In a recent Daubert ruling in CareDx, Inc. v. Natera, Inc., C.A. No. 19-662-CFC-CJB, Judge Connolly excluded the opinion of the plaintiff's expert regarding "corrective advertising damages," in part because it was based on "vague, undocumented, and back-of-the-envelope . . . estimates" by the plaintiff's CEO. The Judge granted the defendant's motion to exclude the expert's testimony under both Rule 702 and Rule 403, indicating that not only did the expert's opinion fail to satisfy the Daubert hallmarks for admissible expert testimony, it would also confuse the jury and be prejudicial because it "would essentially place the imprimatur of an expert on [the CEO] Maag's undocumented and dubious damages calculation."
In this false advertising case, the plaintiff sought to recover the costs of advertising designed to combat the allegedly false advertising of the defendant. The plaintiff's CEO estimated during his deposition that 60 or 70 percent of the plaintiff's advertising spend was allocated to combating the defendant's allegedly false advertising. The plaintiff's expert simply adopted that estimate in his analysis, and the defendant moved to exclude his opinions regarding corrective advertising damages on the grounds that it did not meet the requirements of Rule 702.
Judge Connolly agreed with the defendant. He found that the expert's opinion did not meet Rule 702's "qualification" or "fit" requirements:
The challenged opinions do not contain specialized knowledge outside a juror's common understanding and therefore they fail to meet the "qualification" and "fit" requirements. The opinions are not, to use the language of Rule 702, "scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702(a). Malackowski's "opinions" are simple math calculations.
He also found the opinions to be unreliable:
They were not reached by application of a scientific method or procedure and the underlying rough data supplied by [CEO] Maag's testimony does not provide a reliable basis on which to make a scientific opinion. [Plaintiff's expert] Malackowski did not engage in reasonable, let alone scientific, efforts to verify Maag's cost estimates. His efforts were limited to reading Maag's deposition, interviewing Maag for less than 55 minutes, and reviewing a 2019 SEC filing that showed "how much CareDx spent on sales and marketing in 2019, and how much was allocated to AlloSure." D.I. 204 at 8-9. Notwithstanding the vague, undocumented, and back-of-the-envelope nature of the estimates provided in Maag's testimony, Malackowski did not review CareDx's ledger or any CareDx invoices to test Maag's estimate; nor did he interview any marketing or other personnel at CareDx who could provide more specific data.
As noted above, Judge Connolly also excluded the opinions under Rule 403.
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