# BOMBIN v. SOUTHWEST AIRLINES CO.

> District Court, E.D. Pennsylvania · March 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10405025

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________

ADRIAN BOMBIN, et al., :
Plaintiffs, :
:
v. : Civil No. 5:20-cv-01883-JMG
:
SOUTHWEST AIRLINES CO., :
Defendant. :
__________________________________________

MEMORANDUM OPINION
GALLAGHER, J. March 27, 2023
Plaintiffs Adrian Bombin and Samantha Rood, on behalf of themselves and all others
similarly situated, allege Defendant Southwest Airlines Co. breached a contract between the
Parties. See generally Am. Compl., ECF No. 14. More specifically, Plaintiffs allege Southwest’s
failure to provide the option of a monetary refund upon flight schedule modifications amounted to
a breach of contract. Pls.’ Mem. in Supp. of Pls. Mot. for Class Certification, ECF No. 71-2 at 3
(sealed). Plaintiffs proffer the opinions and testimony of Dr. Christopher J. Bennett, Ph.D., an
expert in the field of economics, in support of their Motion for Class Certification. Before the
Court is Southwest’s Motion to Exclude Testimony of Dr. Bennett under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). For the following reasons, Southwest’s motion will
be denied.
I. FACTUAL BACKGROUND
In February of 2020, Bombin booked a flight from Maryland to Cuba through Southwest’s
mobile application. Am. Compl., ECF No. 14 ¶26. That same month, Rood purchased two
Southwest tickets for travel from California to Arizona. Id. ¶31. By March, however, COVID-19
had been declared a global pandemic, and the United States started implementing travel
restrictions. Id. ¶¶ 7–8. Faced with the virus and declining consumer demand, Southwest changed
its flight schedules. Id. ¶¶13–15. In particular, it canceled Bombin’s flight to Cuba, and
rescheduled Rood’s flight to Arizona three separate times. Id. ¶¶ 28, 33–39.

Upon learning of the cancellation, Bombin called Southwest’s customer service
department to gain more information. Id. ¶28. He requested a refund, which Southwest denied.
Id. ¶29. Instead, Southwest offered Bombin credit toward a future flight (called an “RTF”). Id.
¶¶29–30; see also Pls.’ Resp. in Opp’n to Defs. Mot. to Exclude, ECF No. 133 at 5. Rood was
similarly offered an RTF travel credit in lieu of a refund. ECF No. 14 ¶¶34, 37, 40. (sealed).

Bombin and Rood allege that Southwest breached its Contract of Carriage by refusing to
offer refunds for their flights. Id. ¶19. Section 9 of the Contract of Carriage provides in relevant
part:
a. Failure to Operate as Scheduled

(1) Canceled Flights or Irregular Operations. In the event Carrier
cancels or fails to operate any flight according to Carrier’s
published schedule, or changes the schedule of any flight,
Carrier will, at the request of a Passenger with a confirmed
Ticket on such flight, take one of the following actions:

(i) Transport the Passenger at no additional charge on
Carrier’s next flight(s) on which space is available to
the Passenger’s intended destination, in accordance
with Carrier’s established reaccommodation
practices; or

(ii) Refund the unused portion of the Passenger’s fare in
accordance with Section 4c.

Am. Compl. Ex. A, ECF No. 14 at 66. Southwest’s Customer Service Commitment, a document
which is incorporated by reference in the Contract of Carriage, further provides that, in the event
Southwest changes a flight schedule more than seven days before departure, customers “will have
the option to select the revised itinerary, choose an alternate flight/date within a 14-day parameter
of [their] original travel, or cancel [their] trip without penalty and receive a refund issued to the
original form of payment.” Am. Compl. Ex. B, ECF No. 14 at 73. Bombin and Rood assert that
these provisions, taken together, afford customers the discretion to select a refund due to a

scheduling change. ECF No. 14 ¶¶ 46–47. In other words, Southwest cannot unilaterally decide
to offer RTF travel credits in this situation.
a. Plaintiff’s Motion for Class Certification
On April 22, 2022, Plaintiffs moved for class certification.1 Plaintiffs contend they satisfy
the Federal Rule of Civil Procedure 23 requirements for class certification, such as the Rule 23(a)
requirements—numerosity, commonality, typicality, and adequacy—and the Rule 23(b)
requirements—namely, “questions of law or fact common to class members predominate over any

questions affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” FED. R. CIV. PRO. 23(b); see also

1 See generally Mot. to Certify Class, ECF No. 71. Plaintiff offers Dr. Bennett as an expert in
support of Plaintiffs’ Motion for Class Certification. See id. at 2. Federal district courts in
Pennsylvania have considered whether challenged expert testimony satisfies the standard set out
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) before proceeding to the
merits of class certification claims. See e.g., In re Mushroom Direct Purchaser Antitrust Litig.,
No. 06-0620, 2015 WL 5767415, at *3 (E.D. Pa. July 29, 2015); In re Processed Egg Prod.
Antitrust Litig., 81 F. Supp. 3d 412, 415 (E.D. Pa. 2015) (“ . . . the general consensus appears to
be that the Court should subject expert witnesses to Daubert scrutiny at the class certification stage
of the litigation.”) (internal citations omitted); Bernard v. BNY Mellon, N.A., No. 2:18-CV-00783-
RJC, 2022 WL 376999, at *3 (W.D. Pa. Feb. 7, 2022) (“[T]he United States Court of Appeals for
the Third Circuit has held that a plaintiff cannot rely on challenged expert testimony, when critical
to class certification, to demonstrate conformity with Rule 23 unless the plaintiff also
demonstrates, and the trial court finds, that the expert testimony satisfies the standard set out in
Daubert.”) (quoting In re Suboxone (Buprenorphine Hydrochloride & Nalaxone) Antitrust Litig.,
421 F. Supp. 3d 12, 33 (E.D. Pa. 2019), aff'd sub nom. In re Suboxone (Buprenorphine
Hydrochlorine & Naloxone) Antitrust Litig., 967 F.3d 264 (3d Cir. 2020) (internal citations
omitted)); In re Chocolate Confectionary Antitrust Litig., 289 F.R.D. 200, 208 (M.D. Pa. 2012).
Accordingly, the Court provides an overview of Plaintiffs’ arguments in favor of class certification
to support the Court’s analysis of Dr. Bennett’s sufficiency under Daubert.
FED. R. CIV. PRO, 23(a).
First, Plaintiffs contend, under Rule 23(b), “[c]ommon questions of law and fact
predominate as to Plaintiffs’ straightforward breach of contract claim.” ECF No. 71-2 at 6 (citation
omitted). Plaintiffs further aver, “[t]h[e] common contract language [at issue] presents the same

question for the entire Class: does the Contract require that Southwest give passengers the option
of a monetary refund when Southwest initiates a Cancellation or Schedule Change?”2 So “[a]t
the merits stage, Plaintiffs will present evidence to show that Southwest [breached the contract by]
automatically issu[ing] or offer[ing] monetary refunds when Southwest Network Planning initiated
flight Cancellations and Scheduling Changes.” ECF No. 71-2 at 5.
Plaintiffs identify several elements of their claims to show common questions of law and
fact predominate. For example, Plaintiffs aver: (1) a single contract “uniformly governs
Southwest’s obligations to putative Class Members when it fails to operate a flight on schedule[,]”
id. at 8; (2) common evidence supports Plaintiffs’ claim Southwest breached its contract with
customers by uniformly providing customers RTFs, id. at 10; (3) Southwest underwent “a common

source of conduct [concerning customer service practices]” supporting a finding of predominance,
id. at 12; (4) “common evidence shows that Southwest’s intentional and systematic practice was
to offer an RTF instead of a refund to the original form of payment[,]” id. at 14-15; and (5) and

2 Id. at 5. Plaintiffs provide definitions for “Schedule Change[s]” and “Cancellation[s]” in their
Motion for Class Certification. Plaintiffs define a “Schedule Change” as “a change of more than
15 minutes made by Southwest more than 10 days in advance of the originally scheduled flight
(i.e. a Schedule Change made by Southwest’s Network Planning). ECF No. 71 at 1 n.3. And
Plaintiffs define a “Cancellation” as “a cancellation made by Southwest more than 10 days in
advance of the originally scheduled flight date (i.e. Cancellations made by Southwest’s Network
Planning).” Id. at 1 n. 2. Plaintiffs utilize these definitions throughout their Motion for Class
Certification, see generally ECF No. 71-2, and their Motion in Opposition of Defendant’s Motion
to Exclude Testimony of Dr. Bennett Under Daubert, ECF No. 133 at 5 n. 1.
Southwest’s anticipated defenses involve a “class-wide question.” Id. at 16-17.
To further support its Rule 23(b) predominance claim, Plaintiffs submit “[t]he Class is
ascertainable.” Id. at 15. Plaintiffs contend the Class is ascertainable because it “is defined by
objective criteria” and “Southwest’s own detailed records, including its databases for flights and

ticket information for such flights . . . can be used to identify the passengers.” ECF No. 71-2 at
18. And further, Plaintiffs “measure of compensatory damages—a refund to the original form of
payment and interest— . . . matches their theory of liability that Southwest owed Class Members
refunds instead of the credits they provided . . . .” Id. at 19. Plaintiffs rely on their expert, Dr.
Bennett, to aver “[t]he amount of refunds and interest Southwest owes each Class Member can be
determined on a class-wide basis using Southwest’s records.” Id. at 20 (citing Expert Report of
Christopher J. Bennett, Ph.D., ECF No. 72 at 1-2, 21-23).
Lastly, Plaintiff contends their claims satisfy Rule 23(a)’s requirements because the class
is sufficiently numerous, id. at 20; Plaintiffs “identified questions with common answers that
would ‘resolve an issue that is central to the validity of each one of the claims in one stroke,’” id.

at 21 (quoting Walmart v. Dukes, 564 U.S. 338, 564 (2011)); typicality is satisfied because
Plaintiffs’ claims arise of the same course of conduct, rely on the same legal theories, and are
governed by one contract, id. at 22-23.; the representative parties are adequate, id. at 23-24; and a
class action is a superior method of adjudication due to class members’ “relatively small value
claims[,]” id. at 24.
Defendant Southwest opposes Plaintiff’s Motion for Class Certification.3

3 As further discussed infra at 12, the Court looks to whether Plaintiffs’ expert supports and is
consistent with Plaintiffs’ theories—not those of Defendants—at this stage. See Comcast Corp. v.
Behrend, 569 U.S. 27, 35 (2013). Accordingly, the Court does not provide an in-depth overview
of Defendants’ arguments in opposition to class certification.
b. Plaintiffs’ Expert in Support of Class Certification

Plaintiffs’ proffer the opinions and testimony of Dr. Christopher J. Bennett, Ph.D. in
support of their Motion for Class Certification. Dr. Bennett provides opinions and testimony
concerning his methodology of identifying members of Plaintiffs’ proffered class and determining
economic damages on a class-wide basis. See ECF No. 72 at 4-5. Dr. Bennett’s qualifications
include, inter alia, his role as a Partner in an economic consulting firm; “more than ten years of
experience as an economist working in the areas of data analysis, statistics, financial modeling,
and econometrics[;]” a Ph.D. and M.A. degree in Economics; experience researching and teaching
subjects related to economics; and conducting “academic research . . . focused on the development
and application of statistical methods in finance and economics.” Id. at 6.
In general, Dr. Bennett’s testimony provides Southwest’s data can be used to “(i) identify

the members of the Class; and (ii) determine economic damages on a Class-wide basis.” Id. at 5.
Dr. Bennett details the methodology behind his opinions. Concerning class member identification,
Dr. Bennett provides “key requirements [of the class definition] and . . .other[] [elements] of the
Class definition can be verified from the Teradata and UFR Databases maintained by Southwest
and . . . these databases can be used to identify all members of the class.” Id. at 18. He describes,
more specifically, how he uses Southwest’s data to identify Affected Flights, then those passengers
scheduled to travel on Affected Flights, and whether those passengers meet the other elements of
Plaintiffs’ proffered class definition.4
And concerning damages, Dr. Bennett assumed, at the direction of Plaintiffs’ counsel,

“Southwest breached its Contract with Class members when Southwest failed to notify passengers

4 See id. at 18-25. Dr. Bennett provides, “The Set of Affected Flights is comprised of flights that
Southwest either Cancelled during the Cancellation Class Period or initiated a Schedule Change
for during the Schedule Change Class Period.” Id. at 20.
of their refund rights . . . and then first provided those passengers with an RTF instead of refunding
the money they paid for the Affected Flights.” Id. at 29. Dr. Bennett then provided a methodology
of determining class-wide economic damages consisting of “two parts: (i) the money paid for the
tickets associated with their Affected Flights that has not been refunded . . . ; and (ii) accrued

interest on the Refund Amount using a simple interest rate of five percent per annum from the day
on which Southwest issued the RTF for the Affected Flight through the day on which Southwest
issued/s the Refund Amount or the Court issues the judgment . . . .” Id. at 30. Dr. Bennett also
identified the relevant information to calculate damages for each class member and provided
sample calculations for Rood and Bombin. Id.
c. Defendant’s Motion to Exclude Testimony of Dr. Bennett under Daubert
Southwest moves to exclude Dr. Bennett’s testimony under Daubert because “Dr.

Bennett’s methodologies are irrelevant and unreliable for several reasons.” Def.’s Mot. to Exclude
Testimony of Christopher J. Bennett Under Daubert, ECF No. 89 at 3. Southwest does not contest
Dr. Bennett’s qualifications to provide testimony. Nevertheless, Southwest avers, inter alia, (1)
Dr. Bennett’s damages methodology is irrelevant and unreliable because it is contrary to
established law, (2) Dr. Bennett’s damages methodology is unreliable because it assesses damages
on behalf of uninjured class members, and (3) Dr. Bennett cannot reliably identify individuals who
meet Plaintiffs’ class definition. See generally id.
In response, Plaintiffs provide “Dr. Bennett’s opinions directly correspond to Plaintiffs’
theory that Southwest breached its Contract when it issued credits . . . to Class Members even

though the Contract guaranteed a monetary refund, and not an RTF, if a Class Member did not
select re-accommodation via alternative travel.” ECF No. 133 at 5. And further, Plaintiffs aver
“Dr. Bennett’s testimony will assist the trier of fact by demonstrating that it is feasible to use
Southwest’s Teradata and UFR databases (the ‘Databases’) to identify Class Members with certain
characteristics: Southwest passengers who held Wanna-Get-Away tickets for a flight affected by
a Southwest-initiated Cancellation or Schedule Change and to whom Southwest issued credits
(RTFs) instead of refunds to the original form of ticket payment.” Id. (internal citations omitted).

And “the Bennett Report aptly explains how the amount owed for such refunds and interest can be
calculated using Southwest’s Databases to identify (i) the amount originally paid in cash for the
relevant ticket as well as whether the improperly issued RTF remains unused, and (ii) the interest
accrual date (which is simply the RTF issuance date).” Id. at 6 (internal citation omitted). Thus
Plaintiffs contend Dr. Bennett’s testimony is reliable and relevant to Plaintiffs’ theories at the class
certification stage.
II. LEGAL STANDARDS

Plaintiffs acknowledge they must satisfy certain elements to obtain class certification under
Federal Rules of Civil Procedure 23(a) and (b)(3). See Pls.’ Mot for Class Cert., ECF No. 71-2 at
3-14, 18-22. Specifically, “Rule 23(a) requires a class meet prerequisites set forth by that rule,
referred to as numerosity, commonality, typicality, and adequacy.” Bernard v. BNY Mellon, N.A.,
No. 2:18-CV-00783-RJC, 2022 WL 376999, at *3 (W.D. Pa. Feb. 7, 2022). And “Rule 23(b)(3)
provides that a class action may only be maintained where ‘the court finds that the questions of
law or fact common to class members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.’” Id.

“The United States Supreme Court has strongly suggested that a full examination pursuant
to the decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993), is necessary prior to class certification.” In re Suboxone (Buprenorphine
Hydrochloride & Nalaxone) Antitrust Litig., 421 F. Supp. 3d 12, 33 (E.D. Pa. 2019), aff'd sub nom.
In re Suboxone (Buprenorphine Hydrochlorine & Naloxone) Antitrust Litig., 967 F.3d 264 (3d Cir.
2020) (citing Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 354 (2011) (internal quotation
omitted)). And, “[i]nterpreting Dukes, the United States Court of Appeals for the Third Circuit

has held that ‘a plaintiff cannot rely on challenged expert testimony, when critical to class
certification, to demonstrate conformity with Rule 23 unless the plaintiff also demonstrates, and
the trial court finds, that the expert testimony satisfies the standard set out in Daubert.’” Id.
(quoting In re Blood Reagents Antitrust Litig., 783 F.3d 183, 187 (3d Cir. 2015)).
Under Daubert, district courts are tasked to be the gatekeepers of expert testimony.
Daubert, 509 U.S. at 589; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); FED. R. EVID.
702. Before testimony can reach the jury under the cloak of expertise, the Court must evaluate it
for three criteria: qualification, reliability, and fit. UGI Sunbury LLC v. A Permanent Easement for
1.7575 Acres, 949 F.3d 825, 832 (3d Cir. 2020).
A witness is qualified to provide expert testimony only if the witness has “specialized

expertise” in the testimony’s subject matter. Schneider ex rel. Est. of Schneider v. Fried, 320 F.3d
396, 404 (3d Cir. 2003). A witness’s testimony is reliable only if it is founded upon “good
grounds.” UGI Sunbury LLC, 949 F.3d at 834; FED. R. EVID. 702 (requiring expert testimony be
“based on sufficient facts or data” and be derived from “reliable principles and methods” that have
been “reliably applied . . . to the facts of the case.”). The U.S. Court of Appeals for “[t]he Third
Circuit has interpreted ‘reliability’ to mean that an expert's testimony is admissible so long as the
process or technique the expert used in formulating the opinion is reliable.” Elgert v. Siemens
Indus., Inc., No. CV 17-1985, 2019 WL 1294819, at *5 (E.D. Pa. Mar. 20, 2019) (quoting Pineda
v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (internal citations omitted)). And lastly, a
witness’ testimony fits a case only if it would help the trier of fact to understand the evidence or
determine a fact in issue. UGI Sunbury, 949 F.3d at 835 (quoting FED. R. EVID. 702); see also
United States v. Ford, 481 F.3d 215, 219 n.6 (3d Cir. 2007) (“[F]it is [primarily] a relevance
concern.”) (internal quotation marks omitted).

The burden to establish each requirement by a preponderance of the evidence rests with
the party offering the expert testimony. See Padillas v. Stork–Gamco, Inc., 186 F.3d 412, 418 (3d
Cir.1999). Nevertheless, the U.S. Court of Appeals for the Third Circuit has found the Rules of
Evidence reflect a liberal policy of admissibility, even for expert testimony. Pineda, 520 F.3d at
243 (internal citations omitted). In fact, “The Rules of Evidence embody a strong and undeniable
preference for admitting any evidence which has the potential for assisting the trier of fact.”
Takeda Pharms. USA, Inc. v. Spireas, No. CV 17-0452, 2019 WL 9596536, at *1 (E.D. Pa. Sept.
4, 2019) (citing Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (citations
omitted)). “As the Supreme Court in Daubert stated: ‘Vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence.’” Id. (citing Daubert, 509 U.S. at
595).
III. DISCUSSION
Southwest raises several challenges concerning the reliability and relevancy of Dr.
Bennett’s testimony and opinion.5 More specifically, Southwest avers Dr. Bennett’s testimony
should be excluded because his damages methodology is: (1) irrelevant and unreliable because it
is contrary to recoverable damages under Texas law; (2) unreliable because it assesses damages

5 Southwest does not, however, contest Dr. Bennett’s qualifications to provide an expert opinion.
for uninjured class members and those whose breach was cured; and (3) unreliable because it is
overinclusive in its identification of class members. See generally ECF No. 89. The Court will
address Southwest’s arguments in seriatim.
a. Dr. Bennett’s Testimony is Not Irrelevant and Unreliable Based on Plaintiffs’

Proffered Class Definition and Theories of Breach.
First, Southwest contends Dr. Bennett’s damages methodology is irrelevant and unreliable
because it is contrary to recoverable damages under Texas law.6 Southwest describes Plaintiffs’
requested damages as “expectancy damages in the form of a refund to the original form of payment
used to purchase tickets through Southwest.” ECF No. 89 at 8. And, as stated, Dr. Bennett
provides a “a methodology for determining economic damages on a Class-wide basis for . . .
passengers” fitting Plaintiffs’ proffered criteria for the class. ECF No. 72 at 29 (unredacted)
(sealed). Dr. Bennett’s proffered economic damages to each class member consist of two parts:
(i) the refund amount, and (ii) accrued interest. Id. at 30.
Southwest submits Dr. Bennett’s damages calculation is inadmissible because it fails to

consider the value of ECFs already provided to passengers.7 And expectancy damages, like those
put forward by Dr. Bennett, are calculated by “the difference between the value as represented and
the value as received.” ECF No. 89 at 8 (citing Sacks v. Hall, 481 S.W.3d 238, 246 (Tex. App.
2015)). Thus, Southwest contends Dr. Bennett’s proposal would impermissibly put Plaintiffs in a

6 The Court notes the Parties do not dispute Texas law applies to the contract at issue. See e.g., id.
at 8 n. 2; ECF No. 71-2 at 19 n. 10 (sealed) (applying Texas law to Plaintiffs’ damages calculation).

7 ECF No. 89 at 8 (describing Plaintiffs requested relief as “expectancy damages because their
purpose is to put passengers in the same economic position as they would have been in had
Southwest complied with what Plaintiffs contend were its contractual obligations”) (internal
citations omitted)).
better position than if the contract had been performed because it allows Plaintiffs “to recover the
fare’s full price with interest in addition to the RTF they had previously been given.”8
The Court finds persuasive Plaintiffs’ averment Dr. Bennett’s methodology matches
Plaintiffs’ legal theory and thus assists the trier of fact. In an antitrust class action, the United

States Supreme Court has found “at the class-certification stage . . . any model supporting a
‘plaintiff’s damages case must be consistent with its liability case . . . .” Comcast Corp. v. Behrend,
569 U.S. 27, 35 (2013) (emphasis added) (internal citations omitted). So Plaintiffs’ damages, and
thus Dr. Bennett’s damages methodology, must be consistent with Plaintiffs’ theory. Southwest’s
contentions with the merits of Plaintiffs’ theory are more appropriately raised in opposition to
Plaintiffs’ Motion for Class Certification.
Here, Dr. Bennett’s damages methodology is consistent with Plaintiffs’ class definition and
requests for relief. First, Plaintiffs aver they “do not claim that Class Members should recover
damages (Refund Amount and Accrued Interest) and keep those amounts as RTFs.” ECF No. 133
at 14 (emphasis added). “Rather, Plaintiffs assert, and Dr. Bennett agrees, that the amount of the

RTFs should be commensurately extinguished when the refund damages are awarded in the
amount equal to that paid in dollars for the initial fare.” Id. And, furthermore, Plaintiffs’ class
definition only includes individuals who “[d]id not redeem any part of their RTF with Southwest
(e.g. or travel or loyalty points) as of the date of the Court’s Order Granting Class Certification.”

8 Id. at 9 (emphasis added) (citing Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex. 1991)); see also
Emps. Ret. Sys. Of Texas v. Putnam, LLC, 294 S.W.3d 309, 321 (Tex. App. 2009)) And thus,
Southwest avers Dr. Bennett’s theory of damages is inadmissible because it is contrary to Texas
law. ECF No. 89 at 9 ( “ . . . if Plaintiffs prevail in this case, and were to recover the fare’s full
price with interest in addition to the RTF they had previously been given, they would recover more
than their actual damages, which is impermissible in Texas law on expectancy damages.”) (citing
Phillips, 820 S.W.2d at 788).
ECF No. 72 at 4. Because Dr. Bennett’s methodology, like Plaintiffs’ theory, (1) excludes class
members who have redeemed any part of their RTFs, and (2) extinguishes or removes any value
of the RTF (which, Dr. Bennett asserts, is possible using Southwest’s data), Plaintiffs would not
be left overcompensated.9 Thus Southwest’s averment Dr. Bennett’s methodology is contrary to
law is not persuasive.10 The Court declines to find Dr. Bennett’s opinion should be excluded for

relevancy and reliability on this basis.
b. Dr. Bennett’s Proffered Damages Methodology is Not Unreliable Because It
Assesses Damages According to Plaintiffs’ Theory of Injury.
Second, Southwest submits Dr. Bennett’s damages methodology is unreliable because it
assesses damages on behalf of uninjured class members. ECF No. 89 at 10-12. Specifically,

9 At this stage in the present matter, the Court also finds persuasive Plaintiffs’ contention Dr.
Bennett’s damages methodology is proper because it is consistent with Plaintiffs’ theory of breach
of contract. Plaintiffs’ claim the contract at issue only provides for two contractually-specified
remedies: a refund or a re-accommodation on another flight. ECF No. 133 at 14-15. So, under
Plaintiffs’ theory of breach, the RTFs provided to passengers have no value because they fall
outside the contract’s required remedies. See id. Therefore, Southwest’s “extra-contractual” RTF
remedy “has no legal effect []apart from breach” Id. n. 7. Consistent with this theory, Dr.
Bennett’s damages methodology would return class members “to the position they should have
been in had Southwest not breached by issuing RTFs.” Id. at 15.

10 The Court notes Southwest also takes issue with Plaintiffs’ claim they will extinguish the value
of RTFs. Southwest contends the extinguishing of RTFs is a new argument, and amounts to
recission which must be pled. Def.’s Reply in Supp. of its Daubert Mot., ECF No. 140 at 4.
Southwest submits Plaintiffs sought a “refund to the original form of payment and interest” in their
Motion for Class Certification, ECF No. 71-2 at 15 (emphasis added), and now specify “damages
will be paid to the real parties in interest through a judgment—rather than through a refund to the
original form of payment,” ECF No. 133 at 13 (emphasis added). But criticisms of Plaintiffs’
requested damages and underlying theories will be considered with the merits of Plaintiffs’ Motion
for Class Certification. In the context of the present Daubert motion, the Court finds Dr. Bennett’s
opinion is not inconsistent with Plaintiff’s theory of damages in their Motion for Class
Certification, which provides all “passengers” (notably, not purchasers, which would require a
form of payment) who meet the qualifications of the defined class would receive the requested
damages. ECF No. 71-2 at 5. Any discrepancy between Plaintiffs’ earlier refund theory and their
present judgment theory concerns the manner through which Plaintiffs would receive damages.
And further, the Court shall not consider the merits or substance of Plaintiffs’ request for damages;
this issue is better saved for the Court’s decision on class certification.
Southwest identifies three types of class members included in Dr. Bennett’s opinion who have no
injury: (1) passengers who did not purchase the ticket; (2) passengers who would have still selected
an RTF even if they were notified of a refund option; and (3) those who received an RTF as a
result of their own decision to self-cancel a flight (not as a result of a schedule change by

Southwest). See generally id. But Southwest’s challenges go to the weight and accuracy of Dr.
Bennett’s testimony, not his reliability.
The class members identified by Dr. Bennett and considered “uninjured” by Southwest are
consistent with Plaintiffs’ theory of class-wide injury under their theory of breach. See Comcast,
569 U.S. at 35 (2013) (internal citations omitted). Plaintiffs contend “the Contract, which is
evidence common to the Class, confirms that, when a passenger is not also the purchaser, it is the
passenger, not the purchaser, who is a party to the Contract.” ECF No. 133 at 16 (internal citations
omitted). And, as stated, Plaintiffs claim the contract at issue only provides for two contractually-
specified remedies: a refund or a re-accommodation on another flight. Id. at 14-15. So, upon
receiving an “extra-contractual” RTF, “ . . .under Plaintiffs’ theory, all Class Members have

suffered injury as Southwest’s Contract promised the option between two guaranteed remedies.”
Id. at 17. Therefore, Dr. Bennett’s methodology sufficiently identifies and assesses damages for
class members who may possess injuries consistent with Plaintiffs’ theory of liability. The Court
declines to find Dr. Bennett’s methodology unreliable because Southwest contests Plaintiffs’
theories of liability and injury.
The Court is further persuaded by the district court’s findings in In re Mushroom Direct
Purchaser Antitrust Litig., No. 06-0620, 2015 WL 5767415 (E.D. Pa. July 29, 2015). In In re
Mushroom, when considering a motion to exclude expert opinions, the district court found “how
many putative class members [an expert’s] model indicates were actually injured goes to the
sufficiency of [their] evidence on class certification rather than whether his . . . methodologically
‘fit’ the ‘purposes of the case’ at the Daubert stage.” In re Mushroom, 2015 WL 5767415, at *15
(citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 743 (3d Cir.1994)). And, like the district
court found in In re Mushroom, Dr. Bennett’s damages methodology using Southwest’s data

systems “clearly have more than ‘bare relevance’ methodologically to the issue . . . , even if [it]
might not ultimately show that all or nearly all class members were impacted at a later stage of the
litigation.” Id. Dr. Bennett’s use of Southwest’s data to identify class members and create a
damages methodology is sufficiently relevant to the questions of commonality and predominance
and will assist the Court in evaluating the merits of Plaintiffs’ Motion for Class Certification.
c. Dr. Bennett’s Methodology for Identifying Class Members is Not Unreliable
as Overinclusive.
And finally, Southwest similarly contends Dr. Bennett’s methodology does not reliably
identify class members. Southwest avers Dr. Bennett’s methodology is not reliable to identify
class members because it is “grossly inclusive” and “Southwest’s expert has shown that 32 of those

84 purported class members do not actually meet the class definition in at least one of three ways.”
ECF No. 89 at 12. And, Southwest avers, “the class is limited to persons residing in the United
States, and Dr. Bennett makes no attempt to identify those individuals.” Id. Southwest categorizes
Dr. Bennett’s methodology as overbroad and thus unreliable because it includes “individuals
issued tickets on affected flights after Southwest changed the flight; individuals who voluntarily
removed themselves from flights before Southwest cancelled or changed the affected flight;
individuals with tickets changed to different flights before Southwest canceled or changed affected
flights; and Dr. Bennett failed to verify the residency of potential class members. Id. at 11-12.
On the other hand, Plaintiffs contend both Parties’ experts “agree that . . . [Dr. Bennett’s]
illustrative example should be corrected so that only passengers who were scheduled to fly on an
Affected Flight at the same time that Southwest caused a Cancellation or Schedule Change, and
who were then issued in RTF, are identified as Class Members.” ECF No. 133 at 21 (internal

citations omitted). In fact, Plaintiffs aver, Southwest’s confirmation its data can identify
passengers who were scheduled on the flight prior to, as well as after a cancellation or schedule
change shows the data will help correctly identify this condition of Plaintiffs’ class. Id. (internal
citations omitted).
Once again, Defendant misconstrues the standards of reliability and fit at this stage. A
witness’s testimony is reliable if it is founded upon “good grounds.” UGI Sunbury LLC, 949 F.3d
at 834; FED. R. EVID. 702 (requiring expert testimony be “based on sufficient facts or data” and be
derived from “reliable principles and methods” that have been “reliably applied . . . to the facts of
the case.”). And “[t]he evidentiary requirement of reliability is lower than the merits standard of
correctness.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994). Furthermore, a

witness’ testimony fits a case if it would help the trier of fact to understand the evidence or
determine a fact in issue. UGI Sunbury, 949 F.3d at 835 (quoting FED. R. EVID. 702).
Here, Dr. Bennett sufficiently describes his methodology for using Southwest’s data to
identify affected flights, passengers scheduled to travel on affected flights, and whether they are
“Class-Eligible Passengers” who fit Plaintiffs’ proposed class definition. ECF No. 72 at 18-19.
Southwest’s contention Dr. Bennett includes purported class members that do not actually meet
the class definition goes to the accuracy of his findings and not the reliability of his methodology.
See Paoli, 35 F.3d at 744 (“As Daubert indicates, ‘[t]he focus ... must be solely on principles and
methodology, not on the conclusions that they generate.’”) (quoting Daubert, 509 U.S. at 580).
And Dr. Bennett’s willingness to correct certain aspects of his report based on additional
information provided by Southwest and its expert will not bar his testimony and opinion. See e.g.
Crowley v. Chait, 322 F. Supp. 2d 530, 540 (D.N.J. 2004) (“Daubert does not require that an
expert's testimony be excluded simply because he admitted and corrected his own mistakes . . . .

In fact, one of the very purposes of a Daubert hearing, discussed above, is to give experts a chance
to explain and even correct errors that they made in their reports.”). Therefore, Dr. Bennett’s
opinion and testimony is sufficiently reliable and will assist the trier of fact in determining whether
Plaintiffs’ proposed damages calculation and identification of class members can be performed
using information in Southwest’s databases.
IV. CONCLUSION
The Court finds Dr. Bennett’s opinion and testimony sufficiently reliable and relevant at
this stage in the present action. Accordingly, preclusion of his opinion is not warranted under
Daubert.

An appropriate Order follows.

BY THE COURT:

/s/ John M. Gallagher
JOHN M. GALLAGHER
United States District Court Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405025. Public record. Not legal advice.