Vizcarra v. Michaels Stores, Inc.

Background

Plaintiff Nea Vizcarra, on behalf of herself and others similarly situated, brought this action against Michaels Stores, Inc. The plaintiffs filed a motion for class certification and submitted reports from two experts: Bruce G. Silverman and Colin B. Weir. Michaels did not dispute that either expert was qualified, but filed separate motions under the standard for expert evidence to exclude certain opinions from each report.

Silverman, an advertising and branding consultant, offered opinions about how advertisements for ongoing or time-limited sales could affect consumers, whether Michaels’s advertised coupon discounts would matter to a reasonable consumer, and whether Michaels’s alleged advertising practices could mislead consumers. Weir, an economics and statistics expert, offered opinions about whether damages could be calculated for the proposed class using common evidence, including a method called conjoint analysis.

The court vacated the hearing because it found the motions suitable for decision without oral argument.

Legal Standard

Under Rule 702 of the Federal Rules of Evidence, expert testimony may be admitted when the expert’s specialized knowledge would help the fact-finder, the opinion is based on sufficient facts or data, the methods are reliable, and the expert reliably applied those methods to the case. The court explained that, at the class-certification stage, it must conduct a tailored review of the reliability of expert testimony under the standard announced in Daubert v. Merrell Dow Pharmaceuticals, Inc. Even when evidence is admissible, the court must separately consider how persuasive it is during the class-certification analysis.

Silverman’s Opinions

Michaels sought to exclude Silverman’s opinions about whether the alleged discounts were misleading and whether Michaels’s coupon-discount practices would be important to a reasonable consumer.

The court rejected Michaels’s argument that Silverman improperly gave legal conclusions. The court explained that an expert may offer an opinion that addresses an ultimate issue, but may not state a legal conclusion. It found that Silverman’s opinions did not address legal issues and denied without prejudice Michaels’s request to exclude his opinions about whether consumers would be misled.

Michaels also argued that Silverman’s Michaels-specific opinions exceeded his expertise, lacked a reliable method, and addressed matters that should be left to a jury. The court disagreed. It found that Silverman’s advertising experience provided a sufficient basis for his opinions and that he could rely on hypothetical facts supported by the evidence. The court further concluded that Michaels’s criticisms of Silverman’s assumptions and methods concerned the weight, or persuasiveness, of his opinions rather than their admissibility. The court also found that Michaels had not shown that Silverman’s opinions would improperly take over the jury’s role. It therefore denied without prejudice Michaels’s motion to exclude the challenged Silverman opinions.

Weir’s Opinions

Michaels sought to exclude all of Weir’s opinions relying on conjoint analysis, arguing that the method was novel and unreliable, omitted important inputs, and failed to account properly for supply-side factors.

The court concluded that Michaels had not shown that Weir’s opinions should be excluded at this stage. It held that Michaels’s objections concerned the weight of Weir’s opinions, not their admissibility. The court stated that, if the class were certified and the parties renewed these or other expert-evidence challenges before trial, it would consider the merits of those motions at that time.

Disposition

Judge Noél Wise denied without prejudice Michaels’s motions to exclude certain opinions of Silverman and Weir, ECF Nos. 98 and 99. The order did not decide whether the proposed class would be certified or finally determine the persuasiveness of either expert’s opinions.