Political Science Expert Not Allowed to Opine on the Duty to Disclose

Plaintiff Allison Barton has sued Defendant The Procter & Gamble Company ("Defendant") for allegedly violating California consumer protection law regarding its Tampax Pearl tampons and Tampax Radiant tampons (collectively, the "Products"). Plaintiffs alleged that Defendant's Product labels misled consumers into believing the Products are free of lead.

Defendant filed its own motion to exclude Plaintiff's expert James L. Gibson.

Political Science Expert Witness

James Louis Gibson holds a Ph.D. in political science and is a highly renowned political scientist in academic circles. However, at the same time, he has expertise in survey research, statistics, and empirical data analysis. He has published 12 books, 45 articles in the top three political science journals, and 100 additional articles and chapters in other peer-reviewed journals and books.

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Discussion by the Court

Plaintiffs retained Gibson to determine the attitudes of California consumers of tampons regarding the possibility that lead is in the tampons they purchase. Gibson conducted an observational survey and concluded that "based on the explicit claims made on the Tampon boxes, a claim that is not explicitly made on the boxes—that the tampons are free of harmful substances, such as lead—is thought to be true by a vast majority of California women" and that "if told that tampons contained lead, the vast majority of California women in the relevant age group would not choose to purchase them."

1. Gibson's Qualifications

Despite this background, Defendant argued that Gibson is unqualified because he has no marketing degrees, does not have experience studying marketing and consumer behavior, and has no previous studies involving consumer products. However, the Court found this argument overly narrow and unpersuasive. Gibson's long record of practical and academic experiences in survey design suffices to qualify him under Rule 702, even though additional knowledge in consumer behavior might be useful. A dispute as to the strength of Gibson's credentials goes to the weight of his testimony, rather than its admissibility.

2. Survey Reliability

Defendant challenged Gibson's survey because it doesn't include a control group and has leading questions and other design flaws that bias respondents. Defendant argued that "if Rule 702 is properly applied, a survey expert cannot offer causation-based opinions without a control group". As a result, Defendant argued that Gibson's testimony should be excluded because the survey is unreliable.

Further, given that the case is at the class certification stage of the proceedings, the Court found that the deficiencies in the survey design only affect the weight that Gibson's opinions are entitled to in considering class certification. The Court found that the survey is sufficiently reliable to give it some weight at this stage. Otherwise, the Court denied the motion to exclude Gibson's opinion based on survey design.

3. Opinion Relevance

Defendant maintained that a portion of Gibson's remaining opinions only support a fraud-by-omission theory, which the Plaintiff has abandoned.

In support of this argument, Defendant noted that Gibson opined that California women expect to be told if the Tampax tampons contain lead. Similarly, he offered the opinion that a majority of California women in the relevant age group would not choose to purchase Defendant's products if told they contain lead. In Defendant's view, these opinions create support for an omission theory rather than an affirmative misrepresentation claim.

Evidence that focuses on what the Defendant's products should have represented or what consumers expected to be affirmatively told supports a fraud-by-omission claim but is not material to affirmative misrepresentation claims. Thus, as to Gibson's opinions that focus on a duty to disclose, those statements are not relevant and should be excluded.

Held

The Court granted in part and denied in part Defendant's motion to exclude the testimony of Plaintiff's expert James Gibson.

Key Takeaway

On a motion for class certification, it is not necessary that expert testimony resolve factual disputes going to the merits of Plaintiffs' claims; instead, the testimony must be relevant in assessing whether there was a common pattern and practice that could affect the class as a whole.

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