Nutrition Expert Witness Testimony Allowed in Part

Plaintiffs filed a class action against the defendants regarding labeling of its ginger ale.  Plaintiffs hired a Nutrition Expert Witness to provide testimony.  The defendants filed a motion to exclude this testimony.  The court granted the motion in part and denied it in part.

Facts:  This case (Jackie Fitzhenry-Russell et al v. Dr Pepper Snapple Group, Inc. et al – United States District Court – Northern District of California – November 2nd. 2018) involves a putative class action alleging that the defendant misleads consumers by labeling its ginger ale as containing “real ginger” but that there is allegedly no actual ginger in the soda.  The plaintiffs hired Nutrition Expert Witness Annette Hottenstein to provide testimony on their behalf.  The defendants have hired a motion to exclude the expert witness testimony of Ms. Hottenstein.

Discussion:  The defendants argue that Hottenstein’s testimony about whether the ginger flavor in their ginger ale is from “real ginger” should be stricken because she is not qualified to calculate the sensory perceptibility of an ingredient  using long-form math.  In addition, the defendant’s argue that Hottenstein’s testimony should not be allowed to the extent that she testifies that consumers perceive a ginger taste due to the drink’s packaging.

Hottenstein’s report summarizes the analyses conducted by two other experts, who both analyzed the amount of ginger compounds  in the defendants’ ginger ale.  Hottenstein used these experts’ data in a series of calculations to determine the ginger oleoresin content of the ginger ale.  She then cross-referenced these levels to a standard reference for flavor ingredients to determine whether the ginger flavor in the ginger ale can be attributed to ginger oleoresin.  She opines that the ginger oleoresin content is too low to be perceptible.

The defendants argue that Hottenstein has no history of analyzing sensory perceptibility using math.  The defendants do point out that this is the first time that Ms. Hottenstein has used this method to test perceptibility and Hottenstein has represented that taste tests are the best way to test perceptibility.

The court opines that these arguments go to the weight of the testimony, not its admissibility.  The court continues by stating that the fact that Hottenstein has apparently never done these calculations before does not mean that her opinion is not reliable.  The court continues by stating that the calculations involve only basic arithmetic.  The court also opines that the fact that Hottenstein’s conclusion may be at odds with published taste thresholds doesn’t mean that it is sufficient grounds to strike her testimony.

The defendants also argue that Hottenstein’s opinions about product packaging should be excluded because she doesn’t have any expertise regarding consumer psychology and packaging.  The court agrees with this argument and excludes this portion of her testimony.

Conclusion:  The motion to exclude the expert witness testimony of Annette Hottenstein is granted in part and denied in part.