Malletier v. Dooney & Bourke, Inc.
| Citation | 525 F.Supp.2d 558 |
| Decision Date | 13 December 2007 |
| Docket Number | No. 04 Civ. 2990(SAS).,04 Civ. 2990(SAS). |
| Parties | Louis Vuitton MALLETIER, Plaintiff, v. DOONEY & BOURKE, INC., Defendant. |
| Court | U.S. District Court — Southern District of New York |
Steven Kimelman, Esq., Michael A. Grow, Esq., Alison Arden Besunder, Esq., Arent Fox LLP, Theodore C. Max, Esq., Sheppard Mullin Richter & Hampton LLP, New York, NY, for Plaintiff.
Douglas D. Broadwater, Esq., Roger G. Brooks, Esq., Darin P. McAtee, Esq., Cravath, Swaine & Moore LLP, New York, NY, Thomas J. McAndrew, Esq., Thomas J. McAndrew & Associates, Providence, RI, for Defendant.
District courts are tasked with the "special obligation"1 of serving as the "gatekeepers" of expert evidence, and must therefore decide which experts may testify and present evidence before the jury.2 Recognizing that a purported expert's opinion often carries special weight with the jury even when unwarranted,3 the Supreme Court has directed district courts to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."4 Courts are given "broad latitude" in deciding "how to determine reliability" and in making the "ultimate reliability determination"5 In doing so, however, courts are reminded that the Federal Rules of Evidence favor the admissibility of expert testimony,6 and their "role as gatekeeper is not intended to serve as a replacement for the adversary, system."7 Indeed, "[w]here the expert's conclusion is drawn from a reliable methodology ... the correctness of that conclusion is still an issue for the finder of fact."8 As a result, excluding expert testimony is the exception rather than the rule,9 particularly since "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof" can serve as the means to "attack[] shaky but admissible evidence."10
In cases arising under the Lanham Act, the Court's gatekeeper function is of heightened importance because the "pivotal legal question ... virtually demands [expert] survey research ... on [issues such as] consumer perception ...."11 Indeed, expert survey evidence is used more frequently in trademark law cases than in other areas of law,12 and courts have been advised to carefully scrutinize survey evidence particularly where a jury rather than a bench trial is contemplated.13
While errors in a survey's methodology usually go to the weight accorded to the conclusions rather than its admissibility,14 the Second Circuit has made clear that this is "subject, of course, to Rule 403's more general prohibition against evidence that is less probative than prejudicial or confusing."15 Although it is the exception, "there will be occasions when the proffered survey is so flawed as to be completely unhelpful to the trier of fact ...."16 and "its probative value is substantially outweighed by its prejudicial effect."17
As evident from the Report and Recommendation ("R & R") issued by Professor Daniel J. Capra of Fordham University School of Law and Professor Barton Beebe of Cardozo School of Law (collectively, the "Special Masters"), much of the expert testimony proffered by the parties here warrants exclusion. The Special Masters acknowledged that their recommendation to exclude the majority of the expert testimony may seem "drastic."18 They justify their conclusions, inter alia, on the ground that while methodological flaws in a survey generally raise questions of weight rather than admissibility, "questions of weight, when sufficiently accumulated, become so serious as to require exclusion."19 The Special Masters further noted that the majority of the testimony presented "easy cases" for exclusion, but nevertheless, they aimed to "give each submission a fair reading with an evenhanded application of the law."20
Although the parties might regard the R & R to be severe in the scope of its recommended exclusions, the Second Circuit Court of Appeals and the lower courts within this Circuit provide support for the exclusion of survey evidence primarily under Rule 403 but also under Rule 702 where flaws are deemed to cumulatively undermine its relevance and reliability.21 Additionally, other courts considering the admissibility of expert survey evidence in trademark suits have reached similar conclusions.22
Upon review of the R & R, it is beyond cavil that the Special Masters discharged their duty with careful consideration and thoughtful analysis of the parties' opposing positions, the factual details of the expert reports and testimony at issue, the relevant evidentiary rules, and the, case law. The Special Masters considered each expert's survey on its own terms and while the number of exclusions may seem large, that is more properly attributed to the number of experts proffered by the parties than to over-exclusion by the Special Masters. Subject only to the modifications set forth in this Opinion, the Special Masters' R & R is adopted and will be published as the Memorandum and Order of the Court.
On March 16, 2007, defendant Dooney Burke, Inc. ("Dooney & Burke") filed motions in limine to exclude the testimony and reports of plaintiff Louis Vuitton Malletier's ("Louis Vuitton" or "LV") experts: Drs. Richard A. Holub, Eugene Ericksen, Jacob Jacoby, and Mr. West Anson. On March 19, 2007, Louis Vuitton filed motions in limine to exclude the testimony and reports of Dooney & Burke's experts: Drs. Robert N. Reitter and Bradford Cornell.
In light of the volume of the submissions on these motions, the Court appointed the Special Masters pursuant to Federal Rule of Civil Procedure 53(a)(1)(A) and (a)(1)(C) and by Order dated May 18, 2007 (the "May 18 Order").24 Pursuant to the. May 18 Order, the Special Masters were directed to submit to the Court a collaborative R & R on the pending motions no later than thirty days from May 18, 2007.25 On June 15, 2007, the Special Masters issued an extensive R & R spanning one hundred and ninety-two pages.
On July 5, 2007, Louis Vuitton objected to the R & R on the ground that the Special Masters had erred in excluding in their entirety the testimony and reports of its three survey experts.26 Louis Vuitton also objected to the exclusion, in part, of the testimony and report of its damages expert. Dooney & Bourke moved to adopt the R & R as to five of the six experts at issue, and conditionally objected to the exclusion of its survey expert's report and testimony on the level of consumer confusion in late 2006, as well as the exclusion of his trademark dilution study.27
Pursuant to Rule 53(g)(1), "in acting on a [special] master's order, the court must afford an opportunity [for the parties] to be heard and may receive evidence, and may: adopt or affirm; modify; wholly or partly reject or reverse; or resubmit to the master with instructions."28 As set forth in the May 18 Order and consistent with Rule 53(g)(3)-(4), the Court reviews de novo all objections to conclusions of law made or recommended by the Special Masters.29 All findings of fact made by the Special Masters are reviewed by the Court for clear error.30 Any rulings made by the Special Masters on procedural matters are to be set aside only if the Court finds an abuse of discretion.31
The proponent of expert evidence must establish admissibility under Rule 104(a) of the Federal Rules of Evidence by a "preponderance of proof."32 Rule 702 of the Federal Rules of Evidence states the following requirements for the admission of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.33
Under Rule 702 and Daubert, the trial judge must determine whether the proposed testimony "both rests on a reliable foundation and is relevant to the task at hand."34 A district court must act as "a gatekeeper to exclude invalid and unreliable expert testimony."35 In doing so, the court's focus must be on the principles and methodologies underlying the expert's conclusions, rather than on the conclusions themselves.36
Expert testimony may not usurp the role of the court in determining the applicable law.37 Although an expert "may opine on an issue of fact," an expert "may not give testimony stating ultimate legal conclusions based on those facts,"38 Expert testimony is inadmissible when it addresses "lay matters which [the trier of fact] is capable of understanding and deciding without the expert's help."39
In addition, Rule 403 states that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.40 41
As an initial matter, I address Louis Vuitton's argument that Special Master Beebe's previously undisclosed interactions with a former Dooney & Bourke attorney, Jeremy Sheff — who continues to practice with counsel for defendant but is no longer involved with the instant litigation — warrants his disqualification and the "disregard[] in its entirety"42 of the R & R. By letter dated July 6, 2007, Louis Vuitton informed the Court of its...
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Table of cases
...365 F.3d 278 (4th Cir. 2004) ............................................................ 191 Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558 (S.D.N.Y. 2007) ................................................. 26 Mazda Motor of Am., 123 F.T.C. 312 (1997) ....................................