United States District Court, D. New Jersey
IN RE TROPICANA ORANGE JUICE MARKETING AND SALES PRACTICES LITIGATION MDL 2353 This Document Relates To: ALL CASES
WILLIAM J. MARTINI, U.S.D.J.
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
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.
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.
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.
Rule of Evidence 702 governs the admissibility of expert
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.
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.
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
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.
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.