Plaintiff April McElroy (“McElroy” or “Plaintiff”) was injured while attempting to open a bottle Mumm Napa Valley Brut Rose, a sparkling wine. The bottle broke causing lacerations to her left hand. McElroy has filed claims for her injuries against Defendants Pernod Ricard USA, Inc. (“Pernod”), Southern Glazer’s Wine and Spirits LLC, (“Glazer”) and Garfield Beach CVS LLC (“CVS”).
McElroy’s negligence claim alleged that the Defendants failed to adhere to industry standards and best practices for storage and retention of the product to ensure the safety and integrity of the product. Consequently, she asserted that the Defendants violated their duty of care to consumers by improperly storing and distributing a product in a manner that proximately caused Plaintiff’s injury.
Plaintiff offered the opinion of her expert Jim Goldman regarding how non-vintage sparkling wines should properly be stored and distributed at the wholesale and retail levels. Both Pernod and CVS moved to exclude the testimony of Goldman.
Packaging Expert Witness
Jim Goldman is a certified packaging expert with a consistent history of achievement developing packaging, supply chain, and production equipment for the Food and Beverage industry.
To begin with, Goldman cited no authority, regulation, actual industry guidelines or any evidence of any manufacturers, wholesalers or retailers adopting or adhering to his proposed “industry standards.”
He asserted for safety reasons the following steps are required in the distribution of non-vintage sparkling wines: 1) at all times the bottles are to be stored horizontally, 2) the bottles are to be stored in environments of controlled temperature and humidity, 3) the age of such products requires monitoring, and 4) that any non-vintage sparkling wine product has a maximum shelf life of 6 months after which it should be destroyed. Failure to adhere to this “standard” he opined is negligence and a cause of Plaintiff’s injury.
However, there is no evidence whatsoever that his proposed guidelines are a standard by which the industry operates. A jury could not reasonably conclude that failure to meet one or more of Goldman’s self-created storage steps violated a duty of care.
Also, Goldman did opine that his proffered “industry standard” for wholesale and retail storage of non-vintage wines is supported by a website directed to “storing champagne at home” for best quality.
However, the Court held that this reference did not support his opinion that there is an industry wide standard for the shipment, storage and distribution of non-vintage sparkling wines that Defendants violated.
Held
The Court granted the the motions to exclude the testimony of Jim Goldman.
Key Takeaway
Goldman has not demonstrated a duty of care that any Defendant violated in the storage or retention of the wine at issue, and his testimony is wholly insufficient to create a material factual dispute.
This case examines the compatibility of Ohio’s three-tier liquor control system, established under the Twenty-first Amendment of the United States Constitution, with the Dormant Commerce Clause. The Sixth Circuit has directed the Court to determine, based on the presented facts and evidence, whether the statutes that Plaintiffs’ challenge “(1) ‘can be justified as a public health or safety measure or on some other legitimate nonprotectionist ground,’ and whether (2) their ‘predominant effect’ is ‘the protection of public health or safety,’ rather than ‘protectionism.’”
In short, Plaintiffs’ constitutional challenge to Ohio’s wine importation laws is before the Court following remand from the Sixth Circuit Court of Appeals.
Plaintiff Kenneth M. Miller is an Ohio resident and wine collector. His Co-Plaintiff, The House of Glunz, Inc., is an Illinois wine retailer with no permit or license from the Ohio Division of Liquor Control. Defendant Dave Yost serves as Ohio’s Attorney General. The Wholesale Beer & Wine Association of Ohio (“WBWAO”) has intervened as a Defendant.
WBWAO sought to have the Court strike the Plaintiffs’ submitted report of Tom Wark. Wark is the Executive Director of the National Association of Wine Retailers.
Public Relations Expert Witness
Tom Wark is a highly influential figure in the wine industry, boasting over 25 years of experience in public relations and communications. He is a leading wine blogger, consumer advocate, and industry speaker, and has played a key role in founding the American Wine Blog Awards and the Wine Bloggers Conference. His extensive experience and advocacy have earned him recognition as one of the wine industry’s most inspiring individuals.
The WBWAO sought a ruling that the contents of Wark’s 2021 report are inadmissible. In his report, Wark offered “a basic description of the market conditions in which wine consumers and wine retailers interact” as of July 2021. He drew ten “conclusions” on the basis of the recited background facts.
Wark is qualified to testify as an expert on the retail wine business
The Wholesale Beer & Wine Association of Ohio (WBWAO) initially challenged Tom Wark’s qualifications to testify as an expert in this case. At the time of his report, Wark had accumulated over thirty years of experience as a public relations consultant within the alcohol industry. Notably, he served as the Executive Director of the National Association of Wine Retailers for thirteen years and published a daily blog focused on the wine business. While Wark’s curriculum vitae lists expertise in areas such as ‘Media Relations,’ ‘Wine Industry Marketing,’ ‘Marketing Communications,’ ‘Alcohol Industry Regulation,’ ‘Writing,’ ‘Association Management,’ ‘Wine Evaluation,’ and ‘Wine Industry Politics,’ the Plaintiffs presented him specifically as ‘an expert in the retail wine business.’ The Court determined that his experience managing an association representing wine retailers sufficiently qualifies him as an expert in that particular area
Eleven of the fourteen proffered pieces of testimony are admissible
Paragraphs 10 and 11
Wark estimates the national wine market offers up to one million wines and explains how state Direct Ship Restrictions limit consumer access. The Court found this testimony on market dynamics relevant and reliable, illustrating the economic impact of such restrictions, and therefore denied WBWAO’s motion to strike.
Paragraphs 21, 23, and 24
Wark describes typical wine consumer behavior, highlighting situations where interstate wine purchases are desired and emphasizing the limited wine selection in standard retail settings. The Court deemed this testimony relevant to the effects of state laws on interstate commerce in wine and denied WBWAO’s motion.
Paragraphs 29 and 30
Wark discusses the challenges faced by brick-and-mortar wine retailers, particularly regarding the availability of rare and collectible wines. He argues that Direct Ship Restrictions prevent access to these specialty wines, sold by a limited number of retailers. The Court found this testimony reliable and relevant to the case, and thus denied WBWAO’s motion to strike these paragraphs as well.
Paragraphs 38
Wark reports that the Wine Institute, the leading authority on U.S. wine production, states that 44 states currently allow shipments from out-of-state wineries to consumers.
As the first sentence is inadmissible hearsay and the report’s sole reference to the Wine Institute, the second sentence is irrelevant. The Court, therefore, granted WBWAO’s motion to strike paragraph 38.
Paragraphs 41-44
Paragraphs 41, 42, and 43 describe the typical process for consumers receiving direct wine shipments from out-of-state retailers in permitted states. The Court found this testimony reliable and relevant, denying WBWAO’s motion to strike. However, paragraph 44, which summarizes findings from a 2003 Federal Trade Commission report and a 2012 Maryland Comptroller study, was deemed inadmissible hearsay and lesser evidence. Those reports, which are included in the record, speak for themselves.
As those reports are part of the record, the Court granted WBWAO’s motion to strike paragraph 44.
Paragraph45
In paragraph 45, Wark states that
“there has been no study nor any report ever produced by any law enforcement or any alcohol regulatory body that shows the direct shipment of wine from out-of-state retailers has led to a problem with minors obtaining alcohol in any state. While a limited number of academic and law enforcement studies have shown via coordinated “stings” that minors could be able to obtain alcohol via direct shipment, no study has shown that minors actually use the Internet to obtain alcohol.
The 2015 National Survey on Drug Use and Health carried out by the Substance Abuse and Mental Health Services Administration looked at how minors obtain alcohol. No minor responding to the national survey cited the Internet as their source of alcohol. In fact, no state has produced any report or evidence that direct shipment of wine from out-of-state wineries or retailers in any way negatively impacts the health and safety of its residents.”
The third and fourth sentences of paragraph 45 are inadmissible hearsay, as previously established. The remaining sentences, which claim ‘no’ study or report demonstrates adverse effects from direct wine shipments, are also problematic. Wark admitted in his deposition that he only reviewed the limited studies cited in his report, which is insufficient to support such sweeping assertions. Therefore, the Court, exercising its gatekeeping role, excludes these sentences due to a lack of sufficient factual basis.
Paragraph 54
In paragraph 54, Wark states that: “All wine sold at wine retail stores is in sealed containers and has been approved for sale to the public by the Alcohol and Tobacco Tax and Trade Bureau (TTB) and the state alcohol regulatory agency in which the retailer is located. There are no reports of any contaminated or harmful wine sold and shipped from these retailers to consumers.”
Wark and his proponents have failed to demonstrate that these statements are based on sufficient facts or data for admissibility.
The Court granted WBWAO’s motion as to paragraph 54.
In view of the above rulings, the Court saw no reason to strike Wark’s deposition testimony from the record.
Held
The Court granted in part and denied in part the the WBWAO’s motion to strike Tom Wark’s testimony.
Key Takeaway:
The Court meticulously reviewed Wark’s report, admitting testimony that provided relevant and reliable descriptions of market dynamics, consumer behavior, and the experience of a wine retailer. However, the Court exercised its “gatekeeping” function, excluding portions of Wark’s report that relied on inadmissible hearsay or lacked sufficient factual support for broad claims. Ultimately, the Court’s rulings underscored the importance of ensuring expert testimony is grounded in sufficient facts and data, demonstrating a careful balance between allowing relevant expert opinions and protecting against unreliable evidence.
