Expert Witness Profiler

Category: Marketing Expert Witness

  • Nutrition Expert Not Allowed to Opine on FTC Compliance

    Nutrition Expert Not Allowed to Opine on FTC Compliance

    This putative class action involves claims that a manufacturer falsely marketed its pediatric nutrition beverage as helping children grow taller. Joanne Noriega sued Abbott Laboratories (“Abbott”), claiming that the packaging and marketing of its beverage, PediaSure Grow & Gain (“PediaSure”), has thus misled consumers. Noriega claimed that she purchased PediaSure for her grandson based on Abbott’s representation that PediaSure is “Clinically Proven to Help Kids Grow (the “challenged statement”). That claim, she alleged, allowed Abbott to charge a price premium for the product.

    Abbott filed motions to exclude the testimony of Dr. Gita Johar (as to consumer perception of the challenged statement), Dr. Daniel Hoffman (as to scientific studies of PediaSure’s effects on growth), and Dr. William Ingersoll (as to the price premium attributable to the challenged statement). Noriega filed motions to exclude the testimony of Dr. Ran Kivetz (as to the materiality of the challenged statement) and Dr. Melvin Heyman (as to scientific studies).

    Marketing Expert Witnesses

    Dr. Gita V. Johar is a professor at Columbia Business School, where she has taught classes on marketing, branding, and research methods since 1992. She earned her PhD in marketing from the New York University School of Business. She has served as a fellow and president of the Society for Consumer Psychology, and as an editor of the Journal of Consumer Research, Journal of Marketing, and Journal of Consumer Psychology. Johar has published papers on topics including deceptive advertising, corrective advertising, refutation of false beliefs formed based on advertisements, effectiveness of disclosures in advertising, and inferences and false beliefs based on advertising claims.

    Get the full story on challenges to Gita Johar’s expert opinions and testimony with an in-depth Challenge Study.

    Dr. Ran Kivetz is a marketing professor at Columbia Business School, where he teaches courses related to marketing strategy, consumer acquisition and retention, and behavioral economics. He earned his PhD in business from Stanford Graduate School of Business and a master’s degree in psychology from Stanford University. His research focuses on buyers’ purchasing behavior, survey design, and the effect of product characteristics on purchase decisions. He has published numerous articles on topics related to consumer behavior and decision-making.

    Kivetz has achieved recognition for his contributions to consumer research, including from the Journal of Marketing Research and Society of Consumer Psychology. He serves on the editorial boards of three journals, evaluating marketing research surveys for publication.

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

    Nutrition Expert Witness

    Dr. Daniel J. Hoffman is a professor in the Department of Nutritional Sciences at Rutgers University, where he has taught for the last 25 years. He earned his PhD in human nutrition from Tufts University, a certificate in epidemiology from the World Health Organization, and a master’s degree in cell biology from The Catholic University of America. Between 2012 and 2022, in addition to teaching, he served as director of the Center for Childhood Nutrition Research at the New Jersey Institute for Food, Nutrition and Health.

    Discover more cases with Daniel Hoffman as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Economics Expert Witness

    Dr. William Robert Ingersoll is an associate professor and chair of business and entrepreneurship at Azusa Pacific University, where he teaches courses in industrial organization, econometrics, and microeconomic theory. He earned a PhD and master’s degree in economics from the University of Arizona. He represents that he has testified as an economic damages expert in a variety of state and federal cases.

    Get the full story on challenges to William Ingersoll’s expert opinions and testimony with an in-depth Challenge Study.

    Pediatrics Expert Witness

    Dr. Melvin Bernard Heyman is a professor in the Department of Pediatrics at the University of California, San Francisco School of Medicine (“UCSF”). He earned his medical degree from the University of California, Los Angeles (“UCLA”); completed a residency in pediatrics at Los Angeles County-University of Southern California Medical Center; and completed a fellowship at UCLA in pediatric gastroenterology and nutrition. Since 1981, he has worked in pediatric health and medicine, conducting thousands of clinical visits during his career, many of which addressed children’s nutritional needs. Between 1990 and 2016, Heyman served as chief of UCSF’s pediatric gastroenterology division and organized nutritional support services for pediatric patients. He has held leadership roles on local and national committees, including the American Board of Pediatrics and the American Academy of Pediatrics Committee on Nutrition, and has served as editor-in-chief of the Journal of Pediatric Gastroenterology and Nutrition.

    Gain a comprehensive understanding of Melvin Heyman’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    Gita Johar

    Johar was retained by Noriega to opine on whether the PediaSure label and commercials would lead a reasonable consumer to believe that the product is clinically proven to help kids grow in height.

    Johar’s expert report assesses whether the PediaSure label and commercials would lead a reasonable consumer to believe that the product is clinically proven to help kids grow in height. Based on her assessment of the PediaSure label and commercials, Johar opined that Abbott has misled consumers to believe that PediaSure has been clinically proven to help kids grow in height. 

    a. Reliability of Johar’s Methodology

    Abbott argued that Johar’s methodology is unreliable because she did not undertake an empirical consumer survey, which it contended departed both from “accepted practice” in the field and from Johar’s own academic research practices.

    The Court held that Johar’s education and experience, taken together with the relevant academic literature on which she relied, supplied an adequate basis for the testimony she proposed to give.

    Abbott noted that Johar lacked specific expertise as to children’s nutrition drinks. Given her extensive experience in consumer product marketing, however, that fact, though fair game for cross-examination, did not support precluding her as unqualified to testify here.

    b. Relevance of Johar’s Consumer Perception Opinions

    Abbott argued that Johar’s testimony would not be helpful to the jury because “her opinions are purely subjective.”

    The Court found that Johar’s testimony would be helpful to the jury. Notwithstanding Abbott’s portrait of her testimony, she did not propose to set out her personal beliefs, as a consumer, about the meaning of the challenged statement on the label. Instead, she proposed to opine, as a marketing professor, based on her experience and research, about how a reasonable consumer would view and process the challenged statement in the context of PediaSure’s packaging.

    Daniel Hoffman

    Hoffman was retained by Noriega as a nutrition and growth expert to opine as to whether PediaSure has been—as the challenged statement represents—clinically proven to help kids grow.

    Hoffman addressed Abbott’s claims substantiation guidance (“CSG”)—an internal manual that addresses health benefit claims, the evidence necessary to substantiate such claims, and the claims development process. He opined that the CSG “sets mandates to be followed” by Abbott and is not “merely aspirational.”

    a. Opinions About the CSG

    Abbott sought to preclude Hoffman’s testimony about the CSG on the grounds that he is unqualified to opine on an internal Abbott document and cannot properly opine on Abbott’s state of mind.

    To begin with, the Court found that Hoffman is not an expert in marketing, claims substantiation, or Abbott’s internal practices. When asked at his deposition what qualified him to interpret the CSG, he answered his “research education.”

    Moreover, the CSG’s guidance, if relevant at trial, would not be “beyond the ken of the average juror” to grasp.

    Finally, Hoffman’s proposed opinion testimony that Abbott failed to comply with the CSG’s ostensibly mandatory guidance is not the province of an expert.

    b. Reliability of Hoffman’s Analysis of Abbott’s Studies

    Abbott argued that Hoffman employed an unreliable methodology in finding Abbott’s studies of PediaSure unsound.

    A fair-minded review of Hoffman’s report supported the reliability of his methodology in evaluating Abbott’s studies. He drew upon his experience (both as a researcher in the field of pediatric growth and nutrition, and as an editor of scientific journals) and academic articles about standards applicable to clinical studies, randomized trials, and medical research involving human subjects.

    c. Relevance of Hoffman’s Opinions on Abbott’s Studies

    Abbott next argued that Hoffman’s opinions as to the scientific rigor of Abbott’s studies are irrelevant because they are based on “academic publication standards.”

    However, the Court found that Hoffman’s report sets out standards that must be satisfied for a study to be considered “transparent,” “objective,”  “scientifically vetted,” “scientifically rigorous,” and “unbiased.”

    Few of the 36 journal articles on which Hoffman relied in support of those standards appear to relate to “academic publishing,” and even those appear to be generally applicable.

    That Hoffman’s analysis of Abbott’s studies tracks analyses he conducted in his editorial roles is no impediment to the admissibility his testimony.

    d. Opinions Not Stated in Expert Report

    Abbott sought to preclude Hoffman’s opinions related to (1) Abbott’s compliance with Federal Trade Commission (“FTC”) health claims guidance and (2) how a reasonable consumer would interpret the challenged statement.

    It was in his deposition that Hoffman articulated for the first time his opinions about Abbott’s compliance with FTC guidance and consumers’ perceptions of the challenged statement.

    Noriega did not contend that these opinions were disclosed earlier or justify the failure to do so. The Court thus cannot find their non-disclosure substantially justified.

    Moreover, Hoffman’s education and experience is in “nutritional sciences and growth,” he is therefore unqualified to opine on FTC compliance or consumer perception.

    Because Noriega failed to timely disclose Hoffman’s opinions on FTC compliance and consumer perception, and because they are independently inadmissible, the Court excluded such testimony.

    William Ingersoll

    Noriega’s expert, Ingersoll, proposed to opine that: (1) products bearing the label “Clinically Proven to Help Kids Grow” are on average “more favorably viewed” than ones that state, “Helps Kids Grow”, or that make no statement about growth; and (2) consumers are willing to pay more—in the amounts above—for the product bearing the challenged statement than the growth-only statement or no statement.

    a. Relevance of Ingersoll’s Survey Results

    Abbott argued that Ingersoll’s survey failed to calculate a price premium keyed to Noriega’s theory of consumer deception.

    Because Noriega’s theory is that the challenged statement misled consumers to believe that PediaSure promotes height growth, Abbott argued, the survey, to be helpful, needed to “isolate a price premium traceable to Abbott’s purported misrepresentation about height.”

    Ingersoll’s survey tested the premiums attributable to the label statements, “Clinically Proven to Help Kids Grow,” and “Helps Kids Grow.” But on their faces, those statements do not exclusively concern height. Their references to growth can also—or alternatively—be read to encompass other forms of growth (e.g., weight, body composition, and/or muscular development).

    As a result, the Court held that Ingersoll’s survey aimed at quantifying price-premium damages did not “fit” Noriega’s theory of liability. 

    Ingersoll could have tested the price premium traceable to a hypothetical height-growth-specific statement. Or he could have tested the value that respondents place on various promised health benefits (e.g., height growth compared to weight gain). Either approach might have enabled him to isolate the price associated with the alleged misrepresentation about height. Ingersoll’s failure to do so resulted in a broad conclusion—that consumers are willing to pay more when PediaSure contains the challenged statement—that is not tailored to Noriega’s theory of the case nor helpful to a jury tasked with isolating the damages (via a price premium theory) attributable to a misrepresentation about height. This flaw is sufficiently fundamental to require exclusion of his proposed testimony.

    b. Reliability of Ingersoll’s Survey Methodology

    Abbott argued that Ingersoll’s conclusions are separately irrelevant because the survey he used showed a “truncated version of the challenged statement” which excluded the footnote disclaimer.

    The Court found that Ingersoll’s failure to test the disclaimer undermined the reliability of his conclusions as to the price premium attributable to the challenged statement. As Abbott noted, the disclaimer supplied context for the statement’s claim of clinical proof: a person who read and understood the disclaimer could be alerted to the fact that the evidence of PediaSure’s growth benefits “came not in studies of all children but rather those who were ‘at risk of malnutrition.’” 

    More broadly, Ingersoll’s election not to address the disclaimer in his report is strong evidence of motivated reasoning—that his analysis was not “reliable at every step,” but instead was result-driven.

    Ran Kivetz

    Kivetz was retained by Abbott to assess whether the challenged statement, as modified by the disclaimer, was a driver of consumers’ decisions to purchase and/or pay a price premium for PediaSure. 

    Kivetz conducted an empirical consumer materiality survey to test the effect of the challenged statement on consumers’ likelihood of purchasing and willingness to pay for PediaSure, and to ascertain the reasons and motivations driving consumers’ purchase of the products.

    He drew two conclusions based on the survey’s results. First, Kivetz concluded that the challenged statement did not drive consumers to purchase PediaSure. Second, Kivetz concluded that consumers are not willing to pay more for PediaSure when the challenged statement is present compared to when it is absent.

    a. Reliability of Kivetz’s Survey Design

    Noriega argued that, for three reasons, the design of Kivetz’s consumer survey was unreliable.

    First, Noriega argued that Kivetz erred in conducting a between-group, rather than within-group, study. Even if a within-group study would have been more effective for assessing materiality, the Court held that Kivetz’s decision to conduct a between-group study did not render his survey unreliable.

    Second, Noriega claimed that Kivetz’s study “suffers from . . . the ceiling effect.” Because approximately 90% of individuals in both the test and control groups stated that they were probably or definitely likely to purchase PediaSure, Noriega argues, there was “no room” to perceive the effect of the challenged statement.  That his survey might have been better designed, however, does not render it unreliable.

    Third, Noriega argued that Kivetz’s use of open-ended questions “produced incorrect and unreliable data.”

    The survey asked consumers why they were definitely/probably likely or unlikely to buy the product, and instructed respondents to “be specific and include details.” It then asked for “any other reason or reasons” for their purchase likelihood, and again instructed them to be specific. Respondents were thus prompted to provide a fulsome explanation for their purchase decision—not just the first reason that occurred to them. The survey also asked respondents closed-ended questions in addition to the two open-ended questions. Respondents were asked about their purchase likelihood (which required choosing between six answer choices) and willingness to pay (which required a numeric response). Accordingly, the questions here do not come close to requiring exclusion of the survey.

    b. Reliability of Survey Coding

    Noriega next argued that Kivetz’s methodology for coding the survey responses was unreliable, and that the responses did not support his conclusions. She argued that Kivetz failed to provide instructions to anonymous assistants, who made “highly subjective” coding decisions, and to keep data that would allow Noriega to determine how each response was coded. But Kivetz provided the coders with a “coding frame,” which contained a list of specific categories in which the responses could be classified. And Noriega did not dispute that Abbott produced the raw survey data, which was also attached to Kivetz’s report. Noriega accordingly could have, based on the raw data, coding frame, and results, reconstructed how responses were coded. The Court found her objections on this basis unavailing.

    c. Opinions Based on Caselaw

    Noriega argued that Kivetz’s testimony should be excluded insofar as it “offers legal conclusions.” Kivetz references caselaw once in his report.

    In support of his statement that the survey he conducted is “routinely used in academic, industry, and litigation settings,” he cited cases that accepted his consumer surveys and found that they “conclusively showed that the challenged claims were not material.” It should be noted that an expert’s testimony on issues of law is inadmissible.

    Melvin Heyman

    Abbott’s expert Heyman opined that there is ample clinical support for a claim that PediaSure helps kids grow, including in both height and weight.

    a. Qualifications to Opine on Height Growth

    Noriega argued that Heyman is unqualified to opine on pediatric height growth because he lacked specialized training or experience in the field.

    Although Heyman did not appear to have expertise in pediatric height growth specifically, that does not render his qualifications inadequate. Courts admit testimony of experts who have “educational and experiential qualifications in a general field closely related to the subject matter in question,” but lack expertise in “the specialized areas that are directly pertinent.”

    b. Reliability of Heyman’s Methodology

    Noriega argued that Heyman’s analysis is unreliable due to a lack of textual support for his assessment of Abbott’s studies. The Court held that Heyman’s testimony is reliable because he has shown how his experience led to his conclusion. Although Heyman’s failure to cite relevant authority might undermine the strength of his conclusions, it does not invalidate them.

    Second, Noriega argued that Heyman’s analysis is unreliable because he failed to rely on the CSG, which constitutes “considerable contradictory evidence.” As noted, however, the CSG is an internal Abbott document that supplies guidance for substantiating marketing claims. It was unnecessary for Heyman to consider it in analyzing the findings of Abbott’s studies, or whether the studies were scientifically rigorous.

    Heyman also addressed the AL-48 study, which he opined was a “scientifically rigorous clinical study that affirms . . . the height-related findings of prior PediaSure studies.” Noriega argued that Heyman’s analysis is unreliable because it is premised on the AL-48 study, which is “unfinished, unwritten, and unpublished.”

    The Court found the AL-48 study was not relevant, because it was completed after the time period on which Noriega’s claims are based (and after the proposed class period). Accordingly, the Court excluded Heyman’s testimony insofar as it references or relies on that study.

    c. Relevance of Opinions About Non-Height Growth

    Noriega argued that Heyman’s testimony would be unhelpful to jurors because he “avoids opining on height growth specifically,” instead addressing other forms of growth that are “wholly irrelevant” to Noriega’s claims.

    The Court found this argument unavailing because Heyman did opine on height growth. His conclusions as to the height findings of Abbott’s studies are central to his proposed testimony.

    d. Relevance of Opinions About L.V ‘s Medical Records

    Noriega argued that Heyman’s testimony related to L.V.’s medical records is irrelevant. The Court agreed.

    Even taking as true Heyman’s assessment that L.V. grew while he consumed PediaSure, such would not make it more likely that PediaSure helps kids grow. There are myriad reasons why L.V. might have grown during the relevant period, such as his genetics, age, diet, sleep, and physical activity. Heyman did not opine that PediaSure caused L.V.’s height growth, nor could he responsibly do so.

    If L.V. grew during the relevant period, that fact would be fair game to use to impeach that aspect of Noriega’s testimony. But a medical expert is not necessary to establish it. L.V.’s medical records, which reflect the weight and height recorded at his appointments in July 2021 and March 2023, are comprehensible to a layperson. Abbott has not contended that expert testimony is needed to decode them on this point. Accordingly, such testimony would be improper.

    Held

    • The Court denied in full Abbott’s motion to exclude Dr. Gita Johar’s testimony.
    • The Court granted in part and denied in part Abbott’s motion to exclude Dr. Daniel Hoffman’s testimony.
    • The Court granted in full Abbott’s motion to exclude Dr. William Ingersoll’s testimony.
    • The Court granted in part and denied in part Noriega’s motion to exclude Dr. Ran Kivetz’s testimony.
    • The Court granted in part and denied in part Noriega’s motion to exclude Dr. Melvin Heyman’s testimony. 

    Key Takeaway

    Trial courts serve as gatekeepers, responsible for ‘ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.

    Whether a witness is qualified as an expert is a threshold question that precedes the Court’s relevance and reliability inquiries. It is critical that an expert’s analysis be reliable at every step. To ensure relevance, the Court must assess whether the expert’s testimony fits the facts of the case.

    Case Details:

    Case Caption: Noriega V. Abbott Laboratories
    Docket Number: 1:23cv4014
    Court Name: United States District Court, New York Southern
    Order Date: June 04, 2026
  • Marketing Expert Allowed to Opine on Deception

    Marketing Expert Allowed to Opine on Deception

    The Federal Trade Commission (“FTC”) alleged that Defendant Doxo’s website and ads were confusing to some consumers and that Doxo committed certain technical disclosure violations.

    Federal Trade Commission filed motions to exclude Plaintiff’s expert witnesses, David True, Ann Schlosser and Brian Sowers.

    Payments Expert Witness

    David True is a consumer payments expert with over 35 years of experience working with card issuers, networks, merchants, processors, and financial technology firms. Over the course of his career, he has gained experience in payments strategy, marketing, new product development, operations, and finance.

    Get the full story on challenges to David True’s expert opinions and testimony with an in-depth Challenge Study.

    Marketing Expert Witness

    Ann Schlosser, Ph.D., is a marketing professor whose research focuses on consumer behavior, Internet and digital marketing, and communication in technology-mediated environments.

    Schlosser received her Ph.D. and M.A. in social psychology with a double minor in advertising and quantitative psychology.

    Schlosser has over thirty publications in academic journals, conference proceedings, and book chapters.

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

    Market Research Expert Witness

    Brian Sowers is a market research consultant. Over the course of his career, he has personally designed and conducted thousands of market research surveys across a broad range of modalities and a broad range of populations.

    Discover more cases with Brian Sowers as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    David True

    David True, a consumer payments expert, summarized his opinions as follows: (1) Defendant Doxo, Inc. (“Doxo”) allows consumers to choose from a wide variety of funding mechanisms for bill pay; (2) Doxo remits payments to billers either through direct deposit, the Mastercard Remote Payment and Presentment Service (“RPPS”), or check; (3) Doxo’s remittance methods are commonly used, including by bank bill pay services; (4) convenience fees are ubiquitous in bill pay and are routinely charged by billers and/or their preferred payment channels; (5) Doxo’s practices of disputing non-fraudulent chargebacks is normal and an expected part of being a merchant that accepts card payments; and (6) although a small number of billers have posted warnings about Doxo, the substance of those warnings is often questionable, potentially self-interested, or the product of misunderstanding.

    (i) True’s Qualifications

    The FTC did not appear to challenge True’s qualifications, noting only that, although True “has industry experience advising businesses about payments,” he has limited experience and “identifies no experience or expertise related to consumers’ perceptions of advertisements or businesses’ compliance with consumer protection law.”

    The Court found that True is qualified, based on his knowledge and experience, to give relevant and reliable expert testimony. The FTC cited no cases in support of its proposal to define True’s prior experience in the payments industry so narrowly. True possesses “at least the minimal foundation of knowledge, skill, and experience required in order to give ‘expert’ testimony” on the consumer payments industry.

    Whether True has the “knowledge and experience” to offer relevant reliable expert testimony is not, however, the end of the inquiry; the Court must further evaluate whether he is able to do so in this case.

    (ii) The relevance of True’s proffered testimony

    The FTC argued that True’s report consisted of irrelevant matters that have no bearing on whether Defendants violated the FTC Act, Gramm-Leach-Bliley Act, and the Restore Online Shoppers’ Confidence Act.

    True’s testimony in his report concerning industry standards about the U.S. consumer bill pay market (Section VII) and bill pay methods (Section VIII) sets the foundation for his testimony. This testimony is relevant because it supported Defendants’ theory that Doxo’s business practices are normal and expected. True then applied these principles to his interpretation of Doxo’s operations (Section IX), discussing payment funding and remittance, payment validation processes, and biller directory quality assurance practices.

    True’s recitation of Doxo’s business model and business case for a centralized bill pay platform are necessary to lay the factual foundation for this analysis and is therefore relevant. True’s explanation of Mastercard’s RPPS (Section X) is relevant to the FTC’s theories that Doxo collects money from consumers without paying the biller or pays the biller late, thereby causing consumers to incur late fees or other negative outcomes. Finally, True opined on the fees and costs associated with bill payments (Section XI), Doxo’s chargeback procedures and rates (Section XII), and biller warnings about Doxo (Section XIII). The FTC relied on Doxo’s practices in this area and external evidence to support its claims, thereby making these portions of True’s testimony relevant.

    (iii) The reliability of True’s testimony

    The FTC argued that True’s conclusions about Doxo’s practices (Sections IX—XII of True’s report) are improper as expert testimony because True identified no methodology or specialized knowledge or experience that explained how he reached them.

    True opined that “Doxo has robust processes for minimizing chargebacks,” Doxo’s chargeback rate is “well below industry thresholds for fines or monitoring programs,” and Doxo’s “win rate of approximately 80% on bill payments and about 50% on its subscription (doxoPLUS) products” compares to “an industry average success rate of roughly 45%.” In discussing Doxo’s “multi-layered payment validation framework,” True stated that the validation criteria “are based on a combination of industry standards (e.g., financial institution formatting norms) and direct input from billers.”

    The Court deems an expert’s testimony reliable where he identifies applicable industry standards in his report and contrasts them with an atypical case, like this one.

    The FTC also argued that True’s conclusions about biller warnings concerning Doxo (Section XIII of True’s report) are not reliable because he offered a definitive conclusion that a “small minority” and “tiny portion” of billers have issued such warnings, despite not asking Doxo whether a spreadsheet upon which he based this conclusion was comprehensive. The FTC did not, however, point the Court to a more comprehensive list of billers who have issued warnings that would support a conclusion that True’s testimony on biller warnings is unreliable because he “failed to consider the relevant underlying facts necessary to support his opinions and conclusions.”

    Dr. Ann Schlosser

    In her report, Schlosser reached the following conclusions: (1) reasonable consumers would correctly interpret search engine results for Doxo and are not likely to be misled; (2) reasonable consumers would correctly interpret the website and accompanying disclosures to understand that Doxo is not the biller and does not have a formal affiliation with their biller; (3) reasonable consumers would understand that Doxo charges a fee for certain transactions; (4) the option to pay for free by using a linked bank account is stated clearly and repeatedly throughout the payment process; (5) reasonable consumers would understand that doxoPLUS is a subscription service; and (6) isolated consumer complaints do not alter the foregoing conclusions.

    (i) The Relevance of Schlosser’s Proffered Testimony

    The FTC also did not appear to challenge the relevance of Schlosser’s testimony, but instead questioned its helpfulness.

    The topics about which Schlosser opined included the following: (1) how consumers navigate a purchase decision-making process, (2) application of the decision-making process to Doxo customers, and (3) whether a reasonable consumer would be confused or misled as to fees, affiliation, or the nature of Doxo’s bill pay or subscription services.  All of these topics are clearly relevant to the issues in this case.

    (ii) The Reliability of Schlosser’s testimony

    Schlosser’s testimony that consumers are not deceived by Doxo’s advertisements and website is unreliable

    The FTC contended that Schlosser’s testimony that consumers are not deceived by Doxo’s advertisements and website is unreliable.

    Schlosser analyzes a consumer’s experience using Doxo’s service by walking through the process from encountering Doxo’s advertisements on Google through each step of Doxo’s bill payflow. Rather than simply regurgitating what she can read on each webpage, Schlosser pauses to explain why certain aspects of these webpages are not misleading or confusing, weaving in principles within her expertise and data not present on the face of any webpage. Although the FTC may disagree with Schlosser’s opinions or critique how she reached them, such arguments bear not on the admissibility of Schlosser’s testimony, but instead their weight, which can be appropriately addressed during cross-examination.

    Schlosser’s methodology is unreliable because she failed to consider the actual facts at issue

    The FTC also argued that Schlosser’s methodology is unreliable because “she failed to consider the actual facts at issue” and “due to her failure to account for the overwhelming evidence contrary to her opinion.” Almost invariably, Schlosser testified that she would need more information to determine whether any of the documents shown to her or information shared with her would be relevant to her opinions in this case.

    Schlosser’s opinions are unhelpful

    The FTC challenged three other broad categories of Schlosser’s opinions based on their alleged unreliability and unhelpfulness: (1) Doxo has “satisfied consumers and a loyal following,” (2) certain payment data indicates that consumers were not deceived; and (3) consumers do not care about the affiliation between Doxo and their billers.

    The Court rejected all these challenges, because (1) Schlosser’s comment on Doxo consumer satisfaction is relevant to bridge the gap between her application of the consumer decision-making process and external data about Doxo’s consumers; (2) the FTC may cross-examine her about the strength of these opinions, which do not make them inadmissible on their face; and (3) Schlosser stated that “paying on time, without extra fees, is important to consumers,” but explained that “consumers are unlikely to know who is handling the payment or make decisions on whether to buy or not based on who is handling the payment.”

    (iv) Ultimate Issue Testimony

    The FTC argued that Schlosser’s opinion on deception is an impermissible legal conclusion. Schlosser concluded that “the evidence does not support the conclusion that Doxo’s practices are misleading, confusing, or deceiving a significant number of consumers acting reasonably.” She used the term “deception” or “deceived” a handful of times in the rest of her report.

    The Court concluded that Schlosser has not offered an opinion on an ultimate issue of law.

    Brian Sowers

    (i) Relevance and reliability of Sowers’ opinions on Doxo’s internal surveys

    The FTC argued that Sowers relies exclusively on guidance regarding the design of surveys conducted specifically for litigation and failed to explain why or how that literature applied to the Doxo internal surveys that Sowers analyzed.

    Sowers testified that he reviewed about nineteen Doxo surveys and agreed that companies’ internal surveys are often not conducted according to the “Shari Diamond Chapter,” a reference guide on survey research, if they are never intended for use in litigation.

    According to that reference guide, “the content and execution of a survey must be scrutinized whether or not the survey was designed to provide relevant data on the issue before the court.”

    The FTC offered no authority to suggest, however, that an analysis of proper survey design and implementation varies based on the purpose for which the surveys are used. To the extent the FTC disagrees with Sowers’s methodology, the FTC is free to address such concerns during cross-examination.

    The FTC also contended that Sowers’ conclusions are “pure ipse dixit.” Sowers identified from treatises and applied ten guidelines for reliable survey design throughout his analysis.

    The Court concluded that Sowers’ testimony on Doxo’s internal surveys was relevant and reliable.

    (ii) Relevance of the Awareness Survey

    The FTC argued that Sowers’ Awareness Survey should be excluded under Rules 702 and 403 as unhelpful to the trier of fact for failing to advance any material issue in the case.

    Sowers stated that the Awareness Survey results showed 13.3% of respondents indicated that they are aware they can pay a bill online through a third-party website not authorized by the biller.

    The Awareness Survey did not survey Doxo consumers. With the relevant period of liability being February 2021 through October 2024, a survey conducted years later of general consumers’ preexisting beliefs on paying bills through a third-party is not relevant.

    Defendants have made no showing, through Sowers or otherwise, about how results may differ (or not) over time and how the survey Sowers conducted could bear on perceived consumer confusion two to five years ago.

    Held

    • The Court denied the motions to exclude expert witnesses David True and Ann Schlosser brought by the Federal Trade Commission.
    • The Court denied in part and granted in part the FTC’s motion to exclude expert witness Brian Sowers.

    Key Takeaway

    Trial judges are tasked with ensuring that an expert’s testimony rests on a reliable foundation and is relevant to the task at hand. Generally, expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry and reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline. Expert testimony is inadmissible if it concerns factual issues within the knowledge and experience of ordinary lay people because it would not assist the trier of fact in analyzing the evidence. Nevertheless, expert testimony need only provide appreciable help to the jury to be admissible.

    Case Details:

    Case Caption: Federal Trade Commission V. Doxo, Inc.
    Docket Number: 2:24cv569
    Court Name: United States District Court, Washington Western
    Order Date: April 08, 2026
  • Marketing Expert Not Allowed to Opine on Consumer Reaction

    Marketing Expert Not Allowed to Opine on Consumer Reaction

    This class action lawsuit arises out of Amazon’s practice of using smart-speaker technology (“Alexa”) to surreptitiously: (a) intercept; (b) eavesdrop; (c) record; (d) disclose; or (e) use millions of Americans’ voices and communications, all without their knowledge or consent. Such conduct blatantly violates Washington’s wiretapping law, which applies nationwide to Plaintiffs and all members of the Class.

    Defendants here, Amazon.com, Inc. and Amazon.com Services LLC (collectively, “Amazon” or “Defendants”), are therefore liable as a result of their egregious violations of the State Wiretapping laws – and are also liable for their violations of the Washington Consumer Protection Act (“CPA”), the Electronic Communications Privacy Act of 1986 (“Federal Wiretap Act”), and the Stored Communications Act of 1986 (“SCA”). Plaintiffs Kaeli Garner, Jodi Brust, Diane McNealy, Michael McNealy, Ricky Babani, Jeffrey Hoyt, Lorlie Tesoriero, Ronald Johnson, Selena Johnson and Caron Watkins (collectively, “Plaintiffs”) brought this action individually, and on behalf of a Class of similarly situated individuals, to redress those violations of law.

    Plaintiffs sought to exclude Amazon’s expert, Dr. Dominique Hanssens‘ opinions because he is not qualified to opine on privacy issues or the law and because the surveys he conducted are neither scientifically valid nor relevant to the issues in this case.

    Marketing Expert Witness

    Dominique Hanssens is a Distinguished Research Professor of Marketing at the UCLA Anderson School of Management and has been on the UCLA faculty since 1977. Hanssens’ undergraduate degree in applied economics was earned at the University of Antwerp. His M.S. and Ph.D. degrees are in Management from Purdue University. His focus is on strategic marketing problems, and both his research and his legal consultations have involved surveys and analysis regarding consumer perceptions and their response to alternative information disclosures.

    Get the full story on challenges to Dominique Hanssens’ expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    A. Knowledge and Expertise

    Plaintiffs argued that, because Hanssens’ expertise is in marketing, not privacy, he should not be permitted to assess consumers’ understanding of Amazon’s privacy policies. But Hanssens does not opine regarding how or whether consumers understood Amazon’s disclosures. Rather, he designed and conducted two surveys, one to see whether providing additional information related to Amazon’s use of Alexa voice recordings impacted consumers’ decisions to register an Alexa device (“Materiality Survey”) and the second to test consumers’ awareness of information regarding how Alexa works and their satisfaction regarding the ease of finding that information (the “Awareness Survey”). Hanssens has knowledge and expertise in consumer marketing and survey design sufficient to offer an expert opinion in this case.

    Plaintiffs also objected to Hanssens’ opinion that “individualized inquiry is needed to assess a particular Proposed Class Member’s awareness of and attitude toward a particular Alexa feature.”

    The objection was abandoned in reply and is overruled. Hanssens describes the data and evidence that led him to that conclusion, including his own survey results.

    B. Materiality Survey

    Plaintiffs argued that Hanssens’ Materiality Survey is irrelevant because it tests a factual scenario that does not apply to any potential class member, one in which the Alexa-enabled device has already been purchased and the consumer must now decide whether to register the device. Although it is possible that a consumer could review Amazon’s policies before purchasing a device, the scenario Hanssens tested appears to be the most common way in which a user becomes familiar with those policies.

    Hanssens ultimately concluded that “the likelihood to register an Alexa Device was statistically indistinguishable between the Test Group (which was shown additional information about Amazon’s practices) and the Control Group.” While the survey results and the conclusion drawn therefrom do not definitively resolve the issue of whether consumers would alter their behavior in the face of effective disclosures, they do suggest that the specific alterations Hanssens tested would not impact consumer behavior. To that extent, they are relevant.

    The problem is that the survey that generated the data underlying Hanssens’ conclusions is unreliable. Hanssens used a participant panel that was already predisposed to share information, excluded anyone who had never purchased or lived with an Alexa device (decisions that may correlate with a heightened concern for privacy), excluded anyone who was uncomfortable sharing personal information (a defect compounded by the fact that demographic information was requested at the beginning of the survey), and excluded anyone who took the time to read the disclosures. Having disqualified 95% of the respondent pool, many for reasons that could bias the responses to the main question of the survey, the results of the survey did not reliably reflect consumer reaction to the tested changes in disclosures.

    C. Awareness Survey

    Hanssens’ awareness survey was designed to test Plaintiffs’ contention that consumers are unaware that Alexa records, transcribes, and stores voice interactions even when the recordings are not intended for Alexa, that the recordings and transcriptions are stored and used by Amazon forever, and that human reviewers listen to and annotate the voice recordings. The survey also assesses whether consumers find these practices acceptable and whether consumers are satisfied with the availability of information regarding Alexa’s features. Plaintiffs argued that the survey results are irrelevant because it is based on consumer knowledge in 2024 and/or at the time they registered their first Alexa device (if in or after 2019).

    While this choice means that the survey results reflect consumer knowledge that has been bolstered by five to ten years of disclosures and may not accurately reflect consumer knowledge when Alexa devices were first introduced, it did not make the results irrelevant. The proposed classes undoubtedly include individuals who first purchased their devices in the studied time frame. While the survey is not coextensive with the class period and cannot reflect the information known to all class members, the results shed light on consumer awareness of the practices covered by the survey.

    Plaintiffs further argued that the Awareness Survey is unreliable because Hanssens did no research or follow-up questioning to confirm the respondents’ recollections, as represented in their survey responses. He did, however, limit the time frame of the questions to five years. As long as a “survey was conducted in accordance with generally accepted survey principles and that the results were used in a statistically correct manner . . ., technical inadequacies in the survey, including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility.”

    Held

    The Court granted in part and denied in part Plaintiffs’ Daubert motion regarding Dr. Dominique Hanssens’ opinions.

    Key Takeaway:

    Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion. That the opposing party can poke holes in a survey’s design and construction is not surprising: surveys are a scientifically constructed sampling method and, like any scientific method applied in the social sciences, there are bound to be limitations, restrictions, and flaws.

    Please refer to the blog previously published about this case:

    Computer Science Expert’s Testimony on the Value of Data Admitted

    Privacy Expert’s Testimony on Alexa Users Limited

    Case Details:

    Case Caption: Garner V. Amazon.Com, Inc.
    Docket Number: 2:21cv750
    Court Name: United States District Court for the Western District of Washington
    Order Date: March 30, 2026
  • Marketing Expert Was Allowed to Opine on Trademark Dilution

    Marketing Expert Was Allowed to Opine on Trademark Dilution

    Plaintiffs Hyundai Motor Company and Hyundai Motor America, Inc. (collectively “Hyundai Motor” or “Plaintiffs”) are one of the largest automobile manufacturers worldwide, with vehicle sales in over 150 countries.

    Defendant Hyundai Technology is a manufacturer and seller of consumer electronics products including tablets, laptop computers/notebooks, desktop computers, monitors, digital storage, cell phones, and accessories.

    The Plaintiffs filed a trademark infringement suit against the Defendants for “using” the Hyundai name to sell their technology products.

    Defendants offered Mark Keegan‘s testimony to refute Plaintiffs’ allegations that Defendants’ conduct dilutes Plaintiffs’ HYUNDAI Mark. Plaintiffs filed a motion in limine to exclude the testimony of Keegan.

    Marketing Expert Witness

    Mark Thomas Keegan has over 23 years of experience conducting consumer research, including being deposed and testifying at trial. Keegan earned his juris doctorate degree from Brooklyn Law School, has certifications in marketing knowledge and principles, and has completed post-graduate programs addressing market research processes.

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

    Discussion by the Court

    Keegan concluded that Plaintiffs’ allegations of dilution by tarnishment with respect to Defendant Hyundai Technology’s product user reviews do not “materially impact relevant consumer perceptions of Hyundai Motor, and as such, do not substantively impact the marketplace in which Hyundai Motor operates.” Keegan’s opinion relied on a study he conducted involving 850 participants identified as “likely purchasers of the Defendants’ products” based on their prior technology purchases.

    Keegan stated that he designed his survey in accordance with a combination of guiding principles, including survey research conducted for litigation purposes, relevant treatises in the field, including those from the American Bar Association, and industry leaders in market research.

    Plaintiffs argued that Keegan’s survey failed to employ well-established or reliable methodologies and did not rely on a representative sample because, among other things, 41.8% of respondents were age 61 or older.

    The Court, however, found that Keegan’s opinions are relevant as they address “consumer impressions of the Hyundai Motor brand,” which is a central issue to the underlying case. The arguments made by Plaintiffs are all issues to be decided by the jury based on credibility and weight.

    Held

    The Court denied Plaintiffs’ motion in limine to exclude the testimony of Mark Keegan.

    Key Takeaway

    Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.

    Case Details:

    Case Caption: Hyundai Motor Company V. Hyundai Technology Group, Inc.
    Docket Number: 8:23cv1709
    Court Name: United States District Court, California Central
    Order Date: March 06, 2026
  • Economics Expert Partly Allowed to Opine on Corrective Advertising Damages

    Economics Expert Partly Allowed to Opine on Corrective Advertising Damages

    This is a trademark infringement and unfair competition action arising from the parties’ respective uses of the word “IMPOSSIBLE.” Impossible Foods is the widely known creator of the Impossible Burger and other plant-based meat products. Defendants/Counter-Plaintiffs Joel Runyon and Impossible X LLC (collectively, “Impossible LLC”) are an individual and his corporate entity who, over the past decade, have been involved in a variety of ventures—including search engine optimization, social media influencing, and fitness and dieting advice—all loosely affiliated with the word Impossible.

    Impossible Foods filed two motions in limine to exclude the testimony of Dr. Jennifer Vanderhart and Dr. Robert Palmatier, while Impossible LLC sought to exclude portions of John Plumpe’s rebuttal testimony.

    Economics Expert Witness

    Dr. Jennifer Vanderhart is an economist and the managing director of a consulting firm providing services in connection with litigation, regulatory proceedings, and valuation analyses. She holds a Ph.D. in economics from Texas A&M University, where she previously taught in the Department of Economics and the Department of Management in industrial organization, public economics, and econometrics.

    Get the full story on challenges to Jennifer Vanderhart’s expert opinions and testimony with an in-depth Challenge Study.

    Marketing Expert Witness

    Dr. Robert W. Palmatier is a Professor of Marketing at the University of Washington’s Foster School of Business, where he has taught since 2007. He holds a Ph.D. in marketing from the University of Missouri and has held a variety of academic and industrial positions, with a focus on marketing strategy, consumer loyalty and decisionmaking., and methodological approaches for analyzing marketing data.

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

    Valuation Expert Witness

    John G. Plumpe is the managing director of an economic consulting firm and holds a Master of Science in Mechanical Engineering from the University of Illinois and an M.B.A. from the University of Chicago Booth School of Business. Plumpe’s practice focuses on the analysis of damages, monetary relief, and valuation issues in intellectual property litigation.

    Discover more cases with John Plumpe as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    Jennifer Vanderhart

    Vanderhart is Impossible LLC’s damages expert and has prepared a report in which she opined that Impossible LLC is entitled to corrective advertising damages for Impossible Foods’ use of its IMPOSSIBLE-formative marks in connection with its swag and cookbook.

    In her report, Vanderhart opined that corrective advertising damages may be calculated by multiplying Impossible Foods’ swag and cookbook-related expenses by three to five, based on Palmatier’s opinion that “Impossible LLC would likely have to spend 3 to 5 times as much to correct false or unwanted brand associations as was originally spent by Impossible Foods to create these associations.”

    During the relevant time period, she calculated that “Impossible Foods has spent an estimated $623,280 in ‘swag’-related expenses” and “has spent an estimated $194,722 in cookbook-related expenses,” opining that “total corrective advertising damages are in the range of $2,454,006 to $4,090,010.”

    Impossible Foods filed a motion to exclude Vanderhart’s opinions on three grounds. To begin with, Impossible Foods argued that she failed to assess any actual harm to the value of Impossible LLC’s asserted marks and has “made no attempt to calculate lost sales caused by the alleged infringement.” Second, Impossible Foods argued that she did not properly measure advertising costs because her calculations are based on production costs rather than advertising expenditures and include the cost of producing items that are not accused of infringing Impossible LLC’s marks. Finally, Impossible Foods argued that Vanderhart improperly relied on Palmatier’s three-to-five multiplier, which itself is “derived from a single, irrelevant study.”

    Analysis

    The Court agreed with Impossible Foods that Vanderhart neglects to quantify the harm to Impossible LLC’s asserted trademarks by Impossible Foods’ alleged infringement or to even estimate their value in the first instance. However, this does not require that her testimony be excluded at theDaubert stage, where the focus is on her qualifications and the reliability of her methodology.

    Impossible Foods also argued that Vanderhart’s testimony is unreliable because her calculations include expenses by Impossible Foods that are unrelated to advertising expenditures for allegedly infringing products. 

    The Court explained that the touchstone of corrective advertising damages is to restore the harm to the value of the asserted trademark which includes, among other things, marketing and advertising costs.

    As to Impossible Foods’ swag-related costs, Vanderhart was not required to separate marketing and advertising expenses from production costs because she explained that the swag items were themselves the advertising. Because the swag items were not offered for sale and were produced solely for promotional purposes, it would be reasonable to infer that the items themselves were the advertisements. That said, because Impossible LLC has not accused all swag items (e.g., water bottles, stickers, etc.) of infringement—and does not and cannot contend that the asserted trademarks even include those items—the Court agreed with Impossible Foods that her calculations are overinclusive. 

    While the Court will not exclude Vanderhart’s testimony in this respect, Impossible Foods will be permitted to impeach the correctness of her valuations through cross-examination and other evidence.

    As to Impossible Foods’ cookbook-related costs, Vanderhart’s testimony is excluded, since she relies exclusively on the cost of producing the cookbooks and does not include any expenses at all for marketing and advertising.

    Robert Palmatier

    Impossible Foods sought to only preclude Palmatier from testifying that corrective advertising damages may be calculated by applying a three-to-five multiplier to Impossible Foods’ marketing expenditures on the ground that this opinion is based “on a single academic paper,” namely, “a decades old study involving college students and radio advertising for mouthwash finding that three corrective impressions were required to correct one misimpression.”

    According to Impossible Foods, there is just “too great an analytical gap” between Palmatier’s multiplier opinion and the data upon which he relies.

    The Court did not read Palmatier’s multiplier opinion as narrowly as Impossible Foods did. Far from relying on a single outdated study, Palmatier explained why any harms to Impossible LLC’s brand equity caused by Impossible Foods’ alleged infringement would be “magnified” due to the “similarity of wordmarks due to other points of similarity,” “high level of marketing spend,” and “increased use of broadly-focused marketing.”

    Palmatier explained that linkages to unwanted and negative associations are more impactful and difficult to eliminate than positive associations and that these negative associations are particularly strong “due to the synergistic interaction” of multiple “magnifying factors” identifying industry practices of responding to such associations with targeted rehabilitative advertising.

    In articulating his reasoning, Palmatier relied on a variety of case studies and analyses and particularly pointed out how his multiplier opinion is based on the application of fundamental, well-accepted marketing principles.
    The Court accordingly agreed with Impossible LLC that Palmatier’s multiplier opinion is sufficiently supported to survive Impossible Foods’ Daubert challenge.

    John Plumpe

    Plumpe is Impossible Foods’ damages expert and has prepared a rebuttal report in which he argued that Vanderhart’s calculations are not a reliable estimate of corrective advertising damages.

    Plumpe asserted that Vanderhart’s damages calculation is speculative, unsupported, and would result in a windfall to Impossible LLC due to her failure to analyze the value of Impossible LLC’s marks, failure to account for Impossible LLC’s low revenues and marketing expenses, and “the lack of evidence of actual financial harm to [Impossible LLC] in the range contemplated by the prospective correcting advertising damages award.”

    Impossible LLC challenged Plumpe’s testimony on two primary grounds. First, Impossible LLC argued that several of his opinions (specifically, as to consumer confusion, corrective advertising, and search rankings) fell outside of the scope of his expertise as an economist and professional damages expert and are either irrelevant or unhelpful to the jury. Second, Impossible LLC argued that portions of Plumpe’s expert report included improper legal opinions that are not proper subjects of expert testimony.

    Despite Impossible LLC’s attempts to cast Plumpe’s testimony as venturing outside of his area of expertise (e.g., by improperly opining on “causation” and other “noneconomic” issues), the Court found that his opinions are properly limited to evaluating whether the damages claimed by Impossible LLC can be economically attributed to Impossible Foods’ alleged infringement. Specifically, Plumpe’s rebuttal report sets forth his economic reasoning and analysis for his conclusion that Vanderhart’s opinions failed to capture injuries plausibly attributable to Impossible Foods’ swag and cookbook by failing to account for external market forces.

    Regarding Impossible LLC’s argument that Plumpe improperly offered legal conclusions, the Court disagreed. It is permissible for Plumpe to explain the framework and underlying principles to orient the jury.

    Held

    • The Court granted in part and denied in part Impossible Foods’ motion in limine to exclude the testimony of Dr. Jennifer Vanderhart.
    • The Court denied Impossible Foods’ motion in limine to exclude the testimony of Dr. Robert Palmatier.
    • The Court denied Impossible LLC’s motion in limine to exclude the testimony of John Plumpe.

    Key Takeaway

    While it is true that Impossible LLC will not be able to recover corrective advertising damages without showing harm to its allegedly infringed marks, the Court is not aware of any authority suggesting that a damages expert must provide all the evidence required to support a damages award for their testimony to be admissible.

    Nor is the Court persuaded by Impossible Foods’ suggestion that Vanderhart’s testimony is “unreliable and unhelpful” absent a valuation of Impossible LLC’s asserted marks, since the jury is permitted to consider her testimony together with any other evidence presented at trial in considering the ultimate issue whether Impossible LLC’s marks have been harmed by Impossible Foods’ alleged infringement.

    Case Details:

    Case Caption: Impossible Foods Inc. V. Impossible X LLC
    Docket Number: 5:21cv2419
    Court Name: United States District Court, California Northern
    Order Date: February 26, 2026
  • Marketing Expert’s Testimony on Patent-Related Barriers Admitted

    Marketing Expert’s Testimony on Patent-Related Barriers Admitted

    This is an antitrust action filed by Plaintiffs CareFirst of Maryland, Inc., Group Hospitalization and Medical Services Inc., and CareFirst Bluechoice Inc. (collectively, “CareFirst”) alleging that Defendants Johnson & Johnson and Janssen Biotech, Inc. (collectively, “J&J”) used monopoly power to unlawfully delay the introduction of biosimilar competitors for their drug ustekinumab (sold under the brand name “Stelara”).

    CareFirst proffered Todd Clark as a pharmaceutical business expert. However, J&J filed a motion to exclude the testimony of Clark.

    Marketing Expert Witness

    Todd D. Clark has over thirty years of experience in the pharmaceutical industry. Before founding his own advisory firm, Clark served as Vice President of Business Development and Director of Media Services for Medicus NY, then the world’s largest pharmaceutical marketing firm.

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

    Discussion by the Court

    Clark’s expert report provided four opinions related to causation, all of which are premised on the assumption that the jury finds J&J’s challenged conduct was unlawful under antitrust law.

    A. Clark’s “Reasonable Company” Framework

    To begin with, J&J’s first objection applies to all four of Clark’s opinions. J&J argued that Clark’s opinions should be excluded on the ground that they are all predicated on an unreliable framework that Clark utilized in his opinions: what a “reasonable” pharmaceutical company could have done.

    However, the Court rejected J&J’s overarching argument that Clark’s “reasonable” pharmaceutical company is unreliable. Basically, Clark’s focus on the conduct of a “reasonable” company reflects a well-established approach in the antitrust context for evaluating corporate decision making.

    Clark drew on his more than thirty years of experience to offer a range of business options through the lens of industry practice. This approach falls within the province of acceptable testimony from an experiential expert, and it provides a reliable framework for assisting the jury in understanding the options available to companies in J&J’s position.

    That Clark applied this framework to the facts of this case did not render it unreliable, especially since Clark did not purport to give an opinion on what J&J actually knew or would have actually done absent the challenged misconduct.

    B. Clark’s First Opinion

    Clark’s first opinion is that “[a] reasonable company in J&J’s position had options other than asserting the biosimilar manufacturing patents” that “therefore would have avoided the allegedly anticompetitive actions associated with the Momenta biosimilar patents.”

    In his first opinion, Clark offers five alternative options “available to J&J or a reasonable company in the same position that would not have involved asserting the biosimilar manufacturing patents against biosimilar manufacturers and therefore would have avoided the allegedly anticompetitive actions associated with the Momenta biosimilar patents.” The five options that Clark offers are:

    1) “a reasonable company in J&J’s position could have chosen not to take possession of the biosimilar manufacturing patents at the time of the Momenta acquisition or to divest them upon completing the acquisition”;

    2) “a reasonable company in J&J’s position could have chosen not to maintain rights to the biosimilar manufacturing patents”;

    3) “a reasonable company in J&J’s position could have chosen not to assert the biosimilar manufacturing patents”;

    4) “a reasonable company in J&J’s position could have licensed the biosimilar manufacturing patents to ustekinumab biosimilar makers without also negotiating delayed market entry”; and

    5) “J&J could have chosen to license or divest the biosimilar manufacturing patents to another party.”

    J&J argued that each option provided by Clark should be excluded because, generally, they “amount to nothing more than conclusory assertions,” are “unsupported by any methodology,” and would not help the jury because Clark provided options other than “asserting” the Momenta patents yet Plaintiffs have expressly disavowed any challenge to J&J’s assertion of these patents.

    The Court is unpersuaded by J&J’s arguments for excluding Clark’s first opinion and the five options he provides therein. Clark is an experiential expert, so his over thirty years of experience provides a foundation for understanding the business incentives around patent ownership and divestiture.

    C. Clark’s Second Opinion

    As for his second opinion, Clark opined that “biosimilar manufacturers could have obtained FDA approval and launched with labels that carved out ulcerative colitis treatment as covered by the ‘307 patent.”

    J&J challenges Clark’s second opinion on the following two grounds: (1) because Clark is not a lawyer, he is unqualified to opine the legal risks of using a labeling carve-out, thereby making his opinion mere speculation; and (2) Clark utilized no specific methodology to conclude that skinny labels could avoid infringement, instead basing his opinion on the fact that the FDA has approved biosimilars with labeling carve-outs in the past.

    According to the Court, Clark applied a reasoned, experience-based methodology to answer a business and regulatory question, not a legal one. Any concern that J&J has with his conclusions goes to weight, not admissibility.

    J&J’s arguments for the exclusion of Clark’s second opinion mischaracterize the nature of the opinion as well as the methodology applied. First, Clark did not purport to offer a legal opinion about patent infringement or to assess the ultimate “legal risks” of labeling carve-outs, an issue he appropriately acknowledged during his deposition would be addressed by patent counsel.

    Here, Clark offers an opinion squarely within his expertise: whether, as a matter of regulatory practice and business risk, reasonable biosimilar manufacturers would have viewed a launch under a labeling carve-out as a viable strategy notwithstanding the ‘307 patent.

    Second, Clark’s opinion rests on a sufficiently reliable methodology. His report devotes substantial analysis to the history and mechanics of labeling carve-outs, the FDA’s guidance encouraging such practices, and the real-world experience of biosimilar and generic manufacturers launching under a labeling carve-out.

    D. Clark’s Third Opinion

    As for his third opinion, Clark opined that “absent the allegedly anticompetitive behavior, there would have been no patent-related barrier to earlier availability of ustekinumab biosimilars.”

    J&J challenged Clark’s third opinion as conclusory, arguing that it should be excluded because (1) Clark is not an expert in the pertinent art of biosimilar manufacturing and thus is unqualified, and (2) Clark did not conduct any analysis that would allow him to conclude whether biosimilar manufacturers faced patent-related barriers to entry.

    The Court held that Clark’s third opinion concerning patent-related barriers to biosimilar entry is appropriate expert testimony because it does not purport to resolve questions of patent infringement but instead offers an industry-based assessment of the patent landscape absent the alleged misconduct. First, Clark does not opine whether any biosimilar would infringe particular patent claims or analyze biosimilar manufacturing methods—tasks that would require the legal or technical expertise he does not claim to possess. Rather, his opinion is limited to whether, during the relevant period, any patents other than those challenged here would have presented a practical barrier to biosimilar entry once FDA licensure was obtained. Where the record shows that no other unexpired Stelara patents could have delayed competition, Clark’s expertise in pharmaceutical markets is sufficient to support that conclusion.

    Second, Clark’s opinion is reliable and is not, contrary to J&J’s argument, unsupported ipse dixit. He grounds his analysis in contemporaneous evidence, including J&J’s own statements, litigation positions, and employee testimony describing the scope and significance of the relevant patents.

    E. Clark’s Fourth Opinion

    As for his fourth opinion, Clark opined that a “reasonable company in J&J’s position would have launched an ‘authorized biologic’ if only one biosimilar had entered the market following expiration of the ‘734 patent.”

    J&J argued Clark’s fourth opinion is (1) not reliable because Clark merely recites record evidence in concluding that J&J would have launched an authorized biologic version of Stelara, and (2) not helpful for the jury because reciting the facts of a case without any analysis does nothing to assist the jury.

    Regarding reliability, Clark does not merely summarize J&J’s internal materials. Rather, he synthesizes those materials with his extensive experience in pharmaceutical markets and his review of industry literature to explain why, under well-understood competitive dynamics, a reasonable company in J&J’s position would have had strong incentives to launch an authorized biologic if only a single biosimilar entered the market in September 2023.

    Accordingly, because Clark explained the rationale behind his conclusions and applied his specialized knowledge to interpret complex business records and competitive incentives, the Court held that his testimony will help the jury understand when and why companies launch authorized biologics.

    F. Due Diligence Process

    Finally, the parties disagree over whether the opinions Clark offers in his rebuttal expert report concerning the Momenta acquisition due diligence process are supported. In his rebuttal report, Clark opined that, through its pre-acquisition diligence process, “J&J could draw a connection between [the Momenta manufacturing patents] and the potential to delay follow-on versions of Stelara from reaching the market” at the time it acquired Momenta.

    J&J challenged Clark’s opinions about the Momenta acquisition due diligence process as speculative and unsupported.

    In response, CareFirst argued that Clark’s opinions on the Momenta acquisition due diligence process are admissible because they are grounded in extensive contemporaneous evidence showing that a reasonable company in J&J’s position could have been prompted to investigate these patents during due diligence.

    The Court agreed with CareFirst: J&J’s objections to Clark’s opinions regarding the Momenta acquisition due diligence process go to weight, not admissibility, and are therefore appropriate for cross-examination rather than exclusion. Clark’s rebuttal opinions are grounded in record evidence, and they address what a reasonable company in J&J’s position could have discerned or investigated during the pre-acquisition due diligence process.

    Held

    The Court denied J&J’s motion to exclude the testimony of Todd Clark.

    Key Takeaway:

    By explaining what a reasonable company could have done instead of the challenged conduct, Clark’s testimony helps the jury understand the competitive landscape and the range of options available to companies in J&J’s position. As CareFirst notes, Clark does not opine whether a reasonable company in J&J’s position “would choose a particular option, but rather that there were multiple rational business options available” and that “none of those options would unlawfully delay biosimilar entry.”

    Thus, Clark’s testimony provided helpful context for the jury to evaluate whether the challenged conduct was exclusionary, and any risk of confusion can be addressed through cross-examination rather than exclusion.

    Case Details:

    Case Caption: Carefirst Of Maryland, Inc., Et Al. V. Johnson & Johnson, Et Al
    Docket Number: 2:23cv629
    Court Name: United States District Court, Virginia Eastern
    Order Date: December 23, 2025
  • Marketing Expert’s Testimony Excluded Due to His Inherent Bias

    Marketing Expert’s Testimony Excluded Due to His Inherent Bias

    Plaintiff Grasshopper Gardens, Inc., a lawncare and landscaping services provider, accused PMA Mechanical LLC, a heating, ventilation, and air conditioning (“HVAC”) service provider, of trademark infringement, unfair competition, and false designation of origin.

    Plaintiff retained Dr. Eli Seggev to conduct a survey on the likelihood of confusion between the marks at issue in this case (“Seggev Survey” or the “Survey”) and to provide an expert report and testimony. Defendant sought to preclude use of this evidence under Rules 702 and 403 of the Federal Rules of Evidence.

    Marketing Expert Witness

    Dr. Eli Seggev holds an MBA from the University of Michigan and a PhD in Marketing and Quantitative Methods from the School of Management at Syracuse University. In addition to teaching in graduate business programs at various universities Seggev also founded and managed two marketing research companies, both of which had been acquired by UK-based corporations.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Eli Seggev’s expert testimony.

    Discussion by the Court

    1. Structure of the Seggev Survey

    The Seggev Survey used a format referred to as an original “Squirt” survey. Specifically, the Survey is comprised of two parts: a screener portion and the main questionnaire. Moreover, the Survey followed a “Test v. Control” design, “in which the impact of an allegedly infringing stimulus (Test Group) is compared to the impact of a similar stimulus that is free of the allegedly infringing elements (Control Group).”

    The “Test” design compared a portion of Plaintiff’s website page without its URL to a portion of Defendant’s website page without its URL, while the “Control” design compared the portion of Plaintiff’s website page to a portion of a completely random website for an HVAC contractor called “Best Contractors” with the URL “besthvac.contractors” included.

    Importantly, the images of both Plaintiff’s and Defendant’s portions of websites included the word “grasshopper” while the “Best Contractors” website page did not include the word “grasshopper” or any other similarities to the other website pages. Finally, Seggev testified that he intentionally designed the Survey this way to lead participants towards his own conclusion that the marks at issue “were identical.”

    2. Operation of the Seggev Survey

    The Survey participants were either shown the “Test” group or the “Control” group, not both. Specifically, Participants randomly selected for the “Test” group were first asked to review “a webpage” and then shown images of both the portion of Plaintiff’s webpage without its URL and the portion of Defendant’s webpage without its URL.

    Notably, for this “Test” group, the Survey does not include a question separating the portions of Plaintiff’s website and Defendant’s website, creating the impression that they came from the same website because each of the URLs were removed and the question just prior refers to just “a website.” Alternatively, participants selected for the “Control” group were presumably shown the same portion of Plaintiff’s website without the URL and then asked to review the top portion of another website for Best Contractors with the URL “besthvac.contractors.”

    After being shown these images in the “Test” or “Control” groups, participants were then asked whether they thought the websites represented “the same company,” “different companies,” or “don’t know/no opinion.” Participants in both groups were then asked whether they believe that “the two companies are affiliated, connected, or associated with one another or have no opinion.”

    3. Results of the Seggev Survey

    According to the Seggev Report, participants were classified as confused if they considered the two images to be the “same company” or “companies that are affiliated, connected or associated with each other.” Based on the results of the Survey, Seggev claimed that 68.3% of participants found a likelihood of confusion for the “Test” group. And, the results of the “Control” group showed that 28.1% of participants believed that Plaintiff and Best Contractors were also either the same company or “affiliated, connected or associated with each other.”

    Seggev did not vet the results based on household income level or whether the Survey participants were appropriate prospective consumers of Defendant’s services. Additionally, Seggev did not focus on the marketplace in which both parties currently operate; instead, he conducted a nationwide survey.

    4. Application

    Seggev utilized the original formulation of the Squirt survey, showing participants either (1) portions of images of Plaintiff’s website and Defendant’s website in the Test cell, or (2) portions of images of Plaintiff’s website and “the webpage of a heating and cooling business that did not use the Grasshopper” in the Control group. As illustrated in Seggev’s report, the Survey showed participants both images consecutively. The Court agreed with Defendant that, in showing only two images consecutively, without any other similar trademarks/companies, in artificially close proximately for two non-competing companies, the Survey intentionally signals to participants that there is a connection between the two and thereby artificially inflates the Survey’s estimates of likelihood of confusion.

    Courts have found that the Squirt format is intended to replicate market conditions under which the relevant services have marketplace proximity and is therefore most appropriate where the marks are sold to overlapping customers or through overlapping channels of trade, such that consumers would typically encounter one soon after the other. Here, there is no competitive proximity between the parties. During prosecution, Plaintiff’s services were described as “strictly for landscaping” and “broadly categorized as ‘lawn care.’” Defendant, however, provided HVAC services and its business does not overlap with Plaintiff’s in any appreciable manner.

    Moreover, there is limited proximity of the marks in the marketplace. Although both companies operate websites that present the services they offer, that is where the proximity ends.

    While these flaws alone are likely sufficient to justify the exclusion of Seggev’s report and the Survey, Seggev’s admitted bias in administering the Survey convinced the Court that exclusion is the only appropriate course. As noted above, Seggev testified that he intentionally designed the Survey the way he did to lead participants towards his own conclusion that the marks at issue “were identical.”

    Held

    The Court granted the  Defendant’s motion to exclude the expert testimony of Dr. Eli Seggev. 

    Since the Plaintiff failed to raise a genuine issue of material fact with respect to likelihood of confusion and the Defendant is entitled to summary judgment on Plaintiff’s claims brought under the Lanham Act, the final judgment was entered in the Defendant’s favor.

    Key Takeaway:

    Generally, when a party challenges a survey for bias, they are forced to use circumstantial evidence, such as leading questions or the use of images that are clearly intended to direct survey participants to a desired result. While it is generally understood that expert witnesses retained by the respective parties are going to provide their opinion testimony in a manner favorable to the party that retained that expert, such testimony is generally provided under the guise of being unbiased. By Seggev’s own admission, the Survey was injected with his own bias and results oriented, making the Survey inherently unreliable.

    Case Details:

    Case Caption: Grasshopper Gardens, Inc. V. PMA Mechanical LLC
    Docket Number: 1:23cv1257
    Court Name: United States District Court, New York Northern
    Order Date: September 23, 2025
  • Marketing Expert’s Testimony on Consumer Confusion Admitted

    Marketing Expert’s Testimony on Consumer Confusion Admitted

    Defendant Learneo, Inc., a Delaware corporation with a principal place of business in Redwood City, California, operates a website named Course Hero, an online learning platform of course-specific study resources. In particular, this action involves alleged unlawful conduct on Course Hero, where users upload materials, such as study resources, and access materials shared by others.

    Consequently, Plaintiff Post University accused Learneo, Inc. of (1) direct copyright infringement, (2) contributory copyright infringement, (3) vicarious copyright infringement, (4) removal of copyright management information (“CMI”) in violation of the Digital Millennium Copyright Act (“DMCA”), (5) trademark infringement in violation of the Lanham Act, (6) false designation of origin in violation of the Lanham Act, (7) violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), (8) unjust enrichment, and (9) common law unfair competition.

    In support of its claims, Plaintiff retained Dr. Yoram (Jerry) Wind to conduct, analyze, and opine on prospective consumer confusion.

    In response, Defendant filed a motion to exclude the testimony of Wind pursuant to Federal Rules of Evidence 403 and 702. 

    Marketing Expert Witness

    Yoram (Jerry) Wind, PhD. is the Lauder Professor Emeritus and Professor of Marketing at the Wharton School of the University of Pennsylvania, having taught graduate courses relating to executive development and marketing since 1967, and worked as Director for the SEI Center for Advanced Studies in Management.

    Wind joined the Wharton faculty in January 1967, upon receipt of his doctorate from Stanford University, and was granted Emeritus status in July 2017.

    Want to know more about the challenges Yoram (Jerry) Wind has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Defendant filed a motion to exclude Wind’s testimony, asserting that: (1) his surveys were fundamentally flawed as they improperly excluded educators during the screening portion, (2) his surveys were unreliable as they relied on unclear and undefined terms, including “document,” “material,” and “owns,” (3) his initial survey used improperly designed controls, (4) his coding results could not be replicated, (5) his understanding of the definition of CMI was incorrect, and (5) his conclusions are based on an unreliable application of his methodology.

    A. Wind’s Qualifications

    Defendant has not attempted to challenge Wind’s qualifications, nor could it. As part of a career spanning over four decades, Wind has been qualified as a marketing and survey research expert in federal court, where he has conducted and evaluated marketing and consumer research for use in litigation.

    The Court therefore found that Wind is qualified to provide expert testimony on consumer confusion as it relates to Plaintiff’s claims against Defendant.

    B. Reliability of Wind’s Testimony

    1. Defendant’s Allegations that the Surveys Improperly Excluded Educators

    Defendant contended that Wind improperly excluded educators from the surveys, as they are one of Defendant’s only two target demographics. According to Defendant, excluding educators compromises the probative value of the survey because it fails to capture the responses from all potential consumers of Course Hero.

    Here, the purported testing of the wrong universe, as Defendant suggested, did not indicate that the surveys’ probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

    Defendant’s sweeping contention that educators must be included in the universe is belied by evidence showing that college educators made up only a fraction of Court Hero’s accountholders in 2021, including statistics that educators make up less than 1% of account holders, and testimony from Defendant’s VP of Marketing stating that “there are a lot more students than there are educators.” Further, Defendant did not seriously dispute Wind’s explanation that it is generally accepted and custom to exclude individuals who works in the same industry as the survey that is being conducted. It is thus appropriate for Defendant to raise its criticisms about the survey’s academia-based exclusion before the jury. 

    2. Defendant’s Allegations of Ambiguous Terms

    Defendant contended that the survey questions using terms like “document,” “material,” and “owns” are ambiguous because almost all of the test stimuli show one document (the Post University material) within another document (the Course Hero webpage), and then ask questions about the “document.”

    Defendant asserted that the use of the terms “document” and “material” interchangeably in Wind’s survey make it impossible to discern whether survey respondents understood “document” or “material” in the question to mean the alleged Post University material (green), the Course Hero webpage (red), or something else entirely.

    However, it would be too wide a stretch for this Court to conclude that the failure to define “document” and “materials,” which are terms that jurors will have necessarily dealt with throughout their lives, would undermine the probative value of the survey.

    Defendant next contended that the term “owns,” as used in Wind’s survey, is improper for being ambiguous and for asking the survey respondents to opine as to a legal question.

    However, the survey did not present respondents with the legal issue of copyright ownership; rather, it asked the respondents to provide their impressions about who they believed had “owned” a document. Thus, the term “owns” bore no resemblance to the spectrum of cases cited by Defendant where exclusion was warranted due to an ambiguous term.

    3. Defendant’s Allegations of Improper Controls

    The Court finds, too, that Defendant’s critiques of Wind’s control stimuli are overstated. Defendant contended that Wind’s initial survey is unreliable as the control stimuli failed to isolate the alleged elements of the Course Hero website underlying any of Plaintiff’s claims, thus making it impossible to determine which elements, if any, contributed to confusion. Further, Defendant argued that Wind’s control stimuli removed an excessive amount of Course Hero website elements and improperly added a sentence, unilaterally drafted by Wind, to the footer of the stimuli, which stated, “Course Hero did not author and does not own this study resource.”

     To be clear, consistent with Defendant’s contention, the absence of an effective control could certainly be a factor that damages the reliability of a survey. No such combinations of major flaws are found here. Thus, while a factfinder may not give Wind’s testimony much weight due to his removal of elements of the Course Hero website and addition of the footer, “neither science nor law mandate the [requested] exclusion” here. 

    4. Defendant’s Allegations of Wind’s Unreliable Coding Methodology

    Defendant identified two theories upon which Wind’s coding methodology is unreliable. First, Defendant argued that Wind’s coding instruction did not provide sufficient guidance to produce reliable results, as Wind was unable to reproduce his coders’ classifications based on his own coding instructions. Specifically, Defendant noted that Wind was only able to match his coders’ classifications four out of fourteen times (28.6%) during a deposition. Second, Defendant argued that Wind failed to properly to isolate the alleged CMI, as his understanding of the definition of CMI was incorrect.

    While it may be that it was impossible for Defendant to question Wind about 2,250 respondents during a deposition, the Court held that the emphasis on ten purported testimonial errors by Wind did not show that the methodology used was completely unreliable. Defendant did not conduct its own survey showing inconsistent results with Wind’s results and failed to show that it is impossible to reproduce Wind’s coding scheme.

    Defendant’s allegation that Wind’s understanding of CMI was overly broad similarly failed to establish that there was unreliable coding methodology. As relevant here, Wind instructed his coders to look for the following categories of information in the “confused” responses to the test stimuli: Course Hero Logo, Course Hero Advertisement, Course Hero Banner Ads, Course Hero Copyright Notice, Course Hero Website / Link, Course Hero Watermark, Course Hero name on document, and Course Hero Other. Thus, Wind’s guidance to his coders is wholly consistent with the plain text of the DMCA, which defines CMI as information “conveyed in connection with” copies of a work, including “other information identifying the work[.]”

    5. Defendant’s Allegations of Wind’s Faulty Conclusions

    First, Defendant argued that Wind’s opinion as to CMI confusion failed to account for background noise in the control stimulus. Specifically, Defendant argued that several of the control stimuli contained the Course Hero footer watermark, which Plaintiff alleges to be false CMI. But that contention did not show that Wind’s findings are “speculative or conjectural or based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison.”

    Second, Defendant argued that Wind’s reported measures of trademark confusion are below the level that courts require for experts to opine that there is a likelihood of confusion, i.e., 15%. But Defendant did not offer any binding law for the proposition that an expert must be precluded from testifying if a survey’s overall confusion is less than 15%. 

    Finally, the Court is not persuaded that the Defendant has shown that Wind’s conclusions are unreliable.

    Held

    The Court denied the Defendant’s motion to exclude the testimony of Yoram Jerry Wind.

    Key Takeaways:

    • The fact that a survey used a control that could have been ‘stronger’ or ‘better’ may mean it is entitled to less weight, it does not mean that the survey does not provide relevant information.
    • Defendant showing Wind struggling to make consistent coding determinations as to a handful of responses during a deposition did not meet the threshold to exclude expert testimony: that “there is simply too great an analytical gap between the data and the opinion proffered.”

    Case Details:

    Case Caption: Post University Inc V. Learneo, Inc.
    Docket Number: 3:21cv1242
    Court Name: United States District Court, Connecticut
    Order Date: September 23, 2025
  • Marketing Expert’s Testimony Was Admitted Despite His Lack of Legal Credentials

    Marketing Expert’s Testimony Was Admitted Despite His Lack of Legal Credentials

    X Social Media LLC (“X Social Media”) and X Corp. both use the letter “X” in association with closely related advertising services. Put simply, X Corp. is an online and app-based social-media platform that allows users to create and share a wide range of digital content, including advertisements. X Social Media is an advertising agency that designs and runs social-media advertising campaigns for mass-tort and class-action law firms. 

    This is a case for trademark infringement and related claims concerning the parties’ respective use of the letter “X” in connection with distinct product and service offerings.

    Both parties retained experts to advance their respective theories of the case. Defendant offered (1) marketing scholar Peter Golder and (2) survey practitioner Hal Poret. Professor Golder analyzed the product markets in which the parties operate and opines that reverse confusion is improbable. Poret conducted an Eveready consumer-perception survey to test for the likelihood of reverse confusion and found minimal confusion. 

    Plaintiff offered Professor David J. Franklyn, a trademark-law scholar, to rebut both Golder and Poret. Professor David J. Franklyn disputed Golder’s market-structure analysis and critiques Poret for limiting his survey universe to representatives of law firms and advertising agencies, contending that Poret should also have surveyed the consumers who view Plaintiff’s ads on social media.

    Both parties filed motions to exclude aspects of the opposing experts’ opinions under Daubert and Federal Rule of Evidence 702.

    Marketing Expert Witness

    Professor Peter N. Golder is a Professor of Marketing at the Tuck School of Business at Dartmouth College in Hanover, New Hampshire.

     His background includes a Ph.D. in. marketing from the University of Southern California, decades of academic appointments in marketing, and prior experience providing expert marketing testimony in litigation.

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

    Survey Research Expert Witness

    Hal Poret is a public opinion researcher with a master’s degree in mathematics and a law degree from Harvard Law School. Poret has personally designed, supervised, and implemented well over 1,000 surveys regarding the perceptions and opinions of consumers. 

    He has been accepted as an expert in survey research on numerous occasions by U.S. District Courts, the Trademark Trial and Appeal Board, the ITC, the FCC, the FTC, and the National Advertising Division of the Council of Better Business Bureaus (NAD).

    Get the full story on challenges to Hal Poret’s expert opinions and testimony with an in-depth Challenge Study. 

    Intellectual Property Expert Witness

    David Joel Franklyn is currently a law professor at Arizona State University, with an appointment in the Sandra Day O’Connor College of Law. He is also the Executive Director of the McCarthy Institute at ASU Law, which is focused on scholarship and research in intellectual property law, with particular emphasis in the areas of trademark law, branding and consumer perceptions related to brands.

    Franklyn has published extensively on issues relating to intellectual property law and is editor-in-chief and co-author of McCarthy’s Desk Encyclopedia of Intellectual Property Law. Between 2018 and 2021, Franklyn also held a joint appointment at Golden Gate University’s law school and business school. 

    Get the full story on challenges to David Franklyn’s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    The Court discussed the challenged opinions of Professor Golder, Poret, and Professor Franklyn in turn.

    A. Professor Peter Golder

    Defendant retained Golder to analyze the structure of the parties’ product markets, the sophistication of Plaintiffs’ consumers, and the nature of Plaintiffs’ sales process and to “[d]iscuss whether [these] assessments” are “consistent or inconsistent with Plaintiff’s theory of reverse confusion.”

    Plaintiff filed a motion to exclude Golder under Rules 702 and 403, contending that he is unqualified, offers improper legal conclusions, ignores the Eleventh Circuit pattern jury instructions for trademark-infringement cases, disregards evidence of actual confusion, relies on irrelevant third-party marks, and “cherry-picks” facts. 

    1. Summary of Golder’s Opinions

    Golder opined that similar brand names can coexist without consumer confusion when they operate in distinct ‘product categories,’ which he illustrated with third-party examples such as “Delta”—the brand-name of an airline, a faucet company, and a dental insurer.

    He further noted that Defendant’s public SEC filings identify technology companies such as Meta, Alphabet, Microsoft, and TikTok—not advertising agencies like Plaintiff—as competitors.

    He opines that the Plaintiffs’ theory of reverse confusion is “inconsistent with both the documentary record and marketing literature” given the parties’ distinct product categories, the sophistication of Plaintiffs’ customers, and the nature of Plaintiffs’ sales process.

    2. Plaintiff’s Daubert Challenges to Professor Golder

    Plaintiff first argued that Golder is “not qualified as a trademark law expert” because he is neither a “trademark attorney nor former-USPTO commissioner.” However, Defendant has proffered Golder as a marketing expert, not a legal expert. Evaluated in his proffered field, the Court finds him qualified under Rule 702.

    Plaintiff next contended that Golder impermissibly offered legal conclusions, citing his statement that “Plaintiff’s theory of reverse confusion is not consistent with the documentary evidence in this matter or with the marketing literature.” Considered in context, the challenged statements are tied to marketing concepts and record evidence, and Golder expressly disclaimed offering a “legal opinion on confusion.” As a result, the Court rejected Plaintiffs’ argument.

    Plaintiff also sought exclusion because Golder did not consider evidence of actual confusion. Since this matter is set for a bench trial, where concerns about the “jury’s expectations” carry no weight, the Court will evaluate evidence of actual confusion independently and consider Golder’s testimony only for its permissible purpose.

    Plaintiff next challenged as “irrelevant and misleading” Golder’s reliance on third-party brand examples such as Delta, Dove, Morningstar, Pandora, and Tiffany. To the extent Golder’s examples do not correspond perfectly to this case, the Court held that “objections to the inadequacies of a study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility.”

    Finally, Plaintiff argued that Golder “cherry-picked” evidence by declining to evaluate evidence of actual confusion and by emphasizing factors favorable to Defendant. In this case, Golder disclosed the materials he considered and applied recognized marketing principles to the facts of this case. 

    The Court overruled the Plaintiffs’ cherry-picking objection under Rule 702 because it does not establish unreliability.

    B. Hal Poret

    Defendant retained Hal Poret, a consumer-survey expert, “to design and conduct a scientific survey” assessing whether “Defendant’s use of its X mark creates a likelihood of reverse confusion with Plaintiff.”

    Poret did so and concluded that “Defendant’s use of its X mark does not create a likelihood of confusion with Plaintiff.” Plaintiff filed a motion to exclude his testimony, contending that his survey is unreliable because: (1) it lacked a control group; (2) it used the Eveready format rather than Squirt (3) it relied on flawed coding assumptions; and (4) it tested an underinclusive universe. 

    1. Summary of Poret’s Opinions

    Poret conducted an Eveready survey, in which respondents are shown only the senior user’s mark (here, Plaintiffs “X SocialMedia”) and asked questions to assess whether the respondents associate that mark with the junior user’s mark (here, Defendant’s “X”). 

    Poret administered the survey online to 200 respondents who had been screened to ensure they worked for law firms or marketing firms that had used or planned to use social media advertising services—the population he identified as Plaintiffs’ customer base. 

    According to Poret, only 4.0% of respondents provided answers that “suggest reverse confusion” between Plaintiff and Defendant.

    2. Plaintiff’s Daubert Challenges to Poret

    Plaintiff first argued that Poret’s survey is unreliable because it lacked a control group. Plaintiff argued that without a control, the survey cannot distinguish between genuine confusion and background “noise.” Poret acknowledged the omission but explained that controls are most useful where the initial confusion rate is high enough that noise could materially affect the result.  Here, however, “the test group rate of confusion was already so low that it shows a lack of confusion even without taking any potential noise into consideration.” 

    The Court held that the absence of a control group does not render a survey inadmissible under Rule 702. 

    Plaintiff next challenged Poret’s use of the Eveready format, arguing it is inappropriate here because it presumes that Defendant’s mark is top-of-mind. The dispute over whether Eveready or Squirt is more probative here is for the trier of fact to decide; it does not implicate methodological reliability under Rule 702. 

    The Court held that Poret’s survey will not be excluded merely because Plaintiff believes a Squirt survey would be more probative since both Eveready and Squirt formats are accepted in the industry.

    Plaintiff also argued Poret’s coding decisions artificially lowered the measured confusion rate. But Plaintiffs’ objections boil down to the assertion that Poret misused a survey method that “in the abstract, is reliable.” It is well-established that “the identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination.”

    Finally, Plaintiff argued that the survey universe was underinclusive because it did not include consumers who merely view Plaintiffs’ ads on Facebook and instead exclusively sampled representatives of legal and marketing firms. However, when assessing reverse confusion, limiting the universe to the senior user’s customers is a generally accepted approach.  

    C. David J. Franklyn

    Defendant filed a motion to exclude two categories of Franklyn’s opinions: (1) all of his critiques of Golder, on the grounds that Franklyn is not qualified to offer marketing opinions and, in any event, his critiques lack reliable methods and sufficient factual support; and (2) his opinion that Poret’s survey used an underinclusive universe.

    1. Summary of Franklyn’s Opinions

    a. Critiques of Golder

    Franklyn disputed Golder’s claim that the parties operate in distinct product categories, opining that the parties “operate in highly overlapping product categories and often provide nearly identical services.”

    He criticized Golder’s reliance on third-party brand analogies such as “Delta,” contending that those examples are inapposite because here “the product category of [Defendant] is the brand name of [Plaintiff].”

    b. Critiques of Poret

    Franklyn criticized Poret’s reverse-confusion survey for, among other things, using an “underinclusive universe” that “fails to account for consumers” who encounter the advertisements Plaintiff creates for its law-firm clients. Poret surveyed only “representatives of legal practices and advertising/marketing firm[s],” and Franklyn opined that the perceptions of consumers exposed to Plaintiffs ads may negatively influence the “viability of the advertising services being provided by [Plaintiff].” 

    2. Defendant’s Daubert Challenge to Professor Franklyn’s Critiques of Professor Golder

    Defendant first argued that Franklyn is unqualified to rebut Golder. Franklyn considers himself an expert in “marketing as it relates to trademark law.” But his academic training is in history, philosophy, religion, and law, and his curriculum vitae identified no degrees, work experience, or professional memberships in marketing or advertising disciplines. He has never practiced marketing, has never attended a marketing conference, and did not review the literature on which Golder relied. 

    Accordingly, the Court concluded that Plaintiff has not met its burden under Rule 702 to establish that Franklyn is qualified to rebut Golder’s marketing opinions.

    Setting aside his qualifications, the Court held that Franklyn’s critiques of Golder failed under Rule 702 because they are not based on reliable principles and methods.

    Franklyn admitted that he “didn’t use marketing principles” at all, did not review the marketing literature Golder cited—calling it “mumbo jumbo”—and did not conduct empirical consumer research.

    3. Defendant‘s Daubert Challenge to Franklyn’s Critiques of Poret

    Franklyn contended that Poret’s survey universe was “underinclusive” because it “failed to account for consumers who will encounter [Plaintiff’s] marks in the form of the advertisements that [Plaintiff] produces on behalf of [its] direct clients.”

    The Court found Franklyn’s view that a reverse-confusion survey must include individuals beyond the senior user’s actual customer base is methodologically unsound. The Eleventh Circuit has made clear that the relevant universe in a reverse-confusion case consists of the senior user’s customers. 

    Moreover, Franklyn’s critique that consumers might view advertisements containing Plaintiff’s name and logo is also predicated on a factual assumption that is unsupported by the record—that members of the general public exposed to Plaintiff’s clients’ Facebook ads actually see Plaintiff’s mark. He identifies no example of a consumer-facing advertisement containing Plaintiff’s name or logo.

    Held

    The Court denied the Plaintiff’s motion to exclude the opinions of Peter Golder and Hal Poret but granted the Defendant’s motion to exclude the testimony of David J. Franklyn.

    Key Takeaway:

    Rule 702, however, requires only that an expert be qualified “by knowledge, skill, experience, training, or education” to testify competently “regarding the matters he intends to address.” Nothing in Rule 702 demands experts to have legal credentials. 

    Please refer to the blog previously published about this case:

    Intellectual Property Expert Witness’ Untimely Affirmative Opinions Excluded

    Case Details:

    Case Caption: X Social Media, LLC V. X Corp.
    Docket Number: 6:23cv1903
    Court Name: United States District Court, Florida Middle
    Order Date: September 05, 2025
  • Marketing Expert’s Testimony on Review Hijacking Limited

    Marketing Expert’s Testimony on Review Hijacking Limited

    The present action stems from Plaintiff ML Products, Inc. (“ML Products”) and Defendants BillionTree Technology USA, Inc. (“BillionTree”) and Mountain Peak, Inc. (“Mountain Peak,” collectively, “Defendants”) competing for sales on Amazon.com where Defendants allegedly employed fraudulent tactics. Specifically, ML Products asserted claims of violations of the Lanham Act, false advertising, and unfair competition against Defendants.

    On April 12, 2024, Professor Brett Hollenbeck, ML Products’ affirmative technical expert, produced an expert report on his analysis of “the tactics related to online reviews used by certain competitors of ML Products, including BillionTree and its [alleged] affiliates.”

    Broadly, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking—inappropriately linking a different product’s reviews to the given product on Amazon and misrepresenting the product as having more positive reviews; reviewers of nine of the products complained that the seller sent them emails requesting them to change negative reviews into positive ones in exchange for payment; and by manipulating and falsifying product ratings, BillionTree increased its visibility and sales on Amazon, misled customers, and lowered the visibility of its competitors, thereby harming ML Products.

    Defendants filed a motion to exclude the testimony of Hollenbeck.

    Marketing Expert Witness

    Prof. Brett Hollenbeck is an Associate Professor of Marketing at the UCLA Anderson School of Management in Los Angeles, California. His educational background includes a Bachelor of Science in Economics and a Bachelor of Arts in Political Science, both from the George Washington University, a Masters in Economics from the University of Texas at Austin and a Ph.D. in
    Economics from the University of Texas at Austin.

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

    Discussion by the Court

    1. The Expert Report is Compliant with Rule 26(a)

    Defendants argued that ML Products failed to disclose the facts and data—specifically, the Amazon information—considered by Hollenbeck in forming his opinion. Defendants further argued that ML Products’ failure to disclose warrants sanctions under Rule 37.

    The Court did not find that ML Products failed to disclose the facts and data considered by Hollenbeck in forming his opinion. Although Defendants are correct that the Hollenbeck Report must lay out the factual bases for his opinions, the Hollenbeck Report provided the factual bases upon which he formed his opinions as he explored whether BillionTree and its alleged affiliates engaged in product rating manipulation to increase its sales and harm competitors like ML Products.

    For instance, Hollenbeck opined that 22 of the 29 products sold by BillionTree and its alleged affiliates engaged in review hijacking; 9 of the products had reviews where customers were offered gift cards to change negative reviews into positive ones; and BillionTree and its alleged affiliates’ conduct increased their products ratings and hurt the sales of its competitors, including ML Products.

    The Court is not convinced that ML Products’ disclosure prevented Defendants from conducting a meaningful deposition of Hollenbeck, as Defendants have had until August 20, 2025, to submit a rebuttal report and until September 3, 2025, to complete discovery, which is more than sufficient time.

    The Court found that sanctions under Rule 37 is not warranted, as ML Products did not fail to disclose Hollenbeck as an expert witness nor the facts and data supporting his opinions in the Hollenbeck Report.

    2. The Expert Report is Not Improper under FRE 703

    Defendants argued that the Hollenbeck Report should be excluded because it relies on inadmissible hearsay and improperly attempts to establish the truth of its content.

    However, the Court held that Hollenbeck may rely on hearsay as it is reasonably relied upon in the field of marketing academia. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function.  Further, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking, bribing customers to turn negative reviews into positive ones, and manipulating Amazon ratings to boost its sales and diminish competitors’ sales.

    Moreover, the probative value of Hollenbeck’s opinion outweighs its prejudicial effect because it could help a juror to determine certain facts like whether review hijacking, bribing customers for better reviews, and manipulating ratings constitutes an unlawful, unfair, or fraudulent business act or practice. 

    3. The Expert Report Applies Reliable Methods

    Defendants argued that the Hollenbeck Report should be excluded because it lacked analytical rigor, relied on incomplete data, and failed to account for alternative explanations.

    Defendants asserted that, for example, the report did not account for other variables impacting a products’ ranking on Amazon, and that the Hollenbeck Report did not provide evidence supporting its assertion that repurposed reviews misled consumers and caused harm.

    Hollenbeck reviewed product pages and analyzed 29 products. He further declared that he performed an analysis of the reviews and product pages downloaded by applying his skills and expertise from marketing academia.

    The Court found that his understanding and expertise in the area coupled with the general accepted principle that alternative explanations involve weight, not admissibility, are sufficient to assuage Defendants’ concerns of unreliable methodology.

    4. The Expert Report Attempts to Introduce Legal Opinions

    Defendants argued that the Hollenbeck Report repeatedly referred to Defendants’ alleged conduct as illegal according to the Federal Trade Commission, which is an impermissible legal opinion.

    The Court found that some of Hollenbeck’s opinions constituted improper expert opinions.

    In paragraph 9 of his report, Hollenbeck described BillionTree and its alleged affiliates as partaking in review hijacking and opines that “this type of review hijacking is considered illegal by the Federal Trade Commission.” In paragraph 99 of his report, Hollenbeck opined that BillionTree and its alleged affiliates engaged in “harassment and paying for positive reviews which are considered illegal by the Federal Trade Commission.” Interpreting whether conduct constitutes a violation of law regulated by the Federal Trade Commission falls squarely within the Court’s province, as it involves conclusion of law.

      Held

      The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Brett Hollenbeck.

      Key Takeaway:

      Expert witnesses may rely on inadmissible hearsay in forming their opinions, so long as it is of a type reasonably relied upon by experts in their field. Typically, an academic expert in online marketplaces will review comment entries on marketplaces to identify how the products function. In this case, Hollenbeck used the marketplace reviews and applied his expertise to form an independent judgment that BillionTree and its alleged affiliates were engaging in review hijacking.

      Case Details:

      Case Caption: ML Products Inc. V. Billiontree Technology USA, Inc.
      Docket Number: 2:23cv8626
      Court Name: United States District Court for the Central District of California
      Order Date: August 26, 2025