Defense survey rebuttal expert
Expert class library · Consumer class actions · Defense side
Critiques plaintiff surveys for design flaws such as leading questions, missing controls, and unrepresentative samples. May run a competing survey to show the claim did not matter to buyers.
What this expert is retained to answer
- Is the rebuttal expert qualified to critique every part of the plaintiffs' survey, including the quantitative or econometric steps that turn survey answers into a price premium?
- Do the criticisms of the plaintiffs' survey, such as question wording, universe definition, or control design, go to admissibility or only to weight?
- Is a survey taken years after the relevant date still probative, and how should the delay affect the weight it receives?
- Does the defense competing survey test the same claims, purchasers, and marketplace conditions as the survey it rebuts?
Methods
- Survey design critique
- Control group testing
- Sample representativeness analysis
- Competing materiality survey
How the testimony is attacked
- Critique exceeds the expert's expertise. Plaintiffs argue a survey methodologist cannot attack the economic or quantitative output of a conjoint study. In Townsend v. Monster Beverage the court excluded the defense survey expert's two paragraphs calling the plaintiffs' conjoint price premium implausible because they rested on quantitative methods outside his expertise, while admitting his other survey design criticisms.
- No hands-on experience with the challenged method. Plaintiffs argue an expert who has never performed a conjoint analysis cannot opine on whether one is valid. In In re FCA US LLC the court excluded all of the defense economist's testimony on the propriety of the plaintiffs' conjoint analysis because he admitted he had no conjoint expertise, but allowed his own analysis of used vehicle prices.
- Survey design flaws in the rebuttal survey itself. Plaintiffs attack the defense survey on recall questions, cutoff dates, universe definition, marketplace realism, and test and control comparisons. Townsend held that such challenges to survey design and methodology go to weight, not admissibility.
- Survey taken long after the relevant date. Plaintiffs argue a defense survey is irrelevant because it was fielded years after the date that matters. In Bern Unlimited v. Burton the court refused to exclude the defendants' secondary meaning survey on that basis, holding that the delay goes to the strength of the evidence.
- Cumulative or derivative of another defense expert. Plaintiffs argue the survey rebuttal merely repeats the defense economist. Townsend rejected the argument because the two experts brought distinct expertise and objectives even where some criticisms overlapped.
What the public record shows
A deliberately narrow CourtListener search, survey AND "leading" AND control AND "consumer" AND (Daubert OR "Rule 702"), returned 85 opinions filed since 2015, as of October 2, 2026; broader searches return more. Three that show how courts handle this class of testimony:
| Outcome | Case | Court | Why |
|---|---|---|---|
| Limited | Townsend v. Monster Beverage Corp.303 F. Supp. 3d 1010 | C.D. Cal. 2018 | The court excluded the defense survey expert's opinion that the plaintiffs' conjoint price premium was implausible because it depended on quantitative methods outside his expertise, but admitted his remaining critiques and his own materiality surveys. |
| Limited | In re FCA US LLC382 F. Supp. 3d 687 | E.D. Mich. 2019 | At class certification the court barred the defense economist from criticizing the plaintiffs' conjoint survey and its foundations because he admitted he had no conjoint expertise, while allowing his separate analysis of used vehicle depreciation. |
| Admitted | Bern Unlimited, Inc. v. Burton Corp.95 F. Supp. 3d 184 | D. Mass. 2015 | The court refused to exclude the defendants' survey expert's secondary meaning survey as irrelevant for having been fielded years after the alleged infringement, holding that the timing goes to weight. |
Each case links to the free opinion text on CourtListener.
Under amended Rule 702
Since December 1, 2023, Rule 702 says expressly that the party offering an expert must show the court it is more likely than not that the testimony meets each requirement: that it rests on sufficient facts or data, uses reliable methods, and reflects a reliable application of those methods to the case. Questions about the basis of an opinion are no longer automatically matters of weight for the jury. For how the circuits have applied the amendment, see the Rule 702 tracker, which follows each court of appeals; for what that means for preparing or attacking this class of expert, see the guide on amended Rule 702.
Related classes
- Consumer perception survey expert
- Conjoint survey damages expert
- Trademark likelihood-of-confusion survey expert
Guides
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Last reviewed October 2, 2026. How this page is built: rulings are found by searching court opinions on CourtListener, and each one is read in the opinion before it is summarised here; outcomes are labelled by what the court did with the expert's testimony. No individual expert is named. This page summarises public decisions for orientation and is not legal advice; read the opinion before relying on any ruling.