My expertise is in relation to edible oil quality and characteristics.
As this specialty is somewhat unique. I have been invited to provide expert advice on various cases relating to oilseeds, oilseed meals and olive oil. These cases include stock-feed, quality of oil products and more often, cases regarding adulteration or fraud in the marketing of olive oil. I have listed here cases in which I have provided a written testimony, or in some cases, a deposition.
Actual Case Examples
Kumar VS Safeway – Superior Court of California, County of Alameda
Defendant's arguments regarding the lack of commonality between putative members of the EVOOClass revolve primarily around its attacks on the admissibility of the Mailer declaration. In support of its separate motion to strike, Defendant submitted select transcript excerpts from the Mailer deposition, and Plaintiff submitted further transcript excerpts from the Mailer deposition with it opposition to that motion. The court has carefully reviewed all of the evidence submitted.Plaintiffs theory of liability is that Defendant's policies and procedures are ineffective to ensure that the oil it represents as "extra virgin" is truly "extra virgin," and she expressly concedes that not every bottle that is labeled EVOO fails to live up to the extra virgin standard. Mailer's conclusions and opinions were framed in support of this theory. He expressed his conclusions based on his review of the results of several tests which indicated that samples of Defendant's EVOO repeatedly contained defects that prevent them from being properly classified as "extra virgin," he opined that Defendant does not take adequate steps in the procurement process to make sure that its EVOO actually contains extra virgin Order olive oil, and he opined that Defendant lacks sufficient procedures to ensure that its EVOO does not degrade into inferior olive oil after bottling. To be sure, the declarations of Defendant's suppliers and its expert are to the contrary, but that does not matter in this context. The validity and evidentiary weight of Mailer's conclusions and opinions are clearly in the realm of merit determinations that are unnecessary and inappropriate at the class certification stage. (Linder, at 441.)The court agrees with Plaintiff that Defendant's challenges to the evidentiary bases of Mailer's opinions depend on a misunderstanding or mischaracterization of those opinions, together with out-of-context quotes from the Mailer deposition, and that Defendant has failed to demonstrate that Mailer's opinions have no evidentiary basis, or to demonstrate that some of the evidence upon which Mailer's opinions rely, such as the tests perfonned by the Wagga Wagga Agricultural Institute ("WW AI"), is not of the type reasonably relied upon by experts. Defendant's considerations and arguments may go to the weight ultimately given to Mailer's opinions and the evidence upon which Mailer relied, but they do not render them inadmissible in this context. Nor has Defendant demonstrated that Mailer is not qualified to opine on the results of sensory testing reported by other experts. Accordingly, the Mailer declaration will not be stricken.The court also rejects Defendant's attempt to discredit Mailer's opinions, as well as to assert thatPlaintiff has not demonstrated a community of interest among the putative EVOO class, on the basis that the results of the testing relied on by Mailer are not statistically significant enough to claim that all bottles of Defendant's EVOO sold in California do not, in fact, contain extra virgin olive oil. Once again, this is a mischaracterization of Plaintiffs theory of liability.
Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (2009), Federal Court Australia, Adelaide.
Dr Mailer, a Principal Research Scientist with the New South Wales Department of Primary Industry, supervised the laboratory testing of samples at the Department’s Wagga Wagga premises. I had the benefit of his expert evidence as to yield results and factors which impinge upon yield. As to the latter, he was able to draw upon a wealth of research and experience in relation to olive oil quality testing in Australia and abroad. I thought that he was a scrupulously dispassionate, credible expert witness. Dr Mailer frankly conceded that he had negligible experience in relation to the operation of olive oil processing equipment. I do not consider that this dearth of “hands on” experience had any relevant effect on the weight to be given to the opinions he expressed. In his report (Ex RJM 3) Dr Mailer offered the following opinion, the accuracy of which I accept, as to the position which would obtain in respect of oil yield in circumstances where 3 malaxeurs were operated at a temperature of 27°C and one at 25°C: Temperature and time are directly related to yield. The method used by COI [the International Olive Council] for laboratory testing requires that the malaxing bath be set at 36°C for laboratory testing. Warm water is added to the ground olives, as per the directions, to achieve this temperature in a reduced time. … From previous studies it seems that increasing the temperature to 35°C would improve the extraction efficiency of the olives processed in the reports provided to me. [Emphasis added]In that same report Dr Mailer offered this opinion, the accuracy of which I again accept, as to the effect of not adding dilution water:… [A]dded water will improve oil separation, particularly in olives with low moisture content, and this will generally improve the yield.Laboratory systems rely on water addition to improve separation of oil and water during extraction as described in the COI standards for oil extraction. … The addition of water has the disadvantage of removing some polar compounds, particularly phenolics compounds, which provide anti-oxidant qualities to the oil and this is why some processors are reluctant to add water.The results of, materially, the tests conducted on 1, 2 and 25 May 2006, as variously calculated, were helpfully tabulated by Dr Mailer in Appendix 13 to his report. As to the tabulated results, Dr Mailer stated in his report (page 16):…The affidavit [Mr De Moya’s of 7 September 2007] provided to me contained several calculations to indicate oil recovery from the oil extraction process based on analytical results for oil in fruit and retained oil in the pomace (waste). I have checked and recalculated those recovery figures. My calculations do not agree with either those given which appear to be from Olivaylle, or those labelled Flottweg.Given Dr Mailer’s expertise and detachment, I regard his calculations as the most reliable. I note that in his report he observes in respect of percentage oil recovery calculations made by Olivaylle and Flottweg that they “may have taken into account solids and water measured in the oil extracted at the plant…. If so, this is not relevant. The figure for oil content has been determined in the laboratory using salient extraction apparatus. The oil calculated in this test is 100% oil and has no water or solids present.” This is a plausible explanation from a man well qualified to give it. I accept it.
Expert Witness Extracts from Court Cases