By Lee Mickus, a partner in the Denver, CO office of Evans Fears & Schuttert LLP.

Federal class actions brought against distributors of food and consumer products often depend on survey results to achieve class certification, yet some courts fail to recognize that such evidence must meet the requirements of Federal Rule of Evidence 702.  A recent ruling, Vizcarra v. Unilever United States, Inc., No. 4:20-cv-02777 YGR (N.D. Cal. Oct. 27, 2021), exemplifies the approach taken by courts that overlook the need to assess survey-related opinion testimony against Rule 702’s admissibility criteria.  The court’s conclusion that it need not scrutinize the reliability of consumer-survey evidence demonstrates the need for the clarifying amendment to Rule 702 recently proposed by the Advisory Committee on Evidence Rules.

Vizcarra addressed the type of allegations routinely raised against sellers of food products: purported misrepresentations on the package about the nature or quality of the product inside.  In this instance, the plaintiff contended that Breyers Natural Vanilla Ice Cream cartons deceived her and other purchasers into believing that the ice cream’s vanilla flavor “would only come from the vanilla plant” and not from any other source.  Id. at 2.  To support certification of the class claims, the plaintiff presented opinion testimony regarding a consumer survey intended to gauge perception of representations on the product packaging about the origin of the ice cream’s vanilla flavor, whether the representations were material to purchase decisions, and the extent to which consumers paid a price premium for the product as a result of being misled.  Id. at 6-8.

The Vizcarra defendant sought to exclude the plaintiff’s opinion testimony regarding the survey evidence pursuant to Rule 702, asserting that the expert used an unreliable methodology lacking adequate controls and posed biased questions to participants.  Id. at 9.  A Rule 702 motion to bar opinion testimony at the class certification stage is procedurally proper, as “[i]t is generally accepted that the Daubert standard applies at the class certification stage.” 1  Although the defendant’s motion to exclude focused on the “design, methodologies, and reliability” of the survey evidence, the court ruled that these objections went “to the weight to be given to [the expert’s] opinions, and not their admissibility.”  Vizcarra, slip op. at 10.

The court’s denial of the Rule 702 challenge seemingly arose from the perception that expert testimony regarding surveys, despite being opinion evidence, falls beyond courts’ gatekeeping scrutiny under Rule 702.  To that end, the court cited Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025 (9th Cir. 2010) as precedent for the conclusion that criticisms of survey evidence, including the reliability of design and the methodology employed, are not admissibility determinations under Rule 702.  This line of authority, however, suffers from a fundamental flaw: it relies on approaches to survey evidence drawn from pre-Rule 702 decisions.  Fortune Dynamic references a 1997 Ninth Circuit decision, Wendt v. Host Int’l, Inc., 125 F.3d 806, 814, for the proposition that “[c]hallenges to survey methodology go to the weight given the survey, not its admissibility.”  And Fortune Dynamic also quotes a pre-Daubert decision, Keith v. Volpe, 858 F.2d 467, 480 (9th Cir. 1988) as indicating that a survey’s “technical inadequacies,” which include “the format of the questions or the manner in which it was taken” – methodology and application issues under Rule 702 – “bear on the weight of the evidence, not its admissibility.”  Fortune Dynamic, 618 F.3d at 1038.

When the Vizcarra court concluded that the challenges to the reliability of the ice cream consumer survey it considered did not raise admissibility considerations, the court elevated archaic notions of the court’s role in screening survey evidence above Rule 702’s direction that all expert testimony is subject to judicial gatekeeping.2  Indeed, the Vizcarra court’s conclusion that objections to the reliability of opinion testimony about surveys go to the weight and not the admissibility of the evidence stands in sharp contrast to rulings from other federal courts that have excluded such expert testimony at the class certification stage for failure to meet Rule 702’s requirements.3  A rule of national application, like Rule 702, should not be applied with such dramatic inconsistency.

The Advisory Committee on Evidence Rules recently published a proposed amendment to Rule 702.  86 Fed. Reg. 41087, 41088 (July 30, 2021).  The proposed change would “clarify and emphasize” that the criteria set forth in Rule 702—including the expert’s factual basis, methodology, and application to the case circumstances—are “admissibility requirements” and that court decisions finding such issues to be “questions of weight and not admissibility” amount to “an incorrect application of Rules 702 and 104(a).”  Proposed Advisory Committee Note.  Enactment of this proposed amendment would provide guidance to courts that the permissive approach taken toward survey evidence in decisions such as Vizcarra is not consistent with the mandate of Rule 702.

The ability of plaintiffs to avoid gatekeeping scrutiny of consumer-survey evidence in some key jurisdictions, including the Ninth Circuit, has opened the door to class certification in lawsuits targeting food products.  One publication has described the Northern District of California as “a magnet for these cases” and dubbed it “the food court.”4  In light of some courts’ misunderstanding of the need to apply Rule 702 to expert testimony addressing surveys, producers and distributors of food products should engage in the ongoing discussion about adopting the proposed Rule 702 amendment.  As James Ford of GlaxoSmithKline recently wrote, “General Counsel and their legal teams can help ensure the reliability of scientific and other expert testimony admitted in federal court by filing a comment or testifying in support of a proposed amendment to Rule 702 of the Federal Rules of Evidence.”5  Interested parties have until February 16, 2022 to submit their views on the proposed amendment.


  1. In re Kind LLC ‘Healthy and All Natural’ Litig., 337 F.R.D. 581, 604 (S.D.N.Y. 2021).  See also American Honda Motor Co. v. Allen, 600 F.3d 813, 817 (7th Cir. 2010) (“by failing to clearly resolve the issue of [the expert testimony’s] admissibility before certifying the class, the district court erred.”).
  2. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999) (Rule 702 “in respect to all such matters [of expert testimony], establishes a standard or evidentiary reliability.”) (quotation omitted).
  3. See, e.g., Weaver v. Champion Petfoods USA Inc., No.18-CV-1996-JPS-JPS, 2019 WL 7370374, at*5 (E.D. Wisc. Dec. 31, 2019); Cotromano v. United Tech. Corp., No. 13-80928-Civ-Marra, 2018 WL 2047468, at *18 (S.D. Fla. May 2, 2018).
  4. Sascha Henry & Robert Guite, What’s Trending in Food and Beverage Class Actions? (Jan 23, 2020).
  5. James Ford, General Counsel Can Impact Rule 702 Amendment by Filing Comments and Testifying, WLF Counsel’s Advisory, Oct. 15, 2021.