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Weaver v. Champion Petfoods USA Inc

United States District Court, E.D. Wisconsin

December 31, 2019

SCOTT WEAVER, Plaintiff,
v.
CHAMPION PETFOODS USA INC. and CHAMPION PETFOODS LP, Defendants.

          ORDER

          J. P. STADTMUELLER U.S. DISTRICT JUDGE

         This is a class action alleging that Defendants have marketed their dog foods as being natural and of high-quality, and sold them at a premium price, when their advertisements were misleading at best, meaning that the products' price was unfairly inflated. (Docket #41). Defendants have filed a motion for summary judgment, seeking dismissal of the case in its entirety. (Docket #46). Plaintiff has filed his own motion for class certification. (Docket #50). The parties have also moved to exclude the opinions of various experts pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). (Docket #71, #81, #96, #107, #121, and #126). The Court will herein address only one such motion- Defendants' motion to exclude two of Plaintiff's damages experts, Jon Krosnick (“Krosnick”) and Colin Weir (“Weir”). (Docket #71). It appears to the Court that the motion is pivotal to the case and may drastically change the parties' approaches to the litigation moving forward.

         Rule 702 provides that parties may propound opinion testimony from a witness if that witness is qualified as an expert by way of knowledge, skill, or experience. Fed. Evid. 702. To warrant admission of such opinion testimony, the propounding party must establish that:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Id. Put another way, the Court “must determine whether the witness is qualified; whether the expert's methodology is scientifically reliable; and whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010) (quotation omitted).

         This analysis reflects the need for the Court to act as a gatekeeper for the admission of expert testimony, because such testimony “can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert, 509 U.S. at 595 (quotation omitted). The Court's inquiry here is flexible and it need not find all factors present or absent to decide admissibility. Krik v. Exxon Mobil Corp., 870 F.3d 669, 674 (7th Cir. 2017). But the Court should remain focused on the expert's principles and methodology, not his conclusions or the facts underlying his opinions; those go to the weight of the testimony and are reserved for the fact-finder's evaluation. Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 780-81 (7th Cir. 2017). The party propounding the expert testimony bears the burden to convince the Court, by a preponderance of the evidence, that the testimony satisfies Daubert and Rule 702. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

         Krosnick is an expert in creating and conducting surveys. In this case, he was hired by Plaintiff to conduct two. The first, called the damages survey, was aimed to test how consumers' purchasing decisions would change when the allegedly misleading statements on Defendants' product packaging were corrected. The offending statements, which include the phrases “Biologically Appropriate, ” “Fresh Regional Ingredients, ” and “Never Outsourced, ” are referred to in shorthand as BAFRINO.

         The damages survey began by showing respondents unaltered photos of two bags of Defendants' dog food. It then revealed zero to eight “corrective statements” which, as the name implies, were designed to correct the misleading nature of each BAFRINO statement. The corrective statements were as follows:

1) Laboratory testing has shown there is a risk that this food may contain mercury. The World Health Organization has said that in humans, “Mercury may have toxic effects on the nervous, digestive and immune systems, and on lungs, kidneys, skin and eyes.”
2) Laboratory testing has shown there is a risk that this food may contain cadmium. A federal public health agency of the U.S. Department of Health and Human Services, has found, “Kidney and bone effects have also been observed in laboratory animals ingesting cadmium. Anemia, liver disease, and nerve or brain damage have been observed in animals eating or drinking cadmium.”
3) Laboratory testing has shown there is a risk that this food may contain lead. The Food & Drug Administration has said, “Lead is poisonous to humans and can affect ...

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