Expert Witness Blog
Both plaintiffs and defendants hired expert witnesses in this proposed class action. In one piece of the case, the defendants filed a motion to exclude the testimony of an expert in marketing. The court denied the motion.
Facts: This consumer class action litigation (Suchanek et al v. Sturm Foods, Inc. et al – United States District Court – Southern District of Illinois – November 3, 2015) involves the manufacturing of single-serve coffee cups that are used in Keurig machines. The plaintiffs argue that the coffee was marketed as premium ground coffee, but was, in actuality, 95% ground coffee. They state that they wouldn’t have purchased the coffee, or would have paid less for it, if they had known that it was not premium. In order to assist in proving their case, the plaintiffs hired a marketing expert witness. The plaintiffs subsequently filed a motion to exclude this testimony.
Discussion: The plaintiffs hired Bobby Calder, Phd to opine on whether the packaging of the coffee was likely to mislead reasonable consumers. They were going to use the testimony to show that the resolution of the case should come on a class-wide basis and that it dominates over the issues of the individual litigants. Dr. Calder, in his expert report, concluded that a reasonable consumer would have been led into thinking that the coffee was ground coffee by the label.
The defendants challenged this portion of the testimony by stating that it was not based on actual consumer conceptions, which could have been obtained by utilizing a survey. The court disagreed with this line of reasoning, citing cases where the court said that a consumer survey is not the only method of proving consumer deception. In addition, Dr. Calder had other weapons at his disposal to assist in proving deception. These include: 1) Defendants’ own marketing research which showed that Keurig users did not want to drink instant coffee, thus avoiding the use of the word “instant” on the packaging; 2) Defendants’ product testing to ascertain if consumers tasted any difference between instant and ground coffee; and 3) hundreds of consumer complaints about the makeup of the coffee. The court thus concluded that Dr. Calder was not in need of utilizing a survey to come to his conclusions. Also, the defense claims that Dr. Calders opinions are based on erroneous facts, but the court decided that this would have to be taken up at trial as it goes to the weight and credibility of the testimony and not their admissibility.
The defense also challenged the portion of Dr. Calder’s testimony where he states that the defendant’s plan for marketing the coffee was to distract the consumer from realizing that the product was instant coffee, not ground. To prove this, he created a survey, the results of which show that consumers identify Keurig coffee pods with ground roasted coffees, not instant. After the pods were opened, the participants changed their minds, stating that the product was instant coffee. The defendants’ filed a motion to exclude this evidence, stating that the study deviated from accepted scientific principles for surveys. They even hired an expert, Gary Ford, Phd to critique Dr. Calder’s methodology. Dr. Ford stated that he found deficiencies in Dr. Calder’s study, such as an improper universe and an unrepresentative sample from the universe. The court stated that, while somewhat flawed, it was not so imperfect to be able to find it inadmissible. In addition, most of the arguments go to the weight of the study, rather than its admissibility.
Held: The motion to exclude the testimony of Dr. Calder was denied.