Kinetic Concepts, Inc. v. BlueSky Med. Corp.

Kinetic Concepts, Inc. v. BlueSky Med. Corp.

Opinion

ORDER DENYING DEFENDANT MEDELA'S MOTION TO EXCLUDE

BEFORE THE COURT are Defendant Medela's Motion to Exclude Expert Testimony Based on the Surveys of Brian C. Reisetter and Donald Lichtenstein (Docket No. 469), filed April 21, 2006 and Plaintiff's Response (Docket No. 505), filed May 5, 2006. After due consideration of the written briefs and oral arguments of the parties, the Court is of the opinion that the Motion to Exclude should be DENIED.

Defendants move to exclude [*3]  certain expert testimony and associated evidence of Dr. Reisetter. ¹ [*4]  "[E]xpert testimony is admissible under Daubert if it is both relevant and reliable." ² An expert's testimony is sufficiently reliable only if it is based on sufficient facts or data, it is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. ³ "[O]therwise inadmissible [facts or data] shall not be disclosed to the jury . . . unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." ⁴ As such, this Court must discharge its "'gatekeeping' obligation." ⁵

Defendants contend that Plaintiffs' survey, offered for the false advertising ⁶ and unfair competition claims, ⁷ [*6]  is fatally flawed and thus inadmissible. [*5]  ⁸ In contrast to false statements which enjoy a presumption of deception, statements that are ambiguous or true, but misleading, require evidence of material impact on consumers. ⁹ Materiality is demonstrated by evidence of actual deception, a tendency to influence consumers' purchasing decisions. ¹⁰ Lanham Act liability is typically proven through survey evidence. ¹¹

Survey evidence is not direct evidence of actual confusion; it is circumstantial evidence. Surveys are experiments that yield data from which inferences about the likelihood of actual confusion may be drawn. The methodology of the experiment, the objectivity with which it was designed, and the accuracy of the reporting and analysis of the results all affect the kinds of inferences that can be drawn from the survey results and the weight that should be given them. ¹² [*7] 

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