Earthgrains Baking Companies v. Sycamore et al

Filing 248

REDACTED VERSION OF 244 MEMORANDUM DECISION AND ORDER denying 104 Motion to Exclude; denying 105 Motion to Exclude; denying 106 Motion to Exclude; (SEALED) granting in part and denying in part 127 Sealed Motion to Exclude; (SEALED) granting in part and denying in part 129 Sealed Motion to Exclude. Signed by Judge David Nuffer on 3/2/17 (alt)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
BIMBO BAKERIES USA, INC.,
Plaintiff,

SEALED MEMORANDUM DECISION
AND ORDER ON MOTIONS TO
EXCLUDE EXPERT WITNESSES

v.
Case No. 2:13-cv-00749
LELAND SYCAMORE, TYLER
SYCAMORE, WILD GRAINS BAKERY,
LLC, and UNITED STATES BAKERY, INC.,

District Judge David Nuffer

Defendants.

The parties have many motions to exclude expert testimony. Defendant United States
Bakery (U.S. Bakery) moves to exclude testimony of Plaintiff Bimbo Bakeries, Inc. (Bimbo)
expert, Dr. Glenn L. Christensen', Richard S. Hoffman2 and Russell Carl Hoseney, Ph.D.3
Bimbo moves to exclude testimony of Himanshu Mishra, Ph.D.,4 and Larry Soter.5
This order will address the motions in the sequence they were filed.

Motion to Exclude Expert Glenn L. Christensen, docket no. 104, filed May 16, 2016.
2

Motion to Exclude Expert Richard S. Hoffman, docket no. 127, filed under seal May 17, 2016.

3 Motion

to Exclude Expert Russell C. Hoseney, docket no. 129, filed under seal May 17, 2016.

4

Motion to Exclude Expert Himanshu Mishra, docket no. 105, filed May 16, 2016.

5

Motion to Exclude Expert Larry Soter, docket no. 106, filed May 16, 2016.

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Contents
BACKGROUND FACTS
2
DISCUSSION
3
LEGAL STANDARD FOR ADMISSIBILITY OF EXPERT TESTIMONY
3
4
Expert Dr. Glenn L. Christensen
5
(A) Dr. Christensen is Qualified to Testify to Quantitative Surveys •
(B) Dr. Christensen's Testimony is Reliable
6
7
(1) The Internet is a Proper Method for Conducting Surveys.
(2) The Surveys are a Representative Enough Sample for the Jury to Weigh the
8
Credibility.
(3) Dr. Christensen's Survey Questions Do Not Make the Results Unreliable.
9
Conclusion
12
12
Expert Himanshu Mishra
14
Conclusion
14
Expert Larry Soter
Conclusion
16
16
Expert Richard S. Hoffman
(A) Mr. Hoffman's Unjust Enrichment Testimony Is Not Unreliable.
17
18
(1) Mr. Hoffman's Product Return Rate Was Not Unreliable.
(2) Mr. Hoffinan's Variable Costs Are Not Unreliable.
19
(B) Hoffman's Lost Profit Analysis Is Not Unreliable
20
21
(C) Mr. Hoffman's Testimony Has Adequate Causation
(D) Dr. Hoffman's Testimony as to Geography is Excluded in Part
22
(E) Corrective Advertising Expenses Are Relevant to the Issue of Damages.
23
(F) Dr. Christensen's Testimony is Admissible.
23
Conclusion
24
Expert Russell Carl Hoseney
24
(A) Dr. Hoseney is Qualified.
24
25
(B) Dr. Hoseney's Testimony is Reliable
25
(1) Dr. Hoseney's Testimony Is Not Inconsistent.
(2) Dr. Hoseney's Testimony Is Not Solely Based On Secondhand Knowledge 25
(3) Dr. Hoseney Is Not Testifying to Common Knowledge and His Testimony Is
Not Unreliable
26
(4) Dr. Hoseney Is Testifying To A Matter On Which He Is Not An Expert
27
Conclusion
27
27
ORDER

BACKGROUND FACTS
This matter centers on Bimbo's allegations that U.S. Bakery, Sycamore, and Wild Grains
misappropriated its trade secret for making Grandma Sycamore's Home-Maid bread, and

2

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infringed on its trade dress related to the packaging of its bread. The motions concern the
qualifications and reliability of the testimony given by Bimbo's and U.S. Bakery's experts.
DISCUSSION
LEGAL STANDARD FOR ADMISSIBILITY OF EXPERT TESTIMONY
Fed. R. Evid. 702 addresses the standard for the admissibility of expert testimony.
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.'
"Under the Rules the trial judge must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable."7 The inquiry of scientific reliability is a
flexible and focuses on principles and methodology.8 The Supreme Court has offered several
non-exhaustive factors that a court may rely on for determining reliability such as, whether the
testimony can be tested, has been peer reviewed, has a known or potential rate of error, and has
attracted acceptance in the relevant scientific community.9
District courts are tasked with the responsibility of serving as the gatekeepers of expert
evidence, and must therefore decide which experts may testify and present evidence before the
jury.' Courts are given "broad latitude" in deciding "how to deteimine reliability" and in
making the "ultimate reliability determination."11 The Federal Rules of Evidence, however,

6

Fed. R. Evid. 702

7

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
See Id. at 595

9

See Id.

10

See Daubert, 509 U.S. at 579.

11

Kuhmo, 526 U.S. at 142, (citing General Electric Co. v. Joiner, 522 U.S. 135 (1997)).

3

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generally favor the admissibility of expert testimony.' Excluding expert testimony is the
exception rather than the rule13, and often times the appropriate means of attacking shaky but
admissible evidence is through vigorous cross-examination, and the presentation of contrary
evidence.14 "[T]he Federal Rules of Evidence favor the admissibility of expert testimony, and
[courts'] role as gatekeeper is not intended to serve as a replacement for the adversary system."15
The inquiry into whether an expert's testimony is reliable is not whether the expert has a
general expertise in the relevant field, but whether the expert has sufficient specialized
knowledge to assist jurors in deciding the particular issues before the court.16
Expert testimony is subject to Federal Rule of Evidence 403. "The court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence."17
EXPERT DR. GLENN L. CHRISTENSEN18
U.S. Bakery seeks to exclude the expert testimony of Dr. Glenn L. Christensen because
he is not qualified to testify to quantitative surveys, and because his surveys are not reliable
under Federal Rule of Evidence 702. Bimbo retained Dr. Christensen to give an expert report and
testimony based on quantitative surveys analyzing consumers' reactions as support for Bimbo's
claim of trade dress infringement and false advertising. Dr. Christensen has prepared three
surveys that are the subject of his testimony.
12

See Daubert, 509 U.S. at 588.

13

See Fed. R. Evid. 702 Advisory Notes

14

See Daubert, 509 U.S. at 596.

15

THOIP v. Walt Disney Co., 690 F. Stipp. 2d 218, 230 (S.D.N.Y. 2010).

16

Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 156 (1999).

17

Fed. R. Evid. 403

18

Motion to Exclude Expert Glenn L. Christensen, docket no 104, filed May 16, 2016.

4

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In determining whether expert testimony is admissible the first step is to determine
whether the expert is qualified, and then if the expert is qualified determine whether the expert's
opinion is reliable by assessing the underlying reasoning and methodology.'
This order will first address the reasons Dr. Christensen is qualified to testify to
quantitative surveys, and then will address the reasons why the surveys Dr. Christensen
conducted are reliable enough for the jury to weigh the evidence.
(A) Dr. Christensen is Qualified to Testify to Quantitative Surveys.

U.S. Bakery argues that Dr. Christensen is unfit to testify to quantitative research studies
because his training and experience is in qualitative research. U.S. Bakery's rebuttal expert, Dr.
Mishra, put Dr. Christensen in "the bottom 2 percentile" of quantitative surveyors based on the
methodological errors across the three surveys he reported.20
The evidence supports the determination that Dr. Christensen is qualified to testify
quantitative surveys. Dr. Christensen is an Associate Professor of Marketing at Brigham Young
University.21 He holds a Ph.D from Pennsylvania State University in the field of consumer
psychology and marketing, a MBA with emphasis in marking management and research from
Brigham Young University, and a Bachelor's degree in communications from Brigham Young
University.22 Dr. Christensen has authored four peer reviewed papers concerning trademarks and
the likelihood of consumer confusion.23

19

U.S. v. Nacchio, 555 F.3d 1234, 1241(10th Cir. 2009).

Potential errors in Dr. Christensen's surveys are an issue of reliability, not one of whether he is qualified. The
analysis will look at the surveys he conducted to determine whether they are reliable, but to determine whether he is
qualified will look to his knowledge, skill, experience, training, and education.

20

21 Declaration
22

of Glenn. L. Christensen ¶ 3, docket no. 104-1, filed May 16, 2016.

Id. at ¶¶ 4-13.

23

"Sophisticated by Confused: Brand Extension and Motivation as Factors Increasing the Likelihood of
Confusion," (2011), with Eric DeRosia and Thomas R. Lee, Psychology and Marketing, 28 (5), 457-478; "An
Empirical and Consumer Psychology Analysis of Trademark Distinctiveness," (2009), with Sterling A. Bone and

5

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Dr. Christensen has designed Lanham Act surveys and offered opinions concerning those
surveys on numerous occasions since 2005.24 Dr. Christensen possesses training and experience
in both qualitative and quantitative survey research, and his prior Lanham Act surveys have
involved the type of quantitative survey research he performed in this case. 25
Based on Dr. Christensen's education, experience, and qualifications he is sufficiently
credentialed to be considered an expert in the area of quantitative surveying. The next step is to
review whether Dr. Christensen used appropriate methodological standards in his surveys as
applied to this case.
(B) Dr. Christensen's Testimony is Reliable.
Dr. Christensen conducted his surveys over the Internet using pre-screened panels of
respondents provided by a third-party vendor. He used digital images of the parties' respective
products as the basis for his questions.
U.S. Bakery argues that Dr. Christensen's survey design departs significantly from the
marketplace conditions under which most consumers make purchasing decisions about bread.
U.S. Bakery's expert, Himanshu Mishra, specifically attacks the surveys' credibility on three
bases: (1) The internet is not a proper method for conducting a survey about consumers' decision
making process when buying bread because consumers rarely buy bread online; (2) The surveys
are not a representative sample of the population; and (3) The questions asked improperly
deviate from the patterns approved by the leading cases and are designed to prompt bias
responses. Each of the objections to the reliability of the surveys is discussed below.

Jerome D. Williams, Journal of Marcomarketing, 30 (4), 419; "Trademarks, Consumer Psychology , and the
`Sophisticated' Consumer," (2008), with Thomas R. Lee and Eric D. DeRosia, Emory Law Review, 57 (3), 575- 650;
"Sophistication, Bridging the Gap, and the Likelihood of Confusion: An Empirical and Theoretical Analysis,"
(2008), with Thomas R. lee and Eric D. DeRosia, The Trademark Reporter, 98 (4), 913-949.
24 See Expert Report of Glenn L. Christensen, docket no. 136-14, filed May 23, 2016.
25 See Declaration of Glenn Christensen at ¶12, docket no. 104-1, filed May 16, 2016.

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(1) The Internet is a Proper Method for Conducting Surveys.
U.S. Bakery argues that the consumer surveys do not effectively recreate the consumer
experience because the bread buying surveys were conducted online. Because consumers rarely
buy bread online, U.S. Bakery contends that asking consumers to simulate a buying decision
based on online images does not effectively re-create the buying experience. U.S. Bakeries
further argues that the Internet may not be a reliable surveying form because it screens out
responses from those who buy bread, but who do not use the internet.
U.S. Bakery is unable to cite authority holding or to explain why Internet surveys are.
unreliable. It is likely true consumers typically do not buy bread online and conducting an online
survey may not be the best way to most accurately simulate the bread buying experience. U.S.
Bakery, however, has come forth with no evidence other than speculation that the results may be
different if the surveys were conducted in person. There is also no evidence in the record
showing a substantial disparity in the number of people who have internet access and complete
surveys online, and those who buy bread but do not use the internet.
Conducting surveys online for the purposes of a trade dress claim in this case does not
render the surveying method unreliable. As here, where the overall look of the product is at
issue, online surveys can be relevant to issues involving the look of the product.26 Arguments as
to the validity of the survey and whether conducting the survey online is the most effective
means can be argued to the jury. (And if U.S. Bakeries had evidence supporting the argument, it
would have been admissible.) To prove that a survey technique is unreliable the party must do
more than speculate that there may have been a better way of completing the survey. The surveys
will therefore not be excluded because it was not unreliable to conduct them online.
If the central issue at the heart of the case were the smell or touch of the product then it may be proper to exclude
an online survey. In a case where the look of the product is at issue, the party seeking to exclude must show what
makes the method of online surveying unreliable.

26

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(2) The Surveys are a Representative Enough Sample for the Jury to Weigh the
Credibility.
U.S. Bakery argues that the surveys conducted by Dr. Christensen are not reliable
because they are not representative of the universe they are intended to reflect. The surveys are
alleged to not be representative because: (1) The surveys only include the areas of Utah and
Southern Idaho when Bimbo's claims include areas extending beyond the surveyed areas; (2)
The survey panels selected may be skewed because panelists frequently complete surveys on a
regular basis; (3) Dr. Christensen screens out respondents using smartphones; and (4) There is a
question as to whether the parameters of Survey 3 included appropriate randomization. Each of
these concerns will be briefly discussed.
(a) Bimbo Does Not Seek to Use the Surveys for Information Outside of Utah and
Southern Idaho.
Bimbo states that its "trade dress claims are focused solely on Utah and southern Idaho so
these two geographic areas are the only appropriate areas for Christiansen's trade dress
surveys".' Because Bimbo claims to only use the surveys for Utah and southern Idaho, the
question as to whether Bimbo intends to extrapolate the surveys to draw conclusions about other
geographical areas not surveyed is not present. Because Dr. Christensen does not intend to testify
to places other than Utah and southern Idaho, the determination of whether the surveys can be
extrapolated to other jurisdictions is not necessary.
(b) There is No Evidence the Survey Panels Selected May Be Skewed.
U.S. Bakery claims that the use of online panels is highly prone to self-selection bias
because these panelists often complete surveys on a regular basis. U.S. Bakery says Dr.
Christensen should have therefore validated the responses from the panel provider.

Memorandum in Opposition to Motion to Exclude Expert Glenn L. Christensen p. 11, docket no. 162, filed June
3, 2016.

27

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This objection is without merit because U.S. Bakery has failed to explain how people
who participate in surveys on a regular basis may skew the results. U.S. Bakery's conclusory
statement is not supported by evidence. The evidence will therefore not be excluded for being
unreliable.
(c) Screening Out Smartphone Users Does Not Render the Surveys Unreliable.
U.S. Bakery argues that it was improper for Dr. Christensen to screen out people who
completed the survey on a smartphone. U.S. Bakery, however, fails to explain how screening out
smartphones might render the results of the survey unreliable.
Dr. Christensen explains he screened out smartphones because the smaller screen size on
some smartphones makes the visual stimuli smaller than desired. U.S. Bakery has failed to show
how screening out smartphones renders the results unreliable. It appears that screening out
smartphones likely made the results more reliable because it ensures that participants in the
survey are able to see the image on a larger screen. The surveys will therefore not be excluded
for smartphones being screened out.
(d) There is No Evidence of Improper Randomization.
U.S. Bakery makes a conclusory allegation that the parameters of Survey 3 may not have
included appropriate randomization. There is no explanation as to how U.S. Bakery reached this
conclusion. Because there is no evidence that the results were not properly randomized the
objection is denied.
(3) Dr. Christensen's Survey Questions Do Not Make the Results Unreliable.

U.S. Bakery makes several objections to the questions Dr. Christensen asked, and the
way he asked the questions. U.S. Bakery claims that the questions Dr. Christensen asked deviate

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from the Eveready Questions.28 U.S. Bakery claims the survey questioning was improper
because Dr. Christensen: (1) improperly made it easier to identify the actual maker of the bread;
(2) asks follow-up questions only to respondents who answer a certain way and then reinforces
the surveyor's answers in the follow-up question and then screened out respondents who
completed the surveys too quickly; (3) failed to ask the most consequential question - which is
whether the respondent would have bought the bread if it was not made locally. Each of these
issues will be discussed.
(a) Failure to Remove an Identifying Mark Did Not Render the Survey Unreliable.'
Dr. Christensen's first survey showed respondent's the trade dress of Grandma
Sycamore's bread with the words "Grandma Sycamore's removed."29 Dr. Christensen did not,
however, omit the unique spelling of the words "HomeMaid" from the image.3° U.S. Bakery
argues that phrase "Home-Maid Bread" is readily associated with Grandma Sycamore due to the
unique spelling of "Maid". They therefore argue that leaving "Home-Maid Bread" in the survey
stimulus improperly influenced responses. U.S. Bakery argues that by leaving an identifiable
marker on the stimulus, Dr. Christensen made it easier to identify the actual maker of the bread.
Leaving an identifying marker on the packaging may make it easier for the respondents to
identify the maker of the bread. U.S. Bakery, however, did not state how respondents being able
to identify the maker of the bread make the results unreliable. . Whether leaving an identifying
mark on the package skews the results may be proper for the jury to weigh.

28

See Union Carbide amp. v. Ever-Ready, Inc., 531 F.2d 366, 385-88 (7th Cir. 1976).

29

Expert Report of Glenn L. Christensen at ¶¶ 47-52, docket no. 157-2, filed June 3, 2016.

3°

Id.

10

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(b) Follow-Up Questions and Screening Out Results From Those Who Answered
Too Quickly Did Not Render the Results Unreliable.
U.S. Bakery argues that the first two surveys are unreliable because only respondents
who answered the questions in a particular way were asked follow-up questions. U.S. Bakery
believes the follow-up questions were deliberately leading because they require only certain
respondents to substantiate their answers. Dr. Christensen also would repeat the respondents
answer back to the respondent when asking them to substantiate their answer. U.S. Bakery
argues that repeating the answer back and requiring the respondent to justify the answer
increases the likelihood of confii nation bias. Furthermore, Dr. Christensen would screen out
respondents who completed the surveys too quickly.
In this circumstance the follow-up questions and screening out answers given too quickly
do not render the results unreliable. Although it may not have been the best survey technique to
ask follow-up questions, U.S. Bakery has not shown how the questions render the underlying
surveying method unreliable. The questions asked were open-ended questions that were not
leading. This issue should go to the weight the jury gives the surveys and not to their reliability.
It is also not convincing that screening out respondents who answered too quickly
rendered the results invalid. U.S. Bakery has come forth with no evidence showing that the
screening of results of those who answered too quickly had a disparate impact on those
respondents who answered a particular way. If U.S. Bakery was able to demonstrate that
screening the results of those who answered too quickly improperly changed the results to
benefit Bimbo's position then it may be valid to exclude the results. The results are not
unreliable because there is no evidence that the screening out cell phones skewed the results. It
is equally possible to speculate on reasons why excluding these responses is appropriate.

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(c) The Failure to Ask Whether the Respondent Would Have Bought the Bread if it
Was Not Made Locally Did Not Render the Previous Questions Unreliable.
U.S. Bakery, in promoting its products, used the tagline "Fresh. Local. Quality." Dr.
Christensen sought to show that this tagline suggested that these items were "local" products. In
developing survey 3, Dr. Christensen attempted to test whether these advertisements created "a
false or misleading impression and whether this impression was material to whether the
respondent purchased bread. U.S. Bakery argues that Dr. Christensen failed to ask the most
consequential question in his survey to respondents which was "Would you have bought the
bread if it wasn't made locally." U.S. Bakery therefore argues that the results are unreliable and
should be excluded.
The omission of asking whether the consumers would buy the bread again if it was not
made locally does not change the reliability of the preceding questions. There is no basis to find
that the method used in asking the questions that were asked were unreliable. Therefore the third
survey will not be excluded on the basis of not asking whether the consumers would have
purchased the bread again.
Conclusion
U.S. Bakery's motion to exclude the expert testimony of Dr. Christensen is denied in its
entirety. 31
EXPERT HIMANSHU MISHRA32

Rebuttal expert testimony is permitted after the parties' initial disclosures only where it
"is intended solely to contradict or rebut evidence on the same subject matter identified by

31 Motion
32

to Exclude Expert Glenn L. Christensen, docket no. 104, filed May 16, 2016.

Motion to Exclude Expert Himanshu Mishra, docket. no. 105, filed May 16, 2016.

12

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another party."' Rebuttal testimony must "explain, repel, counteract, or disprove evidence of the
adverse party."34
Bimbo seeks an order excluding the expert testimony of Himanshu Mishra, Ph.D.
because Dr. Mishra testified to unreliable opinions that are not based on scientific testing. Dr.
Mishra is a professor of marketing at the University of Utah and has been involved in over 250
consumer surveys for academic and industry purposes.35 He teaches courses on research methods
and consumer decision-making. Dr. Mishra wishes to testify in rebuttal to Dr. Christensen's
surveys.
The crux of Bimbo's argument is that Dr. Mishra did not conduct surveys of his own. Dr.
Mishra offers criticism to many aspects of Dr. Christensen's survey techniques, but is uncertain
whether changes in Dr. Christensen's questions would have changed the results because Dr.
Mishra did not conduct surveys without the claimed flaws. Bimbo argues that Dr. Mishra's
testimony is purely speculative because he did not include his own surveys that applied what he
claims to be the correct methodology. Rebuttal experts need not produce extrinsic evidence to be
able to testify to perceived surveying flaws.
Rule 702 expressly allows experts to testify in the form of an opinion based on their
knowledge if the testimony complies with the requirements set forth in the rule. 36 Bimbo does
not show that the conclusions drawn by Dr. Mishra were unreliable. Dr. Mishra's testimony is
more speculative and theoretical than Dr. Christensen's actual surveys because Dr. Mishra did
not produce surveys of his own. But the rule does not require the exclusion of expert testimony

33

Larson v. Wisc. Cent. Ltd., No. 10-C-446, 2012 WL 368379, at *4 (E.D. Wisc. 2012).

34

United States v. Lamoreaux, 422 F.3d 750, 755 (8th Cir. 2005).

Memorandum in Opposition to Motion to Exclude Expert Glenn L. Christensen p. 5, docket no. 162, filed June 3,
2016.

35

36

Federal Rules of Evidence 702

13

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that lacks one hundred percent certainty. The rule only requires the exclusion of expert testimony
if the expert's testimony is not the product of reliable principles and methods. Dr. Mishra
adequately explains why he believes some of Christensen's questions were improper. Dr. Mishra
may therefore testify to perceived flaws in Dr. Christensen's questions.37
Bimbo also argues that Dr. Mishra should not be allowed to testify that Dr. Christensen's
failure to secure Institutional Review Board approval prior to conducting his surveys violates the
law. Bimbo believes that IRB approval is not legally required. Neither party has adequately
,briefed

the law on this issue. If lack of approval does not violate the law then Dr. Mishra cannot

testify that it does. Within fourteen days, Bimbo may file a new motion addressing whether (1)
the lack of approval violates the law, and (2) whether Dr. Mishra wishes to testify that on that
point.
Conclusion
For the reasons discussed, Bimbo's motion to exclude the expert testimony of Dr. Mishra
is DENIED.38 Dr. Mishra is within his right as a rebuttal expert to testify to his knowledge of
proper surveying techniques and questions. Dr. Mishra however, may not testify to the wrong
legal standard if the standard is in fact wrong.

EXPERT LARRY SOTER39

Bimbo seeks an order to exclude expert opinions and testimony of Larry Soter. U.S.
Bakery seeks to offer Mr. Soter as an expert in the "baking industry" and have Mr. Soter testify

Bimbo argues that althoUgh Dr. Mishra has experience in conducting consumer surveys, he does not have
experience in conducting surveys in the litigation context. This argument is not persuasive. Dr. Mishra need not be
an expert in litigation surveys. Proper surveying techniques should apply whether it is in the litigation context or not.

37

38

Motion to Exclude Expert Himanshu Mishra, docket no. 105, filed May 16, 2016.

39

Motion to Exclude Expert Larry Soter, docket no. 106, filed May 16, 2016.

14

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that Bimbo's ingredients that are used to manufacture Grandma Sycamore's Home Maid Bread
do not constitute trade secrets.
Bimbo's alleged trade secret in this action consists of the use of
. Bimbo's alleged trade secret
includes:

°
Mr. Soter wants to offer his opinion on each individual element of the alleged trade
secret, as well as the elements collectively. Bimbo argues that it is improper for Mr. Soter to
testify that each individual element does not comprise a trade secret because the alleged trade
secret is the combination of all the steps and ingredients. Bimbo claims that Mr. Soter's
piecemeal analysis of Bimbo's trade secret does not follow the correct legal standard and
encourages the jury to similarly apply an improper legal analysis.
To be clear, "a trade secret can exist in a combination of characteristics and components,
each of which, by itself, is in the public domain, but the unified process, design and operation of
which, in unique combination, affords a competitive advantage and is a protectable secret."41
Even though a trade secret can be a combination of otherwise generally known processes, this
does not mean that analyzing the individual processes is irrelevant. "While the finder of fact is
required to consider the claimed trade secret as a whole, it may, in addition, consider whether the

4° Motion

to Exclude Larry Soter Ex. A IN 24-25, docket no. 106-1, filed May 16, 2016.

41 Rivendell

Forest Products, Ltd. v. Georgia-Pacific Corp., 28 F.3d 1042, 1045 (10th Cir. 1994).

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individual components are publicly known."' A finding that some of the individual components
are secret may aid the fact finder in determining whether the combination of the individual
processes is a trade secret.43 Likewise, it may be relevant to the fact finder to have some
knowledge about how common the individual components of the claimed trade secret are. The
fact finder will still be required to view the alleged trade secret collectively, but having
knowledge of how common the individual trade secrets are is relevant to the analysis.
Mr. Soter's testimony as to the individual steps that are required to make Grandma
Sycamore's bread is relevant to whether the steps in combination qualify as a protectable trade
secret. Mr. Soter cannot mislead the jury by claiming that the combination of individually
publicly known components is not protectable because such a statement would be informing the
jury of the wrong legal standard. But the testimony is admissible to the extent the testimony of
the individual components helps the fact fmder determine whether the compilation of
components is protected. Mr. Soter does not claim to have an intention of instructing the jury that
a combination of publicly known processes cannot qualify as a trade secret.
Conclusion
Bimbo's motion to exclude the expert testimony of Mr. Soter is therefore denied in its
entirety.44
EXPERT RICHARD S. HOFFMAN45
U.S. Bakery seeks an order to exclude the expert testimony of Richard S. Hoffman. Mr.
Hoffman has over twenty years of experience in public accounting and is accredited in business

42 Hertz v. Luzenac Group, 576 F.3d 1103, 1110 (10th Cir. 2009).
43

Id.
Motion to Exclude Expert Lany Soter, docket no. 106, filed May 16, 2016.
Motion to Exclude Expert Richard S. Hoffman, docket no. 127, filed under seal May 17, 2016.

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valuations through the American Institute of Certified Public Accountants.46 He has co-authored
a book on perfouning damages calculations and as an adjunct professor taught a course in
damage calculations at the University of Utah.47
Bimbo offers Mr. Hoffman to testify to the damages Bimbo suffered from the alleged
trade dress infringement, trade secret infringement and dilution, and false advertising causes of
action. U.S. Bakery seeks to exclude Mr. Hoffman's testimony because U.S. Bakery claims the
method he used to calculate damages is unreliable. Specifically, U.S. Bakery seeks to exclude the
expert testimony from Mr. Hoffman as to the following subjects: (1) alleged-unjust enrichment
U.S. Bakery derived from their sale of Grandma Emilie's" due to trade dress and trade secret
infringement; (2) increases to alleged lost profit estimates based on the assumption that Bimbo
would have sold existing inventories of Grandma Sycamore's products rather than incur
additional incremental costs; (3) alleged unjust enrichment of U.S. Bakery due to false
advertising; (4) alleged extra advertising expenses Bimbo incurred; and (5) reliance on Dr.
Christensen's inadmissible testimony. Each of these issues is discussed below.
(A) Mr. Hoffman's Unjust Enrichment Testimony Is Not Unreliable.
U.S. Bakery argues that Mr. Hoffman improperly concluded that Grandma Emilie's
generated a profit of $353,549 when in fact Grandma Emilie's lost money. U.S. Bakery claims
that Mr. Hoffman arrived at the conclusion that Grandma Emilie was profitable by (a) increasing
Grandma Emilie's net sales by unjustifiably excluding a significant portion of actual product
returns and promotional discounts that should have been calculated in determining U.S. Bakery's
net profits and (b) reducing Grandma Emilie's incremental costs by assuming a greater than

46

Hoffman Expert Report ¶ 3, docket no. 139-1, filed May 5, 2016.

47

Id. at Till 3-8.

48 U.S

. Bakery owns Grandma Emilie's Bread.

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7

actual fixed cost percentage. U.S. Bakery believes that these errors in methodology cause Mr.
Hoffman's expert testimony to be unreliable. A discussion of the reasons for denying the
exclusion of the expert testimony of Mr. Hoffman as to his unjust enrichment testimony is
below.
(1) Mr. Hoffman's Product Return Rate Was Not Unreliable.
U.S. Bakery claims that after its re-introduction in 2013 of Grandma Emilie's bread, the
product was slow to gain success in the marketplace. Grandma Emilie's therefore had few sales
and many returns of unsold product. Grandma Sycamore, which is owned by Bimbo, had an
average return rate of

. U.S. Bakery claims it was improper for Mr. Hoffman to apply a

average return rate in his analysis because there are numerous differences between
Grandma Emilie and Grandma Sycamore.
Bimbo claims that Mr. Hoffman did not include U.S. Bakery's high rate of returns and
accompanying net losses in his calculations because they are indicative of U.S. Bakery's
business strategy unrelated to actual cost. Specifically, Bimbo claims that U.S. Bakery's business
strategy was to purposefully flood the market with more infringing product than could be sold to
establish more shelf space and visibility for new products; to engender goodwill with customers
by selling at a loss; and to sell the infringing products as a loss-leader to encourage customers to
buy U.S. Bakery's more profitable products.
§ 1117 of the Lanham Act states "If the court shall find that the amount of the recovery
based on profits is either inadequate or excessive the court may in its discretion enter judgment
for such sum as the court shall find to be just, according to the circumstances of the case. Such
sum in either of the above circumstances shall constitute compensation and not a penalty."49

49

15 U.S.C. § 1117(a).

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7

Some courts have allowed the plaintiff to recover profits even though the defendant lost money
on the theory that the plaintiff should not be prejudiced by the defendant's inefficiency.'
Because Grandma Emilie did not receive a profit, it is proper in the interest of justice to
look at alternative views for compensation. If the fact finder finds that Grandma Emilie was
unjustly enriched even though they did not receive a profit, then it is relevant to look at Grandma
Sycamore's return rate of

as evidence of what would be a proper rate of return had

Grandma Emilie not been inefficient. Mr. Hoffman's testimony as to the rate of return is relevant
if the fact finder fmds that Grandma Emilie has been unjustly enriched.
(2) Mr. Hoffman's Variable Costs Are Not Unreliable.
U.S. Bakery claims that Mr. Hoffman deems 100% of the costs allocated to
administration, manufacturing overhead, and equipment for Grandma Emilie's to be fixed. The
CFO of U.S. Bakery, Michael Petit, testified without evidentiary support that approximately 50%
of manufacturing overhead costs is variable and 50% is fixed, and repairs are predominant within
the variable costs of equipment items. Due to this gross disparity, U.S. Bakery believes that Mr.
Hoffman's testimony regarding variable costs is unreliable.
Under the Lanham Act, plaintiffs in trademark infringement cases may recover "(1)
defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.
The court shall assess such profits and damages or cause the same to be assessed under its
direction."51 "To assist the court in arriving at the appropriate award for disgorgement of profits,
the plaintiff is "required to prove defendant's sales only, while the defendant has the burden of

5° Callman,
51 15

Unfair Competition, § 22.49 at 258 n. 95.

U.S.C. § 1117(a)

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proving all elements of cost or deduction claimed."52 "Although plaintiffs must generally
establish damages with specificity, some estimation is acceptable if necessitated in part by the
Defendants' poor record keeping."'
U.S. Bakery has come forward with only unsupported and conclusory assertions as
support for its claim that costs should be deducted. If U.S. Bakery is able to comply with its
burden of coming forth with reliable evidence of its costs and deductions, it will then be proper
to address whether Mr. Hoffman's estimates are invalid in light of the new evidence. As it stands
it is appropriate for Mr. Hoffman to provide some estimation because U.S. Bakery has mot come
forth with specific reliable evidence of its deductions. Mr. Hoffman's testimony will not be
excluded because of his variable cost estimations.
(B) Hoffman's Lost Profit Analysis Is Not Unreliable.
Mr. Hoffman determined that Bimbo had the capacity to make all of the identified lost
sales. U.S. Bakery claims that Mr. Hoffman improperly concluded that "Bimbo had already
produced and incurred all of the costs of more than enough loaves of Grandma Sycamore's to
fulfill all of the sales that are believed to have been lost to a sale of Grandma Emilie's." Mr.
Hof nan's conclusion that Bimbo already absorbed the production cost boosts Mr. Hoffman's
lost profits analysis. U.S. Bakery argues that it is improper to make the assumption that sufficient
quantities of Grandma Sycamore's units were located at the same grocery store as Grandma
Emilie's and BreadLover's White54 to make these sales without backing this claim with data.

Klein-Becker USA LLC v. Englert, 711 F.3d 1153, 1163 (10th Cir. 2013) (internal quotations omitted); see also
Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1408 (9th Cir. 1993) (explaining that, under the Lanham act,
the "plaintiff has only the burden of establishing the defendant's gross profits from the infringing activity with
reasonable certainty," and the "defendant thereafter bears the burden of showing which, if any, of its total sales are
not attributable to the infringing activity, and, additionally, any permissible deductions for overhead.").
Klein-Becker USA LLC, 711 F.3d at 1163 (quoting Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1242 (10th
Cir. 2006) (Internal Quotations Omitted).

53

54 BreadLover White is also owned by U.S. Bakery.

20

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Even if the fact finder finds that some portion of the existing inventory could not be
transported to the stores where it was needed, Mr. Hoffman addressed that situation by
conducting an alternative calculation of lost profits under which Bimbo had to produce these
additional units and ship them to stores. This alternative calculation was more conservative
because it included 100% of the incremental costs associated with the production of additional
loaves to cover U.S. Bakery's sales. U.S. Bakery does not dispute that Bimbo had the ability to
produce additional loaves in the event a current store did not have enough.
It is proper for Mr. Hoffman to present both damage alternatives to the jury. Mr. Hoffman
does not appear to claim that 100% of Bimbo's lost sales would not require additional production
costs. Hoffman says it is likely that some of the lost sales would require increased production
cost, while some lost sales would not. It is proper to allow Mr. Hoffman to provide damage
calculations under both theories and allow the jury to allocate the percentages.
(C) Mr. Hoffman's Testimony Has Adequate Causation.
U.S. Bakery objects to Mr. Hoffman's analysis of profits that were not local. Bimbo
asserts that U.S. Bakery's "Fresh. Local. Quality." tagline constitutes false advertising because
certain grocery stores that sold U.S. Bakery bread were too far from where the bread was baked
to be deemed local. Mr. Hoffman seeks to proffer calculations of U.S. Bakery's profits for
products he deems were not local. U.S. Bakery argues that Mr. Hoffman made no effort to link
the tagline's effect to U.S. Bakery's profit or to apportion his figures according to market share.
U.S. Bakery has not clearly stated what exactly is unreliable about Mr. Hoffman's
testimony. It appears that U.S. Bakery is arguing that causation cannot be established unless Mr.
Hoffman conducted his own surveys showing the consumer deception from the tagline. U.S.
Bakery has failed to provide evidence that Mr. Hoffman carries this burden.U.S. Bakery must

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show that Mr. Hoffman's testimony is unreliable, not that it could be more reliable had he
conducted his own surveys.
(D) Dr. Hoffman's Testimony as to Geography is Excluded in Part.
To prove damages, Mr. Hoffman calculated U.S. Bakery's total revenues for products
sold in a given state that were baked in a different state. U.S. Bakery claims that Mr. Hoffman
fails to account for where loaves of bread are actually sold and that he instead only focuses on
where the bread was made.
U.S. Bakery does not have precise data on the number of bread loaves sold thatwere not
local. Mr. Hoffman therefore used the limited data available to calculate the average distance
from U.S. Bakery facilities to the ten most populous zip codes in the relevant states. U.S. Bakery
claims that Mr. Hoffman includes a McMinnville, Oregon facility in the report that does not
make bread.
U.S. Bakery appears to argue that because Mr. Hoffman's testimony as to geography is
not accurate that he is not qualified. U.S. Bakery is conflating the distinct qualification and
reliability standards. The Supreme Court in Daubert instructed the courts to first determine
whether the expert is qualified and then to determine whether the testimony is reliable. It is
therefore not proper to look to the report to determine whether the expert is qualified.
The exclusion of Mr. Hof Iran's testimony is granted to the extent that he includes a
factory that does not make bread because the testimony is not reliable. 55 However, other than the
Oregon facility, there is nothing that challenges the reliability of Mr. Hoffman's testimony. Any
further challenges to Mr. Hoffman's geographic testimony go to the weight of the evidence and

The fact that Mr. Hoffman included unreliable testimony does not change the decision of whether or not he is
qualified.

55

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not to the admissibility. Mr. Hoffman's testimony as to his geographic calculations is granted as
it relates to the Oregon facility and denied as to the other geographic objections.
(E) Corrective Advertising Expenses Are Relevant to the Issue of Damages.
Mr. Hoffman includes in his reports "extra marketing and advertising expenses" that
Bimbo incurred in response to U.S. Bakery's actions. U.S. Bakery claims that he performed no
analysis to arrive at these figures, and only copied and pasted an unsourced schedule into his
analysis. U.S. Bakery also argues that Mr. Hoffman should have analyzed whether the
advertising efforts provided any mitigating revenues. U.S. Bakery objects that the: calculations
will not assist the jury to better understand the evidence or determine a fact in issue. U.S. Bakery
further argues that the reports are unduly duplicative, but does not state in what way. This
objection is therefore based on relevance and not on the reliability of the reports.
The damages calculations for corrective advertising expenditures are relevant to the issue
of damages and there is no evidence that the reports are unduly duplicative. The motion to
exclude based on corrective advertising is therefore denied.
(F) Dr. Christensen's Testimony is Admissible.
U.S. Bakery argued that testimony from Mr. Hoffman should be excluded to the extent
that it relies on inadmissible testimony from Dr. Christensen. There is nothing inadmissible in
Dr. Christensen's reports and therefore this argument is moot. The motion to exclude on this
issue is therefore denied.

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Conclusion
U.S. Bakery's Motion to Exclude the Expert Testimony of Mr. Hoffinan is granted as to
excluding testimony from Mr. Hoffman as it relates to the Oregon facility making bread, and
denied on all other grounds.56
EXPERT RUSSELL CARL HOSENEY'
Bimbo seeks to offer the testimony of Russell Carl Hoseney as an expert to aid the jury in
the trade secret claim by testifying to how ingredients, proofing processes, and baking processes
chemically interact and influence baked foods. U.S. Bakery moves to exclude the expert
testimony of Dr. Hoseney based on lack of qualifications, and because the testimony he gives is
unreliable. The order will first discuss the reasons why Dr. Hoseney is qualified and then will
discuss the reasons why his testimony is not unreliable.
(A) Dr. Hoseney is Qualified.
Dr. Hoseney holds a Ph.D. in grain science; is a Professor Emeritus of Kansas State
University's Department of Grain Science; has over 25 years of teaching experience; served as a
research chemist for the U.S. Department of Agriculture; consulted with baking companies on
the creation of new breads; and has published over 300 peer reviewed papers on a wide variety
of baking topics.
U.S. Bakery largely argues that Dr. Hoseney is not knowledgeable in trade secret law,
and that he is a chemist, not a baker. Both these arguments are not persuasive. Dr. Hoseney does
not need to be a legal expert in trade secret law to testify about a trade secret matter.
Furthen. tore, Dr. Hoseney is a world renowned baking chemist, and based on his education,

56 Motion to Exclude Expert Richard S. Hoffman, docket no. 127, filed under seal May 17, 2016.
57

Motion to Exclude Expert Russell C. Hoseney, docket no. 129, filed under seal May 17, 2016.

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skills, and training is extremely qualified to testify as to the chemical elements involved in
baking bread. U.S. Bakery's claim that Dr. Hoseney is not qualified is therefore denied.
(B) Dr. Hoseney's Testimony is Reliable.
U.S. Bakery states four reasons that Dr. Hoseney's testimony is not reliable: (a) Dr.
Hoseney's shifting definition of Bimbo's trade secrets creates inconsistencies in this case that
generate more confusion than clarity; (b) Dr. Hoseney bases his opinions on unverified,
secondhand sources; (c) Dr. Hoseney did not apply any scientific method in drawing his
conclusions that would satisfy Daubert, and is testifying to common knowledge; and (d) Dr.
Hoseney's opinions are based on a faulty understanding of Jeremy Faull's involvement in this
case. Each of these issues will be discussed below.
(1) Dr. Hoseney's Testimony Is Not Inconsistent.
U.S. Bakery argues that Dr. Hoseney's testimony should be excluded on the basis that it
is inconsistent because at times he has said each individual element of the baking process is a
trade secret, and other times has said only the combination of the individual elements constitutes
a trade secret. On this basis U.S. Bakery believes that Dr. Hoseney has little understanding of
what constitutes a trade secret and therefore is unable to provide reliable testimony.
Dr. Hoseney has most recently stated that the trade secret is the collective use of all the
baking ingredients and steps. 58 Dr. Hoseney's most recent statements only clarify, narrow, and
provide more specificity to the trade secret Bimbo is alleging. Exclusion of the testimony of Dr.
Hoseney on the basis of his testimony being inconsistent is denied.
(2) Dr. Hoseney's Testimony Is Not Solely Based On Secondhand Knowledge.
U.S. Bakery claims that Dr. Hoseney relies on information provided to him from, Joe
Robinson, a retired Bimbo employee. Because Dr. Hoseney relies on information from a
58

Expert Report of Russell Carl Hoseney at ¶¶24-25, docket no. 106-1, filed May 16, 2016.

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7

secondhand source, and Mr. Robinson is going to speak at trial, U.S. Bakery argues that Dr.
Hoseney's testimony should be excluded.
Dr. Hoseney did not merely rely on information given by Mr. Robinson. Although Dr.
Hoseney consulted with Mr. Robinson, he also did much more. Dr. Hoseney visited a Bimbo
facility to observe production, asked current employees questions regarding the production
processes, examined the fmished bread, examined competing companies' breads, considered the
ingredients on the labels of all the breads, considered the feel and texture of the breads, and also
tasted them.59.Dr. Hoseney is basing his testimony on much more than conversations with Mr.
Robinson and therefore the exclusion of his testimony on the basis of him improperly and solely
relying on conversations with a single person is denied.
(3) Dr. Hoseney Is Not Testifying to Common Knowledge and His Testimony Is Not

Unreliable.
U.S. Bakery argues that (1) there is nothing scientific about Dr. Hoseney's report,
opinions, or testimony, and (2) Dr. Hoseney claims Grandma Sycamore's white bread is different
from other commercially produced white breads, but does not specify what types of white breads
it is different from.
As to the first argument, Dr. Hoseney wishes to testify to the commercial production and
chemical interactions that occur when baking bread. This is an expert opinion. Lay witnesses
would not have knowledge of the chemical baking process of different types of breads.
The second argument fails because Dr. Hoseney is testifying that Grandma Sycamore's
white bread is different from all other white breads, not only a specific category of white bread.
Exclusion of the testimony of Dr. Hoseney based on his testimony being common knowledge
and not being reliable is denied.
59

Opposition to Motion to Exclude Expert Russell Carl Hoseney p. 8-9, docket no. 167, filed June 3, 2016.

26

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(4) Dr. Hoseney Is Testifying To A Matter On Which He Is Not An Expert.
U.S. Bakery argues that Dr. Hoseney's reports claim the linchpin in Bimbo's trade secret
claim was when Jeremy Faull came to work for U.S. Bakery and that this testimony has nothing
to do with Dr. Hoseney's expertise as a cereal chemist and is unrelated to anything outside of his
personal knowledge. This argument is valid. It is improper for Dr. Hoseney to testify that he
believes Jeremy Faull misappropriated trade secrets. The motion to exclude the expert testimony
of Dr. Hoseney is therefore granted as far as the testimony regards to Jeremy Faull being the
person who misappropriated the trade secrets.
Conclusion
U.S. Bakery's Motion to Exclude the Expert Testimony of Dr. Hoseney is granted in part
as to the testimony relating to claims of Jeremy Faull misappropriating the trade secrets. The
motion to exclude is denied on all other grounds.6°
ORDER
Defendant United States Bakery's motion to exclude testimony of Plaintiff Bimbo
Bakeries, Inc.'s expert, Dr. Glenn L. Christensen61 is DENIED in its entirety.
Defendant United States Bakery's motion to exclude testimony of Plaintiff Bimbo
Bakeries, Inc.'s expert Richard S. Hoffman62 is GRANTED as to his testimony of the Oregon
facility, and DENIED on all other grounds.
Defendant United States Bakery's motion to exclude testimony of Plaintiff Bimbo
Bakeries, Inc.'s expert Russell Carl Hoseney, Ph.D is GRANTED in part as to the testimony

60

Motion to Exclude Expert Russell C. Hoseney, docket no. 129, filed under seal May 17, 2016.

61 Motion
62

to Exclude Expert Glenn L. Christensen, docket no. 104, filed May 16, 2016.

Motion to Exclude Expert Richard S. Hoffman, docket no. 127, filed under seal May 17, 2016.

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relating to claims of Jeremy Faull misappropriating the trade secrets DENIED on all other
grounds.63
Bimbo's motion to exclude testimony of U.S. Bakery's expert Himanshu Mishra, Ph.D.,
is DENIED, with the stipulation that Dr. Mishra may not testify to the wrong legal standard.64
Bimbo's motion to exclude testimony of U.S. Bakery's expert Larry Soter is DENIED in
its entirety.65
Within fourteen days after filing of this order, the parties shall send a redacted version of
this document to dj.nuffergutd.uscourts.gov. The redacted version shall obscure all protected
information and shall be a text-based PDF. If the redactions are acceptable, the redacted version
will be placed on the docket.
Signed March 2, 2017.
BY THE COURT

63

Motion to Exclude Expert Russell C. Hoseney, docket no. 129, filed under seal May 17, 2016.

64

Motion to Exclude Expert Himanshu Mishra, docket no. 105, filed May 16, 2016.

65

Motion to Exclude Expert Larry Soter, docket no. 106, filed May 16, 2016.

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United States District Court
for the
District of Utah
March 2, 2017
******MAILING CERTIFICATE OF THE CLERK******
RE:

Bimbo Bakeries USA v. Sycamore et al
2:13cv749 DN-DBP
Charles A. Burke
WOMBLE CARLYLE SANDRIDGE & RICE (WINSTON-SALEM)
ONE W FOURTH ST
WINSTON-SALEM, NC 27101
Raymond J. Etcheverry
PARSONS BEHLE & LATIMER (UT)
PO BOX 45898
SALT LAKE CITY, UT 84145-0898
Sean N. Egan
PARKSIDE TOWER STE 950
215 S STATE ST
SALT LAKE CITY, UT 84111-2374
Andrew G. Deiss
DEISS LAW PC
10 W 100 S STE 425
SALT LAKE CITY, UT 84101
Christopher S. Hill
KIRTON MCCONKIE
PO BOX 45120
SALT LAKE CITY, UT 84145-0120
Eric C. Beach
TONKON TORP LLP
888 SW FIFTH AVE STE 1600
PORTLAND, OR 97204

Aimee Trujillo,