This putative class action involves claims that a manufacturer falsely marketed its pediatric nutrition beverage as helping children grow taller. Joanne Noriega sued Abbott Laboratories (“Abbott”), claiming that the packaging and marketing of its beverage, PediaSure Grow & Gain (“PediaSure”), has thus misled consumers. Noriega claimed that she purchased PediaSure for her grandson based on Abbott’s representation that PediaSure is “Clinically Proven to Help Kids Grow (the “challenged statement”). That claim, she alleged, allowed Abbott to charge a price premium for the product.
Abbott filed motions to exclude the testimony of Dr. Gita Johar (as to consumer perception of the challenged statement), Dr. Daniel Hoffman (as to scientific studies of PediaSure’s effects on growth), and Dr. William Ingersoll (as to the price premium attributable to the challenged statement). Noriega filed motions to exclude the testimony of Dr. Ran Kivetz (as to the materiality of the challenged statement) and Dr. Melvin Heyman (as to scientific studies).
Marketing Expert Witnesses
Dr. Gita V. Johar is a professor at Columbia Business School, where she has taught classes on marketing, branding, and research methods since 1992. She earned her PhD in marketing from the New York University School of Business. She has served as a fellow and president of the Society for Consumer Psychology, and as an editor of the Journal of Consumer Research, Journal of Marketing, and Journal of Consumer Psychology. Johar has published papers on topics including deceptive advertising, corrective advertising, refutation of false beliefs formed based on advertisements, effectiveness of disclosures in advertising, and inferences and false beliefs based on advertising claims.
Dr. Ran Kivetz is a marketing professor at Columbia Business School, where he teaches courses related to marketing strategy, consumer acquisition and retention, and behavioral economics. He earned his PhD in business from Stanford Graduate School of Business and a master’s degree in psychology from Stanford University. His research focuses on buyers’ purchasing behavior, survey design, and the effect of product characteristics on purchase decisions. He has published numerous articles on topics related to consumer behavior and decision-making.
Kivetz has achieved recognition for his contributions to consumer research, including from the Journal of Marketing Research and Society of Consumer Psychology. He serves on the editorial boards of three journals, evaluating marketing research surveys for publication.
Nutrition Expert Witness
Dr. Daniel J. Hoffman is a professor in the Department of Nutritional Sciences at Rutgers University, where he has taught for the last 25 years. He earned his PhD in human nutrition from Tufts University, a certificate in epidemiology from the World Health Organization, and a master’s degree in cell biology from The Catholic University of America. Between 2012 and 2022, in addition to teaching, he served as director of the Center for Childhood Nutrition Research at the New Jersey Institute for Food, Nutrition and Health.
Economics Expert Witness
Dr. William Robert Ingersoll is an associate professor and chair of business and entrepreneurship at Azusa Pacific University, where he teaches courses in industrial organization, econometrics, and microeconomic theory. He earned a PhD and master’s degree in economics from the University of Arizona. He represents that he has testified as an economic damages expert in a variety of state and federal cases.
Pediatrics Expert Witness
Dr. Melvin Bernard Heyman is a professor in the Department of Pediatrics at the University of California, San Francisco School of Medicine (“UCSF”). He earned his medical degree from the University of California, Los Angeles (“UCLA”); completed a residency in pediatrics at Los Angeles County-University of Southern California Medical Center; and completed a fellowship at UCLA in pediatric gastroenterology and nutrition. Since 1981, he has worked in pediatric health and medicine, conducting thousands of clinical visits during his career, many of which addressed children’s nutritional needs. Between 1990 and 2016, Heyman served as chief of UCSF’s pediatric gastroenterology division and organized nutritional support services for pediatric patients. He has held leadership roles on local and national committees, including the American Board of Pediatrics and the American Academy of Pediatrics Committee on Nutrition, and has served as editor-in-chief of the Journal of Pediatric Gastroenterology and Nutrition.
Discussion by the Court
Gita Johar
Johar was retained by Noriega to opine on whether the PediaSure label and commercials would lead a reasonable consumer to believe that the product is clinically proven to help kids grow in height.
Johar’s expert report assesses whether the PediaSure label and commercials would lead a reasonable consumer to believe that the product is clinically proven to help kids grow in height. Based on her assessment of the PediaSure label and commercials, Johar opined that Abbott has misled consumers to believe that PediaSure has been clinically proven to help kids grow in height.
a. Reliability of Johar’s Methodology
Abbott argued that Johar’s methodology is unreliable because she did not undertake an empirical consumer survey, which it contended departed both from “accepted practice” in the field and from Johar’s own academic research practices.
The Court held that Johar’s education and experience, taken together with the relevant academic literature on which she relied, supplied an adequate basis for the testimony she proposed to give.
Abbott noted that Johar lacked specific expertise as to children’s nutrition drinks. Given her extensive experience in consumer product marketing, however, that fact, though fair game for cross-examination, did not support precluding her as unqualified to testify here.
b. Relevance of Johar’s Consumer Perception Opinions
Abbott argued that Johar’s testimony would not be helpful to the jury because “her opinions are purely subjective.”
The Court found that Johar’s testimony would be helpful to the jury. Notwithstanding Abbott’s portrait of her testimony, she did not propose to set out her personal beliefs, as a consumer, about the meaning of the challenged statement on the label. Instead, she proposed to opine, as a marketing professor, based on her experience and research, about how a reasonable consumer would view and process the challenged statement in the context of PediaSure’s packaging.
Daniel Hoffman
Hoffman was retained by Noriega as a nutrition and growth expert to opine as to whether PediaSure has been—as the challenged statement represents—clinically proven to help kids grow.
Hoffman addressed Abbott’s claims substantiation guidance (“CSG”)—an internal manual that addresses health benefit claims, the evidence necessary to substantiate such claims, and the claims development process. He opined that the CSG “sets mandates to be followed” by Abbott and is not “merely aspirational.”
a. Opinions About the CSG
Abbott sought to preclude Hoffman’s testimony about the CSG on the grounds that he is unqualified to opine on an internal Abbott document and cannot properly opine on Abbott’s state of mind.
To begin with, the Court found that Hoffman is not an expert in marketing, claims substantiation, or Abbott’s internal practices. When asked at his deposition what qualified him to interpret the CSG, he answered his “research education.”
Moreover, the CSG’s guidance, if relevant at trial, would not be “beyond the ken of the average juror” to grasp.
Finally, Hoffman’s proposed opinion testimony that Abbott failed to comply with the CSG’s ostensibly mandatory guidance is not the province of an expert.
b. Reliability of Hoffman’s Analysis of Abbott’s Studies
Abbott argued that Hoffman employed an unreliable methodology in finding Abbott’s studies of PediaSure unsound.
A fair-minded review of Hoffman’s report supported the reliability of his methodology in evaluating Abbott’s studies. He drew upon his experience (both as a researcher in the field of pediatric growth and nutrition, and as an editor of scientific journals) and academic articles about standards applicable to clinical studies, randomized trials, and medical research involving human subjects.
c. Relevance of Hoffman’s Opinions on Abbott’s Studies
Abbott next argued that Hoffman’s opinions as to the scientific rigor of Abbott’s studies are irrelevant because they are based on “academic publication standards.”
However, the Court found that Hoffman’s report sets out standards that must be satisfied for a study to be considered “transparent,” “objective,” “scientifically vetted,” “scientifically rigorous,” and “unbiased.”
Few of the 36 journal articles on which Hoffman relied in support of those standards appear to relate to “academic publishing,” and even those appear to be generally applicable.
That Hoffman’s analysis of Abbott’s studies tracks analyses he conducted in his editorial roles is no impediment to the admissibility his testimony.
d. Opinions Not Stated in Expert Report
Abbott sought to preclude Hoffman’s opinions related to (1) Abbott’s compliance with Federal Trade Commission (“FTC”) health claims guidance and (2) how a reasonable consumer would interpret the challenged statement.
It was in his deposition that Hoffman articulated for the first time his opinions about Abbott’s compliance with FTC guidance and consumers’ perceptions of the challenged statement.
Noriega did not contend that these opinions were disclosed earlier or justify the failure to do so. The Court thus cannot find their non-disclosure substantially justified.
Moreover, Hoffman’s education and experience is in “nutritional sciences and growth,” he is therefore unqualified to opine on FTC compliance or consumer perception.
Because Noriega failed to timely disclose Hoffman’s opinions on FTC compliance and consumer perception, and because they are independently inadmissible, the Court excluded such testimony.
William Ingersoll
Noriega’s expert, Ingersoll, proposed to opine that: (1) products bearing the label “Clinically Proven to Help Kids Grow” are on average “more favorably viewed” than ones that state, “Helps Kids Grow”, or that make no statement about growth; and (2) consumers are willing to pay more—in the amounts above—for the product bearing the challenged statement than the growth-only statement or no statement.
a. Relevance of Ingersoll’s Survey Results
Abbott argued that Ingersoll’s survey failed to calculate a price premium keyed to Noriega’s theory of consumer deception.
Because Noriega’s theory is that the challenged statement misled consumers to believe that PediaSure promotes height growth, Abbott argued, the survey, to be helpful, needed to “isolate a price premium traceable to Abbott’s purported misrepresentation about height.”
Ingersoll’s survey tested the premiums attributable to the label statements, “Clinically Proven to Help Kids Grow,” and “Helps Kids Grow.” But on their faces, those statements do not exclusively concern height. Their references to growth can also—or alternatively—be read to encompass other forms of growth (e.g., weight, body composition, and/or muscular development).
As a result, the Court held that Ingersoll’s survey aimed at quantifying price-premium damages did not “fit” Noriega’s theory of liability.
Ingersoll could have tested the price premium traceable to a hypothetical height-growth-specific statement. Or he could have tested the value that respondents place on various promised health benefits (e.g., height growth compared to weight gain). Either approach might have enabled him to isolate the price associated with the alleged misrepresentation about height. Ingersoll’s failure to do so resulted in a broad conclusion—that consumers are willing to pay more when PediaSure contains the challenged statement—that is not tailored to Noriega’s theory of the case nor helpful to a jury tasked with isolating the damages (via a price premium theory) attributable to a misrepresentation about height. This flaw is sufficiently fundamental to require exclusion of his proposed testimony.
b. Reliability of Ingersoll’s Survey Methodology
Abbott argued that Ingersoll’s conclusions are separately irrelevant because the survey he used showed a “truncated version of the challenged statement” which excluded the footnote disclaimer.
The Court found that Ingersoll’s failure to test the disclaimer undermined the reliability of his conclusions as to the price premium attributable to the challenged statement. As Abbott noted, the disclaimer supplied context for the statement’s claim of clinical proof: a person who read and understood the disclaimer could be alerted to the fact that the evidence of PediaSure’s growth benefits “came not in studies of all children but rather those who were ‘at risk of malnutrition.’”
More broadly, Ingersoll’s election not to address the disclaimer in his report is strong evidence of motivated reasoning—that his analysis was not “reliable at every step,” but instead was result-driven.
Ran Kivetz
Kivetz was retained by Abbott to assess whether the challenged statement, as modified by the disclaimer, was a driver of consumers’ decisions to purchase and/or pay a price premium for PediaSure.
Kivetz conducted an empirical consumer materiality survey to test the effect of the challenged statement on consumers’ likelihood of purchasing and willingness to pay for PediaSure, and to ascertain the reasons and motivations driving consumers’ purchase of the products.
He drew two conclusions based on the survey’s results. First, Kivetz concluded that the challenged statement did not drive consumers to purchase PediaSure. Second, Kivetz concluded that consumers are not willing to pay more for PediaSure when the challenged statement is present compared to when it is absent.
a. Reliability of Kivetz’s Survey Design
Noriega argued that, for three reasons, the design of Kivetz’s consumer survey was unreliable.
First, Noriega argued that Kivetz erred in conducting a between-group, rather than within-group, study. Even if a within-group study would have been more effective for assessing materiality, the Court held that Kivetz’s decision to conduct a between-group study did not render his survey unreliable.
Second, Noriega claimed that Kivetz’s study “suffers from . . . the ceiling effect.” Because approximately 90% of individuals in both the test and control groups stated that they were probably or definitely likely to purchase PediaSure, Noriega argues, there was “no room” to perceive the effect of the challenged statement. That his survey might have been better designed, however, does not render it unreliable.
Third, Noriega argued that Kivetz’s use of open-ended questions “produced incorrect and unreliable data.”
The survey asked consumers why they were definitely/probably likely or unlikely to buy the product, and instructed respondents to “be specific and include details.” It then asked for “any other reason or reasons” for their purchase likelihood, and again instructed them to be specific. Respondents were thus prompted to provide a fulsome explanation for their purchase decision—not just the first reason that occurred to them. The survey also asked respondents closed-ended questions in addition to the two open-ended questions. Respondents were asked about their purchase likelihood (which required choosing between six answer choices) and willingness to pay (which required a numeric response). Accordingly, the questions here do not come close to requiring exclusion of the survey.
b. Reliability of Survey Coding
Noriega next argued that Kivetz’s methodology for coding the survey responses was unreliable, and that the responses did not support his conclusions. She argued that Kivetz failed to provide instructions to anonymous assistants, who made “highly subjective” coding decisions, and to keep data that would allow Noriega to determine how each response was coded. But Kivetz provided the coders with a “coding frame,” which contained a list of specific categories in which the responses could be classified. And Noriega did not dispute that Abbott produced the raw survey data, which was also attached to Kivetz’s report. Noriega accordingly could have, based on the raw data, coding frame, and results, reconstructed how responses were coded. The Court found her objections on this basis unavailing.
c. Opinions Based on Caselaw
Noriega argued that Kivetz’s testimony should be excluded insofar as it “offers legal conclusions.” Kivetz references caselaw once in his report.
In support of his statement that the survey he conducted is “routinely used in academic, industry, and litigation settings,” he cited cases that accepted his consumer surveys and found that they “conclusively showed that the challenged claims were not material.” It should be noted that an expert’s testimony on issues of law is inadmissible.
Melvin Heyman
Abbott’s expert Heyman opined that there is ample clinical support for a claim that PediaSure helps kids grow, including in both height and weight.
a. Qualifications to Opine on Height Growth
Noriega argued that Heyman is unqualified to opine on pediatric height growth because he lacked specialized training or experience in the field.
Although Heyman did not appear to have expertise in pediatric height growth specifically, that does not render his qualifications inadequate. Courts admit testimony of experts who have “educational and experiential qualifications in a general field closely related to the subject matter in question,” but lack expertise in “the specialized areas that are directly pertinent.”
b. Reliability of Heyman’s Methodology
Noriega argued that Heyman’s analysis is unreliable due to a lack of textual support for his assessment of Abbott’s studies. The Court held that Heyman’s testimony is reliable because he has shown how his experience led to his conclusion. Although Heyman’s failure to cite relevant authority might undermine the strength of his conclusions, it does not invalidate them.
Second, Noriega argued that Heyman’s analysis is unreliable because he failed to rely on the CSG, which constitutes “considerable contradictory evidence.” As noted, however, the CSG is an internal Abbott document that supplies guidance for substantiating marketing claims. It was unnecessary for Heyman to consider it in analyzing the findings of Abbott’s studies, or whether the studies were scientifically rigorous.
Heyman also addressed the AL-48 study, which he opined was a “scientifically rigorous clinical study that affirms . . . the height-related findings of prior PediaSure studies.” Noriega argued that Heyman’s analysis is unreliable because it is premised on the AL-48 study, which is “unfinished, unwritten, and unpublished.”
The Court found the AL-48 study was not relevant, because it was completed after the time period on which Noriega’s claims are based (and after the proposed class period). Accordingly, the Court excluded Heyman’s testimony insofar as it references or relies on that study.
c. Relevance of Opinions About Non-Height Growth
Noriega argued that Heyman’s testimony would be unhelpful to jurors because he “avoids opining on height growth specifically,” instead addressing other forms of growth that are “wholly irrelevant” to Noriega’s claims.
The Court found this argument unavailing because Heyman did opine on height growth. His conclusions as to the height findings of Abbott’s studies are central to his proposed testimony.
d. Relevance of Opinions About L.V ‘s Medical Records
Noriega argued that Heyman’s testimony related to L.V.’s medical records is irrelevant. The Court agreed.
Even taking as true Heyman’s assessment that L.V. grew while he consumed PediaSure, such would not make it more likely that PediaSure helps kids grow. There are myriad reasons why L.V. might have grown during the relevant period, such as his genetics, age, diet, sleep, and physical activity. Heyman did not opine that PediaSure caused L.V.’s height growth, nor could he responsibly do so.
If L.V. grew during the relevant period, that fact would be fair game to use to impeach that aspect of Noriega’s testimony. But a medical expert is not necessary to establish it. L.V.’s medical records, which reflect the weight and height recorded at his appointments in July 2021 and March 2023, are comprehensible to a layperson. Abbott has not contended that expert testimony is needed to decode them on this point. Accordingly, such testimony would be improper.
Held
- The Court denied in full Abbott’s motion to exclude Dr. Gita Johar’s testimony.
- The Court granted in part and denied in part Abbott’s motion to exclude Dr. Daniel Hoffman’s testimony.
- The Court granted in full Abbott’s motion to exclude Dr. William Ingersoll’s testimony.
- The Court granted in part and denied in part Noriega’s motion to exclude Dr. Ran Kivetz’s testimony.
- The Court granted in part and denied in part Noriega’s motion to exclude Dr. Melvin Heyman’s testimony.
Key Takeaway
Trial courts serve as gatekeepers, responsible for ‘ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.
Whether a witness is qualified as an expert is a threshold question that precedes the Court’s relevance and reliability inquiries. It is critical that an expert’s analysis be reliable at every step. To ensure relevance, the Court must assess whether the expert’s testimony fits the facts of the case.
Case Details:
| Case Caption: | Noriega V. Abbott Laboratories |
| Docket Number: | 1:23cv4014 |
| Court Name: | United States District Court, New York Southern |
| Order Date: | June 04, 2026 |
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