Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 1 of 7
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
In r e : Dial Complete Marketing Case N o . 11-md-2263-SM and Sales Practices Litigation ALL CASES Opinion N o . 2013 DNH 176
O R D E R
In this consolidated, multi-district litigation, plaintiffs
move for class certification, doc. n o . 5 7 , relying on the report
of an expert to demonstrate common questions of fact. See
generally Fed. R. Civ. P. 23(a)(2). Defendant Dial Corporation
(“Dial”) moves to exclude the opinions of plaintiffs’ expert from
the court’s consideration on grounds that her proffered opinions
cannot meet the requirements of Daubert v . Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993). See doc. n o . 8 5 . Plaintiffs object.
On November 2 0 , 2013, the court held a hearing on Dial’s motion.
Discussion
Plaintiffs claim that Dial’s marketing of Dial Complete, an
anti-bacterial soap, employs numerous express and implicit
misleading and deceptive claims, including that Dial Complete
“kills 99.99% of germs,” that it offers superior germ kill, and
that it “will protect you from germ-caused illness better than
other soaps.” P l . Br., doc. n o . 57-1, at 4-5. Accordingly,
under plaintiffs’ theory of the case, the central factual (and
scientific) question “is whether Dial’s express and implied Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 2 of 7
claims regarding the superior effectiveness of Dial Complete at
killing germs to reduce disease are true or false.” P l . Br.,
doc. n o . 1 2 0 , at 1 5 .
In support of their motion for class certification,
plaintiffs submitted the opinions of an expert, D r . Allison E .
Aiello. D r . Aiello first opines that the central scientific
question may be answered through “common evidence.” She then
offers her answer to the central question, concluding that
“[b]ased on my preliminary review of this common evidence, it is
my opinion that Dial’s claims about Dial Complete are false,
deceptive, and/or misleading because . . . [t]riclosan,” the
active ingredient in Dial Complete, “is not effective for many of
key pathogens that cause illness in household settings, including
a range of viruses”; “consumers often are unable to distinguish
between a virus and bacteria as causes of illness and buy these
products not realizing that these soaps will not provide
protection for common infections”; “[h]and soaps with triclosan
have been shown to be no better than plain soap in . . .
studies”; “Dial’s representations about Dial Complete’s claimed
efficacy as a hand soap for killing (biocidally) a wide range of
microorganisms or reductions in infectious illnesses are not
supported by any existing published peer reviewed papers”; and
“Dial’s internal studies . . . used improper comparison products,
overly long and complicated hand washes, and lack the proper
2 Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 3 of 7
endpoints for assessing Dial Complete’s efficacy in the household
setting for the important microorganisms that are responsible for
disease in the household and for reducing infectious illnesses.”
Aiello Decl., doc. n o . 6 2 , at 25-26.
Dial seeks to exclude all of D r . Aiello’s opinions on
various grounds under Federal Rule of Evidence 702 and Daubert v .
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Under Rule 7 0 2 ,
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if . . . (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 upon sufficient facts or data, (c) the testimony is the product of reliable principles and methods, and (d) the witness has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. In determining the admissibility of expert
opinion evidence under Rule 7 0 2 , the court acts as a gatekeeper,
ensuring that the expert is qualified to offer the opinion; that
her testimony “rests on a reliable foundation”; and that it is
“relevant to the task at hand.” Daubert, 509 U.S. at 597.
“Although the proponent of an expert witness bears the burden of
proving the admissibility of his opinion, see Daubert, 509 U.S.
at 5 9 2 , the burden is not especially onerous, because ‘Rule 702
has been interpreted liberally in favor of the admission of
expert testimony.’” Lacaillade v . Loignon Champ-Carr, Inc., 2011
3 Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 4 of 7
WL 6001792, at *1 (D.N.H. Nov. 3 0 , 2011) (quoting Levin v . Dalva
Bros., Inc., 459 F.3d 6 8 , 78 (1st Cir. 2006)).
Dial objects to D r . Aiello’s first opinion – that the
central science question can be answered through common proof –
on grounds that D r . Aiello is not qualified to offer i t .
Specifically, Dial argues that D r . Aiello “is not an expert in
what proof is required at the class certification stage.” Def.
Br., doc. n o . 1 3 7 , at 2. 1 Dial’s characterization of D r .
Aiello’s opinion a s , essentially, a legal expert’s opinion is
misplaced. There can be no doubt that D r . Aiello is eminently
qualified, by both education and experience, as an
epidemiologist. She is also qualified to offer reliable opinion
testimony as to whether the central scientific question, as
framed by plaintiffs’ theory of the case, may be answered through
the evaluation of evidence that is broader than, and not tied t o ,
the specific circumstances of any particular individual. Her
opinion evidence is plainly relevant and admissible.
1 If “‘the same evidence will suffice’” to answer a question for each class member, then the question is said to be “common” to the class for purposes of Rule 2 3 . Newberg on Class Actions, § 4:50 (5th ed. Dec. 2013) (quoting Blades v . Monsanto, Co., 400 F.3d 5 6 2 , 566 (8th Cir. 2005)). See also Wal-mart Stores, Inc. v . Dukes, __ U.S. __, 131 S . C t . 2541, 2551 (2011) (“What matters . . . is not the raising of common questions – even in droves – but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”) (emphasis in original) (internal quotation marks omitted). 4 Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 5 of 7
With regard to D r . Aiello’s remaining opinions, the court
finds that they also are sufficiently reliable and relevant. Her
opinions are based on accepted epidemiological principles and
methods and on sufficient data and facts (as listed in D r .
Aiello’s Declaration and as set forth in her hearing testimony).
Moreover, D r . Aiello’s opinions and testimony are “sufficiently
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Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 1 of 7
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
In r e : Dial Complete Marketing Case N o . 11-md-2263-SM and Sales Practices Litigation ALL CASES Opinion N o . 2013 DNH 176
O R D E R
In this consolidated, multi-district litigation, plaintiffs
move for class certification, doc. n o . 5 7 , relying on the report
of an expert to demonstrate common questions of fact. See
generally Fed. R. Civ. P. 23(a)(2). Defendant Dial Corporation
(“Dial”) moves to exclude the opinions of plaintiffs’ expert from
the court’s consideration on grounds that her proffered opinions
cannot meet the requirements of Daubert v . Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993). See doc. n o . 8 5 . Plaintiffs object.
On November 2 0 , 2013, the court held a hearing on Dial’s motion.
Discussion
Plaintiffs claim that Dial’s marketing of Dial Complete, an
anti-bacterial soap, employs numerous express and implicit
misleading and deceptive claims, including that Dial Complete
“kills 99.99% of germs,” that it offers superior germ kill, and
that it “will protect you from germ-caused illness better than
other soaps.” P l . Br., doc. n o . 57-1, at 4-5. Accordingly,
under plaintiffs’ theory of the case, the central factual (and
scientific) question “is whether Dial’s express and implied Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 2 of 7
claims regarding the superior effectiveness of Dial Complete at
killing germs to reduce disease are true or false.” P l . Br.,
doc. n o . 1 2 0 , at 1 5 .
In support of their motion for class certification,
plaintiffs submitted the opinions of an expert, D r . Allison E .
Aiello. D r . Aiello first opines that the central scientific
question may be answered through “common evidence.” She then
offers her answer to the central question, concluding that
“[b]ased on my preliminary review of this common evidence, it is
my opinion that Dial’s claims about Dial Complete are false,
deceptive, and/or misleading because . . . [t]riclosan,” the
active ingredient in Dial Complete, “is not effective for many of
key pathogens that cause illness in household settings, including
a range of viruses”; “consumers often are unable to distinguish
between a virus and bacteria as causes of illness and buy these
products not realizing that these soaps will not provide
protection for common infections”; “[h]and soaps with triclosan
have been shown to be no better than plain soap in . . .
studies”; “Dial’s representations about Dial Complete’s claimed
efficacy as a hand soap for killing (biocidally) a wide range of
microorganisms or reductions in infectious illnesses are not
supported by any existing published peer reviewed papers”; and
“Dial’s internal studies . . . used improper comparison products,
overly long and complicated hand washes, and lack the proper
2 Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 3 of 7
endpoints for assessing Dial Complete’s efficacy in the household
setting for the important microorganisms that are responsible for
disease in the household and for reducing infectious illnesses.”
Aiello Decl., doc. n o . 6 2 , at 25-26.
Dial seeks to exclude all of D r . Aiello’s opinions on
various grounds under Federal Rule of Evidence 702 and Daubert v .
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Under Rule 7 0 2 ,
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if . . . (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 upon sufficient facts or data, (c) the testimony is the product of reliable principles and methods, and (d) the witness has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. In determining the admissibility of expert
opinion evidence under Rule 7 0 2 , the court acts as a gatekeeper,
ensuring that the expert is qualified to offer the opinion; that
her testimony “rests on a reliable foundation”; and that it is
“relevant to the task at hand.” Daubert, 509 U.S. at 597.
“Although the proponent of an expert witness bears the burden of
proving the admissibility of his opinion, see Daubert, 509 U.S.
at 5 9 2 , the burden is not especially onerous, because ‘Rule 702
has been interpreted liberally in favor of the admission of
expert testimony.’” Lacaillade v . Loignon Champ-Carr, Inc., 2011
3 Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 4 of 7
WL 6001792, at *1 (D.N.H. Nov. 3 0 , 2011) (quoting Levin v . Dalva
Bros., Inc., 459 F.3d 6 8 , 78 (1st Cir. 2006)).
Dial objects to D r . Aiello’s first opinion – that the
central science question can be answered through common proof –
on grounds that D r . Aiello is not qualified to offer i t .
Specifically, Dial argues that D r . Aiello “is not an expert in
what proof is required at the class certification stage.” Def.
Br., doc. n o . 1 3 7 , at 2. 1 Dial’s characterization of D r .
Aiello’s opinion a s , essentially, a legal expert’s opinion is
misplaced. There can be no doubt that D r . Aiello is eminently
qualified, by both education and experience, as an
epidemiologist. She is also qualified to offer reliable opinion
testimony as to whether the central scientific question, as
framed by plaintiffs’ theory of the case, may be answered through
the evaluation of evidence that is broader than, and not tied t o ,
the specific circumstances of any particular individual. Her
opinion evidence is plainly relevant and admissible.
1 If “‘the same evidence will suffice’” to answer a question for each class member, then the question is said to be “common” to the class for purposes of Rule 2 3 . Newberg on Class Actions, § 4:50 (5th ed. Dec. 2013) (quoting Blades v . Monsanto, Co., 400 F.3d 5 6 2 , 566 (8th Cir. 2005)). See also Wal-mart Stores, Inc. v . Dukes, __ U.S. __, 131 S . C t . 2541, 2551 (2011) (“What matters . . . is not the raising of common questions – even in droves – but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”) (emphasis in original) (internal quotation marks omitted). 4 Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 5 of 7
With regard to D r . Aiello’s remaining opinions, the court
finds that they also are sufficiently reliable and relevant. Her
opinions are based on accepted epidemiological principles and
methods and on sufficient data and facts (as listed in D r .
Aiello’s Declaration and as set forth in her hearing testimony).
Moreover, D r . Aiello’s opinions and testimony are “sufficiently
tied to the facts of the case.” Daubert, 509 U.S. at 591
(internal quotation marks omitted).
At the hearing, D r . Aiello rationally explained why she
believes studies of triclosan-containing soaps yield relevant
information about the efficacy of Dial Complete, despite the fact
that those studies did not test Dial Complete. To the extent
Dial takes issue with the limitations of those studies, it takes
issue with the evidentiary weight of the conclusions, or
inferences, D r . Aiello draws from them. See Reichhold, Inc. v .
U.S. Metals Refining Co., 2007 WL 674686, at *13 (D.N.J. Feb. 2 8 ,
2007) (“[T]he fact that [plaintiff’s expert] did not rely on soil
sampling data does not automatically result in the exclusion of
his expert report. . . . The weight of this opinion may be
challenged at trial, but it is reliable and will not be
excluded.”). In any event, D r . Aiello further testified that she
did, in fact, review a study that was conducted using Dial
Complete in a daycare setting, and that the study’s findings
support her conclusions.
5 Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 6 of 7
Dial’s challenge to Dr. Aiello’s purported failure to
consider Dial’s internal reports is also rejected. Dr. Aiello
testified that she reviewed and considered the reports. The
extent to which Dr. Aiello rejected those reports as unreliable
or irrelevant to the question of health outcomes may, perhaps,
reflect upon the weight properly given to her conclusions by a
fact-finder, but does not render her methods anything close to
the “junk science” sought to be avoided by the Daubert decision,
nor does it render her opinions irrelevant to the facts of this
case. Moreover, in light of Dr. Aiello’s hearing testimony
regarding her experience in consumer hand hygiene behaviors and
perceptions, Dr. Aiello is qualified to offer opinion evidence
about what consumers likely believe the word “germ” means.
For these reasons, Dr. Aiello’s expert opinion evidence is
admissible under Rule of Evidence 702. Dial’s Motion to Exclude,
doc. no. 85, is necessarily denied.
SO ORDERED.
^ ^ t ^ / ^ ^ ^ ^ S ___ ven ____ McAuliffe A United States District Judge
December 20, 2013
6 Case 1:11-md-02263-SM Document 155 Filed 12/20/13 Page 7 of 7
cc: Richard J. Arsenault, Esq. Daniel E . Becnel, Jr., Esq. Robert M . Becnel, Esq. Karl A . Bekeny, Esq. Paul E . Benson, Esq. Amy Bloom, Esq. Jordan L . Chaikin, Esq. Elizabeth M . Chiarello, Esq. Salvadore Christina, Jr., Esq. John R. Climaco, Esq. Randall S . Crompton, Esq. Stuart A . Davidson, Esq. Mark J. Dearman, Esq. Douglas P. Dehler, Esq. Christopher M . Ellis, Esq. John E . Galvin, I I I , Esq. Jonathan H . Garside, Esq. Mark J. Geragos, Esq. Jayne A . Goldstein, Esq. Eric D. Holland, Esq. D. Scott Kalish, Esq. Lucy J. Karl, Esq. Shelley Kaufman, Esq. Sean T . Keith, Esq. Adam J. Levitt, Esq. Patricia E . Lowry, Esq. Thomas D. Mauriello, Esq. Robert H . Miller, Esq. Matthew B . Moreland, Esq. Cullen A . O’Brien, Esq. Edward K. O’Brien, Esq. John A . Peca, Jr., Esq. Chad W . Pekron, Esq. Frank E . Piscitelli, Jr., Esq. David C . Rash, Esq. Richard D. Raskin, Esq. Allison W . Reimann, Esq. Fred R. Rosenthal, Esq. Charles E . Schaffer, Esq. Jeffrey M . Schieber, Esq. Miriam L . Schimmel, Esq. Gerard B . Schneller, Esq. Eugene A . Schoon, Esq. James C . Shah, Esq. Joseph J. Siprut, Esq. Andrew J. Sokolowski, Esq. Steve J. Stolze, Esq. Reginald Von Terrell, Esq. John C . Theisen, Esq. Robert C . Tucker, Esq. John M . Turner, Esq. Patrick G. Warner, Esq. Robert R. Younger, Esq.