Expert Witness Profiler

Tag: Clothing

  • Safety Expert’s Testimony on Clothing Rack Lighting Admitted

    Safety Expert’s Testimony on Clothing Rack Lighting Admitted

    This dispute involves injuries sustained by Plaintiff Virginia English (“Plaintiff”) when she fell in a Hollister Co. store at the Greenwood Mall in Bowling Green, KY (the “Hollister Store”). English alleged that she was looking at some clothes while walking out of the right side of the store when she tripped over a clothes rack and fell. 

    Defendants Abercrombie and Fitch Stores, Inc. d/b/a Hollister Co. and Abercrombie & Fitch Management Co. (collectively, the “Abercrombie Entities” or “Defendants”) filed a motion to exclude the testimony of David Johnson (“Johnson”), English’s expert witness. Meanwhile, English filed a motion to exclude the testimony of Defendants’ expert, Randy Gray (“Gray”).

    Safety Expert Witnesses

    David Johnson is a board certified safety professional. He performs forensic engineering and safety expert witness work for attorneys and insurance adjusters for cases involving slips, trips, missteps and falls, falls from elevation, stairway falls and industrial accidents.

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

    Randy Gray has over 25 years of conducting OSHA inspections of workplaces based on federal and state regulations, while being employed at Kentucky Labor Cabinet, Division of Compliance, Occupational Safety & Health. He has also worked fifteen years in the private sector as the President of Grayhawk Advantage, Inc., where he provides expert witness investigation services and reports regarding hazardous workplace conditions that caused injuries to clients.

    He has a Bachelor of Science degree from Murray State University in Occupational Safety & Health, a Masters degree in Science from Murray State University in Occupational Safety & Health, and twenty-five years of specialized training courses at the Occupational Safety and Health Training Institute.

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

    Discussion by the Court

    David Johnson

    English offered the opinion of David Johnson to show that the clothing rack “formed a low profile, low contrast, inconspicuous obstruction in a foreseeable passageway/walkway that was unsafe and unreasonably dangerous.” 

    Defendants asserted that Johnson’s report is not reliable because it is based on his own speculation and on incomplete information. Defendants also asserted that Johnson’s testimony is unreliable because “his own testimony contradicts his assumptions,” and that “Johnson cites no applicable codes or regulations with which the clothing rack failed to comply with.”

    Reliability

    However, the Court found nothing wrong with Johnson’s assumption that English fell when “her foot be[came] stuck and then unstuck under the clothing rack.” It did not constitute “subjective belief based on speculation and incomplete information” because Johnson did not fabricate that English’s foot became stuck under the rack. In fact, English’s medical records state that she “sustained a Type III RTC from falling when her foot caught on a rolling clothes hanger in the store.” Therefore, the argument that Johnson’s opinion is based on unsupported speculation is unpersuasive, as Johnson’s assumption that English fell when her foot became stuck under the clothing rack is supported by evidence in the record.

    Defendants challenged Johnson’s opinion that the clothing rack constitutes a platform or a display base because “the feet of clothing rack were below knee-level and/or under three feet in height.” Defendants also argued that because the feet of the rack cannot be separated from the clothing rack, Johnson’s opinion must be excluded as it is in direct contradiction of his own testimony and would also mislead the jury and confuse the issues. And Defendants challenged Johnson’s opinion because he opines that Hollister did not violate any applicable codes, and because he based his opinion on the existence and placement of the clothing rack, not whether the clothing rack was defective.

    The Court held that the objections raised by Defendants regarding Johnson’s reliability go to the weight that should be given to the expert’s opinions, and not to their exclusion.

    Relevance

    Defendants asserted that Johnson’s opinion regarding the lighting of the clothing rack was irrelevant because “he did not observe the rack with the additional holiday lighting that was placed.”

    However, the Court held that Johnson relied upon the testimony taken in the case, including of the store manager who testified that the store is dim, dimmer than most other stores in the mall, and that the lighting can create shadows on the floor. 

    Moreover, the fact that Johnson did not observe the rack with the additional holiday lighting is a potential limitation to his opinion, the weight of which can be decided by a jury.

    Defendants also argued that Johnson’s opinion that the rack was unexpected would confuse the jury because the Sixth Circuit has already taken judicial notice that clothing racks are expected in department stores during the holiday shopping season. The Court ruled that Johnson’s opinion about the rack being unexpected is specific to the facts of this case, not that all clothing racks in a store are unexpected. 

    Randy Gray

    Defendants retained Randy Gray “to render an opinion regarding the December 18, 2022, fall accident of English.”

    Qualification

    With twenty-five years of specialized training courses at the Occupational Safety and Health Training Institute, Gray was found qualified by the Court under Rule 702 and Daubert to offer expert opinions on whether an unsafe and dangerous condition existed at Hollister, and whether Hollister failed to inspect, maintain, remedy, or warn of that condition.

    Relevance and Unduly Prejudicial

    English also argued that Gray’s opinion that Defendants did not violate any Codes of Federal Regulation “will not assist the trier of fact and its probative value is substantially outweighed by the danger or confusing the issues or misleading the jury.”

    In this case, the Court held that Gray’s testimony will assist the trier of fact in determining whether a dangerous condition existed at the time of English’s fall. First, although OSHA standards apply to employees, Gray’s opinion could still help jurors determine whether an unsafe condition existed at the time of English’s fall. Second, the objections raised by English go to the weight that should be given to the expert’s opinions, and not to their exclusion. 

    Since this opinion is not unfair or inappropriate, the jury would be within its discretion to credit Gray’s testimony to conclude that a dangerous hazard did not exist. 

    Held

    • The Court denied Hollister’s motion to exclude David Johnson’s testimony.
    • The Court denied English’s motion to exclude Randy Gray’s testimony.

    Key Takeaway:

    An expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. Stated another way “an opinion may be based on facts that are ‘assumed,’ or ‘hypothetical’ at the time of the report, provided that those facts are ultimately ‘established’ by other, independent evidence.”  Therefore, the argument that Johnson’s opinion is based on unsupported speculation is unpersuasive, as Johnson’s assumption that English fell when her foot became stuck under the clothing rack is supported by evidence in the record.

    Case Details:

    Case Caption: English V. Abercrombie & Fitch Stores, Inc. Et Al
    Docket Number: 1:23cv128
    Court Name: United States District Court, Kentucky Western
    Order Date: June 06, 2025

  • Marketing Expert’s Consumer Confusion Survey Admitted

    Marketing Expert’s Consumer Confusion Survey Admitted

    Plaintiff Alfwear, Inc. (“Alfwear”) is an outdoor clothing company that sells products under the KÜHL mark. Ibkul is a clothing company specializing in athleisure wear.

    In November 2021, Alfwear initiated this lawsuit against Ibkul, alleging trademark infringement, unfair competition, and dilution. Alfwear, Inc. has alleged that the sales of apparel using the IBKÜL trademark infringed Plaintiff’s rights in its KÜHL trademark.

    Alfwear disclosed that it intended for Rhonda Harper to serve as an expert “regarding research surveys, consumer confusion, and likelihood of confusion. Such evidence may also be offered in support of damages issues in the case.”

    Ibkul disclosed that Krista Holt would “serve as an expert in response to Plaintiff’s Expert Disclosures, including the general subject matter of ‘research surveys, consumer confusion, and likelihood of confusion’ and ‘damages issues,’ including any deductions and apportionment.”

    The parties moved to exclude each other’s expert under Rule 702. 

    Marketing Expert Witness

    Rhonda J. Harper has over 30 years of experience at the highest levels of marketing, research, and branding. She has been the top marketing executive for several Fortune 100 corporations, served as an adjunct marketing professor at two universities, held national and international board positions in leading brand and marketing associations, led a leading global agency division, and founded an organic growth strategic consultancy. Harper has also provided and rebutted hundreds of trademark and trade dress infringement surveys for litigation purposes.

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

    Intellectual Property Expert Witness

    Krista Holt is a Managing Director at Econ One Research, Inc. (“Econ One”). Holt is an active member of the American Bar Association, Intellectual Property Owners Association, International Trademark Association, National Association of Certified Valuators and Analysts and Licensing Executives Society.  She was the Chair of the LES Valuation and Taxation Committee.  Holt is also a Certified Licensing Professional and an Accredited Valuation Analyst, and is an instructor for the Certified Licensing Professional program.

    She has lectured on a variety of intellectual property topics for the American Bar Association, Licensing Executives Society, IPI, DRI, Harvard Law, George Washington Law and various other organizations and universities.

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

    Discussion by the Court

    Krista Holt

    Holt was asked by IBKUL to serve as an expert in response to Alfwear’s expert, including the general subject matter of research surveys, consumer confusion, and the likelihood of confusion. Holt was also asked to serve as an expert on damages issues “including any deductions and apportionment.”

    Alfwear contended that portions of Holt’s expert report should be excluded on three bases. First, it argued that Ibkul failed to disclose Holt at the deadline for affirmative experts, so the portions of her report that go beyond the scope of the Harper Report should be excluded. Next, it argued that Holt was not qualified to offer opinions on marketing. Finally, Alfwear argued that Holt used the wrong standard to critique Harper’s methodology. The Court considers each argument in turn.

    Rule 26

    Holt was previously retained by another defendant in a different case to assess the fame of the KÜHL mark (the “Fame Survey”). Holt conducted an online survey of 394 respondents from the general public in 2020, which indicated that consumers do not consider KÜHL to be famous.

    Alfwear argued that two portions of the Holt Report should be excluded for failure to comply with the Rules of Civil Procedure. First, it argued that the Fame Study in the Holt Report should be excluded because Holt was designated as a rebuttal expert on topics that did not include the fame of any of Alfwear’s marks.

    Second, it argued that Holt’s opinions about damages should be excluded because Holt was not timely disclosed as a damages expert and because the Harper Report does not address damages.

    The Court held that the Fame Study is not responsive to the Harper Report and Alfwear does not have the ability to find another expert to conduct a responsive study at this stage in the litigation. Morover, Ibkul’s failure to disclose Holt was prejudicial to Alfwear. The deadline for expert discovery had passed and Alfwear did not have the opportunity to retain a responsive damages expert. In conclusion, the Court held that it would be highly prejudicial to allow this damages testimony into trial without giving Alfwear an opportunity to respond with its own expert.

    Qualifications

    Alfwear next argued that Holt is not qualified to offer an opinion on whether the parties sell in different product categories.

    However, Alfwear did not challenge Holt’s qualifications to offer the other rebuttal opinions presented in her report. Holt’s experience and education qualify her to offer a rebuttal opinion on Harper’s Confusion Survey. Holt has a master’s in business administration and has over ten years of experience in accounting and marketing. Holt has provided survey services in trademark disputes for over fifteen years, including designing and rebutting trademark surveys. She also has also presented on survey design and brand valuation. Accordingly, the Court evaluated Holt’s rebuttal testimony to determine whether it is reliable.

    Critique of Confusion Survey

    Alfwear argued that Holt’s critique of the Confusion Survey should be excluded because Holt used an incorrect standard to evaluate the data.

    Ibkul relied on a supplemental declaration by Holt. The Holt Declaration stated that it sought to “clarify and supplement” the report “in light of Plaintiff’s challenges.”

    Because the Rules prohibit preparing a declaration solely to strengthen and deepen Holt’s existing opinions, the Court has not considered the Holt Declaration or Ibkul’s arguments relying on it.

    As for Holt’s critique of the standard used to evaluate the survey in the Harper Report, the experts’ competing opinions about which standard should be used present the classic battle of the experts and it is up to a jury to evaluate what weight and credibility each expert opinion deserves.

    If Holt’s rebuttal opinion uses an outdated standard, Alfwear may seek to present that information to the jury at trial. However, the Court held that it is not a sufficient basis to exclude Holt’s opinions at this stage.

    Rhonda Harper

    As part of its litigation strategy, Alfwear hired Rhonda Harper to determine whether consumers would confuse the IBKÜL mark with the KÜHL mark. Harper was asked “to conduct a forward likelihood of confusion survey among the relevant population and provide [her] opinions.” Harper utilized a Squirt-style sequential line-up study to evaluate whether consumers would confuse the KÜHL and IBKÜL marks (the “Confusion Survey”).

    The Court first addresses whether the Confusion Survey uses reliable methodology. Then, it turns to whether Harper reliably applied this methodology and addresses Ibkul’s arguments against the Report’s admission.

    Methodology

    The Court held that Harper used an accepted method for measuring consumer confusion in trademark disputes and applied recognized standards as per the Daubert factors. 

    Application

    Confusion Survey Universe

    The Court first considered the Confusion Survey’s universe and whether the sample it considered was representative.

    Ibkul first argued that the Harper Report should be excluded because the relevant universe it surveyed is not accurate.

    The Harper Report states that “the relevant universe was defined as past and potential purchasers of Defendants’ products.”

    Ibkul argued that there should be a far more limited universe, arguing that the survey should be excluded because its respondents are outside Ibkul’s typical shopper, a woman in Florida with an income around $150,000 who is willing to pay around $100 for apparel and shops at golf, tennis, and country clubs.

    The Court held that the consumers represented in the Confusion Survey reasonably approximate Ibkul’s potential customers; therefore, the survey universe is not so broad that the Survey should be excluded.

    Ibkul contended that the survey universe is too broad because it contains individuals interested in athleisure wear, which it argues is a “very general class of products.” However, Ibkul sells athleisure wear.  It does not explain why the survey universe should not consider individuals interested in athleisure wear, which includes its product line. Therefore, the Court held that Ibkul has not shown that the survey is so broad that it does not represent potential Ibkul customers, and the Confusion Survey should not be excluded on this basis.

    Confusion Survey Conditions

    Ibkul challenged the Survey’s use of hang tags without showing the parties’ clothing, arguing that showing only the hang tags fails to recreate marketplace conditions. Ibkul also argued that survey conditions do not match real world condition because IBKÜL is in a different product category than KÜHL. Moreover, Ibkul contended that the Confusion Survey does not accurately reflect market conditions.

    However, the Court held that although Ibkul has pointed out issues with the survey that may diminish its evidentiary value, none of these flaws are so serious and pervasive that the entirety of the Confusion Survey should be excluded.

    Confusion Survey Methodological Errors

    Finally, Ibkul argued that the Confusion Survey’s methodology was unreliable. It argued that the questions included were leading and suggestive, that different control hang tags should have been used, and that there were errors in the report’s calculations.

    However, the Court held that Ibkul has not shown that any survey questions were so leading that the Confusion Survey should be excluded. It did not explain why any questions used in the survey were so leading that they cause serious and pervasive flaws in the Harper Report. Moreover, the survey’s use of a control group provides assurances of its reliability.

    Held

    • The Court granted in part and denied in part Alfwear’s motion to exclude Krista F. Holt’s expert report.
    • The Court denied Ibkul’s motion to exclude testimony and opinions of Plaintiff’s survey expert Rhonda Harper.

    Key Takeaways:

    • Ibkul has introduced criticisms of the Confusion Survey that may ultimately show that the Survey, and Harper’s opinions based on it, have little evidentiary value. But that is a decision for the jury. Ibkul has not established that the Survey has such serious and pervasive flaws that the Court should exclude it altogether. 
    • Alfwear has demonstrated that the Fame Survey and damages calculations should be excluded. It has also established that Holt cannot offer testimony about whether the parties sell in different product categories. 

    Case Details:

    Case Caption: Alfwear V. Ibkul Ubhot
    Docket Number: 2:21cv698
    Court Name: United States District Court for the District of Utah
    Order Date: May 12, 2025