Joanne Hart and Sandra Bueno, on behalf of themselves and all others similarly situated, Plaintiffsv.BHH, LLC d/b/a Bell + Howell, et al., Defendants
OPINION & ORDER Joanne Hart and Sandra Bueno (“Plaintiffs”) bring this class-action lawsuit for fraud, breach of warranty, and violations of the California Legal Remedies Act. Plaintiffs move to preclude expert testimony from Dr. Paul Borth and Dr. Philip Whitford, repeller-efficacy experts for Defendants BHH, LLC and Van Hauser, LLC (“BHH”) (ECF No. 130). By separate motion, BHH moves to preclude expert testimony from Dr. Michael F. Potter, Plaintiffs’ repeller-efficacy expert (ECF No. 138). Finally, Plaintiffs also move to preclude testimony from Stefan Boedeker, BHH’s rebuttal expert on damages (ECF No. 132). For the following reasons, Plaintiffs’ motions are granted in part and denied in part, and BHH’s motion is denied.BACKGROUNDThis class-action lawsuit involves ultrasonic pest repellers manufactured and sold by BHH and purchased by Plaintiffs (the “Products”). Plaintiffs claim the Products are ineffective and that BHH committed fraud and breached warranties. As such, both parties seek to introduce expert testimony regarding the Products’ efficacy.I. Repeller-Efficacy ExpertsWhile this Court analyzes the arguments in more detail below, it notes that these Daubert motions read like ships passing in the night. Both parties’ experts opine on whether the Products were effective for “their stated purpose.” But the parties disagree over that “stated purpose.” Accordingly, each expert tested “effectiveness” in relation to his own characterization of the Products’ purpose and came to opposite conclusions.Plaintiffs posit that the Products are either completely ineffective or, at best, merely drive pests into cabinets and behind furniture. Thus, they believe the Products failed to live up to BHH’s warranties. BHH counters that the Products are “effective” because they change pests’ behavior. But the parties dueling interpretations of efficacy tests go to the weight, not admissibility, of the evidence. A jury will determine the Products’ “stated purpose,” and that decision will inform how much weight each type of test is given.A. Defendants’ Repeller-Efficacy ExpertsThe heart of Plaintiffs’ argument is that Borth and Whitford relied on a series of efficacy tests conducted by BHH in China (the “Tests”), which Plaintiffs claim are unreliable. BHH conducted seven Tests, all with a similar design: various pests were able to choose between two rooms, one with a Product turned “on” and one with a Product turned “off.” (See Decl. of Yitzchak Kopel in Supp. of Pls.’ Mots. to Preclude the Expert Test. of Dr. Paul Borth and Dr. Philip Whitford and the Rebuttal Expert Test. of Stefan Boedeker, ECF No. 135 (“Kopel Decl.”), Exs. 4, 5, 6, 18, 20, 22, & 23.) Two of the Tests were conducted in empty dorm rooms in which the pests could roam free, and five of the Tests were conducted using two Plexiglas chambers connected by a tunnel. (See Kopel Decl., Exs. 4, 5, 6, 18, 20, 22, & 23.) Each Test included a pre- and post-test period, during which the Products were turned “off.” (Kopel Decl., Exs. 4, 5, 6, 18, 20, 22, & 23.)Borth relied on five of the Tests, in addition to another efficacy test to which Plaintiffs do not object, to conduct a “chi-square statistical test” on the Products’ efficacy. (See ECF No. 156, Ex. 3 (“Borth Report”) at 26.1) In essence, Borth combined the results of various efficacy tests to render his opinion that the Products worked. Plaintiffs argue that because the Tests themselves are unreliable, Borth’s chi-square tests must also be unreliable. Borth also relies on a 1984 study published by James B. Ballard (“Ballard Study”). (Borth Report at 7-8.) Finally, Borth includes opinions on topics ranging from consumer understanding of Product packaging to consumer diligence in following Product instructions. (See, e.g., Borth Report at 7, 11.) The Borth Report offers 20 opinions in total. Ultimately, Plaintiffs seek exclusion of (1) Borth’s opinions on Product efficacy because of his reliance on the Tests and the Ballard Study; (2) his opinions regarding consumer understanding; and (3) specific Opinions 2, 6, 7, 9, and 12 of the Borth Report.Whitford relies on two of the Tests, as well as various academic studies on ultrasonic repellers. (See ECF No. 151, Ex. 17 (“Whitford Report”).) Plaintiffs object to his opinions to the extent they are based on the Tests and a study he conducted on mice at his farmhouse using a non-BHH repeller (the “Home Study”). (See ECF No. 151, Ex. 17 (“Whitford Report”), at 2-3, 18-19, 39-49.) In the Home Study, Whitford set his repeller device “on” from August to December 2009 and “off” from August to December 2010, then counted the mice he captured, as well as their droppings, for each year. (See Whitford Report at 39.) He also set the repeller device “on” from November 2012 to November 2013. (See Whitford Report at 39.)B. Plaintiffs’ Repeller-Efficacy ExpertPotter offers the inverse — namely, that the Products were ineffective. Potter served as the “National Technical Director” of Orkin, “the world’s largest pest control company,” where he handled testing, evaluation, and selection of pesticides, traps, and devices for controlling insects and rodents. (Kopel Decl., Ex. 9 (“Potter Report”)6.) After leaving Orkin, and for the past 26 years, his time “has been spent solving insect and rodent problems” while serving as a professor at the University of Kentucky, and he has “authored publications on cockroaches, ants, spiders, rodents, and other household pests.” (Potter Report7.) Further, throughout his “career as a practicing urban entomologist…[he has] evaluated numerous devices, including electronic pest repellers for their effectiveness against insects and rodents.” (Potter Report7.)His opinions in this matter are based on (1) “a series of experiments [using the Products] designed by [him] in collaboration with two of the top research labs that evaluate pest controls,” (the “Experiments”) (Potter Report
