In re Elysium Health-ChromaDex Litig.

In re: Elysium Health-ChromaDex Litigation

No. 17-CV-7394 (LJL)

United States District Court, S.D. New York

February 11, 2022

OPINION AND ORDER

LEWIS J. LIMAN UNITED STATES DISTRICT JUDGE

Plaintiff ChromaDex, Inc. (“ChromaDex”) moves to exclude the opinions of Defendant Elysium Health's (“Elysium”) survey expert, Brian Sowers, and damages rebuttal expert, Cohn Weir, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Federal Rules of Evidence 104, 401, 402, 403, 702 and 704. Dkt. No. 199. Elysium moves to exclude the reports of ChromaDex's survey expert, Bruce Isaacson; damages expert, Lance Gunderson; FDA regulation expert, Steven Weisman; and clinical studies expert, Kurt Hong, pursuant to Daubert and Federal Rule of Evidence 702. Dkt. No 197. Familiarity with the Court's prior opinions setting out the facts of the case is presumed.

For the following reasons, the Daubert motions are each granted in part and denied in part.

LEGAL STANDARD

Under Federal Rule of Evidence 702, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. “[T]he proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied.” United States v. Jones, 965 F.3d 149, 161 (2d Cir. 2020) (quoting United States v Williams, 506 F.3d 151, 160 (2d Cir. 2007)). That rule requires the proponent to establish and the trial judge to find “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589. This “gatekeeping obligation” applies “to all expert testimony.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

“The objective of [the gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at 152. Relevancy is determined by whether the proffered evidence “has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.” Amorgianos v. Amtrak, 303 F.3d 256, 265 (2d Cir. 2002). Reliability is determined by considering if (1) “the testimony is based on sufficient facts or data;” (2) “the testimony is the product of reliable principles and methods;” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702; see also Amorgianos, 303 F.3d at 266 (citing this standard).

Courts are to adhere to a “liberal standard of admissibility for expert opinions, ” Nimely v. City of New York, 414 F.3d 381, 395-96 (2d Cir. 2005), beginning with “a presumption that expert evidence is admissible, ” Chen-Oster v. Goldman, Sachs & Co., 114 F.Supp.3d 110, 115 (S.D.N.Y. 2015) (citing Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995)). However, a court still must determine that the evidence is “sufficiently reliable so as to be admissible.” Amorgianos, 303 F.3d at 268. “In deciding whether a step in an expert's analysis is unreliable, the district court should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand.” Id. at 267. “[I]t is critical that an expert's analysis be reliable at every step.” Id. Even “[i]f the witness is relying solely or primarily on experience, [he still] must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Alto v. Sun Pharmaceutical Indus., Inc., 2021 WL 4803582, at *2 (S.D.N.Y. Oct. 13, 2021) (internal quotation marks omitted) (quoting Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 691 F.Supp.2d 448, 473 n.148 (S.D.N.Y. 2010) (quoting Fed.R.Evid. 702 advisory committee's note)).

“[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). But “many factors ‘will bear on the inquiry' of whether Rule 702 is satisfied, . . . and . . . ‘the inquiry envisioned by Rule 702 is a flexible one.'” Jones, 965 F.3d at 161 (quoting Daubert, 509 U.S. at 593-94) (alteration omitted).

DISCUSSION

I. The Survey Experts

Each party moves to exclude the survey expert of the other party-ChromaDex moves to exclude the report of Elysium's expert, Brian Sowers, and Elysium moves to exclude the report of ChromaDex's expert, Bruce Isaacson.

A. General Principles

A party seeking to exclude survey evidence from a jury trial shoulders a heavy burden. A survey is probative and may be admitted into evidence to establish actual confusion if it is “fairly prepared and its results directed to relevant issues.” Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 741 (2d Cir. 1994) (quoting Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 118 (2d Cir. 1984)). As a general matter, “[e]rrors in methodology . . . properly go only to the weight of the evidence” and not to its admissibility. See Schering Corp. v. Pfizer Inc., 189 F.3d 218, 227-28 (2d Cir. 1999); see also Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir. 1986); WIZKIDS/NECA, LLC v. TIII Ventures, LLC, 2019 WL 1454666, at *13 (S.D.N.Y. Mar. 31, 2019) (“Although these arguments are not without merit, they again simply diminish the weight of the survey evidence rather than provide grounds for its exclusion.”); Playtex Prods., Inc. v. Procter & Gamble Co., 2003 WL 21242769, at *2 (S.D.N.Y. May 28, 2003) (“[T]he Second Circuit clarified in Schering that any methodological deficiencies in a survey properly relate to the weight afforded to the survey's conclusions rather than its admissibility, subject of, of course, to a Rule 403 relevancy analysis.”), aff'd, 126 Fed.Appx. 32 (2d Cir. 2005); Friesland Brands, B.V. v. Vietnam Nat'l Milk Co., 221 F.Supp.2d 457, 459 (S.D.N.Y. 2002) (“The Second Circuit in Schering made clear that such a survey's ‘errors in methodology . . . properly go only to the weight of the evidence'-not to its admissibility.” (omission in original) (quoting Schering, 189 F.3d at 228)); Cache, Inc. v. M.Z. Berger & Co, 2001 WL 38283, at *6 (S.D.N.Y. Jan. 16, 2001). To be admissible, a survey generally must, among other things, (i) properly define the target population; (ii) select a representative sample; (iii) use precise, non-leading questions; (iv) report data accurately; and (v) maintain objectivity. See Schering Corp., 189 F.3d at 224-25; see also Manual for Complex Litig., Fourth, § 11.493; Shari Seidman Diamond, Reference Guide on Survey Research, in Reference Manual on Scientific Evidence 359, 359-425 (3d ed. 2011) “The key issues for the trier of fact concerning the design of the survey are the objectivity and relevance of the questions on the survey and the appropriateness of the definition of the population used to guide sample selection.” Reference Guide on Survey Research at 374.

B. Background

1. The Sowers Report

During discovery, Elysium produced the expert report of Brian M. Sowers (“Sowers”). Dkt. No. 201-2 (“Sowers Report”). Sowers is a principal of Applied Marketing Science, Inc., a market research and consulting firm, and has worked in the field of market research since 1996. Id. ¶ 1. He has personally designed and conducted hundreds of market research surveys over the course of his career, is a member of numerous industry and professional organizations, and has served as a testifying expert in federal and state court and before the Trademark Trial and Appeal Board. Id. ¶¶ 2-3.

Sowers was retained by Elysium to conduct a survey to test Elysium's allegation that ChromaDex advertising deceived customers into believing that the FDA reviewed ChromaDex's product, Tru Niagen, for efficacy. As a general matter, Sowers conducted his survey in a manner consistent with consumer surveys used in Lanham Act cases. He determined what he believed to be the appropriate universe of respondents, he used an internet survey to identify eligible respondents, he designed a survey to ask respondents what messages they took from ChromaDex's statements and whether they took a message regarding FDA review of Tru Niagen for efficacy and what that message was, and finally he conducted a survey of a control group to eliminate “noise” from his survey (or factors that might introduce error or bias into the survey results). In particular, Sowers determined that the appropriate universe to survey was “potential purchasers of products to support cellular health.” Id. ¶ 17. To obtain a pool of qualified respondents, Sowers then developed an internet survey, which was sent to panel members of Prodege Market Research, a market-research firm with whom Sowers contracted and that maintains a panel of over six million active members in the United States. Id. ¶¶ 18-20. Sowers divided eligible respondents into two groups-a test group and...