Expert Witness Profiler

Tag: Misleading

  • Advertising Expert Permitted to Testify on Impact of Coupon Discounts on Consumer Decision-Making

    Advertising Expert Permitted to Testify on Impact of Coupon Discounts on Consumer Decision-Making

    Michaels Stores, Inc. sells arts and crafts and home decor products on its website and in its stores. Plaintiff, Nea Vizcarra, purchased several items from Michaels.com on November 28, 2022.

    Vizcarra said that in purchasing the discounted items, she understood that she was purchasing items that regularly (including before the advertised promotion) retailed at the published “regular” price, that this published price was the market value of the products she was buying, and that she was receiving the items at a comparatively reduced price that was not always available.

    Vizcarra brought this action on behalf of a putative nationwide class of people who “purchased one or more Michaels Products advertised at a discount on Defendant’s website or instore,” as well as on behalf of a similar California subclass. Michaels has moved to dismiss the amended complaint.

    Defendant filed two Daubert motions to exclude certain opinions of Plaintiffs’ two experts: Bruce G. Silverman and Colin B. Weir.

    Advertising Expert Witness

    Bruce G. Silverman is the owner and manager of Silverman Consulting LLC, an advertising and branding firm.

    He has testified as an expert in federal courts in Arizona, California, Delaware, Florida, Illinois and Oregon, in state courts in California and Missouri, at arbitrations, and before the Copyright Royalty Judges of the Library of Congress.

    Silverman served as EVP/Executive Creative Director at three of America’s largest advertising agencies (Ogilvy, Bozell and BBDO), as President/COO of two of the nation’s best independently-owned agencies (Asher/Gould and Wong Doody), and as President/CEO of the principal U.S. unit of the world’s largest media planning and buying shop (Initiative Worldwide).

    Want to know more about the challenges Bruce Silverman has faced? Get the full details with our Challenge Study report. 

    Economics Expert Witness

    Colin B. Weir is President at Economics and Technology, Inc., a research and consulting firm specializing in economics, statistics, regulation and public policy. He conducts economic, statistical, and regulatory research and analysis and often testifies as an expert witness before state and federal courts.

    His experience includes work on a variety of issues, including: “calculating economic harm and damage, and analyzing 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.”

    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

    Opinions of Expert Bruce G. Silverman

    Defendant asked the Court to exclude two sets of Silverman’s opinions: (1) opinions related to whether certain discounts are misleading to reasonable consumers (“Misleading to Consumers Opinions”), and (2) opinions related to whether Defendant’s Coupon Discount practice would be important to a reasonable consumer  (“Michaels-Specific Opinions”).

    Misleading to Consumers Opinions

    Defendant argued that Silverman’s misleading to consumers opinions should be excluded because they opine on ultimate issues of law.

    Since Silverman did not opine on any legal issues, the Court held that there is no reason to exclude his proffered testimony on those grounds.

    Michaels-Specific Opinions

    Defendant argued that Silverman’s Michaels-specific opinions should be excluded because they (1) exceeded the scope of Silverman’s expertise, (2) were not the product of any reliable principles and methods, and (3) invaded the province of the jury. 

    The Defendant specifically challenged whether Silverman’s advertising experience provides a sufficient foundation to offer opinions about Michaels, its customers, or the coupon discount at issue in the case, without having conducted consumer surveys. As an expert, Silverman is permitted to make certain factual assumptions in forming his opinions. Moreover, the Court is persuaded that Silverman’s opinions are adequately grounded in his extensive personal knowledge and experience. The Court also noted that the Defendant had not demonstrated how Silverman’s opinions would invade the province of the jury.

    Opinions of Expert Colin B. Weir

    In his report, Weir opined that it is possible to determine class-wide damages using three damages theories, one of which is a conjoint analysis. Weir “proposes to calculate Price Premium Damages using conjoint analysis (wherein consumers would receive the difference in value between what they paid and the value of what they received that is solely attributable to Defendant’s challenged conduct).”

    The Defendant asked the Court to exclude Weir’s opinions that relied on his conjoint methodology on the grounds that they (1) are novel and unreliable, (2) ignore critical inputs, and (3) fail to properly account for supply-side factors.

    The Court found that the Defendant had not established a basis for excluding Weir’s opinions at that stage of the proceedings. The Defendant’s challenges to Weir’s use of conjoint analysis went to the weight and credibility of his opinions, not their admissibility.

    Held

    The Court denied the Defendant’s motions to exclude certain opinions of Bruce Silverman and Colin Weir without prejudice.

    Key Takeaway:

    Silverman’s opinions are sufficiently grounded in his experience in the advertising industry, and he is permitted to rely on hypotheticals supported by evidence. Moreover, Silverman did not offer opinions on any legal issues. After all, an opinion is not objectionable merely because it embraces an ultimate issue.

    Case Details:

    Case Caption: Vizcarra V. Michaels Stores, Inc.
    Docket Number: 5:23cv468
    Court Name: United States District Court, California Northern
    Order Date: June 02, 2025
  • Court Finds No Statement in the Marketing Expert Witness’ Survey to be Misleading

    Court Finds No Statement in the Marketing Expert Witness’ Survey to be Misleading

    The underlying case concerns the alleged release of toxic chemicals from a manufacturing facility in Canoga Park between 1968 and 1970 by Litton Systems, Inc., an entity now owned by Defendants Northrop Grumman Corporation and Northrop Grumman Systems Corporation (“Northrop Grumman”). Plaintiffs moved for class certification on their claims for negligence, private nuisance, and trespass relating to the contamination. 

    Defendants submitted an expert report by Dr. Dominique Hanssens purporting to show, among other things, that class members’ homes contained other potential sources of the relevant toxins—sources unrelated to the contamination from Litton’s manufacturing facility—such as common household cleaning products. 

    To reach this conclusion, Hanssens designed and conducted a survey sent by mail to homes in Plaintiffs’ Proposed Class Area (“PCA”). 

    Marketing Expert Witness

    Dominique Hanssens is a Distinguished Research Professor of Marketing at the UCLA Anderson Graduate School of Management. He has served as the school’s faculty chair, associate dean, and marketing area chair. From 2005 to 2007 he served as executive director of the Marketing Science Institute in Cambridge, Massachusetts.

    Hanssens studied econometrics at the University of Antwerp in his native Belgium. He then obtained an M.S. and Ph.D. in marketing from Purdue University. His research focuses on strategic marketing problems, in particular marketing productivity, to which he applies his expertise in data-analytic methods such as econometrics and time-series analysis.

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

    Discussion by the Court

    Plaintiffs argued that Defendants tricked and coerced putative class members into responding to the survey—designed to undermine class certification—by including a two-dollar bill that was visible through the envelope window and giving survey respondents a $20 Walmart gift card. Additionally, according to Plaintiffs, Hanssens should have disclosed to participants that Northrop Grumman was sponsoring the survey and that the respondents could be undermining their legal position by responding.

    Since the survey itself appeared to be facially neutral and created in accordance with accepted principles, the survey did not require the Court to take the corrective actions Plaintiff seeks.

    Plaintiffs pointed to no statement that is likely to leave respondents with a false impression of the litigation or cause respondents to abandon their legal rights. And the Court found no statement in the survey to be clearly misleading or coercive. For example, the Court is not overly troubled with the statements that the recipient was sent the survey as a “resident of the greater Los Angeles area” or that “the results of this survey will not be used to try to sell you anything” and would be “kept in confidence.”

    The Court believes that although Plaintiffs can come up with a misleading interpretation of these statements, they simply do not rise to the level of deception that would convince the Court to restrict the parties’ speech rights. Nor are they the type of statements that would enable the Court to craft a narrowly-tailored restriction on speech.

    Held

    The Court denied Plaintiffs’ motion to strike the expert report of Dominque Hanssens.

    Key Takeaway:

    Rule 23(d) gives the Court the power “to impose limitations when party engages in behavior that threatens the fairness of the litigation.” For example, courts have found that limitations are necessary in the wake of ex parte communications “soliciting opt-outs” or “discouraging participation in a case.” In contrast to these cases, Hanssens’ survey here was “facially neutral, did not require the participants to waive any of their rights in this litigation, and was conducted pre-certification when Defendants may generally gather information about the putative class.”

    Case Details:

    Case Caption: Jed Behar Et Al V. Northrup Grumman Corporation Et Al
    Docket Number: 2:21cv3946
    Court: United States District Court, California Central
    Order Date: August 12, 2024
  • Automotive Industry Expert Witness’ Testimony about the Legitimacy of the Investment and Business Practices Excluded

    Automotive Industry Expert Witness’ Testimony about the Legitimacy of the Investment and Business Practices Excluded

    Plaintiff filed this lawsuit to recover the $425,000 investment it made into the corporate Defendant, No-H20 USA, Inc., which was the product of fraudulent misrepresentations made by Defendant O’Brien both verbally and in writing pertaining to the Company’s performance and ownership of critical intellectual property. O’Brien was at all material times the CEO of the Company. More than two years after O’Brien’s initial verbal misrepresentations, Plaintiff’s managing member came to learn that he did not own the intellectual property and in addition, the Company was in a financial shambles due to O’Brien’s misuse of corporate funds.

    This is now a securities fraud case against the individual Defendant Emmet O’Brien, for on September 5, 2023, a Clerk’s Default was entered against the Company.

    Plaintiff moved pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Plaintiff’s motion sought to exclude Robert Barton‘s testimony because it is not relevant to the issues to be tried. 

    Automotive Industry Expert Witness

    Robert Barton has over 25 years of operational experience in the vehicle rental, automotive, and travel industries. He is a senior vice president and general manager at The Hertz Corporation, the world’s largest car rental company. He oversees the global operations and performance of the Dollar and Thrifty brands, as well as the franchise footprint, with a $2 billion P&L responsibility. 

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

    Discussion by the Court

    To begin with, Plaintiff’s remaining claims are federal and state law securities fraud claims. In order to be relevant, Barton’s testimony needs to address one of the elements of Plaintiff’s claims. Plaintiff asserted that Barton’s testimony is not relevant to the issues before the Court and, thus, will not assist the jury in understanding the evidence or facts in issue.

    In his report, Barton set out his instructions as follows:

    “My analysis was to focus on the legitimacy of the investment and business practices, as well as the nature of the communications and actions taken by the parties involved. My task was to evaluate the impact of the Plaintiff’s actions on No-H2O’s franchise network, scrutinize the Franchise Disclosure Document (FDD), investment deck, franchisor evaluations, growth projections, and specific email communications.”

    In short, the Report concluded: “The Plaintiff’s action and claims have adversely impacted the No-H2O franchise network, inconsistent with the investment deck, and industry standard.”

    O’Brien responded that Barton is qualified, Barton’s opinions are grounded in standardized and recognized practices within franchise operations analysis, and his opinions provide essential context to Plaintiff’s allegations. However, the Court noted that Plaintiff has not questioned Barton’s qualifications or his methodology. Plaintiff only questions the relevance of Barton’s opinions. The Court fails to see, and O’Brien has failed to show, how Barton’s opinions—that Plaintiff’s action and claims have adversely impacted the No-H2O franchise network and are inconsistent with the investment deck and industry standard—are relevant to whether Defendants made false or misleading statements to Plaintiff upon which Plaintiff relied when deciding whether to invest in the Company.

    Held

    The Court granted Plaintiff’s motion to exclude the expert testimony of Robert Barton.

    Key Takeaway:

    Based on Barton’s stated instructions and his conclusion, Plaintiff maintained that nothing in Barton’s Report is relevant to what Plaintiff must prove to prevail at trial and would only serve to mislead or confuse the jury. The Court agreed.

    Addendum (September 15, 2025):

    This article was originally based on the Court’s July 31, 2024 order in Ae Capital Group LLC v. No-H2O USA, Inc. et al., which discussed expert testimony regarding the legitimacy of certain investment and business practices and referenced Defendant Emmet O’Brien.

    Subsequently, on August 23, 2024, the Court entered an order dismissing all claims against Mr. O’Brien. This update is published to reflect that Mr. O’Brien is no longer a defendant in this matter.

    Case Details:

    Case Caption: Ae Capital Group Llc V. No-H20 Usa, Inc. Et Al
    Docket Number: 0:23cv60601
    Court: United States District Court, Florida Southern
    Order Date: July 31, 2024
  • Intellectual Property Expert Witness’ Report Held to be a Treatise on Copyright Law in a Breach of Contract Case

    Intellectual Property Expert Witness’ Report Held to be a Treatise on Copyright Law in a Breach of Contract Case

    In 1996, after almost a decade of searching, Intersal, Inc. (“Intersal”), a marine research and recovery company, discovered the storied Queen Anne’s Revenge (“QAR”), flagship of the notorious pirate Blackbeard, off the coast of North Carolina. The vessel reportedly sank near Beaufort Inlet in 1718, and it has been the stuff of legend since. Although no treasure chests of gold were found in the debris, historical relics have been recovered from the QAR, and the rights to make images, replicas, and narratives about the relics have amounted to another form of treasure. Persistent disputes over the division of these rights have led to this litigation.

    On 1 September 1998, Intersal, DNCR, an executive agency of the State of North Carolina and a non-party, the Maritime Research Institute (“MRI”), entered into an agreement regarding the QAR and any resulting projects (the “1998 Agreement”). As a result of the 1998 Agreement, Intersal relinquished its right to receive 75% of the coins and precious metals recovered from the QAR in exchange for promotion opportunities arising from the QAR “Project,” as well as for assurances from DNCR that the El Salvador Permit would be renewed except for just cause.

    Plaintiff, Intersal sought damages for the Defendant, Wilson’s alleged breaches of Section 16(b) of the 2013 Settlement Agreement. Defendant Wilson serves as the Secretary of DNCR.

    Defendants retained Deborah Gerhardt, a professor of intellectual property law at the University of North Carolina—Chapel Hill School of Law. Gerhardt produced a report in which she answered four questions posed by Defendants’ counsel:

    1. Did the law permit someone to own rights in a narrative, such as the story about salvaging Blackbeard’s ship? If so, did intellectual property law give Intersal the exclusive right to commercial or noncommercial narratives about the QAR project even if such narratives were created by independent third parties?
    2. Did the 2013 Agreement give Intersal the exclusive right to commercial or noncommercial narratives about the QAR project? Specifically, did the 2013 Agreement prevent third parties from publishing content they created or obtained from lawful sources?
    3. Did the DNCR place Intersal’s intellectual property in the public domain?
    4. Did Intersal have an ownership interest in QAR photos taken by DNCR?

    In her thirteen-page report, Professor Gerhardt opined that (1) intellectual property law did not provide any foundation for Intersal to claim exclusive rights in the narrative (commercial or not) of salvaging the Queen Anne’s Revenge (“QAR”); (2) the Court should not have enforced any provision in a way that gave Intersal the exclusive right to telling the story of the QAR salvage as such an interpretation would have violated constitutional and federal public policy; (3) DNCR did not place any of Intersal’s intellectual property in the public domain because Intersal had failed to identify any protectable intellectual property; and (4) Intersal did not have an ownership interest in QAR photos taken by DNCR because no express written copyright assignment existed.

    Plaintiff filed a motion to exclude expert opinions from Deborah R. Gerhardt arguing they constituted inadmissible jury instructions and her own interpretation of the 2013 Agreement.

    Intellectual Property Expert Witness

    Deborah R. Gerhardt is a distinguished member of the Carolina Law faculty, having joined in 2009 and currently holding the position of Reef C. Ivey II Excellence Fund Term Professor of Law. Her expertise lies in intellectual property law, with a particular focus on the intersection of law and creativity. Gerhardt’s teaching portfolio includes courses such as Arts Entrepreneurship, Art Law, Copyright Law, Intellectual Property Law, and Trademark Law. Recognized for her excellence in teaching, she received UNC’s Distinguished Teaching Award for Post-Baccalaureate Instruction in 2018. Gerhardt is also a prolific writer, having authored numerous influential essays and articles covering topics such as copyright, trademark, entrepreneurship, and art law.

    Discussion by the Court

    Gerhardt admitted that her report reflected her legal opinions and conclusions regarding intellectual property law and her interpretation of the 2013 Agreement. Defendants contended that Professor Gerhardt’s testimony would assist the jury in understanding the facts. Defendants further asserted that Professor Gerhardt should be permitted to explain the difference between “commercial” and “non-commercial” because it was a technical term.

    The Court disagreed with Defendants noting that Gerhardt’s report was tantamount to a well-written legal memorandum on intellectual property law based on Gerhardt’s admission that her testimony would assist the jury in understanding the law, not the facts. It was after all the Court’s duty to ensure that the jury was appropriately instructed on the law with respect to the issues in this case.

    The Court observed that as far as the distinction between “commercial” and “non-commercial” was concerned, Gerhardt is an expert in the law, but she has not established herself as an expert in the publication of digital images such that she would be qualified to define a term of art in that arena. Moreover, nowhere in her report did Gerhardt actually offer a definition of “commercial” or “non-commercial.” Instead, she opined that use of the word “commercial” in the 2013 Agreement was “atypical.”

    Gerhardt did not directly address whether the hypothetical licensing model used by the Plaintiff’s expert was the correct approach as far as the case was concerned. Instead, Professor Gerhardt explained that because Intersal did not own the copyright to Defendants’ images, under copyright law, it would not be entitled to a licensing fee for their use.

    Gerhardt was found to misunderstand Intersal’s position. Intersal freely admitted it did not own the copyright to Defendants’ images and did not seek a license fee on that basis. Intersal’s claim focused on the value it allegedly lost when Defendants made the images publicly accessible without watermarks, time stamps, and weblinks. The Plaintiff’s expert used a lost licensing fee as a proxy to calculate the damages Intersal claimed to have suffered by not being able to publish its own images or to otherwise monetize third-party access to the site and its artifacts. Gerhardt’s proposed testimony did not address whether this use of a license fee was acceptable in the field of media rights, nor was her expertise in copyright law of any relevance in this regard.

    Because Gerhardt’s report was a treatise on copyright law, the Court agreed that it would confuse and mislead the jury when the Plaintiff demanded exclusion of the same under Rule 403.

    Held

    The Court granted the Plaintiff’s motion to exclude expert opinions from Defendant’s expert Deborah R. Gerhardt.

    Key Takeaways:

    Key takeaways regarding expert testimony include ensuring relevance and expertise, understanding the role of the expert, and distinguishing between matters of law and fact. Experts should provide clear, precise opinions directly related to the case, supported by evidence and reasoning understandable to the jury. They should avoid confusing or misleading the jury and address opposing arguments while ensuring their expertise is directly applicable to the case. Courts may exclude expert testimony if its probative value is outweighed by the risk of confusion or prejudice under Rule 403. Therefore, it’s crucial for experts to provide testimony that is relevant, clear, and appropriately limited in scope to assist the trier of fact in understanding complex issues without unduly influencing their judgment.

    Case Details:

    Case Caption: Intersal, Inc. v. Wilson
    Docket Number: 15 CVS 9995
    Court: North Carolina Superior Court, Wake County
    Citation: 2024 NCBC LEXIS 19 
    Order Date: February 2, 2024
  • Court rejects expert testimony on unfair trade practices and consumer expectations regarding deodorants and antiperspirants; Closes Case

    Court rejects expert testimony on unfair trade practices and consumer expectations regarding deodorants and antiperspirants; Closes Case

    This case involved a putative class action lawsuit filed by four Plaintiffs – Nicole Krause-Pettai, Christy Stevens, Kevin Bolden, and Errol Carreon – against Defendant Unilever United States, Inc. The Plaintiffs claimed that they were deceived into buying Unilever’s deodorant and antiperspirant products because the oversized packaging created the illusion that the products contained more than competitors’ same-weight items.  

    The Plaintiffs brought claims under California’s consumer protection laws – the Consumers Legal Remedies Act (CLRA), False Advertising Law (FAL), and Unfair Competition Law (UCL). They alleged that much of the volume in Unilever’s products was nonfunctional slack fill. The Plaintiffs sought class certification on the basis that Unilever engaged in unfair and deceptive trade practices.   

    Unilever moved for summary judgment and also filed motions to exclude the testimony of the Plaintiffs’ two expert witnesses, Dr. Sher Paul Singh and Dr. Forrest Morgeson III. Unilever argued that federal law preempted the Plaintiffs’ state law claims regarding slack fill in drugs and cosmetics. This was an issue of first impression in the Ninth Circuit.   

    Packaging Expert Witness  

    Sher Paul Singh, Ph.D. is a highly qualified packaging expert with over 26 years of faculty service at the School of Packaging, Michigan State University. He has been widely published on packaging topics, has testified on these subjects, and provided consulting services to companies on a wide range of packaging issues, including those related to slack-fill.

    Marketing Expert Witness 

    Forrest V. Morgeson, III, PhD. is Associate Professor in the Department of Marketing, Eli Broad College of Business, Michigan State University. He also serves as the Co-Director of the Doctoral Program in Marketing. Morgeson teaches marketing management, marketing strategy, and marketing research courses to graduate students. Morgeson’s research focuses on customer satisfaction and customer experience measurement and management. He completed his Ph.D. in 2005 from the University of Pittsburgh.

    Discussions by the Court 

    The Court first addressed the issue of federal preemption. It held that while California’s specific slack fill regulations were preempted by the federal Food, Drug, and Cosmetic Act (FDCA), the Plaintiffs could still bring state claims alleging that the degree of slack fill rendered Unilever’s products misleading under the general federal prohibitions against misleading containers. 

    The Court then turned to Unilever’s motions to exclude the opinions of both of the Plaintiffs’ expert witnesses – Sher Paul Singh and Forrest Morgeson III. 

    Singh, serving as an expert witness, asserted that the accused products contained roughly 20% to 25% less product compared to their available capacity, and he categorized this reduction as entirely nonfunctional in nature. 

    For Singh, the Court found several problems with the facts and data underlying his opinions. First, Singh’s opinions about the “accused products” only seemed to be based on testing two of the three product designs at issue. The data for the third design was omitted due to an alleged “minor copying error.” Second, among the designs Singh did examine, he only looked at two samples of each kind of deodorant or antiperspirant stick. The Court stated that a sample size of two was a statistically weak basis to support such broad conclusions.  

    Defendant also questioned the the lack of clarity regarding the precise number and types of products that Singh had tested and examined. His testimony on this matter was inconsistent, as he alternately mentioned having sampled “ten sticks total” or conducting tests at two different times with “ten sticks” once and “eight sticks” another time. Additionally, he mentioned having analyzed around “20, 25” sticks, but this data was not documented in his report. The tables he used to summarize his “weight” and “volume” calculations did not provide much insight into the underlying data, and it remained unclear whether his findings were based solely on the five sticks identified in the first table or if there was overlapping data between the two tables. Furthermore, the mention of five brand names suggested the potential inclusion of various products with differing formulations, sizes, and scents. Singh’s testimony regarding the number of product containers he “examined” was similarly inconsistent, with estimates ranging from 30 to 60. He meant for his product photographs next to tape measures to constitute “visible data,” but could not recreate the complete dataset during his deposition.  

    The Court also found problems with Singh’s testing methodology and application. His report detailed how he determined the “percentage of slack fill” by measuring the relative heights of product containers and their enclosed products. He also mentioned using an “electronic balance” to weigh the deodorant after extracting it from the container. However, it was only during his deposition that he shed light on the process he followed to extract the product from the casings, which yielded unpredictable results. Before extraction, he mentioned placing the deodorant in the freezer for about ten minutes, followed by a refrigerator set to approximately 35 to 45 degrees for an unspecified duration. Some samples did not come out as expected, and some even broke. Additionally, there were instances where the product was left in the bottom of the container, making it impossible to extract. The number of deodorant sticks affected by these procedures remained unknown, and Singh did not clarify how he overcame these practical challenges or ensured a complete specimen for measurement.

    Unilever raised concerns, particularly regarding the volume test. They argued that Singh inexplicably removed the twist-bottom dispensing “platform and internal components” before calculating a deodorant container’s space, thereby inflating his “maximum capacity measurements” and failing to account for the volume or space occupied by the removed components. The Plaintiffs did not provide a direct response to this accusation. Instead, they pointed out that both sides’ experts found roughly the same amount of total empty space in their analyses. However, the crucial distinction in the case was nonfunctional empty space, and here, the calculations sharply diverged: Unilever’s expert contended it was 0%, while Singh asserted it was 100%.

    In any event, it is unclear which brands and stick designs Singh subjected to this debatable measurement program. 

    Overall, the Court held that Singh’s opinions failed to meet the reliability requirements of Federal Rule of Evidence 702. His opinions were not based on sufficient facts or data. Nor were his principles and methods reliable or reliably applied. Thus, the Court excluded Singh’s testimony. 

    Morgeson provided expert opinions regarding consumer behavior, including the following assertions: Firstly, consumers were inclined to spend limited time scrutinizing package labeling information and typically assumed that larger packages contained more product; Secondly, consumers seldom examined or comprehended net weight labeling on product packages; Thirdly, owing to these consumer tendencies and their limited familiarity with slack fill, Morgeson suggested that the features of Unilever product packaging implied that Unilever customers received less product than they had expected.

    For Morgeson, the Court questioned whether his general expertise in consumer behavior could be reliably applied to opinions about Unilever’s specific consumers. Morgeson did not gather any facts or data related to the products at issue . He referenced no studies concerning the deodorant and antiperspirant market. The Court held that without a foundation explaining why research on food consumers could be extrapolated to this market, there was too great an analytical gap between Morgeson’s data and opinions.  

    The Court found that Morgeson applied no discernible scientific methodology. He merely reviewed general materials and prior research. But he did not analyze any specific data related to Unilever’s products or consumers. As such, the Court held that Morgeson’s testimony was not based on sufficient facts or reliable methods, and excluded his opinions. 

    The Court also granted summary judgment to Unilever on the Plaintiffs’ negligent misrepresentation and fraudulent and unfair prongs claims, because the Plaintiff not only failed to show that general consuming public and targeted consumers would be misled but the Court also could not find any predicate violation of law despite the Plaintiffs’ allegations and the Plaintiffs were also unable to prove the labeling or packaging was false.

    Held  

    In conclusion, the Court granted Unilever’s motions for summary judgment and to exclude expert testimony. It denied the Plaintiffs’ motion for class certification as moot in light of the summary judgment ruling. The Court entered judgment in favor of Unilever on all claims and closed the case on September 30, 2023. 

    Key Takeaways 

    – The Court applied the Federal Rules of Evidence 702 analysis to assess whether the expert opinions were admissible. It looked at whether the testimony would help the fact-finder, was based on sufficient data, and applied reliable principles and methods. 

    – The Court found major deficiencies with the facts, data, methodology, and application used by both of the Plaintiffs’ proposed experts, Singh and Morgeson.  

    – For Singh, the Court found his testing sample size was too small, his dataset was ambiguous and not properly documented, and his testing methodology yielded unpredictable results.  

    – For Morgeson, the Court found his general consumer research couldn’t be reliably applied to this specific product market. He had no data points related to deodorant and antiperspirant consumers. 

    – The Court held that neither expert satisfied the reliability and relevance requirements for expert testimony under Rule 702. 

    The key takeaway is that Courts will rigorously examine the basis, methods, and fit of proposed expert opinions. Deficiencies in facts, unreliable methodologies, or lack of applicability to the specific issues can warrant exclusion.