Pods Enterprises, Inc. v. U-Haul International, Inc.
Filing
225
ORDER denying 144 Motion to Exclude Expert Testimony of Dr. Wendy Wood. Signed by Judge James D. Whittemore on 6/11/2014. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PODS ENTERPRISES, INC.,
Plaintiff,
Case No. 8:12-cv-01479-T-27MAP
vs.
U-HAUL INTERNATIONAL, INC.,
Defendant.
ORDER
BEFORE THE COURT is Plaintiffs Motion and Supporting Memorandum to Exclude the
Expert Testimony of Dr. Wendy Wood (Dkt. 144), which Defendant opposes (Dkt. 196). Upon
consideration, the motion (Dkt. 144) is DENIED.
Introduction
Plaintiff PODS Enterprises, Inc. ("PEI") is suing Defendant U-Haul International, Inc. ("UHaul") for allegedly violating its trademarks by using the words "pods" and "pod" on the U-Haul
website in order to attract Internet traffic. U-Haul contends that the words are generic. See Dkt. 151
(U-Haul motion for summary judgment on basis that the words "pod" and "pods" are generic); 15
U.S.C. § 1115; KP Permanent Make-Up, Inc. v. Lasting Impression/, Inc., 408 F.3d 596, 603 (9th
Cir. 2005) (trademarks subject to certain defenses, including genericness). In support of its
genericness defense, U-Haul retained Dr. Wendy Wood to design and conduct a survey addressing
the significance of the words "pod" and "pods" to the relevant public.
Dr. Wood is the Vice Dean of Social Sciences at the University of Southern California, where
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she holds a University Chair in Psychology and Business. 1 Dkt. 150 ~ 1. To test the primary
significance of the words "pods" and "pod," Dr. Wood designed a "Teflon" survey. 2 According to
Dr. Wood, the survey was constructed ''to determine whether US consumers who are likely to use
moving and storage services understand the principal or primary significance ofthe terms 'pods' and
'pod' in the context of moving and storage to be a brand or proprietary name or, alternatively, to be
a common or generic name." Id~ 2.
Dr. Wood sampled 694 respondents from the following categories: (1) those who moved one
year ago or less, (2) those who moved around two years ago, (3) those who moved around three years
ago, (4) those who moved around four years ago, and (5) those who moved five years ago or more,
but plan to move in the next twelve months. Id~~ 3, 16. The respondents were randomly assigned
to address the term "pod" or "pods." Id
~ 3.
Respondents who categorized the term as a brand name
were then asked whether they associated it with any particular company or companies. Id.
so, the respondent was asked to identify the associated company. Id.
~
~
28. If
29. Each of the five
respondent categories were given equal weight in the survey results to mitigate varying response
rates in each category. Id~~ 3, 17.
PEI argues that Dr. Wood's opinions derived from the survey should be excluded because
the structure of the survey is fatally flawed. While PEI identifies a number of perceived flaws in Dr.
Wood's methodology, it argues that the "critical methodological flaw" is that Dr. Wood chose the
wrong universe of people to survey. Dkt. 144 at 1. In both her report and her deposition, Dr. Wood
There is no question, and Plaintiffdoes not contest, that Dr. Wood is qualified to offer the challenged opinions.
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A Teflon survey first establishes whether the respondent grasps the distinction between common names (airline
or automobile) and brand names (American Airlines or Chevrolet), and then asks the respondent to categorize a number
of terms as common or brand, including the terms at issue (in this case, "pods" or "pod"). E.T. Browne Drug Co. v.
Cococare Prods., Inc., 538 F.3d 185, 195 (3d Cir. 2008). Teflon surveys are the "most widely used" to "resolve a
genericness challenge." J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 12:16 (4th ed.
updated June 2014).
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identifies the relevant population of consumers as those "likely to use moving and storage services."
Dkt. 150 ~ 2 (emphasis added); see Dkt. 166 at 75:18-25. Yet respondents were drawn only from
those individuals who had moved in the last five years or plan to move within the next twelve
months. Dkt. 150 ~ 3. PEI contends that this universe is underinclusive because it omits consumers
who are likely to use storage services. PEI also argues the survey is fatally overinclusive. According
to PEI's expert, Dr. Eugene P. Ericksen, Dr. Wood improperly included respondents who moved or
plan to move without utilizing a moving or storage company. Dkt. 146 ~~ 16, 20-22. Finally, PEI
argues that Dr. Wood's survey is unreliable because she did not screen the universe ofrespondents
to identify respondents who had been exposed to U-Haul's website or marketing materials.
Standard
Trial <;ourts are required to act as gatekeepers to ensure that expert opinions are reliable and
relevant. Kumho Tire Co., Ltd v. Carmichael, 526 U.S. 137, 152 (1999); Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 589 (1993). This responsibility entails a three-part inquiry in which the
district court considers whether (1) the expert is qualified to testify competently regarding the
matters she intends to address; (2) the methodology by which the expert reaches her conclusions is
sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of
specialized expertise, to understand the evidence or to determine a fact in issue. Quiet Tech. DC-8,
Inc. v. Huret-Dubois UK Ltd., 326 F.3d 1333, 1340-41 (1 lth Cir. 2003). 3
The objective of Daubert's gatekeeping requirement is to "ensure the reliability and
relevancy of expert testimony." Kumho Tire, 526 U.S. at 152. Generally speaking, experts are
3A
witness qualified as an expert by knowledge, skill, training, or education may testify in the form of an opinion
if(a) the expert's "specialized knowledge will help the trier offact 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 ofreliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702.
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required to employ "the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field." Id When evaluating the reliability of an expert opinion, the trial court must
assess "whether the reasoning or methodology underlying the testimony is scientifically valid and
... whether that reasoning or methodology properly can be applied to the facts in issue." U.S. v.
Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (quoting Daubert, 509 U.S. at 592-93).
Expert testimony must also assist the trier of fact. "By this requirement, expert testimony is
admissible if it concerns matters that are beyond the understanding of the average lay person." Id
Expert testimony generally will not assist the trier of fact when "it offers nothing more than what
lawyers for the parties can argue in closing arguments." Id at 1262-63.
While Daubert decisions "inherently require the trial court to conduct an exacting analysis
of the proffered expert's methodology," it is not the role of the court ''to make ultimate conclusions
as to the persuasiveness of the proffered evidence." Quiet Tech., 326 F.3d at 1341; McCorvey v.
Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). A "district court's gatekeeper role
under Daubert 'is not intended to supplant the adversary system or the role of the jury."' Maiz v.
Virani, 253 F.3d 641, 666 (11th Cir. 2001) (quotingAllison v. McGhan, 184F.3d1300, 1311 (11th
Cir. 1999)).
The burden of laying the proper foundation for the admission of expert testimony is on the
party offering the expert, and admissibility must be shown by a preponderance of the evidence.
Allison, 184 F.3d at 1306 (citing Daubert, 509 U.S. at 592 n.10). Trial courts have "considerable
leeway in deciding in a particular case how to go about determining whether particular expert
testimony is reliable." Kumho Tire, 526 U.S. at 152.
Discussion
The general reliability of Teflon surveys cannot be questioned, given their wide acceptance.
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See In re DaimlerChrysler AG, Serial No. 74/734,869, 2001 WL 862242, at* 6 (T.T.A.B. July 26,
2001) ("The so-called 'Teflon survey' is widely accepted in determining whether a term is generic.");
Anheuser-Busch Inc. v. Stroh Brewery Co., 750 F.2d 631, 639 (8th Cir. 1984) (characterizing a
Teflon survey as "properly conducted"); Invisible Fence, Inc. v. Fido's Fence, Inc., No. 3 :09-CV-25,
2013 WL 6191634 (E.D. Tenn. Nov. 26, 2013) (accepting a survey that "generally" complies with
Teflon). Rather, PEI perceives multiple technical deficiencies in Dr. Wood's survey, including an
improper universe of respondents and improper questioning.
Such technical deficiencies go to the weight of Dr. Wood's opinions, not their admissibility.
See Jellibeans, Inc. v. Skating Clubs o/Ga., Inc., 716 F.2d 833, 844-45 (11th Cir. 1983) (technical
deficiencies, including "(l) poor sampling; (2) inexperienced interviewers; (3) poorly designed
questions; and (4) other errors in execution" go to the survey's weight, not admissibility); Amstar
Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 264 (5th Cir. 1980) (discounting probative value, but
not excluding; consumer confusion survey that did not e;xamine the proper universe); Exxon Corp.
v. Tex. Motor Exch. ofHouston, Inc., 628 F.2d 500, 507 (5th Cir. 1980) ("While this universe is not
perfect, it is close enough so that, when combined with the format of the questions, it is clear that
the survey is entitled to great weight."); Premier Nutrition, Inc. v. Organic Food Bar, Inc., No
SACV 06-0827 AG (RNBx), 2008 WL 1913163, at *9 (C.D. Cal. Mar. 27, 2008) (finding argument
that an improper universe was used in a Teflon survey to be "well-taken," but nevertheless
concluding that the argument goes ''to the weight of the survey evidence, not to the admissibility");
Nightlight Sys., Inc. v. Nitelites Franchise Sys., Inc., No. 1:04-cv-2112-CAP, 2007 WL 4563873,
at *5 (N.D. Ga. July 17, 2007) ("Even assuming that a survey has technical deficiencies, the survey
does not necessarily have to be excluded. Alleged technical deficiencies in a survey go to the weight
of the survey, not necessarily its admissibility.") (citing Jellibeans, 716 F.2d at 845).
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Moreover, Dr. Wood adequately explained her reasons for using this particular universe of
respondents, and she testified that the number of people who use portable storage outside of moving
is very small, making her universe similar to the universe urged by PEI. Dkt. 166 at 48 :23-25. While
Dr. Wood's choice of universe may not be ideal given the dual purposes of portable storage, it is
"close enough" that her results and opinions may be considered reliable. Exxon, 628 F .2d at 507. PEI
also argues that Dr. Wood improperly weighted the data, included improper questions, and failed to
employ proper quality controls. These criticisms likewise go to the weight of her opinions, not their
admissibility. Vigorous cross-examination will allow PEI to address the deficiencies of Dr. Wood's
report, a process that should not be supplanted by Daubert's gatekeeper role. Maiz, 253 F.3d at 666.
Accordingly, Plaintiffs Motion and Supporting Memorandum to Exclude the Expert
Testimony of Dr. Wendy Wood (Dkt. 144) is DENIED.
111!:
DONE AND ORDERED this~ day of June, 2014.
States District Judge
Copies to: Counsel of Record
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