Bush v. Rust-Oleum Corporation

Background

Anthony Bush brought a consumer-products mislabeling case on behalf of a class of California consumers. He challenges Rust-Oleum Corporation’s labeling of Krud Kutter cleaning products as “non-toxic” and “Earth friendly,” alleging that the products can harm humans, animals, and the environment. The operative complaint asserts claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, as well as claims for breach of express warranties and unjust enrichment.

The parties filed cross-motions to exclude their opposing survey experts. Bush moved to exclude Rust-Oleum’s market-research expert, Dr. Ran Kivetz. Rust-Oleum moved to exclude Bush’s survey expert, Dr. J. Michael Dennis.

Legal standard

Under Federal Rule of Evidence 702, expert testimony is admissible when the expert is qualified, the testimony will help the fact finder, the opinion is based on sufficient facts or data, and the methods and their application are reliable. The court explained that its role is to screen out unreliable expert evidence. It also emphasized that disputes about an expert survey’s methodology, sample, or persuasiveness generally affect the evidence’s weight—not its admissibility—when the survey uses generally accepted methods. Such weaknesses can be addressed through cross-examination and competing evidence.

Bush’s motion to exclude Dr. Kivetz

Dr. Kivetz used a test group that saw an actual Krud Kutter label and a control group that saw the label without the “non-toxic” and “Earth friendly” claims. He asked respondents whether they would buy the product and, in open-ended questions, why they would or would not buy it.

Bush argued that Dr. Kivetz’s opinions were irrelevant because the challenged claims could be material to purchasing decisions even if they were not the necessary cause of those decisions. Bush also challenged the survey’s control, the display of the Krud Kutter brand, the lack of manipulation checks, the use and analysis of open-ended questions, and the survey’s representation of the class and marketplace.

The court concluded that these arguments mainly went to the weight of the survey and opinions. It found that Dr. Kivetz’s methods were generally within accepted principles and said that admitting the survey while discounting its persuasive value, if warranted, was the better course.

Bush separately argued that Dr. Kivetz had not provided all the data used to form his opinions. The court discussed expert disclosure requirements under Rules 26 and 37. It noted that the data an expert “considered” generally means data provided to or otherwise exposed to the expert while developing the opinions. Some disputed information, including data about interviews excluded by a coding company, apparently had never been provided to Dr. Kivetz. Rust-Oleum also contended that the pricing data used to select the survey’s $9.47 price point was public, which indicated that any failure to produce it was harmless.

The court denied Bush’s motion. It denied the portion concerning the alleged failure to provide data without prejudice to refiling it as a separately noticed motion if warranted.

Rust-Oleum’s motion to exclude Dr. Dennis

Dr. Dennis’s survey sought to measure whether a reasonable consumer would understand the challenged claims to mean that the products were not harmful to humans, animals, or the environment. His survey used a hypothetical label without the Krud Kutter brand name and asked respondents whether they believed the challenged claims communicated that meaning.

Rust-Oleum argued that Dr. Dennis had made methodological errors similar to errors in surveys excluded in other cases. The court did not examine each argument in detail. It held that, even accepting Rust-Oleum’s premises, the alleged errors were not sufficiently serious to require exclusion. The court noted that in other cases courts had criticized rather than excluded Dr. Dennis’s report.

The court denied Rust-Oleum’s motion to exclude Dr. Dennis’s declaration.

Disposition

The court denied the motions to exclude expert opinions and stated that the order resolved ECF Nos. 131 and 163. This evidentiary order did not decide the parties’ underlying consumer-protection, warranty, or unjust-enrichment claims.