Takeguma v. Freedom of Expression LLC

• Decision Date: 10 February 2021
• Docket Number: No. CV-18-02552-PHX-MTL,CV-18-02552-PHX-MTL
• Parties: Devin Justine Takeguma, et al., Plaintiffs, v. Freedom of Expression LLC, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Devin Justine Takeguma, et al., Plaintiffs, v. Freedom of Expression LLC, et al., Defendants.

No. CV-18-02552-PHX-MTL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

February 10, 2021

ORDER

Before the Court are the parties' Daubert motions to exclude certain expert witnesses (Docs. 37, 45-46) and cross-motions for summary judgment (Docs. 39-40). The Court rules as follows.¹

I. BACKGROUND

Defendant Freedom of Expression, LLC operates Bones Cabaret, a strip club in Scottsdale, Arizona. (Doc. 1-3 ("Compl.") ¶¶ 20-21.) Plaintiffs Devin Justine Takeguma, Heather Rae Young, Jessica Killings, Lucy Pinder, Rosie Jones, and Vivian Kindle are models. (Id. ¶ 1.) Between May 2016 and March 2017, Freedom of Expression used images of Plaintiffs in advertisements posted online via Bones Cabaret's social media. (Id. ¶¶ 39-44.) No Plaintiff has been employed by or has otherwise given permission to Freedom of Expression to use her image to advertise, promote, market, or endorse Bones Cabaret. (Doc. 39 at 3.) Plaintiffs allege that, by using their images without consent, Freedom of Expression "deprived [them] of the opportunity to engage in arms-length negotiationsregarding the terms and conditions of use of their images." (Compl. ¶ 10.)

Plaintiffs initiated this lawsuit on May 1, 2018. (Id.) They assert three claims against Freedom of Expression: (1) Misappropriation of Likeness; (2) Violations of the Lanham Act, 15 U.S.C. § 1125(a); and (3) False Light Invasion of Privacy. (Id.) The parties have each retained expert witnesses. Plaintiffs hired an expert to conduct a survey to explore the potential consumer confusion that resulted from Freedom of Expression's use of Plaintiffs' images. Both parties retained an expert to testify as to the value of Plaintiffs' damages. The parties now move to strike one another's experts. (Docs. 37, 45-46.) The parties also move for summary judgment on all claims. (Docs. 39-40.)

II. LEGAL STANDARDS

A. Daubert Standard

A party seeking to offer expert testimony must establish that the testimony satisfies Rule 702 of the Federal Rules of Evidence. Rule 702 provides:

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 facts of the case.

Fed. R. Evid. 702.

As a gatekeeper, trial judges make a preliminary assessment as to whether expert testimony is admissible. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 597 (1993); see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999). Specifically, "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589. To meet therequirements of Rule 702, an expert must be qualified, the expert's opinion must be reliable in that it is based on sufficient facts or data and is the product of reliable principles and methods, and the expert's testimony must fit the case such that the expert's opinion is relevant. Id. 589-95. The Rule 702 inquiry is "flexible." Id. at 594. The focus "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595. The requirements of Rule 702 are conditions for determining whether expert testimony is admissible. Id. at 592 n.10. Thus, a party offering expert testimony must show by a preponderance of the evidence that the expert's testimony satisfies Rule 702. See Fed. R. Evid. 104(a); Lust v. Merrell Dow Pharms. Inc., 89 F.3d 594, 598 (9th Cir. 1996).

B. Summary Judgment Standard

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Id. at 255; see also Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994) ("The court must not weigh the evidence or determine the truth of the matters asserted but only determine whether there is a genuine issue for trial.").

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing summary judgment must "cit[e] to particular parts of materials in the record" establishing a genuine dispute or "show[] that the materials cited do not establish the absence of . . . a genuine dispute." Fed. R. Civ. P. 56(c)(1). This Court has no independent duty "to scour the record in search of agenuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations omitted).

Where, as here, "parties submit cross-motions for summary judgment, each motion must be considered on its own merits." Fair Hous. Council of Riverside Cnty. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citations and internal quotations omitted). The summary judgment standard operates differently depending on whether the moving party has the burden of proof. See Celotex Corp., 477 U.S. at 322-23. As the party with the burden of proof, a plaintiff "must establish beyond controversy every essential element" of her claims based on the undisputed facts. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (internal quotations omitted). A defendant, by contrast, is entitled to summary judgment where it shows that a plaintiff cannot establish at least one element of her claim considering the undisputed material facts. Celotex Corp., 447 U.S. at 322-23.

III. DISCUSSION

A. Daubert Motions

Plaintiffs and Freedom of Expression retained respective experts. Plaintiffs hired Martin Buncher to conduct a survey to measure the likelihood of consumer confusion that resulted from Freedom of Expression's use of Plaintiffs' images. (Doc. 46-5 at 5.) In addition, Plaintiffs retained Stephen Chamberlin to "evaluate and value retroactively the compensation [Plaintiffs] would and should have received for the use of their respective images by Freedom of Expression." (Doc. 45-5 at 5.) Freedom of Expression hired Dr. Michael Einhorn to respond to Mr. Chamberlin's report and "provide an alternative benchmark valuation for compensating each [Plaintiff]." (Doc. 42-4 at 4, 61.)

Both parties have moved to strike the other's experts.² (Docs. 37, 45-46.) Becausethe experts' testimony is material to the Court's evaluation of the parties' summary judgment motions, the Court will first address the parties' Daubert motions.

1. Martin Buncher

Freedom of Expression challenges the reliability and relevance of Mr. Buncher's survey and corresponding report. (Doc. 46 at 2.) As noted, Plaintiffs retained Mr. Buncher to conduct a survey "to explore possible confusion among consumers exposed to" Freedom of Expression's use of Plaintiffs' images. (Doc. 46-5 at 5.)

a. Reliability

When a survey is conducted according to accepted principles, survey evidence is sufficiently reliable under Daubert. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 n.8 (9th Cir. 1997); see also Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir. 2010). Objections concerning "technical inadequacies" of a survey, "including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility." Keith v. Volpe, 858 F.2d 467, 480 (9th Cir. 1988); see also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir. 2001) ("[I]ssues of methodology, survey design, reliability, the experience and reputation of the expert, critique of conclusions, and the like go to the weight of the survey rather than its admissibility.").

Mr. Buncher has 54 years of experience conducting market research and providing marketing consulting services. (Doc. 46-5 at 6.) His report states that "[t]he survey sample selection, questions, questionnaire design, and interviewing procedures employed in [his] survey were specifically designed in accordance with the generally accepted standards and procedures in the fielding of surveys set forth by the American Marking Association" and other organizations. (Id. at 7.) Mr. Buncher's report explains his methodology and how his methodology conforms with those generally accepted principles. (Id. at 7-26.) Freedom of Expression challenges the reliability of Mr. Buncher's survey on multiple grounds.

i. Control Group and Control Question

Freedom of Expression first argues Mr. Buncher's survey is unreliable because he did not use a control group or an adequate "control question." (Doc. 46 at 8-11.) Freedom of Expression cites no Ninth Circuit authority to support its position. Rather, Freedom of Expression relies on an Order from the Southern District of New York, in which the court struck Mr. Buncher's survey in a similar case. (Id. at 8.); see Edmondson v. RCI Hosp. Holdings, Inc., No. 16-CV-2242 (VEC), 2020 WL 1503452 (S.D.N.Y. Mar. 30, 2020). Under Ninth Circuit law, technical inadequacies—like the lack of a control...