Opinion
MDL No. 1:19-md-2903
2021-10-19
IN RE: FISHER-PRICE ROCK ‘N PLAY SLEEPER MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION This Document Relates to: All Cases
ORDER ON MOTION TO EXCLUDE EXPERT WITNESS
Geoffrey W. Crawford, Judge
This MDL proceeding concerns claims by consumers who purchased the Fisher-Price "Rock ‘n Play Sleeper" ("Sleeper") prior to its April 2019 recall by the Consumer Product Safety Commission. Plaintiffs seek a full refund or, in the alternative, a partial refund representing the difference in value between the Sleeper with and without a warning about the risk of infant death or injury. The MDL includes cases arising under consumer protection laws in force in many different states. It is limited to refund claims. It does not cover death or injury claims. Because the financial damage to consumers, even in the event of a full refund, is generally less than $100, Plaintiffs seek class certification and aggregate damage awards under the law of various states. (See Doc. 125-1.)
Factual Background
Plaintiffs have disclosed Colin Weir as an expert economist. (Doc. 125-2.) Mr. Weir holds an undergraduate degree in business from the College of Wooster and an MBA degree from Northeastern University. (Id. ¶ 1.) His area of expertise lies in the field of "conjoint analysis." (Id. ) Conjoint analysis, derived from "considered jointly," is a statistical survey technique designed to separate out the various elements of perceived value that make up a consumer's decision to purchase a product. Survey respondents are asked a series of questions intended to identify how much more they might be willing to pay for a particular attribute. In the world of marketing and product design, companies have used conjoint techniques for decades to determine which features are most important to customers.
Mr. Weir as well as the two economics experts identified by the defense regularly make use of conjoint analysis in the litigation setting. An example unrelated to this case might be patent litigation in which conjoint techniques may be employed to determine the likely price of a product with and without the infringing feature. See Cameron et al., The Role of Conjoint Surveys in Reasonable Royalty Cases , Law 360 (Oct. 16, 2013), https://www.law360.com/articles/475390/the-role-of-conjoint-sui-veys-in-reasonable-royalty-cases.
In a consumer case involving a claim of inadequate warning, damages are frequently "measured by the difference between what the plaintiff paid and the value of what the plaintiff received." In re Scotts EZ Seed Litig. , 304 F.R.D. 397, 412 (S.D.N.Y. 2015) (cleaned up) (court permitted Mr. Weir to testify on full refund and price premium theories of damage) . Since warnings about hazards associated with a product reflect negative attributes, a consumer with full information about potential danger may be willing to pay less for the same product than a consumer who is unaware of the risk. Determining how much less the fully informed consumer would be willing to pay is the purpose of Mr. Weir's conjoint survey. (Doc. 125-2 ¶¶ 25–29.)
A full discussion of benefit-of-the-bargain or expectation damages lies beyond the scope of this narrow Daubert ruling. The court offers the traditional formula as a starting place for discussion only. See Restatement (Second) of Contracts § 344 (1981) (identifying expectation, reliance, and restitution interests as measures of damages for breach of contract).
The market for toasters provides an example of the potential use of conjoint analysis. These days, even the best toasters wear out. Sullivan et al., "The Best Toaster," N. Y. Times (Oct. 1, 2021), https://www.nytimes.com/wirecutter/reviews/best-toaster/ ("Unfortunately, no matter how much you spend, toasters aren't made to last like they once were."). A toaster that is silent about this home truth may sell for more than its brother, similar in other respects, that candidly warns that the appliance will wear out in 36 months. If the legal system identifies the absence of a warning label as an instance of fraud, an economist might be retained to measure the difference in sales prices for the two products. That might be called a "natural experiment" since sales data would be available for both lines of toasters. In the conjoint world, however, there is only one toaster—the at-fault toaster lacking the warning. An economist would have to turn to survey data to determine how much less consumers would have been willing to pay for a properly labeled toaster disclosing its limited life expectancy. Practitioners of conjoint analysis would call that imaginary toaster the "but for" toaster and would call any difference in value the "part worth" associated with the consumer's expectation that the at-fault toaster was durable and long-lived.
In the case of the Sleeper, Mr. Weir has proposed to apply two potential measures of damages. In the event that the legal system determines that the correct measure of damages is a full refund, he is prepared to add up the number of Sleepers sold—approximately 4.7 million—and apply a per unit price. (Doc. 125-2 ¶ 28.) The calculation may be complicated by Sleepers that were purchased at a variety of discounts, resold, purchased on the used market, or received as gifts. If it comes to that point, the assistance of a business school graduate in counting and sorting a large number of claims would be welcome.
Alternatively, the legal system may determine that a partial refund reflecting elements of value enjoyed by consumers is due as compensation. In this case, Mr. Weir proposes to conduct a survey seeking to identify the marginal price consumers would pay for the Sleeper after receiving an appropriate warning. (Doc. 125-2 at 33–34.) He identified the task in his report:
If required by the court, and damages are not calculated using the full refund method discussed above, diminution in value damages can be calculated—after completing all of the work discussed in Exhibit 3—as follows.
With the price difference due to the alleged safety risks determined on a percentage basis, the calculation of class-wide damages for any Product will be:
% Diminution in Value Factor × $Units sold = Damages.
(Doc. 125-2 ¶¶ 27–28.)
In response to Mr. Weir's opinion, Defendant Fisher-Price has disclosed two experts: Peter Rossi, Ph.D. and Olivier Toubia, Ph.D. Their criticism of Mr. Weir's report forms the basis for a Daubert motion directed to exclude Mr. Weir's testimony. (Doc. 168.)
On September 27, 2021, the court held a one-day Daubert hearing at which Mr. Weir and Mr. Rossi both provided detailed testimony. The court also has reviewed Mr. Toubia's declaration and a further reply declaration from Mr. Weir. The exhibits offered by Fisher-Price at the Daubert hearing were admitted without exception.
Analysis
Before reaching the Daubert issues, the court will first address two preliminary issues.
First, Mr. Weir's report is a proposal only. Mr. Weir has not conducted his survey or completed his conjoint analysis. At the outset of this MDL, the court granted Fisher-Price's request to bifurcate discovery and to proceed only with the preparation of the issues necessary for class certification. Fisher-Price agreed that for purposes of the certification issues, Plaintiffs would submit an expert report outlining the methodology of the calculation of a damages claim. The report would take the form of a proposal. A full report, including the results of the survey, would follow a decision on class certification. Mr. Weir has followed the court's ruling in providing such a report that describes two alternate measures of damage but defers conducting the survey work and other computations until the merits stage of the case.
Second, the legal standard applicable to a Daubert challenge in the class certification setting is no different than in the merits setting. Plaintiffs direct the court's attention to several federal trial court decisions that state that a lower standard of reliability applies to expert opinions offered in support of a motion for class certification. (Doc. 182 at 8–9) (citing In re Kind LLC "Healthy & All Natural" Litig. , 337 F.R.D. 581, 604 (S.D.N.Y. 2021) ; In re LIBOR-Based Fin. Instruments Antitrust Litig. , 299 F. Supp. 3d 430, 471 (S.D.N.Y. 2018) ; Scott v. Chipotle Mexican Grill, Inc. , 315 F.R.D. 33, 56 (S.D.N.Y. 2016) ). The court does not adopt this approach. The Daubert line of decisions and the provisions of Rule 702 contemplate a single "overarching requirement of reliability." Fed. R. Evid. 702 advisory committee's note. As in this case, the opinion offered at class certification may take the form of a proposal for additional investigation. But that does not alter the court's obligation to examine the proposed methodology and identify junk science as early as possible.
As a practical matter, it is hard to see how a particular scientific method or opinion might pass a preliminary test at certification and fail at merits. This case supplies a good example. It is Mr. Weir's methods which are at issue, not the result of any future survey. He has described his methods in detail, and these have furnished the basis for very specific criticism. Since methodology—not outcomes—lies at the heart of the Daubert analysis, the court has a sufficient basis now for applying the Daubert standards fully to as much of Mr. Weir's research and thinking as is currently available. If his final report raises other Daubert issues not known at this time, Fisher-Price can renew its motion. At this time, however, the court has a sufficient basis for testing Mr. Weir's proposed methods and survey investigation against the full Daubert criteria.
I. The Daubert Test
In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court abandoned the general acceptance test for expert testimony established by Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), in favor of the application of a group of non-exclusive criteria to establish the reliability of scientific evidence. These include testing, publication, error rate, and acceptance within the scientific community. In Kumho Tire Co. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), these principles were held to cover fields of applied science and experience-based knowledge such as engineering. The extension of Daubert principles to the field of economics has long been recognized. See, e.g., In re Aluminum Phosphide Antitrust Litig. , 893 F. Supp. 1497 (D. Kan. 1995) ; TC Sys. Inc. v. Town of Colonie N.Y. , 213 F. Supp. 2d 171 (N.D.N.Y. 2002).
Rule 702 adopts the Daubert formulation. It provides specific criteria to govern the admissibility of expert testimony. These are whether:
(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. The court's evaluation of Mr. Weir's testimony is made easier by the consensus on both sides that conjoint analysis is a valid tool for evaluating consumer behavior. In the common expression, it is a "thing." The defense does not claim that the entire field of conjoint analysis is junk science. It is taught in business schools. It is widely used by industry to make decisions about pricing and product design. Numerous scholarly articles address its application in a variety of settings. Its techniques have been used by courts and parties in many settings to measure economic damages. See In re Scotts EZ Seed Litig. , 304 F.R.D. at 414.
As a field of study, conjoint analysis satisfies the Daubert criteria of publication and acceptance within the relevant community. Testing and error rate are less relevant to a survey-based technique than for forensic tests like fingerprint analysis since a survey is not objectively correct in its application in an individual case. Neither side argues that these last two criteria are relevant to a Daubert ruling in this case. Instead, the defense has focused attention on criticism of Mr. Weir's application of conjoint analysis in this case.
Mr. Weir is an experienced forensic economist. In the last four years alone, he has provided opinions in over 80 cases in state and federal court. (See Doc. 125-2.) In some of these cases, he identified what he described as an overpayment by consumers through the use of conjoint analysis. Other cases involve antitrust issues not relevant here. Mr. Weir has joined as a co-author of 11 articles, primarily concerning competition in the telecommunications industry. Mr. Weir's two declarations and his testimony at the Daubert hearing demonstrated a full understanding of the issues presented by conjoint analysis and an ability to understand and reply in a thoughtful manner to the criticism of the defense experts.
The defense does not characterize Mr. Weir as a charlatan or a practitioner of junk science. Instead, the defense critique of his opinions draws attention to particular aspects of his analysis. Dr. Rossi and Dr. Toubia contend that Mr. Weir misapplies well-settled principles of conjoint analysis. The court turns therefore to the specific criticisms leveled by the defense.
II. Critique of the Full-Refund Model
Dr. Rossi's primary criticism of the full-refund model is that it fails to credit the defendant with any residual value of the Sleeper after consideration of the risk presented to a sleeping infant. "[A]ssuming that in the absence of the alleged false advertising the Rock ‘n Play Sleeper would be valueless for sleep, for the product to be ‘valueless’ would require that sleep was the sole use of the product. As I show below, the evidence shows that the Rock ‘n Play Sleeper has features and uses unrelated to sleep, implying that the product is not valueless." (Doc. 166-2 ¶ 30) (cleaned up). In addition, Dr. Rossi notes that the full-refund model fails to take into consideration the special problem of resale on the aftermarket. He also addresses the issue of supply-side considerations that the court considers below.
The experts’ disagreement over the full refund model arises from different assumptions each makes at the beginning of his inquiry. Mr. Weir leaves it to the legal process to determine whether the Sleeper is valueless. "If the Plaintiffs prove that the Product is unsafe and valueless, or should not have been sold, Full Refund Damages would be appropriate." (Doc. 125-2 ¶ 15.) He is prepared to do the math following such a ruling, but the decision as to a complete loss of value falls outside his scope of work.
Dr. Rossi takes a different approach. He divides the use of the Sleeper into sleep and its use by parents in caring for a baby who is awake. In his view, "[t]he evidence demonstrates that, even assuming as Plaintiffs allege, that the Rock ‘n Play Sleeper was falsely advertised as safe for sleep and should not be used for sleep, it could still be used for play, soothing, entertaining, and to keep a baby stationary." (Doc. 166-2 ¶ 15.) In Dr. Rossi's view, plaintiffs whose children played in the Sleeper safely while awake received value from the product that is distinct from the loss of value these parents suffered when they could no longer use the Sleeper for sleep purposes.
Neither witness is wrong. They are answering different questions. Mr. Weir is answering the question of how to calculate the total loss if the court determines that a product found to cause injury or death in some cases has no value. If the parties are bound by such a determination, he knows how to compute refund damages. In the absence of such a ruling, he moves on to a partial computation of value. He can hardly be excluded from testifying because he has in effect promised to follow the rulings of the court.
Dr. Rossi is answering a different question. Regardless of any legal ruling, an economist could assign value or utility to the positive experience of parents whose children were not harmed. Fortunately, these are the vast majority of families. From this experience, he subtracts the value of sleeping because for purposes of the exercise, he assumes that sleeping in the Sleeper is too dangerous to have value. He focuses on the value of a child's waking playtime in the Sleeper and concludes that this beneficial use of the product must have some residual value. That is an observation rooted in economics, not law, that will remain true even if the legal process determines that a full refund is appropriate.
The overlap between the two experts’ opinions is more striking than the difference. Mr. Weir acknowledges that the measure of damages is defined by the legal system, not by economic theory. Unless a court ruling requires a full refund, he will seek to value the lack of a warning as a part worth. Dr. Rossi does not address how he would respond to a ruling that for legal reasons, full refund damages were appropriate. Presumably he would roll his eyes and follow it. From an economics perspective, that outcome makes no sense to him. "Because the product would not be valueless in the but-for world, calculating full refund damages would not be correct." (Doc. 166-2 ¶ 41.) But in criticizing Mr. Weir, he is picking a fight with the wrong person. It is the plaintiffs and, potentially, the court who may seek to establish a value of zero for the Sleeper. It is not Mr. Weir who limits his comments to the anodyne opinion that if that is where the case goes, he is prepared to sum up the damages. This difference between the approaches of the two experts provides no basis to exclude Mr. Weir's testimony.
The court also rejects the argument that Mr. Weir's failure to provide a formula for resellers of the Sleeper is a basis for exclusion. How to allocate damages between the reseller and his customer is a complicated issue that may prove difficult to assess in an aggregate damage award. It certainly has not been solved yet by either party. An unsolvable doctrinal problem involving resellers may lead to their exclusion from the various putative classes. It provides no basis for excluding otherwise useful testimony from Mr. Weir on the balance of his opinion. Similarly, disputes between the experts about how to account for differences in retail sales prices for the Sleeper or differences in features and options present fair grounds for cross-examination. They do not tar Mr. Weir's work as "junk science."
III. Failure to Account for Supply-Side Market Changes
The major difference between Mr. Weir and Dr. Rossi's opinions is found in the way they handle the computation of the price difference between the actual sales price and the reduced price in the but-for world. Mr. Weir seeks to conduct a conjoint survey to identify the point at which the average consumer, understanding that the Sleeper is unsafe for infant sleep, would flip from a decision to purchase the item to a decision to walk away. He describes this price point as the willingness to pay of the marginal consumer. Once he knows the difference in dollars between these two perceptions of consumer value, he can multiply that figure by the number of Sleepers sold and determine total damages.
Dr. Rossi disagrees in an important respect. He points out that conjoint analysis measures only the demand side of the market for a product. That is an unassailable observation since the analysis depends on surveys of consumers who experience demand at first hand but know little about supply considerations. He notes that in classical economic theory, prices are not set by demand or supply alone but rather by their intersection. All true. He then argues that in order to determine the price of the Sleeper in the but-for world in which consumers received warnings, it is also necessary to conduct an analysis of supply characteristics such as the cost of production and the presence of competitors. Only in this way can a new balance be struck between reduced demand (due to the frightening warning) and a revised point of intersection with the supply curve. Since a company will be willing to supply more of a product as the price increases (and less as it falls), the reduction in demand leads to an intersection or point of equilibrium at a lower price.
Mr. Weir responds that the supply of Sleepers was fixed at 4.7 million when sales were suspended. That is a matter of historical fact. On principle, he objects to changing anything in the but-for world except the reduced demand caused by the addition of the warning. In his view, the court's job is not to determine the price at which Fisher-Price would be willing to sell, say, 3 million Sleepers. Rather, he seeks to determine the difference in value—expressed as a drop in price the average consumer would be willing to pay—multiplied against the total number of products actually sold. He also argues that he has incorporated supply-side information by using historical price data for the very product under consideration. (Doc. 191 ¶ 21.) He draws attention to the Reference Manual on Scientific Evidence that recommends that economic experts hold all variables constant except the one factor giving rise to liability. The Fed. Judic. Ctr., Reference Manual on Scientific Evidence (3d ed. 2011).
As before, the experts are talking about different things. Both experts can determine the average price for which a Sleeper sold without the warning. They also know the supply quantity—4.7 million. Through his survey process, Mr. Weir seeks to measure the lower marginal price at which a consumer would agree to buy the same product knowing the risk it presented. He does not recalculate the defendant's willingness to supply Sleepers at the reduced price because the sales have already occurred. He is not reimagining the market for Sleepers at a different quantity. He is controlling for only one variable—the change in demand and therefore marginal price with and without the warning.
Dr. Rossi is talking about something different. He wants to know at a reduced demand whether there would be a concomitant change in the manufacturer's interest in supplying the product. Supply is generally a curve, increasing with price. If Fisher Price knew that it could sell fewer Sleepers, for example, 3 million in place of 4.7 million, they would have supplied fewer at a lower price. Total damages for the potential class of 4.7 million would be calculated based on the price fixed by reduced demand and reduced supply. He does not propose to conduct this study. He only faults Mr. Weir for not undertaking it.
This debate is common in the caselaw of conjoint analysis. Courts have followed two directions. In re Dial Complete Marketing and Sales Practices Litigation , 320 F.R.D. 326 (D.N.H. 2017), is an example of a case that follows Mr. Weir's model and rejects the argument that an economist must recreate both the demand and the supply curve to establish diminution in value:
[The defendant's] experts seem to argue that the market price of the product absent the allegedly false claims is best calculated by determining the demand curve, and then analyzing supply side forces to arrive at an intersection between demand and supply in a theoretical market. One apparent problem with that traditional approach (at least in this context) is that both supply and demand with respect to the product without the claimed feature can be expected to decline. Therefore, that approach can be expected to describe a price for the product at a point on the quantity sold axis below (perhaps significantly) the point that represents the actual number of offending products sold to class consumers in the actual market.
Id. at 336. See also Fitzhenry-Russell v. Dr. Pepper Snapple Grp., Inc. , 326 F.R.D. 592, 606 (N.D. Cal. 2018) (declining to exclude price premium conjoint survey because survey accounted for supply with reference to sales that occurred in the past).
A second line of decisions expresses concern about a measure of loss based only on the subjective beliefs of the survey participants about what they would be willing to pay. Saavedra v. Eli Lilly & Co. , No. 2:12-cv-9366-SVW (MANx), 2014 WL 7338930 (C.D. Cal. Dec. 18, 2014), is an example. The court in that case wrote:
By looking only to consumer demand while ignoring supply, [the plaintiffs’ expert's] method of computing damages converts the lost-expectation theory from an objective evaluation of relative fair market values to a seemingly subjective inquiry of what an average customer wants. The Court has found no case holding that a consumer may recover based on consumers’ willingness to pay irrespective of what would happen in a functioning market (i.e. what could be called sellers’ willingness to sell)."
To be entirely fair, the Saavedra decision also points out the distortion of the market for pharmaceuticals due to governmental regulation and insurance restrictions on price. The court noted that in an ordinary market such as the open market, the price paid for a product would yield an approximation of its value and applying the percentage decrease in consumer demand for the but-for product, "at least tethers [the damages calculation] to a functioning market and thus to the product's fair market value." Id. at *5.
Id. at *5. Similarly, in In re General Motors LLC Ignition Switch Litigation , 407 F. Supp. 3d 212, 236 (S.D.N.Y. 2019), the court rejected expert testimony on the difference in value between automobiles with and without a defect because the demand-side survey technique "measures consumers’ private valuations (on average) of certain hypothetical GM vehicles sold with fully disclosed defects; it does not measure the market value of those vehicles." Id. (emphasis in original). See also In re Volkswagen "Clean Diesel" Mktg., Sales Practices, & Prods. Liab. Litig. , 500 F. Supp. 3d 940 (N.D. Cal. 2020) (excluding conjoint analysis in part because it ignored supply-chain factors in creating the supply and demand curve); Weaver v. Champion Petfoods USA Inc. , No. 18-CV-1996-JPS-JPS, 2019 WL 7370374 (E.D. Wis. Dec. 31, 2019) (excluding Mr. Weir's opinion because it was founded on a survey designed by Dr. Krosnick that the court concluded was flawed); Zakaria v. Gerber Prods. Co. , No. LA CV15-00200 JAK (Ex), 2017 WL 9512587, at *56 (C.D. Cal. Aug. 9, 2017) (requiring proof of market value to establish damages). What these two lines of cases indicate is that there is a legitimate difference of opinion, both among judges and experts, about the significance of supply side information in calculating loss of value. Mr. Weir's methodology is not wrong or "fake"—it is simply different in a principled way from Dr. Rossi's analysis. A difference in opinion is not a basis for exclusion of an expert opinion under Daubert standards.
IV. Dr. Toubia's Criticisms
Dr. Toubia is a distinguished business school professor and expert in the field of conjoint analysis. As in the case of Dr. Rossi, his resume and list of publications confirms the court's view that conjoint analysis is a well-established field of economics. His criticism of Mr. Weir's work focuses on perceived shortcomings in Mr. Weir's survey technique.
As a starting point, the court notes that Mr. Weir's conjoint analysis comes to the court as a proposal for future work due to the defendant's strongly stated preference for bifurcating discovery at the outset of the case. The court accepted that recommendation and finds that it has been on the whole successful in bringing the class certification issue forward some two years after the formation of the MDL case. But one cost of the bifurcation, recognized by all at the time, is that the damage expert cannot complete his work until he has access to full merits discovery.
A. When do Newborns Sleep?
Dr. Toubia's first criticism is that the proposed survey deviates from Plaintiffs’ theory of their own case. For purposes of the survey, Mr. Weir proposes a warning that the Sleeper "carries the risk of infant fatality or other serious health problems." (Doc. 125-2 ¶ 28.) Dr. Toubia's understanding of the claim is that the Sleeper is dangerous to a sleeping infant but not to a baby who is awake. In his view, Mr. Weir has overstated the danger, thereby stacking the deck in favor of a substantial loss of value.
In his testimony at the Daubert hearing, Mr. Weir made it clear that his understanding of the plaintiffs’ claim is that babies may sleep throughout the day and nod off without warning. (Of course, the same infant may remain loudly awake all night.) His understanding of the claim is that due to the likelihood that a baby may sleep at any moment, use of the Sleeper is always unsafe. That is consistent with the direction of the Consumer Product Safety Commission that directed consumers to "immediately stop using the product and contact Fisher-Price for a refund or voucher." (Def.’s Daubert Hr'g Ex. 4.)
For purposes of the Daubert standard, a disagreement over whether the expert's proposed warning tracks the complaint and the trial evidence is fair game for cross-examination. The difference of opinion here scarcely rises to the level of a methodological fault warranting exclusion.
B. The Warning Sets Up an Unfair Choice
Dr. Toubia also criticizes the proposed survey because consumers do not regularly choose between products on the basis of a safety disclosure. His concern is not unreasonable. Few competing products stand side by side on the shelf—one displaying a skull and crossbones and the other a seal of approval. But this case presents that comparison of the same product with and without the safety information, and Mr. Weir has explained his efforts to camouflage the relevant inquiry among other attributes. This criticism goes to weight but does not justify exclusion of the witness. C. Remaining Criticisms
Dr. Toubia's other criticisms are of a similarly qualitative nature. This does not mean they are invalid or irrelevant. He highlights what he finds to be shortcomings in the survey. Some shortcomings are due to the preliminary nature of Mr. Weir's proposal. The court has already discounted these because they arise from the procedures requested by the defendant. The others are matters of degree and judgment in designing the study. None justify excluding the expert witness altogether—and certainly not prior to the completion of his work.
Conclusion
The Daubert line of decisions and Rule 702 require that scientific, technical, or other specialized expert knowledge must be useful, based in fact, and reliable in order to be admissible. Conjoint analysis is well-established in the field of economics. Any criticism of Mr. Weir's proposal to implement it is fair game for cross-examination, but does not warrant exclusion of the witness.
The court DENIES the motion to exclude the expert testimony of Colin Weir on Daubert grounds (Doc. 168).