Sleepy's LLC v. Select Comfort Wholesale Corporation et al

Filing 710

MEMORANDUM & ORDER: Granting in part and denying in part the 517 Motion in Limine to Exclude Testimony and Evidence Regarding Defendants' Print Advertising. The motion is GRANTED to preclude the opinion testimony of Deborah Zaffron as to the public's understanding of 'Box Springs,' and the motion is otherwise DENIED. Ordered by Stephen G. Crane, Special Master on 3/5/2012. (Attachments: #(1) Certificate of Service) (Mahon, Cinthia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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SLEEPY'S, LLC,

Plaintiff,
MEMORANDUM & ORDER
07 CV 4018 (TCP) (ARL)

-againstSELECT COMFORT WHOLESALE CORPORATION,
SELECT COMFORT RETAIL CORPORATION and
SELECT COMFORT CORPORATION,
Defendants.

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Stephen G. Crane, Special Master
The

undersigned,

having

been

appointed

Special

Master

pursuant to Fed. R. Civ. P. 53(a) (1) (C) by order dated and filed
January

10,

2012,

of

the

Hon.

Thomas

C.

Platt,

United

States

District Judge, and having heard oral argument on January 24 and
30, 2012, hereby renders the following decision on the Defendants'
Motion to Exclude Testimony and Evidence Regarding

Defendants'

Print Advertising.
For the following reasons the defendants' motion is GRANTED IN
PART AND OTHERWISE DENIED.

Taking the position that their advertising failed to confuse
even a

single

plaintiff's

customer,

use

of

the

their

defendants

print

seek preclusion of the

advertising

plaintiff never complained until this litigation.

about

the

The advertising

does not relate to the line of defendants' beds that
was selling.

which

th~

plaintiff

It defies logic, argue the defendants, for them to

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advertise against their own product,

a phenomenon the plaintiff

wants the court to discern by equating box springs with the wood
platforms

that

Sleepy's.

supported the

Personal

Preference

line

Because the plaintiff lacks any evidence

sold at

of actual

consumer confusion, the defendants invoke Fed. R. Evict. 403 that
permits exclusion of evidence if its probative value is outweighed
by unfair prejudice or would cause undue delay.
To make up for the lack of actual confusion, the plaintiff is
putting

forth

the

lay opinion of its

former

employee,

Deborah

Zaffron, to equate the term box spring with the platform under the
Personal Preference mattress.

Her opinion was that what goes under

a mattress is called a box spring.

Defendants seek to exclude this

lay witness opinion testimony because Ms. Zaffron is not an expert,
her opinion is not the product of her investigation, or her actual
perception

of

the

public's

understanding,

but

reflects

her

specialized knowledge derived from her experience in this field
citing Bank of China, N.Y. Branch v NBM LLC, 359 F.3d 171, 182 (2d
Cir. 2004).
The plaintiff in opposition not only relies on the Select
Comfort print ads'

reference to box springs,

but also to their

negative reference to wood versus polymer mattress foundations:
" ... Select Comfort's print advertisements, which contain abundant
negative references to wood 'box springs,' are relevant to Sleepy's
claims because they reinforce and increase the likelihood that a
consumer who heard Select Comfort's sales pitch and had seen Select
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Comfort's advertisements would infer and understand that Select
Comfort's ads were talking about the wooden mattress foundation
carried in Sleepy's stores."

(Memorandum in Opposition,

p. 1) .

Moreover, " ... Select Comfort asks rhetorically 'why would Defendant
spend

millions

of

dollars

to

advertise

against

its

product?' .... As the evidence ... shows, the answer is clear.

own

Select

Comfort did not want to promote the Select Comfort beds it gave
Sleepy's to sell.

It wanted to use Sleepy's to give its beds

greater exposure to consumers, but drive the actual sales to its
own competing retail stores.
extolling

the

plastic

Accordingly, its advertising message

foundation

its

own

stores

[sic]

and

denigrating 'old fashioned wood box springs' was designed, at least
in part, to convince consumers to buy their Select Comfort bed at
the Select Comfort store (and get the superior plastic) rather than
at Sleepy's
breaks) . "
denying

(and get stuck with the wood that warps,
( Id. at p. 2) .

the

defendants'

cracks and

The plaintiff stresses that the court, in
motion

for

summary

judgment,

already

decided that "A fact-finder must decide wether the buying public
would conclude, for example, that Defendants alluded to Plaintiff's
goods when Defendants' mailers noted the supposed deficiency of
wood box springs as opposed to plastic ones."
2011, p. 13).

(Order dated May 2,

The plaintiff proclaims that this is the law of the

case.
The plaintiff also urges the admissibility of Ms.

Zaffron's

opinion that the public understands that "box spring" refers to
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what

goes

under

a

mattress.

This

is

based

on

perceptions and not on any personalized knowledge.

her

own

lay

The plaintiff

distinguishes Bank of China on the ground that the bank employee
there based his opinion on specialized knowledge and disclaims that
Ms.

Zaffron is an expert.

It takes

issue with the defendants

assertion that she has no knowledge as to how consumers understand
~box

spring".

Rather, her testimony, derived from no technical or

scientific knowledge,

is based on her personal knowledge of the

public understanding of what is a box spring.

Finally, it contends

that no consumer survey is required.
The

defendants'

reply

criticizes

the

notion

of

consumer

confusion over what their ads meant is nonsensical and requires the
court to assume that the reasonable consumer lacks common sense.
As to Ms.

Zaffron' s opinion,

claims that because Ms.
mattress

the defendants observe:

Zaffron was

consuming public'

prior

~Plaintiff

'personally a member of the

to working

for

Plaintiff

and

because of the 'thousands of people that come into [Plaintiff's]
store',

she

has

first-hand

knowledge

of

opinion .... There is no evidence that Ms.

the

general

public's

Zaffron spoke to other

members of the 'mattress consuming public' about their opinion or
attempted in any way to determine the 'mattress consuming public's'
opinion of what goes under a mattress."

(Reply Memorandum, p.S).

Thus, they argue there is no way for the court to conclude that her
opinion is rationally based on her own perceptions as required by
Fed. R. Evid. 701.
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At oral argument, the plaintiff said that the defendants' own
executives equate 'box spring' with foundation.
this,

they need not

resort

testimony of Ms. Zaffron.

to

the

If they can prove

questionable

and vulnerable

Indeed, her potential testimony, bereft

of any personal investigation, strongly appears to be grounded in
her expertise as a sales person of bedding at Sleepy's.

It seems

that admission of this testimony would be error (see Bank of China,
suora at 181-182).

It would not be helpful to the trier of facts

and represents the 'choosing up [of] sides'

(Cameron v City of New

York, 598 F.3d 50, 62 [2d Cir. 2010]; Fed. R. Evict. 702), and its
admission would be outweighed by prejudice and time waste (Fed. R.
Evict. 403).
The print material, however,

is admissible.

Whether it was

broadly promulgated to the consuming public or some of it used for
internal training purposes goes to weight, not admissibility and
falls

squarely within Judge Platt's example of what evidence a

fact-finder must base his decision upon.

(Order dated May 2, 2011,

p. 13).

Accordingly,

the motion is GRANTED TO PRECLUDE THE OPINION

TESTIMONY OF DEBORAH ZAFFRON AS TO THE PUBLIC'S UNDERSTANDING OF
'BOX SPRINGS,' AND THE MOTION IS OTHERWISE DENIED.
SO ORDERED
Dated: March 5, 2012
Central Islip, New York

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