Monday, June 29, 2020

Expert causation/falsity evidence is admissible in fake review case

Vitamins Online, Inc. v. Heartwise, Inc., 2020 WL 3452872, No. 2:13-cv-00982-DAK (D. Utah Jun. 24, 2020) 

Some pre-bench trial motions here in this Lanham Act false advertising case based on alleged manipulation of Amazon’s customer review system and misrepresentation of the content and characteristics of green coffee and garcinia cambogia products. I want to focus on motions to limit testimony about the reviews. 

VO’s expert Belch was assigned to study how consumers used online reviews for weight loss supplements on and whether such reviews were credible to them; and to provide an opinion about the power of “influencers” to create demand for products, whether Dr. Oz acted as an influencer concerning the products at issue in this case, and whether that affected demand. NatureWise argued that the study couldn’t show injury/causation; Belch didn’t test whether any consumers switched from VO’s products to NatureWise’s in reliance on any particular review at issue here.

The court declined to preclude Belch from offering an opinion on the cause of lost sales at trial. Belch concluded that, “[a]ssuming [Vitamins Online’s] claims are true, and based on [his] business and academic experience, [he] would opine that [NatureWise’s] practices are deceptive and injurious to Vitamins Online.” This could be evidence of causation; NatureWise’s arguments went to weight, not relevance or admissibility. 

NatureWise also sought to preclude Vitamins Online’s experts Noonan and McAuley from offering testimony at trial that reviews were literally false, arguing that their report stated no opinions as to the alleged falsity or truthfulness of any of NatureWise’s reviews. The report said:

It’s impossible for us to determine if a review is “fake” or not by using [our] method. In my opinion, it’s impossible for anyone to prove a review is “fake” just by looking at the review itself. [Our] algorithm is specifically looking for patterns in the data, which might indicate that the reviews are biased.

However, the report concludes that “the only logical explanation of the patterns we are seeing in the data is blatant review manipulation.” At trial, the experts would thus be precluded from opining on whether any single NatureWise review is literally false, but they would be permitted to discuss how they reached their conclusion— “a discussion which could very well implicate the doctrine of literal falsity.”

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