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Bates White’s expert opinion and testimony supported Dentsply’s successful challenge to a class certification motion

On July 24, 2017, the US District Court for the Eastern District of Pennsylvania denied plaintiff’s motion for class certification in the Center City Periodontists PC et al. v. Dentsply International Inc. matter. The court ruling followed a hearing in early 2016 in front of Judge Darnell Jones in which Bates White Partner Eric Gaier testified, on behalf of the defendant, Dentsply, on economic issues associated with class certification, including ascertainability of the class and reliability of class-wide damages methodology.

In 2012, Dentsply, a dental equipment maker and producer of consumer products such as implants, crowns, and bridges, was accused of “misleading” and “deceptive” labeling for certain Cavitron ultrasonic scalers, devices that dentists and hygienists use to clean teeth. The plaintiffs, a group of periodontists and dentists practicing in New Jersey and Pennsylvania who used Dentsply’s Cavitron scalers, claimed that the product breached express warranty claims because of the potential for bacterial formation in the scalers’ water lines.

The court denied certification on the basis of both rule 23(a) and rule 23(b). Among other things, the court determined that the common issues did not predominate and that the damages were not provable with common evidence, citing Dr. Gaier’s testimony for both points. The court also cited Dr. Gaier’s testimony in finding that the class was not ascertainable, noting that “Dr. Gaier’s expert opinion on this point is helpful.”

The court also denied the plaintiff’s Daubert motion to exclude Dr. Gaier’s testimony and granted the defendant’s Daubert motion to exclude the testimony of the plaintiff’s expert, Steven Hazel. In particular, the court found that Dr. Gaier was qualified to offer expert testimony in the matter and that his “opinions are reliable because they are supported by facts and do not venture into the realm of subjective belief or unsupported speculation.” The court excluded Mr. Hazel’s testimony for not distinguishing “between damages attributable to the specific breach alleged in this case or ‘something else.’”

In 2013, Dr. Gaier had also provided expert testimony on behalf of Dentsply at a bench trial in a similar case, Weinstat et al. v. Dentsply International Inc., in the Superior Court of California, County of San Francisco. Following the trial, the California Court dismissed plaintiffs’ claims in favor of Dentsply, finding that the plaintiffs were not misled by Dentsply in violation of California Unfair Competition Law and breach of express warranty.

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