United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Plaintiff's
Daubert Motion to exclude the expert report of Lloyd
Morgenstern (Doc. 213), and the Defendants Response in
Opposition (Doc. 232).
Factual Background and Procedural History
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 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.
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 Daubert Motion to exclude the
December 18, 2017 expert report of Lloyd Morgenstern. Doc.
213. Shaklee filed its Response on February 2, 2018. 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,