Expert Witness Profiler

Tag: Survey

  • Consumer Confusion Survey Conducted by Survey Research Expert Witness held to be based on a Reliable Methodology

    Consumer Confusion Survey Conducted by Survey Research Expert Witness held to be based on a Reliable Methodology

    Plaintiffs, Lincare Holdings Inc.’s and Lincare Licensing Inc.’s (collectively “Lincare”) are national health care companies that provide patients “with top quality treatments and durable medical equipment.” Plaintiffs’ “portfolio includes healthcare goods and services offered in connection with the trademarks LINCARE, mdINR, CONVACARE, AMERICAN HOMEPATIENT, PREFERRED HOMECARE, and the trade name SPECIALIZED MEDICAL SERVICES.” Defendant Doxo, Inc. (“Doxo”) runs an all-inone bill pay service that allows users to pay bills to over 120,000 billers using Doxo’s website. Doxo, although unaffiliated with Plaintiffs, included Plaintiffs as billers that can be paid through Doxo’s website. Doxo’s biller pages for Plaintiffs included the use of Plaintiffs’ trademarks and trade name. Plaintiffs initiated this action against Doxo on October 13, 2022, asserting claims for trademark and service mark infringement in violation of Section 32 of the Lanham Act (Count 1); false representation and false designation of origin in violation of Section 43(a) of the Lanham Act (Count 2); unfair competition in violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Count 3); trademark infringement, trade name infringement, and unfair competition under Florida common law (Count 4); and tortious interference with business relationships (Count 5).

    Doxo accused Lincare of attempting to use several forms of inadmissible
    evidence as a result of which Doxo sought to exclude (1) Lincare’s various call logs prepared by its customer support agents, which constituted unreliable, inadmissible, and often multilayered hearsay, (2) all evidence of, or testimony relating to, cease and desist letters sent to Doxo by third-party billers, as well as any third-party complaints or disputes that involve marks not at issue here and were not fully adjudicated as well as (3) Sarah Butler’s testimony regarding Lincare’s trademarks other than LINCARE.

    Survey Research Expert Witness

    Sarah Butler is a highly esteemed expert in survey research and sampling, boasting over 20 years of experience in designing and executing intricate consulting projects for clients involved in litigation, arbitration, regulatory proceedings, and business strategy. Her expertise extends to advising prominent brands such as Apple, Walmart, Toyota, and Gatorade. Notably, her research and testimony have been widely recognized and accepted in both state and federal courts, including bench and jury trials, as well as by regulatory bodies like the ITC and the Copyright Board, along with arbitration venues.

    Discussion by the Court

    First, Doxo argued that the Court should exclude Lincare’s various call logs prepared by its customer support agents since the call logs were neither recordings nor verbatim transcriptions of actual words spoken by Lincare’s customers. Instead, they reflected the employees’ characterizations of the conversation, biased by the employees’ express instructions from their superiors to uncover evidence of confusion in support of this case.

    The Court observed that the call logs/notes consisted of two layers of statements: (1) the notes written by Plaintiffs’ customer representatives, for which the customer representatives are the declarants; and (2) the statements of Plaintiffs’ customers made to and recorded by the customer representatives, for which the customers are the declarants. Under Federal Rule of Evidence 805, “hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”  Thus, both layers of double hearsay must satisfy a hearsay exception to be admissible. Alternatively, there would be no hearsay within hearsay problem if the customers’ statements recorded within the notes did not constitute hearsay.

    The Court agreed with Plaintiffs that the customers’ statements to Plaintiffs’ customer representatives were not hearsay or were subject to the state of mind exception to hearsay.

    Next, Doxo argued that the evidence of cease and desist letters sent to Doxo by third-party billers, as well as any third-party complaints or disputes that involved marks not at issue here and were not fully adjudicated were irrelevant because “documents specific to one trademark are largely irrelevant to a claim for infringement of an entirely separate mark.” Additionally, Doxo maintained that mere complaints by third parties about alleged infringement were not relevant to the willfulness of Doxo’s infringement.

    The Court held that the letters were relevant to Doxo’s intent, bad faith, and willfulness in using Plaintiffs’ trademarks since the cease-and-desist letters and other third-party disputes put Doxo on notice that other businesses believed that Doxo’s use of their trademarks on its website infringed their trademarks. But — as Plaintiffs tell it — Doxo continued to prominently use various businesses’ trademarks, including Plaintiffs’ trademarks, on its website in the same way despite this notice.

    Finally, Doxo contended that Plaintiffs’ survey expert, Sarah Butler, should not have been able to offer opinions regarding Plaintiffs’ trademarks besides the LINCARE mark. It emphasized that Butler’s survey only involved the LINCARE mark and, thus, her opinion stated in her report that there was “no reason to believe [that her] conclusions as to confusion would differ for” Plaintiffs’ other marks should not have been admissible. The Court held that Doxo neglected addressing the Federal Rules of Evidence in support of this section of its
    Motion. Instead, Doxo cited law regarding expert reports and at least one case deciding a Daubert motion rather than a motion in limine.

    It was worth noting that Doxo had previously filed a Daubert motion targeting Butler’s testimony. When Butler had described the consumer confusion survey she conducted for the LINCARE mark, Doxo had argued that her opinions lacked reliable methodology. Doxo alleged that Butler’s survey consisted of numerous flaws concerning the survey population, the marketplace conditions, the control group, and the allegedly vague questions asked. The Court denied Doxo’s Daubert motion after acknowledging that Butler’s methodology in conducting her survey was reliable enough for it to be presented to the jury.

    The Court determined that to the extent Doxo could be interpreted as raising a challenge to the admissibility of Butler’s opinion under the Federal Rules of Evidence, that challenge likewise failed. Butler’s opinion regarding these trademarks was held to be relevant to the trademark infringement claims and exclusion under Rule 403 was unwarranted. Doxo was free to cross-examine Butler and raise arguments at trial about the weight to be accorded to her opinions.

    Held

    The Court denied the Defendant’s motions in limine to exclude Lincare’s unreliable call log, evidence regarding third-party disputes, and Sarah Butler’s testimony regarding Lincare’s trademarks other than LINCARE.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    Regardless of the challenges to Sarah Butler’s methodology in a Daubert motion, the Court ultimately deemed her survey reliable enough for presentation to the jury, emphasizing the importance of demonstrating methodological soundness in expert opinions. Additionally, arguments regarding the scope of expert opinions were addressed, with the Court dismissing Doxo’s contention that Butler should only offer opinions on the LINCARE mark as unsupported by relevant legal standards. The Court emphasized the importance of applying the Federal Rules of Evidence and relevant legal standards in evaluating the admissibility and scope of expert testimony to ensure consistency and fairness across cases. Vigorous cross-examination — rather than exclusion — was advocated as the proper means of challenging Butler’s opinions

    Case Details:

    Case Caption: Lincare Holdings Inc. Et Al V. Doxo, Inc.
    Docket Number: 8:22cv2349
    Court: United States District Court, Florida Middle
    Citation: 2024 U.S. Dist. LEXIS 34899
    Order Date: February 29, 2024

  • Survey Methodology Employed by Marketing Expert Witness Deemed Admissible

    Survey Methodology Employed by Marketing Expert Witness Deemed Admissible

    Plaintiff, Anthony Bush on behalf of a class of California consumers, brought a class action against the Defendant, Rust-Oleum Corporation for mislabeling of its “Krud Kutter” cleaning products as “non-toxic” and “Earth friendly,” contending that it violated California consumer-protection laws since the products were, in fact, harmful to humans, animals, and the environment.

    The operative complaint consisted of five claims: (1) unlawful, unfair, and fraudulent business practices under the Unfair Competition Law (UCL), Cal. Bus. & Prof. Code §§ 17200-08; (2) deceptive advertising under the False Advertising Law (FAL), Cal. Bus. & Prof. Code § 17500; (3) deceptive practices under the Consumer Legal Remedies Act (CLRA), Cal. Civ. Code §§ 1750-84; (4) breach of express warranties; and (5) unjust enrichment.

    The Plaintiff filed a motion to exclude the opinions and survey of the Defendant’s market-research expert Dr. Ran Kivetz while the Defendants moved to exclude the declaration of the Plaintiff’s survey expert, Dr. J. Michael Dennis.

    Marketing Expert Witness

    Ran Kivetz is a renowned marketing scholar and survey expert holding a Ph.D. in Business from Stanford University Graduate School of Business. He is a tenured, chaired Professor of Marketing at Columbia University Business School, and he has received numerous research awards and nominations from leading marketing and consumer research publications and organizations, including, but not limited to, the Journal of Marketing Research, Journal of Consumer Research and the Association of Consumer Research.

    Survey Research Expert Witness

    J. Michael Dennis is a nationally recognized expert on survey research methods, with a focus on online surveys and household panels. He has directed hundreds of statistical studies using probability-based and non-probability panels, as well as using telephone and in-person modes of data collection. Dennis is executive director of AmeriSpeak, NORC’s probability-panel owned and operated by NORC. 

    Discussion by the Court

    With regard to the Plaintiff’s motion to exclude the opinions of Ran Kivetz, the Court observed that Kivetz conducted a experimental design survey which involved a test group and a control group. Kivetz showed the test group the actual label of one of the Krud Kutter products while the control group was shown the same label but without the challenged label claims (“non-toxic” and “Earth friendly”). Kivetz asked two key questions to the respondents. The first question was whether or not they would buy the products shown but for the challenged claims while the second question involved the reasons for the respondent’s purchasing decision which the respondents had to list in open-ended format.

    Based on the answers, Kivetz concluded that that the challenged claims were not a but-for cause of purchasing decisions considering the difference between the test and control groups in whether they would purchase the product. Kivetz added that the open-ended responses determined that there were a variety of reasons for consumers’ purchasing decisions.

    Plaintiff argued that some of Kivetz’s opinions were irrelevant because under the reasonable-consumer test, the challenged claims could be “material” to purchasing decisions even if the claims were not a but-for cause of the decisions and a variety of factors went into the decisions.

    Plaintiff contended that instead of using a proper control stimulus that omitted any references to the “Non-Toxic” and “Earth Friendly” attributes, Kivetz’s control stimulus included several representations that communicated to the control group that the product shown was not only safe or “non-toxic,” but also “earth friendly.” Specifically, he failed to remove the “biodegradability” claim and the Environmental Protection Agency’s “Safer Choice” seal on the front packaging; as well as the word “safely” from the back-packaging claim that the formula “safely and easily” removes various substances. Since the test and control stimuli both showed non-toxic and earth friendly products, Plaintiff concluded that Kivetz’s purported control stimulus was no control at all.

    Plaintiff criticized Kivetz’s survey for distorting collected data due to inadequate control over pre-existing consumer attitudes, beliefs, and preferences. The inclusion of branding elements like the Krud Kutter name and packaging were based on the incorrect assumption that respondents could update their preferences despite the removal of Challenged Claims. The survey lacked manipulation checks to determine whether the experimental treatment — removal of the ‘non-toxic’ and ‘Earth friendly’ claims in the control stimulus — was effective.

    Plaintiff argued that Kivetz’s open-ended questions were unreliable because such questions tend to measure only what comes first to a respondent’s mind while close-ended questions were better suited for qualitative research. Moreover, Kivetz allegedly failed to properly represent the class or replicate the marketplace.

    Kivetz designed a coding frame and employed two blind coders to read and categorize the responses, reconcile any discrepancies between them, to quantify the open-ended responses and determine, in his view, whether a significant number of respondents identified the “non-toxic” and “earth friendly” features as a reason for their purchase decision. Kivetz failed to present the Plaintiff with the data upon which Kivetz relied, including Kivetz’s coding frame, the blind-coders coding, and the reconciliation of discrepancies. Consequently, Plaintiff was deliberately prevented from evaluating how verbatim responses were categorized.

    The Court held that the Plaintiff’s attacks concerned the weight that should be accorded to Kivetz’s survey and opinions and determined that the survey methodology employed by Kivetz was within the bounds of accepted principles.

    As for the data that Kivetz did not provide, it was seen that while responses were being categorized to the open-ended questions, the coding company excluded certain responses because the respondent spent too little time on it. Some of the data at issue, such as “all starts and metadata reflecting the excluded interviews and basis for their exclusion” were never actually provided to Kivetz.

    The Court, citing Republic of Ecuador v. Mackay, 742 F.3d 860, 869-70 (9th Cir. 2014), held that the data an expert “considered” under Rule 26(a) refers to data the expert “was provided or otherwise exposed to in the course of developing his or her opinions.

    As for the “pricing data that Kivetz collected to select the $9.47 price point in his survey,” the Defendant contended that it was public. This indicated that any failure to produce was harmless. The Court thus denied the Plaintiff’s motion to exclude the opinions of Kivetz, but this portion of the motion (regarding the alleged failure to produce data) was denied without prejudice to its being refiled as a separately noticed motion if warranted.

    The Defendant filed a motion to exclude the declaration of the Plaintiff’s survey expert, J. Michael Dennis, alleging that Dennis repeated methodological errors found in previously excluded surveys from other cases. Dennis aimed to assess the extent to which reasonable consumers perceived the challenged claims regarding product harmlessness. His survey presented a hypothetical label without the Krud Kutter brand name, asking respondents if they believed the claims conveyed the stated meaning.

    The Court, once again, noted that the Defendant’s arguments concerned the weight of Dennis’ testimony instead of its admissibility.

    Held

    The Court denied both the Plaintiff’s as well as the Defendant’s respective motions to exclude the opinions of Ran Kivetz and J. Michael Dennis.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    The case involved expert testimony from both parties, with the Plaintiff seeking to exclude the opinions of Ran Kivetz and the Defendant attempting to exclude the declaration of the Plaintiff’s survey expert, J. Michael Dennis. Kivetz’s experimental design survey with test and control groups, aimed to assess the impact of certain label claims on consumer purchasing decisions. However, the Plaintiff criticized Kivetz’s methodology, arguing that the control stimulus used was flawed as it still contained elements suggesting product safety and environmental friendliness. Additionally, the Plaintiff raised concerns about the incompleteness of expert disclosures. Despite these objections, the Court found that the methodology employed by Kivetz was generally acceptable within the bounds of established principles. As for Dennis’ testimony, the Defendant challenged its admissibility based on methodological errors found in previous surveys. However, the Court reiterated the distinction between challenges to weight versus admissibility of expert testimony, ultimately allowing both Kivetz’s and Dennis’ opinions to be admitted.

    Case Details:

    Case Caption: Bush V. Rust-Oleum Corporation
    Docket Number: 3:20cv3268
    Court: United States District Court, California Northern
    Citation: 2024 U.S. Dist. LEXIS 23728
    Order Date: February 8, 2024
  • Experts could rely on reliable “other sources” and even hearsay to offer their opinions; Court notes before admitting part of Marketing Expert Witness’ testimony

    Experts could rely on reliable “other sources” and even hearsay to offer their opinions; Court notes before admitting part of Marketing Expert Witness’ testimony

    The lawsuit was a trademark infringement action filed by Forest River, Inc. against inTech Trailers, Inc. It sought injunctive relief, damages, costs, attorneys’ fees, and any other appropriate remedies. The legal action arose from inTech’s knowing and intentional infringement of Forest River’s DELLA TERRA trademark and its mountain design trademark, (“Forest River Mountain Design”) (Forest River Mountain Design and DELLA TERRA collectively, the “Forest River Marks”). The claims were made under the Lanham Act, the Indiana Trademark Act, and the common law of the State of Indiana, asserting inTech’s infringement of the Forest River Marks.

    Forest River, Inc., a prominent player in the manufacturing of recreational vehicles (“RVs”), cargo trailers, utility trailers, pontoon boats, and buses, among other products, had utilized the Forest River Marks to brand, promote, advertise, market, and sell a new line of its RVs known as the “DELLA TERRA RVs.” Forest River extensively promoted, advertised, marketed, and sold a substantial number of DELLA TERRA RVs under the Forest River Marks. Consequently, the Forest River Marks became distinctive and well-recognized at common law within the industry and among consumers in the United States and Canada.

    inTech, a competitor of Forest River in the United States and Canadian markets, was knowledgeable about Forest River’s RV product lines and trademarks, with certain members of its leadership having prior connections with Forest River. Commencing in November 2020, inTech initiated a campaign aimed at selling a new line of RVs by creating confusion among consumers, leading them to believe that its new RVs were DELLA TERRA RVs. inTech branded this new line as “Terra,” a name bearing a confusing similarity to DELLA TERRA, and also incorporated a new mountain design similar to that used by Forest River on its RVs. By using “terra” and the mountain design in various combinations, including with a third mark Forest River had used in the past—OASIS—inTech engaged in actions that traded on the goodwill associated with Forest River’s Forest River Marks.

    inTech’s use of “Terra” was found to have infringed Forest River’s trademark rights in DELLA TERRA. Additionally, inTech’s use of its new mountain design was determined to infringe Forest River’s trademark rights in the Forest River Mountain Design. The inclusion of an old Forest River mark, OASIS, along with inTech’s knowledge of Forest River’s RV lines, indicated an intentional, willful, and knowing campaign to create initial interest confusion, closely align with the Forest River Marks, and capitalize on Forest River’s goodwill associated with those marks. inTech’s use of “Terra” and its new mountain design in composite marks was found to infringe composite marks comprising the Forest River Marks. All of these infringements were causing confusion in the RV industry and among consumers, thereby violating the Lanham Act, Indiana state law, and common law, entitling Forest River to seek relief.

    Forest River, Inc. (“Forest River”) supported its claims by engaging a survey from an Intellectual Property valuation expert, David Franklyn, who conducted a scientific and controlled double-blind survey involving actual consumers of RV travel trailers. The purpose of the survey was to address the crucial question in the case: whether consumers were likely to be confused by inTech Trailers, Inc.’s (“inTech”) infringement on Forest River’s DELLA TERRA and Mountain Design trademarks. According to Forest River’s expert, David Franklyn, the findings indicated that a legally significant percentage of travel trailer consumers were indeed confused by inTech’s infringement.

    In response to Forest River’s claims, inTech presented the testimony of a marketing expert, Thomas Maronick. Forest River claimed that despite not conducting his own survey to directly challenge Franklyn’s results, Maronick attempted to provide opinions that, if admitted, would seek to “inform” the jury about RV consumers and their thought processes. Forest River contended that Maronick lacked expertise specifically in RV consumers. Furthermore, Maronick went beyond his role as an expert witness by placing himself in the position of the Court, evaluating evidence using the wrong standard (the United States Court of Appeals for the Ninth Circuit’s Sleekfast factors), and opining on the legal issue of likelihood of confusion. Additionally, Forest River argued that Maronick’s opinions lacked reliance on any verified data or reliable analysis; he merely repeated data from third-party sources and surveys without evaluating the reliability of those sources or applying methodology critiques to his own references.

    Due to Thomas Maronick’s “alleged” lack of reliable methodology and qualifications to opine on the thoughts and behaviors of RV consumers, Forest River, Inc. argued that Maronick’s proffered opinions amounted to nothing more than unsubstantiated and unreliable legal briefing. It was asserted that such ipse dixit opinion testimony was inadmissible under Rule 702 and Daubert. Consequently, Forest River, Inc. sought to exclude the testimony of inTech Trailers, Inc.’s opinion witness, Thomas Maronick.

    Marketing Expert Witness

    Dr. Thomas Joseph Maronick served as a marketing consultant since 1997, offering guidance on marketing strategy and consumer research issues in litigation. He functioned as an expert witness in more than 150 cases and conducted over 300 survey research projects related to advertising and trademark litigation. Before his consulting role, Maronick served as the director of impact evaluation in the Bureau of Consumer Protection at the Federal Trade Commission from 1980 to 1997. During this time, he acted as the in-house specialist on marketing and survey matters. Maronick has also contributed to publications on the impact of marketing on consumers.

    Discussion by the Court

    Forest River sought to exclude the anticipated testimony of Maronick. Forest River contended that Maronick’s testimony included inappropriate legal conclusions, particularly in sections 4 and 6 of his report. Forest River argued that Maronick gave conclusions under certain likelihood of confusion factors developed in another circuit and analyzed seven factors known as the “Diamond” factors used to evaluate consumer surveys. In response, InTech clarified that Maronick would not provide an opinion on the likelihood of confusion. The Court interpreted this as a concession, indicating that the set of opinions presented in section 4, even in the context, was no longer in dispute and would not be offered.The Court focused on the opinions in section 6 of Maronick’s report.

    InTech had stated that Maronick would only offer his critique of Franklyn’s survey without delving into tracing the seven factors in the reference guide, as courts typically do. He was not required to inform the jury about the judicial evaluation of surveys using these factors. The Court had the responsibility to instruct the jury on weighing evidence, determining witness credibility, and assessing expert opinions.

    The reference guide, emphasized as not constituting the law, was deemed inappropriate to present to the jury, as it could be misleading and prejudicial under Rules 702, 704, and 403. It was clarified that the guide was intended for judges and possibly counsel but not for the jury.

    Accordingly, the Court held that Maronick had to limit his opinions to the analysis of Franklyn’s survey. However, he was permitted to articulate the factors in evaluating surveys to the extent that they proved to be considerations used by experts in his field for developing or assessing surveys, aligning with his experience. It was noted that many critiques in this section (Section 6) already appeared in Section 7 of his report.

    Franklyn conducted a Squirt survey to determine whether consumers of towable travel trailers were likely to be confused by Forest River’s Della Terra and inTech’s Terra marks. The viewed images of travel trailers, were randomly classified as “test” or “control” subjects. Respondents answered two “buffer” questions early on to blind the study’s purpose. Later, they indicated whether the subsequent images were made by, affiliated with, or sponsored by the company that produced the first travel trailer—in this case, Forest River’s Della Terra travel trailer. Franklyn opined that 11 percent of respondents showed confusion, which he considered a significant percentage. He further asserted that a majority of these respondents formed their confusion based on the Terra mark or mountain design.

    Forest River argued that Maronick should have conducted a rebuttal survey to address gaps in methodology or data in Franklyn’s survey. However, the Court determined that an opinion witness, in rebuttal, need not necessarily replicate or develop new data. A rebuttal witness may critique another’s opinions without offering alternatives, as long as it aids the jury in deciding a triable issue. Maronick was allowed to base his opinions on Franklyn’s information and add his own insights, provided the information was of a type that experts in his field reasonably rely on. Forest River viewed Maronick’s five critiques of Dr. Franklyn’s survey as unreliable and derivative of his own assertions.

    First, Maronick critiqued Franklyn’s survey methodology, asserting that the sample used (the entire U.S. population) was overbroad. Maronick contended that Franklyn should have sampled individuals within the target market for travel trailers, emphasizing that 75 percent of travel trailer purchasers are over age 45 with disposable income above the national average. Franklyn reported that he set quotas in line with census distributions for age, gender, and region. In support of his critique, Maronick referenced a demographic profile study of RV owners conducted by Ipsos in 2020. Ipsos appears to be a near-50-year international company, publicly-traded in the European Union, with nearly 90 markets (including the United States), that collects and compiles data for its clients to make decisions.

    The Court found that Maronick’s opinion drew on reputable data and explained the method for conducting a reliable survey, contributing to the jury’s understanding of the importance of starting with a proper sample. While Forest River raised concerns about the weight of his opinion, the Court deemed these concerns relevant to the weight rather than the admissibility of the opinion.

    Second, Maronick opined that Franklyn should have used a broader array of images of competing trademarks instead of just a single control image (inTech Sol) and buffer image (Jayco Eagle). According to Maronick, using only these two images increased the likelihood of finding an association between Forest River’s mark and inTech’s mark. Franklyn employed a two-room format in his survey, showing respondents the Forest River Della Terra model in room one and two other images in room two, either the inTech Terra travel trailer (test group) or the Sol RV (control group). Maronick argued that showing these sequential images one at a time, rather than in an array, could skew responses substantially higher. Forest River contended that Maronick’s opinions lacked data or methodology because he didn’t conduct his own survey, characterizing them as merely his say-so. However, the Court disagreed, noting that while Forest River might not agree with the method or data, these were matters for cross-examination and argument at trial, not questions of admissibility under Rule 702. The Court recognized that experts could rely on reliable other sources and even hearsay to offer their opinions, citing United States v. Conn, 297 F.3d 548.

    Third, Maronick opined that Franklyn’s use of the inTech Sol RV as the control image was so different from the Terra unit that it signaled to respondents an association between the Della Terra and Terra. Maronick referred to a standard in survey methodology stating that a control should share as many characteristics with the experimental stimulus as possible, except for the characteristic being assessed. He cited survey and industry authorities to support this step in his method, specifying differences in size and configuration that, in his view, skewed the results. Maronick’s experience in developing and conducting surveys, combined with industry sources, provided a reliable basis for his critique. While Forest River may challenge the credibility of his opinion during cross-examination and argument, its concerns were deemed suitable for trial rather than questions of admissibility under Rule 702.

    Fourth, Maronick opined that the use of two “irrelevant” questions between respondents’ viewing of the Della Terra image and the images of the Terra, Sol, and Jayco units caused respondents to “guess.” He characterized the intervening questions as a modification to the Squirt survey format. Maronick supported his opinion by referencing industry support, a factual basis within Franklyn’s survey method, facts within the questions and responses, and the logical concern that this method might prompt specific responses. His method included a check-and-balance to frame survey questions clearly and precisely, avoiding bias and using control questions when appropriate. Maronick’s experience and the factual basis he provided spoke not only to his method but also to an issue that the jury might reasonably consider when evaluating the weight to give the survey. Forest River’s concerns were deemed to pertain more to the weight of Maronick’s critique rather than its admissibility.

    Fifth, Maronick disagreed with Franklyn regarding whether a 9 percent net difference of survey respondents finding confusion between the Della Terra and Terra represented a significant likelihood of confusion. While Maronick couldn’t recall if his critique drew from the entirety of Franklyn’s analysis or a specific section, the Court considered this a factual gap suitable for cross-examination rather than outright exclusion. Maronick provided a formula for testing statistical significance, although he didn’t include the outcome in his report. Despite not being asked in deposition whether he ran the formula or the results, the Court noted that he offered a basis and method for testing his conclusion, making it testable. Maronick’s opinion, built on a method for adjudging surveys, a formula for statistical significance, data from Franklyn’s survey, and his experience in conducting 300 surveys, aimed to assist the jury in understanding not just the survey but also what it might convey to a factfinder. The Court concluded that his opinion was not inadmissible under Daubert. 

    Held

    The Court granted Forest River’s motion to exclude Maronick’s opinion concerning his conceded opinions and those in section 4 of his report. However, the Court denied the motion as to Maronick’s critique of Franklyn’s survey, particularly his analysis of the five flaws and conclusion derived from the survey. 

    Key Takeaways:

    This opinion addresses the admissibility of expert witness testimony under Daubert and Rule 702. The Court denies most of Forest River’s motion to exclude Intech’s expert, Maronick. The Court finds that Maronick is qualified based on his credentials and experience in marketing research and surveys. His critiques of the opposing expert’s survey methodology are admissible even without conducting his own survey. An expert can rely on outside sources and data reasonably relied upon in the field to critique another expert’s methodology. Any flaws in the data go to weight not admissibility. Maronick tied his critiques to his experience and industry practices for reliable survey methods. The Court excludes only his conceded opinions on likelihood of confusion factors and his discussion of how judges assess survey factors. Experts cannot opine on ultimate legal conclusions. But experts can utilize reliable principles and methods even if their data has gaps, as cross-examination exposes doubts in the testimony for the jury to weigh. The judge ensures the methodology and data are connected to the opinion, not that the opinion is flawless.