United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
Matter comes before the Court after evidentiary hearings on
the Plaintiff's Daubert Motion to Exclude Hal Poret (Doc.
No. 172), the Defendant's Daubert Motion to Exclude Kirk
Martensen (Doc. 173), and the accompanying responses from
Plaintiff and Defendant.
Factual and Procedural Background
owns two Florida fictitious business entities called
“Your Future Health” and “YFH”
(collectively “Superior”). Doc. 20 ¶ 5.
Eleanor Cullen owns and operates Superior. Superior's
“primary objective is the early detection of disease,
through performing certain laboratory tests, including blood
tests, for consumers.” Id. ¶ 7. Superior
accomplishes its objective by creating a profile
“customized to a client's unique biochemistry,
” called a “Healthprint.” Id.
¶ 11. Superior has registered the mark
“Healthprint” twice with the United States Patent
and Trademark Office (“USPTO”). Registration
number 2646571 was obtained on November 5, 2002, and
registration number 2928465 was obtained on March 1, 2005.
Doc. 20 ¶¶ 14, 16. The USPTO did not require proof
of a secondary meaning for either mark. Id. ¶
18. On November 8, 2008, and February 5, 2011, Superior filed
declarations of incontestability for the marks.
8, 2016, Shaklee, a corporation that manufactures and
distributes nutrition supplements, beauty products, and
household-cleaning products, filed a trademark application
with the USPTO claiming a similar “Healthprint”
mark. Shaklee's Healthprint refers to a free, online
survey that consists of twenty-two questions about a
client's personal characteristics, habits, and goals.
Doc. 43-8 ¶ 13. Once the client answers all of the
questions, he or she is presented with “a customized
set of Shaklee products that fits [his or her] health goals,
needs and budget.” Doc. 43- 7, Ex. 1 at 1.
December 14, 2017, Superior filed its Second Amended
Complaint alleging trademark infringement and violations of
the Florida Deceptive and Unfair Trade Practices Act. Doc.
159. On January 2, 2018, Shaklee filed its Answer,
Affirmative Defenses, and Counterclaim. Doc. 166. On January
12, 2018, Superior filed the Motion to Exclude Hal Poret
under Daubert (Doc. 172), and Shaklee filed the Motion to
Exclude Kirk Martensen (Doc. 173) that same day. On February
2, 2018, Shaklee filed its Response (Doc. 231), and Superior
filed its Response (Doc. 243). The Court held an evidentiary
hearing on the Motion to Exclude Kirk Martensen on April 18,
2018. Doc. 282. On April 19, 2018, the Court held an
evidentiary hearing on the Motion to Exclude Hal Poret. Doc.
Rule of Evidence 702 governs the admission of expert witness
testimony. It provides that:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. The proponent of the opinion testimony has
the burden of establishing each precondition to admissibility
by a preponderance of the evidence. Rink v. Cheminova,