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Hilsley v. Ocean Spray Cranberries, Inc.

United States District Court, S.D. California

June 24, 2019

CRYSTAL HILSLEY, on behalf of herself and all others similarly situated, Plaintiff,
v.
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. 105.]

          Hon. Gonzalo P. Curiel United States District Judge.

         Plaintiff 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 exclude.

         Background

         The 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. (Id.)

         Plaintiff 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.

         Plaintiff 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. ¶¶ 115-187.)

         Discussion

         A. Motion to Exclude Expert Rebuttal Reports of Nancy Higley, Nicole Liska and Sarah Butler

         Plaintiff 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 prejudicial

         Pursuant 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.)

         Defendants, 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[1].)

         Federal 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. 26(a)(2)(D)(ii).

         Failure 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)).

         During 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. ΒΆ 4.) Sarah Butler was retained by Defendants to rebut Dr. Belch, Dr. ...


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