Marketing Expert Witness Testimony Allowed

Plaintiff filed a putative class action against the defendant related to automatic enrollment into a toll pay system.  Both parties hired marketing expert witnesses, both parties filed motions to exclude, and both motions were denied.

Facts:  This putative class action case (Mendez v. Avis Budget Grp., Inc. – United States District Court – District of New Jersey – June 21st, 2017) involves charges at toll booths.  The plaintiffs maintain that they were charged non discounted and charges and convenience fees when they rented from the defendant.  They allege that the vehicles had an electronic system to pay tolls called an “e-toll”.  The plaintiff also argues that he wasn’t told that his vehicle would be equipped with the e-toll device and that he was pre-enrolled and activated for e-Toll.  Both parties hired marketing expert witnesses for a motion for class consideration.  The plaintiff hired Vicki Morwitz and the defendant, Larry Chiagouris.  Both parties filed motions to exclude the opposing parties experts.

Discussion:  We first turn to Vicki Morwitz.  Morwitz opines that the defendant to their customers about the e-toll systems was not adequate and that the customers were not notified that the e-Toll system was optional.  The defendants maintain that Morwitz “cherry picked” parts of different agreements, disclosures, and that she unfittingly applied these to the entire proposed class.  For example, she focused on certain aspects of a web site, but ignored other parts.  In addition, she failed to notice that the type of disclosures was varied based on location.  Last, the defendants argue that Morwitz missed that fact that some electronic tolling authorities provided information on driving rental cars through a toll booth.  The plaintiff counter-argued that Morwitz was just giving examples that explain her larger point that the disclosures were not adequate.

The court agreed with the plaintiff, stating that Morwitz’s testimony was reliable. The court opined that Morwitz reviewed materials provided by Avis Entities to the rental customers.  the court continued by stating that the arguments made by the defendant go to the weight of the testimony, not the admissibility.  In addition the court decided that Morwitz’s expert testimony will be of assistance to the court.

In terms of the expert testimony of Larry Chiagouris, the defense hired him as expert in marketing and consumer behavior and will respond to Morwitz’s testimony.  Chiagouris  has opined that the ramifications of the e-Toll system were “knowable” through the defendant’s marketing materials.  The plaintiff has moved to exclude Chiagouris’ opinion by stating that his opinion does not explain what the potential class members were likely to see and, therefore, know about the material terms.  In addition, they maintain that Chiagouris does not make reference to academic literature, research, or any statistical data to support his opinion.

The court agreed with the defendant, opining that Chiagouris’s testimony is sufficient under Daubert for inclusion as expert testimony.  All arguments by the plaintiff goes to the weight of the testimony, not the admissibility.

Conclusion:  The motions to exclude the expert witness testimony of Vicki Morwitz and Larry Chiagouris are denied.