Johnson & Johnson Consumer v. Noohi
Through its Neutrogena brand, Johnson and Johnson sells a variety of moisturizer products that it labels as “Oil-free.” On the advice of her doctor to steer clear of oil-containing products, Narguess Noohi bought one of the moisturizers labeled “oil-free.” She later learned, though, that the product contained three oils: ethylhexyl palmitate, soybean sterols, and dimethicone. Ms. Noohi then filed a class action lawsuit against Johnson and Johnson, alleging violations of California law.
In seeking class certification, Ms. Noohi relied on an expert report from an economist who explained that the damages suffered by class members, as reflected by a price premium, could be calculated on a classwide basis by utilizing multivariate statistics and qualitative and quantitative survey research. Johnson and Johnson urged the district court not to consider that report, arguing that the expert had not actually executed his statistical model and that his proposal was too preliminary. The district court disagreed, noting the reliability of the expert’s methodology and the relevance of his opinion to the question of whether damages could be established by a common methodology, and certified the class. The Ninth Circuit affirmed.
Johnson and Johnson petitioned the Supreme Court for review, asking the Court to address whether the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) applies to evidence submitted at the class-certification stage. Serving as co-counsel in the Supreme Court, we filed a brief in opposition. The brief explains that the case is not an appropriate vehicle to address the question posed in the petition because the lower courts applied the very rule that Johnson and Johnson urged them to apply. The brief also explains that the courts are in broad agreement that, at the class certification stage, they must scrutinize evidence to the extent that it goes to issues relevant to class certification. In addition, the brief notes that the lower courts’ conclusion that the expert report satisfied Daubert made the case a poor vehicle to address the question presented by the petition.