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Deere & Co. v. Fimco Inc.

United States District Court, W.D. Kentucky, Paducah Division

March 8, 2017

DEERE & COMPANY, PLAINTIFF/COUNTER-DEFENDANT
v.
FIMCO INC., d/b/a/ SCHABEN INDUSTRIES, DEFENDANT/COUNTER-CLAIMANT

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge

         Plaintiff Deere & Company (“Deere”) brings this action alleging that Defendant FIMCO Inc. (“FIMCO”) is using Deere's green and yellow color scheme on agricultural equipment in violation of federal trademark and common law. There are currently several pending motions ripe for adjudication by the Court, most notably the parties' cross-motions for summary judgment. Deere has filed a motion for partial summary judgment on its claim of trademark dilution, FIMCO's affirmative defense and counterclaim of functionality, and FIMCO's affirmative equitable defenses. [DN 99.] FIMCO responded. [DN 115.] Deere replied. [DN 141.] For the reasons stated herein, the Court will DENY Deere's motion with respect to its dilution claim and FIMCO's affirmative defenses of acquiescence and estoppel and GRANT its motion with respect to FIMCO's defense and counterclaim of functionality and FIMCO's affirmative defenses of laches and implied license.

         FIMCO has moved for summary judgment finding that Deere has no trademark rights in yellow tanks, that Deere's registered trademarks have not become incontestable, and that farmers want their agricultural equipment to match their tractors. [DN 100.] Deere responded. [DN 113.] FIMCO replied. [DN 124.] For the reasons stated herein, FIMCO's motion is DENIED.

         BACKGROUND

         Although the parties dispute various factual matters, which will be addressed in detail below, the basic facts of the action are not in dispute. Deere sells tractors and towed and trailed agricultural equipment in “[i]ts distinctive green and yellow ‘Deere Colors.'” [DN 98 at 8 (Deere's Memorandum in Support).] Deere has three trademarks registered with the United States Patent and Trademark Office (PTO) pertaining to the use of its green and yellow color scheme on its equipment. [DN 1-2 at 2; DN 1-3 at 2; DN 1-4 at 2.] The first of these registered trademarks, Reg. No. 1, 502, 103 (the ‘103 Registration), was obtained in 1988 and covers green and yellow “agricultural tractors, lawn and garden tractors, trailers, wagons, and carts, ” specifically those with green bodies/frames and yellow wheels. [DN 1-3 at 2.] The second, Reg. No. 1, 503, 576 (the ‘576 Registration), was obtained in 1988 and covers green and yellow “wheeled agricultural, lawn and garden, and material handling machines.” [DN 1-2 at 2.] The third and most recent registration, Reg. No. 3, 857, 095 (the ‘095 Registration), was obtained in 2010 and covers “tractor-towed agricultural implements, ” including, among others, “fertilizer spreaders” and “nutrient applicators” with green bodies and yellow wheels. [DN 1-4 at 2.] In addition to its registered trademarks, Deere asserts common law trademark protection of its green and yellow color combination. [DN 1 at 8-9.]

         FIMCO manufactures both lawn and garden sprayers, its main source of business, and agricultural equipment, “which is a much smaller line of products for FIMCO.” [DN 100-1 at 2.] The agricultural equipment FIMCO manufactures includes towed agricultural sprayers and nutrient applicators, which FIMCO offers in multiple colors, including green and yellow. [Id.]

         Deere claims that it first learned of FIMCO's allegedly infringing use in 2011 and tried, unsuccessfully, to persuade FIMCO to cease the use of the green and yellow color combination. [DN 98 at 12.] Deere then brought suit against FIMCO on April 27, 2015, alleging that FIMCO is engaging in infringing activity by selling its sprayers and other agricultural equipment “bearing the Deere Colors or green bodies with yellow wheels or tanks.” [DN 1 at 5.] Deere asserts four causes of action: 1) trademark infringement in violation of 15 U.S.C. § 1114, 2) federal false designation of origin and unfair competition in violation of 15 U.S.C. § 1125(a), 3) trademark dilution in violation of 15 U.S.C. § 1125(c), and 4) common law trademark infringement. [Id. at 6-9.] Deere seeks a permanent injunction prohibiting FIMCO from “using the Deere Colors trademark in connection with its sprayers and wheeled agricultural equipment, as well as an injunction ordering [FIMCO] to cease using yellow tanks or wheels in connection with wheeled agricultural equipment having green vehicle bodies.” [Id. at 1-2.]

         FIMCO denies having engaged in any infringing activity, claims that it and its alleged predecessor in interest, J-D-D Lubricants Co. (“JDD”), have long used yellow and green on its equipment, and asserts, in defense, that Deere's claims are barred by the doctrines of laches, estoppel, implied license, acquiescence, and functionality. [DN 5 at 7.] In addition to these defenses, FIMCO brought four counterclaims against Deere. [Id. at 13-16.] The first, second, and fourth claims seek a declaratory judgment finding that FIMCO has not infringed on or diluted Deere's trademarks, has not unfairly competed, and has not falsely designated the origin of FIMCO's products. [Id.] FIMCO's third claim seeks to have Deere's trademarks held invalid and cancelled pursuant to 15 U.S.C. § 1119 on the grounds that Deere's yellow and green colors are functional and therefore cannot comprise valid trademarks. [Id. at 15.]

         DISCUSSION

         I. Preliminary Motions

         Before the Court can proceed to the parties' summary judgment motions, it must first address several other non-dispositive motions that are currently pending.

         A. FIMCO's Motion in Limine to Exclude Testimony of Deere's Expert William Shanks [DN 95]

         FIMCO requests that the Court, pursuant to the standards set out in Daubert and Federal Rule of Evidence 702, exclude all testimony from Deere's expert, William Shanks. [DN 95.] Deere responded. [DN 110.] FIMCO replied. [DN 123.] For the following reasons, FIMCO's motion is denied.

         Shanks has, since 1998, been an investigator at a firm called Marksmen, Inc., “a private investigation firm that focuses on intellectual property investigations.” [DN 110-1 at 1.]

         Marksmen “primarily assists trademark and other intellectual property attorneys in investigating the use of trademarks or other intellectual property, so the intellectual property owners can prosecute or defend infringement claims.” [Id.] As the Lead Investigator at Marksmen, Shanks' duties include “investigating possible infringement, locating witnesses, and supervising other intellectual property investigators.” [Id.] At the request of Deere, Shanks conducted an investigation and wrote a report based upon his findings. In his Declaration, Shanks summarized his investigation as follows:

Over several weeks in June 2016, I spoke with a total of 20 salespeople at different dealership locations, and with 18 of those 20 salespeople, I said something very close to the following: “I always thought [or assumed] that yellow/green farm equipment was made by . . . .” or “I always thought [or assumed] that the yellow/green coloring looked like . . . .” I would not finish the sentence, but would pause, to see if the sales personnel would finish the sentence. Each time I raised this unfinished sentence (18 of 18 times) the salesperson responded to my partial sentence and pause by stating promptly either “John Deere” or “Deere.” (In two of the 20 interviews, I did not put this statement to the salesperson.) I took notes of these conversations, which eventually became part of my Report in this case.

[Id. at 2 (internal citations omitted).] Based upon this investigation, Shanks opined “that salespeople at dealerships that sell FIMCO's agricultural equipment perceive the green and yellow colors on agricultural equipment as associated with Deere, or at a minimum, recognize or believe that people generally associate such colors with Deere.” [DN 89-4 at 54 (Shanks Report).]

         As part of Shanks' investigation, he presented himself in the role of “an employee of a film production company that wanted to rent or purchase agricultural equipment for a movie.” [Id.] Shanks took this approach so that dealers would “perceive[] [him] as someone not well-versed in that equipment, so the salespeople would be more inclined to educate [him] about the equipment than to assume [he] knew about it already.” [Id.] Shanks also explained that his investigation consisted of “candid conversations” more so than “an interrogation or formal survey” in an effort to “ensure that the respondents felt comfortable enough with me to use their own words and give me their truthful, candid opinions.” [Id. at 3.] Shanks “offered an open-ended statement so people would feel free to fill in the gap however they wanted, instead of acting on a prompt or specific question from me.” [Id.]

         In the instant motion, FIMCO asserts that Shanks is unqualified to testify as to his opinions in this case and that any expert testimony regarding Shanks' report and investigation is irrelevant, unreliable, and based on inadmissible hearsay. [DN 95-1 at 4-7.] In response, Deere argues that Shanks is properly qualified to testify under Federal Rule of Evidence 702, that his opinion is not based on hearsay, and that FIMCO's criticisms of Shanks' survey and testimony go to weight, not admissibility. [DN 110.] The Court agrees.

         Pursuant to Rule 702, experts must be qualified by “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. Here, the Court agrees with Deere that Shanks' twenty years of experience as a private investigator for an intellectual property investigation firm, which has often involved developing personas, conducting investigations, eliciting candid responses, and evaluating the results of such investigations, qualifies him to testify as to his opinions in this case. [See 110-1 at 1-3.]

         Rule 702 further requires that an expert's “specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue” and that the testimony be “based on sufficient facts or data” and is “the product of reliable principals and methods.” Fed.R.Evid. 702(a)-(c). FIMCO argues that Shanks' testimony does not satisfy these requirements because

1) the pretext in which he contacted the dealers skewed the results of the poll; (2) the manner of questioning suggests the respondents answered based on perceptions of market dominance rather than confusion; and (3) the lack of specificity regarding methodology and results makes it impossible for the trier of fact to determine whether Shanks' conclusions are supported.

         [DN 123 at 6-7.] For instance, FIMCO alleges that, because Shanks posed as a film producer, interviewees likely “tailored their responses accordingly.” [Id. at 7.] Specifically, FIMCO argues that dealers would give different, less specific answers to a “random layman” than they would to a “true purchaser or shopper.” [Id.] Moreover, FIMCO claims that, because Shanks used the phrase “I always thought [or assumed] . . .”, that it is likely that respondents were making “guesses . . . as to what they thought Shanks' film producer character, as a completely uninformed, uneducated consumer, would think Shanks meant to finish the statement with.” [Id. at 7-8.]

         Additionally, FIMCO asserts that “Shanks' manner of asking an open-ended question likely resulted in demand effects . . . Shanks' [u]nfinished [s]tatements clearly lobbed for the respondents an answer going to what company most prominently features green and yellow on its agricultural equipment.” [Id. at 9.] See 6 McCarthy on Trademarks and Unfair Competition § 32:172 (4th ed. 2017) (“Caution must be exercised in evaluating the results of some open-ended survey questions about brands because respondents who merely guess will likely just play back the names of the best-known and dominant brands.”)

         Finally, FIMCO states that “Shanks' testimony cannot be helpful to the trier of fact, nor can Shanks be certified as an expert witness in the absence of sufficiently clear methodologies and results that the Court can analyze and determine whether, indeed, such methodologies are of the kind that experts in the field would follow and the results are probative more than they are prejudicial.” [DN 123 at 10.] Specifically, FIMCO argues that Shanks' notes only “approximate” the conversations he had with each interviewee, that his prompt varied from one call to the next, and that Shanks gave no context for the conversations he had with dealers before he asked them the open-ended question. [Id. at 10-11.]

         Although FIMCO's arguments may indeed demonstrate why Shanks' investigation and resulting opinions should be given less weight, they do not require exclusion. Indeed, “the relevant case law counsels that-subject to the Court's overriding gatekeeping function under Daubert-errors in survey methodology are more properly directed against the weight a jury should give the survey, rather than overall admissibility.” Innovation Ventures, LLC v. NVE, Inc., 90 F.Supp.3d 703, 720-21 (E.D. Mich. 2015) (citations omitted). See also Leelanau Wine Cellars, Ltd. v. Black & Red, Inc., 502 F.3d 504, 518 (6th Cir. 2007) (“Where a survey presented on the issue of actual confusion reflects methodological errors, a court may choose to limit the importance it accords the study in its likelihood of confusion analysis.”); Citizens Banking Corp. v. Citizens Fin. Grp., Inc., 320 F. App'x 341, 348 (6th Cir. 2009) (“In explaining its reasoning, the district court noted several flaws in the surveys . . . The district court's findings are supported by the record, and so we find that the district court did not commit clear error in minimizing the weight given to CBC's surveys.”); Rocky Brands, Inc. v. Red Wing Shoe Co., No. 2:06-CV-00275, 2009 WL 5125475, at *3 (S.D. Ohio Dec. 28, 2009) (“Because almost all surveys are subject to some sort of criticism, courts generally hold that flaws in survey methodology go to the evidentiary weight of the survey rather than its admissibility.” (citations omitted)); McCarthy, supra, at § 32:158 (“The usual rule is that a professionally conducted survey that relates to the facts in issue will be admitted into evidence, with any deficiencies or shortcomings serving to reduce the weight the survey is given.”)

         Certainly, “a trial court, in the exercise of its ‘gatekeeping function' may, in an appropriate case, exclude a flawed survey report from being received into evidence” at all. McCarthy, supra, at § 32:158. However, examples of situations in which outright exclusion is warranted include “if the person who designed the survey does not qualify as an expert” or “[i]f the survey was so informally designed and conducted that it fails key tests of professionalism and reliability.” Id. (citations omitted). This is not the case here. Rather, FIMCO's challenges to Shanks' survey amount to claims of “technical inadequacies” such as problems with “the format of the questions or the manner in which it was taken.” Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir. 2010) (quoting Keith v. Volpe, 858 F.2d 467, 480 (9th Cir. 1988)). As each of these challenges “bear on the weight of the evidence, not its admissibility, ” id., the Court will not exclude Shanks' report or testimony.

         Lastly, FIMCO claims that Shanks' report and expected opinion testimony are based solely off of hearsay; that is, off of statements made by the dealers he interviewed, and are therefore inadmissible. [DN 95-1 at 5-6 (citing Fed.R.Evid. 801).] However, as Deere points out and as numerous courts and commentators have made clear, “since at least 1951 the cases are now unanimous that evidence of the state of mind of persons surveyed is not inadmissible as hearsay.” See 6 McCarthy, supra, at § 23:2.75. See also Piper Aircraft Corp. v. Wag-Aero, Inc., 741 F.2d 925, 931 (7th Cir. 1984) (“[C]ommentators unanimously agree that survey results are not inadmissible hearsay; rather, the results are reports of the state of mind of the interviewees, Fed.R.Evid. 803(3), and form the basis for the opinion of an expert witness from which the expert testifies as to the likelihood of confusion.”); Schering Corp. v. Pfizer Inc., 189 F.3d 218, 227 (2d Cir. 1999), as amended on reh'g (Sept. 29, 1999) (“The great majority of surveys admitted in this Circuit, including those used in Lanham Act cases to establish actual confusion or secondary meaning, fall into this category: they poll individuals about their presently-existing states of mind to establish facts about the group's mental impressions.”) Here, Shanks phrased his questions to dealers as inquiring into what they always “thought [or assumed]” about the colors green and yellow on agricultural equipment. [DN 110-1 at 2.] Therefore, the Court agrees that the answers Shanks obtained consisted of the states of mind of those polled, and accordingly do not constitute inadmissible hearsay.

         Furthermore, even outside of the survey context, Rule 703 permits expert witnesses to offer opinions based on inadmissible facts or data so long as “experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed.R.Evid. 703. Here, Shanks disclosed the individuals he interviewed, the dates on which he conducted the conversations, the questions asked, the interviewees' responses, and the opinions he formed as a result. Contra Potts v. Martin & Bayley, Inc., No. 4:08-CV-00015-JHM, 2011 WL 4703058, at *3 (W.D. Ky. Oct. 4, 2011) (“[T]he Court finds that the inadmissible hearsay statements of an unnamed consulting expert, where neither the date nor content of the conversation is disclosed, is not the type of information that is reasonably relied upon by experts in MacInnes's field.”) Here, the Court is satisfied that experts in Shanks' field would reasonably rely on this kind of data in forming opinions. Accordingly, FIMCO's motion in limine to exclude Shanks' testimony [DN 95] is denied.

         B. Deere's Motion to Exclude Witnesses Mark Schwarz, David Staack, Albert Kessler, Todd Yeazel, and Cindy Perkins [DN 96]

         Deere has moved to exclude the expert reports and testimony of FIMCO's five expert witnesses. [DN 96.] FIMCO responded. [DN 106.] Deere replied. [DN 125.] For the following reasons, Deere's motion is granted in part and denied in part.

         FIMCO's five expert witnesses are: 1) Mark Schwarz, the manager of FIMCO's company store in Columbus, Nebraska, 2) David Staack, a FIMCO store manager in Hopkinsville, Kentucky, 3) Albert Kessler, a manager of the sprayer systems and precision equipment departments at Stutsmans, Inc., in Hills, Iowa, 4) Todd Yeazel, the National Sales Manager at Fertilizer Dealer Supply, and 5) Cindy Perkins, an owner at Perkins Sales, Inc., in Bernie, Missouri. Each report is titled “Disclosure of Opinion Testimony (Whether Lay or Expert).” In the “Qualifications” section of each report, each witness states that they are “very familiar with the U.S. agricultural equipment industry, including manufacturing, marketing, sales, pricing, financing, service and warranty work” and that they have “spoken with people within the U.S. agricultural equipment industry, including representatives of various competitors and actual and prospective customers.” [DN 96-9; DN 96-11; DN 96-12; DN 96-13; DN 96-14.]

         1. Rule 26 Requirements for Expert Reports

         Deere argues, first, that none of FIMCO's experts prepared their own reports, and therefore they must be excluded due to a failure to comply with the requirements of Rule 26 of the Federal Rules of Civil Procedure. [Id. at 1; 21.] In support of this argument, Deere points out that each report contains the same five identically-worded opinions. [DN 96-1 at 12-13.] Additionally, language in each of these opinions “either tracks verbatim, or is drawn in substantial part from, FIMCO's pleadings and other submissions in this case.” [Id. at 13.] What's more, “[e]ach witness candidly admitted in deposition that FIMCO's counsel drafted the reports in their entirety, ” and none of the experts made any substantive changes to their reports. [Id. at 15 (citing DN 96-10 at 40 (Yeazel Deposition)).]

         The witnesses testified that they each had a brief phone call with FIMCO's counsel prior to being given a draft of the report, in addition to a brief conference call with all five witnesses after the drafts were circulated. [Id. at 16-18.] However, although each report lists four exhibits “to be used in support” including photographs and catalogs depicting JDD, Ag Spray, and John Deere products in green and yellow, [DN 96-9; DN 96-11; DN 96-12; DN 96-13; DN 96-14], the witnesses all testified “that they had neither asked for these documents (some of which they had never seen) nor relied on them in forming their opinions.” [DN 96-1 at 20 (citing DN 96-17 at 21 (Kessler Deposition)).]

         Rule 26(a)(2)(B) provides, in relevant part:

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.

         Fed. R. Civ. P. 26(a)(2)(B). Based upon this provision, Deere alleges that, as the reports were clearly not “prepared and signed by the witness[es], ” they must be excluded pursuant to Rule 37. Rule 37(c)(1) provides, in turn, that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) . . ., the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1).

         In response, however, FIMCO argues that Rule 26(a)(2)(B) is inapplicable because none of the five expert witnesses was “retained or specifically employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” Fed.R.Civ.P. 26(a)(2)(B).[1] Rather, FIMCO alleges that Rule 26(a)(2)(C) applies, which provides:

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is expected to testify.

         Fed. R. Civ. P. 26(a)(2)(C). The Court agrees. Rule 26(a)(2)(C) was added in 2010 to “resolve[]

         a tension that has sometimes prompted courts to require reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement.” Fed.R.Civ.P. 26, advisory committee's note. As stated above, a report is not required of witnesses who are not retained or employed for the purpose of providing expert testimony in a particular case or to employees whose regular job duties do not regularly require such testimony. Fed.R.Civ.P. 26(a)(2)(B).

         Since the 2010 amendment, courts have attempted to parse the distinction between experts who are subject to the report requirements of Rule 26(a)(2)(B) and those subject to the less burdensome disclosure requirements of Rule 26(a)(2)(C). In Call v. City of Riverside, the Magistrate Judge provided a thorough analysis of the considerations relevant to making this determination which this Court finds persuasive. No. 3:13-CV-133, 2014 WL 2048194, at *7 (S.D. Ohio May 19, 2014). In Call, the court explained that “[t]he Advisory Committee's Note provides a persuasive indication that Rule 26(a)(2)(C) is meant to apply only to so-called hybrid witnesses, i.e., fact witnesses who can also provide expert testimony under Federal Rules of Evidence 702, 703, or 705.” Id. at 3. A common example of a hybrid witness is treating physicians, who “are both fact witnesses and, by virtue of their education, training and experience, experts.” Id. (quoting Crabbs v. Wal-Mart Stores, Inc., No. 4:09-CV-519, 2011 WL 499141, at *2 (S.D. Iowa Feb. 4, 2011)).

         The Call court further addressed a leading Sixth Circuit case which addressed whether an expert was retained or specially employed. Id. In Fielden v. CSX Transp., Inc., the Sixth Circuit held that a treating physician was not subject to the report requirement when there was “evidence that Dr. Fischer formed his opinions as to causation at the time that he treated Fielden and there is no evidence that Dr. Fischer formed his opinion at the request of Fielden's counsel.” 482 F.3d 866, 869 (6th Cir. 2007), as amended on denial of reh'g and reh'g en banc (July 2, 2007). The Call court further identified and analyzed “[t]he leading case attributed to the new Rule, ” a 2011 First Circuit case called Downey v. Bob's Discount Furniture Holdings, Inc., 633 F.3d 1 (1st Cir. 2011). Call, 2014 WL 2048194, at *4. In Downey, the court determined that an exterminator hired by the plaintiffs as the result of a bed bug outbreak was not an expert retained or specially employed to give testimony when “his opinion testimony ar[o]se[] not from his enlistment as an expert but, rather, from his ground-level involvement in the events giving rise to the litigation.” Downey, 633 F.3d at 6. The Downey court further explained that

[i]n order to give the phrase “retained or specially employed” any real meaning, a court must acknowledge the difference between a percipient witness who happens to be an expert and an expert who without prior knowledge of the facts giving rise to litigation is recruited to provide expert opinion testimony. It is this difference, we think, that best informs the language of the rule.

Id. The Downey court analogized the facts of its case to that of a treating physician, explaining that “where . . . the expert is part of the ongoing sequence of events and arrives at his causation opinion during treatment, his opinion testimony is not that of a retained or specially employed expert.” Id. at 7. Rather, when an expert's, such as a treating physician's, “opinion about causation is premised on personal knowledge and observations made in the course of treatment, no report is required under the terms of Rule 26(a)(2)(B).” Id. To the contrary, when “the expert comes to the case as a stranger and draws the opinion from facts supplied by others, in preparation for trial, he reasonably can be viewed as retained or specially employed for that purpose, within the purview of Rule 26(a)(2)(B).” Id.

         The Call court further cited to Ulbrick v. UPR Products, Inc., in which the court determined that a racing mechanic was retained or specifically employed when “his opinions were formed not, for example, in an attempt to repair the vehicle, but rather in an effort to determine the cause of the accident. Thus, he was functioning analogously to a physician performing an “after-the-fact” diagnosis rather than providing ‘in-the-moment' or ‘on-the-scene' treatment.” No. CIV. 08-13764, 2011 WL 500034, at *4 (E.D. Mich. Feb. 8, 2011). The mechanic's “opinions were not formed as a result of witnessing or experiencing the accident which is the subject matter of this lawsuit. Rather, they were presumably formed as a result of a process that any expert witness would undertake; namely, an ‘after-the-fact' examination of the vehicle in question.” Id. at *4.

         Similarly, the court in Beane v. Utility Trailer Manufacturing. Co. found that a group of nine experts in the trailer manufacturing industry were retained or specifically employed because

[t]here [wa]s no evidence that these experts have any firsthand knowledge on UTM's trailer design or Beane's specific side underride accident, and thus any comparisons the experts might make between their companies' trailer and UTM's trailer must arise by examining the relevant information from this case, indicating that they were specifically recruited after-the-fact just to provide expert testimony.

No. 2:10 CV 781, 2013 WL 1344763, at *3 (W.D. La. Feb. 25, 2013). The Beane court distinguished its case from cases that, following Downey, have “held that 26(a)(2)(C) experts' conclusions and opinions arise from firsthand knowledge of activities they were personally involved in before the commencement of the lawsuit, and not conclusions they formed because they were recruited to testify as an expert after-the-fact.” Id.

         Here, the Court agrees that FIMCO's five expert witnesses are analogous to treating physicians not subject to the report requirements of Rule 26(a)(2)(B). Rather than being “strangers” to the facts of the case and forming opinions based upon “facts supplied by others, in preparation for trial, ” Downey, 633 F.3d at 7, or based upon an “examin[ation] [of] the relevant information from this case, ” Beane, 2013 WL 1344763, at *3, all of FIMCO's experts had prior “firsthand knowledge” regarding sales of agricultural equipment, including Deere and FIMCO products. Each witness's disclosure states that they are “very familiar with the U.S. agricultural equipment industry, including manufacturing, marketing, sales, pricing, financing, service and warranty work” and that they have, throughout their careers, “spoken with people within the U.S. agricultural equipment industry, including representatives of various competitors and actual and prospective customers.” [DN 96-9; DN 96-11; DN 96-12; DN 96-13; DN 96-14.] Moreover, each bases their opinions on their “background and experience, ” including their extensive experience in the industry and/or in consumer interactions. [See DN 96-9; DN 96-11; DN 96-12; DN 96-13; DN 96-14.] This is in clear contrast to the situations in Ulbirck and Beane because, here, FIMCO's witnesses base all of their testimony on “firsthand knowledge of activities they were personally involved in before the commencement of the lawsuit, ” Beane, 2013 WL 1344763, at *3; that is, the sale of agricultural equipment and interactions with customers engaged in such sales. FIMCO's experts did not perform “after-the-fact” evaluations; rather, they were asked to give opinions based upon their existing knowledge and experience in the agricultural industry.

         Accordingly, the Court agrees that FIMCO's witnesses were not subject to the expert report requirements of Rule 26(a)(2)(B), but rather are subject to the disclosure requirements of Rule 26(a)(2)(C). Rule 26(a)(2)(C) requires expert witnesses to file disclosures outlining “the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C)(i)-(ii). There is no requirement that the experts themselves prepare such disclosures. See Id. The Court agrees that the disclosures FIMCO submitted for each witness satisfy these requirements, and therefore the Court need not exclude the expert disclosures pursuant to Rule 37(c)(1).

         2. Admissibility of the Opinions Contained in the Expert Disclosures

         Next, Deere asserts that, notwithstanding the report and disclosure requirements of Rule 26(a), each of the five witnesses' testimony is still “inadmissible because it is based solely on unsupported subjective experiences, anecdotes, and speculations, which cannot support an expert opinion and are grounds for exclusion.” [DN 96-1 at 22 (citing Fed.R.Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)).] Moreover, Deere states that this testimony would also be improper as lay opinion testimony “because the proffered opinions are not rationally based on the witnesses' own perceptions or observations.” [Id. at 6-7.]

         The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which states:

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.

         A trial court plays a “gatekeeper” role, excluding evidence that is “unreliable and irrelevant.” Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002). The inquiry is “a flexible one” and the focus “must be solely on [the proposed expert's] principles and methodology, not on the conclusions they generate.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 594-95 (1993). While there is no “definitive checklist or test, ” some factors to consider include: (i) whether the theory or technique “can be (and has been) tested, ” (ii) whether it “has been subjected to peer review and publication, ” (iii) whether it has a “known or potential rate of error, ” and (iv) whether the theory or technique enjoys general acceptance in the relevant scientific community. Id. at 594. However, the Sixth Circuit has acknowledged that the list of four Daubert factors “neither necessarily nor exclusively applies to all experts or in every case.” First Tennessee Bank Nat. Ass'n v. Barreto, 268 F.3d 319, 335 (6th Cir. 2001) (quoting Kumho, 526 U.S. at 141). Specifically, in some cases, “the factors may be pertinent, while in other cases ‘the relevant reliability concerns may focus upon personal knowledge or experience.'” Id. (quoting Kumho, 526 U.S. at 150). For instance, in Barreto, the court explained that it found “the Daubert reliability factors unhelpful in the present case, which involves expert testimony derived largely from [the expert's] own practical experiences throughout forty years in the banking industry.” Id.

         A trial judge has “considerable leeway” in deciding whether expert testimony is reliable and his decision is reviewed for abuse of discretion. Kumho, 526 U.S. at 152; Tamraz v. Lincoln Electric Co., 620 F.3d 665, 672 (6th Cir. 2010) (“[W]here one person sees speculation, we acknowledge, another may see knowledge, which is why the district court enjoys broad discretion over where to draw the line”). The Sixth Circuit has explained that we interpret Rule 702 “as imposing a threshold requirement of qualification by ‘knowledge, skill, experience, training or education, ' coupled with a two-part test for relevance (i.e., will the testimony ‘help the trier of fact to understand the evidence or to determine a fact in issue') and reliability.” Bradley v. Ameristep, Inc., 800 F.3d 205, 208 (6th Cir. 2015) (citing United States v. Cunningham, 679 F.3d 355, 379-80 (6th Cir. 2012)).

         Here, Deere first alleges that the expert witnesses' opinions that “[t]here is no actual or likely confusion by U.S. consumers as to the identity of the manufacturer of FIMCO's agricultural equipment products” are inadmissible because they lack any proper basis. [DN 96-1 at 22-23 (quoting expert reports).] The Court agrees.

         The experts state in their disclosures that this opinion is based upon their “training, background, and experience, ” “consumer interactions, ” and, for some, their “own farming experience.” [See DN 96-9 at 2; DN 96-11 at 3; DN 96-12 at 4; DN 96-13 at 3; DN 96-14 at 3.] However, as many courts have noted, “[g]enerally, a party alleging trademark infringement relies upon a consumer survey to prove the likelihood of consumer confusion in a particular case.” Tovey v. Nike, Inc., No. 1:12CV448, 2014 WL 3510636, at *4 (N.D. Ohio July 10, 2014) (citing 4 McCarthy on Trademarks and Unfair Competition § 32:158 (4th ed. 2013)). See also Patsy's Italian Rest., Inc. v. Banas, 531 F.Supp.2d 483, 486 (E.D.N.Y. 2008) (Finding expert's “testimony . . . unreliable as to the issue of likelihood of confusion” where the expert “appears not to have relied on such a consumer survey but, rather, he drew his conclusions based upon his own personal knowledge and expertise.”); Int'l Mkt. Brands v. Martin In''l Corp., 882 F.Supp.2d 809, 814 (W.D. Pa. 2012) (“[E]xpert opinion on the ultimate factual issue of whether or not there exists a likelihood of confusion is inadmissible.”).

         A leading treatise, McCarthy on Trademarks and Unfair Competition, provides helpful guidance as to this point. Professor McCarthy explains:

At the trial level, the issue of likelihood of confusion is an issue of fact. Most courts will not allow the expert testimony of a witness who opines on the ultimate question of whether there is or is not a likelihood of confusion. For example, most courts will not allow a jury to hear a witness testify that: “I've been an executive in the Gizmo industry for over twenty years, and in my opinion, defendant's use of the accused trademark Abba will probably confuse customers into thinking they are the goods of plaintiff Alfa.”
The reason that such testimony is usually not proper is not that the witness is testifying as to a conclusion of law, but that the witness has no expertise and no factual basis to opine as to the probable state of mind of customers when presented with the conflicting marks. A survey expert has conducted a ...

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