whether the theory or
method has been generally accepted by the scientific community.” Kass v. W. Bend Co., 2004
WL 2475606, at *4 (E.D.N.Y. Nov. 4, 2004), aff’d, 158 F. App’x 352 (2d Cir. 2005) (summary
order) (citing Daubert, 509 U.S. at 593-94). However, these factors do not constitute a definitive
checklist or test, and the admissibility of expert testimony depends on the particular
circumstances of each case. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999)
(“Kumho Tire”).
“‘The inquiry envisioned by Rule 702 is . . . a flexible one,’ and ‘the gatekeeping inquiry
must be tied to the facts of a particular case.’” Amorgianos v. Nat’l R.R. Passenger Corp., 303
F.3d 256, 266 (2d Cir. 2002) (quoting Daubert, 509 U.S. at 594 and Kumho Tire, 526 U.S. at
150).

14

“Even in light of Daubert and its progeny, exclusion of expert testimony remains the
exception rather than the rule. Instead, ‘[v]igorous 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.’” Qube Films Ltd. v. Padell, 2016 WL 888791, at *2
(S.D.N.Y. Mar. 1, 2016) (quoting Daubert, 509 U.S. at 596; other citations and quotations
omitted).
Moreover, “in analyzing the admissibility of expert evidence, the district court has broad
discretion in determining what method is appropriate for evaluating reliability under the
circumstances of each case.” Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d at 265. That
discretion is particularly broad where the area of expertise in question is not a so-called “hard
science.” See E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370, at *14 (S.D.N.Y. Aug. 31, 2010)
(“Because there are areas of expertise, such as the social sciences in which the research, theories
and opinions cannot have the exactness of hard science methodologies, trial judges are given
broad discretion to determine ‘whether Daubert’s specific factors are, or are not, reasonable
measures of reliability in a particular case.’) (quoting Kumho Tire, 526 U.S. at 153). Still,
“nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence which is connected to existing data only by the ipse dixit of the expert.” Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
“The proponent of expert testimony bears the burden of establishing its admissibility by a
preponderance of the evidence.” Baker v. Urban Outfitters, Inc., 254 F. Supp. 2d 346, 353
(S.D.N.Y. 2003).

15

B.

J. Michael Dennis

First, defendants move to exclude the opinions of J. Michael Dennis, Ph.D.
Plaintiffs offer Dr. Dennis as an expert to opine on the value and consumer perception of
the 50% thicker claim. Dr. Dennis’s analysis consists of a two-part survey: (i) a contingent
valuation method (“CVM”) survey, to measure grass seed purchasers’ valuation of EZ Seed with
and without the 50% thicker claim, and (ii) a consumer-perception survey, to measure
purchasers’ understanding and expectations about the 50% thicker claim (“consumer perception
survey”).
Defendants do not contest Dr. Dennis’s expert qualifications. Instead, they argue the
methodologies he applied warrant exclusion of his testimony here. In particular, defendants
argue Dr. Dennis’s opinions must be excluded for at least ten reasons: (i) he failed to survey the
proper universe; (ii) he failed to include a control group; (iii) the CVM survey measured
subjective willingness to pay, not price premium; (iv) the CVM survey itself cannot provide an
accurate or reliable damages assessment; (v) the CVM survey did not replicate market
conditions; (vi) the CVM survey was leading and biased; (vii) the consumer perception survey
was biased; (viii) the consumer perception survey omitted key label information such as watering
instructions from the package shown to respondents; (ix) the consumer perception survey lacked
open-ended questions, rendering it suggestive; and (x) the consumer perception survey did not
test consumer understanding.
Each of these arguments “ultimately go to the weight, not the admissibility, of [Dr.
Dennis’s] testimony and are fodder for cross-examination, not exclusion.” In re Gen. Motors
LLC Ignition Switch Litig., 2017 WL 2664199, at *2 (S.D.N.Y. June 20, 2017).

16

First, Dr. Dennis has thoroughly explained the rationale behind his decisions in
constructing the CVM and consumer perception surveys. For example, he explains “[t]here is no
such thing” as a control group in CVM, and that “[i]n more than 12 years of designing and
conducting CVM surveys, I have never employed a control group or seen another expert use a
control group in a CVM study.” (Dennis Reply Decl. ¶ 23). This is not his so-called ipse dixit;
he is relying on his extensive experience in the field, which defendants do not question. This is
of course open to attack on cross-examination or via testimony of one or more of defendants’
witnesses.
Likewise, defendants’ argument that Dr. Dennis should have surveyed people who
purchased and used EZ Seed or a “comparable combination product,” rather than people who
had previously purchased a combination product or ordinary grass seed (Defs.’ Br. at 6-7), goes
to the weight, not admissibility of Dr. Dennis’s opinions. Defendants argue this failure
“undermines [Dr. Dennis’s] entire CVM analysis” because he never asked what the survey
respondents would pay for the product with the claim, instead assuming they would be willing to
pay the survey-set price of $15.00. (Id. at 7). However, Dr. Dennis makes clear he relied on
“actual Scotts EZ Seed price data and advertising circulars” when setting the $15.00 price for the
product with the 50% thicker claim. (Defs.’ Ex. 11, Dennis Decl., at ¶ 34). Defendants’
quibbles with whether this was the best starting point price are “insufficient to render the survey
inadmissible.” Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 510
(S.D.N.Y. 2015).
The Court similarly rejects defendants’ argument that Dr. Dennis’s CVM survey should
be excluded because it measured respondents’ willingness to pay, not price premium. At the
Daubert stage, the Court is tasked with determining whether the expert testimony will “assist the

17

trier of fact to understand the evidence or to determine a fact in issue.” Daubert, 509 U.S. at 591
(quoting Rule 702). “This condition goes primarily to relevance,” and “‘[e]xpert testimony
which does not relate to any issue in the case is not relevant and, ergo, non-helpful.’” Id.
(quoting 3 J. Weinstein & M. Berger, WEINSTEIN’S EVIDENCE ¶ 702[02], at 702–18 (1988)).
Even if defendants are right that Dr. Dennis does not measure the precise price premium amount
attributable to the 50% thicker claim, his analysis is relevant to the issue of injury at the very
least, and provides some evidence of a price premium. It will assist the trier of fact because, as
defendants admit, it shows at least half of the equation—the demand side. Their critique that it
says nothing about the supply side is appropriate for cross-examination, but does not warrant
exclusion. Dzielak v. Whirlpool Corp., 2017 WL 1034197, at *19 (D.N.J. Mar. 17, 2017)
(“Defendants’ challenges to the ‘willingness to pay’ and survey population components go to
weight, not admissibility. The defendants’ criticisms are far from frivolous. Those criticisms,
however, do not so undermine the reliability of Dr. Dennis’s methods or their application to the
case as to warrant exclusion.”). 8
The Court similarly rejects defendants’ argument that CVM “does not provide a good
basis for . . . accurate damages assessments in judicial proceedings,” (Defs.’ Br. at 12 (internal
quotations omitted)), and that CVM is better suited to measure the value of items “not ordinarily
bought and sold,” such as public goods. (Id. at 11 (internal quotations omitted)). There is at
least one reason this is appropriate here: no version of EZ Seed was sold on the market during
8

Moreover, the price premium measurement of damages is less important in light of the
fact that statutory damages are available for the New York class bringing claims under New
York GBL Sections 349 and 350 (and because the Court dismisses most of the California
claims), as explained above. Because statutory damages are available for the New York class,
and likely to be greater than an individual’s actual damages, the calculation of damages are
easily measured without an elaborate calculation of the difference between the actual price and
the theoretical price of EZ Seed without the 50% thicker claim.

18

the relevant period without the 50% thicker claim (other than the EZ Seed Dog-Spot Repair
mentioned supra n.1, which is “not at issue in this case”), and thus there was an “absence of
actual market transactions that would reveal the value that consumers place on the product
without the ‘50% thicker’ label.” (Dennis Report ¶ 30). Therefore, the CVM survey “creates
such a hypothetical marketplace where consumers can compare the two products.” (Id.). As a
result, the Court concludes CVM was “a reasonable, reliable methodology” for Dr. Dennis to
have used. Dzielak v. Whirlpool Corp., 2017 WL 1034197, at *17; see also Kurtz v. KimberlyClark Corp., 2017 WL 1155398, at *58.
Defendants also argue Dr. Dennis did not include a “control question”—meaning
questions with a “don’t know” or “no opinion” possible response—in parts of his survey. (Defs.’
Br. at 17). However, a review of the survey itself shows that many of the questions did have
such questions. (See Dennis Report, Attachment F, pp. 22-24). His decision to have some but
not all of his questions include control answers is fodder for cross-examination.
Defendants argue Dr. Dennis’s CVM survey creates “biasing demand artifacts,”
“focalism bias,” and “starting point bias.” (Defs.’ Br. at 18-20). They argue Dr. Dennis’s survey
highlights the 50% thicker claim, and forces the survey respondents to focus on that claim. This
“suggest[s] to respondents that the claim bears significance.” (Id. at 19). This is different from a
real-life in-store purchase, where the 50% thicker label “is one of many [labels] on a product that
is one of many [products] available for purchase, making it far less likely that consumers will
focus” on it. (Id.). Similarly, they argue Dr. Dennis’s survey creates starting point bias by
giving respondents only two potential “starting ‘bids’ of $12 or $14,” which causes respondents
to be “anchored” to those starting bids. (Id. at 20).

19

But Dr. Dennis carefully explained the efforts he went through to ensure the reliability of
his survey results. For example, Dr. Dennis explains that he “modified the branding and product
descriptors of the EZ Seed product to disguise the EZ Seed product from the purchasers
responding to the survey . . . in order to prevent respondents from answering the valuation
questions by relying on pre-existing beliefs, opinions, and attitudes towards the Scotts brand
name.” (Dennis Report ¶ 22). He further explains that by creating this “fictitious product” he
“was able to isolate the effect of the ‘50% thicker’ label and prevent extraneous variables, such
as brand name, from influencing respondents’ valuations.” (Id.). Moreover, he used an
established surveying company to build his survey and conducted an “incidence check survey” to
estimate the percentage of the surveyed population that would meet the target group of “qualified
grass seed purchasers.” (Dennis Report ¶ 49). He also pre-tested the survey questionnaire to
assure its quality and identify improvements. (See id. ¶¶ 50-52). In addition, he carried out
telephone interviews with seven pre-test respondents to determine whether any of his questions
were confusing or unclear, and made certain revisions accordingly based on these interviews.
(Id. ¶¶ 55-56). The Court again concludes Dr. Dennis’s methods “do not raise significant
Daubert problems,” and any weaknesses may be more properly brought out on crossexamination. Dzielak v. Whirlpool Corp., 2017 WL 1034197, at *20.
Finally, for largely the same reasons the Court accepts the CVM survey as reliable under
Daubert, the Court concludes Dr. Dennis’s methodology in the consumer perception survey will
assist the trier of fact in evaluating issues in this case, is based on sufficient facts and data, and is
“the product of reliable principles and methods,” and that Dr. Dennis has “reliably applied
th[ose] principles and methods to the facts of th[is] case.” Rule 702; see also Daubert, 509 U.S.
at 594-95. Plaintiffs’ criticisms to the contrary “ultimately go to the weight, not the

20

admissibility, of [Dr. Dennis’s] testimony and are fodder for cross-examination, not exclusion.”
In re Gen. Motors LLC Ignition Switch Litig., 2017 WL 2664199, at *2.
C.

Colin B. Weir

Next, defendants move to exclude the opinions of Colin B. Weir.
Plaintiffs’ offer Weir as an expert to opine on damages calculations. Weir’s analysis
consisted of providing a damages calculation “on a Class-wide basis using common evidence
resulting from Plaintiffs’ theories of liability.” (Defs.’ Ex. 14, Weir Report ¶ 3).
Here, again, defendants do not contest Weir’s qualifications as an expert. Instead, they
argue his methodologies warrant exclusion.
The Court agrees in part with defendants’ arguments.
In his January 8, 2016, report, Dr. Weir provides three proposed damages models: (i) full
compensatory damages, (ii) price premium damages, and (iii) statutory damages.
For the full compensatory damages calculation, Weir proposes multiplying the average
price per unit of EZ Seed—$20.79 in California, and $21.35 in New York—by the total number
of sales in each state. Alternatively, he proposes “using only sales data from four retailers:
Home Depot, Lowes, Walmart and Sam’s Club,” which “comprise some 74% of all of the
Product units sold in California and New York during the class period.” (Weir Report ¶¶ 10,
15). The Court concludes this proposed damages calculation does not “fit” with any of the
theories of the case. Daubert, 509 U.S. at 591.
In particular, full compensatory damages would be relevant if plaintiffs still claimed EZ
Seed does not grow grass at all, and therefore consumers are entitled to a full refund. However,
plaintiffs have withdrawn that claim. (See Pls. Opp. to Defs.’ Motion for Summary Judgment, p.
1, n.1 (“[T]here is no such claim in this case.”)). Accordingly, because this damages model does

21

not relate to an issue in the case, it is not relevant or admissible. Daubert, 509 U.S. at 591; see
also Comcast Corp. v. Behrend, 569 U.S. 27 (2013).
Next, Weir proposes calculating price premium damages in three ways.
First, he proposes relying on a single Scotts document, which states “[c]onsumers are
already paying a 34% premium for EZ Seed compared to using seed, soil and starter combined
on a sq ft coverage basis.” (Defs.’ Ex. 43 at SMG-EZ009018; Weir Report ¶ 27). Based on this
document alone, Weir proposes applying a 34% price premium to the total retail sales in dollars
to calculate price premium damages. However, this is insufficiently reliable under Daubert. As
Weir himself admits, the document “does not appear to include controls to ensure the entire
premium is attributable solely to the [50% thicker claim].” (Weir Report ¶ 29). Moreover, as
Scotts points out, “[t]here are a number of differences between EZ Seed and its physical
components sold separately including . . . the convenience of purchasing one product instead of
three.” (Defs.’ Br. at 17). Accordingly, Weir will not be permitted to testify regarding his price
premium calculation relying on this Scotts document. See Dzielak v. Whirlpool Corp., 2017
WL 1034197, at *24 (“to extract a 55.7% Energy Star price premium for the Washers based on
this document, without any independent investigation into the data depicted in the document, is
just too much.”).
Second, Weir proposes relying on Dr. Sukumar’s estimation of the price premium to
calculate price premium damages. However, plaintiffs have withdrawn Dr. Sukumar’s report.
(See Doc. #263). Accordingly, Weir’s methodology relying on it may not be used at trial.
However, the Court concludes Weir’s third proposed method of calculating price
premium damages is admissible. In particular, he relies on the expert work and report of Dr.
Dennis for the price premium percentage, then applies that to the total retail sales for a damages

22

calculation. (Weir Report ¶¶ 30-34). The Court concluded above that Dr. Dennis’s opinions are
admissible. Because Weir’s application of that analysis to calculate damages will be helpful to a
jury, is based on sufficient facts and data, and the principles and methods he uses are reliable and
reliably applied, it is admissible.
The Court rejects defendants’ argument that Weir is merely “bootstrapping” his
testimony on that of Dr. Dennis, and that the probative value of his “elementary multiplication is
virtually zero.” (Def. Br. at 13). As Weir explains, he “reviewed the production of sales
records” in addition to “data that appear to show the number of wholesale packages of EZ Seed
Products sold by Scotts,” and calculated the “average price per unit.” (Weir Report ¶¶ 10-11).
He then used the results of Dr. Dennis’s survey as an “input” in his damages calculation. (Id. ¶
34). This evidence will “assist the trier of fact to understand the evidence or to determine a fact
in issue.” Fed. R. Evid. 702.
Finally, Weir’s damages calculations are admissible with respect to the calculation of
statutory damages under New York GBL Sections 349 and 350. He uses the sales data numbers
from Home Depot, Lowes, Walmart and Sam’s Club and total retail sales for the number of
“violations” and multiplies that by the statutory amounts of $50 (for the New York GBL Section
349 claim) and $500 (for the New York GBL Section 350 claim). Although hardly a
complicated analysis, his testimony and explanation of his calculations will assist the trier of fact
in understanding how he calculated the number of “violations”—which defendants are of course
welcome to attack on cross-examination—and how that translates into a total damages amount.
Defendants’ criticisms of this methodology are well-taken, but fall short. Ultimately, they are
“largely beside the point [because] [o]nce an injury is established, statutory damages can be
precisely calculated for each class member.” Kurtz v. Kimberly-Clark Corp., 2017 WL

23

1155398, at *57. The Court thus concludes it is permissible to have Weir explain this calculation
to the jury.
D.

Douglas E. Karcher

Defendants also move to exclude the opinions of Douglas E. Karcher, Ph.D.
Plaintiffs’ offer Dr. Karcher as a turfgrass expert. Dr. Karcher conducted a trial to test
the growth of Scotts EZ Seed as compared to ordinary seed when each was watered at half the
recommended rate. In addition, Dr. Karcher reviewed eighteen trials conducted by Scotts
research scientists and university scientists.
Again, defendants do not contest Dr. Karcher’s qualifications as an expert; instead, they
argue his methodologies and opinions are flawed and unreliable. In particular, they argue Dr.
Karcher made at least eight errors that render his analysis unreliable, as follows:
•

Dr. Karcher failed to follow “basic scientific method” when he conducted his
grass seed trial, primarily because he introduced more than one independent
variable, only tested “a single package of EZ Seed that he mail ordered from an
unknown vendor on Amazon.com,” and then “failed to account for the possibility
of non-viable seed.” (Defs.’ Br. at 10).

•

Dr. Karcher compared two different groups of grass species and used a “flavor” of
EZ Seed not sold in Arkansas, where he tested it. (Defs.’ Br. at 13-15).

•

Dr. Karcher failed to control for certain variables—including seed count, mulch,
fertilizer, and raking—rendering his test unreliable. (Defs.’ Br. at 15-16).

•

Dr. Karcher improperly used “reference evapotranspiration,” or “ETo”—an
estimate of the amount of water lost to evaporation (from the soil surface) and
transpiration (from the plant leaves)—instead of trying to determine the actual
ET, to determine how much water to use to water at full and half rates. (Defs.’
Br. at 17-18).

•

Dr. Karcher did not test “ordinary seed” because he added mulch and fertilizer to
plain seed. (Defs.’ Br. at 19).

•

Dr. Karcher did not follow the directions included on the EZ Seed package
requiring a “deep and thorough initial watering.” (Defs.’ Br. at 21).

24

•

Dr. Karcher’s reliance on publicly available 30 year average ETo calculations
taken from RainMaster.com was improper because this data is “completely
divorced from the actual conditions experienced during the Scotts trials.” (Defs.’
Br. at 23).

•

Dr. Karcher’s results “could be highly prejudicial to a jury,” and “are not
probative as to the truth or falsity of the 50% Thicker claim.” (Defs.’ Br. at 2425).

Ultimately, the Court concludes each of these critiques goes to the weight, not the
admissibility of Dr. Karcher’s testimony. They can be brought out through cross-examination or
the introduction of other relevant evidence at trial. Dr. Karcher’s grass seed trial and opinions
are relevant to a central issue in the case—whether the 50% thicker claim is misleading—and it
will help a jury better understand that issue. In addition, plaintiffs have met their burden of
showing that Dr. Karcher used scientific data and reliable principles and methods which were
reliably applied. For example, they explain that Dr. Karcher has now “confirmed that the EZ
Seed he tested was viable” (Pls.’ Opp. at 9); the “flavor” of EZ Seed he tested was “the most
similar to the EZ Seed products sold to each of the seven named plaintiffs” (id. at 10); he applied
fertilizer and mulch to the ordinary seed and raked it because he was testing EZ Seed against
ordinary seed when both were “subject to proper care with the exception of applying the
recommended rate of water” (id. at 13); and he explained that the use of ETo is “well-accepted in
the turfgrass science community to irrigate establishing turfgrass from seed in bare soil.” (Id. at
15).
Accordingly, the motion to exclude Dr. Karcher is denied.
E.

Douglas Soldat

Turning now to plaintiffs’ motions to exclude defendants’ experts, plaintiffs’ first move
to exclude Douglas Soldat, Ph.D.

25

Defendants offer Dr. Soldat as an expert on “the water holding and release characteristics
of Scotts EZ Seed.” (Marchese Decl. Ex. TTT, Soldat Report, ¶ 2).
Plaintiffs argue Dr. Soldat’s opinions should be excluded under Rules 401 and 702.
(Doc. #227). However, they do not take issue with Dr. Soldat’s credentials or with his
methodology. Instead, they argue his opinions are “not relevant to any issue in this case”
because he did not test the 50% thicker claim. (Pls. Br. at 1-2).
It appears Dr. Soldat’s opinions relate to plaintiffs’ first theory of liability—that EZ Seed
does not grow grass at all. (Defs.’ Opp. at 1 (“Dr. Soldat’s expert opinions directly refute the
allegations made in the very first paragraph of Plaintiffs’ complaint . . . that ‘EZ Seed does not
grow grass at all and thus is worthless.’”)). Plaintiffs have now abandoned that claim.
Defendants’ opposition to plaintiffs’ motion contains one sentence suggesting Dr. Soldat may be
called to testify regarding the 50% thicker claim: “[E]ven if ‘half the water’ is the only relevant
issue, Dr. Soldat’s trial provides insight on the performance of EZ Seed at any water content.”
(Defs.’ Opp. at 3).
Because it is likely Dr. Soldat will not be called to testify at trial now that the
worthlessness claim has been eliminated from the case, the Court denies as moot plaintiffs’
motion to exclude Dr. Soldat, without prejudice to renewal should defendants seek to call Dr.
Soldat to testify regarding the 50% thicker claim.
F.

Bryan Hopkins

Plaintiffs also move to exclude the opinions of Bryan Hopkins, Ph.D.
Defendants offer Dr. Hopkins as a turfgrass expert.
Plaintiffs argue Dr. Hopkins failed to make a required disclosure, is not qualified to
testify as a turfgrass expert, and that his methodologies are deficient.
The Court disagrees.
26

First, plaintiffs argue Dr. Hopkins’s report does not comply with Fed. R. Civ. P. 26
because it fails to include a list of cases in which he has testified during the previous four years.
Defendants point out this was an error which was remedied when Scotts identified and provided
the deposition transcript from the one case Dr. Hopkins was involved in previously, more than a
week before Dr. Hopkins’s deposition in this case. The Court therefore concludes the failure to
comply with Rule 26 was harmless and does not justify exclusion.
Plaintiffs next argue Dr. Hopkins is a “potato specialist” and not a turfgrass specialist,
and that he made errors regarding turfgrass physiology, such that he is not qualified to offer
expert opinion testimony in this case. The “Qualifications Summary” included in Dr. Hopkins’s
report belies this assertion. Dr. Hopkins holds an “A.A.S. degree in Horticulture with a
Turfgrass Science specialty” from Brigham Young University (“BYU”) and he has a Ph.D. in
Agronomy from Kansas State University. He is a professor at BYU, where he teaches
“undergraduate and graduate courses in Turfgrass Science,” among other things, and he
“consult[s] extensively with agricultural and turfgrass clients.” (Defs.’ Ex. 9, Hopkins Report,
¶¶ 2-5). Just because Dr. Hopkins has held himself out as a “potato specialist” elsewhere and
because plaintiffs’ expert has identified “errors,” does not preclude Dr. Hopkins from being
qualified as a “turfgrass specialist” here. The Court has reviewed Dr. Hopkins’s resume and
report and concludes he is qualified to testify as a turfgrass specialist at trial.
Finally, plaintiffs argue Dr. Hopkins’s analysis is irrelevant to the issues in this case for
several reasons. In particular, they argue:
•

Dr. Hopkins “did not report the results of any tests of EZ Seed as sold to
consumers.” (Pls.’ Br. at 4).

•

Dr. Hopkins’s “tests are not representative of how consumers use EZ Seed”
because, among other things, he planted the seed in 3-inch pots instead of planting

27

them directly into the ground. These pots did not permit proper drainage, thus
keeping the soil artificially wet. (Pls.’ Br. at 4-5).
•

Dr. Hopkins “failed to conduct any testing at half the recommended rate for
watering ordinary seed” because he saturated the pots from the bottom-up, he did
not calculate the amount of water used for the initial saturation, he exceeded the
rate of watering ordinary seed, his water loss method was flawed, and his tests
cannot be replicated. (Pls.’ Br. at 4-10).

•

Dr. Hopkins did not review Dr. Hignight or Scotts’ own trials, rendering invalid
his criticisms of Dr. Karcher’s review of them. (Pls.’ Br. at 11-12).

Ultimately, much like the defendants’ criticisms of Dr. Karcher’s opinions, the Court
concludes each of plaintiffs’ attacks on Dr. Hopkins’s methodologies go to the weight, not the
admissibility of his testimony. Dr. Hopkins’s analysis and opinions are relevant to a central
issue in the case—whether the 50% thicker claim is misleading—and they will help a jury better
understand that issue. In addition, defendants have met their burden of showing that Dr. Hopkins
used scientific data and reliable principles and methods which were reliably applied. Plaintiffs
are welcome to attack the specifics of those methods on cross-examination at trial.
Accordingly, the Court declines to exclude Dr. Hopkins’s opinions.
G.

Plaintiffs’ Motion to Exclude Scotts from Offering Expert Testimony Regarding
Price Premium

Plaintiffs next seek to preclude defendants from “offering any opinion on the existence or
amount of the price premium associated with the 50% Thicker Claim.” (Pls. Br. at 1). This is
essentially a Daubert motion to exclude defendants’ damages experts, Jesse David, Ph.D., Jacob
Jacoby, Ph.D., and David Reibstein, Ph.D., from testifying regarding the price premium issue.
Plaintiffs argue that because Dr. David, Dr. Jacoby, and Dr. Reibstein did not attempt to
isolate the price premium attributable to the 50% thicker claim, Scotts should not be permitted to
offer any expert opinion on the existence or amount of the price premium. Defendants counter
that neither Dr. Jacoby nor Dr. Reibstein intends to testify concerning the existence of a price

28

premium; rather, they plan to testify regarding plaintiffs’ experts’ analysis of the price premium,
and why they believe those analyses are “fatally flawed.” (Defs’. Br. at 3). Defendants state Dr.
David is a “possible exception” because he conducted a “difference-in-differences analysis” and
“conclude[d] that there was no price premium attributable to the 50% thicker Claim.” (Defs.’ Br.
at 2, n.3). Plaintiffs argue Dr. David’s opinions should be excluded because he failed to control
for several variables—including that Scotts continued to use a different label relating to growing
grass 50% thicker (namely “50% thicker With Less Water”) on secondary packaging; the 50%
thicker label was replaced by a new “6x claim” (that EZ Seed “holds up to 6X its weight in
water”) (Pls. Br. at 4); the product did not “sell in more volumes” post-January 2014 as Dr.
David’s report states (id. at 6); and grass seed prices increased market-wide from 2013-2014.
Plaintiffs otherwise do not critique Dr. David’s qualifications or methodology.
The Court concludes Dr. Jacoby’s and Dr. Reibstein’s testimony regarding critiques of
plaintiffs’ experts’ price premium analysis is highly relevant to the issues in the case. Nature’s
Plus Nordic A/S v. Nat. Organics, Inc., 982 F. Supp. 2d 237, 239 (E.D.N.Y. 2013) (“expert
opinions . . . which assess or critique another expert’s substantive testimony are relevant,” and
“need not provide an independent analysis.”) (internal quotations and citations omitted).
Accordingly, and because plaintiffs do not critique these experts’ actual methodology, the Court
concludes exclusion of these opinions would be inappropriate. With respect to Dr. David, the
Court concludes his choices to control for certain factors but not others do not render his
opinions or testimony inadmissible. Any such critiques may be adequately addressed on crossexamination at trial.

29

H.

Plaintiffs’ Motion to Exclude Scotts from Offering Expert Testimony Regarding
Consumer Understanding

Plaintiffs argue the Court should not permit defendants’ experts Dr. Jacoby or Dr.
Reibstein to testify regarding how consumers understood the 50% thicker claim because they did
not conduct any consumer surveys of their own to counter Dr. Dennis’s consumer survey, or the
Smith-Dahmer survey, on which plaintiffs also rely. However, plaintiffs fail to assert any valid
reasons under Rule 702 or Daubert for why this testimony should be excluded. Moreover, Dr.
Jacoby’s and Dr. Rubinstein’s critiques of Dr. Dennis’s analysis are relevant and will assist the
jury in evaluating central issues in this case, regardless of whether they do their own analyses on
the same points. Nature’s Plus Nordic A/S v. Nat. Organics, Inc., 982 F. Supp. 2d at 239. As a
result, plaintiffs’ arguments, in addition to those raised for the first time in their reply regarding
the testimony of Ann Dahmer, of the the Smith-Dahmer survey, are best addressed in motions in
limine or on cross-examination at trial.
I.

Plaintiffs’ Motion to Exclude Eric Nelson and Michael Faust

Finally, plaintiffs move, pursuant to Rule 702 and Daubert, to preclude Scotts from
offering the expert testimony of Eric Nelson and Michael Faust concerning EZ Seed’s
performance at half-water levels. Defendants counter that Daubert does not apply to Dr. Nelson
and Faust’s testing of EZ Seed because they are fact witnesses, and their testimony relates to
“facts about testing not prepared for litigation.” (Defs.’ Br. at 3). In the alternative, defendants
argue Dr. Nelson and Faust’s tests are admissible under Daubert.
Defendants represent that “[n]either Dr. Nelson nor Mr. Foust is a retained expert
witness, and their testimony relates [to] facts about testing not prepared for litigation.” (Defs.’
Br. at 3). The Court understands from this that Dr. Nelson and Foust will be treated as fact
witnesses and as such, the admissibility of any opinion testimony they may be asked to provide

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at trial will be evaluated under Federal Rule of Evidence 701 (“If a witness is not testifying as an
expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the
witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.”) and not under Rule 702.
Based on that understanding and because deciding plaintiffs’ Daubert motion with
respect to Dr. Nelson and Foust is not necessary for deciding the parties’ cross-motions for
summary judgment, plaintiffs’ motion to preclude the testimony of Dr. Nelson and Foust is
denied without prejudice. Plaintiffs will be permitted to raise objections to particular questions
at trial. See In re Gen. Motors LLC Ignition Switch Litig., 2017 WL 2664199, at *4 (Denying a
Daubert motion “without prejudice to objection at trial should [plaintiff] believe that [defendant]
crosses the line by eliciting” certain opinions from the witness.).
Plaintiffs also move to strike eight paragraphs of Dr. Nelson’s declaration and one exhibit
he relied on. (Doc. #229). They argue certain statements should be stricken under Daubert,
others should be stricken because they contradict previous deposition testimony, and the exhibit
should be stricken because it was not produced in the context of discovery. Defendants respond
that the paragraphs in question do not contradict Dr. Nelson’s deposition testimony, are based on
his personal observations and knowledge, and that they produced the exhibit in question at a late
stage in response to an argument by plaintiffs raised for the first time post-discovery.
At this juncture, the Court rejects plaintiffs’ argument that the disputed paragraphs and
exhibit render Dr. Nelson’s affidavit a “sham.” (Pls.’ Br. at 2). The Court denies plaintiffs’
motion without prejudice to renewal at the motions in limine stage or at trial, if appropriate.

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III.

Summary Judgment on the 50% Thicker Claim
The Court incorporates by reference the standards for summary judgment provided

above.
A.

Defendants’ Motion for Summary Judgment

The Court has already addressed the first three arguments in defendants’ motion for
summary judgment—namely, the “worthlessness” claim, the California safe harbor, and New
York statutory damages. Now that the relevant Daubert motions have been decided, the Court
turns to defendants’ argument that they are entitled to summary judgment on plaintiffs’ claim
that the 50% thicker claim is false or misleading.
In particular, defendants argue plaintiffs cannot show class-wide injury stemming from
the 50% thicker claim, and that no jury reasonable could conclude the 50% thicker claim is false
or misleading.
The Court disagrees.
Defendants argue plaintiffs cannot prove “price premium” injury because they “have no
evidence—expert or otherwise—that Scotts was willing to sell EZ Seed for less” without the
50% thicker claim than it would with the claim included on its packaging. (Defs.’ Br. at 17). In
response, plaintiffs cite several categories of evidence addressing this point. For one, they cite
testimony by Scotts’ Vice President of Marketing, John Sass, who said the 50% thicker claim
was “the number one issue” for consumers because “the number one concern consumers have is
all around watering.” (Pls.’ SOF ¶ 2). 9 They also cite testimony of Scotts’ Director of

9

Defendants have moved to strike plaintiffs Local Rule 56.1 statement. (Doc. #231). The
Court agrees with defendants that plaintiffs’ 56.1 statement is unnecessarily long, repetitive, and
contains some facts that do not appear to be material. Nevertheless, the 56.1 statement is helpful
in many respects and the Court sees no need to strike it in order to reach the substantive issues on
summary judgment, so it declines to do so. See Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d
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Marketing, Tiffany Peoples, who testified “[p]roduct claims were one of the many factors that
contributed to determining that this deserved to be a premium price.” (Regan Decl. Ex. 37,
Peoples Dep., at 143). 10 In addition, plaintiffs’ experts Dr. Dennis and Weir will further testify
regarding their analyses of the price premium. As a result, there is a material question of fact
regarding whether the price of EZ Seed would have been lower without the 50% thicker claim.
Defendants also argue that when Scotts removed the 50% thicker label, the price went up,
not down. They say this definitively disproves plaintiffs’ 50% thicker claim. Defendants cite
their economics expert, Dr. David, for this proposition. Specifically, among other things, Dr.
David determined that EZ Seed’s price increased 7.5% between 2013 and 2014. However, as
plaintiffs point out, Dr. David’s analysis only looked at one variety of EZ Seed that was sold in
California, not in New York. (Pls. Opp. at 26, n.14). It is therefore of only limited relevance or
weight, especially now that the Court has dismissed most of the California claims. Moreover,
plaintiffs’ expert Weir analyzed price data and determined prices rose market-wide during this
period, which would also tend to undermine defendants’ argument on this point.

Cir. 2001) (“A district court has broad discretion to determine whether to overlook a party’s
failure to comply with local court rules.”).
10

Peoples submitted a declaration in connection with the instant motions in which she
writes, “[i]f Scotts had not made the 50% thicker claim, EZ Seed’s invoice price and suggested
retail price would have been the exact same. Scotts was not willing to sell EZ Seed for any less
than the prices that it set in 2009.” (Regan Ex. 38 ¶ 5). A reasonable jury could conclude this
testimony is not credible, especially in light of Peoples’s seemingly contradictory deposition
testimony.
Nevertheless, the Court rejects plaintiffs’ argument that the Peoples declaration, and that
of Peoples’s successor, Emily Winters, should be stricken under Rule 56(c)(4), or that defendants
should be ordered to pay sanctions under Rule 56(h). (Doc. #228). Because the Court denies
defendants’ motion for summary judgment, and because the Peoples and Winters declarations
are not dispositive on that or any other motion currently before the Court, the Court need not
decide plaintiffs’ motion to strike, and therefore denies it without prejudice. The Court denies
plaintiffs’ motion for sanctions with prejudice.

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Finally, defendants argue plaintiffs cannot show that the 50% thicker claim is false or
misleading. They argue none of plaintiffs’ three scientific experts “reliably demonstrates that the
50% Thicker claim is false or misleading.” (Defs.’ Br. at 23). Defendants also point to their
own and other third party trials that they claim “substantiate the 50% thicker claim.” (Id. at 27).
However, defendants’ own briefing belies their argument. For example, they admit “Scotts’ own
scientists freely admit that not every trial within the 11 claim book tests could substantiate the
claim standing alone.” (Defs.’ Br. at 27). As another example, they argue each of three tests
they retained professors to conduct showed “at half water rates” EZ Seed “grew 50% thicker
than ordinary seed at that same watering level.” (Id. at 28). However, they include a
parenthetical which states “in the case of bermudagrass grown in hot climates, twice daily
watering is often recommended, and once daily would be half that recommendation.” (Id.
(emphasis added)). They do not include a citation for this “fact” nor do they explain what a
recommendation that is “often” made means in concrete terms. Moreover, plaintiffs have
presented evidence on which a reasonable jury could rely to conclude the 50% thicker claim is
false or misleading. For example, the consumer perception survey conducted by Dr. Dennis
shows that 61% of consumers surveyed expected that based on the 50% thicker claim EZ Seed
“would perform better with less water than it would with more water.” (Dennis Report ¶ 42).
Accordingly, there are issues of material fact which preclude summary judgment for
defendants on the 50% thicker claim.
B.

Plaintiffs’ Partial Motion for Summary Judgment

Plaintiffs argue they are entitled to summary judgment on their New York GBL claims.
The Court disagrees.

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As noted in the Court’s decision certifying the classes here, to establish a prima facie case
under GBL Section 349, “a plaintiff must demonstrate that (1) the defendant’s deceptive acts
were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff
has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000). The
same analysis applies to false advertising claims brought under Section 350. Id.; see also
Goshen v. Mut. Life Ins. Co. of N.Y., 98 N.Y.2d 314, 324 n.1 (2002).
First and foremost, the Court concludes that because there are issues of material fact
regarding whether the 50% thicker claim is misleading in a material way, summary judgment is
inappropriate here. For example, plaintiffs cite the Smith-Dahmer Associates survey as evidence
that consumers “understood the Half-Water Claim to mean EZ Seed required less frequent
watering, less time spent watering, or both.” (Pls.’ Br. at 6). But, as defendants point out, that
survey did not include the “whole claim” because it does not include the language “[v]ersus
ordinary seed when each was watered at half the recommended rate”; the alternative language
appearing on some packaging, “[r]esults 32 days after planting; each watered at half the
recommended rate for ordinary seed”; or the language appearing on both versions, “[r]esults may
vary.” (See Pls.’ Ex. E; Defs.’ Response to Pls.’ SOF ¶ 10). Plaintiffs also rely on their expert
Dr. Dennis’s consumer survey to support their argument. But, as discussed above, defendants
have offered many relevant critiques of Dr. Dennis’s survey that ultimately must be weighed by
the trier of fact. In short, a reasonable jury could conclude the 50% thicker claim was not
misleading.
In addition, there are issues of material fact with respect to the question of injury.
Although the Court has concluded plaintiffs have offered some evidence of price premium—in
the form of Dr. Dennis’s report and relevant testimony—this does not mean a reasonable jury

35

will necessarily side with plaintiffs on the ultimate issue and conclude consumers were injured
by the 50% thicker label. In addition, there is some evidence, albeit disputed by plaintiffs, that
the price of EZ Seed went up after Scotts removed the 50% thicker label. This would tend to
show consumers were not injured by the label.
Accordingly, the Court concludes summary judgment for plaintiffs is inappropriate here.
IV.

Decertification Motion
Defendants argue the class must be decertified for two reasons: (i) plaintiffs cannot

prove price premium injury or damages on a class-wide basis, and (ii) no class can recover
statutory damages under New York law.
The Court disagrees.
“[A] district court may decertify a class if it appears that the requirements of Rule 23 are
not in fact met.” Sirota v. Solitron Devices, Inc., 673 F.2d 566, 572 (2d Cir. 1982). However,
“the Court may not disturb its prior [certification] findings absent ‘some significant intervening
event,’ or ‘a showing of compelling reasons to reexamine the question.’” Doe v. Karadzic, 192
F.R.D. 133, 136–137 (S.D.N.Y. 2000) (internal citations omitted).
With respect to defendants’ first argument—that individual questions predominate
because plaintiffs cannot prove injury or damages on a class-wide basis—as the Court has
concluded, Dr. Dennis’s surveys offer reliable and relevant expert opinions on the issue of
injury. In particular, Dr. Dennis’s survey shows that 94.5% of respondents would choose the
combination grass seed product with the 50% thicker claim over the same product without that
claim and, assuming the product with the claim sold for $15, they would not have been willing to
spend $15 for the product without the 50% thicker label. This would tend to prove injury under
New York law:

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New York law does not require that the injury must be proven with a specified
degree of certitude; a plaintiff is only required to show ‘that plaintiffs paid more
than they would have for the good [because of] the deceptive practices of the
defendants-sellers.’ ‘A plaintiff must allege that, on account of a materially
misleading practice, she purchased a product and did not receive the full value of
her purchase.’
Kurtz v. Kimberly-Clark Corp., 2017 WL 1155398, at *57 (quoting Orlander v. Staples, Inc.,
802 F.3d 289, 302 (2d Cir. 2015)).
As a result, if EZ Seed is proven not to grow grass 50% thicker with half the water, “then
all consumers were injured by being overcharged. This question predominates.” Kurtz v.
Kimberly-Clark Corp., 2017 WL 1155398, at *55. That is because “[a]ll that is required at class
certification is that ‘the plaintiffs must be able to show that their damages stemmed from the
defendant’s actions that created the legal liability.’” Sykes v. Mel S. Harris & Assocs. LLC, 780
F.3d 70, 88 (2d Cir. 2015) (quoting Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir.
2013)); see also Ebin v. Kangadis Food Inc., 297 F.R.D. 561, 569 (S.D.N.Y. 2014) (concluding
“that the common actual injury consisted of the payment of the price of olive oil for a product
that was pomace oil and the associated receipt of an inferior product different from that which
the consumers purchased”).
Finally, the Court has already addressed and rejected defendants’ second argument—that
no class can recover statutory damages under New York law. Because statutory damages are
available for the New York class in this case, the damages calculation for the New York class
may be proved on a class-wide basis.
The Court concludes, therefore, that the requirements of Rule 23 are still met—most
significantly there are common questions of law and fact, those questions predominate over
individualized issues, and plaintiffs’ damages calculations are consistent with their theory of
liability.

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Accordingly, defendants’ motion to decertify the class is denied.
CONCLUSION
Defendants’ motion to exclude the testimony of plaintiffs’ damages expert Colin B. Weir
is GRANTED in part and DENIED in part. The remainder of the Daubert motions and motions
to strike are DENIED.
Defendants’ motion for summary judgment is GRANTED in part and DENIED in part.
Plaintiffs’ partial motion for summary judgment is DENIED.
Defendants’ motion to decertify the class is DENIED.
All counsel are directed to appear for an in-person status conference on September 22,
2017, at 2:15 p.m., at which time the Court expects to set a trial date and a schedule for pretrial
submissions.
By September 15, 2017, the parties shall submit a Joint Pretrial Order in accordance with
the Court’s Individual Practices.
The Clerk is instructed to terminate the motions. (Docs. ##216, 217, 218, 219, 220, 221,
222, 223, 224, 225, 226, 227, 228, 229, 231).
Dated: August 7, 2016
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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