Water Pik, Inc. v. Med-Systems, Inc.
Filing
258
ORDER denying 167 Med-Systems' Motion in Limine to Exclude Water Pik's Consumer Confusion Expert Gary T. Ford. By Judge Philip A. Brimmer on 1/24/12.(mnfsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-01221-PAB-CBS
WATER PIK, INC., a Delaware corporation,
Plaintiff,
v.
MED-SYSTEMS, INC., a Washington corporation,
Defendant.
ORDER
This matter is before the Court on Med-Systems’ Motion in Limine to Exclude
Water Pik’s Consumer Confusion Expert Gary T. Ford [Docket No. 167] and the
supplemental briefs submitted by the parties discussing the effects of the Lynx report
on the admissibility of Dr. Ford’s survey [Docket Nos. 224, 226]. The Court has original
jurisdiction over this action pursuant to 15 U.S.C. § 1121, 28 U.S.C. §§ 1331 and 1338.
I. BACKGROUND
Water Pik brought this declaratory judgment action against defendant
Med-Systems, Inc. and seeks a judgment finding that its SinuSense™ mark does not:
(1) infringe Med-Systems’ SinuCleanse® mark; (2) infringe SinuCleanse®’s trade dress;
and (3) dilute the SinuCleanse® mark. Docket No. 117 at 4. In preparation for trial,
Water Pik retained Dr. Gary T. Ford to conduct a survey examining the likelihood of
confusion between SinuSense™ and SinuCleanse®. Docket No. 193 at 2. To
determine the likelihood of confusion between the marks, Dr. Ford performed a mall
intercept survey in sixteen different malls around the country. Docket No. 167-1 at 5.
The results of the survey showed that only one of the 164 respondents (0.6%) believed
that SinuSense™ had an association or connection with SinuCleanse®. Id. at 17. Dr.
Ford determined that a 0.6% likelihood of confusion between SinuSense™ and
SinuCleanse® was not statistically significant. Id. Accordingly, Dr. Ford opined that
“there is no confusion nor is there any likelihood of confusion between the SinuSense™
and SinuCleanse® marks or trade dress.” Id.
Med-Systems challenges the admissibility of Dr. Ford’s testimony in its entirety
because of alleged deficiencies in the survey’s methodology. Docket No. 167 at 6.
Specifically, Med-Systems argues that Dr. Ford’s survey is fundamentally flawed
because: (1) it failed to test the relevant universe1 of consumers; (2) the survey’s
sample was not representative of the target universe; and (3) the questions posed in
the survey could not adequately determine the likelihood of confusion between the
SinuSense™ and SinuCleanse® marks. Id. at 2. According to Med-Systems, these
errors rendered Dr. Ford’s survey and its conclusions inadmissible.2
In a previous Order [Docket No. 209], the Court concluded that Dr. Ford’s survey
targeted the relevant universe because the respondents were representative of a fair
sample of consumers likely to purchase SinuSense™ products. Docket No. 209 at 11.
The Court further found that, because Dr. Ford’s survey utilized methods generally
1
A survey “universe” is that segment of the population whose perceptions and
state of mind are relevant to the issues of a particular case. See Citizens Fin. Grp., Inc.
v. Citizens Nat’l Bank of Evans City, 383 F.3d 110, 118-19 (3rd Cir. 2004).
2
Med-Systems does not challenge Dr. Ford’s qualifications either to conduct
such a survey or to form opinions based on this type of survey.
2
accepted in the relevant field to test confusion, the questions posed in the survey were
pertinent to the question of a likelihood of confusion. Id. at 16-17. Nonetheless, the
Court reserved ruling on the motion because Dr. Ford relied on the demographic
breakdown found in the Lynx Report without verifying the Lynx Report’s methodology.
Id. at 12-13. The parties were ordered to submit supplemental briefing on the Lynx
Report and its relationship to Dr. Ford’s survey.
In its supplemental brief, Med-Systems argues that Dr. Ford’s reliance on the
Lynx report is professionally unsound because: (1) the demographics in the Lynx
Report do not represent his identified universe of neti pot users; (2) the Lynx Report
fails to identify the demographics utilized to create its core sample; and (3) the Lynx
Report artificially increases the number of respondents from four specific groups,
rendering its results entirely unreliable. Docket No. 224 at 2.
A. The Lynx Report
In the spring of 2009, Michael Wakeman, Water Pik’s Vice President of
Marketing, together with Blue Sky Strategies and Lynx Research Consulting,
administered two surveys to identify the size, demographics, and characteristics of the
potential market segment for nasal wash products. Docket No. 226-1 at 1, ¶ 6. Water
Pik conducted the survey process in two separate stages: first, it directed an “omnibus
survey”3 with a national representative sample of 1002 adults; second, based on the
3
“Omnibus surveys” are frequently used when a researcher wants to learn the
characteristics of the respondents who should be sampled, so that a subsequent, more
detailed, survey interviews the proper respondents according to age, gender, and other
important criteria. In this case, the Lynx omnibus survey included five questions
regarding sinusitis, seasonal allergies, and usage of nasal wash products. Docket No.
226-2 at 2 n. 4.
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results of the omnibus survey, Water Pik created a sampling plan for a national, indepth online survey (the “A&U Survey”). Id. at ¶¶ 7-8. The Lynx Report is a
compilation of the results of the A&U Survey. Id. at ¶ 9.
The omnibus survey utilized demographics of the U.S. population based on U.S.
Census data. Docket No. 226-1 at 2, ¶ 7. The survey respondents were
representative of the age, income, and ethnicity of the general population of the United
States. Id. The stated objectives for the omnibus survey included determining the
incidence of sinusitis and seasonal allergy sufferers in the population, providing
preliminary insight into the demographic characteristics of consumers in each ailment
category, and defining key consumer groups to aid in the study design for the A&U
Survey. Docket No. 226-1 at 9. The omnibus survey questioned 1002 respondents
and determined that 27% (183/680) of allergy and sinusitis sufferers used a nasal wash
and that neti pot users consisted of 6% (64/1002) of all respondents. Docket No. 226-1
at 21. The omnibus survey also revealed that of neti pot users, 42.2% (27/64) were
males, 57.8% (37/64) were females, 40.6% (26/64) were between 18 and 34 years of
age, 54.7% (35/64) were between 35 and 64, and 4.7% (3/64) were 65 or older. Docket
No. 226-2 at 7. Based on the results of the omnibus survey, Lynx Research Consulting
conducted the A&U Survey. Docket No. 226-1 at 2, ¶ 8.
The A&U Survey consisted of 1,513 respondents in a core representative
sample. Docket No. 226-5 at 6. To participate in the online survey, respondents had to
meet the following criteria: (1) adults between 18 and 64 years of age; (2) an annual
household income of $30,000; (3) not employed in sensitive industries (i.e. marketing);
and (4) one of the following: (a) adults with seasonal allergies or sinusitis; (b) parents
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with children (4 to 17) who experience symptoms of seasonal allergies or sinusitis; or
(c) adults who experience nasal irritation as a result of outdoor recreation or dusty
working conditions. Id. The objective of the A&U Survey was to: (1) assess usage
behaviors as they relate to current treatments (nasal wash and others); (2) determine
the current level of awareness and usage of nasal wash products; (3) size the individual
segments; and (4) profile target segments on demographic and attitudinal
characteristics. Docket No. 226-5 at 5. The survey posed questions designed to
determine whether respondents suffered from seasonal allergies or sinusitis and what
treatment, if any, they used to handle their conditions. See generally Docket No. 226-7.
The results of the A&U Survey revealed that 12.4% (187/1513) of the targeted
population used a neti pot when treating their own symptoms or when caring for a child.
Docket No. 226-2 at 9. The A&U Survey also showed that of neti pot users, 51.3%
(96/187) were males, 48.7% (91/187) were females, 46.5% (87/187) were between 18
and 34 years of age, and 53.5% (100/187) were between 35 and 64. Docket No. 226-2
at 9. It also found that 46% of consumers who use nasal wash products use them to
both treat and prevent symptoms, 51% use them to treat symptoms only, and 3% use
them only for prevention. Docket No. 226-5 at 46.
II. FEDERAL RULE OF EVIDENCE 702
Federal Rule of Evidence 702 provides that:
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.
5
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an
expert be qualified based upon knowledge, skill, experience, training, or education to
give opinions in a particular subject area. Rather, the Court must “perform[] a two-step
analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
After determining whether the expert is qualified, the specific proffered opinions must
be assessed for reliability. See id.; Fed. R. Evid. 702 (requiring that the testimony be
“based on sufficient facts or data,” be the “product of reliable principles and methods,”
and reflect a reliable application of “the principles and methods to the facts of the
case”).
Rule 702 imposes on the district court a “gatekeeper function to ‘ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.’”
United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To execute that
function, the Court must “assess the reasoning and methodology underlying the
expert’s opinion, and determine whether it is both scientifically valid and applicable to a
particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)
(citing Daubert, 509 U.S. at 592-93). When assessing reliability, “the court may
consider several nondispositive factors: (1) whether the proffered theory can and has
been tested; (2) whether the theory has been subject to peer review; (3) the known or
potential rate of error; and (4) the general acceptance of a methodology in the relevant
scientific community.” 103 Investors I, 470 F.3d at 990 (citing Daubert, 509 U.S. at
593-94). These considerations are not exhaustive. Rather, “the trial judge must have
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considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152 (1999). Ultimately, the test requires that the expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.” Kumho Tire Co., 526 U.S. at 152.
While the proponents of the challenged testimony have the burden of
establishing admissibility, their proffer is tested against the standard of reliability, not
correctness; they need only prove that “the witness has sufficient expertise to choose
and apply a methodology, that the methodology applied was reliable, that sufficient
facts and data as required by the methodology were used and that the methodology
was otherwise reliably applied.” United States v. Crabbe, 556 F. Supp. 2d 1217, 1221
(D. Colo. 2008).
In sum, expert testimony must be excluded if the expert is unqualified to render
an opinion of the type proffered, if the opinion is unreliable, if the opinion will not assist
the trier of fact, or if the opinion is irrelevant to a material issue in the case.
III. ANALYSIS
A. Survey Evidence
Parties to trademark infringement actions may use consumer surveys to
demonstrate or refute a likelihood of consumer confusion. Sally Beauty Co., Inc. v.
Beautyco, Inc., 304 F.3d 964, 974 (10th Cir. 2002). A survey’s evidentiary value
depends on the methodology used and the questions presented to respondents. King
of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir. 1999).
7
“[T]he closer the survey methods mirror the situation in which the ordinary person would
encounter the trademark, the greater the evidentiary weight of the survey results.” 6 J.
THOMAS MC CARTHY, MC CARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 32:163 at
32-333 (4th ed. 2011) (hereinafter MC CARTHY).4 Daubert underscores the trial court’s
responsibility to ensure that scientific or technical evidence is both reliable and relevant.
Daubert, 509 U.S. at 589.
To assess the validity and reliability of a survey, a court should consider a
number of criteria, including whether: (1) the universe was properly chosen and defined;
(2) the sample was representative of that universe; (3) the survey’s methodology and
execution were in accordance with generally accepted principles; (4) the questions were
leading or suggestive; and (5) the data was accurately gathered and reported. See
MC CARTHY § 32:159. Technical and methodological deficiencies in the survey,
including the sufficiency of the universe sampled, bear on the weight of the evidence,
not the survey’s admissibility. Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 523
(10th Cir. 1987). However, “when the deficiencies are so substantial as to render the
survey’s conclusions untrustworthy, a court should exclude the survey from evidence.”
Hodgdon Powder Co. v. Alliant Techsys., Inc., 512 F. Supp. 2d 1178, 1181 (D. Kan.
2007).
4
Both parties cite to MC CARTHY in support of their respective arguments.
Therefore, the Court will assume that McCarthy’s survey methodology is generally
accepted within the relevant field.
8
B. The Lynx Report’s Methodology
Med-Systems argues that the Lynx Report is unsound because: (1) it does not
identify the source of its demographic criteria; (2) the Lynx Report’s sample does not
represent the general population of seasonal allergies and sinusitis sufferers; (3) the
Lynx Report augmented the representative sample, skewing the survey’s
demographics; and (4) it does not describe the appropriate demographics of neti pot
users. Docket No. 224 at 2-3. Med-Systems argues that these errors make the
survey’s findings irrelevant for the purposes of this case.
As to Med-Systems’ first argument, the Lynx Report’s demographic breakdown is
clearly evident from the report and therefore is not flawed in that regard.
Med-Systems’ second argument relates to the qualifying criteria placed on the
A&U Survey. Docket No. 224 at 3. Med-Systems claims that the Lynx Report limited
respondents to certain population demographics, which do not represent the general
population of seasonal allergy and sinusitis sufferers. Id. The challenged categories
include: (1) adults suffering from seasonal allergies and sinusitis; (2) parents with
children suffering from seasonal allergies and sinusitis; (3) outdoor recreationists; and
(4) individuals working in dusty conditions. Docket No. 224 at 3.
After a review of the record, it is evident that the A&U Survey set reasonable
limits to sample the targeted population. The omnibus survey, which utilized Census
data, showed that 65% of the adult population in the United States suffers from either
seasonal allergies or sinusitis. Docket No. 226-1 at 18. Moreover, the study found that
24% of children (aged 4 to 17) in the U.S. suffer from either allergies or sinusitis and
that children only account for 3% of sinusitis or allergy sufferers independent of their
9
parents. Id. Additionally, the omnibus survey found that 80% of the U.S. population
either works in dusty conditions or are outdoor recreationists. Id. at 20. Of those who
are outdoor recreationists, around 75% (520/711) have either allergies or sinusitis and
72% (376/520) of those working under dusty conditions suffer from either allergies or
sinusitis (there is some overlap between dusty workers and outdoor recreationists).
Docket No. 226-2 at 8. Thus, it was reasonable for the A&U Survey to limit the targeted
population to adult sufferers, parents of children sufferers, outdoor recreationists, and
dusty-condition workers as these were the segments of the population most likely to
show symptoms of seasonal allergies or sinusitis.
Additionally, Med-Systems argues that the Lynx Report failed to place limits on
the age, income, education, or regional location of respondents to ensure respondents
accurately reflected the general population of seasonal allergy and sinusitis sufferers.
Id. The A&U Survey restricted participants to: (1) adults between 18 and 64 years of
age; (2) with an annual income of at least $30,000; (3) not employed in sensitive
industries (i.e. marketing); and (4) one of the following: (a) adults suffering from
seasonal allergies or sinusitis; (b) parents with children (4 to 17) who experience
symptoms of seasonal allergies or sinusitis; or (c) adults who experience nasal irritation
as a result of outdoor recreation or dusty working conditions. Docket No. 226-5 at 6.
The A&U Survey ensured that all of the respondents were adults who suffered from
either sinusitis or seasonal allergies or parents of children who suffered from the same
symptoms. Although the A&U survey did not restrict participants based on education
levels or regional location, this breakdown was unnecessary because the omnibus
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survey had already taken such factors into account. Thus, contrary to Med-Systems’
argument, the A&U Survey placed significant limits on its targeted population.
Third, Med-Systems argues that, by purposefully augmenting the population, the
A&U Survey skewed the demographics away from the core representative sample.
Docket No. 224 at 3. However, augmenting a representative sample does not
undermine the survey’s underlying methodology. So long as the survey selected
respondents from the appropriate target universe, the augmentations relate only to the
survey’s general findings. In other words, the augmented population is only relevant to
the extent that the augments skewed the Lynx Report’s demographic breakdown of neti
pot users.
After reviewing the raw data for the A&U Survey, Dr. Ford found that, of the 187
neti pot users, only 29 were from the augmented sample. Docket No. 226-2 at 6 n.8.5
Dr. Ford concluded that the inclusion of the augmented sample did not have a
substantive impact on the age or gender distribution of the neti pot users. Thus, it
appears that the augmentation of the sample was not a serious deficiency and, as
such, it relates only to the sufficiency of the sample, which goes to weight and not
admissibility. See Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1546
5
Med-Systems argues that Dr. Ford was not provided with the raw data until
January 7, 2011 and therefore cannot use this information to justify his reliance on the
Lynx Report. Docket No. 224 at 3 n.1. However, whether Dr. Ford tested the
representativeness of the Lynx Report before he conducted his survey does not affect
the ability to retrospectively determine the reliability of the report. So long as the data
relied upon is accurate and reliable, Dr. Ford’s survey is probative and relevant to the
issues in this case. The Court has allowed both sides to supplement their briefing and
will allow Water Pik to do so here to get to the bottom of this dispute.
11
(10th Cir. 1996) (noting that issues regarding the sufficiency of the sample go to the
weight and not the admissibility of the evidence).
Fourth, Med-Systems argues that the Lynx Report does not indicate the
appropriate demographics of neti pot users and that, as a result, it is impossible to
determine the representative demographics for neti pot users. Docket No. 224 at 3.
The Court disagrees.
The data from the omnibus survey and the A&U Survey are largely consistent
with Dr. Ford’s chosen demographic limitations. The omnibus survey disclosed that neti
pot users comprised 6% (64/1002) of the general population of the United States.
Docket No. 226-2 at 7. The omnibus survey also revealed that, of neti pot users: (1)
42.2% (27/64) were males; (2) 57.8% (37/64) were females; (3) 40.6% (26/64) were
between 18 and 34 years of age; (4) 54.7% (35/64) were between 35 and 64; and (6)
4.7% (3/64) were 65 or older. Id. The A&U Survey showed similar results as it found
that: (1) 12.4% (187/1513) of respondents used a neti pot for their own symptoms or
when treating a child; (2) 51.3% (96/187) of neti pot users were males; (3) 48.7%
(91/187) of neti pot users were females; (4) 46.5% (87/187) were between 18 and 34
years of age; (6) and 53.5% (100/187) were between 35 and 64. Id. at 9.
Dr. Ford designed his survey to reflect demographics in the Lynx Report. Docket
No. 209 at 4. In so doing, Dr. Ford limited his sampling distribution to 50% males and
females with an age breakdown of 50% between 18 and 34 years of age and 50%
between 35 and 64 years of age. Id. at 13. Dr. Ford explains that, although these
numbers only approximated the distribution in the Lynx Report, he maintained the
sampling distribution to preserve a sufficient number of respondents in each age and
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gender group in order to re-weight the data if necessary. Docket No. 226-2 at 4.
Because distribution of neti pot users is usually divided near 50% between gender and
age, it was not unreasonable for Dr. Ford to set his survey boundaries at 50%.
Accordingly, the slight variations in percentages between Dr. Ford’s survey and the
Lynx Report are primarily technical deficiencies and are not enough to render the
survey’s conclusions untrustworthy. See Brunswick Corp., 832 F.2d at 532 (noting that
technical and methodological deficiencies in a survey typically bear on the weight of the
evidence).
C. Dr. Ford’s Survey
Med-Systems argues that Dr. Ford’s survey did not target the relevant universe
because he surveyed only “consumer segments” and not “segments of nasal wash
users” or “segments of users of sinus ailment products.” Docket No. 224 at 4.
However, Dr. Ford’s survey targeted respondents who have “used a neti pot in the past
six months” and also surveyed those who were “likely to purchase a replacement neti
pot if needed.” Docket No. 167-1 at 5 (emphasis added). Thus, contrary to MedSystems’ argument, Dr. Ford’s survey questioned respondents who are users and likely
purchasers. As noted in the previous Order, the “appropriate universe should include a
fair sampling of those purchasers most likely to partake of the alleged infringer[’]s
goods or services.” Exxon Corp. v. Texas Motor Exch. of Houston, Inc., 628 F.2d 500,
507 (5th Cir. 1980). Nothing in the record supports Med-Systems’ assertion that there
is a difference between “users” and “consumers.” Moreover, nothing in the record
13
shows that users are less likely to purchase a junior user’s goods. Therefore MedSystems’ distinction between users and purchasers is tenuous at best.
Med-Systems also reiterates arguments already addressed by the Court in the
previous Order. Specifically, Med-Systems argues that Dr. Ford’s failure to include
purchasers and consumers of other SinuSense™ products (i.e. squeeze bottles, saline
packets and water pulsators) undermines the survey results. Docket No. 224 at 5.
Med-Systems further asserts that Dr. Ford erred when he relied on the Lynx Report
because the report questioned individuals who experienced symptoms of seasonal
allergies or sinusitis and was not limited to users of nasal wash remedies. Id. at 6.
Med-Systems claims that this over-inclusion of respondents in the sample means that,
of those surveyed, many will never use a neti pot or any other nasal wash product. Id.
In this regard, Med-Systems’ arguments miss the mark.
As noted in the Court’s previous Order, disputes regarding the
under-inclusiveness of a survey only relate to the sufficiency of the sample. See Big
Dog Motorcycles, LLC v. Big Dog Holdings, Inc., 402 F. Supp. 2d 1312, 1334 (D. Kan.
2005). Additionally, solely because the Lynx Report was designed to test the market of
all individuals with seasonal allergies and sinusitis does not make the findings of the
Lynx Report irrelevant. Dr. Ford’s representative sample only had to represent the
population of neti pot users and their typical demographics. The fact that his chosen
sample is consistent with the typical distribution of neti pot users in the A&U Survey and
the omnibus survey is evidence that his chosen limitations were not unreasonable.
Therefore, although it was perhaps imprudent for Dr. Ford to rely on the Lynx Report
without verifying the report’s methodology, because further analysis of the data does
14
not undermine Dr. Ford’s conclusions, the Court finds that Dr. Ford’s findings are
relevant and probative on the issue of a likelihood of confusion.
IV. CONCLUSION
Accordingly, it is
ORDERED that Med-Systems’ Motion in Limine to Exclude Water Pik’s
Consumer Confusion Expert Gary T. Ford [Docket No. 167] is DENIED.
DATED January 24, 2012.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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