Git-R-Done Productions, Inc. v. Giterdone C Store, LLC

Filing 140

ORDER denying 124 Motion in Limine Signed by Chief District Judge Louis Guirola, Jr on 12/20/2016 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
GIT-R-DONE PRODUCTIONS, INC.
v.

PLAINTIFF
CAUSE NO. 1:15CV386-LG-RHW

GITERDONE C STORE, LLC and
443-B YACHT CLUB DRIVE LLC

DEFENDANTS

ORDER DENYING MOTION IN LIMINE
BEFORE THE COURT is the [124] Motion in Limine to Exclude Plaintiff’s
Expert Testimony and Materials filed by Defendant Giterdone C Store, LLC.
Having reviewed the submissions of the parties and the applicable law, the Court is
of the opinion that the Motion should be denied. The expert testimony and
materials at issue meet the standards of admissibility under Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).
BACKGROUND
This is an action for federal trademark infringement and related claims.
Plaintiff Git-R-Done Productions, Inc., originally sued Defendant Giterdone C Store,
LLC, the owner of the Giterdone gas station and convenience store located in
Diamondhead, Mississippi. The Court later allowed an amendment to add
Defendant 443-B Yacht Club Drive LLC, although that Defendant is not a party to
the current Motion.1 Plaintiff contends that “Defendant has purposefully

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For ease of reference, the Court will simply refer to “Plaintiff” and
“Defendant” throughout this Order.

misappropriated” the well-known Git-R-Done “tagline and trademark of the famous
comedian and actor, Daniel Lawrence Whitney, known by his stage name, Larry the
Cable Guy.” (Compl. 1 (¶1), ECF No. 1).
Plaintiff retained expert Sarah Butler to provide a report and survey “to
evaluate the extent to which the general population has any association with the
phrase GIT-R-DONE.” (Butler Rep. 4, ECF No. 124-1). Defendant does not
challenge Ms. Butler’s qualifications, but states that her “survey and report suffer
from serious and fatal design flaws, poor execution, and conclusions . . . .” (Mot. 1-2,
ECF No. 124).
DISCUSSION
Pursuant to Federal Rule of Evidence 702, an expert witness
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.
Under the standard for admission of expert witness testimony set forth by
the United States Supreme Court in Daubert, 509 U.S. 579, “the trial judge must
ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Id. at 589. “‘District courts enjoy wide latitude in
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determining the admissibility of expert testimony . . . .’” Smith v. Goodyear Tire &
Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007) (citation omitted). However, “the trial
court’s role as gatekeeper is not intended to serve as a replacement for the
adversary system: ‘Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.’” United States v. 14.38 Acres of
Land, More or Less Situated in Leflore Cty., Miss., 80 F.3d 1074, 1078 (5th Cir.
1996) (quoting Daubert, 509 U.S. at 596). “Experts should be excluded only if their
testimony is so fundamentally unsupported that it cannot possibly help the
factfinder.” Octave v. Beau Rivage Resorts, Inc., No. 1:09cv753-LG-RHW, 2011 WL
1099866, at *1 (S.D. Miss. Mar. 22, 2011) (citing Viterbo v. Dow Chem. Co., 826 F.2d
420, 422 (5th Cir. 1987)).
In the context of surveys in particular, “the general rule is that
methodological flaws in a survey bear on the weight the survey should receive, not
the survey’s admissibility.’” See Honestech, Inc. v. Sonic Sols., 430 F. App’x 359, 361
(5th Cir. 2011) (citation omitted). “Stated differently, methodological errors
generally speak to weight not admissibility.” Id. (citation, quotation marks, and
ellipses omitted). “In any event, a survey need not be perfect to be admitted into
evidence.” Id.
The Court has thoroughly reviewed Butler’s expert report and survey, as well
as Defendant’s arguments regarding the same. In doing so, the Court is of the

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opinion that all of Defendant’s arguments go to the weight, rather than the
admissibility, of Butler’s testimony, report, and survey. This is simply not a
situation where “serious flaws in a survey will make any reliance on that survey
unreasonable.” See Scott Fetzer Co. v. House of Vacuums, Inc., 381 F.3d 477, 488
(5th Cir. 2004); see also, e.g., Octave, 2011 WL 1099866, at *1. Rather, the Court
finds that the evidence at issue should be allowed, and that Defendant can “attempt
to discredit [Butler] and h[er] survey through aggressive cross-examination.” See
Honestech, 430 F. App’x at 362; see also, e.g., 14.38 Acres of Land, 80 F.3d at 1078.
IT IS THEREFORE ORDERED AND ADJUDGED that the [124] Motion
in Limine to Exclude Plaintiff’s Expert Testimony and Materials is DENIED.
SO ORDERED AND ADJUDGED this the 20th day of December, 2016.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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