Brickman v. Fitbit, Inc.
| Decision Date | 08 December 2017 |
| Docket Number | Case No. 3:15-cv-02077-JD |
| Parties | JAMES P. BRICKMAN, et al., Plaintiffs, v. FITBIT, INC., Defendant. |
| Court | U.S. District Court — Northern District of California |
Plaintiffs allege that defendant Fitbit, Inc. ("Fitbit") misled consumers about the functionality of sleep tracking on its wearable devices. Dkt. No. 60. The Court recently certified California and Florida state-law classes, Brickman, et al. v. Fitbit, Inc., No. 3:15-CV-02077-JD, 2017 WL 5569827 (N.D. Cal. Nov. 20, 2017), and finds that genuine disputes of material fact preclude summary judgment. Dkt. No. 153.1 Fitbit's motion to strike the report and testimony of plaintiffs' expert, Dr. Hawley Montgomery-Downs, on Daubert grounds is also denied. Dkt. No. 154.
The basic facts are undisputed. Fitbit is a well-known maker of wearable fitness devices. Starting in 2009, Fitbit released several models that it marketed as equipped with sleep-tracking. The models in dispute here are the Fitbit Ultra, One, and Flex. Brickman, 2017 WL 5569827, at *1. Fitbit made the same representations about sleep functionality for all of the devices, including on product packaging. Id. Among other statements, Fitbit represented that the devices could track"hours slept," "times woken up," and "quality of sleep." Fitbit also presented images of charts and graphs displaying the data the devices were said to collect. Id. The devices use an accelerometer to detect movement. Dkt. No. 153 at 3.
Plaintiffs Brickman and Clingman were interested in the sleep functionality, and they each bought a device marketed with that feature. After wearing the devices, plaintiffs claim they tracked motion and movement only, and not sleep. Dkt. No. 60 at 9-10. The essential claim in the case is that consumers were deceived into paying more for Fitbit devices sold with sleep-tracking functionality "because the Fitbit devices can only measure movement and not sleep." Id. at 2-3.
The Court certified a class of California consumers and a class of Florida consumers. Brickman, 2017 WL 5569827, at *1. The California class consists of California residents who purchased and registered online a Fitbit Flex, One, or Ultra in the State of California between 2009 and October 27, 2014. The Florida class is defined the same way for residents of that state. The California class is certified for claims under the California Unfair Competition Law ("UCL"), the California Consumers Legal Remedies Act ("CLRA"), common law fraud, negligent misrepresentation, and quasi-contract/unjust enrichment. The Florida class is certified for claims under Florida's Deceptive and Unfair Trade Practices Act ("DUTPA") and quasi-contract/unjust enrichment. Florida plaintiff Brickman is proceeding as an individual on a Florida negligent misrepresentation claim. Id. at *9.
Fed. R. Civ. P. 56(a). The Court may dispose of less than the entire case and just portions of a claim or defense. Smith v. State of California Dep't of Highway Patrol, 75 F. Supp. 3d 1173, 1179 (N.D. Cal. 2014).
Under Rule 56, a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict" for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it could affect the outcome of the suit under the governing law. Id. at 248-49. Indetermining whether a genuine dispute of material fact exists, the Court will view the evidence in the light most favorable to the non-moving party and draw "all justifiable inferences" in that party's favor. Id. at 255. A principal purpose of summary judgment "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
The moving party must initially establish the absence of a genuine issue of material fact, which it can do by "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. It is then the nonmoving party's burden to go beyond the pleadings and identify specific facts that show a genuine issue for trial. Id. at 323-34. "A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact." Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). It is not the Court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quotations omitted).
Fitbit seeks summary judgment on the grounds that: (1) its representations are not false; (2) consumers were not deceived and did not rely on the representations; (3) aberrant sleep readings could have been caused by user error; and (4) plaintiffs cannot show they are entitled to damages. See Dkt. No. 153 at 1-2. These are the main issues in the case, and they are replete with disputes of fact for which both sides have more than merely colorable evidence. Consequently, summary judgment is denied across the board and the case will proceed to trial for resolution. For the sake of clarity, illustrations of some of the fact disputes are discussed for each argument.
Fitbit says it is entitled to summary judgment on its marketing representations because actigraphy, which is said to monitor sleep by assessing physical movement, is a valid and reliable way to track sleep that is used by sleep scientists. Id. at 8. Fitbit contends that there is no genuine dispute about the ability of actigraphy to track "hours slept," "times woken up," and "sleep quality." Id. at 9.
That is far from true. The dispute over the accuracy and reliability of actigraphy as used in the devices to track sleep is the main factual issue in this case. Fitbit tenders declarations, exhibitsand other materials in support of its position on that dispute, and plaintiffs do the same. For example, in opposition to Fitbit's contentions, plaintiffs submitted a report from an expert witness, Dr. Naresh Punjabi, who is a professor of medicine and epidemiology at the Johns Hopkins University Schools of Medicine and Public Health and a specialist in "the epidemiology of sleep disorders," among other areas. Dkt. No. 116-1 at ECF p.2. The report contrasts the utility of actigraphy in tracking sleep to the "gold standard measure" of polysomnography. Id. at ECF p.3. Polysomnography takes electrophysiological measurements of brain activity, muscle activity, and eye movements and is, in Dr. Punjabi's view, the "only method that can truly distinguish between sleep and wakefulness." Id. Dr. Punjabi also states that "it is well established that people stop moving well before the appearance of sleep on the EEG and resume moving before transitioning from the sleep state to wakefulness." Id. For these and other reasons, actigraphy may possibly provide a "crude approximation" of total sleep time, but "is not a technique for measurement in sleep depth, continuity, and structure," and "cannot provide valid information regarding sleep quality." Id. at ECF pp.5-6.
That is only a portion of plaintiffs' evidence, but it is enough to illustrate the fact dispute about the efficacy of actigraphy as a sleep-tracking technology, and the truth or falsity of Fitbit's representations. Fitbit's curated selection of excerpts from Dr. Punjabi's deposition testimony only highlights the parties' factual disagreements. See, e.g., Dkt. No. 153 at 8. Summary judgment is denied on this issue.
Fitbit says that its devices performed as represented and that plaintiffs do not have evidence showing the devices failed to track sleep. Id. at 9. This too entails disputed issues of fact that preclude summary judgment.
As an initial matter, plaintiffs have tendered witness testimony that Fitbit's devices recorded false positives, indicating that the user was asleep when she was, in fact, wide awake. See Dkt. 122-12 at 22 (); Dkt. 122-13 at 43 (). Fitbit suggests that only an expert should be allowed to opineon performance, Dkt. No 153 at 10, but it hardly takes an expert to observe that a device says the user is sleeping when she is actually shopping. Plaintiffs' user evidence is perfectly admissible percipient witness testimony, all the more so because the challenged devices were sold to consumers precisely to advise them about their sleep and activity levels. Fitbit's case citations are inapposite because they pertain to suits for strict product liability, which is not an issue or claim in this case. See Howard v. Omni, 203 Cal. App. 4th 403, 426 (2012) (); Rodas v. Porsche Cars N. Am., Inc., No. CV14-3747 PSG (MRWx), 2016 WL 6033535, at *6 (C.D. Cal. Apr. 4, 2016) (same).
Plaintiffs have also tendered expert witness evidence and testimony by Dr. Hawley Montgomery-Downs to the effect that "Fitbit consumer wearable trackers are not currently able to accurately track hours slept, times awakened, or sleep quality." Dkt. No. 118-1 at ECF p.6. Dr. Montgomery-Downs is a tenured member of the psychology department faculty at West Virginia University and has researched sleep and sleep disorders since 1993. Id. at ECF p.1 Her expert opinions are based in part on a peer-reviewed and published study that she conducted in 2012, which found that "Fitbit's average specificity (the...
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