Jackie Fitzhenry-Russell et al v. Keurig Dr Pepper Inc., et al, No. 5:2017cv00564 - Document 260 (N.D. Cal. 2018)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE EXPERT TESTIMONY. Re: Dkt. No. 225 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 11/2/2018)
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Jackie Fitzhenry-Russell et al v. Keurig Dr Pepper Inc., et al Doc. 260 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 JACKIE FITZHENRY-RUSSELL and GEGHAM MARGARYAN, United States District Court Northern District of California 11 Plaintiffs, 12 v. 13 14 KEURIG DR. PEPPER INC. and CANADA DRY MOTT’S INC., 15 Case No.17-cv-00564-NC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO STRIKE EXPERT TESTIMONY Re: Dkt. No. 225 Defendants. 16 17 18 19 20 Defendants Keurig Dr. Pepper Inc. and Canada Dry Mott’s Inc. move to strike plaintiffs Jackie Fitzhenry-Russell and Gegham Margaryan’s experts’ testimony. See Dkt. No. 225. Defendants also renewed their motion to exclude Dr. Dennis and Mr. Weir’s expert testimony. Because Plaintiffs’ experts occasionally testify regarding matters outside their area of expertise, the Court GRANTS in part and DENIES in part 21 22 Defendants’ motion. I. 23 24 25 Procedural Background On June 26, 2018, the Court granted class certification and denied Defendants’ Daubert motion to exclude the testimony of Plaintiffs’ experts: Dr. Michael Dennis and Mr. Colin Weir. See Dkt. No. 199. In their reply, Plaintiffs produced an expert report 26 27 from Dr. Randolph Culp. See Dkt. No. 192-1. Dr. Culp was not subject to Defendants’ Daubert motion. 28 Dockets.Justia.com 1 On July 18, 2018, the Court extended various expert discovery deadlines. See Dkt. 2 No. 216. In accordance with that Order, Plaintiffs produced two additional expert reports 3 from Dr. Manoj Hastak and Ms. Annette Hottenstein. 4 Defendants now move to strike portions of Dr. Culp’s expert testimony, as well as 5 Dr. Hastak and Ms. Hottenstein’s testimony in their entirety. Defendants also renew their 6 previous Daubert motion to strike Dr. Dennis and Mr. Weir’s testimony. See generally, 7 Dkt. No. 225. 8 II. United States District Court Northern District of California 9 Legal Standard A. Motion for Reconsideration 10 Federal Rule of Civil Procedure 60(b) permits a court to relieve a party from any 11 prior order or decision for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) 12 newly discovered evidence that could not have been discovered with reasonable diligence; 13 and (3) any other reason that justifies relief. 14 Under Local Rule 7-9, “[n]o party may notice a motion for reconsideration without 15 first obtaining leave of the Court to file a motion.” The rule also limits motions for 16 reconsideration to three enumerated grounds: (1) a material difference in fact or law exists 17 that could not have been discovered with reasonable diligence at the time of the decision 18 sought to be reconsidered; (2) the emergence of new material facts or change in law after 19 the decision; and (3) a manifest failure by the Court to consider material facts or 20 dispositive legal arguments. See N.D. Cal. Local Rule 7-9. Additionally, “[n]o motion for 21 leave to file a motion for reconsideration may repeat any oral or written argument” 22 previously made. Id. 23 24 25 26 27 28 B. Motion to Strike Expert Testimony Federal Rule of Evidence 702 permits opinion testimony by witnesses qualified as an expert by knowledge, skill, experience, training, or education if: (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; 2 1 (3) the testimony is the product of reliable principles and methods; and 2 (4) the expert has reliably applied the principles and methods to the facts of the case. United States District Court Northern District of California 3 4 “The duty falls squarely upon the district court to ‘act as a gatekeeper to exclude junk 5 science that does not meet Federal Rule of Evidence 702’s reliability standards.” Estate of 6 Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (quoting Ellis v. Costco 7 Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011)). Rule 702 “assign[s] to the trial judge 8 the task of ensuring that an expert’s testimony both rests on a reliable foundation and is 9 relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 10 (1993). In Daubert, the United States Supreme Court identified “four factors that may 11 bear on the analysis: (1) whether the theory can be and has been tested, (2) whether the 12 theory has been peer reviewed and published, (3) what the theory's known or potential 13 error rate is, and (4) whether the theory enjoys general acceptance in the applicable 14 scientific community.” Murray v. S. Route Maritime SA, 870 F.3d 915, 922 (9th Cir. 15 2017) (citing Daubert, 509 U.S. at 593–94.) 16 Importantly, the Court’s duty is to evaluate the soundness of the expert’s 17 methodology, not the correctness of the expert’s conclusions. Primiano v. Cook, 598 F.3d 18 558, 564 (9th Cir. 2010). “Shaky, but admissible evidence is to be attacked by cross 19 examination, contrary evidence, and attention to the burden of proof, not exclusion.” Id. 20 The Court has broad discretion and flexibility in assessing an expert’s reliability. Estate of 21 Barabin, 740 F.3d at 463. 22 III. Discussion 23 24 A. Dr. Culp Defendants argue that two portions of Dr. Culp’s expert report should be stricken 25 because he disclaimed those opinions in his deposition. See Dkt. Nos. 225 at 7–8; 244 at 26 3–4. Specifically, Defendants argue that paragraphs 45 through 49 and 50 through 54 27 should be stricken. See Dkt. No. 244 at 3–4. Plaintiffs concede that two sentences within 28 those paragraphs should be stricken. See Dkt. No. 235 at 18. 3 1 Paragraphs 45 and 49 of Dr. Culp’s expert report criticizes the report by 2 Defendants’ expert, Dr. Krueger, while paragraphs 46 through 48 of Dr. Culp’s expert 3 report discusses ginger ale recipes and commercial processes for making ginger ale. See 4 Dkt. 225-2 (“Culp Report”) ¶¶ 45–49. Plaintiffs concede that “Dr. Culp will not testify as 5 to the source of the perceptible flavor in Canada Dry or Internet recipes for making ginger 6 ale, as those facts fall more within Ms. Hottenstein’s expertise.” Dkt. No. 235 at 18. In his 7 testimony, Dr. Culp conceded that he is personally unfamiliar with the ginger ale recipes 8 referenced in paragraphs 46 through 48 of his report. See Dkt. No. 225-3 (“Culp Depo.”) 9 at 45:6–47:14. In light of Plaintiffs’ concession, the Court strikes paragraphs 46 through 10 United States District Court Northern District of California 11 48. In paragraphs 45 and 49, Dr. Culp opines that Dr. Krueger’s analysis was flawed 12 because Dr. Krueger failed to consider or test different methods for making ginger ale. See 13 Culp Report ¶¶ 45, 49. Given that Dr. Culp did not review recipes or brewing processes 14 for other ginger ales, these paragraphs lack foundation; Dr. Culp cannot criticize Dr. 15 Krueger for failing to account for different brewing methods when he was also not aware 16 of other brewing methods. Accordingly, the Court also strikes paragraphs 45 and 49 of Dr. 17 Culp’s expert report. 18 Paragraphs 50 to 54 of Dr. Culp’s report discusses whether the concentration of 19 ginger compounds in Defendants’ ginger ale is sufficient to impart a “ginger flavor.” See 20 Culp Report ¶¶ 50–54. In light of Plaintiffs’ concession that Dr. Culp will not testify as to 21 the source of perceptible ginger flavor in Defendants’ ginger ale, the Court strikes 22 paragraphs 50 to 54 of Dr. Culp’s report. In sum, the Court GRANTS Defendants’ motion 23 to strike Dr. Culp’s testimony and strikes paragraphs 45 to 54. 24 25 B. Dr. Hastak Dr. Hastak’s report can be sorted into four categories: (1) consumer impressions 26 associated with the “real ginger” claim (see Dkt. No. 225-4 (“Hastak Report”) ¶¶ 12–20); 27 (2) inferences about the amount of ginger in Defendants’ ginger ale (id. ¶¶ 21–25); (3) 28 inferences about the healthfulness of Defendants’ ginger ale (id. ¶¶ 26–40); and (4) the 4 1 materiality of Defendants’ “real ginger” claim (id. ¶¶ 41–50). Defendants contend that Dr. 2 Hastak’s report should be stricken in its entirety because it is cumulative or speculative. 3 See Dkt. No. 225 at 8–10. The Court agrees. United States District Court Northern District of California 4 The portions of Dr. Hastak’s report that fall into the first and fourth categories 5 simply repeat analysis done by Dr. Dennis and the contents of Defendants’ internal 6 documents. Dr. Hastak offers no additional analysis of his own for those two categories. 7 Plaintiffs can simply call Dr. Dennis to testify as to his own analysis and enter Defendants’ 8 internal documents into evidence. These portions of Dr. Hastak’s report are entirely 9 cumulative. 10 The remaining portions of Dr. Hastak’s report discusses high-level frameworks for 11 understanding misleading advertising and labels. Dr. Hastak, however, does not tie any of 12 his theories to available data or facts in this case. For example, in paragraphs 21 to 25, Dr. 13 Hastak explains the concept of “inter-attribute misleadingness” but does not apply that 14 concept to the facts of this case beyond a conclusory statement that “[m]ost consumers 15 would assume that the [real ginger] claim would not be made . . . if the product did not 16 contain a meaningful amount of ginger.” Hastak Report ¶ 25. Dr. Hastak’s failure to 17 meaningfully engage with the facts and data of this case is insufficient for Rule 702. See 18 Fed. R. Evid. 702(d) (expert opinion testimony is admissible if “the expert has reliably 19 applied the principles and methods to the facts of the case.”). 20 In paragraphs 26 to 28, Dr. Hastak discusses “inter-attribute misleadingness” and 21 “exploitative misleadingness” as it relates to Plaintiffs’ claim that Defendants’ “real 22 ginger” claim misleads consumers about the healthfulness of their ginger ale. In the 23 following paragraphs, Dr. Hastak summarizes various internal marketing documents by 24 Defendants that suggest they intended to capitalize on the “health halo” surrounding 25 “natural” products. While Defendants’ internal documents may be evidence that they 26 intended to mislead consumers into believing that their ginger ale had health benefits, Dr. 27 Hastak does not offer any analysis of how and whether Defendants’ “real ginger” claim 28 actually does so. Dr. Hastak simply summarizes documents that support Plaintiffs’ health 5 1 claim; those documents can speak for themselves. Accordingly, the Court GRANTS Defendants’ motion and strikes Dr. Hastak’s 2 3 4 5 C. Ms. Hottenstein Defendants argue that Ms. Hottenstein’s testimony regarding whether the ginger 6 flavor in their ginger ale is from “real” ginger should be stricken because she is unqualified 7 to calculate the sensory perceptibility of an ingredient using long-form math. See Dkt. No. 8 244 at 13. Defendants also argue that Ms. Hottenstein’s testimony should be stricken to 9 the extent she testifies that consumers perceive a ginger taste due to the drink’s packaging. 10 11 United States District Court Northern District of California expert testimony. See id. at 15. Ms. Hottenstein’s report first summarizes the analyses conducted by Dr. Culp and 12 Dr. Krueger, both of whom analyzed the amount of ginger compounds—gingerol and 13 shogaols—in Defendants’ ginger ale. See Dkt. No. 225-6 (“Hottenstein Report”) at 13. 14 Because the amount of gingerol and shogaols in a beverage can be used to approximate the 15 amount of ginger oleoresin in that beverage, Ms. Hottenstein used Dr. Culp and Dr. 16 Krueger’s data in a series of calculations to determine the ginger oleoresin content of 17 Defendants’ ginger ale. See id. at 14–19. She then cross-referenced the ginger oleoresin 18 levels in Defendants’ ginger ale to a standard reference for flavor ingredients to determine 19 whether the ginger flavor in Defendants’ ginger ale can be attributed to ginger oleoresin. 20 See id. at 19, 21–23. Ms. Hottenstein concludes that although the ginger oleoresin content 21 in Defendants’ ginger ale is within “taste threshold,” the ginger oleoresin content is too 22 low to be perceptible. See id. at 21. 23 Defendants concede that Ms. Hottenstein has a “long history” of sensory testing, but 24 argue that she has no history of analyzing sensory perceptibility using math. See Dkt. No. 25 244 at 13. Indeed, Defendants point out that this is the first time Ms. Hottenstein has used 26 this method to test perceptibility and, in her deposition, Ms. Hottenstein represented that 27 taste tests are the best way to test perceptibility. Id. at 12–13. 28 These criticisms, however, go to the weight of Ms. Hottenstein’s testimony, not its 6 1 admissibility. The fact that Ms. Hottenstein has apparently never done these calculations 2 before does not undermine the reliability of her opinion. These calculations involve only 3 basic arithmetic, using data produced by Defendants’ own expert and ratios published by 4 authorities that Defendants do not contest. Defendants do not suggest that Ms. 5 Hottenstein’s calculations were inaccurate or otherwise unreliable. Similarly, the fact that Ms. Hottenstein’s conclusion may be at odds with published United States District Court Northern District of California 6 7 taste thresholds is not sufficient grounds for striking her testimony. Ms. Hottenstein 8 reasoned that the amount of ginger oleoresin in Defendants’ ginger ales is too low to taste 9 because the true taste threshold for ginger oleoresin in Defendants’ ginger ales may be 10 higher than normal. According to Ms. Hottenstein, this is because Defendants’ ginger ales 11 are carbonated, sweetened, consumed chilled, and flavored with other compounds. Ms. 12 Hottenstein drew upon her own expertise as well as scholarship by other authorities to 13 form her conclusions.1 See Hottenstein Report at 21. Accordingly, the Court declines to 14 exclude Ms. Hottenstein’s testimony regarding the perceptibility of ginger oleoresin in 15 Defendants’ ginger ale. Defendants also argue that Ms. Hottenstein’s opinions regarding product packaging 16 17 should be stricken because she has no expertise with regards to consumer psychology and 18 packaging. The Court agrees. In her deposition, Ms. Hottenstein admitted that whether 19 product packaging can influence consumer perception is beyond her area of expertise. See 20 Dkt. No. 225-6 (“Hottenstein Depo.”) at 174:17–175:3. In sum, the Court GRANTS in part and DENIES in part Defendants’ motion to 21 22 exclude Ms. Hottenstein’s testimony and strikes only paragraph 45. 23 24 25 26 27 28 1 Defendants argue that the article cited by Ms. Hottenstein does not support her conclusion. According to Defendants, that article concludes that sugars, such as sucrose, can enhance the perceptibility of “fruity” and “berry-like” flavors. See Dkt. No. 244 at 14 n.14. While this partially contradicts Ms. Hottenstein’s conclusion that the ginger oleoresin content of Defendants’ ginger ales is too low to be tasted, it supports Ms. Hottenstein’s other conclusion that it is likely Defendants’ ginger ales contain non-ginger compounds designed to mimic the taste of ginger. See Hottenstein Report at 22. The fact that sugar enhances certain flavors lends credence to Plaintiffs’ theory of the case— Defendants’ ginger ales contain a miniscule amount of “real” ginger, but are able to “get away with it” via trickery (e.g., by using sugar to amplify their ginger ale’s ginger flavor). 7 1 2 Reconsideration of Dr. Dennis and Mr. Weir’s Testimony Defendants’ renewed motion to strike Dennis and Weir’s testimony is a disguised 3 motion for reconsideration. See Dkt. No. 225 at 13. Because Defendants identify no 4 grounds for reconsideration, the motion is DENIED. See N.D. Cal. Local Rule 7-9(b). 5 IV. Conclusion 6 7 8 9 United States District Court Northern District of California D. The Court GRANTS in part Defendants’ motion to strike expert testimony as follows: 1. GRANTS Defendants’ motion to strike paragraphs 45–49 and 50–54 of Dr. Culp’s expert report; 10 2. GRANTS Defendants’ motion to strike Dr. Hastak’s testimony in its entirety; 11 3. GRANTS Defendants’ motion to strike paragraph 45 of Ms. Hottenstein’s 12 expert report. 13 Defendants’ motion is otherwise DENIED. No costs or fees are awarded in connection 14 with this Order. 15 IT IS SO ORDERED. 16 17 18 Dated: November 2, 2018 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 8
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