Plaintiff Rickey Martin is a Florida resident who purchased corrective contact lenses from Defendant Lens.com’s website on five separate occasions between January and October, 2021.
When making these online purchases, Plaintiff alleged that Lens.com charged him an undisclosed, unreasonable, and unlawful processing fee in violation of Florida’s Unfair and Deceptive Trade Practices Act (the “FUDTPA”).
Plaintiff further alleged that Lens.com advertised one price for its contact lenses but charged 50% more than the advertised price at checkout. According to Plaintiff, purchasers can only recoup the additional 50% charge by completing a mail-in rebate which is disclosed at checkout for the first time.
Plaintiff also alleged that Lens.com charged Florida customers “Taxes and Fees,” even though the State of Florida exempts contact lens purchases from sales tax.
Plaintiff thus sought to represent a class of “all Florida residents and consumers who, within the applicable statute of limitations preceding the filing of this action to the date of class certification, purchased products from Defendant and paid a charge labeled “Taxes & Fees” (known to Defendant as a “Processing” fee).” Lens.com denied that its “Taxes and Fees” are deceptive charges in violation of the FDUTPA.
Lens.com proffered the testimony of four retained expert witnesses: (1) Joshua Gifford; (2) Mark T. Keegan; (3) Peter Kent; and (4) Michele Jowdy. Plaintiff filed a consolidated motion to strike Defendant Lens.com, Inc.’s expert witnesses under Daubert.
Accounting Expert Witness
Joshua J. Gifford is a Certified Public Accountant, Accredited in
Business Valuation by the AICPA and is a Certified Fraud Examiner. He has spent the majority of his career performing business valuations for litigation purposes in construction, engineering, retail, wholesale, professional services and agriculture related industries.
Gifford also has experience in forensic investigations, lost profits and economic damages analyses, and bankruptcy related tax work.
Survey Research Expert Witness
Mark Thomas Keegan has over 24 years of experience conducting consumer
survey research. Over the course of his career, he has personally conducted over 1,000 consumer surveys reaching more than 250,000 consumers.
Keegan maintains a number of professional certifications and memberships that are directly related to his work as an expert in marketing and consumer research. He is a graduate of the University of Georgia’s Principles of Market Research Program, a professional certification program for marketing industry professionals covering all aspects of the survey research process. He is also a Professional Certified Marketer (PCM), an American Marketing Association certification conferred upon individuals who have demonstrated a mastery of comprehensive and core marketing knowledge and principles.
Internet Expert Witness
Peter Kent is an e-commerce and SEO (“Search Engine Optimization”) consultant who provides online e-commerce strategies to companies seeking to improve their business online. He has written many books about the
Internet and technology in general.
Kent has been working with computer technology since early 1979 and has extensive experience in the e-commerce arena.
Consumer Behavior Expert Witness
Michele M. Jowdy has more than twenty-four years of experience in the mystery shopping and customer experience research industry.
Discussion by the Court
A. Joshua Gifford
Gifford proffers his opinion, from an accounting perspective, that Lens.com’s “‘Taxes and Fees’ description is generic indicating there are a broad range of activities being covered by the charge.” In sum, Gifford opined on the “meaning and connotation of the ‘Taxes and Fees’ description from a financial or business perspective.”
B. Mark Keegan
Keegan’s study of 459 relevant consumers shows that most consumers understand the pricing presented during Lens.com’s online purchase checkout process and are not deceived or confused by Lens.com’s representations.
C. Peter Kent
According to Kent, customers are generally driven by price. Some customers seeking the best price for their contact lenses are benefitting from a low overall price from online sellers like Lens.com, even after the additional fee is added at the end of the transaction.
D. Michele Jowdy
Jowdy compared Lens.com’s final prices (inclusive of all applicable fees and rebates) to the final prices of Lens.com’s competitors. Jowdy also compared Lens.com’s price to the average price for 16 different brand-name contact lenses. Although Jowdy does not proffer an opinion, her report seems designed to show a jury that Lens.com charges a competitive final price for its prescription contact lenses.
Analysis
Plaintiff contended that offering their expert opinion is an improper attempt to “reframe this lawsuit as a dispute about overcharging, price comparison, consumer confusion, or industry norms,” when the case is instead about whether Lens.com’s “Taxes and Fees” are deceptive or misleading to the reasonable consumer in violation of the FDUTPA.
Plaintiff observed that Lens.com’s “four experts share the same flaw: each is directed at a substitute issue that would distract the jury from the only one that matters,” i.e., whether the net impression of Lens.com’s “Taxes and Fees” is misleading to the reasonable consumer under the circumstances, which deception caused Plaintiff actual damage. The Court agreed with Plaintiff on this point and goes one step further. All four experts improperly intrude into the province of the jury.
The testimony of Gifford, Kent, and Keegan constitute opinion on whether reasonable consumers would find Lens.com’s “Taxes and Fees” deceptive. Clearly, that is an issue (perhaps the critical issue) for the fact finder, not an expert.
The jury did not need an expert to assist its factual determination of whether the net impression of Lens.com’s “Taxes and Fees” is objectively misleading to the reasonable consumer. Nor did a jury need an expert to opine as to whether Plaintiff suffered actual damages by paying those charges.
Held
The Court granted the Plaintiff’s consolidated motion to strike Defendant Lens.com, Inc.’s expert witnesses, Joshua Gifford, Mark Keegan, Peter Kent, and Michele Jowdy.
Key Takeaway
In this case, Lens.com’s proffered expert opinions would not only not assist the trier of fact, they would affirmatively confuse the jury. The Court is disinclined to allow experts, even qualified, reliable, and helpful ones, to supplant and interfere with the jury’s role in this kind of case.
Case Details:
| Case Caption: | Martin V. Lens.Com, Inc. |
| Docket Number: | 0:24cv60489 |
| Court Name: | United States District Court, Florida Southern |
| Order Date: | April 28, 2026 |
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