Expert Witness Profiler

Tag: Consumer

  • Marketing Expert Witness’ Testimony on Consumer Perceptions Excluded Because His Survey is Flawed

    Marketing Expert Witness’ Testimony on Consumer Perceptions Excluded Because His Survey is Flawed

    Plaintiff Multiple Energy Technologies, LLC (“MET”) accused Under Armour of false advertising in relation to certain products that contain bioceramic powder. MET contended that Under Armour inaccurately claimed that the Federal Food and Drug Administration had determined that those products enhanced recovery.

    Under Armour sells activewear and sleepwear products directly to consumers. This includes the sale of products containing a competing bioceramic product known as Celliant, which is manufactured by Hologenix, LLC (“Hologenix”). Under Armour advertises these products separately from their other product offers and as helping to promote recovery, especially for athletes.

    Plaintiff MET brought four claims against Defendant Under Armour, Inc.: violation of the Lanham Act, violation of the Sherman Act, misappropriation of trade secrets; breach of non-disclosure agreement; tortious interference with contract; tortious interference with prospective business expectancies; unjust enrichment; unfair competition; conversion; a claim for an accounting; and a claim for injunctive relief.

    MET retained Dr. Thomas J. Maronick, a survey expert who designed “a two-part online consumer study to determine consumers’ perceptions of claims Under Armour [made] about Celliant on the landing pages of its website.” Maronick stated that, under well-established survey principles, “each of the two parts of the survey had a Test Group and a Control Group[.]”

    Under Armour filed a motion to exclude the expert report of Thomas J. Maronick.

    Marketing Expert Witness

    Thomas J. Maronick is an Emeritus Professor of Marketing in the School of Business and Economics at Towson University in Towson, Maryland. His educational background includes a BA in Philosophy from St. Thomas Seminary, an MSBA from the University of Denver with a major in Marketing, a Doctorate in Business Administration (“DBA”) from the University of Kentucky with a major in Marketing, and a JD from the University of Baltimore, School of Law. He is an inactive member of the Maryland Bar.

    At Towson University, he taught undergraduate and graduate courses in strategic marketing, consumer behavior, and marketing research. He has also taught graduate and executive development courses in strategic marketing and marketing research at several universities in the Baltimore and Washington, D.C., areas.

    His professional background includes serving as the Director of Impact Evaluation in the Bureau of Consumer Protection at the Federal Trade Commission (“FTC”) from 1980 to 1997. In that capacity, he was the in-house marketing expert for all divisions of the Bureau, advising attorneys and senior management on marketing aspects of cases being considered or undertaken by Commission attorneys.

    Get the full story on challenges to Thomas J. Maronick ‘s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    In Survey 1, the test group was shown actual Under Armour landing pages, one of which contained the statement, “Products powered by Celliant have been determined by the FDA to increase localized circulation, leading to faster recovery[.]” The control group was presented with landing pages that contained the statement, “The FDA has not made a determination about whether products powered by Celliant increase localized circulation leading to faster recovery.” The images accompanying these pages were different—the test group saw an image of a woman wearing a jacket, and the control group saw an image of two men wearing jackets. 

    In Survey 2, the test group was shown an image of a woman wearing shorts with the statement, “Products powered by Celliant have been determined by the FDA to increase localized circulation leading to faster recovery.” Id. at 15. The control group was shown an image of a man wearing a short-sleeved shirt with the language “POWERED BY REDWAVE. Not intended for use as a medical device.”  At Maronick’s deposition, he recharacterized his opinion related to Survey 2 by stating that it was not a test/control survey.

    Maronick’s Testimony

    Maronick concluded based on his two surveys that “Under Armour’s claims about increased circulation and faster recovery are Important or Very Important in consumers’ decision to buy Under Armour products with either Celliant or Redwave fabric.”

    Maronick identified three important findings from his surveys:

    (1) “a statistically higher percentage of respondents seeing the Under Armour webpage claiming that products ‘Powered by Celliant have been determined by the FDA to increase localized circulation, leading to faster recovery’ believe the Under Armour products will provide the increased circulation and faster recovery benefits claimed than do respondents who saw language that ‘the FDA had not made a determination whether products made with Celliant increase circulation and lead to faster recovery’”

    (2) “a statistically higher percentage of respondents seeing Under Armour’s claims made in its webpages for its sleep ware products that the products ‘Powered by Celliant have been determined to increase localized circulation, leading to faster recovery’ believe they will achieve those benefits than do respondents for Under Armour products seeing claims that the Under Armour products that are ‘Powered by Redwave’ and ‘are not intended for use as a medical device’”

    (3) “in both Study 1 and Study 2, Under Armour’s claims about increased circulation and faster recovery are Important or Very Important in consumers’ decision to buy Under Armour products with either Celliant or Redwave fabric.” 

    1. Survey 1

    Parties’ Position

    As to Survey 1, first, Under Armour argued that Maronick’s survey is flawed because there are material differences in the control image and the test image.

    In Maronick’s survey, the images he used for the control and test groups were very different, with one image showing a woman, and the other image showing two men wearing the product. The two images also included different language that had no bearing on the “FDA determined” language and placed the FDA language in different places on the images. 

    Second, Under Armour argued that the language Maronick used for the control group was a negative statement of the product rather than testing for the absence of the FDA language, which is the proper procedure for test/control surveys. 

    Third, Under Armour argued Maronick misled survey respondents by using different control language in two different questions that were supposed to use the same control language.

    Fourth, Under Armour argued Maronick failed to follow basic rules of survey bias by: (1) failing to rotate multiple choice answers for the survey respondents to guard against order bias; (2) failing to take non-response factors into account; (3) using leading questions and thus failing to guard against demand effects; and (4) failing to describe the target population.

    In response, MET argued that the flaws in Maronick’s study go to the weight, and not the admissibility of his opinions. 

    Analysis

    A proper control should be as similar to the experimental stimulus as possible, because if there are multiple differences between them, it may be impossible to determine which of those differences caused any disparity between the respondents’ reactions to them. An improper control undermines the reliability of a survey because the lack of a proper control makes it difficult to assess responses.

    The Court held that the control was improper because the test group saw an image of a woman wearing a jacket, and the control group saw an image of two men wearing jackets.  In addition to the different images, Maronick also improperly showed the test group language that was not shown to the control group. The test group image included the phrase “ALL DAY ALL NIGHT – ” and ” – RECOVERY[,]” but the control group image did not. The Court held this to be a material difference, as the test group was shown additional recovery-promoting language that could have reinforced or emphasized the FDA’s determination. 

    The Court added that Maronick’s approach to the language used in the control and test groups was also flawed because rather than excluding the “FDA determined” language, he improperly made it a negative claim—”the FDA has not made a determination . . . .” 

    Beyond the control issues, at least three of the other flaws Under Armour identified supported exclusion. The Court found that Manorick failed to rotate answers, did not take into account non-response and did not identify the target population.

    While these issues with the control and test groups may not warrant exclusion on their own, they weigh in favor of exclusion when viewed in combination with the other flaws in the survey.

    2. Survey 2

    As to Survey 2, first, Under Armour stated that Maronick admitted that this survey is not a “test/control” survey as he states in his expert report, but was instead two separate consumer perception surveys. Under Armour argued that because of this, any of Maronick’s report and testimony that relate to Survey 2 should be excluded because experts cannot recharacterize or alter their opinions in a deposition.  Second, Under Armour argued that even if Survey 2 were two separate consumer perception surveys, Maronick’s opinions on Survey 2 are still inadmissible because: (1) it was not a test/control survey, so Survey 2 “is not a survey capable of measuring any causal impact of any particular language[;]” and (2) the two purported surveys do not “fit” the case. 

    In response, MET argued that Survey 2 was a consumer perception survey, not a test/control survey, so it should not be excluded because a control group is not necessary when the survey is not seeking to show causality.

    It is noteworthy that Maronick claimed in his expert report that Survey 2 was a test/control survey. But at his deposition, he abandoned this opinion. Additionally, even if Survey 2 were still valid without a control, Maronick improperly drew the respondents’ attention to the language in question by drawing a box around the language and asking the respondents “What does the highlighted statement say or suggest about this product?”

    Even if the Court were to accept Manorick’s purported explanation that Survey 2 was really two separate surveys, then each of those surveys also lack a control, which is a “fatal flaw[.]”

    Held

    The Court granted Under Armour’s motion to exclude Dr. Thomas J. Maronick’s expert report.

    Key Takeaways:

    • Survey 1 contained certain flaws that, standing alone, may have been technical and pertained more to the weight of the evidence. However, the distinction between weight and admissibility is sometimes a matter of degree. The Court concludes that the flaws in Survey 1 are of such a degree that they cumulatively render Maronick’s opinion unreliable under Rule 702. 
    • Maronick’s testimony and report on consumer perceptions of Under Armour’s claims do not pass muster under Rule 702.

    Case Details:

    Case Caption: Multiple Energy Technologies, Llc V. Under Armour, Inc
    Docket Number: 2:20cv664
    Court: United States District Court, Pennsylvania Western
    Order Date: December 23, 2024
  • Credit Reporting Expert Witness’ Testimony on Consumer Access to OFAC Information Admitted

    Credit Reporting Expert Witness’ Testimony on Consumer Access to OFAC Information Admitted

    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

    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.

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

    Discussion by the Court

    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
    Dated: November 13, 2024
  • Marketing Expert Witness’ Testimony on Students’ Exposure to Fraudulent Rankings Admitted

    Marketing Expert Witness’ Testimony on Students’ Exposure to Fraudulent Rankings Admitted

    Plaintiffs Iola Favell, Sue Zarnowski, Mariah Cummings, and Ahmad Murtada (“Plaintiffs”) alleged that Defendant University of Southern California (“USC”) engaged in a scheme to artificially inflate the U.S. News & World Report (“US News”) ranking of USC’s Rossier School of Education (“USC Rossier”) by submitting incomplete data to US News — and then marketed that fraudulent ranking to the public.

    An internal investigation conducted by USC’s outside counsel, Jones Day, determined that USC had submitted student selectivity data only for USC Rossier’s highly selective, in-person PhD program — but not from its less-competitive EdD program.  The less-competitive EdD program was offered online after 2015 in collaboration with 2U, a company that offers technology platforms for online programs and provides advertising and recruiting for those online programs. 

    Plaintiffs alleged that USC, knowing the importance of the rankings on prospective students’ school choice, heavily marketed USC Rossier’s rapidly rising ranking to the public to boost enrollment in the online programs. USC orchestrated this scheme, Plaintiffs alleged, through its submission of false/incomplete data and then promoted the resulting ranking knowing that it was misleading.

    USC filed Daubert motions seeking to exclude three of Plaintiffs’ expert witnesses, Dr. John Chandler, Sara Neher and J. Michael Dennis.

    Marketing Expert Witness

    Dr. John Chandler is a professor of marketing at the University of Montana who holds a master’s degree in mathematics and a doctorate in statistics and has worked in analytics and data science for 25 years with a focus on digital marketing. 

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

    Education & Schools Expert Witness 

    Sara Neher is a partner at Kennedy & Company Higher Education Strategies, a higher education consulting firm. She has an MBA and has worked in higher education for more than twenty years, including academic leadership positions at two business schools. Neher has experience consulting higher education clients about their US News rankings, including constructing models like the one she submits in this case, and has also been part of the submission of data to US News for multiple schools. 

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

    Survey Research Expert Witness

    J. Michael Dennis is the Senior Vice President of the National Opinion Research Center, which is a survey research organization affiliated with the University of Chicago. Dennis has worked in survey research for more than 20 years, has authored more than 60 articles, and has been found qualified by numerous courts to provide expert opinions on consumer surveys.

    Want to know more about the challenges J. Michael Dennis has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    John Chandler

    John Chandler submits a 95-page report explaining digital marketing practices in the context of student recruitment for graduate programs, the stages of a prospective student’s journey through the “marketing funnel,” what marketing strategies are typically deployed for student recruitment, and how USC Rossier applied these principles in its marketing strategy.

    The first portion of Chandler’s report expresses extensive opinions on marketing practices, the enrollment journey, and the comprehensive marketing strategy that USC and 2U deployed to market USC Rossier.  The second part of Chandler’s report discusses the exposure — i.e., the reach — of USC Rossier’s marketing materials containing the allegedly fraudulent ranking information.  In the end, Chandler’s bottom line conclusion is: “Given the extensive and varied exposure methods outlined above, I can state with a reasonable degree of scientific certainty that all or nearly all students at USC Rossier in the MAT and OCL programs during the period of ranking manipulations were exposed to the fraudulent rankings. The pervasiveness of these rankings across multiple touchpoints ensured their near-universal reach.”

    Reliability

    USC did not challenge Chandler’s opinions on general marketing principles or the specifics of the extensive marketing strategy 2U and USC implemented with regard to USC Rossier. Instead, USC challenged the exposure/reach aspects of Chandler’s opinions. The crux of USC’s argument is that Chandler has no quantitative basis to opine that all or nearly all prospective students were exposed to fraudulent rankings through emails and/or other means.

    USC further contended that Chandler did not have reliable site traffic data to substantiate an opinion that the vast majority of students visited the USC Rossier website and were exposed to a ranking representation.

    The Court first observed that Chandler’s report extensively details the marketing strategy that USC and 2U deployed on behalf of USC Rossier, including specific opinions on how the marketing strategy was designed to move interested students through the marketing funnel from “awareness” to “enrollment.”

    To arrive at his exposure conclusions, Chandler relied heavily on testimony from 2U’s 30(b)(6) representative, Dr. Joana Gerber. The Court has reviewed Gerber’s deposition transcript, as well the arguments both USC and Plaintiffs make about her testimony. 

    The Court agreed with Plaintiffs that the thrust of Gerber’s testimony and Chandler’s report is that 2U orchestrated an extensive marketing strategy designed to move all prospective students through the marketing funnel. It also agreed with Plaintiffs that Chandler’s opinions are the result of extensive review of record evidence, including Gerber’s testimony, and that USC’s placement of rankings on the USC Rossier website and in social media further supports his exposure conclusions.

    Sara Neher

    Sara Neher submitted a 13-page expert report explaining a model she constructed to project the US News ranking USC Rossier would have received if USC had submitted accurate data. US News publishes its methodology each year, including the relative weights of the various factors that underlay its rankings, with each school receiving an assigned rank based on its overall score on a 100-point scale. 

    Neher’s model standardizes the data in each category

    Neher begins her reconstructed model with the data published by US News. First, Neher’s model standardizes the data in each category using z-scores, which are multiplied by the relative weights published by US News and added together to create a total for each school. Then, the total is indexed such that the top score always equals 100. The critical component — and the factor USC most vigorously challenges — is what Neher does to account for the information US News does not release. Neher acknowledged that she does not have access to information US News does not make publicly available, including the number of faculty with awards, the number of doctoral students who submitted a GRE score, the overall score for the lowest ranked 25% of schools, and the process for applying a logarithmic transformation to the student-faculty ratio. 

    Neher replaced the data USC Rossier actually submitted to US News with accurate data USC should have submitted

    To account for this unavailable information, Neher calculated what she labels a “hidden-data constant” by comparing how much her model’s raw score (using the publicly available data) deviates from the school’s actual US News ranking. This, Neher reports, “captures the difference between what our model is able to calculate as the indexed score and what US News reports as the final score.” Then Neher replaced the data USC Rossier actually submitted to US News with accurate data USC should have submitted, based on an internal report from USC’s Director of Institutional Research who was instructed to investigate the matter. After generating a new overall score for USC Rossier using this information, Neher applies the hidden-data constant to account for the information she cannot recreate. 

    The result led to a dramatic decrease in USC Rossier’s ranking. Under Neher’s model, USC Rossier’s rank would have dropped from 15 to 48 in 2018; from 10 to 34 in 2019; from 12 to 61 in 2020; from 11 to 63 in 2021; and from 11 to 64 in 2022. 

    USC argued that Neher’s opinions regarding USC Rossier’s adjusted US News rankings must be excluded because they are the result of an unreliable methodology. Specifically, USC argued that the “hidden data constant” Neher calculates varies both school-to-school and year-to-year, resulting in a score that is sometimes close to US News’ ranking, but other times is dramatically far off. In other words, USC argued that there is no consistency to the hidden-data constant, so the methodology cannot be reliably used to predict adjusted scores based on different data input.

    Qualifications

    USC challenged Neher’s qualifications on the grounds that she does not have the training, experience, or specialized knowledge to qualify as an expert in statistical modeling. In addition, USC argued that she has never worked for or been trained by US News and has never before tried to replicate US News’s model; instead, she knows only what US News publicly discloses. 

    As USC sees it, absent insider knowledge about US News’s rankings, it is not possible to reliably replicate US News’ ranking at all — and any attempt to do so is “a pure guessing game.” 

    The Court declined USC’s invitation to announce a rule — especially in a discretionary evidentiary ruling — that the only way to reliably prove rankings fraud is to use (or, more likely, to misappropriate) insider knowledge of US News’s proprietary methodology. The Court is not convinced that any attempt to do so is necessarily a “pure guessing game” that categorially forecloses Neher’s proffered reconstructed rankings. This is especially true considering that Plaintiffs have identified other consulting firms and academic research that attempt to reconstruct US News rankings. 

    The Court held that Neher’s extensive experience working in higher education consulting constitutes a sufficient foundation to qualify her to offer her proffered opinions. 

    Reliability

    The Court would begin by observing that neither Plaintiffs nor Neher purport to represent the proffered adjusted rankings model as a perfectly exact replication of the US News rankings. In addition, though USC did not challenge in its moving papers the result of Neher’s model — i.e., that USC Rossier’s ranking would experience a large decline — it indicated at the hearing that it does challenge Neher’s ultimate conclusion that rankings would have dropped.

    For present purposes, the crux of USC’s challenge is how close Neher got in making a rankings prediction.

    The Court also disagrees with USC that Neher’s methodology cannot be tested. Neher has described the methodology she deploys in her model in transparent and understandable terms, meaning USC and its experts can verify it, test it against different data, and/or critique the application of the hidden data constant. 

    USC does, however, point to numerous examples where the hidden data constant does not come close to replicating the school’s actual US News ranking, and that it also varied year-to-year. The question becomes, then, whether the inconsistencies with the outcome of Neher’s model compared to US News’s actual rankings are the result of unreliable methodology or instead go to the weight of the evidence. The Court notes that USC does not challenge Neher’s replication of the published aspects of US News’s methodology, only the methodological step of capturing the “hidden data constant.” 

    J. Michael Dennis

    J. Michael Dennis submitted a 55-page report proposing two yet-to-be-conducted choice-based conjoint surveys that would estimate what USC Rossier’s tuition prices would have been but for USC’s alleged conduct. Dennis defines a choice-based conjoint survey as a “standard marketing research technique for quantifying consumer preferences for products and for the component features that make up a product. Conjoint analysis can be used to break down the value of a conceptual feature ( i.e., claims about the USC Rossier’s credentials) into its component parts (i.e., the claim that USC Rossier is a ‘top ranked’ program, or more specifically, that it was ranked between 10-15 by U.S. News & World Report in the 2017-2022 time period). Conjoint surveys take advantage of the fact that consumers are profoundly familiar with the task of shopping — comparing products, evaluating them, and making choices. Consumers are accustomed to making choices in their real-world shopping experiences.”

    To calculate damages, Dennis explains:

    “I define the but-for world as a world where the actual U.S. News rankings were in fact between 34 and 64 (corresponding to my fourth level of “30 to 59” for the “Rankings” attribute). In contrast, class members paid program costs when the advertised rankings were between 10 and 15 (i.e., corresponding to my second level of “10 to 19” for the “Rankings” attribute). If Plaintiffs’ allegations have merit, the market-clearing prices in the but-for worlds will be lower than the prices paid by class members.”

    Reliability

    USC first argued that Dennis’ opinions must be excluded because they rely on Neher’s inadmissible opinions. However, the Court would not exclude Neher’s opinions, thereby rendering this argument moot.

    USC next argued that Dennis’ opinions must be excluded under Fed. R. Evid. 702(b) because they are based on insufficient facts or data.

     USC argued that higher education does not operate in normal supply-and-demand conditions because of the impact of other economic incentives, including scholarships, fellowships, and grants. In addition, USC argued that universities address scarcity through selective admissions, not tuition price. USC’s argument, then, is that Dennis has no evidence justifying his assumption that the market value of an education from USC Rossier is anything other than what USC Rossier decides to charge. 

    Relatedly, USC also argued that Dennis has no evidence supporting his assumption that USC Rossier’s tuition responded to US News rankings. USC relies on a report from its expert witness to argue that there is no empirical analysis showing that tuition for EdD programs is affected by changes in school rankings.

    This Court agrees that the real-world and market realities evidence upon which USC relies speak to the weight of Dennis’ analysis — which certainly could persuade a jury — but are not supportable reasons for excluding Dennis’ expert report and testimony.

    Finally, the fact that Dennis’ survey has not been fully developed or implemented does not warrant exclusion at this juncture. There is no basis to exclude Dennis’ proposed conjoint survey. However, the Court will not preclude USC from bringing a later Daubert challenge to Dennis’ final report and testimony after his conjoint survey has been fully executed.

    Held

    The Court denied USC’s Daubert motions to exclude the expert report and testimony of Dr. John Chandler, Sara Neher, and Dr J. Michael Dennis.

    Key Takeaways:

    • While Chandler is not able to offer at this juncture a quantifiable number of students exposed to fraudulent rankings — an issue that might make the specific contours of his testimony subject to a later motion in limine — the Court does not find too great of an analytical gap between the record evidence and his exposure opinions. The core of USC’s argument goes to the weight of Chandler’s opinion and the identified shakiness of Gerber’s testimony, but “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
    •  The fact remains that Plaintiffs intend to use Neher’s model to show how consumers would react to USC Rossier’s adjusted rankings range, as compared to being a top-ranked school. With this in mind, the argument USC makes about the exact precision of Neher’s estimation cannot carry the weight that USC places upon it. But to be sure, USC has identified several weaknesses of Neher’s model which can be subject to “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” The Court cannot and will not consider whether Neher’s model is right or wrong; it is satisfied at this juncture that Neher transparently and thoroughly explained her methodology in a way that can be tested and cross-examined. The Court is therefore not convinced that Neher’s model is the product of such unreliable methodology as to fail Daubert‘s gatekeeping standard.
    •  The Court noted that Dennis extensively details the structure of his survey and has considerable experience executing similar surveys. And as just examined, the Court is satisfied at this juncture that Dennis is qualified and has proposed a reliable methodology. Accordingly, there is no basis to exclude Dennis’ proposed conjoint survey.

    Case Details:

    Case Caption: Iola Favell Et Al V. University Of Southern California Et Al
    Docket Number: 2:23cv3389
    Court: United States District Court, California Central
    Order Date: November 13, 2024
  • Technology Expert Witness’ Analysis of Call Detail Records Admitted

    Technology Expert Witness’ Analysis of Call Detail Records Admitted

    This case concerns Defendant’s alleged transmission of illegal robocalls. Plaintiff, Office of the Attorney General, State of Florida, Department of
    Legal Affairs brought this action pursuant to the Telemarketing and
    Consumer Fraud and Abuse Prevention Act. Apparently, Smartbiz courts
    robocaller customers by allowing them to place a high volume of calls in quick
    succession, billing only for the duration of completed calls – sometimes in as little as .6 second increments and ignoring clear indicia of fraudulent call traffic.

    Plaintiff retained Mike Rudolph “as an expert witness to analyze several relevant datasets, specifically: Defendant’s Call Detail Records (“CDRs”), consumer voicemail recordings provided by YouMail, traceback data provided by the Industry Traceback Group (“ITG”), and consumer complaint data provided by the Attorney General.” 

    Defendant filed a motion to strike Rudolph’s expert testimony “because it does not carry the hallmarks of reliability.”

    Defendant argued that Rudolph’s testimony and methods are unreliable because they are based on confidential and proprietary processes, use algorithms and codes to do much of the work, have not been peer reviewed, have an error rate of less than 1% that is inherently suspect, and cite the average length of Defendant’s calls as a metric.

    Technology Expert Witness

    Mike Rudolph is the CTO and Chief Architect of YouMail’s telephony, cybersecurity, and robocall mitigation platforms. Rudolph works directly with Fortune 500 organizations, service providers, and working groups, employing AI, machine learning, and forensic analytics to combat illegal and unwanted calls. Moreover, Rudolph holds over a dozen patents featuring a number of startups and public companies adding intelligence through AI and expert systems to highly scaled platforms in communications, compliance and governance, business process management, activity monitoring, background checks, and consumer advertising.

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

    Discussion by the Court

    Rudolph prepared an Expert Report describing several types of analysis using different methodologies including the following:

    • First, is the behavior call analysis which identifies indicia of fraudulent or otherwise unwanted calls in Defendant’s CDRs and consists of five sections of his Summary of Findings: (1) Analysis of “Snowshoeing” Calling Tactics, (2) Analysis of Low Answer Rates and Short Duration Calls, (3) Analysis of Phone Number Spoofing, (4) Analysis of Recipient Geographic Location, and (5) Analysis of Telemarketing Hours and Do-Not-Call-Registry (DNC) Data.
    • Next, Rudolph analyzed Defendant’s CDRs in conjunction with YouMail Consumer Voice Call Evidence, which consists of call records for calls to YouMail subscribers, recordings of voicemails left by those calls, and transcriptions of those voicemails, identifying examples of calls that Defendant transmitted to YouMail subscribers; third, Rudolph performed an analysis of traceback information to identify patterns in Defendant’s traceback responses to the ITG.
    • Finally, Rudolph analyzed Defendant’s CDRs and YouMail data in conjunction with consumer complaint data supplied by Plaintiff to identify individuals who complained about the types of calls Defendant transmitted. 

    According to Plaintiff, Defendant’s contentions that Rudolph’s methods are unreliable because they use algorithms and have not been peer reviewed are not relevant to the type of expert opinion Rudolph has produced. Defendant relies primarily on factors relevant to scientific testimony to rebut the reliability of Rudolph’s methodology, but Rule 702 does not bar non-scientific expert evidence, and allows expert opinions based on technical or other specialized knowledge.

    This Court found that Defendant’s issues with Rudolph are insufficient to warrant the exclusion of his testimony and are best addressed on cross-examination.

    Held

    The Court denied the Defendant’s Daubert motion to exclude the testimony and report of Mike Rudolph.

    Key Takeaway:

    Rudolph submitted a comprehensive expert report on the relevant datasets, which the Court admitted because the Defendant’s arguments against it were unpersuasive. It was held that the expert’s opinions should not be excluded, but rather be subjected to “vigorous cross-examination” and “presentation of contrary evidence.

    Case Details:

    Case Caption: Office Of The Attorney General, State Of Florida, Department Of Legal Affairs V. Smartbiz Telecom LLC
    Docket Number: 1:22cv23945
    Court: United States District Court, Florida Southern
    Order Date: September 3, 2024
  • Court Limited Marketing Expert Witness’ Testimony Based on Surveys Focusing on Products and Intellectual Properties

    Court Limited Marketing Expert Witness’ Testimony Based on Surveys Focusing on Products and Intellectual Properties

    Plaintiff, Hawaii Foodservice Alliance alleged that Defendant Meadow Gold Dairies Hawaii, LLC (“MGDH”) used phrasing and imagery suggesting that the Meadow Gold brand products are sourced in Hawai`i, and these activities are misleading and deceptive because the Meadow Gold products contain milk and other products that are imported from the continental United States. Defendants Hollandia Dairy, Inc. (“Hollandia”), Heritage Distributing Company dba Ninth Avenue Foods (“Heritage”), and Saputo Cheese USA Inc. fka Saputo Dairy Foods USA, LLC (“Saputo”) (collectively “Supplier Defendants”) supply products to MGDH.

    Plaintiff’s designated expert, Thomas J. Maronick submitted surveys which focused on products and intellectual properties (the “Hawai‘i-Themed Images and Phrases”) for which this Court has already ruled in Defendants’ favor. Defendants filed a motion seeking to exclude Maronick’s conclusions
    regarding consumer perceptions of those products and Hawai‘i-Themed IP.

    Marketing Expert Witness

    Thomas Joseph Maronick holds a Juris Doctor degree from the University of Baltimore School of Law, with an emphasis on corporate, business and consumer law. He is a member of the Maryland Bar. He also earned a Doctor of Business Administration degree from the University of Kentucky, as well as a Master of Science in Business Administration from the University of Denver, having majored in marketing.

    Maronick is an Emeritus Professor of Marketing at Towson University College of Business and Economics, where he taught marketing, strategy, and research courses from 1987 to 2017. He previously held faculty positions teaching marketing at the University of Baltimore School of Business and Virginia Commonwealth University.  Additionally, Maronick worked as the Director of the Office of Impact Evaluation at the Federal Trade Commission from 1980 to 1997. Since 1997, Maronick has worked as a marketing consultant and expert witness. He has provided expert services in over 150 cases involving consumer litigation, advertising, trademarks, and survey research.

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

    Discussion by the Court

    Maronick concluded “the main message communicated to a significant percentage of consumers . . . is that the milk and dairy products . . . come from Hawaii.”

    Defendants sought to exclude Maronick’s testimony because it was irrelevant since his surveys focused on Plaintiff’s claims for which summary judgment had been granted in their favor. Plaintiff contended that the surveys did not heavily focus on the Hawai`i-Themed Images and Phrases, which were no longer part of Plaintiff’s claims.

    Maronick’s survey required that the respondents review an image of the story of the Dairymen’s Association that appeared on a side panel and asking them if they noticed the at-issue phrase “Hawaii’s Dairy.” The Court did not find Maronick’s testimony relevant to the remaining claims to the extent that the surveys involved the groups reviewing products containing the Hawai`i-Themed Images and Phrases.

    To the extent that Defendants contended that Maronick failed to apply generally-accepted principles and methodologies, the Court held that cross-examination can address these concerns.

    Held

    The Court granted in part and denied in part the Defendants’ motion to exclude the expert reports and testimony of Thomas J. Maronick.

    Key Takeaway:

    Federal Rule of Evidence 702 controls the admissibility of Maronick’s opinions. The rule requires that the evidence must assist the fact finder to understand the evidence or to determine a fact in issue; and the witness must be sufficiently qualified to give the opinion.

    Case Details:

    Case Caption: Hawaii Foodservice Alliance, Llc V. Meadow Gold Dairies Hawaii, Llc Et Al
    Docket Number: 1:21cv460
    Court: United States District Court, Hawaii
    Order Date: July 29, 2024
  • Market Research Expert Witness’ Testimony Deemed Admissible Because of His Experience Conducting Surveys

    Market Research Expert Witness’ Testimony Deemed Admissible Because of His Experience Conducting Surveys

    Plaintiff, Wheel Pros, LLC and Defendants, Rhino Tire USA, LLC are engaged in the business of selling wheels and tires for vehicles and each owns trademarks in its respective brand. Wheel Pros owns various trademarks related to its “Black Rhino” brand and Rhino Tire own trademarks for their “Rhino” brand.

    Plaintiff brought this action against Defendants for trademark infringement alleging the the public is likely to be confused by the similarities between the marks. In support of its case, Plaintiff proffered the expert report of Dr. Robert A. Peterson. Peterson conducted a forward likelihood of confusion survey designed to determine the likelihood of confusion between Plaintiff’s “Black Rhino” trademarks and Defendant’s “Rhino” trademarks within a target universe of survey respondents.

    In rebuttal to Peterson’s report, Defendants proffered the expert report of Dr. Henry D. Ostberg. Ostberg offered opinions as to what he termed “significant problems and fatal defects” with Peterson’s survey.

    Plaintiff filed a motion to exclude Ostberg’s rebuttal expert report and preclude him from testifying at trial pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow. Pharm., Inc., 509 U.S. 579 (1993).

    Market Research Expert Witness

    Henry D. Ostberg has over 40 years of experience in conducting marketing research and has conducted or overseen over 2,000 consumer surveys for various clients over that time. He earned an M.B.A. degree and a Ph.D. degree in marketing from Ohio State University and earned an L.L.B. law degree from New York Law School. Moreover, Ostberg has served as a marketing research expert in connection with trademark and intellectual property litigation in over 200 cases, has been a frequent speaker “on the subject of marketing, the use of surveys and related topics before a variety of professional organizations,” and was on the faculty of both New York University and Ohio State University.

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

    Discussion by the Court

    Dr. Ostberg’s Qualifications to Testify

    First, Plaintiff argued that Ostberg was not qualified because he testified and stated in his report that he was not familiar with Peterson’s methodology.

    At his deposition, Ostberg admitted his lack of familiarity with Peterson’s “modified sequential evaluation” approach. However, Ostberg made these statements based on his experience in the field of conducting surveys in similar circumstances rather than due to any purported lack of experience or qualification.

    Upon consideration of Ostberg’s qualifications, the Court held that he is sufficiently qualified to criticize Peterson’s methodology in his rebuttal report and at trial.

    Reliability of Opinions

    1. Improper Research Design

    To begin with, Plaintiff argued that Ostberg’s opinions were unreliable because his conclusions were not based on his status as an expert or any research into that area, he was not familiar with the method employed by Peterson, and he mischaracterized the way in which Peterson’s survey was conducted.

    The Court found that Ostberg relied on his experience in conducting surveys under similar circumstances, his review of Defendants’ website in marketing its products, conversations with Defendants’ attorney, and his experience as a consumer to conclude that the methodology employed by Peterson was inappropriate.

    In other words, Ostberg’s methodology in criticizing Peterson’s research design was sufficiently reliable to permit his testimony at trial.

    2. Wrong Respondents Interviewed

    Ostberg next opined that Peterson’s survey was flawed because it failed to base its data on respondents who were likely to be future purchasers of Defendants’ products.

    The Court found Ostberg’s methodology in raising such “technical deficiencies” with Peterson’s survey pursuant to the prevailing literature and practice to be sufficiently reliable to survive Plaintiff’s Daubert motion.

    3. Research Design Changed Midway

    Ostberg criticized Peterson’s use of a pilot study that resulted in a change to the survey. In particular, Ostberg stated that Peterson’s report failed to include a “credible explanation” for modifying his survey after the pilot study. The Court found Ostberg’s methodology in reaching this opinion sufficiently reliable. In other words, Plaintiff’s arguments challenging this opinion largely go towards whether Ostberg reached the right conclusion in applying his method and are therefore inappropriate to justify excluding Ostberg at this stage.

    4. Inappropriate Statistical Calculations

    Ostberg also opined regarding the statistical calculations in Peterson’s survey. Specifically, Ostberg noted that Peterson’s survey “did not have a probability sample,” yet the statistical calculations used are “applicable only to surveys based on true probability samples of respondents, according to many statistical texts.”

    The Court noted Ostberg’s experience conducting consumer surveys in trademark litigation and, once again, found Ostberg’s method sufficiently reliable to permit his testimony.

    5. Internal Data Casts Doubt on the Validity of the Findings

    Now, Ostberg opined that the data collected in Peterson’s control group survey casts doubt on the validity of the survey itself because a 51.7% likelihood of confusion between Plaintiff’s trademark and the non-infringing control mark was abnormally high. Ostberg’s conclusion in this opinion did not cite to specific authority, but rather impliedly relied on his own education and experience with conducting similar surveys for over four decades. As with Ostberg’s other opinions, the Court found this opinion sufficiently reliable to preclude exclusion of the opinion at this stage.

    Helpfulness to Trier of Fact

    Finally, Plaintiff argued that Ostberg’s opinions will not be helpful to the jury.

    The Court held that since Ostberg is being proffered to criticize Peterson’s forward likelihood of confusion survey, a technical matter in which Ostberg has sufficient experience and that is beyond the understanding of the average lay person, Ostberg’s opinions will be of assistance to the jury at trial.

    Held

    To conclude, the Court denied Plaintiff’s Daubert motion to strike testimony and opinions of Henry D. Ostberg, Ph.D.

    Key Takeaways:

    • Ostberg relied on his experience in conducting surveys under similar circumstances, his review of Defendants’ website for marketing their products, conversations with Defendants’ attorney, and his experience as a consumer to reach his conclusions.
    • Moreover, Ostberg’s analysis is grounded in his experience conducting consumer surveys in trademark litigation, as well as scholarly literature regarding the type of statistical analysis necessary in the survey conducted by Peterson.
    • Because Peterson’s forward likelihood of confusion survey is a technical matter that is beyond the understanding of the average lay person, Ostberg’s opinions were considered helpful to the trier of fact.

    Case Details:

    Case Caption: Wheel Pros, Llc V. Rhino Tire Usa, Llc Et Al
    Docket Number: 6:22cv2171
    Court: United States District Court, Florida Middle
    Order Date: July 18, 2024
  • Product Safety Expert Witness’ Testimony Admitted Despite Alleged Lack of Familiarity with Tree Stands

    Product Safety Expert Witness’ Testimony Admitted Despite Alleged Lack of Familiarity with Tree Stands

    Plaintiff, James Rowedder alleged a Field & Stream Stealth Climber Tree stand HEH01293 (“tree stand”) manufactured by Defendant Primal Vantage Company, Inc. (“Primal”) and sold by Defendant Dick’s Sporting Goods, Inc. d/b/a Field & Stream failed while Rowedder was using it and that he sustained injuries as a result. Plaintiff brought claims for (1) Negligence—Product Defect; (2) Breach of Warranty; and (3) Strict Liability.

    Plaintiff’s proffered expert Rick Brenner was retained to testify about the standard of care and best practices for consumer products manufacturers, and, specifically, how Primal failed to meet these standards.

    Defendants filed a motion to exclude opinions offered by Plaintiff’s proffered expert Rick Brenner.

    Product Safety Expert Witness

    Robert (Rick) Brenner is a recognized expert in consumer product safety, regulatory compliance, and quality management programs. He is president of Product Safety Advisors, a consulting firm that advises clients in the development and implementation of product safety and regulatory compliance programs including best practices in product design, risk assessment and failure mode analysis, performance and compliance testing protocols, supply chain risk, production oversight, quality management strategies, and related employee training programs.

    His experience includes being president and CEO of Prime Resources Corporation for 12 years, an “importer, manufacturer, and distributor of consumer products sourced from multiple overseas factories” where Brenner had “direct oversight responsibility for Prime’s overseas sourcing business including the development of our standard operating procedures for product safety, risk assessment, compliance management, selection and vetting of vendors, factory oversight, correction actions, factory auditing . . . and product safety testing.” 

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

    Discussion by the Court

    Brenner Did Not Lack the Requisite Qualifications

    Defendants argued Brenner was not qualified to offer such opinions because, despite his extensive experience with product safety and quality management practices, Brenner was not an engineer, not familiar with tree stands, and, inter alia, had not physically examined the evidence in this case.

    The Court denied Defendants’ motion on this point and found Brenner qualified to offer opinions on the standard of care and best practices for consumer products manufacturers or importers considering his extensive experience as a “manufacturer, importer, and product safety professional” in his report.

    Brenner’s Opinions are Based on his Relevant Knowledge and Experience

    Last, Defendants argued Brenner’s opinions must be excluded because they are speculative, unreliable, and legal in nature. Namely, Defendants argued that Brenner’s testimony that Primal “did not conduct specific risk assessments under CPSC [Consumer Product Safety Commission] and ISO [International Organization for Standardization 10377:2013 Consumer Product Safety Guidelines for Suppliers] standards” should be excluded because he admitted “that those are not mandatory standards for manufacturers of consumer products.”

    The Court found that Brenner based his opinions regarding Primal’s alleged disregard for the safety of consumers on evidence—namely deposition testimony—adduced in this case.

    Brenner did not purport to be a design or engineering expert and could not opine on whether the products or component parts of those products at issue here were defective. Nor could Brenner opine that any alleged failure on Primal’s part to meet the standards of care Brenner articulates rendered the products at issue defective. However, the Court held that Brenner will be able to testify, generally, as to what he believes constitute best practices for a manufacturer or importer of products such as Primal and how Primal did not live up to those standards considering the evidence adduced in this case and cited in his report.

    Held

    The Court denied Defendants’ motion to exclude the testimony of Rick Brenner. 

    Key Takeaway:

    • The Court, citing Brenner’s extensive experience with product safety and quality management practices, decided he is more than qualified to testify about the standard of care and best practices for consumer products manufacturers, and, specifically, how Primal failed to meet these standards.
    • Brenner based his opinions regarding Primal’s alleged disregard for the safety of consumers on evidence—namely deposition testimony—adduced in this case. The Court concluded that Brenner’s opinions are based on his relevant knowledge and experience.

    Case Details:

    Case Caption: Rowedder V. Primal Vantage Company Inc Et Al
    Docket Number: 2:22cv2371
    Court: United States District Court, South Carolina
    Order Date: July 15, 2024
  • Credit Reporting Expert Witness’ Testimony about Difficulties Resulting from Misreporting on a Credit Report Limited

    Credit Reporting Expert Witness’ Testimony about Difficulties Resulting from Misreporting on a Credit Report Limited

    Plaintiff, Jamaal Nelson applied for housing with Younger Developments in Texas around February 2023. He alleged he was denied housing on February 7, 2023 because Defendant’s consumer credit report reported Plaintiff as “Deceased” on a Capital One tradeline and this happened because Defendant failed to investigate the alleged inaccuracy. He added that due to his being denied housing in Texas he had to take a lower paying job in Florida where he paid higher rent. Against Defendant, Plaintiff pursued claims for (1) violation of the Fair Credit Reporting Act (“FCRA”) for failure to assure maximum possible accuracy and (2) violation of the FCRA for failure to investigate.

    Defendant Experian Information Solutions, Inc. filed a motion to exclude the testimony of Plaintiff’s expert Douglas A. Hollon.

    Credit Reporting Expert Witness

    Douglas A. Hollon is currently the President and Owner of Credit Experts of North Texas, LLC. He began his career in the consumer reporting industry in 2005 as a Dispute Agent with Experian Information Solutions, Inc. Initially, he helped consumers with their mail or telephone disputes of items listed on their consumer file. Hollon was later promoted to Consumer Affairs Special Services (CASS), now known as Experian Consumer Affairs (ECA). In ECA, he handled escalated credit report disputes.

    In addition to his dispute training, he received specialized training involving fraud (identity theft) disputes and mixed file disputes.

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

    Discussion by the Court

    The Court has reviewed Hollon’s report in its entirety. Hollon’s principal conclusion is that that Defendant “failed to follow reasonable procedures to assure maximum possibly accuracy” and that if Defendant “had reasonable procedures to assure maximum possible accuracy, it would have verified a deceased notation reported by a data furnisher before storing the information on an [individual’s] file.”

    Hollon never explains the factual materials on which he bases his conclusion 

    After a careful review of the parties’ briefing and Hollon’s expert report, the Court excluded Hollon’s testimony as to whether Defendant’s credit accuracy procedures are reasonable. As to the conclusion that it is not reasonable for Defendant to rely on data furnishers, the Court found that Hollon did not articulate concrete factual materials or sources on which he based his conclusion.

    At best, Hollon attempted to rely on his prior experience working for Defendant to reach his conclusions. For example, Hollon alleged that while he worked for Defendant, he observed that Defendant prioritized “costs of doing business . . . over doing what was right.” 

    The Court held that Hollon never explained concretely, however, how such financial incentives were relevant to his conclusion that Defendant failed to follow reasonable procedures to assure maximum possible accuracy.

    Hollon also claimed Defendant’s dispute resolution system is “biased,” “cost driven,” and that his conclusion is supported by “[his] own personal experience.” The Court, once again, noted that Hollon never explained the factual materials on which he based his conclusion that it is unreasonable for Defendant to rely on Data Furnishers.

    Hollon also opined about the economic difficulties consumers faced due to “misreporting on a credit report.” Further, in a declaration submitted with Plaintiff’s opposition to Defendant’s motion, Hollon attempted to explain why he was qualified to opine on the psychological impact of inaccuracies in a credit report.  The Court, however, excluded Hollon’s testimony as to Plaintiff’s non-emotional and emotional damages.

     The Court found that Hollon is qualified to speak, in general terms and as found relevant at trial, about the sort of damages that are typically caused by errors on credit reports.

    Held

    The Court granted in part and denied in part the motion to exclude the testimony of Plaintiff’s expert Douglas A. Hollon.

    Key Takeaway:

    Hollon’s testified about whether Defendant’s credit accuracy procedures are reasonable. He also opined about the economic difficulties consumers faced due to “misreporting on a credit report.” After a careful review of the parties’ briefing and Hollon’s expert report, the Court excluded Hollon’s testimony as to whether Defendant’s credit accuracy procedures are reasonable.

    The Court, however, excluded Hollon’s testimony as to Plaintiff’s non-emotional and emotional damages.

     The Court found that Hollon is qualified to speak, in general terms and as found relevant at trial, about the sort of damages that are typically caused by errors on credit reports.

    Case Details:

    Case Caption: Nelson V. Experian Information Solutions Inc
    Docket Number: 2:23cv1634
    Court: United States District Court, South Carolina
    Order Date: June 27, 2024
  • Court Bars Intellectual Property Expert Witness for Opining on Straightforward Matters of Law

    Court Bars Intellectual Property Expert Witness for Opining on Straightforward Matters of Law

    A district judge in New York held that the report of a intellectual property expert witness spoke to straightforward areas of the law where juries did not require assistance.

    Plaintiff Medical Depot, Inc. and Defendant Med Way US, Inc.  are both manufacturers of medical products, including specially designed medical air mattresses. Medical Depot, Inc. began selling various air mattress models using the descriptors “Med-Aire” and “Med Aire” in 2007. Plaintiff contended that its use of the terms “Med-Aire” and “Med Aire” since 2007 was substantial enough to merit trademark protections, while Defendant argued the opposite.

    Defendant alleged that it began selling air mattress medical products using the name “MEDAIR” as early as April 1, 2019. On December 10, 2019, Defendant filed United States Trademark Application Ser. No. 88/721,827, which matured into Registration No. 6,116,976, which covered use of the MEDAIR mark for International Class 10 medical products, namely “air mattresses with pump, for medical purposes.”

    Plaintiff argued that Defendant’s use of the MEDAIR mark infringed on Plaintiff’s unregistered “Med-Aire” mark, which Plaintiff argues had gained trademark protection despite its lack of registration with the USPTO. Plaintiff also brought claims for unfair competition and the cancellation of Registration No. 6,116,976. 

    Motion to exclude

    During the course of this action, Plaintiff retained Jeremy N. Sheff to produce the Sheff Report and to provide testimony in regard to the subject matter of the Sheff Report if called to do so during pretrial proceedings. 

    The Sheff Report purported to opine as to three issues:

    • The first is whether [Medical Depot]’s marketing and sales of products under its claimed MED-AIRE trademark establish “use in commerce” under the Lanham Act sufficient to establish priority of right as of July 13, 2018. This is the date currently claimed by Defendant Med Way US, Inc. (“Med Way”) as the date of its first use in commerce of the mark MEDAIR, used on or in connection with the goods and services “air mattresses with pump, for medical purposes” in International Class 10, which is the subject of United States Patent and Trademark Office (USPTO) Trademark Registration No. 6,116,976, Serial No. 88/721,827 (“the ‘976 Registration”).
    • The second is whether the use by [Medical Depot] of its claimed MED-AIRE trademark on its products and associated sales materials constitutes “use as a mark” or “trademark use” under the Lanham Act as interpreted by the federal courts and the USPTO.
    • The third is whether alternative presentations of [Medical Depot]’s claimed MEDAIRE trademark both with and without a hyphen and with or without an intervening space defeat its claim to priority.

    Defendant argued that the Sheff Report is “a legal brief masquerading as an expert report” and moved to exclude the same. Plaintiff argued that any exclusions made to Sheff’s report or testimony should correspondingly apply to Defendant’s expert, Francis Duffin. 

    Intellectual Property Expert Witnesses

    Jeremy N. Sheff is a tenured Professor of Law at St. John’s University School of Law, where he also serves as the Founding Faculty Director of the St. John’s Intellectual Property Law Center. Sheff has taught Trademark Law and other courses at St. John’s University School of Law since 2008. He conducted doctrinal, theoretical, and empirical research on intellectual property law, with a particular focus on trademark law.

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

    Francis Duffin is a Partner in the Corporate Department and Chair of the Trademark Practice Group at Wiggin and Dana LLP. He has extensive experience in domestic and international trademark law and in trade name and domain name matters, stemming from his foundation as a Trademark Examining Attorney with the U.S. Patent and Trademark Office.

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

    Discussion by the Court

    The Sheff Report

    Defendant challenged only those portions of the Sheff Report and related testimony that: “(a) opine on what constitutes the relevant law and the significance of such law, (b) apply such supposed relevant law to the facts, (c) proffer legal opinions, (d) propound legal conclusions, and (e) offer expert testimony directed to the matters of consumer psychology, marketing, and the commercial impression purportedly created by the Med-Aire phrase on the relevant consuming public of medical air mattress products.”

    Med Way US, Inc. characterized those categories of disputed topics as encompassing the entirety of the Sheff Report—noting, for example, that “Sheff admitted at the outset of his report that he was retained solely to opine on the ultimate legal issues in this case”—rendering the Defendant’s challenge as one against the Sheff Report as a whole.

    The Defendant argued that Sheff usurped the role of the factfinder and of the Court in his expert report because his testimony as an expert on trademark usage under the Lanham Act concerned a subject that “juries (and factfinders) simply do not require expert assistance to competently assess.” The Defendant contended that the Sheff Report spoke to straightforward areas of the law where juries did not require assistance.

    The Court, citing Highland Capital Management, L.P. v. Schneider, 551 F. Supp. 2d 173, 181 (S.D.N.Y. 2008), held that the Sheff Report’s subject matter—use in commerce, trademark usage, and the issue of alternate presentations—were straightforward matters of law that a jury can ably decide without the assistance of an expert.

    In other words, the Court excluded the Sheff report because it solely concerned “matters which a jury is capable of understanding and deciding without the expert’s help.”

    Sheff’s Testimony

    Defendants argued that, in addition to barring the Sheff Report, the Court should preclude Sheff from testifying as to the same questions raised in the Sheff Report. Because the Court found that the subject matter of the Sheff Report solely concerned “lay matters which a jury is capable of understanding and deciding without the expert’s help,” the Court correspondingly found that Sheff may not testify to the same issues raised in the Sheff Report at trial.

    The Duffin Report

    Plaintiff argued that if the Court excludes Sheff’s testimony and the Sheff Report, the Court should also exclude the corresponding testimony by Defendant’s rebuttal expert, Francis Duffin (“Duffin”). Duffin’s testimony was offered solely to rebut Sheff’s testimony.

    Defendant contended in response that the Court should preclude Plaintiff from seeking exclusion of the Duffin Report because Plaintiff first raised this argument in its opposition papers and failed to file a motion in limine to exclude the report by the Court’s November 2, 2023 deadline.

    Federal Rule of Civil Procedure 26 defines rebuttal expert testimony as testimony ‘intended solely to contradict or rebut evidence on the same subject matter identified [in the expert testimony offered] by another party.’ ‘[T]he [rebuttal] expert’s testimony should be to ‘explain, repel, counteract or disprove evidence’ presented by the expert to whom he or she is responding.

    The Court held that Duffin’s rebuttal report “must also be excluded as irrelevant,” as its sole relevance at trial was to rebut now-excluded expert testimony. That Plaintiff did not file a motion in limine to exclude the Duffin Report does not change this outcome.

    Held

    The Court excluded the Sheff Report and any testimony by Sheff at trial concerning the subject matters of the Sheff Report. In light of the exclusion of the Sheff Report and related testimony, the Duffin Report is likewise excluded as irrelevant.

    Key Takeaways:

    • While the expert can make factual conclusions that embrace an ultimate issue that the fact-finder is yet to decide, the expert cannot give testimony stating ultimate legal conclusions.
    • An untrained layman is perfectly qualified to assess the strength or distinctiveness of a mark and/or the likelihood of consumer confusion, both of which the Court evaluates from the perspective of the consuming public.
    • Defendant hired rebuttal expert Francis Duffin to explain, repel, counteract or disprove evidence’ presented by Jeremy Sheff. In other words, Duffin Report would have no basis for admission without Sheff.

    Case Details:

    Case Caption: Medical Depot, Inc. V. Med Way Us, Inc.
    Docket Number: 2:22cv1272
    Court: United States District Court, New York Eastern
    Order Date:  April 26, 2024
  • Economics Expert Witness’ Testimony Based on Well-Tested Methods for Establishing Classwide Damages Admitted

    Economics Expert Witness’ Testimony Based on Well-Tested Methods for Establishing Classwide Damages Admitted

    A district judge in California refused to exclude the testimony of an expert economist despite objections raised against his methods for establishing classwide damages. The expert economist had adequately explained why his damages analysis would provide an accurate and common method to prove classwide damages.

    The Plaintiff contended that the Defendant Williams-Sonoma, Inc., and its advertising and marketing subsidiaries Williams-Sonoma DTC, Inc., and Williams-Sonoma Advertising, Inc. (collectively “WSI”) advertises and markets the thread count in certain of its Bedding Products in a way that is not only contrary to industry-accepted standards, but is also false, deceptive, or misleading to reasonable consumers. 

    On September 28, 2022, Perlin filed a Motion for Class Certification (“Certification Motion”) seeking to certify two classes: (1) a nationwide class of persons that purchased one of the seven lines of bedding seeking injunctive relief under the UCL, FAL, and CLRA pursuant to Rule 23(b)(2); and (2) a California subclass of persons that purchased one of the Bedding Products from WSI seeking monetary (and all other available) relief under the UCL, FAL, CLRA, and common unjust enrichment under Rule 23(b)(3). 

    The Defendant opposed the motion for class certification and moved to exclude the testimony of Jennifer Frank Rhodes and Russell L. Lamb, pursuant to Federal Rule of Evidence 702.

    Textiles Expert Witness

    Jennifer Frank Rhodes is the owner of Twin Gingers LLC, a consulting company serving the textile and consumer products industries specializing in the design, development and commercialization of textiles and textile consumer products, particularly bedding products. She is also employed at Thomas Jefferson University, as the Assistant Program Director, Textile Design B.S. Program and an Adjunct Professor. Rhodes has studied textile design and textile product development for more than 25 years and has worked in this field for more than 20 years.

    Economics Expert Witness

    Dr. Russell L. Lamb is the President and Co-Founder of Monument Economics Group. An expert in antitrust economics and applied econometrics, Lamb has more than 25 years experience as an economic consultant and more than a dozen years’ experience developing econometric models and providing expert witness and economic consulting services in cases involving antitrust, class action, and liability and damages analysis.

    Having taught economics for many years at both the undergraduate and graduate levels, Lamb specializes in explaining complex economic and econometric concepts in a clear and concise manner to non-economists, including the Courts.

    Prior to his work as an expert witness, Lamb developed extensive particular expertise in international and domestic agricultural economics and has undertaken extensive original research and econometric analysis related to markets for agricultural commodities. He has authored more than 50 articles in peer-reviewed journals, trade press, and major newspapers. Lamb also regularly presents at conferences on topics including the state of the U.S. Economy and farm policy.

    Discussion by the Court

     Jennifer Frank Rhodes

    Rhodes opined that the generally accepted method for calculating thread count for bedding products sold to consumers in the United States is to count the number of warp yarns (ends) and filling, or weft yarns, (picks) in an inch. Each yarn, or thread, is counted as one thread, even if it is two-ply. Accordingly, bedding that had 300 yarns per square inch had a thread count of 300, even if the thread is two-ply. ASTM (American Society for Testing and Materials) D3775-17 is the generally accepted industry standard for calculating thread count for woven cotton bedding products sold to consumers in the United States at all times during the proposed class period.

    Her testing of the WSI seven lines of bedding revealed that WSI’s advertised thread counts are not accurate. The stated thread count of each collection is approximately double the actual thread count. Each of the collections are represented to be two-ply. Accordingly, WSI improperly counted each ply in the yarn to falsely inflate the thread count, contrary to the industry standard for calculating thread count. She concluded that the various products sold under a single line or collection of bedding, such as sheeting, cases, duvets, and shams, are made of the same fabric. She explained the practical process of thread count testing and concluded that thread count could not be done with the naked eye or by the average consumer.

    Motion to exclude

    WSI moved to exclude her opinions of “industry standard” and “generally accepted methods” of thread count because she referred only to “industry” insider expectations that WSI argued were irrelevant and because she testified that there were no mandated “labeling requirements” for thread count and the ASTM standard she relied on was not applicable to how textiles might be marketed. WSI also argued that because Rhodes was not a consumer perception expert, she could not testify to what consumers expected regarding thread count as that was outside her area of expertise. Finally, it challenged the reliability of her opinions regarding consumer perception of thread count, contending that she improperly relied on only “a handful of articles and non-binding legal opinions” to support her conclusions.

    Court’s Ruling

    The Court held that WSI equation of “industry standard” with irrelevant “insider knowledge” in this consumer case is not a reason to exclude Rhodes’ opinions. While she will need to explain how she connects the existence and use (or non-use) of industry standards to her opinions, including opinions on consumer perception and opinions on how others in the industry calculate thread count, she may opine on these issues given her work and teaching experience, as well as her reliance on industry publications and textbooks.

    Considering Rhodes qualifications and given her experience in the industry, she is amply qualified to opine on the existence of industry standards and use or non-use of the ASTM standard.

    Dr. Russell L. Lamb

    The Plaintiffs retained Lamb to opine on whether the WSI’s “challenged conduct resulted in injury to all or nearly all proposed Class members, in that they paid higher prices for the Bedding Products they purchased from the Defendants; and whether the magnitude of damages can be calculated on a class wide basis without resorting to individualized inquiry.”

    Lamb proposed the benchmark analysis to measure damages on a class-wide basis. A benchmark analysis is used to compare prices paid by customers for the Relevant Bedding Products with prices that customers paid for “benchmark” bedding products. Benchmark bedding products are products of comparison that resemble the Relevant Bedding Products but are not a part of the Challenged Conduct, i.e. bedding products with properly labeled thread counts that are materially the same as or very similar to the Relevant Bedding Products. The benchmark analysis can be done in two ways: through a direct benchmark approach or a hedonic pricing model.

    He explained how he would construct and run both models to support his opinions, but did not — for class certification purposes — actually run both models. 

    Motion to exclude

    WSI first moved to strike Lamb’s opinions that are based on the materiality of thread count to consumers. It argued that his opinions assume that thread count is material without adequate expertise and without a reliable basis, given that he relied only on “cherry-picked” industry and WSI documents as well as the challenged testimony of Rhodes, and not on empirical consumer evidence, such as a survey of actual consumers regarding WSI’s Bedding Products.

    WSI next moved to exclude Lamb’s opinion that a “direct benchmark approach” can be used to determine class-wide damages, because in order to complete that benchmark analysis Lamb will rely on Rhodes’ selection of “benchmark products,” meaning products comparable to the Bedding Products at issue in this case but with “properly identified thread counts.” WSI argued that the benchmark products identified by Rhodes were not comparable to WSI’s Bedding Products in numerous ways.

    They also moved to exclude Lamb’s second proposed method of showing classwide damages, his proposed hedonistic-regression model. WSI argued, first, that a hedonistic-regression model did not fit the contours of this case, offering testimony from two WSI declarants regarding “actual” WSI’s pricing practices. It argued that those declarants’ testimony demonstrate that even a reduction in demand (an assumption in the hedonic model) would not result in a lower price or vice versa in the real world because WSI sets prices at a fixed rate above the supplier’s price and does not price sheets according to demand. It asserted that Lamb’s hedonic regression model, as Lamb admits, would be “artificially constructed” and should be excluded.

    Finally, WSI argued that because Lamb did not conduct his proposed hedonic-regression analysis or confirm that the data needed to run that analysis existed, his opinions regarding the hedonistic-regression model must be excluded as impermissibly vague and unreliable.

    Court’s Ruling

    The Court determined that how material thread count is to a reasonable consumer is, of course, subject to dispute by WSI and its experts. Whether the jury agrees that thread count is material has not yet been determined. But damages experts are allowed to assume the merits of a question in order to conduct their damages work, which is what Lamb did (although he did identify numerous sources supporting the materiality of thread count to consumers). That is particularly true here, where WSI successfully bifurcated damages discovery from class discovery and the Plaintiffs have not had the opportunity to fully engage in damages discovery.

    The Court held that damages experts are not required to have run their damage analyses, but instead are required to explain how they would do so and why the resulting analysis would provide an accurate and common method to prove classwide damages at the class certification stage. Lamb has satisfied that burden here with respect to the benchmark analysis.

    WSI ignored that hedonistic-regression models were based on real-world transactions and real-world data regarding price and other variables.

    The Court held that Lamb’s opinions regarding the hedonistic-regression model sufficed for class certification purposes.

    What the final hedonistic-regression model looks like, after damages discovery has been completed and Lamb has finalized the variables selected and run the analysis, can be tested pre-trial.

    The Court granted the Plaintiffs’ motion to certify a class of California purchases but denied the Plaintiffs’ motion to certify a nationwide injunctive relief class.

    Held

    The Court denied the Defendant WSI’s motion to exclude the Plaintiffs’ experts Jennifer Frank Rhodes and  Russell L. Lamb.

    Key Takeaways:

    • WSI’s position that industry standards were irrelevant to consumer perception may be argued to the jury and reraised post-trial if appropriate. The Court held that WSI’s challenge to Rhodes’ opinions based on a review of too few or “cherry-picked” industry or WSI documents were classic grounds for cross-examination, not exclusion. And it may raise “legal conclusion” objections in limine or during trial to her opinions regarding whether a product was “mislabeled” or is “misleading.”
    • At the class certification stage, damages experts are not required to have run their damage analyses, but instead are required to explain how they would do so and why the resulting analysis would provide an accurate and common method to prove classwide damages. Lamb has satisfied that burden here with respect to the benchmark analysis.

    Case Details:

    Case Caption: Rushing V. Williams-Sonoma, Inc. Et Al
    Docket Number: 3:16cv1421
    Court: United States District Court, California Northern
    Order Date: February 21, 2024