Newman v. Bayer Corporation

Background

Tanysha Newman sued Bayer Corporation and Bayer Healthcare LLC, individually and on behalf of similarly situated consumers. She asserted claims for breach of express and implied warranties, deceptive trade practices, false advertising, and fraud based on alleged mislabeling of Bayer’s One A Day chewable supplements. According to the complaint, consumers allegedly needed to take two or more supplements per day to receive the full nutritional benefit.

Newman retained Robert Klein as an expert to test whether consumers were confused by the name of Bayer’s One A Day gummy multivitamins. Klein conducted an initial survey and later conducted a second survey after discussions about how the survey fit with Newman’s economic expert’s calculations. Klein relied on the second survey in forming his expert opinion.

Discovery Dispute

Bayer moved to compel production of the first survey’s responses and underlying data, particularly the results and data for questions 3 through 6. Newman stated that she had produced the original survey instrument, certain percentages and net differences learned from Applied Marketing Services personnel, and the total number of people who took the first survey. She opposed further production, arguing that Klein had never considered the requested information.

Federal Rule of Civil Procedure 26(a)(2)(B) requires an expert to disclose the facts or data the expert considered in forming an opinion. The court explained that “considered” is assessed objectively and can include information the expert received, reviewed, read, or authored before or while forming the opinion. But testimony that an expert never received, read, reviewed, or authored the material can defeat discovery when supported by persuasive evidence.

Court’s Analysis

The court found that Klein’s deposition testimony was equivocal about his personal role in tabulating or analyzing the first survey. References to “we” were most plausibly understood as referring to Klein’s colleagues at Applied Marketing Services rather than Klein himself. Klein also stated that he did not read, receive, review, or analyze the individual responses, did not form opinions based on the first survey, and did not rely on it in drafting his report.

Klein’s sworn declaration reinforced that he had never seen, read, reviewed, analyzed, or used the underlying data from the first survey and had never possessed it. The court also rejected Bayer’s argument that the first survey served as a benchmark for the second survey, finding that Klein’s testimony did not establish that he used the first survey that way.

The court distinguished cases in which an expert’s assistants had performed analysis that was integral to the expert report. Here, the court found no evidence that the first survey responses were used by Klein or his colleagues as the basis for Klein’s report. The court concluded that the requested information was outside the scope of Rule 26(a)(2)(B), so production was not required.

Disposition and Further Discovery

The court denied Defendants’ motion to compel. The court stated that its understanding was that Newman had consented to a second deposition of Klein, limited to two hours, concerning post-deposition disclosures about everything Klein was shown or heard regarding the prior survey. Any further deposition had to be completed by January 10, 2025. The parties had to submit a letter by January 15, 2025, confirming that discovery was complete or identifying any final outstanding issues.