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.
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