Brief in Opposition to Motion to Exclude Expert Opinions on Likelihood of Deception, Materiality, Intent, and Harm
United States District Court, [district].
[name of Plaintiff], Plaintiff,
v.
[name of Defendant], Defendant.
[case number].
[date].
Brief in Opposition to Motion to Exclude Expert Opinions on Likelihood of Deception, Materiality, Intent, and Harm
[names and contact information of Counsel for Plaintiff], for Plaintiff.
TABLE OF CONTENTS
I. INTRODUCTION
II. BACKGROUND
A. Plaintiff’s Expert Is a Highly Qualified Expert
B. Plaintiff’s Expert Conducted Reliable Studies Demonstrating Deception and Materiality
1. Mountain Men Deception Experiment
2. Special Delivery Deception Experiment
3. Consumer Complaint/Social Media Commentary Analysis
4. Materiality Experiment
III. LEGAL STANDARD
IV. ARGUMENT
A. Defendant’s Criticisms of Plaintiff’s Expert’s Opinions on Deception Lack Merit and Only Go to Their Weight, Not Their Admissibility
1. Plaintiff’s Expert’s Deception Experiments
a. Plaintiff’s Expert’s Control Disclaimer Was, and Is, Accurate
b. Plaintiff’s Expert’s Question [question number] Is Not Leading
c. Plaintiff’s Expert’s Question [question number] Is Proper and Supports His Conclusion That Consumers Believe [ names of Plaintiff’s Products] Products Contain [description of ingredient]
2. Plaintiff’s Expert’s Complaint and Social Media Analysis
B. Defendant’s Criticisms of Plaintiff’s Expert’s Opinions on Materiality Lack Merit and Only Go to Their Weight, Not Their Admissibility
C. Plaintiff’s Expert’s Statements Regarding Intent and Harm Should Not be Excluded
V. CONCLUSION
TABLE OF AUTHORITIES
Cases
Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24 (1st Cir. 2000)
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)
Eli Lilly & Co. v. Arla Foods, Inc., 893 F.3d 375 (7th Cir. 2018)
Guillory v. Dotmar Indus., Inc., 95 F.3d 1320 (5th Cir. 1996)
Lees v. Carthage College, 714 F.3d 516 (7th Cir. 2013)
LVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A., 209 F. Supp. 3d 612, 641-643 (S.D.N.Y. 2016)
McNeil-PPC, Inc. v. Pfizer Inc., 351 F. Supp. 2d 226 (S.D.N.Y. 2005)
Mead Johnson & Co. v. Abbot Labs., 201 F.3d 883 (7th Cir. 2000)
Merisant Co. v. McNeil Nutritionals, LLC, 515 F. Supp. 2d 509 (E.D. Pa. 2007)
Ortiz v. City of Chi., 656 F.3d 523 (7th Cir. 2011)
SMD Software v. EMove, Inc., 945 F. Supp. 2d 628 (E.D.N.C. 2013)
Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000)
Smith v. Wal-Mart Stores, Inc., 537 F. Supp. 2d 1302 (N.D. Ga. 2008)
SourceOne Dental, Inc. v. Patterson Cos., 328 F. Supp. 3d 53, 58 (E.D.N.Y. 2018)
Suchanek v. Sturm Foods, Inc., 311 F.R.D. 239 (S.D. Ill. 2015)
Walker v. Soo Line R.R. Co., 208 F.3d 581 (7th Cir. 2000)
Rules
Fed. R. Evid. 702
Other Authorities
Diamond, S., Reference Guide on Survey Research, in Reference Manual on Scientific Evidence, p. 399 (3d ed. 2011)
I. INTRODUCTION
[Name of Defendant]’s (“Defendant”) motion to exclude the expert opinions of [name of Plaintiff’s Expert] (“Plaintiff’s Expert”) is nothing more than an attempt to deprive the jury in this case of a task the law reserves exclusively for the fact finder. Defendant criticizes the studies on which Plaintiff’s Expert’s opinions are based and takes certain of his statements out of context, but the law is clear that such criticisms do not render an expert’s opinions unreliable as a matter of law. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595-96 (1993) (stating that the weight to be accorded to a party’s expert opinion should be made by the jury at trial after a “[v]igorous cross-examination” and the “presentation of contrary evidence”). All of Defendant’s criticisms go to the weight of Plaintiff’s Expert’s testimony, not its admissibility. See id. The appropriate question for a Daubert motion is not correctness, but whether the expert is qualified as an expert, whether the testimony is within that expertise, and whether the analysis is reliable. Smith v. Ford Motor Co., 215 F.3d 713, 717-18 (7th Cir. 2000) (reversing trial court’s exclusion of expert, noting that “[t]he soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact, or, where appropriate, on summary judgment”). Plaintiff’s Expert’s testimony satisfies these requirements and should be presented to the jury at trial.
II. BACKGROUND
A. Plaintiff’s Expert Is a Highly Qualified Expert
Plaintiff’s Expert is one of the preeminent marketing and consumer research experts in the country. He is [description of Plaintiff’s Expert education and employment history]. Beyond his academic work, Plaintiff’s Expert has consulted for over [number] companies and sits on the advisory boards of various companies and nonprofit organizations. In addition, he has served as an expert witness in [number] of litigation matters. Defendant has not challenged and cannot challenge Plaintiff’s Expert’s qualifications to serve as an expert in this case.
B. Plaintiff’s Expert Conducted Reliable Studies Demonstrating Deception and Materiality
1. Mountain Men Deception Experiment
Plaintiff’s Expert surveyed [number] consumers who were exposed to either a test or control version of Defendant’s “[name of Campaign]” Campaign ad and compared the responses of [number] respondents who were randomly assigned to view the test ad to the responses of [number] respondents who were randomly assigned to view the control ad. Plaintiff’s Expert’s experiment found that [number]% of respondents who watched the test ad came away convinced there is [description of ingredient] present in the [name of Plaintiff’s products]. When compared to the control group, a net of [number]% of consumers who saw the “[name of Campaign]” commercial were misled. Plaintiff’s Expert observed that the difference in perception “is both economically meaningful and statistically significant.”
2. Special Delivery Deception Experiment
In [month], Plaintiff’s Expert submitted his second report summarizing his experiment on Defendant’s “[name of campaign]” Campaign ad and its effect on consumer perceptions of [names of Plaintiff’s products]. Plaintiff’s Expert surveyed [number] qualified [description of consumer], who were exposed to a test or control version of the commercial using the same methodology applied in the “[name of ad campaign].” [Number] respondents were randomly assigned to view the test stimulus and [number] respondents were randomly assigned to view the control stimulus. Based on the results, Plaintiff’s Expert concluded that out of [number]% of respondents who saw the test stimulus, [number]% believed that the [names of Plaintiff’s products] contained [description of ingredient] compared to the [number]% who saw the control stimulus. When compared to the control group, a net of [number]% of consumers who saw the “[name of advertisement]” commercial were misled. Plaintiff’s Expert observed that the difference in perception “is both economically meaningful and statistically significant.”
3. Consumer Complaint/Social Media Commentary Analysis
Plaintiff’s Expert collected information from [name of Plaintiff] (“Plaintiff”) regarding comments from consumers related to [description of ingredient] that the company received prior to and after [date]. He analyzed that data and learned that Plaintiff received virtually no communications from consumers relating to [description of ingredient] before [date]. On [date], the day after the ad appeared, Plaintiff’s Expert’s analysis revealed that Plaintiff received [number] communications related to [description of ingredient]. From his review, Plaintiff’s Expert found that “[number] times more consumers indicated [that] they would likely end or decrease their purchases of [names of Plaintiff’s products] than would likely begin to purchase or increase their purchases of [names of Plaintiff’s products].”
At the direction of Plaintiff’s Expert, [name of company], a company that specializes in analyzing social media and other online content for litigation, collected posts from various social media forums and reviews, including Instagram, Reddit, Twitter and YouTube Posts were organized into two categories: (1) Twitter posts in which an account authored by Defendant mentioned [description of ingredient], and subsequent retweets of those posts (the “Defendant-Owned Dataset”); and (2) online conversations mentioning [description of ingredient] and either [name of Defendant’s product], or [name of Plaintiff’s product] (the “[description of ingredient] Dataset”). Plaintiff’s Expert concluded that the Campaign triggered a substantial amount of online activity. Specifically, the Defendant-Owned Dataset generated [number] total impressions, and [description of ingredient] Dataset generated [number] total impressions.
[Name of company] also analyzed a random sample of the [description of ingredient] Dataset in order to examine consumer sentiment toward [description of ingredient] in connection with [description of products] and whether consumers believe [description of ingredient] used is present in the final product. The results were large enough to draw conclusions with a high degree of statistical precision. Based on this analysis, Plaintiff’s Expert concluded that consumers expressed negative sentiment toward [description of ingredient] in connection with [description of product] more than [number] times as often as positive sentiment. Plaintiff’s Expert also concluded that [number]% of consumer posts indicated that the author was confused regarding the presence of [description of ingredient] in the final products. Based on the foregoing, Plaintiff’s Expert concluded that the social media analysis demonstrated that Defendant’s Campaign created confusion, health concerns, and disgust toward [names of Plaintiff’s products].
4. Materiality Experiment
For the Materiality Experiment, Plaintiff’s Expert surveyed [number] qualified [description of consumer], and the results showed that these consumers expressed negative sentiment toward [description of ingredient] in connection with [description of product] more than [number] times as often as positive sentiment.
III. LEGAL STANDARD
Under Fed. R. Evid. 702, relevant and reliable testimony must (1) be offered by a qualified expert; (2) assist the trier of fact in determining a relevant fact at issue in the case; (3) be based on sufficient facts or data and reliable principles and methods; and (4) reliably apply these principles and methods to the case. Lees v. Carthage College, 714 F.3d 516, 521-22 (7th Cir. 2013). Thus, the standard is whether the testimony will assist the trier of fact with its analysis, not whether the expert’s conclusion is correct. “The question of whether the expert is credible or whether his or her theories are correct given the circumstances of a particular case is a factual one that is left for the jury to determine after opposing counsel has been provided the opportunity to cross-examine the expert regarding his conclusions and the facts on which they are based.” Smith, 215 F.3d. at 719 (citing Walker v. Soo Line R.R. Co., 208 F.3d 581, 589-90 (7th Cir. 2000) (reversing district court’s exclusion of expert testimony)). See also Ortiz v. City of Chi., 656 F.3d 523, 536 (7th Cir. 2011) (reversing trial court’s exclusion of expert, noting that “[t]he admissibility determination [under Rule 702] is not intended to supplant the adversarial process .…”).
IV. ARGUMENT
A. Defendant’s Criticisms of Plaintiff’s Expert’s Opinions on Deception Lack Merit and Only Go to Their Weight, Not Their Admissibility
1. Plaintiff’s Expert’s Deception Experiments
Defendant does not even attempt to attack Plaintiff’s Expert’s methodology in conducting the deception experiments. Instead, Defendant simply points to purported flaws that it argues render Plaintiff’s Expert’s opinions inadmissible: the allegedly leading nature of question [question number] (it is not leading); and the allegedly “improper” (actually proper) question [question number] regarding [description of ingredient] and Plaintiff’s Expert’s conclusions based thereon. As discussed further below, and as this court has noted before, each criticism lacks merit and, at most, only goes to the weight of Plaintiff’s Expert’s opinions, not their admissibility.
a. Plaintiff’s Expert’s Control Disclaimer Was, and Is, Accurate
The cases to which Defendant cites for the proposition that courts have excluded survey evidence when the expert’s opinions were based on faulty assumptions are distinguishable and do not support the exclusion of Plaintiff’s Expert’s opinions regarding deception. None of the cases are binding in the Seventh Circuit, and in any event, none involved a situation where the purportedly faulty assumption regarded the language of a control disclaimer which communicated a fact that was hotly disputed between the parties.
Defendant further argues that Plaintiff’s Expert’s “erroneous assumption” regarding the absence of [description of ingredient] in the Plaintiff’s products renders his control group obsolete, and thus invalidates his survey. This is absurd. The control cell in a deception experiment serves to isolate the deceptive element of an advertisement and to compare the interpretations reported by respondents who view the test (or original) advertisement and those who review the version with the control disclaimer. Diamond, S., Reference Guide on Survey Research, in Reference Manual on Scientific Evidence, p. 399 (3d ed. 2011). That is exactly the function that Plaintiff’s Expert’s control disclaimer served in his deception experiments—it corrected the deceptive element of Defendant’s Campaign advertisements by making it abundantly clear that there is no [description of ingredient] in the final [names of Plaintiff’s products] products. As noted above, the language of Plaintiff’s Expert’s control is truthful, but even if there could be reasonable debate about that issue (there cannot), it would have had no impact on the design of his survey. As Shari Diamond acknowledges in the portion of her Reference Guide on Survey Research quoted by Defendant in its brief, “the choice of an appropriate control group requires some care and should influence the weight that the survey receives.” Plaintiff’s Expert’s deception opinions should not be excluded on this basis.
b. Plaintiff’s Expert’s Question [ question number] Is Not Leading
Plaintiff’s Expert’s question [question number] is a straightforward question that asked respondents to identify what the surveyed advertisements conveyed to them by use of the phrases “made with” or “uses [description of ingredient].” It did not instruct respondents that the phrases “made with” or “uses [description of ingredient]” are ambiguous; instead, it communicated that the phrases may be ambiguous.
More importantly, the way that respondents answered question [question number] demonstrates that the question was not leading. Both the test and the control groups in Plaintiff’s Expert’s deception experiments responded to question [question number]. If the question was leading as Defendant suggests, respondents in both the test and control cells would have been equally likely to select the response option stating “[description of ingredient] is both used in the [description of process] process and in [description of product].” But this is not what happened. Thus, the question [question number] could not possibly be leading respondents to select the answer with more than one meaning.
Even if one were to accept Defendant’s argument that Plaintiff’s Expert’s question [question number] was leading (it is not), the leading nature of the question would not warrant exclusion of Plaintiff’s Expert’s deception opinions. See Smith, 215 F.3d. at 719 (citing Walker, 208 F.3d at 589-90) (reversing district court’s exclusion of expert testimony). See also Ortiz, 656 F.3d at 536 (reversing trial court’s exclusion of expert testimony, noting that “[t]he admissibility determination [under Rule 702] is not intended to supplant the adversarial process .…”). At most, the criticisms go to the weight and not admissibility of his opinions. See id.
Defendant also argues that Plaintiff’s Expert’s deception opinions should be excluded because question [question number] was designed to determine the meaning of words, which it purports is prohibited by Mead Johnson & Co. v. Abbot Labs., 201 F.3d 883 (7th Cir. 2000). This argument lacks merit. As Plaintiff pointed out in its recent Brief in Opposition to Defendant’s Motion for Partial Summary Judgment, this case is not like Mead Johnson. Mead Johnson involved the narrow factual setting in which the lawsuit challenges a single phrase on the defendant’s product packaging that the Seventh Circuit found to be unambiguous. See id. at 883-84. The phrase stood alone and was not colored by the additional context of an overarching campaign that created additional innuendo and ambiguity suggesting to consumers that there was an additional false message. In contrast to the single phrase at issue in Mead Johnson, Defendant designed a massive, thematically linked, 360-degree multi-media Campaign against Plaintiff, Defendant’s largest competitor, and its flagship products.
Defendant knew that consumers were predisposed to confuse [description of ingredient], and that consumers disliked the idea of putting [description of ingredient] into their bodies. The Campaign has dozens of components that use a range of phrases and iconography to convey the same general message: [names of Plaintiff’s products] contain [description of ingredient], while [name of Defendant’s product] does not.
Courts have distinguished Mead Johnson in similar circumstances, noting that phrases can be impliedly false based on their context. See Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 38 (1st Cir. 2000) (vacating dismissal of false advertising claim because “[t]here is a fundamental difference between a slogan on a can label that communicates its meaning to consumers solely through the printed text, and a tag line shown on the screen at the end of a television commercial”); McNeil-PPC, Inc. v. Pfizer Inc., 351 F. Supp. 2d 226, 254 (S.D.N.Y. 2005) (finding ads impliedly false based in part on survey evidence looking at “overall words and images”). This makes sense—when individual components of a broader campaign are linked together, the deceptive nature of one taints the nature of another. Courts have also distinguished Mead Johnson based on a defendant’s intent, noting that a defendant’s intent to deceive is strong evidence of actual deception. See, e.g., Merisant Co. v. McNeil Nutritionals, LLC, 515 F. Supp. 2d 509, 528 (E.D. Pa. 2007) (distinguishing between phrases that were just “misunderstood” and those that were “deliberately designed to be misunderstood”).
Moreover, the survey conducted in the Mead Johnson case is significantly different from Plaintiff’s Expert’s deception experiments. As noted above, the phrase in question in Mead Johnson was “1st Choice of Doctors.” 201 F.3d at 883-884. The critical survey question asked respondents “in order for [the “1st Choice”] statement to be true, what percent of those doctors would have had to say that this product was their first choice?” As the Court pointed out, this question assumes that “first” could only be interpreted as a cardinal number, and not a “place in a series.” Id. at 885. Because of this assumption and the form of the question, the court said that the survey “ensured that the answers would be numbers rather than places in a series” and, thus, the results “produce a misleading if not meaningless answer.” Id.
There is no such issue with Plaintiff’s Expert’s survey. It accounted for “all proper answers” that could be provided in response to the question. For these reasons, Plaintiff’s Expert’s deception opinions should not be excluded on the basis of the deception experiments’ use of question [question number].
c. Plaintiff’s Expert’s Question [ question number] Is Proper and Supports His Conclusion That Consumers Believe [ names of Plaintiff’s Products] Contain [ description of ingredient]
Plaintiff’s Expert included question [question number] in his deception experiments to determine whether respondents reported that the surveyed commercials communicated a message that [description of ingredient] are the same. Consistent with typical deception experiment design, Plaintiff’s Expert asked respondents who viewed the test commercial and the control commercial this same question, and then compared the results. Plaintiff’s Expert’s question design was entirely proper.
Defendant argues that question [question number] was an improper question because none of the tested advertisements utilized the term [description of ingredient] but fails to articulate what tenet of consumer research design this question violates. To the extent Defendant intended to argue that this question is leading, such a position lacks merit—question [question number] did not suggest any answer to respondents, and even if it did, respondents who answered question [question number] in both the test and control cells would have been equally likely to provide the response that [description of ingredient] are the same, but that is not what happened. Moreover, Defendant cites Eli Lilly & Co. v. Arla Foods, Inc., 893 F.3d 375, 382 (7th Cir. 2018), to argue that Plaintiff’s Expert’s opinion on this topic should be excluded because he failed to establish deception among a substantial segment of his audience. Defendant misunderstands Plaintiff’s Expert’s opinion—he did not opine that the tested commercials misled a substantial segment of consumers to believe that [description of ingredient] are the same. Rather, he simply opined that some respondents who viewed the tested advertisements equate [description of ingredient].
Defendant also argues that question [question number] is improper because it seeks to redefine [description of ingredient] as meaning [description of ingredient]. This argument is nonsensical. For the reasons set forth above, Mead Johnson is inapplicable to the facts of this case. Further, the responses to Plaintiff’s Expert’s question [question number] clearly demonstrate that the term “[description of ingredient]” is ambiguous because respondents selected different answers both in the test and control cells.
In any event, Defendant’s quarrel with Plaintiff’s Expert’s question [question number] is only relevant to the weight the jury can accord to Plaintiff’s Expert’s opinion based on responses to this question. Smith, 215 F.3d at 719 (citing Walker, 208 F.3d at 589-90 (reversing district court’s exclusion of expert testimony)). See also Ortiz, 656 F.3d at 536 (reversing trial court’s exclusion of expert, noting that “[t]he admissibility determination [under Rule 702] is not intended to supplant the adversarial process .…”). The criticisms are completely irrelevant to the admissibility of Plaintiff’s Expert’s opinions in this regard. See id.
2. Plaintiff’s Expert’s Complaint and Social Media Analysis
As set forth in Section II, infra, Plaintiff’s Expert’s methodology in collecting and analyzing consumer complaints and social media commentary following [date] advertisement relating to [description of ingredient] and the [description of products] at issue was scientifically reliable. Plaintiff’s Expert’s analysis of consumer complaints following the airing of the ad revealed that [number]% of consumers indicated that the presence of [description of ingredient] in [names of Plaintiff’s products] would end or decrease their purchases of those products. Further, based on his review of social media commentary following the airing of the ad, Plaintiff’s Expert concluded that many consumers hold a negative view of [description of ingredient] in connection with [description of products].
With respect to Plaintiff’s Expert’s opinion based on his analysis of consumer complaints, Defendant argues that his analysis was flawed because some of the consumer complaints could have come from Plaintiff’s employees. This suggestion is absurd. Defendant also argues that Plaintiff’s Expert only analyzed complaints related to [description of ingredient] but fails to explain how this invalidates Plaintiff’s Expert’s conclusions. Moreover, the fact that only [number]% of the complaints reviewed mentioned the Defendant’s ads are irrelevant. The fact remains that, prior to [date], Plaintiff received virtually no consumer communications regarding [description of ingredient], and following [date], it received [number].
Regarding Plaintiff’s Expert’s analysis of social media commentary following the airing of the ad, Defendant argues that Plaintiff’s Expert’s data set is statistically insignificant compared to the approximately [number] people who watched the ad, and that Plaintiff’s Expert’s report fails to indicate whether the persons posting on social media were [description of consumer] consumers. These criticisms completely lack merit. The fact remains that, following the airing of the ad, there was a significant amount of negative social media commentary surrounding [description of ingredient] and [description of product]—a topic that had not previously generated significant discussion.
But again, Defendant’s criticisms of these studies and opinions are only relevant to the weight that the fact finder may give them. See Smith, 215 F.3d. at 719 (citing Walker, 208 F.3d at 589-90 (reversing district court’s exclusion of expert testimony)). See also Ortiz, 656 F.3d at 536 (reversing trial court’s exclusion of expert, noting that “[t]he admissibility determination [under Rule 702] is not intended to supplant the adversarial process .…”). They are irrelevant to the admissibility of Plaintiff’s Expert’s opinions based on his analysis of consumer complaints and social media commentary. See id. Also, these studies will unquestionably assist the trier of fact because they validate the conclusions he reached in the deception experiments. See Suchanek v. Sturm Foods, Inc., 311 F.R.D. 239, 245 (S.D. Ill 2015) (“The Court simply does not see why Calder needed a survey to measure the perceptions of potential GSC purchasers when he had oodles of complaints explicitly stating what consumers thought. Thus, the fact that Calder’s first set of opinions were not based on a consumer survey does not make them inadmissible.”).
B. Defendant’s Criticisms of Plaintiff’s Expert’s Opinions on Materiality Lack Merit and Only Go to Their Weight, Not Their Admissibility
Plaintiff’s Expert’s methodology in measuring the materiality of Defendant’s Campaign message to consumers is reliable and scientifically valid.
Defendant attacks Plaintiff’s Expert’s materiality experiment and his conclusions based thereon on various grounds, none of which have merit.
While Defendant cites to SourceOne Dental, Inc. v. Patterson Cos., 328 F. Supp. 3d 53, 58 (E.D.N.Y. 2018) to argue that Plaintiff’s Expert’s materiality experiment “does not meet Lanham Act requirements for a materiality survey,” Defendant fails to recognize that there are no Lanham Act requirements for a materiality survey. In fact, in SourceOne, the court held that to make a determination of materiality the party is only required to introduce “some form of evidence—usually, although not necessarily, survey evidence or expert testimony based on it[.]” Id. at 65. The court did not provide any analysis on how the survey should be conducted. Id. Further, the facts in that case are far different from the facts at issue here. In SourceOne, defendants’ counterclaim was based on the plaintiff’s “specific percentage-savings claim” and at issue was whether price differentials between what was advertised and actual prices were material to consumers. Id. at 65. The court found that while “purchasers generally like to spend less instead of more” defendants could not presume materiality simply on that general assumption. Id. The court also noted that “[d]efendants…produced no evidence that an average savings of 19% as compared to the advertised savings of 35% would be likely to influence purchasing decisions” by consumers. Id. (emphasis added). Plaintiff’s Expert is one of, if not the, preeminent experts in the field of marketing science and consumer research, and he testified that his survey design appropriately measured materiality.
Notwithstanding, like its criticisms of Plaintiff’s Expert’s deception experiments and his analysis of consumer complaints and social media commentary, Defendant’s criticisms of Plaintiff’s Expert’s materiality experiment are only relevant to the weight the jury may accord to his conclusions, not their admissibility. See Smith, 215 F.3d. at 719 (citing Walker, 208 F.3d at 589-90 (reversing district court’s exclusion of expert testimony)). See also Ortiz, 656 F.3d at 536 (reversing trial court’s exclusion of expert, noting that “[t]he admissibility determination [under Rule 702] is not intended to supplant the adversarial process .…”).
C. Plaintiff’s Expert’s Statements Regarding Intent and Harm Should Not be Excluded
Defendant latches on to three paragraphs in Plaintiff’s Expert’s [date] expert report and argues that he has offered an improper expert opinion with respect to Defendant’s intent in devising the Campaign. Defendant also cites one additional paragraph in that same report and argues that Plaintiff’s Expert has offered an improper opinion regarding the harm Plaintiff suffered as a result of Defendant’s Campaign.
Plaintiff’s Expert has significant experience in reviewing market research and predicting consumer responses to advertising, and the statements with which Defendant takes issue are an integral part of his analysis and ultimate conclusions that consumers were deceived by Defendant’s Campaign regarding a material fact. Plaintiff’s Expert’s ultimate opinions (which he has admitted do not relate to Defendant’s intent or Plaintiff’s damages) will, without question, assist the jury in making factual determinations in this case—a task that is exclusively reserved for the fact finder. Defendant will have every opportunity at trial to demonstrate through rigorous cross-examination why the jury should accord little weight to Plaintiff’s Expert’s comments relating to intent and harm.
Defendant will have yet another opportunity to cross-examine Plaintiff’s Expert at trial. As such, there is absolutely no reason to exclude his opinions on these issues at this stage in the proceedings. Smith, 215 F.3d. at 719 (citing Walker, 208 F.3d at 589-90 (reversing district court’s exclusion of expert testimony)). See also Ortiz, 656 F.3d at 536 (reversing trial court’s exclusion of expert, noting that “[t]he admissibility determination [under Rule 702] is not intended to supplant the adversarial process .…”). For these reasons, Defendant’s motion to strike Plaintiff’s Expert’s isolated statements relating to intent and harm should be denied.
V. CONCLUSION
Plaintiff’s Expert is abundantly qualified to offer his well-supported and well-reasoned opinions in this case, and reasonable experts may disagree about whether advertisements deceive consumers about a material fact. As he has throughout his distinguished career in the fields of marketing strategy, market research, and consumer perception and behavior, Plaintiff’s Expert reliably applied the standard methods used by such experts in designing and interpreting his deception experiments, his consumer complaint/social media commentary analysis, and his materiality experiments. Defendant’s criticisms of his conclusions are appropriate for “vigorous cross-examination” at trial and nothing more. Defendant should not be permitted to deprive the fact finder from determining the credibility or soundness of Plaintiff’s Expert’s conclusions—such a determination is reserved for the trier of fact as a matter of law. For these reasons, Plaintiff respectfully requests that Defendant’s Daubert motion be denied in its entirety.
Respectfully submitted this [date],
By:
[names and contact information of Counsel for Plaintiff], Attorneys for Plaintiff