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Superior Consulting Services, Inc. v. Shaklee Corp.

United States District Court, M.D. Florida, Orlando Division

May 18, 2018

SUPERIOR CONSULTING SERVICES, INC., Plaintiff,
v.
SHAKLEE CORPORATION and SHAKLEE U.S., LLC, Defendants.

          ORDER

          GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE

         This matter comes before the Court after an evidentiary hearing on the Plaintiff's Motion to Exclude Preethi Srinivasan and Alisa Mosler under Daubert (Doc. 185) and the Defendant's Response (Doc. 236).

         I. Factual Background and Procedural History

         Superior 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.

         On June 8, 2016, Shaklee, a corporation that manufactures and distributes nutritional 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.

         On 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 its Daubert Motion to exclude the testimony of Shaklee employees Preethi Srinivasan and Alisa Mosler. Doc. 185. On February 2, 2018, Shaklee filed its Response in Opposition. Doc. 236.

         II. Legal Standards

         Federal Rule of Civil Procedure 26(a)(2)(B) provides that, “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involved giving expert testimony, ” that witness's disclosure must accompany a written report prepared and signed by the witness. If the witness is not required to prepare such a report, the disclosure must include the subject matter of the expected evidence and a summary of the facts and opinions that are expected to be included in the witness's testimony. Fed.R.Civ.P. 26(a)(2)(C).

         Federal 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 methods; and
(d) the expert has reliably applied the principles and methods to the ...

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