Michaels Stores, Inc. sells arts and crafts and home decor products on its website and in its stores. Plaintiff, Nea Vizcarra, purchased several items from Michaels.com on November 28, 2022.

Vizcarra said that in purchasing the discounted items, she understood that she was purchasing items that regularly (including before the advertised promotion) retailed at the published “regular” price, that this published price was the market value of the products she was buying, and that she was receiving the items at a comparatively reduced price that was not always available.

Vizcarra brought this action on behalf of a putative nationwide class of people who “purchased one or more Michaels Products advertised at a discount on Defendant’s website or instore,” as well as on behalf of a similar California subclass. Michaels has moved to dismiss the amended complaint.

Defendant filed two Daubert motions to exclude certain opinions of Plaintiffs’ two experts: Bruce G. Silverman and Colin B. Weir.

Advertising Expert Witness

Bruce G. Silverman is the owner and manager of Silverman Consulting LLC, an advertising and branding firm.

He has testified as an expert in federal courts in Arizona, California, Delaware, Florida, Illinois and Oregon, in state courts in California and Missouri, at arbitrations, and before the Copyright Royalty Judges of the Library of Congress.

Silverman served as EVP/Executive Creative Director at three of America’s largest advertising agencies (Ogilvy, Bozell and BBDO), as President/COO of two of the nation’s best independently-owned agencies (Asher/Gould and Wong Doody), and as President/CEO of the principal U.S. unit of the world’s largest media planning and buying shop (Initiative Worldwide).

Want to know more about the challenges Bruce Silverman has faced? Get the full details with our Challenge Study report.

Economics Expert Witness

Colin B. Weir is President at Economics and Technology, Inc., a research and consulting firm specializing in economics, statistics, regulation and public policy. He conducts economic, statistical, and regulatory research and analysis and often testifies as an expert witness before state and federal courts.

His experience includes work on a variety of issues, including: “calculating economic harm and damage, and analyzing liquidated damages provisions; lost profits; false claims; diminution in value; merger/antitrust analysis; Early Termination Fees (ETFs); Late Fees; determination of Federal Excise Tax burden; and development of macroeconomic analyses quantifying the economic impact of corporate actions upon the US economy and job markets.”

Want to know more about the challenges Colin B. Weir has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Opinions of Expert Bruce G. Silverman

Defendant asked the Court to exclude two sets of Silverman’s opinions: (1) opinions related to whether certain discounts are misleading to reasonable consumers (“Misleading to Consumers Opinions”), and (2) opinions related to whether Defendant’s Coupon Discount practice would be important to a reasonable consumer (“Michaels-Specific Opinions”).

Misleading to Consumers Opinions

Defendant argued that Silverman’s misleading to consumers opinions should be excluded because they opine on ultimate issues of law.

Since Silverman did not opine on any legal issues, the Court held that there is no reason to exclude his proffered testimony on those grounds.

Michaels-Specific Opinions

Defendant argued that Silverman’s Michaels-specific opinions should be excluded because they (1) exceeded the scope of Silverman’s expertise, (2) were not the product of any reliable principles and methods, and (3) invaded the province of the jury.

The Defendant specifically challenged whether Silverman’s advertising experience provides a sufficient foundation to offer opinions about Michaels, its customers, or the coupon discount at issue in the case, without having conducted consumer surveys. As an expert, Silverman is permitted to make certain factual assumptions in forming his opinions. Moreover, the Court is persuaded that Silverman’s opinions are adequately grounded in his extensive personal knowledge and experience. The Court also noted that the Defendant had not demonstrated how Silverman’s opinions would invade the province of the jury.

Opinions of Expert Colin B. Weir

In his report, Weir opined that it is possible to determine class-wide damages using three damages theories, one of which is a conjoint analysis. Weir “proposes to calculate Price Premium Damages using conjoint analysis (wherein consumers would receive the difference in value between what they paid and the value of what they received that is solely attributable to Defendant’s challenged conduct).”

The Defendant asked the Court to exclude Weir’s opinions that relied on his conjoint methodology on the grounds that they (1) are novel and unreliable, (2) ignore critical inputs, and (3) fail to properly account for supply-side factors.

The Court found that the Defendant had not established a basis for excluding Weir’s opinions at that stage of the proceedings. The Defendant’s challenges to Weir’s use of conjoint analysis went to the weight and credibility of his opinions, not their admissibility.

Held

The Court denied the Defendant’s motions to exclude certain opinions of Bruce Silverman and Colin Weir without prejudice.

Key Takeaway:

Silverman’s opinions are sufficiently grounded in his experience in the advertising industry, and he is permitted to rely on hypotheticals supported by evidence. Moreover, Silverman did not offer opinions on any legal issues. After all, an opinion is not objectionable merely because it embraces an ultimate issue.

Case Details:

Case Caption:	Vizcarra V. Michaels Stores, Inc.
Docket Number:	5:23cv468
Court Name:	United States District Court, California Northern
Order Date:	June 02, 2025

Category: Advertising Expert Witness

Advertising Expert Permitted to Testify on Impact of Coupon Discounts on Consumer Decision-Making

Advertising Expert Permitted to Testify on Impact of Coupon Discounts on Consumer Decision-Making