Univ. of Kan. v. Sinks

Univ. of Kan. v. Sinks

Opinion

MEMORANDUM AND ORDER

Plaintiffs University of Kansas ("KU") and Kansas Athletics, Inc. allege various trademark claims against defendants Larry Sinks, Clark Orth, Larry Sinks Enterprises, Inc. and Victory Sportswear, L.L.C. ("Victory Sportswear"). These claims involve the sale of certain T-shirts that reference  [*3] KU, at the Joe-College.com retail store and website. The parties have filed cross motions for summary judgment, asking the Court to consider certain expert testimony. The Court now considers Plaintiffs' Daubert Motion to Exclude the Survey and Expert Report of James T. Berger (Doc. 120) and defendants' Motion to Exclude the Testimony and Opinions of Plaintiffs' Expert Witness (Doc. 129), Dr. Edward R. Hirt. The motions are fully briefed and the Court is prepared to rule. As discussed more fully below, the Court denies plaintiffs' motion to exclude the Berger survey and grants in part and denies in part defendants' motion to exclude the testimony and report of Dr. Hirt.

I. Standard

] The Court has broad discretion in deciding whether to admit expert testimony. ¹ Fed. R. Evid. 702 provides that a witness who is qualified by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise as to scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable  [*4] principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." ² 

] The proponent of expert testimony must show "a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation." ³ In order to determine whether an expert opinion is admissible, the Court performs a two-step analysis. "[A] district court must [first] determine if the expert's proffered testimony . . . has 'a reliable basis in the knowledge and experience of his discipline.'" ⁴ Second, the district court must further inquire into whether the proposed testimony is sufficiently "relevant to the task at hand." ⁵ An expert opinion "must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation . . . absolute certainty is not required." ⁶ And it is not necessary to prove that the expert is "indisputably correct," but only that the "method employed by the expert in reaching the conclusion is scientifically sound and that the opinion  [*5] is based on facts which satisfy Rule 702's reliability requirements." ⁷ 

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