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Leveraging Daubert Motions in Class Certification: Using or Challenging Expert Testimony Amid Divergent Court Standards

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURSDAY, FEBRUARY 16, 2017

Tate J. Kunkle, Esq., Marc J. Bern & Partners, New York Jennifer Quinn-Barabanov, Partner, Steptoe & Johnson, Washington, D.C.

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DAUBERT MOTIONS IN CLASS CERTIFICATION: PLAINTIFF’S PERSPECTIVE

ONE GRAND CENTRAL PLACE • 60 E. 42ND ST ., STE 950 • NEW YORK, NY 10165 • TEL: (212) 702-5000 • FAX: (212) 818-0164 • TOLL FREE: 800-LAW-5432 NEW YORK, NY • CONSHOHOCKEN, PA • WILMINGTON, DE • ENGLEWOOD, NJ WWW.BERNLLP .COM 5

Presented for Strafford Publications CLE Webinar

Tate J. Kunkle, Esq.

tkunkle@bernllp.com

THE DAUBERT ANALYSIS

FRE 702: The proponent of the expert evidence must show:

1)

The witness is QUALIFIED

2)

The testimony is RELIABLE

• based on sufficient facts or data
• is the product of reliable principles and methods
• the expert has reliably applied the principles and methods to the facts
• f the case

3)

The testimony will assist the trier of fact

6

THE DAUBERT ANALYSIS

Courts have a gatekeeping obligation with regard to expert testimony: “The objective of [the Daubert] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

7

FRCP 23: CLASS ACTION REQUIREMENTS

The Plaintiff must demonstrate: Numerosity: the class is so numerous, joinder of all members is impractical Commonality: there are questions of law or fact common to the class Typicality: the claims or defenses of the representative parties are typical of the claims or defenses of the class Adequacy: the representative parties will fairly and adequately protect the interests of the class Superiority: class action is superior to other methods of adjudication Predominance: there are common questions of law or fact that predominate

• ver any individual class member’s questions.

8

FRCP 23: CLASS ACTION REQUIREMENTS

 The party seeking class certification must affirmatively

demonstrate his compliance with Rule 23.

 “[C]ertification is proper only if ‘the trial court is satisfied,

after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).

 “Frequently that ‘rigorous analysis’ will entail some overlap

with the merits of the plaintiff's underlying claim. That cannot be helped.” Id.

 To satisfy this burden: parties often rely on expert

evidence/testimony.

9

USE OF EXPERTS AT THE CLASS

CERTIFICATION STAGE

In environmental class actions, experts such as hydrologists, surveyors and remediation experts would be used to show: What chemicals or breakdown products are released; What is the fate and transport of the chemicals; Thresholds and concentration levels; Dispersion and modeling.

• These goes to commonality, typicality, predominance.

10

USE OF EXPERTS AT THE CLASS

CERTIFICATION STAGE

 establishing a “single, indivisible remedy would provide

relief to each class member” under Rule 23(b)(2);

 Demonstrating defective design, warranty, etc. in

product liability cases.

 Proving false and misleading labeling in consumer

products litigation.

11

THE PURPOSE OF DAUBERT

Shield the fact finder from flawed evidence in a federal trial

12

Why Daubert is Unnecessary and Unfair at Class Certification Stage?

 Class certification hearings are not trials  Class certification hearings are heard before

judges, not juries

• Judges do not need Daubert protection

 Class certification hearings are preliminary

proceedings before trial

 Discovery is often very limited at the class

certification stage

13

THE SUPREME COURT’S DICTUM ON THE APPLICATION OF DAUBERT AT THE CLASS CERTIFICATION STAGE

Wal-Mart v. Dukes:

 employment discrimination class action suit  Indirectly addressed the issue of whether Daubert should apply

at the class certification stage:

“The District Court concluded that Daubert did not apply to

expert testimony at the class certification stage of class-action

• proceedings. We doubt that this is so.” (emphasis added).

Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011).

14

AMERICAN HONDA V. ALLEN

15

• Plaintiffs alleged defective motorcycle design.
• “To demonstrate the predominance of common issues, they

relied heavily on a report prepared by Mark Ezra, a motorcycle engineering expert.”

• Plaintiffs’ expert’s report opined on what constituted normal

“wobble” decay.

• Defendants argued the report was unreliable:
• Not supported by empirical testing;
• Not developed through a recognized standard-setting

procedure;

• Not generally accepted;
• Not the product of independent research, etc.
• Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010)

AMERICAN HONDA V. ALLEN

7th Circuit:

 Conduct a full Daubert analysis when expert testimony is

critical to class certification. “We hold that when an expert's report or testimony is critical to class certification, … a district court must conclusively rule on any challenge to the expert's qualifications or submissions prior to ruling on a class certification motion. That is, the district court must perform a full Daubert analysis before certifying the class if the situation warrants.

• Am. Honda Motor Co. v. Allen, 600 F

.3d 813, 815–16 (7th

• Cir. 2010)

16

AMERICAN HONDA V. ALLEN

7th Circuit: American Honda v. Allen:

Holding:

 Under Daubert, plaintiffs’ expert report should

have been excluded;

 Predominance cannot be established;  Certification order vacated.

17

IN RE ZURN PEX

8th Circuit: In re Zurn Pex (2011):

 Defective plumbing system claim  At Issue: Expert testimony regarding the

product reliability of brass fittings (warrantee data, failure rates, lifetime performance) In re Zurn Pex, 644 F. 3d 604 (8th Cir. 2011).

18

IN RE ZURN PEX

8th Circuit:

 Conduct a “Focused” Daubert Inquiry:

“an exhaustive and conclusive Daubert inquiry before the completion of merits discovery cannot be reconciled with the inherently preliminary nature of pretrial evidentiary and class certification rulings.”

In re Zurn Pex, 644 F. 3d 604 (8th Cir. 2011).

19

IN RE ZURN PEX



“Expert disputes ‘concerning the factual setting of the case’ should be resolved at the class certification stage only to the extent “necessary to determine the nature of the evidence that would be sufficient, if the plaintiff's general allegations were true, to make out a prima facie case for the class.” Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir.2005).



We have never required a district court to decide conclusively at the class certification stage what evidence will ultimately be admissible at trial.”



“In this case, the district court followed Blades by applying what it termed a ‘tailored’ Daubert analysis.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 611-612 (8th Cir. 2011)

20

IN RE ZURN PEX

“The record in this case illustrates why that approach was appropriate and why requiring an even more conclusive Daubert inquiry at the class certification stage would have been impractical. As the district court noted []:

• Dr. Blischke's analysis was circumscribed by the availability of warranty

claims data. However, as merits discovery unfolds and more information becomes available, Dr. Blischke's 40 year estimate for the mean time to failure may or may not be admissible. It was after all Zurn which sought bifurcated discovery which resulted in a limited record at the class certification stage, preventing the kind of full and conclusive Daubert inquiry Zurn later requested.” (emphasis added) In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 612–13 (8th Cir. 2011)

21

IN RE ZURN PEX

“The main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony. That interest is not implicated at the class certification stage where the judge is the decision maker. The district court's “gatekeeping function” under Daubert ensures that expert evidence “submitted to the jury ” is sufficiently relevant and reliable, Bonner v. ISP Technologies, Inc., 259 F.3d 924, 929 (8th Cir.2001) (emphasis added), but “[t]here is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself,” United States v. Brown, 415 F.3d 1257, 1269 (11th Cir.2005).” (emphasis added) In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th

• Cir. 2011)

22

IN RE ZURN PEX

“In light of the record and the district court's predominance analysis, we discern no abuse of discretion in its decision to grant class certification as to the warranty and negligence classes. Merits discovery remains to be undertaken in the district court and as it continues, the bases for the district court's necessarily prospective rulings may change. The rules of civil procedure allow for flexibility if such changes are needed.” (emphaisis added). In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 619–20 (8th Cir. 2011)

23

DEVELOPMENT OF DISCOVERY

AND THE ROLE OF DAUBERT



Even if a jurisdiction appreciates the In re Zurn approach of a limited Daubert inquiry—these jurisdictions may be compelled to conduct a full Daubert analysis at the class certification stage if there has been advanced discovery.



The Zurn court was compelled to apply a limited Daubert analysis at least in part because of the bifurcated discovery in that case (separating discovery for purposes of class certification from merit discovery).



Where bifurcated discovery is absent, or parties have conducted advanced discovery, defendant friendly courts may be inclined to conduct a full Daubert examination.

24

DEVELOPMENT OF DISCOVERY

AND THE ROLE OF DAUBERT

“Unlike the typical case when a motion to certify a class is filed early in the proceedings, this case is at an advanced stage. The parties have completed discovery, exchanged expert reports, and the pretrial conference is imminent. The Court conducts a full Daubert analysis now to avoid a duplicative motion in limine.” Stone v. Advance Am., 278 F.R.D. 562, 566 (S.D. Cal. 2011)

25

DEVELOPMENT OF DISCOVERY

AND THE ROLE OF DAUBERT

“The Court believes that the approach adopted by the district court and affirmed by the Eighth Circuit in In re Zurn is the appropriate application of Daubert at the class certification stage. . . As noted above, in affirming the district court's use of this approach, the Eighth Circuit highlighted the preliminary nature of class certification proceedings. In re Zurn, 644 F.3d at 613. The court explained that especially where discovery has been bifurcated into a class phase and a merits phase, an expert's analysis may have to adapt as gaps in the available evidence are filled in by merits discovery. “ Bruce v. Harley-Davidson Motor Co., No. CV 09-6588 CAS RZX, 2012 WL 769604, at *4 (C.D. Cal. Jan. 23, 2012)

26

THE CIRCUIT BREAKDOWN



Full Daubert Analysis:



7th Circuit: American Honda Motor Co. v. Allen, 600 F .3d 813 (7th

• Cir. 2010).



3rd Circuit: See In re Blood Reagents Antitrust Litigation, 783 F .3d 183 (3d Cir. 2015)



6th Circuit: See In re Carpenter, No. 14-0302, 2014 U.S. App. LEXIS 24707 (6th Cir. Sept. 29, 2014),



9th Circuit: See Ellis v. Costco Wholesale Corp., 657 F .3d 970 (9th Cir. 2011).



11th Circuit: See Sher v. Raytheon Co., 419 F . App'x 887, 889 (11th

• Cir. 2011)

27

THE CIRCUIT BREAKDOWN

 Limited Daubert Inquiry:

 8th Circuit: See In re Zurn Pex Plumbing Prod. Liab.

Litig., 644 F .3d 604 (8th Cir. 2011)

 2nd Circuit: See In Re Initial Public Offerings Sec.

Litig., 471 F .3d 24 (2d Cir. 2006); In re U.S. Foodservice Inc. Pricing Litigation, 729 F .3d 108 (2d

• Cir. 2013)

28

IS FULL DAUBERT SCRUTINY REALLY THAT BAD?

Pros Cons Less worry of decertification Early costs could be prohibitive Potential for early settlement Expert may be hamstrung without full discovery Focused case prior to filing class actions Daubert motions are expensive Ensure meritorious class actions May be less willing to file a class action Protect the class members with stronger litigation focus and strategy Finite number of experts willing to testify

29

Strategies for Successful Daubert Challenges at the Class Certification Stage: A Defense Perspective

Jennifer Quinn-Barabanov Partner, Steptoe & Johnson LLP. jquinnba@steptoe.com

Impact of Different Standards

• Obviously essential to understand the governing legal

standard in the court where you are litigating

• Practical impact of the difference between more and

less rigorous standards:

31

Impact of Different Standards

• Many courts hedge their bets, holding that the expert’s

testimony would not pass muster even under the less rigorous Zurn standard

– Fosmire v. Progressive Max Ins. Co., 277 F.R.D. 625, 629 (W.D. Wash. 2011). – Cholakyan v. Mercedes-Benz USA, LLC, 281 F.R.D. 534, 543

• n. 72 (C.D. Cal. 2012).
• Many courts acknowledge Zurn, but distinguish it based
• n the stage of the proceedings

– Stone v. Advance Am., 278 F.R.D. 562, 566 (S.D. Cal. 2011) (“[T]his case is at an advanced stage. . . the pretrial

conference is imminent. The court conducts a full Daubert analysis now to avoid a duplicative motion in limine.”) – Cholakyan, 281 F.R.D. at 543 n. 53.

32

32

Effective Strategies for Challenging Plaintiffs’ Experts

33

Legal Standard

• FRE 702 – Is proffered expert testimony based

upon:

• reliable facts or data
• reliable principles and methods
• reliable application of principles and methods to

the facts of the case.

34

Working with Defense Experts

• Step # 1 in any effort to mount a Daubert challenge to

plaintiffs’ experts:

35

Working with Defense Experts

• Ask whether a plaintiffs’ certification expert’s analysis

satisfies each of the Daubert criteria

• Identify the flaws in the analysis

– Focus on mistakes that matter – Pointing out obvious mistakes (e.g., incorrect, nonmaterial facts) can be fun, but don’t let those detract from main message

• Goal: To show that variation among class members

precludes class treatment. Look for errors that relate to whether there is variation among class members re:

– Elements of cause of action – Proof of causation

36

Working with Defense Experts

• 1. Elements: Do the differences prevent or

undermine common proof of plaintiffs’ claims?

– Differences in the representations made to class members may matter little, for example, in consumer class actions based on state laws that do not require proof of reliance. E.g., Guido v. L’Oreal USA, Inc., Nos. 2:11-cv-01067 and 2:11-cv-05465, 2014 WL6603730 at *18 (July 24, 2014) (variations in class members’ reliance

• n alleged misrepresentations were irrelevant where

claim turned on objective materiality of alleged misrepresentations under California law).

37

Working with Defense Experts 2.Plaintiffs’ theory of causation and the scientific information on which it is based: Does it stretch far enough to cover the proposed class or are there gaps suggesting that causation can’t be determined on a classwide basis?

38

Working with Defense Experts

• Develop the questions that you want to ask plaintiffs’

expert at deposition to get the admissions you need to get him/her excluded

• Explain the flaws plaintiffs’ expert’s analysis in your

defense expert reports

• Prepare your expert to testify about the flaws in

plaintiffs’ expert’s analysis

– If there is a certification hearing with live testimony, the credibility of a defense expert’s critique can go a long way to convince a court to exclude plaintiffs’ expert

• Your expert can’t replicate the same mistakes –

credibility is key to avoid a “duel to a draw”

39

Recurring Issues in Precertification Daubert Challenges

40

Disconnect Between Opinion and Plaintiffs

• Does plaintiffs’ expert’s opinion overlook/ignore

information developed in discovery demonstrating material differences among plaintiffs/putative class members?

– Cherry picking: Does plaintiffs’ expert consider only favorable facts and ignore unfavorable ones?

• Some courts will treat as going to weight; not

admissibility

– Stimeling v. Bd. of Educ. Peoria Pub. Schools Dist., 2010

• Dist. LEXIS 125418 (C.D. Ill. 2010) (Public school

teacher’s experts could self-select instances of discrimination; Defendants could cross and call their own experts).

41

Disconnect Between Opinion and Plaintiffs

• Discovery from named plaintiffs

– Deposition of named plaintiffs – Documents from plaintiffs

• Potential areas of focus:

– Product purchase (product, timing, location) – Chemical/pharmaceutical exposure (e.g., amount, duration)? – Product use/misuse patterns? – Knowledge/lack of information? – Background risk profiles

42

Disconnect Between Opinion and Plaintiffs

• Alleged injury

– Differences in kind, not just degree? – Does class include uninjured? (e.g., never experienced a product defect, exposure below a threshold for risk)?

• See Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677

(7th Cir. 2009) (“[I[f the [class] definition is so broad that it sweeps within it persons who could not have been injured by the defendant’s conduct, it is too broad.”).

• Affirmative defenses and alternative causes

– Is the entire class similarly situated vis-à-vis facts?

43

Disconnect Between Opinion and Plaintiffs

• Named plaintiffs are NOT the only sources
• Other potential sources include:

− Defendant’s records: purchase, warranty and maintenance records or customer complaints; − Public records: property appraisal records, public health data, government reports. − Public information: Media reports, consumer blogs, chat rooms, reports from consumer ratings

• rganizations

− Third party information: doctors, pharmacies, dealers, technicians, installers, etc.

44

Invalid Assumptions Inconsistent with Facts

• Plaintiffs’ incentive to maximize class size can

lead their experts to make invalid assumptions about uniformity and consistency of defendant’s conduct that are contradicted by the facts.

− E.g., Coleman v. Union Carbide Corp., No. 2:11- 0366, 2013 US Dist. LEXIS 140613, at *84 (excluding plaintiffs’ expert because rather than modeling changes in plant operation over time, he improperly used “the far simpler, but inherently unreliable, approach of assuming current day

• perations existed essentially unchanged

historically.”).

45

Invalid Assumptions Inconsistent with Facts

• Defendant’s self-knowledge is powerful weapon

against such invalid assumptions

• Potential area of focus:

– Has the defendant’s conduct changed over time? – Did the defendant’s conduct vary by location? – Did the defendant treat proposed class members the same or differently? – Did the information provided by the defendant or the mechanism for delivering it vary? – Were there differences in product design, components, manufacturing process, etc., among products or over time? – Did the marketing and/or distribution process vary among products or over time?

46

Causation Opinions: Common Methodological Flaws

• An allegedly common adverse outcome does not

equal common proof of causation.

– Recent decisions focused on this point, particularly in context of product defect claims.

• Example: Grodzitsky v. Am. Honda Motor Co., No.

2:12–CV–1142, 2015 WL 2208184, at * 6 (C.D. Cal., April 22, 2015). Plaintiffs’ expert’s testimony excluded based on failure to justify implicit assumption that all cars required service of window because of alleged defect, but the data the expert relied upon did not specify the reason service of window was required.

47

Causation Opinions: Common Methodological Flaws

• Failure to rule out alternative causes

– Has plaintiffs’ expert considered and ruled out:

• Other potential sources of the alleged

contamination?

• Other potential causes recognized in the scientific

literature for the condition(s) at issue?

• Other potential sources of the alleged defect through

product testing?

48

Causation Opinions: Common Methodological Flaws

• Unsupported extrapolation

– Has the expert reached broad conclusions based on

• nly a few data points?
• E.g., Coleman, 2013 US Dist. LEXIS 140613 at *92-93

(experts’ opinion about scope of alleged contamination excluded as based on insufficient sampling data)

– Has the expert extrapolated beyond what the literature supports for cause/effect?

• E.g., expert opines that class members are at risk for

a wide range of adverse health effects, where the scientific literature finds an association with only one adverse end point (typically at a much higher dose)?

49

Causation Opinions: Common Methodological Flaws

• Unsupported extrapolation

– Unsupported extrapolation is properly excluded as impermissible ipse dixit of the expert. See Gen.

• Elec. Co., 522 U.S. at 146 (“A court may conclude

that there is simply too great an analytical gap between the data and the opinion proffered.”).

50

Causation Opinions: Common Methodological Flaws

• Opinions about hypothetical or composite

plaintiffs

– Plaintiffs’ expert conflates or cherry-picks facts to

• ffer an opinion about a hypothetical class

member, rather than the named plaintiffs

51

Causation Opinions: Common Methodological Flaws

• Opinions about hypothetical or composite

plaintiffs -- examples

– Cherry picking highest data points

• See e.g., Coleman, at *68-69 (excluding air modeler

who used highest recorded exposure levels, which court characterized as a “regulatory-based approach . . . designed to produce a hypothetical and prospective worst case scenario” for the purpose of protecting public safety, rather than to estimate the actual exposure allegedly experienced by the proposed class.

52

Causation Opinions: Common Methodological Flaws

• Opinions about hypothetical or composite

plaintiffs -- examples

– Use of averaged data

• E.g., Gates v. Rohm and Haas Co., 655 F.3d 255, 266

(3d Cir. 2011) (“Plaintiffs cannot substitute evidence

• f exposure of actual class members with evidence
• f hypothetical, composite persons. . . Averages or

community-wide estimations would not be probative

• f any individual’s claim because any one class

member may have an exposure level well above or below the average.”).

53

Causation Opinions: Common Methodological Flaws

• Surveys

– Plaintiffs’ experts often rely upon survey data to support their opinions about value, either qualitative (e.g., the importance of product representations) or quantitative (e.g., the reduction in property value attributable to the stigma associated with a contaminated property). – Survey data is appealing, because it seems easily translatable to a class of plaintiffs. – Rife with potential methodological errors.

54

Causation Opinions: Common Methodological Flaws

• Surveys

– Survey data and related expert testimony can be excluded if survey questions don’t accurately reflect factual circumstances of class members.

• E.g., Cannon v. BP Prods. N. Am., Inc., No. 3:10-cv-

00622, 2013 WL 5514284 at *13-14 (S.D. Tex., Sept. 30, 2013) (excluding expert’s contingent valuation analysis where: (a) survey participants were not informed that their communities had comparable or worse levels of contamination than those in the hypothetical scenarios they were asked to evaluate; and (b) hypothetical scenarios in survey included facts (e.g., distance from the refinery) which differed from the factual circumstances of many class members).

55

Causation Opinions: Common Methodological Flaws

• Regression analyses

– Regression analysis: “a statistical tool designed to express the relationship between one variable, such as price, and explanatory variables that may affect the first variable.” In re Aftermarket Auto. Lighting Prods. Antitrust Litig., 276 F.R.D. 364, 371 (C.D. Cal. 2011). – Plaintiffs often use in class actions to attempt to isolate the impact of a defendant’s conduct or an event on price or value.

56

Causation Opinions: Common Methodological Flaws

• Regression analyses

– Frequent sources of error include:

• Invalid assumptions, particularly related to continuity
• ver time or the factual circumstances of class

members.

• E.g., Cannon, 2013 WL 5514284, at *8-9 (excluding

expert where regression analysis failed to: (a) make the appropriate comparison between the change in values in the class and control areas area before and after allegedly significant emissions events; and (b) control for other variables (e.g., effects of a hurricane)).

• While any single defect in a regression analysis may

not be sufficient grounds for exclusion, if the errors add up, the plaintiffs’ experts’ opinion may be excluded.

57

Causation Opinions: Common Methodological Flaws

• “Comcast” Problem – Plaintiffs’ expert’s testimony

does not track/support theory of liability

– Refers to Comcast v. Behrend, 133 S. Ct. 1426 (2013)

• Certiorari granted to address: “Whether a district court may

certify a class action without resolving whether the plaintiff class had introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.”

• Plaintiffs originally alleged 4 theories of antitrust impact;

district court rejected 3 out of 4

– Class could not be certified because Plaintiffs’ expert failed to differentiate among the damages attributable to different theories of antitrust impact, all but one of which had been rejected – Not a Daubert issue, but a relevance issue

58

Causation Opinions: Common Methodological Flaws

• “Comcast” Problem – Plaintiffs’ expert’s

testimony does not track/support theory of liability

– Consensus that impact of decision has been somewhat limited:

• Antitrust
• Plaintiffs, on notice of issue, know to differentiate

among damages attributable to various theories of liability

59

Causation Opinions: Common Methodological Flaws

• Comcast may provide a viable basis for attacking

plaintiffs’ experts in other, limited contexts

• Food litigation - Misrepresentation claims

– Challenged label claims, such as “all natural,” likely mean different things to different purchasers. – Labeling claim at issue encompasses multiple product characteristics, of which only one or a few are allegedly inconsistent with the representation. – E.g., Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 693-94 (S.D. Fla. 2014)

60

Causation Opinions: Common Methodological Flaws

• “Comcast” Problem

– Plaintiffs’ experts have had considerable difficulty isolating the price impact solely attributable to the ingredient (e.g., GMO) or characteristic (e.g., presence/absence of a warning) that allegedly renders the defendant’s representation inaccurate.

• Randolph v. J.M. Smucker Co., 303 F.R.D. 679

(S.D. Fla. 2014)

• Werderbaugh v. Blue Diamond Growers, No. 12-CV-

02724, 2014 WL 7148923 (N.D. Cal. Dec. 15, 2014)

• Brazil v. Dole Packaged Foods, LLC, No. 12-cv-01831,

2014 WL 5794873 (N.D. Cal. Nov. 6, 2014) (denying Daubert motion as moot in light of ruling that damages analysis failed to satisfy Comcast)

61