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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-CV-0550
DISTRICT OF COLUMBIA, APPELLANT,
V.
FACEBOOK, INC., APPELLEE.
Appeal from the Superior Court of the District of Columbia (2018-CA-008715-B)
(Hon. Maurice A. Ross, Motions Judge)
(Argued January 30, 2025 Decided July 31, 2025)
Jeremy R. Girton, Assistant Attorney General, with whom Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Graham E. Phillips, Deputy Solicitor General, were on the briefs, for appellant.
Joshua S. Lipshutz, with whom Karin Portlock, of the bar of the State of New York, pro hac vice, by special leave of court, Helgi C. Walker, and Katherine Moran Meeks were on the brief, for appellee. Before the case was argued, this court granted the motion of Katherine Moran Meeks to withdraw as co-counsel of record.
Before MCLEESE, DEAHL, and SHANKER, Associate Judges.
SHANKER, Associate Judge: The District of Columbia’s Consumer Protection
Procedures Act (CPPA) protects consumers against false, deceptive, or unfair
business practices. For much of the CPPA’s history, claims under the statute had to 2
be based on intentional conduct. Those intentional CPPA claims often involved
intentional misrepresentations akin to common-law fraud. Nearly two decades ago,
we held that certain CPPA claims could be based on unintentional
misrepresentations. But we left one question open: must CPPA claims based on
unintentional misrepresentations be proved by clear and convincing evidence (like
common-law fraud and CPPA claims based on intentional misrepresentations) or by
a preponderance of the evidence? Today we hold that CPPA claims based on
unintentional misrepresentations need only be proved by a preponderance of the
evidence.
The CPPA claims in this case stem from the widely publicized Cambridge
Analytica data leak. In 2018, the Guardian newspaper exposed that the consulting
firm Cambridge Analytica had improperly purchased data that had been gleaned
from tens of millions of individuals with accounts on Facebook, Inc. After the news
broke, Facebook’s stock value plummeted, Facebook account holders deactivated or
deleted their Facebook accounts, and governmental bodies around the globe
launched investigations into Facebook’s conduct. The District of Columbia
launched one such investigation and brought an action against Facebook for
violating the CPPA. 3
In the District’s telling, Facebook violated the CPPA by unintentionally
misleading consumers about which of their data was accessible to third-party
applications through a Facebook user’s friends and about Facebook’s enforcement
capabilities for auditing third-party applications. The District also alleged that
Facebook made a material omission by failing to disclose to users that their data had
been obtained in violation of Facebook’s policies. Facebook moved for summary
judgment on the District’s claims. The trial court granted summary judgment for
Facebook after observing that the District had to prove its CPPA claims by clear and
convincing evidence. In light of our conclusion that CPPA claims based on
unintentional conduct may be proved by a preponderance of the evidence, we reverse
and remand for the trial court to consider whether summary judgment is appropriate
under the correct burden of proof.
Also at issue in this case is the trial court’s exclusion of the District’s sole
expert witness, Dr. Florian Schaub. The trial court held a hearing at which it
expressed criticism of Dr. Schaub’s analytical methods and analysis. The court
subsequently granted Facebook’s motion to exclude the testimony in its entirety,
referring perfunctorily to the reasons stated at the hearing and in Facebook’s motion.
The trial court’s written order makes meaningful appellate review challenging, and,
while the court’s statements at the hearing provide some insight into its views on
aspects of Dr. Schaub’s approach, we are unable on this record to discern the specific 4
concerns the court had under Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016)
(en banc), as to some of Dr. Schaub’s three methods of analysis. Accordingly, we
reverse the trial court’s order excluding the testimony in its entirety and remand for
further analysis and explanation.
I. Background
We begin with a background on the CPPA, followed by a brief overview of
Facebook’s privacy policies leading up to the Cambridge Analytica data leak. We
then describe the District’s CPPA claims and the relevant procedural background.
A. Legal Background
The CPPA protects consumers against false, deceptive, or unfair business
practices. Earth Island Inst. v. Coca-Cola Co., 321 A.3d 654, 663 (D.C. 2024). It
is a broad consumer protection statute, meant to “assure that a just mechanism exists
to remedy all improper trade practices.” D.C. Code § 28-3901(b)(1). It “establishes
an enforceable right to truthful information from merchants about consumer goods
and services,” and is to be “construed and applied liberally” to effectuate that
purpose. D.C. Code § 28-3901(c).
Under the CPPA, people and businesses are precluded from
“misrepresent[ing]” any “material fact which has a tendency to mislead.” D.C. Code 5
§ 28-3904(e). That prohibition extends beyond literal falsehoods and includes any
omissions, “innuendo[s],” or “ambiguit[ies]” that have a tendency to mislead
reasonable consumers. Id. § 28-3904(f-l). We consider an alleged violation of the
CPPA “in terms of how the practice would be viewed and understood by a
reasonable consumer.” Saucier v. Countrywide Home Loans, 64 A.3d 428, 442
(D.C. 2013) (quoting Pearson v. Chung, 961 A.2d 1067, 1075 (D.C. 2008)).
“Importantly, we have recognized that whether a trade practice is misleading under
the CPPA generally is a question of fact for the jury and not a question of law for
the court.” Ctr. for Inquiry Inc. v. Walmart, Inc., 283 A.3d 109, 120 (D.C. 2022)
(citation modified).
“With regard to the ‘tendency to mislead,’ a reasonable consumer generally
would not deem an accurate statement to be misleading, and hence, such statement
generally would not be actionable under § 28-3904(e) and (f).” Saucier, 64 A.3d at
442. But we have also recognized that prominent misleading claims are actionable
even when the small print tells the truth. Ctr. for Inquiry, 283 A.3d at 121 (“But, as
other courts have reasoned in applying the reasonable-consumer test, ‘the reasonable
consumer standard does not presume, at least as a matter of law, that reasonable
consumers will test prominent front-label claims by examining the fine print on the
back label.’” (quoting Bell v. Publix Super Mkts., Inc., 982 F.3d 468, 477 (7th Cir.
2020) (emphasis in Ctr. for Inquiry))). We also have held that the placement of a 6
product can be an actionable misrepresentation even when the product’s packaging
is accurate. Id. at 120-21 (“[W]e do not find it facially implausible that a reasonable
customer could believe, based on [a retailer’s] placement of homeopathic drug
products alongside FDA-approved over-the-counter drugs, that homeopathic
products are comparably efficacious.”).
B. Factual and Procedural Background
1. Overview
Facebook is a social media platform that allows individuals to share
information and connect with others online. Facebook users can display various
categories of information on their profiles (such as their relationship status and
religion) and can share posts and photographs on their timelines. To connect with
others, Facebook users can “friend” each other. Facebook’s privacy settings allowed
users to pick which categories of information would be shared with whom.
Generally, Facebook users could share information with three groups: the public
(anyone on the internet, with or without a Facebook account), their Facebook
friends, or nobody.
In 2007, Facebook launched a new category with which Facebook users could
share their information: third-party applications. With the adoption of Platform, 7
Facebook allowed third-party applications (for example, games like Scrabble or
travel apps like AirBnB) to integrate with Facebook. When third-party apps used
Graph Application Programming Interface Version 1 (Graph API), the apps could
access user data through a user’s friends, meaning that a user did not need to use a
certain app for that app to access her data, including up to everything that the user
shared with her friends.
An example illustrates this point. Suppose a Facebook user named Jane
decides to make some of her information on Facebook public (meaning that anyone
online, with or without a Facebook account, can view it) while choosing to make
other information available only to her Facebook friends. While Jane allows her
birthday and her hometown to be public, she restricts her religion, relationship status,
and photos to her Facebook friends. If Jane then accepts John’s friend request on
Facebook, John can see all of the information that Jane shares with her friends (her
religion, relationship status, and photos). If Jane herself uses a third-party
application that is linked to Facebook, the app will receive her information, just as
her Facebook friend John can see her information. But with the advent of Graph
API, perhaps unbeknownst to Jane, the same thing occurs when John uses an
application—the application receives all of the information that Jane shares with
John (Jane’s religion, relationship status, and photos)—even if Jane has never used
or even heard of the application that John uses. 8
This friend-sharing feature allowed applications to access exponentially more
user data than they otherwise could have. Continuing with our illustrative friend
John, if John has ten friends on Facebook, his decision to use a third-party
application allows the application to access the data of up to eleven users (John plus
his ten friends). But if John has 100 friends, or 1,000 friends, his decision to use a
third-party application allows the application to access the data of hundreds or
potentially thousands of Facebook users, all because John decided to use a third-
party application.
In November 2013, Aleksandr Kogan launched a personality quiz application
on Platform that used Graph API, meaning that it could access user data through
friend sharing. Dr. Kogan informed Facebook that he was collecting user data for
academic purposes and he agreed to Facebook’s policies for app developers,
including Facebook’s policy that he would “not sell user data.” Across Facebook,
hundreds of thousands of users installed Dr. Kogan’s personality quiz app, including
users in the District. Because Graph API allowed developers to access data about a
user’s friends, Dr. Kogan was able to collect data on 87 million people. That
included hundreds of thousands of people in the District who never themselves
downloaded Dr. Kogan’s application. 9
Dr. Kogan sold his data to Cambridge Analytica, in violation of Facebook’s
policies. Cambridge Analytica used the data to create political advertising on
Facebook, including during the 2016 presidential election. In December 2015, the
Guardian published an article revealing that Dr. Kogan may have passed data
obtained through his application to Cambridge Analytica. Facebook took steps to
have Cambridge Analytica delete the improperly obtained data, but those steps were
ultimately ineffective.
In March 2018, news broke that Cambridge Analytica had bought individual
user data from Dr. Kogan, had not deleted the data after the 2015 Guardian article
and request by Facebook, and had used the data for advertising during the 2016
presidential election. See Matthew Rosenberg et al., How Trump Consultants
Exploited the Facebook Data of Millions, N.Y. Times (Mar. 17, 2018). Facebook’s
stock value dropped, users deactivated or deleted their Facebook accounts, and
governmental entities launched investigations into Facebook’s conduct. In April
2018, Facebook began notifying users who were potentially affected by Dr. Kogan’s
unauthorized transfer of user data.
2. The District’s Claims
This case relates to the adequacy of Facebook’s privacy settings and
disclosures with respect to the “friend-sharing” feature described above. The 10
District alleges that Facebook violated the CPPA in three ways. First, the District
asserts that Facebook’s privacy settings misled users by appearing to allow users to
control what profile information was available to whom, when in fact Graph API’s
friend-sharing feature allowed third-party applications to access data through a
user’s friends. In the District’s view, Facebook’s Byzantine web of privacy settings
and disclosures unintentionally misled consumers in violation of the CPPA.
Second, the District claims that Facebook’s privacy disclosures
unintentionally misled consumers by giving the false impression that Facebook had
robust enforcement measures to audit third-party applications, when in reality it did
not. In arguing that Facebook violated the CPPA, the District contrasts language in
Facebook’s policies stating that Facebook “c[ould] audit” a third-party application
to “ensure [the] application is safe for users” with Facebook’s alleged failure to
conduct any meaningful oversight of third-party applications, including
Dr. Kogan’s.
Third, the District claims that Facebook made a material omission by
belatedly disclosing that users’ data was sold to Cambridge Analytica in violation of
Facebook’s policies. In the District’s view, the failure to disclose that data had been
sold (until three years after Facebook knew of the sale) gave users the false 11
impression that their data was safer than it was. As with the other two claims, the
District alleges that this CPPA violation was unintentional.
3. Summary Judgment
Facebook moved for summary judgment on the District’s claims. It argued
that the District had failed to show by clear and convincing evidence that Facebook
made any misleading representations, omissions, or ambiguous statements, or that
any of the alleged statements or omissions were material. The District opposed
Facebook’s motion, arguing that it needed to prove its claims by only a
preponderance of the evidence (not clear and convincing evidence) and that whether
Facebook’s statements were misleading was a question for the jury.
The trial court granted Facebook’s motion for summary judgment. It
concluded that the proper evidentiary standard for the District’s CPPA claims was
clear and convincing evidence. The court then explained that because “Facebook
clearly disclosed all relevant terms in its policies,” a “reasonable consumer could not
have been misled as a matter of law.” In short, because Facebook made accurate
disclosures about friend sharing, no reasonable consumer could have been misled.
As to Facebook’s enforcement capabilities, the court explained that because
Facebook “never guaranteed how it would proceed in an enforcement investigation,”
its accurate disclosures about how it could proceed could not as a matter of law have 12
misled users. Finally, the court concluded that Facebook had no duty to disclose the
Cambridge Analytica data leak, such that its omissions did not constitute
misrepresentations.
The trial court did “not reach the materiality element [of the CPPA] because
a reasonable consumer could not have been misled, materially or not, [by] the
accurate disclosures by Facebook.”
4. Exclusion of Expert Report
Facebook had also moved to exclude the testimony of Dr. Schaub, the
District’s privacy expert. Dr. Schaub had applied three methods to determine
whether Facebook’s privacy disclosures adequately informed reasonable users.
First, Dr. Schaub conducted a “content analysis”: he analyzed “the content of written
or visual materials,” including Facebook’s relevant disclosures in policy documents,
to determine, based on his expertise and experience, whether those disclosures
adequately informed a reasonable user of Facebook’s friend-sharing feature.
Second, using a computer program, Dr. Schaub assessed the “readability” of
Facebook’s disclosures to determine what reading skill level was required to
comprehend those policies. Third, Dr. Schaub employed a “mental models”
approach, which used the “form of disclosures” and a user’s “experience” to reach 13
“conclusions about the effect of Facebook’s relevant disclosures and user experience
elements.”
Facebook challenged Dr. Schaub’s methods and the facts and data he relied
on and characterized his report as speculative. After the District opposed
Facebook’s motion, defending Dr. Schaub’s report, the trial court held a hearing on
whether his testimony should be admitted. At the hearing, the discussion revolved
around whether Dr. Schaub’s opinion was the product of reliable principles and
methods, with the trial court expressing deep skepticism of Dr. Schaub’s methods
and analysis, primarily with respect to content analysis. The court explained that it
“fe[lt] like this is a guy who didn’t employ . . . a scientific method [and to] the extent
he deployed one, it was inconsistent with how he normally does it, how it’s applied
in the field.”
As to Dr. Schaub’s content analysis specifically, the trial court opined that it
was “a lot of mumbo jumbo,” because Dr. Schaub was merely “reviewing the
document,” and that instead of a reliable principle and method, the content analysis
was “no more than [Dr. Schaub’s] musings.” The trial court noted that “even with
the readability analysis,” the court was skeptical of Dr. Schaub’s method because it
was “supposed to be reliable,” but the court also expressed confusion and doubt
about Facebook’s challenge to the readability analysis. And as to Dr. Schaub’s 14
mental models analysis, the court stated that, along with the content analysis, it
seemed “really subjective” and was “really just [Dr. Schaub’s] musings.”
A week after the hearing, the trial court granted Facebook’s motion to exclude
Dr. Schaub’s testimony in an order, stating that it was doing so “for the reasons
stated in the opposition and in open [c]ourt” at the hearing.
II. Analysis
The District challenges the grant of summary judgment for Facebook and the
exclusion of its expert witness.
A. Summary Judgment
The District argues that the trial court erred in granting summary judgment
for Facebook. The District first contends that the trial court applied the wrong
standard to its CPPA claims of unintentional misrepresentation because, in its view,
it needed to prove those claims by only a preponderance of the evidence, as opposed
to clear and convincing evidence. Further, the District argues that summary
judgment was improper because genuine issues of material fact exist with respect to
whether Facebook violated the CPPA in the three ways alleged by the District. 15
We agree with the District’s first argument and therefore reverse and remand
for reconsideration of the summary judgment motion, without reaching the District’s
second argument.
1. Standard of Review
“We review a grant of summary judgment de novo and apply the same
standard used by the trial court.” Nixon v. Ippolito, 320 A.3d 1059, 1064 (D.C.
2024). Under this standard, the moving party has the burden of demonstrating that
there is no genuine issue of material fact, after the evidence and all inferences from
the evidence are drawn in favor of the non-moving party. Id. Our role is not to
resolve factual issues as factfinder, “but rather to review the record to determine if
there is a genuine issue of material fact on which a jury could find for the non-
moving party.” Id. (quoting Mancuso v. Chapel Valley Landscape Co., 318 A.3d
547, 553 (D.C. 2024)).
2. Discussion
In Osbourne v. Capital City Mortg. Corp., 727 A.2d 322, 325-36 (D.C. 1999),
we held that “the clear and convincing evidence standard applies to claims of
intentional misrepresentation under the CPPA.” At the time, it was assumed that
alleged misrepresentations under the CPPA had to be intentional. See Caulfield v. 16
Stark, 893 A.2d 970, 976-77 (D.C. 2006) (explaining that whether “unintentional
misrepresentation[s]” are actionable “under the CPPA is still an open question”).
Our decision in Osbourne to apply the clear-and-convincing standard to CPPA
claims involving intentional misrepresentations was premised on the principle that
“no statute is to be construed as altering the common law,” and the common law
required clear and convincing evidence for claims of intentional misrepresentation.
727 A.2d at 325 (citation modified).
Nearly a decade after we decided Osbourne, we concluded that, in light of the
plain language and the legislative intent of the CPPA, a consumer need not allege an
intentional misrepresentation of a material fact or an intentional failure to disclose a
material fact under certain provisions of the CPPA—D.C. Code § 28-3904(e) and
(f). Fort Lincoln Civic Ass’n, Inc. v. Fort Lincoln New Town Corp., 944 A.2d 1055,
1073 (D.C. 2008); see Frankeny v. District Hosp. Partners, LP, 225 A.3d 999, 1002
(D.C. 2020) (“Under D.C. Code § 28-3904(e) and (f), a plaintiff-consumer ‘need not
allege or prove intentional misrepresentation or failure to disclose to prevail on a
claimed violation of’ the CPPA.” (quoting Fort Lincoln, 944 A.2d at 1073)). That
is, Fort Lincoln allowed some CPPA claims to be based on unintentional
misrepresentations. But in Fort Lincoln, we did not address the burden of proof
applicable to CPPA claims based on unintentional misrepresentations. 17
In Frankeny, we observed that the “burden of proof for CPPA claims is clear
and convincing evidence.” 225 A.3d at 1005 (citing Pearson, 961 A.2d at 1073).
Frankeny, moreover, was a case involving unintentional misrepresentations under
the CPPA. Id. at 1008. Accordingly, Frankeny could be read as holding that the
burden of proof for claims of unintentional misrepresentations under the CPPA also
is clear and convincing evidence.
We conclude, however, that Frankeny did not decide the burden of proof
applicable to claims of unintentional misrepresentations under the CPPA and is not
binding on the question. Pearson, the case Frankeny cited, was an intentional
misrepresentation case. 961 A.2d at 1074-75. Frankeny included no discussion of
the differences between intentional and unintentional misrepresentations and the
reasoning behind application of a clear and convincing burden for both types of
misrepresentations. And our review of the briefing in the case reveals that neither
party raised the issue. “Questions which merely lurk in the record, neither brought
to the attention of the court nor ruled upon, are not to be considered as having been
so decided as to constitute precedents.” Murphy v. McCloud, 650 A.2d 202, 205
(D.C. 1994) (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)). “A point of law
merely assumed in an opinion, not discussed, is not authoritative.” Id. (quoting In
re Stegall, 865 F.2d 140, 142 (7th Cir. 1989)). 18
Accordingly, we turn to the question of the appropriate burden of proof for
claims of unintentional misrepresentations under the CPPA. And we conclude that
CPPA claims based on unintentional misrepresentations need only be proved by a
preponderance of the evidence, as opposed to clear and convincing evidence. “In
civil litigation, a party with the burden of persuasion on an issue must ordinarily
establish the relevant facts by a preponderance of the evidence” and exceptions “to
this standard are uncommon.” Raphael v. Okyiri, 740 A.2d 935, 957 (D.C. 1999)
(citation modified). 1 One of those exceptions is common-law fraud, as we
acknowledged in Osbourne. 727 A.2d at 325 (explaining that a “common law
claim” for intentional misrepresentations must be proved by clear and convincing
evidence). But claims based on unintentional misrepresentations are, by definition,
not subject to the intentional misrepresentation exception to the general rule that
civil litigants may prove their claims by a preponderance of the evidence.
Accordingly, such claims need only be proved by a preponderance of the evidence. 2
1 “The phrases ‘burden of proof’ and ‘burden of persuasion’ have been interpreted generally to have the same meaning.” In re Bedi, 917 A.2d 659, 666 n.10 (D.C. 2007). 2 We are not alone in this conclusion. At least one state allows unintentional misrepresentation claims (under that state’s Franchise Investment Protection Act) to “be evaluated under a preponderance of the evidence standard as opposed to the more stringent clear, cogent, and convincing evidence standard required for proof of common law fraud.” Kirkham v. Smith, 23 P.3d 10, 13 (Wash. Ct. App. 2001). 19
Because the District’s CPPA claims against Facebook are based on
unintentional misrepresentations, the District may prove its claims by a
preponderance of the evidence. The trial court’s conclusion on summary judgment
that a higher burden—clear and convincing evidence—applied was therefore
erroneous, and it is not clear to us whether the trial court would have reached the
same conclusion on summary judgment had it held the District to a preponderance
standard. “Mindful that we are a court of review, not of first view,” Johnson v.
United States, 302 A.3d 499, 501 (D.C. 2023) (citation modified), we conclude that
a remand is warranted for the trial court to apply the preponderance standard in the
first instance. See also Bailey v. United States, 251 A.3d 724, 730 (D.C. 2021) (per
curiam) (Where the trial court’s “articulations are in serious tension with a
preponderance standard, . . . that is enough to justify a remand for the trial court to
clarify its ruling now that we have made the appropriate standard clear.”).
B. Expert Testimony
The District argues that the trial court abused its discretion in excluding
Dr. Schaub’s testimony because the court failed to provide sufficient reasoning for
its decision and because the testimony is admissible under Motorola Inc. v. Murray,
147 A.3d 751 (D.C. 2016) (en banc). Facebook counters by pointing to the trial 20
court’s comments in the hearing to argue that the court properly exercised its
discretion in deeming Dr. Schaub’s methods unreliable.
We review a trial court’s decision excluding expert testimony for abuse of
discretion, affording the trial court a great degree of deference. Faltz v. United
States, 318 A.3d 338, 347 (D.C. 2024). “In reviewing for abuse of discretion, we
must determine whether the decision maker failed to consider a relevant factor,
whether the decision maker relied upon an improper factor, and whether the reasons
given reasonably support the conclusion.” Bishop v. United States, 310 A.3d 629,
641 (D.C. 2024) (citation modified).
In deciding the admissibility of expert testimony, the trial court must consider
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 21
(d) the expert has reliably applied the principles and methods to the facts of the case.
Faltz, 318 A.3d at 348 (quoting Motorola, 147 A.3d at 756); see Fed. R. Evid. 702.
“Motorola states that Rule 702 expressly requires the trial court to determine
whether an expert reliably applied principles and methods to the case at hand.”
Faltz, 318 A.3d at 348 (citation modified). “The Rule . . . elevates the trial judge’s
role as gatekeeper; it essentially provides that when a party proffers expert scientific
testimony, the trial court must make a preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid.” Lewis
v. United States, 263 A.3d 1049, 1059 (D.C. 2021) (internal quotation marks
omitted). When a trial court does not substantively address the admissibility of an
expert witness by applying Rule 702 or Motorola, “a remand for further analysis as
required under Motorola is necessary.” Faltz, 318 A.3d at 348.
The trial court’s written order, referring only to the reasons “stated in the
opposition and in open [c]ourt” at the hearing, complicates meaningful appellate
review. 3 It places the burden on this court to parse the trial court’s statements at the
hearing to determine whether the court conducted a proper Motorola analysis and
3 The District suggests that the trial court’s reference to “the opposition” makes little sense because “the District’s opposition to [Facebook’s motion to exclude] cannot provide an explanation for why the court granted” Facebook’s motion. We construe the trial court’s statement as referring to Facebook’s motion, which was in opposition to the admission of Dr. Schaub’s testimony. 22
what deficiencies the trial court found with respect to each of Dr. Schaub’s methods.
See, e.g., Ealey v. Ealey, 596 A.2d 43, 46 (D.C. 1991) (“A trial judge must make
findings of fact and conclusions of law with respect to every material issue that is
raised; otherwise meaningful appellate review cannot occur and this court must
remand the case or the record.”). Cf. Faltz, 318 A.3d at 348 (explaining that a
conclusory statement in ruling excluding expert witness required remand for further
analysis as required under Motorola).
To be sure, the trial court’s statements at the hearing allow us to glean the
court’s thinking to some extent. For the most part, however, the trial court’s
comments reflect general doubt that Dr. Schaub applied the scientific method when
conducting content analysis. The court made limited comments about the mental
models approach, but it appeared to group it with the content analysis, saying that it
is “really subjective,” “just his musings,” and “his analysis call[ed] something else.”
The hearing transcript reveals little discussion of the readability analysis.
Although the trial court remarked that the readability analysis is “supposed to be
reliable” and “they never did a quality assessment,” it subsequently expressed
confusion, if not skepticism, about Facebook’s complaint about the analysis and then
moved on without stating why Dr. Schaub’s readability analysis did not pass muster.
Thus, it appears that the trial court did not engage in any meaningful Motorola 23
analysis with respect to at least the readability analysis and possibly the mental
models approach and may instead have been “throwing out the good with the bad.”
Bricklayers & Trowel Trades Int’l Pension Fund v. Credit Suisse Sec. (USA) LLC,
752 F.3d 82, 96 (1st Cir. 2014).
Ultimately, we do not say whether Dr. Schaub’s testimony is admissible in its
entirety, but we can say that the record does not support the conclusion that the
testimony is inadmissible in its entirety. Cf. City of Tuscaloosa v. Harcros Chems.,
Inc., 158 F.3d 548, 564 (11th Cir. 1998) (Although some grounds cited by trial court
were sufficient to warrant the exclusion of parts of an expert’s testimony, “none of
these grounds is sufficient to warrant the exclusion of [the] testimony in its entirety
(as would, for instance, a finding that [the expert] was not qualified to testify as an
expert in [the relevant field]).”). Accordingly, we reverse the trial court’s order
excluding Dr. Schaub’s testimony in its entirety and remand for further analysis and
explanation.
III. Conclusion
For the foregoing reasons, we reverse and remand for further proceedings
consistent with this opinion.
So ordered.