Should the expert actually do the analysis?

Status quo

While the majority rule is that a damages expert on class
certification must be admissible under Rule 702, courts are
divided as to whether a damages analysis has to be done at
that time.

Considerations:
1. Is discovery bifurcated
2. Are there concerns about the outcome of the report
3. Stale data and damages analysis
4. Contours of the class and viable liability theories

Courts requiring analysis:

In re Conagra Foods, Inc., 302 F.R.D. 537 (2014)
• Court rejected an expert’s bare “assurance that he can build a model to calculate damages.”
• “Although the methodologies he describes may very well be capable of calculating damages in this action, Weir has made no showing that this is the case. He does
not identify any variables he intends to build into the models, nor does he identify any data presently in his possession to which the models can be applied.”

Saavedra v. Eli Lilly & Co., 2014 WL 7338930 (C.D. Cal. 2014)
• Court rejected the expert’s proffered conjoint analysis where he had “yet to design the survey and method he will use in his conjoint analysis.”
• “[Plaintiffs’ damages expert] has yet to design the survey and method he will use in his conjoint analysis. . . . He has not decided which attributes will be included in
his model or whether he will analyze data from each of the four subclass members’ states together or separately. . . . Plaintiffs have done worse than not even
advancing a reliable method of calculating classwide damages—they have advanced ‘no damages model at all.’”

 

Courts not requiring analysis:

Goldemberg v. Johnson & Johnson Consumer Co., 317 F.R.D. 374 (S.D.N.Y. 2016)
• At this stage, “this Court looks at Dr. Dube’s report for the sole purpose of determining what the proposed model may be able to accomplish.”
• “[T]he Court need only rely on the report, and find it reliable, for the limited proposition that a price premium attributable to the products can eventually be
determined. The Court finds the report sufficiently reliable to inform it of that potential.”
• “[T]he Court also finds the report sufficiently reliable to inform the Court of the damages it plans to assess.”

Price v. L’Oreal USA, Inc., 2018 WL 3869896 (S.D.N.Y. Aug. 15, 2018)
• The law does not “require[] an expert to perform his analysis at the class certification stage” and “that an appropriately designed Conjoint Analysis can reliably
estimate the economic value to consumers.”

In re Scotts EZ Seed Litig., 304 F.R.D. 397 (S.D.N.Y. 2015):
• The In re Scotts EZ Litig. Court explained, “nothing in Comcast requires an expert to perform his analyses at the class certification stage”).
• In fact, “[t]he point for Rule 23 purposes is to determine whether there is an acceptable classwide [damages] approach, not to actually calculate under that
approach before liability is established.”

Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 539 (S.D. Fla. 2015)
Briseno v. ConAgra Foods, Inc., 674 Fed. App’x 654, 657 (9th Cir. 2017)