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Off Lease Only, Inc. v. Lakeland Motors, LLC

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

December 19, 2019

OFF LEASE ONLY, INC., Plaintiff,
v.
LAKELAND MOTORS, LLC, Defendant.

          ORDER

          Roy B. Dalton Jr. United States District Judge

         Before the Court is Plaintiff Off Lease Only, Inc.'s (“Off Lease Only”) Daubert Motion to Strike Defendant Lakeland Motors, LLC's (“Lakeland Motors”) Expert Witness. (Doc. 48 (“Motion”).) Lakeland Motors opposes. (Doc. 51.) On review, the Motion is denied.

         I. Background

         Off Lease Only sued Lakeland Motors alleging Lakeland Motors' billboards infringe Off Lease Only's copyright and infringe and dilute its trademark. (See Docs. 2, 41.) Lakeland Motors hired an expert, Robert A. Peterson, Ph.D., to conduct a secondary meaning survey assessing the fame of Off Lease Only's mark-a requisite element for the dilution claims. (Doc. 51, ¶¶ 2, 10; Doc. 51-1, pp. 2-10 (“Peterson Report”).)

         Dr. Peterson investigated the secondary meaning of Off Lease Only's “DON'T PAY MORE” mark by surveying whether “a targeted universe of individuals who purchased or considered purchasing a used vehicle from a used car dealership in the last five years uniquely associate the logo/slogan with one company generally, and specifically with OFF LEASE ONLY, INC.” (Doc. 51-1, p. 3.) The Peterson Report details his methodology and states he followed “accepted research procedures, methods, and techniques.” (Id. at 5-9.) Dr. Peterson reviewed Off Lease Only's complaint, Lakeland Motors' answer and affirmative defenses, and both parties' websites. (Id. at 5.) He then administered a questionnaire on the Internet to a national sample of 475 individuals and a Florida sample of 250 individuals-all part of the targeted audience. (Id. at 3, 5.) Participants saw either the “DON'T PAY MORE” mark or the control “ALWAYS SPEND LESS” mark and indicated whether they associate the mark with a company and if so, which one. (Id. at 5, 7-8.) From the questionnaire results, Dr. Peterson found “strong evidence that the logo/slogan ‘DON'T PAY MORE' does not possess any secondary meaning among members of the targeted universe either nationally or in Florida.” (Id. at 4; see also Id. at 9-10.)

         Off Lease Only moves to exclude Dr. Peterson's testimony under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), arguing Dr. Peterson's survey methodology was unreliable because he surveyed an improper universe. (See Doc. 48.) Briefing complete (see Doc. 51), the matter is ripe.[1]

         II. Legal Standards

         In its gatekeeping role, a district court is tasked to ensure that juries hear “expert” opinions that satisfy these requirements:

Qualifications-a witness that is “qualified as an expert by knowledge, skill, experience, training, or education” may testify as to his opinions of scientific, technical, or other specialized knowledge (Fed. R. Evid. 702) (“Qualification Requirement”);
Reliability-the testimony is “based on sufficient facts or data” (Fed. R. Evid. Rule 702(b)) and “is the product of reliable principles and methods” (Fed. R. Evid. Rule 702(c)), which the witness applied “reliably . . . to the facts of the case” (Fed. R. Evid. Rule 702(d)) (“Reliability Requirement”); and
Helpfulness-the testimony will help the jury to “understand the evidence or to determine a fact in issue” (Fed. R. Evid. Rule 702(a)) (“Helpfulness Requirement”).

See City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562-63 (11th Cir. 1998); see also Cooper v. Marten Transp., Ltd., 539 Fed.Appx. 963, 965-67 (11th Cir. 2013).[2] The Court must abstain from credibility determinations and any merits assessment of an expert witness's opinion-matters exclusively reserved to juries-and must instead narrowly focus on whether the proponent of the expert witness has established the Qualification, Reliability, and Helpfulness Requirements. See Daubert, 509 U.S. at 594-95; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 155 (2000).

         To determine whether the Qualification Requirement is met, “courts generally look to evidence of the witness's education and experience” and determine whether those qualifications and expertise sufficiently “fit” with “the subject matter of the witness's proposed testimony.” In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig., 711 F.Supp.2d 1348, 1367 (M.D. Ga. 2010) (citing Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001)).

         A determination on the Reliability Requirement involves several considerations that vary depending on the opinions and testimony, ...


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