This is a trademark infringement case involving the trademarked phrase “Freedom Pop”. Plaintiff Proccor Pharmaceuticals, Inc. (“Proccor”) contended that Defendant GAT Sports infringed upon its alleged trademark for a “Freedom Pop” flavored Pre-Rx pre-workout supplement. GAT Sports essentially argued that the phrase was used in a non-trademark, descriptive, way to describe the flavor of its product.
Defendants filed a motion to exclude the testimony of Neil Beaton, whose report states that the Plaintiff retained him to “calculate Defendants’ profits and, separately, Proccor’s damages measure by reasonable royalties.”
Accounting Expert Witness
Neil J. Beaton is a Certified Public Accountant who has performed a reasonable royalty analysis 60 to 70 times during his forty year career and who has testified five times as a trademark damages expert in cases specifically involving nutritional supplements. He has assisted 30 times in negotiating royalties in nonlitigation related licensing engagements.
The Defendants summarized several grounds for their motion:
there was no prior trademark licensing agreement between the parties
Plaintiff has never had a trademark licensing agreement with any party
Beaton’s analysis was based on litigation or prelitigation agreements that are vastly different from trademark licensing agreements
Beaton only addressed one of the applicable fifteen factors for determining what the royalty would have been had there been a hypothetical negotiation
Beaton never actually reviewed any of the alleged agreements that he relied on for data points in his analysis — all information in his analysis was supplied verbally by Plaintiff’s CEO
Beaton’s proposed per unit royalty rate ignores that it doubles the price of the product
Beaton’s damages are over 35 times greater than any amounts Proccor ever earned from litigation and prelitigation settlements — combined
Beaton did no comparability analysis between his hypothetical trademark license agreement and the litigation and prelitigation settlements he relied on, and/or
Absence of a licensing history might affect the persuasiveness of an opinion but not the admissibility of the opinion
The Court explained that many of the Defendants’ objections amount to iterations of the same assertion, which is that in the absence of a licensing history the damages caused by an infringement is not ascertainable with sufficient certainty to warrant admission into evidence of an expert opinion. The absence of a licensing history might complicate the task of formulating an opinion on damages by eliminating certain otherwise available methods of valuation, including the most popular method, the simplest method, or even the most reliable method.
But the absence of a licensing history no more prevents a reasoned and professional opinion on damages than the absence of immediately comparable sales prevents a qualified real estate appraiser from formulating an opinion on real estate value; the appraiser resorts to other useful and available means of appraisal, including more remotely comparable sales. The absence of a licensing history might affect the persuasiveness of an opinion but not the admissibility of the opinion.
The Court held that a review of Beaton’s report and his qualifications establish that he meets the threshold of possessing pertinent specialized knowledge based on training and extensive experience in a pertinent discipline and will assist a jury in determining a fact in dispute. The Defendants fail to demonstrate that Beaton’s method is based on insufficient facts or data (he appears to use the best, or perhaps the only, available in both instances); that his principles or his methods are demonstrably unreliable; or that his application of the announced facts, principles, and methods is demonstrably flawed.
Held
The Court denied the Defendants’ motion in limine to exclude the testimony of Plaintiff’s expert Neil Beaton.
Key Takeaways:
The standard for reviewing the admissibility of Rule 702 expert testimony is familiar, well understood, and explicit in the rule and the leading decisions. In each case, the rigor of the standard adapts to the subject matter of the opinion. An opinion about damages based on the loss of the probable price of something exchanged in the marketplace between a willing buyer under no compulsion to buy and a willing seller under no compulsion to sell is among the simplest and most common topics of expert testimony. Not every expert opinion demands the same level of scientific rigor, peer review, and the like.
Please refer to the blog previously published about this case:
The present consumer class action stemmed from Defendant Experian Information Solutions, Inc.’s (“Defendant” or “Experian”) violations of the Fair Credit Reporting Act (“FCRA”) and the California Consumer Credit Reporting Agencies Act (“CCRAA”). Experian violated consumers’ rights under these laws by failing to implement procedures that ensure the highest possible accuracy of the consumer background records it creates and sells. As a result, it produced inaccurate consumer reports that were then sold to third parties.
Experian specifically breached the FCRA and CCRAA by improperly linking innocent consumers to individuals involved in illegal activities, such as terrorists, narcotics traffickers, money launderers, and arms dealers subject to U.S. government sanctions.
Experian filed a motion to exclude or limit the opinions and testimony of Plaintiff’s credit reporting expert witness Evan Hendricks. Plaintiff Maria Pena (“Plaintiff” or “Mrs. Pena”), successor in interest to Jose Pena (“Mr. Pena”), opposed the Motion.
Credit Reporting Expert Witness
Since 1981, Evan Hendricks has been Editor/Publisher and founder of Privacy Times, a newsletter based in the Washington, D.C. area.
He has written a book on credit reports, testified before Congress and the Federal Trade Commission on credit reports a dozen times, maintains an FCRA Certification from the National Credit Reporting Association.
Hendricks has served as a consultant on privacy issues to Federal and State governmental organizations, and businesses.
Experian filed a motion to exclude two statements made by Evan Hendricks from the Court’s consideration.
Opinion One: Legal Opinion on Office of Foreign Assets Control (“OFAC”) Information
Experian argued that Hendricks’ statement that Ramirez v. TransUnion, LLC and follow-on decisions “provided that OFAC information is subject to the FCRA and engaging in loose or name-only matching violated the FCRA,” amounts to an improper legal opinion.
The challenged statement is offered in support of Hendricks’ first proffered opinion that “credit reporting agencies have been provided ample guidance on the need for multi factor matching to assure the accuracy of information on credit reports, including OFAC information.” In bolstering his opinion, Hendricks quotes from two court cases, as well as other government bodies such as the Consumer Financial Protection Board.
The Court held that Hendricks’ statement is not an ultimate issue of law because Hendricks is not offering a legal opinion on whether Experian’s specific matching procedures were “reasonable,” a legal standard articulated by the Federal Credit Reporting Act (“FCRA”) and left for the factfinder. Instead, Hendricks is stating there are certain procedures that enforcement authorities, such as courts, found to be lacking in accuracy and Experian is on notice of those deficient procedures.
The Court held that a statement explaining how Experian was on notice of certain procedures courts found to be deficient is testimony within the reasonable confines of Hendricks’ subject area.
Opinion Two: Consumer Access to OFAC Information
Second, Experian stated Hendricks’ opinion that “consumers do not typically have access from third parties to OFAC information on credit reports” is based on “raw speculation.” Experian alleged each source referenced by Hendricks’ in this part of his report is inadequate to establish Hendricks’ opinion.
The Court held that Hendricks’ opinion would be permissible based on his experience alone considering Hendricks has a wealth of experience evaluating the credit reporting industry. Additionally, the sources Hendricks’ cites to bolster his opinion are not speculation or cherry-picked evidence, as Experian argues. For instance, the undisputed fact that the Department of Treasury does not require creditors to notify consumers of OFAC hits on their credit report does make it more likely that consumers are unaware of this information and its effect on their credit score. Further, if Experian takes issue with the basis for Hendricks’ opinion, it is best challenged in front of the ultimate factfinder.
Held
The Court denied Experian’s motion to exclude Plantiff’s credit reporting expert witness Evan Hendricks’ testimony.
Key Takeaway:
Hendricks’ report does not assess the reasonableness of Experian’s specific matching procedures or offers legal conclusions; instead, the report provides a general overview of the industry standards shaped by courts for the purpose of demonstrating what Experian knows or should have known. Hendricks is qualified to provide this relevant opinion.
Case Details:
Case caption:
Jose Pena V. Experian Information Solutions, Inc. Et Al
Docket Number:
8:22cv1115
Court:
United States District Court for the Central District of California
Plaintiff being a state prisoner proceeding pro se with a civil rights complaint sought the appointment of an expert witness in the field of psychiatry and mental health treatment and care and a neutral expert familiar with policies and procedures of the California Department of Corrections and Rehabilitation.
Plaintiff alleged that while he was housed at Mule Creek State Prison (“MCSP”), defendants A. Chandra, K. Mohr, J. Quiring, J. Charon, and J. Weiss: (a) retaliated against Plaintiff in violation of the First Amendment by, inter alia, verbally threatening plaintiff, and issuing a rules violation report (“RVR”) asserting false allegations in retaliation for Plaintiff filing a grievance against defendant A. Chandra; (b) violated Plaintiff’s Eighth Amendment rights by, inter alia, housing him in segregated housing and detention, resulting in a long term deprivation of outdoor exercise, despite Plaintiff’s chronic depressive disorder and serious medical and mental health needs; and (c) conspired to violate plaintiff’s constitutional rights. In addition, Plaintiff alleged that Defendants Quiring and Weiss violated Plaintiff’s due process rights in connection with the hearing on the rules violation report asserting false allegations.
Discussion by the Court
Psychiatric and Mental Health Expert
In his first motion, Plaintiff sought the appointment of an expert witness in the field of psychiatry and mental health treatment and care.
Plaintiff argued that this case involved complex issues of fact, and an expert is required to assist the Court in evaluating Plaintiff’s medically diagnosed chronic depressive disorder and serious medical needs and determining whether subjecting him to C-Status segregated housing and detention and the lengthy deprivation of outdoor exercise “severely aggravated [Plaintiff’s] condition or caused him serious harm and injury.”
Prison Electronic Records Expert
Plaintiff sought the appointment of a neutral expert familiar with policies and procedures of the California Department of Corrections and Rehabilitation (“CDCR”) regarding the maintenance and retention of prison records who can audit all existing records kept and maintained within the MCSP Electronic Records Management System (“ERMS”) computer relevant to RVR #006953258 and testify as to “the actual date said RVR was generated with information [inputted] by Defendant A. Chandra reporting the CDCR disciplinary charges against [Plaintiff].”
Analysis
First, to the extent Plaintiff seeks appointment of an expert witness for his benefit, or to prove his case, the Court has no authority to grant such motion. Rule 706(a) of the Federal Rules of Evidence permits the Court to appoint only neutral expert witnesses. An expert appointed pursuant to Rule 706 does not serve as an advocate for either party and each party retains the ability to call its own experts.
Second, Courts do not invoke Rule 706 simply to “appoint an expert on behalf of an indigent civil party.”
Third, the Court held that the Plaintiff’s motions for a neutral expert witness are premature. A neutral expert witness may be necessary where there is “some evidence, admissible or otherwise, that demonstrates a serious dispute that could be resolved or understood through expert testimony.” At the time Plaintiff filed his motions, the parties were still engaged in discovery, and Plaintiff’s motion to compel discovery responses is pending. There are no pending motions on which the Court may require special assistance, such as to resolve a motion for summary judgment.
Finally, at least at this juncture, the Court held that Plaintiff’s claims of deliberate indifference to serious medical and mental health needs, retaliation and conspiracy are not so complex as to require an expert witness.
Held
The Court found that at this stage of the proceedings an expert witness is not necessary and would not be significantly useful to the factfinder to comprehend a material issue in this case.
Key Takeaway:
Plaintiff contended that a neutral medical expert is required to evaluate whether the long term deprivation of outdoor exercise severely aggravated Plaintiff’s medical or mental health needs, causing him injury. However, Plaintiff’s claims do not raise “probing, complex questions” or require consideration of complex scientific evidence.
In October 2023, Plaintiff Leslie Baldwin sued Kalispell School District #5 and Glacier High School (collectively “the District”) on behalf of her minor son, K.B., alleging that K.B. was sexually assaulted in February 2022 on a bus returning from a school-sanctioned wrestling event.
The District sought to exclude the testimony of Baldwin’s retained expert, Thom Luedemann, arguing its untimeliness and insufficiency.
Education & Schools Expert Witness
Thom Luedemann is experienced administrator who has spent many years working in the education management industry. He received his masters in education from the Northern Arizona University.
The District pointed out several inadequacies in Baldwin’s expert disclosures, highlighting her counsel’s explicit noncompliance with Rule 26(a)(2)(B).
The Scheduling Order stated Baldwin’s liability expert disclosures were due by September 13, 2024. On September 12, Baldwin provided the District with her “Notice of Expert Witnesses’ Designation,” noticing an intent to use unidentified treating “Medical and Mental Health Experts” and a single retained expert, Luedemann. Attached to that Designation was Luedemann’s CV. It was not until the District reached out to Baldwin’s counsel about the present motion that, on September 27, Baldwin provided Luedemann’s signed expert report, the contents of which are almost identical to the attorney-prepared Designation.
The District accurately argued that Luedemann’s disclosure is insufficient because a signed report was not originally provided and neither the Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). The District further claims that any attempt to supplement that disclosure now would be untimely. Baldwin’s response is limited to a single page stating that: (1) she provided the signed report as soon as the failure was noted and (2) she intends to supplement her disclosures following depositions of key witnesses despite the passage of the expert disclosure deadline.
Failure to Provide a Timely, Signed Report
Here, there is no dispute that Baldwin’s counsel failed to disclose a signed expert report by the deadline. There are also no facts upon which to find substantial justification. Thus, Baldwin’s only safe harbor is harmlessness. Weighing in Baldwin’s favor is the fact that counsel provided an expert report to the District three weeks later. And the District itself notes that the content of that report was consistent with that included in the attorney-prepared Designation.
However, the fact that Baldwin’s counsel tried to fix this particular insufficiency is undermined by the fact that counsel knew at the time of the expert disclosure deadline that the expert would need to rely on the depositions of school officials that counsel failed to schedule prior to the deadline. As a result, Baldwin’s counsel knew the initial report was insufficient and supplementation of that report is not necessarily appropriate under Rules 26(e)(2).
Insufficiency of the September 12 Designation
Setting aside the absence of a separate report, neither the September 12 Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). Indeed, Baldwin herself conceded that the Designation fails to provide “a complete statement of all opinions” Luedemann intends to give.
She argued he needed to review the subsequent depositions, her counsel failed to take. Additionally, other than broad statements regarding “review of case notes,” the Designation does not identify “the facts or data considered by” Luedemann in forming his opinions.
Nor does it identify the relevant exhibits as required by Rule 26(a)(2)(B)(iii). Luedemann’s CV does not list other cases he has been involved with, or state his compensation. Accordingly, the Court held that the September 12 disclosure failed to meet the requirements of Rule 26(a).
Insufficiency of Luedemann’s Untimely Signed Report
Finally, the District argued that Luedemann’s September 30 signed report is also deficient under Rule 26(a)(2)(B)(i), (ii), and (iii), and that he is not qualified to opine on K.B.’s emotional harm.
All Opinions
Baldwin herself has stated that supplementation of the expert report is required in light of the September 2024 depositions. And apparently such supplementation has already occurred. The Court held that there is no real dispute that Luedemann’s September 30 report did not fully state his opinions and the basis for them.
Facts of Data Considered
In his signed report, Luedemann identifies the information he reviewed in preparing his opinion. Specifically, he stated that he reviewed the pleadings, “school policies on Title IX compliance and student supervision,” “statements from school officials involved,” “relevant federal and state guidelines on student safety and harassment prevention,” and “case notes and personal statements from Leslie Baldwin regarding her son’s experience with Kalispell School District, CPS, and other authorities, providing additional context to systemic issues.”
The District argued that list is fatally deficient in that it does not include the Title IX investigation report or indicate that Luedemann has reviewed any other Title IX complaints so as to have a basis of comparison. The District is also concerned that Luedemann does not identify any of the underlying documents that would support his conclusions of, inter alia, a “documented hazing culture,” a “broader pattern of mishandling Title IX-related complaints,” and “numerous warning signs” of a “well-known hazing culture.”
Ultimately, while Luedemann’s failure to consider the Title IX investigation report is fodder for a challenge under the Federal Rules of Evidence or for cross-examination, the Court held that it is not a clear Rule 26 disclosure problem. This may be a serious trial challenge for Baldwin as Luedemann’s failure to consider this central document is likely to fatally undermine his credibility. Although a closer question, the District’s other concerns fall in this same category. The vagueness of Luedemann’s references makes it difficult to determine what specific information he relied on in formulating his opinions.
Exhibits
Luedemann does not identify any exhibits he intends to use.
Emotional Harm
The District argued that Luedemann is not qualified or at least has not demonstrated his qualification to assess K.B.’s alleged emotional harm. Recognizing his extensive experience as a teacher and with school administration, the Court held that nothing in Luedemann’s CV or report indicated that he has specialized knowledge in juvenile mental health.
Ultimately, the cumulative inadequacies in Baldwin’s disclosure regarding Luedemann are simply too many. Counsel’s failure to provide a timely and sufficient expert report under Rule 26(a)(2)(B) is therefore neither substantially justified nor harmless. The District’s request to exclude Luedemann as an expert is granted.
Hybrid Expert Disclosures
Although not raised by the District, Baldwin also has a serious problem as it relates to her disclosure of the treating physicians in the case. Her Rule 26(a)(2)(C) disclosure merely states:
“Plaintiff reserved the right to elicit testimony from any and all of Plaintiff’s medical providers as “hybrid” fact/expert witnesses, to testify regarding any and all impressions, opinions and observations developed in the court and scope of their treatment of Plaintiff, as well as the information contained in their records, which have been previously provided to counsel, or which have been requested and will be provided. Plaintiff further reserves the right to elicit testimony of these witnesses for future treatment opinions to which they have already opined or to which they opine in the future in either their medical records and/or deposition testimony.”
While this disclosure may be benevolently read to state the subject matter of the anticipated testimony, the Court held that it fails to provide a summary of the facts and opinions at issue. More fundamentally, it does not even identify the medical personnel at issue.
Prior to exclusion, however, the Court will give Baldwin an opportunity to show that her failure was either substantially justified or harmless.
Held
The Court granted the District’s motion to exclude Thom Luedemann from testifying based on his inadequate disclosure.
Key Takeaway:
Neither the September 12 Designation nor Luedemann’s CV included the necessary information under Rule 26(a)(2)(B)(i), (ii), (iii), (v), and (vi). Indeed, Baldwin herself conceded that the Designation failed to provide “a complete statement of all opinions” Luedemann intended to give.
Despite his extensive experience as a teacher and with school administration, nothing in Luedemann’s CV or report indicated that he has specialized knowledge in juvenile mental health.
On September 19th, 2021, Co-Plaintiff Cándida Cabrera visited the restaurant called Romano’s Macaroni Grill, located at Las Catalinas Mall in Caguas, Puerto Rico. At a certain point, Co-Plaintiff Cándida Cabrera was in the process of exiting the seating booth, and one of her feet slightly tripped on one of the spikes under the table. Given the elevation of the surface (step), Cabrera fell off the booth as she was trying to step outside, suffering the grave damages alleged in this complaint.
Plaintiffs Cándida Cabrera Escobar and her husband Osvaldo Cabrera sought to recover damages for the alleged negligence of Co-Defendants International Restaurant Services, Inc., owner and operator of a franchise which runs “Romano’s Macaroni Grill,” and its insurer, American International Insurance Company of Puerto Rico.
Defendants filed a motion in limine to preclude the testimony of Plaintiffs’ expert, engineer Otto González Blanco.
In their motion in limine to exclude Plaintiffs’ expert, Defendants argued that González’s testimony should be excluded because he did not base his opinion or testimony in appropriate scientific data, facts, or analysis and further that he did not review or consider all the evidence available in the case.
Accident Reconstruction Expert Witness
Otto González Blanco received training in accident reconstruction for fall and traffic accidents and has served as an expert in hundreds of fall cases. He has been working as an engineer since 1977. From 2008 to 2012, he enrolled in the Public Safety Program at University of North Florida, Jacksonville to become an expert in the field of accident reconstruction.
Defendants sought to exclude González’s testimony pursuant to Federal Rules of Evidence 702 and 703, as well as pursuant to Daubert and its progeny, on grounds that it is speculative, unreliable, and insufficiently grounded in appropriate scientific data, facts, or analyses. Defendants discussed González’s failure to review all the evidence of record, including architect Arch. Otheguy report and statement under penalty of perjury, as well as Cabrera’s deposition testimony. Specifically, Defendants argued that González’s opinions are based on “speculation and conjecture” because he did not review the aforementioned information.
Knowledge of the circumstances of the fall is relevant to González’s ability to offer his expert opinion
Defendants’ claim that González has “no knowledge of how the accident occurred according to Plaintiff Cabrera” because González did not read her deposition testimony, though relevant for vigorous cross examination, is not in and of itself sufficient to strike him as an expert.
The Court held that the knowledge of Cabrera’s account of how she fell can come from more than one source, although González should have clearly spelled out the source in his report or deposition testimony.
González’s unawareness or, at a minimum, lack of specificity in his report as to which foot of Cabrera got tangled with the table and where exactly her other foot landed leaves much to be desired for purposes of an accident reconstructionist. The Court held that it was not until González submitted a statement under penalty of perjury in support of an opposition to a motion for summary judgment that the details of the fall seemed to perfectly align with the details of Cabrera’s deposition testimony.
Nevertheless, in writing his report, it is clear that González was made aware of certain facts, data, and allegations in the case. Further, Eng. González visited the restaurant facilities personally on September 22, 2023, to take measurements and observe the scene of the accident.
Therefore, the Court refused to exclude González’s expert opinion on foundational grounds.
González need not have discussed every claim in Plaintiffs’ complaint in order to testify as to how the accident occurred
Defendants also argued that González has “no experience or training in the design of restaurant interiors,” and while he was involved in structural and site design of restaurants in the past, he has not “taken part in any such designs during the last fifteen (15) years.” The Court held that González’s educational background and professional experience qualify him to render an opinion in this case as an accident reconstructionist.
Defendants also argued that González’s report did not address every claim in Plaintiffs’ complaint; specifically, his report did not state “any opinion relative to the platform and/or the height of the same; the recessed lighting and/or lack of adequate warnings” and whether “these factored into Cabrera’s fall.”
The Court held that González does discuss both the platform height and the lack of warnings of the height in his report. It is true that González did not address Plaintiffs’ claim as to dimmed or recessed lighting; however, González need not have discussed every claim in Plaintiffs’ complaint in order to testify as to how the accident occurred.
González points to no codes, regulations or restaurant industry standards to support his report conclusions
González points to no codes, regulations or restaurant industry standards to support his report conclusions that tripod style tables are unacceptable for restaurant booths, that post square table bases should be used instead, and that platforms where booths rest must rise at least 4 inches from the floor. He also invoked OSHA safety standards which are applicable to workers, not guests such as Cabrera.
The only hint left of scientific reliability to a standard is González’s references in his report to two American National Standards Institute (ANSI) codes to justify the placement of a tape on a platform’s edge, the existence of which Cabrera admitted in her deposition she was aware as she stepped into the booth without any difficulties. However, as previously discussed, despite given multiple opportunities to explain whether, why or how those codes made the absence of a visual marking on the booth platform’s edge an unreasonably dangerous condition for guests at Romano’s Macaroni Grill, at his deposition González insisted that he did not come to testify about deviations from codes and regulations, but instead about deviations from the original design.
There is a clear contradiction between González’s deposition testimony and the statement under penalty of perjury submitted to defeat Defendants’ motion for summary judgment
In support of Plaintiffs’ opposition to Defendants’ motion for summary judgment, however, González sings a different tune from the one heard at the deposition and now suddenly feels compelled to make statements in his statement under penalty of perjury about deviations from codes and regulations.
Basically, there is a clear contradiction between González’s deposition testimony and the statement under penalty of perjury submitted to defeat Defendants’ motion for summary judgment. In the statement under penalty of perjury, González opined that the ANSI code was a standard “that was violated by the restaurant.” However, as previously explained in detail, González’s prior deposition testimony strayed far away from ANSI regulations or standards. This is in stark contrast to his statement under penalty of perjury, where he makes it clear that Defendants violated the ANSI standard.
Second, Defendants objected to several of González’s statements under penalty of perjury as they contain new information not included in his expert report or deposition. In his expert report, González does not specify or discuss the specifics of Cabrera’s fall but in his statement under penalty of perjury, González specifies exactly how Cabrera fell.
Therefore, if while under oath at his deposition González adopted his report as containing the entirety of his opinions, and his report he says that “her feet” (in plural) slightly tripped on one of the spikes under the table, he cannot now say that Cabrera’s right foot (in singular) got tangled with one of the spikes.
Analysis
The Court held that González does not cite any standards as to the type of table to be used or the required height of the platform where the booth rests. His attempt to springboard OSHA regulations outside of the work environment and impose them on restaurant guests is not admissible, particularly as there is not even evidence on the record that waiters at Romano’s Macaroni Grill actually go in and out of restaurant booths to do their jobs (as opposed to simply standing in front of the booth to take an order).
He was unable to answer with specificity questions at his deposition about the ANSI codes cited in his report and the OSHA standards. His assertions regarding said standards in his statement under penalty of perjury issued post deposition have been stricken. González cannot testify about recessed lighting because he is completely silent about that topic in his expert report.
Moreover, he – who has been retained as an accident reconstructionist – will not be able to even say what Cabrera has said under oath, namely that it was her right foot, not both of her feet, which allegedly got tangled with a leg of the table. Under these circumstances, it cannot be said that González’s conclusions were made “in a scientifically sound and methodologically reliable fashion.”
Held
The Court granted Defendants’ motion in limine to strike Otto González Blanco’s testimony.
Key Takeaway:
González’s attempt to springboard OSHA regulations outside of the work environment and impose them on restaurant guests is not admissible, particularly as there is not even evidence on the record that waiters at Romano’s Macaroni Grill actually go in and out of restaurant booths to do their jobs (as opposed to simply standing in front of the booth to take an order).
González points to no codes, regulations or restaurant industry standards to support his report conclusions that tripod style tables are unacceptable for restaurant booths, that post square table bases should be used instead, and that platforms where booths rest must rise at least 4 inches from the floor.
Case Details:
Case Caption:
Cabrera Et Al V. International Restaurant Services, Inc. Et Al
After Aries Marine filed its Complaint for Exoneration from or Limitation of Liability (the “Limitation Action), seven individuals filed claims for personal injury, including Glenn Gibson, Ronald Williams, Luis H. Jimenez (aka Gilberto Gomez Rojas), Gabriel Vilano, Lee Bob Rose, Tomas Arce-Perez, and Calvin Abshire.
The first six Claimants referenced above have retained Glenn Hebert as an expert in vocational rehabilitation and/or life care planning. They have also retained Randy Rice as an economic expert.
It appears undisputed for purposes of this motion that Rozas is an undocumented immigrant who is not authorized to work in the United States. During depositions and discovery requests in connection with this matter, Rozas repeatedly invoked the Fifth Amendment’s protection against self-incrimination, refusing to answer questions related to his citizenship status and personal history.
Glenn Hebert, MRC is a licensed Rehabilitation Counselor and certified Life Care Planner. He has a master’s degree in Vocational Rehabilitation Counseling.
Aries contended that (1) Hebert’s opinions about Claimant Luis Jimenez’s future lost wages are unreliable because Hebert is not qualified to opine on wage rates in the Mexican labor market; (2) Hebert’s opinions about the cost of Jimenez’s future surgeries are unreliable because Jimenez has testified that he is “not seeking further surgery,” and Jimenez’s doctor has not recommended surgeries of the sort discussed in Hebert’s report; and (3) Hebert’s opinions about the cost of Claimant Glen Gibson’s future lumbar fusion are unreliable because Gibson’s doctor has not recommended that Gibson undergo that procedure. As for Rice, Aries briefly contended that the Court should exclude his opinions because they are based on Hebert’s unreliable opinions.
However, the “danger that the factfinder will place improper weight on [the experts’] opinions is not implicated here” because the Court “is capable of assessing the probative value of the evidence and the weight [each expert’s] testimony should be given.”
Held
Therefore, the Court denied Aries’s motion to exclude the Claimants’ expert testimony provided by Glenn Hebert and G. Randolph Rice.
Key Takeaway:
In conclusion, Aries has not persuaded the Court that the alleged flaws in Hebert’s and Rice’s expert opinions cannot be adequately attacked through “[v]igorous cross-examination, presentation of contrary evidence, and careful [attention to] the burden of proof.”
In this trademark dispute, Defendants SuccessfulMatch.com and Successful Match Canada (both, Successful Match) sought to cancel on genericness grounds the registration of trademarks asserted by Plaintiffs Clover8 Investments and Reflex Media, Inc.
As Successful Match puts it, the trademarks in question “are used in connection with seeking a companion in the ‘Sugar Daddy’ and ‘Sugar Baby’ relationship space, online or through an App, which are designed for individuals seeking a specific type of arrangement typically between a young woman and a wealthy man who is often a millionaire.”
Each side retained an expert witness — Hal Poret for Successful Match and Brian Sowers for RMI — to conduct a consumer survey meant to determine whether the disputed marks are generic or not. Each side then attacked the other expert’s survey work as junk science that ought to be excluded from use in this case under Federal Rule of Evidence 702 and Daubert.
The Court convened a concurrent expert evidentiary proceeding to hear directly from Poret and Sowers about why they disagreed and why the other’s survey work might be so deficient as to warrant exclusion.
Poret and Sowers agreed that the top objections were whether (1) the scope of the “universe” of the relevant purchasing public each expert surveyed was appropriate; (2) it was appropriate to use examples tailored to the sugar-dating market in the survey’s “mini-test”; (3) the definitions for “brand” and “generic” used in the surveys were appropriate; and (4) the control terminology for “generic” names used in the surveys were appropriate.
Survey Research Expert Witnesses
Hal Poret is a public opinion researcher with a master’s degree in mathematics and a law degree from Harvard Law School. Since 2004, Poret has personally designed, supervised, and implemented over 350 consumer surveys concerning consumer perception, opinion, and behavior, including surveys relating to false advertising, claim substantiation, and trademark/trade dress matters. He has personally designed numerous studies that have been admitted as evidence in legal proceedings and has testified as an expert in over 50 proceedings before U.S. District Courts, the Trademark Trial and Appeal Board, and NAD.
Brian Sowers is a principal and testifying survey expert at Applied Marketing Science (AMS). He is responsible for the delivery of survey research and expert testimony in civil cases. Sowers also supports affiliated academic experts and economic expert witnesses in matters in which consumer opinions and behaviors are an important determinant of liability and damages.
The parties do not disagree that the genericness inquiry looks to whether the consuming public “uses or understands the term sought to be protected” as a generic name for the “services set forth in the certificate of registration.”
Rather, the dispute is about how to define the consuming public and populate the relevant survey universe, namely whether the proper universe is comprised of consumers of online dating or matchmaking services generally, which would match the description of the services designated in RMI’s registrations, or just consumers of “luxury” dating or “sugar dating” services.
The parties do not agree about the nature of the services offered in connection with the marks. Successful Match says RMI “expanded the scope of [their] services to include a more general universe of consumers” by “mov[ing] away from the sugar daddy dating space . . . and shift[ing] the focus to connecting people in more typical relationships.” RMI says that they offer a “luxury dating service” and nothing suggests they offer “a mainstream or traditional dating site.”
The Surveys’ Mini-Tests
Poret and Sowers each conducted a “Teflon survey,” which is a type of consumer survey that is “essentially a mini-course in the generic versus trademark distinction, followed by a test” wherein the survey-taker is asked to categorize various names or phrases as a “brand” name or term or “generic” name or term. Teflon surveys typically include a “mini-test” before the main test to ensure that the respondent properly understands and can apply the “brand”/”generic” distinction.
Sowers’ Mini-Test Questions
Poret criticized Sowers’ questions in the mini-test, which asked respondents to categorize as “brand” or “generic” the terms “Networking Website” and “Sugardaddie.” Poret believes these questions biased the survey results because they would lead to the exclusion of respondents who categorized “Sugardaddie” as generic, and so artificially tilt the results toward those most likely to say that RMI’s asserted marks are a brand.
At the concurrent evidentiary proceeding, Sowers stated that he tailored to the case by requiring respondents to apply the “brand”/”generic” distinction to “Networking Services” and “Sugardaddie,” the latter of which being a mark he thought was “a pretty prominent player in the marketplace” after conducting research on the sugar-dating space.
The thrust of Poret’s critique is that the term Sowers chose to “tailor” his mini-test is “as debatable as what the survey is about in the first place.” The Court held that the shortfall of this criticism is that an objection to the specific words Sowers used in the mini-test goes to “follow-on issues of . . . survey design” and not the threshold question about whether the survey was “conducted according to accepted principles.”
Indeed, at the evidentiary proceeding Poret stated that “it’s not the mere fact of including something in the mini-test that relates to the category that is the fatal flaw. . . . It’s the specifics of [Sugardaddie].” The Ninth Circuit has characterized “leading” or “slanted” questions as “technical inadequacies” that “bear on the weight of the evidence, not its admissibility,” and so the Court concluded that this specific objection to the word Sowers used in the mini-test most closely resembles those sorts of challenges.
Poret’s Common Term And Test Examples
Sowers said the “fatal flaw” in Poret’s survey was that its wording caused respondents to misunderstand the “brand”/”generic” distinction
For his part, Sowers said the “fatal flaw” in Poret’s survey was that its wording caused respondents to misunderstand the “brand”/”generic” distinction, which is said to render the survey irrelevant. Sowers specifically took issue with the prompt at the start of the main test, which told respondents they would need to “answer whether you think that term is . . . a common term that identifies a type of dating, matchmaking, and social introduction mobile app or website.” In Sowers’ view, the definition of a “common term” as a “type” of a dating or matchmaking service would cause respondents to be confused about what a “common” term is as a concept.
Prior to the language to which Sowers objects, respondents were told that “common terms” are “terms that identify a type of product or service. Common terms primarily let the consumer know what the product or service is, not who makes it. These terms primarily identify a type of product or service.
Sowers acknowledged he had no problems with that initial definition, so his objection appears to be directed at the shift from “identify a type of product or service” to “identify a type of [word or phrase for the specific product or service at issue].”
The Court held that this is a minor variation of no apparent import, particularly because respondents were required to read a prior, fuller definition and had to correctly apply the earlier definition before going on to the main test.
Sowers also did not present any evidence of actual confusion among respondents
Poret maintained that several of the main test’s questions were designed to control for potential confusion and that the overall results demonstrated that respondents properly identified brands versus generics. Sowers suggested that the discrepancy between respondents who identified “relationship” as a common term (96%) and “luxury dating service” as a common term (76%) was evidence of confusion. But well more than 50% percent of respondents agreed that “luxury dating service” was common, and a 20% variation in responses is not significant when there is more than majority concurrence.
Sowers also said that the terms Poret used as “common” controls confused respondents about the proper meaning of “generic” or “common.” The Court did not find it persuasive.
Survey respondents were instructed that a common term “let’s the consumer know what the product or service is” and that it “identifies a type of dating, matchmaking, and social introduction mobile app or website.” For each question in the main test, the term in question was capitalized at the top, and right below it the question read: “In the context of dating, matchmaking, and social introduction mobile apps or websites, do you think this is a . . . [(a)] Brand term [(b)] Common term [(c)] Don’t know.”
Since Sowers did not show that the omission of the word “app” or “site” caused respondents to ignore or become confused about the prior definitions, the Court held that it is entirely speculative to say that a respondent considering the word “relationship” would not have understood that they were being asked whether “relationship” referred to a brand or type of dating app (e.g., an app for persons looking for relationships as colloquially understood versus other arrangements) or “singles” was a brand or type of social introduction app for single individuals.
Other Challenges
Each side offered a grab bag of other comments that also do not support exclusion. RMI objected to the survey’s use of the phrases “brand term” and “common term” instead of “brand name” and “common name.” This exalts form over substance. Although “term” and “name” may have somewhat different dictionary meanings, RMI adduced no evidence that respondents using everyday English would have appreciated that subtle difference. In addition, a plethora of federal-court decisions use “term” in the context of genericness, which demonstrates that the two words are functionally interchangeable for present purposes.
Poret’s reasons for selecting his common controls do not demonstrate the survey’s irrelevancy, as RMI suggests. As discussed, the Court held that there is no shortfall that bears on admissibility in Poret’s survey’s definitions, the failure to include trailing words like “site” or “app” do not provide a basis for excluding the survey, and so RMI’s reliance on one or two isolated statements in Poret’s report proves too much in the contexts of the report and the concurrent proceeding.
Lastly, Successful Match’s suggestion that Sowers’ survey is irrelevant because it tests secondary meaning rather than genericness does not carry the day. The Court held that Sowers’ focus on consumers of “sugar dating” services does not warrant exclusion on this record, and the qualification rate alone does not establish irrelevancy. Because Successful Match does not contend that Sowers’s mini-test was actually testing secondary meaning rather than genericness and so should not have been included for that reason, the Court need not address the argument.
Held
The Court denied RMI’s motion to exclude the opinions of Hal Poret and Successful Match’s motion to exclude the opinions of Brian Sowers.
Key Takeaway:
The parties do not agree about the nature of the services offered in connection with the marks. Successful Match says RMI “expanded the scope of [their] services to include a more general universe of consumers” by “mov[ing] away from the sugar daddy dating space . . . and shift[ing] the focus to connecting people in more typical relationships.” RMI says that they offer a “luxury dating service” and nothing suggests they offer “a mainstream or traditional dating site.” In light of this dispute, the Court cannot conclude that either survey’s universe is comprised of respondents whose views would be irrelevant to the bottom-line question of whether the disputed mark, “taken as a whole, signifies to consumers the class of online [matchmaking or dating] services.
As a result, the Court cannot conclude that either expert, in choosing his respective survey universe, failed to reliably apply well-accepted principles in the field.
Case Details:
Case Caption:
Reflex Media, Inc. Et Al V. Successfulmatch.Com Et Al
Hamrit, a citizen of Algeria who lives in Washington, D.C., has been a Citibank customer with a personal checking and savings account since July 2019. In early May 2020, Hamrit’s relationship manager at Citibank, Jim Riutta, encouraged Hamrit to join the Citi Personal Wealth Management (“CPWM”) program.
He alleged that, while monitoring the trading activity for AERC stock, “a malfunction occurred on the brokerage account function of the Citibank App resulting in a ‘buy’ order of 7650 shares of AERC being wrongly executed at the purchase price of USD51.39 per share for a total purchase price of USD393133.50 excluding estimated commissions of USD2.95.” Hamrit maintains that he never confirmed this transaction, yet “[t]he Citibank App automatically swept the funds for this transaction from [his] personal accounts” without his authorization or approval.
The narrow issue to be determined by the Court is whether Plaintiff opened the online brokerage account which is the subject of the hearing (the “C29 Account”), and in doing so agreed to the unambiguous arbitration provision (the “Arbitration Agreement”) in the Account Application and Client Agreement (the “Client Agreement”).
Defendants Citigroup Global Markets, Inc., Citi Personal Wealth Management, and Citigroup, Inc. (collectively, “Citigroup”) filed a motion in limine to exclude the proffered expert testimony of Larry F. Stewart.
Forensic Science Expert Witness
Larry F. Stewart is a forensic scientist that specializes in chemistry and document security. He has earned an Associate of Arts degree from Florida Technological University in Orlando, a Bachelor of Science in Forensic Science degree from the University of Central Florida, also in Orlando and a Master of Forensic Sciences degree from Antioch University in Yellow Springs, Ohio. Also, Stewart has worked for the U.S. Government as a scientist and manager for over 25 years and in private practice for over 17 years.
Hamrit sought to offer expert conclusions from Larry F. Stewart that fall into two buckets. First, Stewart testified that the security standards Citigroup employed did not align with those of the National Institute of Standards and Technology (“NIST”) for high value transactions. Second, Stewart concluded that Citigroup’s system did not truly verify Hamrit’s identity given discrepancies in the account opening documentation.
Citigroup argued that Stewart is not qualified to offer an opinion regarding the financial technology matters relevant to whether Hamrit electronically executed the arbitration agreement, and also contended that Stewart’s testimony would not be helpful to the trier of fact as his opinions did not stem from any specialized expertise but instead merely convey lay observations.
Qualifications
The parties disagree on whether Stewart’s experiences qualify him to offer an expert opinion on the narrow issue of the trial: whether Hamrit electronically executed an arbitration agreement with Citigroup when his online brokerage account was opened.
Citigroup contended that Stewart is not qualified to offer an expert opinion concerning whether Hamrit electronically executed an arbitration agreement because he “has no demonstrated expertise in cybersecurity, financial technology, opening of online accounts, or computer science generally.”
A key piece of evidence in this case is a document called a ThreatMetrix report. One of Citigroup’s witnesses at trial, a Citigroup fraud risk officer named Eustacio Valfre, explained that this report captures “[e]ach digital session” that a client has on Citigroup’s online platform and that the report “has a bunch of different data points that [Citigroup’s fraud officers] review” when assessing fraud risk.
The Court held that Stewart plainly is not qualified to offer an expert opinion regarding the ThreatMetrix report. During voir dire, Stewart testified that he has never received any training concerning ThreatMetrix, has never offered an opinion concerning ThreatMetrix, and has never drafted a report concerning ThreatMetrix.
Relevance and Reliability
There are multiple instances of Stewart basing his testimony on insufficient or incomplete information to draw conclusions regarding the authenticity of the records at issue.
To begin with, the Court requires no expertise, for example, to observe that Hamrit’s “residential address at the date of the Account Application and Client Agreement was different from the residential address stated therein,” that Hamrit’s “immigration status is different from that stated in the Account Application and Client Agreement,” or that a document has “different fonts,” contains a “blurred image,” or lacks a signature. These are simply lay observations concerning the contents of two documents, which in no way rely on Stewart’s purported expertise in document security.
Stewart’s purported opinion that Citigroup did not verify Hamrit’s identity because there were discrepancies in the account opening documentation, therefore, does not rely on any expertise but is drawn from lay matters that the Court is “capable of understanding and deciding without the expert’s help.’”
Stewart’s proffered conclusion that Citigroup’s security standards were insufficient relied on a fundamentally flawed premise as he assumed the absence of biometric authentication. Stewart testified that Hamrit’s purported account-opening transaction did not comply with the standards of the NIST for large dollar transactions. Yet, the undisputed evidence at trial established that Hamrit’s account had in place biometric identification for access and that such access was indeed used when his online brokerage account was opened.
Held
The Court granted the Defendants’ motion in limine to exclude the proffered expert testimony of Larry F. Stewart.
Key Takeaways:
Stewart’s failure to base his conclusions on complete and accurate information severely diminishes any probative value of his testimony. And in particular, Stewart’s flawed assumption that biometric access was not in place when Hamrit’s online brokerage account was opened, in the face of overwhelming and undisputed evidence to the contrary, renders his conclusion about whether Citigroup met the NIST’s standards devoid of any probative value and require exclusion of that conclusion.
Stewart’s purported expertise in “document security” was devoid of any knowledge or training that would allow him to opine on the probative value of the information in a technical product like the ThreatMetrix report that captures a variety of pieces of digital evidence and requires specialized training to properly understand and interpret.
YouTuber and Minnesota state representative filed a lawsuit claiming that the state’s new law criminalizing the use of deepfakes to influence elections violates their First Amendment right to free speech.
Jeff Hancock, the founding director of Stanford’s Social Media Lab, submitted his expert opinion earlier this month. His opinion included a reference to a study that purportedly found “even when individuals are informed about the existence of deepfakes, they may still struggle to distinguish between real and manipulated content.” But the Plaintiff’s attorney contended that the study Hancock cited—titled “The Influence of Deepfake Videos on Political Attitudes and Behavior” and published in the Journal of Information Technology & Politics—did not actually exist.
Communications Expert Witness
Jeff Hancock is the founding director of the Stanford Social Media Lab and is Harry and Norman Chandler Professor of Communication at Stanford University. Professor Hancock and his group work on understanding psychological and interpersonal processes in social media. The team specializes in using computational linguistics and experiments to understand how the words we use can reveal psychological and social dynamics, such as deception and trust, emotional dynamics, intimacy and relationships, and social support.
Plaintiff argued that the study was a “hallucination” generated by an AI large language model like ChatGPT. A part-fabricated declaration is unreliable.
The citation bears the hallmarks of being an artificial intelligence (AI) “hallucination,” suggesting that at least the citation was generated by a large language model like ChatGPT. Basically, Plaintiffs did not know how this hallucination wound up in Hancock’s declaration, but it calls the entire document into question, especially when much of the commentary contains no methodology or analytic logic whatsoever.
Moreover, Plaintiffs alleged that the title of the alleged article, and even a snippet of it, does not appear on anywhere on the internet as indexed by Google and Bing, the most commonly used search engines. Searching Google Scholar, a specialized search engine for academic papers and patent publications, reveals no articles matching the description of the citation authored by “Hwang” that includes the term “deepfake.”
The existence of a fictional citation Hancock (or his assistants) didn’t even bother to click calls into question the quality and veracity of the entire declaration.
Key Takeaway:
A well-published academic from Stanford was accused of spreading AI-generated misinformation despite being retained to testify in favor of a law designed to keep AI-generated misinformation out of elections. The irony was not lost on anyone.
Plaintiff filed its Original Petition with the Court on March 25, 2022, alleging causes of action for breach of contract, negligence, fraudulent inducement, negligent misrepresentation, fraud, and a constructive trust – Plaintiff sought relief in the form of actual and exemplary damages.
This lawsuit arises from a proposed security upgrade construction project that was to involve the construction of significant physical improvements and modifications to the BISD campus and purportedly would involve an electronic monitoring and communication system that would link Banquete Independent School District (hereinafter referred to as “BISD”) to local law enforcement agencies in the event of a school attack or other kind of emergency (hereinafter referred to as the “Project”). The total cost of the project was $2,199,762 and involved an additional recurring annual fee of $46,149 payable to the Alliance for Community Solutions, LTD.’s (hereinafter referred to as “ACS”) in perpetuity, presumably for monitoring and storing data from the system.
According to the Plaintiff, the only document officially presented to the BISD Board of Trustees (hereinafter referred to as the “Board”) was an Interlocal Agreement between BISD and ACS, which did not include any of the details, scope of work, or costs of the Project. Current Superintendent of Schools, Stacy Johnson has made numerous requests for information and accounting to ACS, but ACS has failed to provide BISD with any information. Between the time the Project began and the date of the filing of this lawsuit, very little progress has been made by ACS and the work that has been performed is subpar in comparison with industry standard for this type of work.
Plaintiff alleged that Defendant’s expert Joe Abrams lacked the experience to testify as a qualified expert witness and is too biased to testify as an expert witness in this lawsuit.
Project Management Expert Witness
Joe Abrams is both the Executive Director and Chairman of ACS. Abrams was also involved with the formation of ACS. He assisted and provided input on the creation of ACS’s bylaws and helped with the filing of certain documents involved in forming the company.
His specialties include collaborative systems, information sharing, interoperability, inter-agency information, regionalism, centralized credentialing, emergency resource systems, volunteer systems, responder registry, enterprise homeland security solutions, special needs registry, communications system, enterprise deployment, online training programs, training coordination, program management, surveillance systems, critical infrastructure registry, inventory management, project management and event calendaring.
Defendant stated that Abrams is expected to testify regarding the following topics: (1) extent and sufficiency of the work performed by ACS; (2) accuracy and completeness of the assessment of ACS work summarized in the report prepared for BISD by the Plaintiff’s expert; (3) sufficiency of the cost estimates provided by the Plaintiff’s expert; and (4) the amount of damages ACS is seeking in its counterclaims.
Banquete asserted that Abrams, as the Executive Director and Chairman of ACS, has a financial interest in the outcome of the case and therefore, his testimony is irrelevant because he cannot give unbiased expert testimony.
When this case was referred to United States Magistrate Judge Jason B. Libby for case management, he opined that the factfinder can weigh the extent to which Abrams’ financial interest in the outcome of the case bears upon his testimony’s credibility.
In his deposition, Abrams stated he is not and has not ever been a general contractor, he does not have any firsthand experience in commercial construction, and ACS relies on video and surveillance experts, including law enforcement, when installing electronic monitoring and communication systems. Libby held that Abrams is not designated as a construction expert for this case involving the design and installation of a security system.
Instead, Banquete should be afforded the opportunity to cross examine Abrams about these issues and the jury may then determine the weight to be given to his testimony after being given proper instructions.
The Court adopted Libby’s recommendation and denied the Plaintiff’s motion to exclude the testimony of Joe Abrams.
Held
The Court denied the Plaintiff’s motion to exclude the testimony of Joe Abrams.
Key Takeaway:
While Banquete uses the key words relevancy and reliability, its arguments actually relate to the weight to be given to Abrams’ testimony, not to the admissibility. The Court should not substitute its own judgment for that of the jurors who will be the factfinders in this case.
Case Details:
Case Caption:
Banquete Independent School District V. The Alliance For Community Solutions, Ltd.
