United States District Court, M.D. Florida, Orlando Division
Dalton Jr. United States District Judge
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.
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”).)
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.)
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
gatekeeping role, a district court is tasked to ensure that
juries hear “expert” opinions that satisfy these
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
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). 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).
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)).
determination on the Reliability Requirement involves several
considerations that vary depending on the opinions and