United States District Court, S.D. California
CRYSTAL HILSLEY, on behalf of herself and all others similarly situated, Plaintiff,
OCEAN SPRAY CRANBERRIES, INC.; ARNOLD WORLDWIDE LLC; and DOES defendants 1 through 5, inclusive, Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO EXCLUDE THE
TESTIMONY OF NANCY HIGLEY, NICOLE LISKA, SARAH BUTLER, AND
PAULA LENT [REDACTED-ORIGINAL FILED UNDER SEAL] [DKT. NO.
Gonzalo P. Curiel United States District Judge.
filed a motion to exclude the testimony opinions and reports
of Nancy Higley, Nicole Liska, Sarah Butler, and Paula Lent.
(Dkt. No. 105.) Defendants filed an opposition. (Dkt. No.
141.) Plaintiff filed her reply. (Dkt. No. 150.) Based on the
reasoning below, the Court DENIES Plaintiff's motion to
action was removed to this Court pursuant to the Class Action
Fairness Act of 2005 (“CAFA”) on November 16,
2017. (Dkt. No. 1.) Plaintiff Crystal Hilsley
(“Plaintiff” or “Hilsley”) filed a
purported consumer class action against Defendants Ocean
Spray Cranberries, Inc. (“Ocean Spray”) and
Arnold Worldwide LLC (“Arnold Worldwide”)
(collectively “Defendants”) for violations of
California consumer protection laws based on a
misrepresentation on labels stating “no artificial
flavors” on certain Ocean Spray products
(“Products”). (Dkt. No. 1-2, Compl.) Defendant
Ocean Spray Cranberries, Inc. (“Ocean Spray”)
manufactures, distributes, advertises, markets and sells a
variety of juices and juice-based beverage products.
(Id. ¶ 6.) Defendant Arnold Worldwide LLC
(“Arnold”) allegedly participates in the labeling
and advertising of these products for Ocean Spray.
claims that the labels on Defendants' Products are false
and misleading because each Product contains artificial
flavoring ingredients, dl-malic acid and/or fumaric acid to
simulate advertised fruit flavors. (Id. ¶¶
8, 9, 10.) Plaintiff purchased the 64-ounce Ocean Spray
Cran-Apple and Cran-Grape Products from about 2011 to 2016.
(Dkt. No 134-2, P's Reply to SSMF, No. 1.) The Ocean
Spray Cran Pomegranate, Ocean Spray Diet Cran Pomegranate;
Ocean Spray Cran Apple, Ocean Spray Cranberry Cherry Flavor
100% Juice, Ocean Spray Cran Pineapple, and Ocean Spray Diet
Cran Cherry contain both dl-malic acid and fumaric acid.
(Id., Nos. 2-8.) The Ocean Spray Cran Grape, and
Ocean Spray Cran Cherry contain fumaric acid. (Id.,
Nos. 2. 8, 9.) Ocean Spray does not dispute that it uses
malic acid and fumaric acid in certain of the Products at
issue. (Id., Nos. 11-14.) The malic acid and fumaric
acid used in the Products are artificial. (Id., Nos.
15-19, 20-22.) The parties dispute whether malic and fumaric
acid function as flavors in the Products at issue.
alleges six causes of action for violations of the Consumer
Legal Remedies Act (“CLRA”), Cal. Civ. Code
§ 1750 et seq, the unlawful prong of the Unfair
Competition Law (“UCL”), Cal. Bus. & Prof.
Code § 17200 et seq., the unfair prong of the
UCL, California's False Advertising Law
(“FAL”), and breach of express warranty and
breach of implied warranty. (Dk. No. 1-2, Compl. ¶¶
Motion to Exclude Expert Rebuttal Reports of Nancy Higley,
Nicole Liska and Sarah Butler
moves to exclude the expert rebuttal reports of Nancy Higley,
Nicole Liska, and Sarah Butler as untimely. Defendants
respond Plaintiff cannot demonstrate the untimely expert
rebuttal reports were not substantially justified or
to the Magistrate Judge's order of February 6, 2019
granting the parties' joint motion to extend deadlines
for expert reports and closing expert discovery, the initial
expert reports were due on February 4, 2019, rebuttal expert
reports were due on March 4, 2019 and expert discovery was to
close on April 3, 2019. (Dkt. Nos. 93, 95.)
without seeking leave of court, served the rebuttal expert
reports of Nicole Liska, Sarah Butler and Nancy Higley on
April 3, 2019, thirty days past the deadline. As noted by the
Magistrate Judge in a recent discovery order, “the
designations of these experts were timely, but the
disclosures were late. Defendants have provided an
explanation, but Plaintiff has moved for exclusion of these
experts. That motion is pending before the district
judge.” (Dkt. No. 131 at 3.)
Rule of Civil Procedure (“Rule”) 26(a)(2)
provides that a party must disclose the identity of any
expert witness it intends to use at trial. Fed.R.Civ.P.
26(a)(2)(A). Parties are required to make expert disclosures
“at the times and in the sequence that the court
orders.” Fed.R.Civ.P. 26(a)(2)(D). If the expert
witness is retained or specially employed to provide expert
testimony, the disclosure must include a report that is
prepared and signed by the expert. Fed.R.Civ.P. 26(a)(2)(B).
A party may file a “rebuttal” expert report to
“contradict or rebut evidence” offered by another
party in its initial expert disclosures. Fed.R.Civ.P.
to abide by the disclosure requirements in Rule 26 can result
in sanctions pursuant to Fed.R.Civ.P. 37(c)(1) that are
“self-executing, ” and “automatic”.
Yeti v. Molly, Ltd. v. Deckers, Outdoor Corp., 259
F.3d 1101, 1106 (9th Cir. 2001). The Ninth Circuit recognized
two exceptions under Rule 37(c)(1) if the parties'
failure to timely disclose the information was
“substantially justified or harmless.”
Id. The burden is on the party facing exclusion to
demonstrate the delay is justified or harmless. Id.
at 1107. “Among the factors that may properly guide a
district court in determining whether a violation of a
discovery deadline is justified or harmless are: (1)
prejudice or surprise to the party against whom the evidence
is offered; (2) the ability of that party to cure the
prejudice; (3) the likelihood of disruption of the trial; and
(4) bad faith or willfulness involved in not timely
disclosing the evidence.” Lanard Toys Ltd. v.
Novelty, Inc., 375 Fed. App'x 705, 713 (9th Cir.
2010) (citing David v. Caterpillar, Inc., 324 F.3d
851, 857 (7th Cir. 2003)).
discovery, Plaintiff disclosed Dr. Alan Goedde's expert
report on August 18, 2018 and a supplemental expert report on
October 26, 2018. (Dkt. No. 150-1, Marron Decl. ¶ 2.)
Plaintiff also retained Dr. George E. Belch, Ph.D and his
expert report was disclosed to Defendants on August 16, 2018
and a supplemental expert report was disclosed on October 26,
2018. (Id. ¶ 3.) Finally, Dr. Laszlo
Somogyi's expert report was disclosed to Defendants on
September 28, 2018. (Id. ¶ 4.) Sarah Butler was
retained by Defendants to rebut Dr. Belch, Dr. ...