Expert Witness Profiler

Tag: Consumers

  • Economics Expert Was Not Allowed to Opine on Technical Difficulties

    Economics Expert Was Not Allowed to Opine on Technical Difficulties

    This class action lawsuit arises out of Amazon’s practice of using smart-speaker technology (“Alexa”) to surreptitiously: (a) intercept; (b) eavesdrop; (c) record; (d) disclose; or (e) use millions of Americans’ voices and communications, all without their knowledge or consent. Such conduct blatantly violates Washington’s wiretapping law, which applies nationwide to Plaintiffs and all members of the Class.

    Defendants here, Amazon.com, Inc. and Amazon.com Services LLC (collectively, “Amazon” or “Defendants”), are therefore liable as a result of their egregious violations of the State Wiretapping laws – and are also liable for their violations of the Washington Consumer Protection Act (“CPA”), the Electronic Communications Privacy Act of 1986 (“Federal Wiretap Act”), and the Stored Communications Act of 1986 (“SCA”). Plaintiffs Kaeli Garner, Jodi Brust, Diane McNealy, Michael McNealy, Ricky Babani, Jeffrey Hoyt, Lorlie Tesoriero, Ronald Johnson, Selena Johnson and Caron Watkins (collectively, “Plaintiffs”) brought this action individually, and on behalf of a Class of similarly situated individuals, to redress those violations of law.

    Plaintiffs filed a motion to exclude Defendants’ expert, Lorin Hitt, because (a) his opinions do not rebut the opinions offered by Plaintiffs’ experts and are untimely, (b) they are not supported by relevant experience, knowledge, or expertise, and (c) they are unreliable.

    Economics Expert Witness

    Lorin Moultrie Hitt has decades of experience teaching and researching “the economics of consumer behavior, firm organization, and market structure, with particular emphasis on the role of information on pricing, performance, and competition.” He received his Bachelor and Master of Science degrees in electrical engineering from Brown University in 1988 and 1989, respectively, with a Ph.D. in management from MIT in 1996 that focused on economics and statistics.

    Hitt has written on the pricing and management of information products/services, the influence of information on consumer behavior in the online retail sphere, and how privacy concerns influence consumer choices. He has also been involved in consumer class actions, using various modeling techniques to measure economic injury, particularly in class actions involving data security incidents and the misuse of personal information.

    Get the full story on challenges to Lorin Hitt’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    A. Knowledge and Expertise

    1. Legal Conclusions

    Plaintiffs argued that Hitt is not qualified to opine on what the law requires to state an invasion of privacy or intrusion upon seclusion claim.

    Hitt is an economist with experience and expertise in the impacts of information and privacy concerns on consumer behavior. He also has experience modeling and measuring damages in consumer class actions. While causation/reliance may be presumed for purposes of a CPA claim where the act or conduct at issue is an omission, the presumption is rebuttable and it may not apply to all of the causes of action asserted by Plaintiffs in this case. Hitt’s opinion that causation and/or damages cannot be accurately determined in this case without considering individualized factors is within his area of expertise and is a legitimate avenue through which to critique Plaintiffs’ damages theory.

    2. Hardware and Computer Processing Opinions

    Hitt offered opinions regarding the technical difficulties Amazon would face in trying to reduce the number of false wakes and the hidden costs of preventing Amazon from relying on and utilizing the voice recordings of Alexa users.

    Hitt studies “markets generally and markets for personal information specifically.” While his expertise and knowledge arguably form a basis for modeling the market for voice recordings (including demand, pricing, and the impact of the seller’s privacy concerns), they are inadequate to support opinions regarding hardware requirements and software limitations or trade-offs. Nor did his regurgitation of “academic literature” serve any purpose or form the basis of any opinion that is within his knowledge and expertise.

    3. Markets and Valuation

    Plaintiffs argued that Hitt lacked the necessary qualifications to opine regarding the market for voice recordings and that his degrees in economics have no bearing on this case. The Court found these arguments unpersuasive given his experience, expertise, and curriculum vitae.

    B. Reliability and Relevance

    1. Use of a Research Team

    Plaintiffs objected to Hitt’s use of a research team from Cornerstone Research to assist in the collection and analysis of documents. An expert’s use of support staff, be they Ph.D. students, employees, or a third-party, in the preparation of a report is neither unusual nor prohibited. Plaintiffs argued, however, that Hitt had nothing to do with the selection or review of the documents on which his report relies and that his proffered opinions are therefore unsupported by any facts or evidence. This argument ignored significant portions of Hitt’s deposition testimony and misquotes others. The actual testimony showed that, after consultations with counsel and Cornerstone Research, Hitt outlined an initial report, identified relevant documents, and indicated areas where additional support and analysis were needed.

    While Cornerstone Research was free to obtain other documents to support the requested analyses, the report was prepared under Hitt’s direction, using an iterative process, and he reviewed any documents on which the report relies. As a result, the Court overruled the Plaintiffs’ objection.

    2. Failure to Conduct Independent Research or Identify Supporting Evidence

    Plaintiffs argued that Hitt’s opinions regarding consumers’ privacy preferences should be excluded because (a) he failed to conduct his own research and (b) the sources on which he relied are irrelevant or contradict his conclusions. Hitt opined that “consumers (in aggregate) do not appear to materially change their behavior when information about Amazon’s retention and use of Alexa Recordings became more available.”

    While Hitt’s conclusions regarding consumer preferences are not unassailable, shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.

    3. Analytical Gaps and Internal Inconsistencies

    Plaintiffs argued that Hitt’s opinions regarding consumer privacy preferences are inadmissible because the studies he relied upon relate to other forms of personal information disclosed in other contexts. Those studies are used to support the proposition that there is a “privacy paradox” between what individuals say they intend to or are willing to disclose and their actual behavior. Plaintiffs did not explain why the cited studies are insufficient for that purpose.

    Hitt’s opinions regarding consumer privacy preferences are partly based on his analysis of media coverage between 2014 and 2024 regarding how Alexa works and whether there was a change in the number of users or purchases during periods of intensive coverage.

    Plaintiffs pointed out the superficiality of this analysis: Hitt searched “major” news and business publications on “Factiva” for articles that mention “Alexa” and/or “Echo” in conjunction with a wide range of marginally relevant “keywords.” He then reviewed the headlines of the 4,995 hits and excluded articles that seemed to be unrelated to false wakes or Amazon’s retention/use of voice recordings. Once periods of heightened media coverage were identified, Hitt (or his team) attempted to identify what precipitated the coverage and included an example quotation in the chart at Figure 2 of his report. As long as Hitt refrained from suggesting that all of the practices and conduct about which plaintiffs complain were disclosed in the articles represented in Figure 2, Plaintiffs’ other criticisms of his analysis go to the weight of the testimony rather than its admissibility.

    Held

    The Court granted in part and denied in part Plaintiffs’ motion to exclude the testimony of Defendant’s expert, Lorin Hitt.

    Key Takeaway:

    Ultimately, the test under Daubert is not the correctness of the expert’s conclusions but the soundness of his methodology. The Court is a gatekeeper, not a fact finder. Accordingly, the district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.

    Please refer to the blog previously published about this case:

    Computer Science Expert’s Testimony on the Value of Data Admitted

    Privacy Expert’s Testimony on Alexa Users Limited

    Marketing Expert Not Allowed to Opine on Consumer Reaction

    Case Details:

    Case Caption: Garner V. Amazon.Com, Inc.
    Docket Number: 2:21cv750
    Court Name: United States District Court, Washington Western
    Order Date: March 30, 2026
  • Economics Expert Witness’ Conjoint Analysis and Damages Model Deemed Admissible

    Economics Expert Witness’ Conjoint Analysis and Damages Model Deemed Admissible

    Plaintiff David Swartz brought this case against Defendants Dave’s Killer Bread, Inc. and Flowers Foods, Inc. under the California Unfair Competition Law, alleging that Defendants violated Food and Drug Administration (“FDA”) regulations, and therefore California’s Unfair Competition Law (“UCL”), by including unlawful labels on their bread products.

    Plaintiff moved to certify a class on a single UCL claim. In response, Defendants filed a motion to strike the declaration of Plaintiff’s expert, Colin B. Weir.

    Defendants filed objections against the conjoint analysis and damages model provided by Weir and contended that his proposed methodology is not scientifically valid.

    Economics Expert Witness

    Colin B. Weir is Vice President at Economics and Technology, Inc. Weir conducts economic, statistical, and regulatory research and analysis, and testifies as an expert witness. Weir’s experience includes work on a variety of issues, including: economic harm and damage calculation; liquidated damages provisions; lost profits; false claims; diminution in value; merger/antitrust analysis; Early Termination Fees (ETFs); Late Fees; determination of Federal Excise Tax burden; and development of macroeconomic analyses quantifying the economic impact of corporate actions upon the US economy and job markets. Weir holds an MBA with honors from Northeastern University. He also holds a Bachelor of Arts degree cum laude in Business Economics from The College of Wooster.

    Want to know more about the challenges Colin B. Weir has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    The Court held that Weir’s damages model satisfies the requirements articulated in Comcast Corp. v. Behrend. To the extent there are any flaws in the methodology, they go to weight, and not admissibility, and do not support striking the declaration. Also, Weir’s methodology sufficiently tests the liability theory upon which the Court allowed Plaintiff to proceed. It measures any premium associated with Defendants’ violation of the regulations at issue, and is therefore permissible.

    Scientific Validity of Weir’s Methodology

    1. The Model’s Pricing Assumptions

    Weir stated that his data set included “through the register transaction data” for California during the class period, sourced from Information Resources, in addition to other methods. The Court held that such real-world sales data is sufficient for admissibility.

    2. Conjoint Survey Scientific Validity

    Defendants provided seven methodological arguments regarding Weir’s survey methodology. 

    First, Defendants argues that Weir’s survey will artificially focus participants on the protein statements, but this argument did not persuade the Court because “district courts have found that alleged focalism bias goes to the weight of the expert’s opinion, not its admissibility.”

    Defendants’ second and third arguments urge that Weir’s surveys design relies on undocumented interviews. The Court held that the survey design interviews at issue are merely a tool used in a survey design, and failure to take notes does not warrant exclusion. Defendants may still “cross-examine” Weir “about the questions in his survey,” regarding its questions, methodology, and the lack of development drafts. 

    Defendants’ fourth and fifth arguments posit that Weir’s survey will cause confusion because some label statements do not perfectly replicate labels as they would be seen in a store. However, the Court held that criticisms about a survey’s failure to replicate real world conditions . . . go to the weight of the survey rather than its admissibility.

    Defendants’ sixth and seventh arguments criticized Weir’s methodology for not accounting for whether some consumers were or were not misled, or for different geographies, retailers, or time periods. Whether consumers were misled is not relevant to Plaintiff’s theory, however, and Weir’s analysis does account for different geographies, retailers, and time periods. The Court held that Weir has provided enough specificity, and any methodological issues with addressing changes over time can be addressed after the study is carried out.

    3. Market Simulation Scientific Validity

    After conducting a consumer survey, Weir will use a market simulation tool to provide an estimate of any price premium that purchasers paid solely as a result of front-of-package protein claims. Defendants argued that this step fails to account for competition because it does not include competitive offerings. Competitive offerings are accounted for in the data, however, because Weir includes questions about their labels in the survey. The simulator then holds competition constant to compare real world pricing and but-for world pricing. The Court held this method to be sufficiently scientific.

    4. Supply Side Equilibrium Analysis

    Defendants argued that Weir’s analysis should include a supply-side equilibrium analysis, rather than a method that considers supply-side factors through real-world pricing data. Moreover, this method did not account for the effect of a seller’s willingness to sell the products on the price of the products. Conjoint analyses “can adequately account for supply-side factors . . . when (1) the prices used in the surveys underlying the analyses reflect the actual market prices that prevailed during the class period; and (2) the quantities used (or assumed) in the statistical calculations reflect the actual quantities of products sold during the class period.” The Court held that Plaintiff satisfied both prongs.

    Held

    I. The Court granted Plaintiff’s motion for class certification under Rule 23(b)(3) for a class defined as:

    “All persons in the State of California who purchased the Products between December 29, 2017 and September 5, 2023.”

    II. The Court denied Defendants’ motion to strike the declaration of Colin Weir.

    Key Takeaways:

    • Weir has provided enough specificity because his analysis accounts for different geographies, retailers, and time periods.
    • Weir’s analysis adequately accounts for supply-side factors.
    • Defendants argued that Weir’s use of a market simulation tool fails to account for competition because it does not include competitive offerings. The Court held that competitive offerings are accounted for in the data, however, because Weir includes questions about their labels in the survey.

    Case Details:

    Case Caption: Swartz V. Daves Killer Bread, Inc. Et Al
    Docket Number: 4:21cv10053
    Court: United States District Court, California Northern
    Order Date: September 20, 2024