A US district court has granted a plaintiff’s motion to exclude portions of an expert’s testimony after claiming that the expert was speaking on matters outside of his area of expertise. The case is Mountaineers Foundation v The Mountaineers (Case 2:19-cv-1819-RSL-TLF, Western District of Washington, 8 April 2022).

On 8 April 2022, the US District Court for the Western District of Washington granted (in part) Mountaineers Foundation’s (the plaintiff’s) motion to exclude portions of a damages expert’s testimony related to the results of a consumer confusion survey and likelihood of confusion. These subject matters were deemed as being outside of the witness’s areas of expertise, and therefore in violation of Federal Rule of Evidence 702.

The foundation had retained John Plumpe as an expert to review discovery, conduct research and develop opinions regarding monetary relief if liability was found against The Mountaineers (the defendant).

In response, The Mountaineers served the foundation with an expert report prepared by Mr. Drew E Voth. The report stated that Mr. Voth had been asked to assess damages suffered by the parties, as well as evaluate the Plumpe Report, and confirmed that he would not be offering an opinion on liability.

In particular, the foundation challenged the following statements from Mr. Voth’s report, arguing that they are outside the scope of his expertise:

• “[E]vidence presented to me shows that donations received by The Mountaineers were intended for The Mountaineers rather than [Plaintiff].”
• “The Mountaineers sent tens of thousands of emails to its mailing lists where recipients were sent a link to the Alchemer (formerly SurveyGizmo) survey tool to confirm the intended recipient of their donations…none of The Mountaineers’ grant and contribution revenue should be apportioned to [Plaintiff].”
• “These donor responses also support a finding that there is no reasonable nexus between the claimed grant and contribution revenue reported by The Mountaineers and the alleged unlawful acts.”
• “In the event that Defendant is found liable for Plaintiff’s claims, the evidence made available to me shows none of Defendant’s profits are attributable to the alleged unlawful acts.”
• “[Plaintiff’s] fundraising activities, which include its website, operation of the Rhododendron Preserve, and email campaigns, would not be expected to result in donations to The Mountaineers in the form of grants, in kind donations, events, or sponsorships.”

The foundation sought an order precluding Mr. Voth from providing testimony regarding donor intent, consumer confusion and/or donor confusion.

The court began by discussing its gatekeeper role to ensure that expert testimony is both relevant and reliable. Under Federal Rule of Evidence 702, the district court has broad discretion to assess the relevance and reliability of expert testimony. Pursuant to Federal Rule of Evidence 104(a), courts must decide any preliminary questions about whether a witness is qualified, a privilege exists or evidence is admissible.

Under Rule 702, an expert witness who is “qualified…by knowledge, skill, experience, training, or education” is allowed to testify when:

“(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.”

Turning to the facts, the court noted that Mr. Voth states that his expertise is in damage valuation as well as financial and damages analysis. During his deposition, Mr. Voth testified that his is not an expert opinion report on likelihood of confusion and that he does not write expert reports on this subject. He also confirmed in his deposition that he is not a survey expert and does not typically perform surveys.

The court held that the portion of Mr. Voth’s testimony regarding donor intent is beyond the scope of his expertise. His report purported to evaluate evidence, including survey evidence, to determine whether the donors intended for their donations to go to the foundation or The Mountaineers. But the court noted that Mr. Voth expressly stated in his deposition that he was not an expert in determining likelihood of confusion or in preparing surveys. Additionally, neither he nor The Mountaineers had provided any evidence that he had expertise in analyzing donor intent or donor confusion.

Based on the foregoing, the court held that Mr. Voth’s testimony regarding donor intent and the donor survey are beyond the scope of his expertise and should be excluded under Federal Rule of Evidence 702.

This article originally appeared in World Trademark Review Weekly on April 21, 2022, and is reprinted with permission.