Survey Research Expert’s Testimony on Economic Harm and Damages Admitted
Posted on September 30, 2025 by Expert Witness Profiler
Linda Sunderland and Benjamin Binder, amongst others, filed this putative class action against Defendant PharmaCare U.S., Inc., asserting consumer protection and breach of warranty claims based on its Sambucol product, a dietary supplement that is alleged to contain a proprietary extract of black elderberry.
Defendant filed a motion to exclude Plaintiffs’ experts, Dr. J. Michael Dennis (“Dr. Dennis”) and Mr. Colin Weir (“Mr. Weir”). Dennis performed a consumer perception survey, a materiality survey, and opined on damages. Weir helped to design and support Dennis’ methodology on damages.
Survey Research Expert Witness
J. Michael Dennis is the Senior Vice President of the National Opinion Research Center, which is a survey research organization affiliated with the University of Chicago. Also, Dennis has worked in survey research for more than 20 years, has authored more than 60 articles, and has been found qualified by numerous courts to provide expert opinions on consumer surveys.
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.”
Discussion by the Court
To begin with, Defendant raised several grounds for why these experts’ opinions should be excluded. First, Defendant argued that Dennis’ consumer perception survey was unreliable, biased, and misleading because the statements used in the survey did not match the Products’ labels (i.e., “this is the unique black elderberry extract” as opposed to “Sambucol is the unique black elderberry extract”). Thus, Defendant argued that the questions posed to survey participants do not match Plaintiffs’ theory of liability.
Second, Defendant argued that Dennis’ materiality survey is similarly unreliable because the design shown to the survey participants was manufactured for the survey and not an image of the actual product or packaging.
Third, Defendant argued that Dennis’ damages model is irrelevant and unreliable because it is based on the tested claim, not the class claims.
Finally, Defendant argued that Dennis’ price premium model is irrelevant because it fails to distinguish between injured and uninjured class members, it is not sufficiently defined, and it is based on a “willingness-to-pay” benchmark rather than measuring an actual price premium.
After reviewing the parties’ arguments and briefing on these issues, the Court agreed with the many district courts in this circuit that the more appropriate place to consider these arguments is on how much weight to give to the competing expert testimony, rather than their admissibility.
Held
The Court denied the Defendant’s motion to exclude the testimony of J. Michael Dennis and Colin Weir.
Key Takeaway:
Many of the arguments for exclusion of the testimony is not on whether the types of surveys are acceptable, but whether certain criteria used in the respective surveys pass muster. However, the Ninth Circuit has stated that as a general matter, “challenges to survey methodology go to the weight given the survey, not its admissibility.”
Case Details:
| Case Caption: | Sunderland Et Al V. Pharmacare U.S., Inc. Et Al |
| Docket Number: | 3:23cv1318 |
| Court Name: | United States District Court, California Southern |
| Order Date: | 3:23cv1318 |
