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In re Tropicana Orange Juice Marketing and Sales Practices Litigation

United States District Court, D. New Jersey

May 31, 2017



          WILLIAM J. MARTINI, U.S.D.J.

         Plaintiffs bring this class action against Defendant Tropicana Products, Inc. (“Defendant”), alleging numerous violations of common law and state consumer protection laws, in connection with Defendant's sale of orange juice. This matter comes before the Court on the parties' motions to exclude the testimony of three proffered expert witnesses prior to the class certification phase of litigation. There was no oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, the parties' motions are DENIED.

         I. BACKGROUND

         The named plaintiffs (“Plaintiffs”) are citizens from New Jersey, New York, California, and Wisconsin, who purchased Defendant's “not-from-concentrate” orange juice from December 2005 to the present. See Am. Compl. (“Compl.”) ¶¶ 17-24, ECF No. 32. Defendant is a division of Pepsi Co., Inc., which is a Delaware corporation with its principal place of business in Purchase, New York. Id. at ¶ 25. The Court assumes the parties' familiarity with the claims, facts and procedural history of the case.

         On September 16th, 2016, the Court dismissed without prejudice all of the parties' pending motions before the Court, including three motions to exclude expert testimony, except for Plaintiff's motion to compel discovery. See ECF No. 195. On December 19th, 2016, the Court denied Plaintiffs' motion to compel, thereby providing the parties' an opportunity to refile the instant motions. See ECF Nos. 205, 206. Notably, the Court ordered that all expert challenges be filed prior to Plaintiffs' motion for class certification.

         Accordingly, on January 13, 2017, Defendant moved to exclude the expert testimony of Dr. Arvind Narayanan. See Mot. to Preclude the Test. of A. Narayanan (“Narayanan Mot.”), ECF No. 209. On January 18th, 2017, Plaintiffs moved to exclude the expert testimonies of Dr. Keith Ugone and Dr. Ravi Dhar. See Mot. to Exclude the Test. of K. Ugone (“Ugone Mot.”), ECF No. 214; Mot. to Strike the Survey of and Exclude Ops. of R. Dhar (“Dhar Mot.”), ECF No. 217. The parties timely filed oppositions and reply briefs. See Br. in Opp'n to Def.'s Mot. to Preclude Test. (“Narayanan Opp'n”), ECF No. 220; Reply to Pls.' Resp. to Def.'s Mot. to Preclude Test. (“Naryanan Reply”), ECF No. 224; Br. in Opp'n to Pls.' Mot. to Strike the Survey of and Exclude Ops. (“Dhar Opp'n”), ECF No. 227; Br. in Opp'n to Pls.' Mot. to Exclude Test. (“Ugone Opp'n”), ECF No. 230; Resp. in Supp. of Pls.' Mot. to Strike and Exclude (“Dhar Reply”), ECF No. 236; Resp. in Supp. of Pls.' Mot. to Exclude (“Ugone Reply”), ECF No. 238.


         Federal Rule of Evidence 702 governs the admissibility of expert testimony, providing:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

         Under Rule 702, therefore, expert testimony will be admissible only if it is both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). The proponent of expert evidence must demonstrate its admissibility by a preponderance of the evidence. Id. at 592 n. 10.

         The Supreme Court has held that when determining whether expert testimony is reliable, courts may consider (1) whether a theory or technique “can be (and has been) tested;” (2) “whether the theory or technique has been subject to peer review or publication;” (3) “the known potential rate of error;” and (4) whether there is “general acceptance” in the methodology in the relevant scientific community. Daubert, 509 U.S. at 593-94. Importantly, “[t]he factors drawn from Daubert . . . are neither exhaustive nor applicable in every case.” Pineda v. Ford Motor Co., 520 F.3d 237, 248 (3d Cir. 2008) (citations and quotations omitted). The Daubert factors apply “not only to testimony based on ‘scientific' knowledge, but also to testimony based on ‘technical' and ‘other specialized' knowledge.” See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Fed.R.Evid. 702).

         In serving its “gatekeeper function” and assessing the reliability of an expert's methodology, the Court must be mindful that in order to be admissible, an expert's method need not be the “best” method or one that is demonstrably correct. “Rather, the test is whether the ‘particular opinion is based on valid reasoning and reliable methodology.'” Oddi v. Ford Motor Co., 234 F.3d 136, 145-46 (3d Cir. 2000) (citation omitted). “Rule 702 . . . has a liberal policy of admissibility.” See Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 806 (3d Cir. 1997). “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

         Daubert applies equally to the class certification phase of a class action as it does during trial. See In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015) (“[A] plaintiff cannot rely on challenged expert testimony, when critical to class certification, to demonstrate conformity with Rule 23 unless the plaintiff also demonstrates, and the trial court finds, that the expert testimony satisfies the standard set out in Daubert.”). Critically, however, “[t]he main purpose of Daubert exclusion is to protect juries from being swayed by dubious [expert] testimony.” See In re Zurn Pex Plumbing Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). The trial court's “gatekeeping function” is, therefore, reduced “‘when the gatekeeper is keeping the gate only for himself.'” See id. (quoting United States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005)); see also Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010) (noting that the “usual concerns” of Daubert-i.e., “keeping unreliable expert testimony from the jury”- are not present during a bench trial). At class certification, the district court serves as the trier-of-fact and no jury is present. Accordingly, the Court will weigh the parties' expert challenges in light of this consideration.

         III. ...

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