Case 5:19-cv-02196-JWH-KK Document 122 Filed 02/22/22 Page 1 of 27 Page ID #:2848
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`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`
`YOUNGSUK KIM, an individual, and
`on behalf of other members of the
`general public similarly situated,
`Plaintiff,
`
`
`
`v.
`
`BENIHANA, INC, a Florida
`corporation,
`
`Defendant.
`
`
` Case No. 5:19-cv-02196-JWH-KKx
`
`
`ORDER ON PLAINTIFF’S
`MOTION TO CERTIFY CLASS
`[ECF No. 91] AND DEFENDANT’S
`MOTIONS TO EXCLUDE
`OPINIONS OF PLAINTIFF’S
`RETAINED EXPERTS [ECF
`Nos. 100 & 101]
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`Case 5:19-cv-02196-JWH-KK Document 122 Filed 02/22/22 Page 2 of 27 Page ID #:2849
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`Before the Court in this class action case are the motion of Plaintiff
`
`Youngsuk Kim for class certification1 and the motions of Defendant Benihana,
`Inc. to exclude the opinions of Kim’s retained experts, Dr. Thomas J. Maronick2
`and Dr. Eric F. Forister.3 After considering the papers filed in support and in
`opposition,4 as well as the oral argument of counsel during the hearing on
`January 7, 2022, the Court orders that the Class Certification Motion is
`DENIED, the Maronick Motion is DENIED, and the Forister Motion is
`GRANTED, as set forth herein.
`I. BACKGROUND
`
`A.
`Procedural History
`In September 2019, Kim, individually and on behalf of all others similarly
`
`situated, filed his Complaint commencing this action in San Bernardino County
`Superior Court.5 Two months later, Benihana removed the action to this Court
`
`
`1
`Pl.’s Mot. for Class Certification (the “Class Certification Motion”)
`[ECF No. 91].
`2
`Def.’s Mot. to Exclude Ops. of Thomas J. Maronick (the “Maronick
`Motion”) [ECF No. 100].
`3
`Def.’s Mot. to Exclude Ops. of Eric F. Forister (the “Forister Motion”)
`[ECF No. 101].
`4
`The Court considered the following papers: (1) Am. Compl. (the
`“Amended Complaint”) [ECF No. 27]; (2) the Class Certification Motion
`(including its attachments); (3) Def.’s Opp’n to the Class Certification Motion
`(the “Opposition”) [ECF No. 99]; (4) Pl.’s Reply in Supp. of the Class
`Certification Motion (the “Reply”) [ECF No. 108]; (5) the Maronick Motion
`(including its attachments); (6) Pl.’s Opp’n to the Maronick Motion (the
`“Maronick Opposition”) (including its attachments) [ECF No. 109]; (7) Def.’s
`Reply in Supp. of the Maronick Motion (the “Maronick Reply”) (including its
`attachment) [ECF No. 112]; (8) the Forister Motion (including its attachments);
`(9) Pl.’s Opp’n to the Forister Motion (the “Forister Opposition”) (including
`its attachments) [ECF No. 110]; and (10) Def.’s Reply in Supp. of the Forister
`Motion (the “Forister Reply”) (including its attachment) [ECF No. 113].
`5
`See generally Compl. [ECF No. 3, Ex. A]. On July 15, 2020, the Court
`approved the parties’ stipulation to dismiss Plaintiff Jennifer Greene without
`prejudice. See Order Granting Stip. to Dismiss Pl. Jennifer Greene [ECF
`No. 53].
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`Case 5:19-cv-02196-JWH-KK Document 122 Filed 02/22/22 Page 3 of 27 Page ID #:2850
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`pursuant to 28 U.S.C. §§ 1441(a), 1446(a), and 1453(b), asserting jurisdiction
`under 28 U.S.C. § 1332.6
`Kim filed the operative Amended Complaint in March 2020.7 In that
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`pleading, Kim asserts the following four claims for relief against Benihana:
`(1) Violation of the California Unfair Competition Law (the “UCL”),
`Cal. Bus. & Prof. Code §§ 17200, et seq.; (2) Violation of the California False
`Advertising Law (the “FAL”), Cal. Bus. & Prof. Code §§ 17500, et seq.;
`(3) Violation of the California Consumer Legal Remedies Act (the “CLRA”),
`Cal. Civ. Code §§ 1750, et seq.; and (4) Breach of Express Warranty.
`In February 2021,8 the Court denied Benihana’s motion for judgment on
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`the pleadings.9 Kim filed the instant Class Certification Motion on
`September 27, and it is fully briefed. Benihana filed the instant Maronick and
`Forister Motions on October 29, and they are fully briefed.
`B.
`Factual Allegations
`
`The facts as alleged in the Amended Complaint are as follows:
`
`Between 2015 and 2019, Kim patronized various Benihana restaurants in
`California, including locations in Santa Monica,10 where Kim purchased certain
`Food Products11 on Benihana’s menu that were advertised as containing “crab,”
`among other ingredients.12 Before purchasing the Food Products, Kim read the
`hardcopy and online menus, and he relied upon the statements therein regarding
`
`
`6
`Notice of Removal [ECF No. 3] ¶¶ 9–17.
`7
`See generally Amended Complaint.
`8
`Unless otherwise noted, all dates are in 2021.
`9
`See Order on Def.’s Mot. for J. on the Pleadings (the “Order”) [ECF
`No. 63].
`10
`Amended Complaint ¶¶ 15 & 23.
`11
`According to the Amended Complaint, the “Food Products” include the
`“Shrimp Lovers Roll, Shrimp Crunchy Roll, Alaskan Roll, Dragon Roll, Chili
`Shrimp Roll, Rainbow Roll, Spider Roll, Sumo Roll Baked, and Lobster Roll,
`and/or California Roll” (collectively, the “Food Products”). Id. at ¶ 2.
`12
`See id. at ¶¶ 2, 3, 15, 17, 25, & 40.
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`the Food Products’ respective ingredients.13 Under each menu item,
`Benihana’s menus list that item’s respective ingredients. With respect to the
`Food Products, Benihana’s menus list “crab” as one of the ingredients.14 There
`is also a symbol appended to the “crab” ingredient that refers to a footnote that
`states, “‘Kani kama crab’ and ‘kani kama crab mix’ contain imitation crab.”15
`Based upon those representations, Kim believed that the Food Products
`contained some amount of real crab, and he made the decision to purchase the
`Food Products based upon that belief.16 The Food Products, however, do not
`actually contain any amount of real crab; therefore, according to Kim, the menus
`are misleading, deceptive, and false.17
`II. LEGAL STANDARD
`
`A. Expert Opinion
`
`When evaluating a motion for class certification, “a district court is not
`limited to considering only admissible evidence in evaluating whether Rule 23’s
`requirements are met.” Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1005 (9th
`Cir. 2018) (internal citation omitted). At the same time, a “district court need
`not dispense with the standards of admissibility entirely” at the class
`certification stage. Id. at 1006. The court “should evaluate admissibility under
`the standard set forth in Daubert . . . . But admissibility must not be dispositive.
`Instead, an inquiry into the evidence’s ultimate admissibility should go to the
`weight that evidence is given at the class certification stage.” Id. (referencing
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)).
`
`13
`14
`15
`16
`17
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`Id. at ¶¶ 6, 17, 24, & 51.
`See id. at ¶ 3.
`See id.
`See id. at ¶¶ 3, 6, 23, 24, & 49.
`See generally id.
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`Case 5:19-cv-02196-JWH-KK Document 122 Filed 02/22/22 Page 5 of 27 Page ID #:2852
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`Under the Federal Rules of Evidence, a “witness who is qualified as an
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`expert by knowledge, skill, experience, training, or education may testify in the
`form of an opinion or otherwise,” Fed. R. Evid. 702, provided that:
`(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.
`Id. When applying the Daubert standard, a district court must “make a
`‘preliminary assessment’ of (1) whether the expert is qualified to present the
`opinion offered, (2) ‘whether the reasoning or methodology underlying the
`testimony is scientifically valid,’ and (3) ‘whether that reasoning or
`methodology properly can be applied to the facts in issue.’” Lewert v. Boiron,
`Inc., 212 F. Supp. 3d 917, 924 (C.D. Cal. 2016), aff’d, 742 F. App’x 282 (9th Cir.
`2018) (quoting Daubert, 509 U.S. at 592–93).
`B. Class Certification
`
`“The class action is ‘an exception to the usual rule that litigation is
`conducted by and on behalf of the individual named parties only.’” Wal-Mart
`Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki,
`442 U.S. 682, 700–701 (1979)). “Rule 23(a) ensures that the named plaintiffs
`are appropriate representatives of the class whose claims they wish to litigate.”
`Id. at 349.
`
`Rule 23(a) imposes the following prerequisites on class actions: (1) the
`class is so numerous that a joinder of all members is impracticable (numerosity);
`(2) there are questions of law or fact common to the class (commonality); (3) the
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`claims or defenses of the representative parties are typical of the claims or
`defenses of the class (typicality); and (4) the representative parties will fairly and
`adequately protect the interests of the class (adequacy). Fed. R. Civ. P. 23(a);
`United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers
`Int’l Union, AFL-CIO v. ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010).
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`In addition, Rule 23(b) requires at least one of the following to be true for
`a class action to be maintained:
`(1) prosecuting separate actions by or against individual class
`members would create a risk of:
`(A) inconsistent or varying adjudications with respect to
`individual class members that would establish incompatible
`standards of conduct for the party opposing the class; or
`(B) adjudications with respect to individual class members
`that, as a practical matter, would be dispositive of the interests
`of the other members not parties to the
`individual
`adjudications or would substantially impair or impede their
`ability to protect their interests;
`(2) the party opposing the class has acted or refused to act on
`grounds that apply generally to the class, so that final injunctive relief
`or corresponding declaratory relief is appropriate respecting the
`class as a whole; or
`(3) the court finds that the questions of law or fact common to class
`members predominate over any questions affecting only individual
`members, and that a class action is superior to other available
`methods for fairly and efficiently adjudicating the controversy. The
`matters pertinent to these findings include:
`(A) the class members’ interests in individually controlling
`the prosecution or defense of separate actions;
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`Case 5:19-cv-02196-JWH-KK Document 122 Filed 02/22/22 Page 7 of 27 Page ID #:2854
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`(B) the extent and nature of any litigation concerning the
`controversy already begun by or against class members;
`(C) the desirability or undesirability of concentrating the
`litigation of the claims in the particular forum; and
`(D) the likely difficulties in managing a class action.
`Fed. R. Civ. P. 23(b). With respect to Paragraph (3) of Rule 23(b), what matters
`is not merely “the raising of common ‘questions,’” “but rather, the capacity of
`a class-wide proceeding to generate common answers apt to drive the resolution
`of the litigation.” Dukes, 564 U.S. at 350.
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`The party seeking class certification “bears the burden of demonstrating
`that she has met each of the four requirements of Rule 23(a) and at least one of
`the requirements of Rule 23(b).” Zinser v. Accufix Research Inst., Inc., 253 F.3d
`1180, 1186 (9th Cir.), amended, 273 F.3d 1266 (9th Cir. 2001). “Rule 23 does not
`set forth a mere pleading standard.” Dukes, 564 U.S. at 350. Rather, “[a] party
`seeking class certification must affirmatively demonstrate his compliance with
`the Rule—that is, he must be prepared to prove that there are in fact sufficiently
`numerous parties, common questions of law or fact, etc.” Id.
`
`“A class can be certified only if the court ‘is satisfied, after a rigorous
`analysis, that the prerequisites of Rule 23(a) have been satisfied.’” In re NJOY,
`Inc. Consumer Class Action Litig., 120 F. Supp. 3d 1050, 1084 (C.D. Cal. 2015).
`(quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160–61
`(1982)). “Frequently that ‘rigorous analysis’ will entail some overlap with the
`merits of the plaintiff's underlying claim.” Dukes, 564 U.S. at 351.
`III. DISCUSSION
`A. The Maronick Motion
`
`In support of his Class Certification Motion, Kim introduced Dr. Thomas
`J. Maronick’s report of survey findings of potential Benihana customers in
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`California.18 Maronick is an Emeritus Professor of Marketing at Towson
`University.19 In his Report, Maronick arrives at the following conclusions
`regarding Benihana’s California patrons: (1) 36% believe that the Shrimp
`Crunchy Roll is made with real crab, and 29% believe that it is a mix of real and
`imitation crab; (2) while only 22.4% of customers who believe that the Shrimp
`Crunchy Roll is a mix of real and imitation crab would not pay the $10.00 sales
`price for the roll, the average price that people in this group would pay is only
`$6.25; and (3) among customers who believe that the Shrimp Crunchy Roll is
`made with real crab, 90.3% are willing to pay $10.00—but they would pay only
`an average of $5.57 for a roll containing only imitation crab.20
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`Benihana argues that the Court should exclude Maronick’s opinions
`because (1) the Report is irrelevant to the issues in dispute; (2) Maronick’s
`survey results do not support his conclusions; and (3) Maronick’s survey results
`are unreliable because the survey was not conducted according to accepted
`principles. The Court addresses each argument in turn.
`1.
`Relevance
`Claims brought pursuant to the UCL, FAL, and CLRA are “governed by
`
`the ‘reasonable consumer test.’” Williams v. Gerber Prod. Co., 552 F.3d 934, 938
`(9th Cir. 2008). “Under this standard, [the plaintiff] must show that members
`of the public are likely to be deceived.” Id. This showing “requires more than a
`mere possibility that [the defendant’s label] ‘might conceivably be
`misunderstood by some few consumers viewing it in an unreasonable manner.’”
`Id. (citation omitted). Rather, there must be a probability “that a significant
`
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`18
`See Pl.’s Compendium of Evid. in Supp. of the Class Certification Motion
`(the “COE”) [ECF No. 91-5], Report of Dr. Thomas J. Maronick, Ex. P (the
`“Maronick Report”). In its citations to the documents in the COE, the Court
`uses the COE page numbers at the bottom right of each page.
`19
`Id. at 562.
`20
`Id. at 564-65.
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`portion of the general consuming public or of targeted consumers, acting
`reasonably in the circumstances, could be misled.” Id. The “reasonable
`consumer” is “an ordinary consumer acting reasonably under the
`circumstances, who is not versed in the art of inspecting and judging a product,
`[or] in the process of its preparation or manufacture[.]” Viggiano v. Hansen
`Natural Corp., 944 F. Supp. 2d 877, 885 (C.D. Cal. 2013) (applying the standard
`to a CLRA claim); see also Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)
`(the reasonable consumer standard applies to FAL and UCL claims).
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`Benihana argues that the Report is irrelevant because it “provides no
`evidence as to the reasons why any patron purchased the Food Products on the
`menu, let alone evidence that the purported misleading statements influenced
`the purchasing decision of the Benihana patron.”21 Kim counters that the
`survey data demonstrates that a reasonable consumer would be misled by the
`statements at issue.22
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`The Court agrees with Kim. Maronick’s report is relevant to determining
`whether a “significant portion of the general consuming public . . . could be
`misled.” Williams v. Gerber Prod. Co., 552 F.3d at 938.
`2.
`Relationship between Maronick’s Survey Data and His
`Conclusions
`A district court may exclude an expert opinion when “there is simply too
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`great an analytical gap between the data and the opinion proffered.” Gen. Elec.
`Co. v. Joiner, 522 U.S. 136, 146 (1997) (internal citations omitted). The court
`must “scrutinize not only the principles and methods used by the expert, but
`also whether those principles and methods have been properly applied to the
`facts of the case.” Morales v. Kraft Foods Grp., Inc., 2017 WL 2598556, at *10
`
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`21 Maronick Motion 16:11-13.
`22 Maronick Opposition 3:8-13.
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`(C.D. Cal. June 9, 2017) (quoting Fed. R. Evid. 702 Advisory Committee’s Note
`(2000 Amendment)).
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`Benihana contends that Maronick’s survey results do not support his
`conclusions. To support that position, Benihana first argues that the Report
`“does not answer the question of whether customers would or would not have
`purchased the Shrimp Crunchy Roll as a result of the menu language.”23 The
`relevance of that argument to Benihana’s contention that Maronick’s results do
`not support his conclusions is not clear.
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`Benihana’s second argument is that the Maronick Report “purposely
`ignores survey results that do not align with Plaintiff’s theory of the case[.]”24
`Specifically, Benihana maintains that Maronick overlooked results showing that
`“most potential Benihana customers would be willing to pay $10 for a Shrimp
`Crunchy Roll with 100% imitation crab meat.”25 Kim responds that Maronick’s
`data and Report show that “willingness to pay was higher for the sushi roll as
`labeled versus a roll made with 100% imitation crab.”26 The Court again agrees
`with Kim. Maronick’s conclusions are appropriately drawn from his survey
`data, which shows that people would pay more for the roll if it were 100% real
`crab, and only 45 of 70 persons who believed the roll was 100% real crab would
`pay the roll’s $10 selling price if it were made without real crab.27
`3. Methodology
`The Ninth Circuit has “long held that survey evidence should be
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`admitted ‘as long as [it is] conducted according to accepted principles and [is]
`relevant.’” Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc.,
`
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`23 Maronick Motion 18:25-27.
`24
`Id. at 19:18-20; see also Maronick Report 571-76.
`25
`Id. at 19:3-4.
`26 Maronick Opposition 14:4-5.
`27 Maronick Report 571-76.
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`618 F.3d 1025, 1036 (9th Cir. 2010) (alterations in original) (quoting Wendt v.
`Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir.1997)). “‘[T]echnical inadequacies’
`in a survey, ‘including the format of the questions or the manner in which it was
`taken, bear on the weight of the evidence, not its admissibility.’” Id. (quoting
`Keith v. Volpe, 858 F.2d 467, 480 (9th Cir. 1988)). Thus, “[i]ssues of
`methodology, survey design, reliability, the experience and reputation of the
`expert, critique of conclusions, and the like go to the weight of the survey rather
`than its admissibility. These are issues for a jury or, in a bench trial, the judge.”
`Brighton Collectibles, LLC v. Believe Prod., Inc., 2017 WL 486233, at *7 (C.D. Cal.
`Feb. 6, 2017) (quoting Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252,
`1263 (9th Cir. 2001)); see also Southland Sod Farms v. Stover Seed Co., 108 F.3d
`1134, 1143 (9th Cir. 1997) (“[u]nlike novel scientific theories, a jury should be
`able to determine whether asserted technical deficiencies undermine a survey's
`probative value”). But see Gibson v. Cty. of Riverside, 181 F. Supp. 2d 1057, 1067
`(C.D. Cal. 2002) (“substantial deficiencies in the design or execution of a survey
`of individuals is grounds for its complete exclusion”).
`
`A district court should be concerned with “substantial deficiencies, and
`not mere quibbles about [survey] methodology[.]” In re Autozone, Inc., 2016 WL
`4208200, at *17 (N.D. Cal. Aug. 10, 2016). Here, the Court finds that
`Benihana’s Maronick Motion challenges mere quibbles with the Maronick
`Report and survey, rather than substantial deficiencies. The Court briefly
`addresses Benihana’s contentions below.
`
`First, Benihana points to Maronick’s decision to exclude respondents
`who did not see the word “crab” on the Shrimp Crunch Roll section of the
`menu.28 Because of that omission, Benihana argues that Maronick “excludes
`from his sample over 40% of the respondents based on their perception of the
`
`
`28 Maronick Motion 21:1-26.
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`language used in the Benihana menu, i.e., the very question his survey should
`have been designed to answer.”29 The Court finds that the omission is justified,
`because the question presented to respondents was whether they believe that
`“crab” means real crab, imitation crab, or a combination.
`
`Second, Benihana criticizes Maronick’s decision to include in his survey
`results “consumers that both patronize Benihana or considered patronizing
`Benihana in the past two years.”30 Benihana argues that Maronick’s decision is
`problematic because the included group does “not align with the description of
`the putative class or its time frame[.]”31 To support its implicit argument that a
`survey should only include class members, Benihana relies on Bruce v. Teleflora,
`LLC, 2013 WL 6709939 (C.D. Cal. Dec. 18, 2013).32 But Bruce is inapposite to
`the matter at bar. The plaintiffs in Bruce sought certification of a consumer class
`against an online floral retailer. Id. at *1. The court found that each floral
`arrangement “received by a putative class member was in one way or another
`unique.” Id. at *6. The court rejected Maronick’s33 damages model and found
`that “individual issues will necessarily predominate over common questions[.]”
`Id. at *7. Here, the situation is different. Maronick’s survey results are relevant
`to the reasonable person standard. In addition, here, unlike in Bruce, the
`representations made to putative class members were consistent and uniform.
`
`Third, Benihana avers that “Maronick did not draw a representative
`sample of respondents.”34 Maronick engaged 1,200 persons to participate in his
`consumer survey, but he ultimately narrowed the group of respondents to a
`
`
`
`29
`Id. at 21:3-5.
`30
`Id. at 22:8-11 (emphasis in original).
`31
`Id. at 22:12-13.
`32
`Id. at 22:14-20.
`33 Maronick was also the retained expert of the plaintiffs in Bruce.
`34
`Id. at 23:1-2.
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`subset of 204 individuals.35 Benihana argues that this “response rate” is so low
`as to render the survey results inadequate.36 But the 204 persons are not
`reflective of the “response rate.” Indeed, 1,200 people started the survey, but
`the 204 persons who qualified for the final sample were the persons who had
`patronized or would consider patronizing Benihana and who noted that the
`Shrimp Crunchy Roll contained “crab.”37
`Fourth, Benihana asserts that Maronick omitted a control group.38 To
`
`support its argument that Maronick was required to include a control group,
`Benihana cites several cases in which courts excluded surveys that lacked
`control groups.39 But none of those cases was brought under the CLRA. Here,
`the Court agrees with Kim, who argues that the reasonable person standard
`“may be evaluated without a control group” since Kim is not required to prove
`reliance or causation.40 The significance of the survey’s lack of a control group
`“goes to the weight the Court is to afford the survey, rather than its
`admissibility.” In re NJOY, Inc. Consumer Class Action Litig., 120 F. Supp. 3d
`1050, 1078 (C.D. Cal. 2015) (internal quotations omitted).
`
`Fifth, Benihana argues that the “mechanics of the survey fail to replicate a
`dining experience.”41 To support that point, Benihana cites only one case,
`THOIP v. Walt Disney Co., 690 F. Supp. 2d 218, 236 (S.D.N.Y. 2010), which
`involved a t-shirt-related trademark dispute and which is of only marginal
`relevance to the matter at bar. Moreover, while the Court would agree with
`Benihana that Maronick’s decision to limit to 15 seconds the time in which
`
`
`35 Maronick Report 568.
`36 Maronick Motion 23:18-21.
`37 Maronick Report 568.
`38 Maronick Motion 24:16.
`39
`See id. at 24:22-25:23.
`40 Maronick Opposition 10:1-24.
`41 Maronick Motion 26:4-5.
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`respondents had to review the menu meant that the survey did not fully replicate
`a dining experience,42 Maronick claims that he never made that decision.43
`Maronick corrected the record to clarify that respondents were provided with a
`minimum of 15 seconds to review the menu.44
`
`Finally, Benihana contends that Maronick’s survey questions were
`mislabeled.45 The Court agrees with Kim, who argues in the Opposition that the
`labels at issue “indicate[d] the direction in which the scale ranges from highest
`to lowest, and respondents were free to choose anywhere from 0 to 100.”46
`Moreover, the Court agrees with Kim that Benihana’s argument about labels is
`ultimately a challenge to “the survey’s form over substance[.]”47
`
`Accordingly, the Court finds that the Maronick Report is properly
`included in Kim’s Compendium of Evidence and DENIES the Maronick
`Motion.
`B. The Forister Motion
`
`In support of his Class Certification Motion, Kim also introduced the
`report of economist Dr. Eric F. Forister.48 In that Report, Forister provides
`different methods for cost savings damages, benefit-of-the-bargain damages, and
`restitution damages.49 Kim notes, however, that he “did not raise the cost-
`savings damages calculation in his motion.”50 Accordingly, the portions of the
`Forister Motion that discuss cost savings damages are irrelevant. See
`
`
`
`42
`Id. at 27:5-13.
`43
`COE 183.
`44
`Id.
`45 Maronick Motion 27:19.
`46 Maronick Opposition 13:17-19.
`47
`Id. at 13:5.
`48
`See Report of Dr. Eric F. Forister, COE, Ex. M at 430-544 (the “Forister
`Report”); Ex. N at 546.
`49
`See generally Forister Report.
`50
`Forister Opposition 11:15-16.
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`Fed. R. Evid. 401 & 402. The Forister Motion is therefore GRANTED with
`respect to the portions of the Forister Report dealing with cost savings damages.
`
`Benihana argues that the rest of the Forister Report should be excluded
`because it is “not based on any economic theory [and is] fundamentally
`disconnected from the allegations in this case[.]”51 Specifically, Benihana argues
`that Forister: (1) relies on faulty survey data; (2) bases his opinion on inaccurate
`assumptions; and (3) presents opinions that are irrelevant and unhelpful to the
`trier of fact. The court addresses each argument in turn.
`1.
`Survey Data
`As a threshold matter, the Court rejects Benihana’s arguments that the
`
`Forister Report should be rejected because it relies on data provided by
`Maronick.52 As discussed above, the Court finds that the Maronick Report is
`justifiably included in Kim’s Compendium of Evidence. Any issue with respect
`to Forister’s reliance on the Maronick Report is therefore one of weight, not
`admissibility.
`2.
`Assumptions
`Benihana argues that the Court should exclude the Forister Report
`
`because “Forister did not independently evaluate the raw data from the survey
`to support his opinions.”53 Specifically, Benihana asserts that the Court should
`exclude Forister’s report because it relies on only a summary of data provided in
`the Maronick Report.54 Benihana fails to mention that Forister’s calculations for
`restitution damages do not rely on Maronick’s survey results.55 Accordingly, the
`
`51
`52
`53
`54
`55
`
`
`Forister Motion 6:11-14.
`Id. at 11:26-12:2.
`Id. at 12:1-3.
`Id. at 12:23-24.
`Forister Report 460-61.
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`instant section is only relevant to the portions of the Forister Report that discuss
`benefit-of-the-bargain damages, which do rely on Maronick’s report.
`
`“An expert’s sole or primary reliance on the opinions of other experts
`raises serious reliability questions.” In re ConAgra Foods, Inc., 302 F.R.D. 537,
`556 (C.D. Cal. 2014). An expert can appropriately rely on the opinions of
`others, however, “if other evidence supports his opinion and the record
`demonstrates that the expert conducted an independent evaluation of that
`evidence.” Id.; see also O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 420
`F. Supp. 2d 1070, 1088 (N.D. Cal. 2006), aff’d, 221 F. App’x 996 (Fed. Cir.
`2007) (“Although an expert may not adopt another’s data without verifying the
`validity and reliability of that data, Rule 703 allows an expert to rely on facts or
`data relied upon by experts in the particular field in forming opinions or
`inferences upon the subject; an expert is not required to testify only upon data
`the expert has personally gathered or tested.”).
`
`Forister testifies that he did not even request access to the “raw” or
`underlying survey data to assess independently whether Maronick’s conclusions
`were accurate.56 Instead, he relied on the summary of the data provided in the
`Maronick Report.57
`
`Kim cites no authority to rebut the proposition that experts are required
`to verify the validity and reliability of the data on which they rely—a step that
`Forister admits that he did not take. Accordingly, the Court GRANTS the
`Forister Motion with respect to benefit-of-the-bargain damages and
`EXCLUDES the portions of the Forister Report that discuss those calculations.
`
`
`56
`See Decl. of Leigh E. Colihan in Supp. of the Forister Motion [ECF
`No. 101-2], Ex. A (the “Forister Deposition”) 5:8-19. In its citations to the
`Forister Deposition, the Court refers to the ECF page number.
`57
`Forister Deposition 17:17.
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`3.
`Relevance and Helpfulness
`Benihana argues that the Forister Report should be excluded because
`
`Forister’s opinions are irrelevant and unhelpful to the trier of fact.58 The Court
`has already excluded the portions of the Report that discuss cost savings and
`benefit-of-the-bargain damages. Accordingly, the Court assesses Benihana’s
`argument only with respect to the sections of the Report that discuss restitution
`damages.
`
`Benihana avers that the Court should exclude Forister’s calculations for
`restitution damages because the calculations are “simple arithmetic that can be
`done by a layperson.”59 The Court agrees. In the Ninth Circuit, expert opinion
`is admissible under Rule 702 only if “the subject matter at issue is beyond the
`common knowledge of the average layman . . . .” United States v. Morales, 108
`F.3d 1031, 1038 (9th Cir. 1997). “[G]rade-school arithmetic” is not specialized
`knowledge beyond the common knowledge of the average layperson. Waymo
`LLC v. Uber Techs., Inc., 2017 WL 5148390, at *5 (N.D. Cal. Nov. 6, 2017).
`
`Here, the Court finds that Forister’s calculations for restitution damage