Survey Research Expert Not Allowed to Opine on Consumer Perception

This class action concerns whether Defendant Barilla America, Inc. ("Defendant" or "Barilla"), when labeling its pasta boxes with the claim "Italy's #1 Brand of Pasta," is liable for false advertising. Plaintiffs Matthew Sinatro and Jessica Prost ("Plaintiffs") claim that this statement deceived them into believing that the Barilla pasta they bought in California grocery stores was manufactured in Italy from Italian ingredients when, in fact, that pasta was made in the United States from non-Italian ingredients.

Plaintiffs have two experts, J. Michael Dennis and Colin Weir. Barilla asked the Court to strike the opinions of Dennis and Weir.

Survey Research Expert Witness

John Michael Dennis is a nationally recognized expert in survey research, consumer behavior, and choice-based conjoint analysis, with more than 25 years of experience designing and executing statistically rigorous surveys.

Want to know more about the challenges J. Michael Dennis has faced? Get the full details with our Challenge Study report. 

Economics Expert Witness

Colin B. Weir is President at Economics and Technology, Inc., a research and consulting firm specializing in economics, statistics, regulation, and public policy. He conducts economic, statistical, and regulatory research and analysis and often testifies as an expert witness before state and federal courts.

Moreover, his experience includes work on a variety of issues, including: “calculating economic harm and damage, and analyzing liquidated damages provisions; lost profits; false claims; diminution in value; merger/antitrust analysis; Early Termination Fees (ETFs); Late Fees; determination of Federal Excise Tax burden; and development of macroeconomic analyses quantifying the economic impact of corporate actions upon the US economy and job markets.”

He holds an MBA with honors from Northeastern University. He also holds a Bachelor of Arts degree cum laude in Business Economics from The College of Wooster.

Want to know more about the challenges Colin B. Weir has faced? Get the full details with our Challenge Study report. 

Discussion by the Court

Dennis conducted a consumer perception survey that gave respondents the "ability to view and enlarge" digital images of each panel of packaging.

Of 582 respondents, 57 percent indicated that the statement "does communicate" that "the product's ingredients are sourced from Italy," 32.3 percent indicated that the statement "does not communicate this," and 10.7 percent selected the "Don't know / not sure" option. Dennis also conducted a separate conjoint survey that found a 9.9% price premium associated with the Challenged Representation. Weir multiplied this price premium by Product revenue to generate a proposed damages figure of over $39 million.

The consumer perception opinions of Plaintiffs' expert, Dennis, failed the Daubert reliability prong because his survey is biased. With respect to the Challenged Representation, the survey asks only whether it conveys that "the product's ingredients are sourced from Italy," and provides only three possible responses: an affirmative answer, a negative answer, and "don't know / not sure."

This question is biased because, in asking respondents whether the statement means that "the product's ingredients are sourced from Italy," and only that, it steers them to that very meaning and gives them no opportunity to indicate other meanings. The survey also failed to capture the possibility that respondents understand the Challenged Representation to have multiple meanings. According to the Court, this type of biased survey cannot assist a trier of fact.

Plaintiffs argued in opposition that Dennis' purported "safeguards" of neutrality, like providing a "don't know / not sure" option, insulate his question from reliability concerns. But such arguments miss that Dennis' supposed "safeguards" fail to remedy what is fatally problematic about Dennis' survey design: that it "biases the survey by suggesting to respondents, at least implicitly, that they should believe there is at least some sort of relationship between the different items when the possibility might not even have occurred to the vast majority of consumers who see the items."

Survey respondents who answered Dennis' question affirmatively might have never made an association with Italian ingredient sourcing had the survey not fed it to them. And respondents who normally would think the statement means something else entirely may have abandoned that opinion upon intuiting from the survey itself what they should take the Challenged Representation to mean. A "don't know / not sure" option does not negate such effects, because the question by its design elicits them before respondents even go to choose an answer.

Without Dennis' consumer perception testimony in the record, no reasonable juror could conclude on the remaining record evidence that "members of the public are likely to be deceived."

The Court addresses only the Daubert challenge to Dennis's consumer perception opinions, as that is the only challenge that is material to the decision in this opinion. The Court noted, however, that Dennis's conjoint analysis also appears unreliable under Daubert, because such testimony impermissibly measures the undifferentiated impact of all interpretations of the Challenged Representation without isolating the impact attributable to only misleading interpretations.

Although surveys and expert testimony regarding consumer expectations are not required, a few isolated examples of actual deception are insufficient. Here, all Plaintiffs can offer regarding consumer confusion, aside from their excluded expert survey, is their own testimony. Even assuming such evidence is probative of deception at all, it is insufficient to survive summary judgment.

On September 30, 2026, the Court granted Defendant Barilla America, Inc.’s motion for summary judgment on Plaintiffs’ claims, entering judgment in favor of Barilla America, Inc. and against Plaintiffs.

Held

The Court granted the motion to strike Dennis' opinions with respect to his consumer perception opinions. The Court denied as moot the remainder of the motion to strike Dennis' opinions and the motion to strike Weir's opinions.

Key Takeaway

In its "gatekeeping role," the Court assesses whether an expert's conclusions meet three core restrictions on expert testimony: qualification, reliability, and fit. . The reliability inquiry "asks whether an expert's testimony has 'a reliable basis in the knowledge and experience of the relevant discipline.'" The consumer perception opinions of Plaintiffs' expert, Dennis, failed the Daubert reliability prong because his survey is biased. Daubert motions can be dispositive at summary judgment.

Case Details