Filed: Apr. 28, 2017
Latest Update: Apr. 28, 2017
Summary: INTERIM ORDER ON DAUBERT MOTIONS AND TRIAL PLAN Dkt. Nos. 220, 221 WILLIAM H. ORRICK , District Judge . At the initial pre-trial conference, the parties argued motions to strike each other's experts. I have questions about the reliability of the survey data used by Dr. Petersen to reach his opinions. Is the unverified information provided by the survey respondents accurate Are all the survey respondents class members 1 and, if not, how did their responses affect the opinion Were class m
Summary: INTERIM ORDER ON DAUBERT MOTIONS AND TRIAL PLAN Dkt. Nos. 220, 221 WILLIAM H. ORRICK , District Judge . At the initial pre-trial conference, the parties argued motions to strike each other's experts. I have questions about the reliability of the survey data used by Dr. Petersen to reach his opinions. Is the unverified information provided by the survey respondents accurate Are all the survey respondents class members 1 and, if not, how did their responses affect the opinion Were class me..
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INTERIM ORDER ON DAUBERT MOTIONS AND TRIAL PLAN
Dkt. Nos. 220, 221
WILLIAM H. ORRICK, District Judge.
At the initial pre-trial conference, the parties argued motions to strike each other's experts. I have questions about the reliability of the survey data used by Dr. Petersen to reach his opinions. Is the unverified information provided by the survey respondents accurate? Are all the survey respondents class members1 and, if not, how did their responses affect the opinion? Were class members double counted? And I continue to wonder how helpful it is to reach an aggregate number for class damages when the disparity in the amounts each class member may claim is so great that individualized determinations will ultimately be required.
That said, until there is evidence presented that answers (at least) the questions posed in the preceding paragraph, I will not rule on the Daubert motion for Dr. Petersen. Nor will I exclude Dr. Saad as a rebuttal expert.
My intention is to try the damages case in two phases. In the first phase, the parties will address the individual damages claims of a representative sample of class members.2 They should do this with an eye to supporting or undermining the validity of the survey data and the opinions of their experts. At the end of the first phase, the jury will be asked to make individualized determinations of damages of the class members who have testified. The second phase will immediately follow the first phase, and will consist of the presentation of expert testimony regarding aggregate damages for the class. That issue will also go to the same jury that decides phase one unless I find that Dr. Petersen's opinion is unreliable or unhelpful.
Jury selection begins at 8:30 a.m. on May 22, 2017. The parties should plan to spend all day in trial; hopefully, we will select the jury and complete opening statements and some witness testimony the first day. On May 23 — May 25, we will go from 8 a.m. to 1 p.m., with two short breaks each morning. May 26 is dark because I have a conflicting hearing that day, and May 29 is Memorial Day. Trial will continue on May 30 and we will keep the 8 a.m. to 1 p.m. schedule until the trial is done, except for jury deliberations.
Each side shall have 13 hours to present the first phase of the case, using no more than 2 hours of the allotted time for opening and closing. Barring unforeseen circumstances, this means that the first phase will go to the jury on or before June 1, 2017. The second phase will commence promptly after the jury returns its verdict. At the case management conference on May 12, we will discuss whether the parties contemplate calling any witness other than Drs. Petersen and Saad during phase 2.
IT IS SO ORDERED.
