Opinion
Civ. 21-00460 LEK-WRP
07-30-2024
HAWAII FOODSERVICE ALLIANCE, LLC, A HAWAII LIMITED LIABILITY COMPANY; Plaintiff, v. MEADOW GOLD DAIRIES HAWAII, LLC, A HAWAII LIMITED LIABILITY COMPANY; HOLLANDIA DAIRY, INC., A CALIFORNIA CORPORATION; HERITAGE DISTRIBUTING COMPANY, SAPUTO DAIRY FOODS USA, LLC, A DELAWARE CORPORATION; Defendants.
ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES' MOTIONS TO EXCLUDE EXPERT REPORTS AND TESTIMONY, [DKT. NOS. 198, 199, 200, 202, 203, 204]
Leslie E. Kobayashi, United States District Judge.
On July 29, 2024, this Court held a hearing on the following motions, all of which were filed on May 28, 2024: Plaintiff Hawaii Foodservice Alliance, LLC's (“Plaintiff”) Motion to Exclude Expert Report and Testimony of John Tidwell (“Tidwell Motion”); Plaintiff's Motion to Exclude Expert Report and Testimony of Itamar Simonson (“Simonson Motion”); and Plaintiff's Motion to Exclude Expert Report and Testimony of Sarah Butler (“Butler Motion”). [Dkt. nos. 198, 202, 203.]
Also before this Court are the following motions, which were also filed on May 28, 2024: the Motion to Exclude Reports and Testimony of Dwight J. Duncan (“Duncan Motion”), filed by Defendants Meadow Gold Dairies Hawaii, LLC (“MGDH”); Hollandia Dairy, Inc. (“Hollandia”); Heritage Distributing Company dba Ninth Avenue Foods (“Heritage”); and Saputo Cheese USA Inc. fka Saputo Dairy Foods USA, LLC (“Saputo” and all collectively “Defendants”); Defendants' Motion to Exclude Reports and Testimony of Ronald Goodstein, filed 5/28/24 (dkt. no. 200) (“Goodstein Motion”); and Plaintiff's Motion to Exclude Expert Report and Testimony of Eric Barnes (“Barnes Motion”). [Dkt. nos. 199, 200, 204.] This Court finds the Duncan Motion, the Goodstein Motion, and the Barnes Motion suitable for disposition without a hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”).
The Tidwell Motion, the Butler Motion, the Duncan Motion, the Goodstein Motion, the Simonson Motion, and the Barnes Motion (collectively “Motions to Exclude”) are hereby granted in part and denied in part for the reasons set forth below.
BACKGROUND
Also on May 28, 2024, Defendants filed a motion seeking to exclude testimony of Plaintiff's expert witness, Thomas J. Maronick, DBA, J.D. (“Dr. Maronick”), specifically about the surveys he conducted regarding the Meadow Gold brand. See Defs.' Motion to Exclude Expert Reports and Testimony of Thomas J. Maronick, filed 5/28/24 (dkt. no. 201) (“Maronick Motion”). On July 29, 2024, this Court issued an amended order granting the Maronick Motion in part and denying it in part. [Amended Order Granting in Part and Denying in Part Defendants' Motion to Exclude Expert Reports and Testimony of Thomas J. Maronick, [Filed 5/28/24 (Dkt. No. 201)], filed 7/29/24 (dkt. no. 243) (“7/29 Amended Order”).] The relevant background of this case is set forth in the 7/29 Amended Order and will not be repeated here.
Similar to Dr. Maronick, John Tidwell, Ph.D. (“Dr. Tidwell”) and SMS Research & Marketing Services, Inc. were retained by Defendants to conduct a survey regarding Hawai'i residents' habits and preferences when they buy dairy products. See generally Tidwell Motion, Declaration of Kelly G. LaPorte, Exh. A (Expert Report of John Tidwell). Defendants retained Itamar Simonson, Ph.D. (“Dr. Simonson”) to conduct a survey regarding whether and to what extent certain terms or phrases on Meadow Gold brand products affected the likelihood that Hawai'i consumers would purchase the products and the amount that Hawai'i consumers were willing to pay for the products. In addition, Dr. Simonson evaluated the report of Plaintiff's expert, Ronald C. Goodstein, Ph.D. (“Dr. Goodstein”). See generally Simonson Motion, Declaration of Kelly G. LaPorte, Exh. A (Expert Report of Dr. Itamar Simonson). Plaintiff retained Dr. Goodstein to provide opinions regarding corrective advertising. See generally, Goodstein Motion, Declaration of Erika L. Amatore, Exh. 1 (Report of Ronald C. Goodstein, Ph.D., dated 7/10/23). Defendants retained Sarah Butler, M.A. (“Butler”) to review and respond to Dr. Maronick's surveys and to his opinions. See generally Butler Motion, Declaration of Kelly G. LaPorte, Exh. C (Expert Rebuttal Report of Sarah Butler).
Dwight J. Duncan, CFA (“Duncan”) is Plaintiff's damages expert. See generally Duncan Motion, Declaration of Christine Belcaid, Exh. 1 (Expert Report of Dwight J. Duncan, CFA, July 10, 2023). Eric M. Barnes, MS, MBA (“Barnes”) is Defendants' damages expert, and he was directed to prepare rebuttal opinions responding to Duncan's July 10, 2023 report. See generally Barnes Motion, Declaration of Kelly G. LaPorte, Exh. B (Barnes's expert rebuttal report).
DISCUSSION
I. Expert Witness Qualifications
Federal Rule of Evidence 702 controls the admissibility of the opinions rendered by the parties' expert witnesses. See 7/29 Amended Order at 7. Rule 702 provides that expert opinion evidence is admissible if: (1) the witness is sufficiently “qualified as an expert by knowledge, skill, experience, training, or education”; (2) the witness's “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue”; (3) the witness's “testimony is based on sufficient facts or data”; (4) the witness's “testimony is the product of reliable principles and methods”; and (5) the witness has reliably applied the relevant principles and methods to the facts of the case. Fed.R.Evid. 702.
The first factor, whether the expert is sufficiently qualified, was not at issue in the Maronick Motion. The challenges raised in Maronick Motion focused upon Dr. Maronick's survey methods and the surveys' relevance. See generally Maronick Motion at 11-21 (analysis section). The Tidwell Motion raises similar challenges, but it also argues Dr. Tidwell is not qualified to render expert opinions in this case. See generally Tidwell Motion, Mem. in Supp. at 10-24 (argument section). Plaintiff argues Dr. Tidwell “is not qualified to design, interpret, and draw conclusions from a survey relevant to the issues in this Lanham Act case involving a false designation of geographic origin claim.” [Id. at 10-11.]
Like the Maronick Motion, the Butler Motion, the Duncan Motion, the Goodstein Motion, the Simonson Motion, and the Barnes Motion do not challenge the proposed experts' qualifications.
“Rule 702 ‘contemplates a broad conception of expert qualifications,'” and therefore only a “‘minimal foundation of knowledge, skill, and experience [is] required in order to give ‘expert' testimony.” Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015, 1016 (9th Cir. 2004) (emphases in Hangarter) (quoting Thomas v. Newton Int'l Enters., 42 F.3d 1266, 1269 (9th Cir. 1994)). Defendants do not offer Dr. Tidwell as a Lanham Act expert. They offer him as an expert in the field of consumer marketing and research. [Defendants' Memorandum in Opposition to Plaintiff Hawaii Foodservice Alliance, LLC's Motion to Exclude Expert Report and Testimony of John Tidwell, Filed on May 28, 2024 [Dkt. 198], filed 7/8/24 (dkt. no. 218), at 1.] For purposes of the Tidwell Motion, this Court finds that Dr. Tidwell is sufficiently qualified in the area that Defendants seek to offer him as an expert witness. This Court therefore rejects Plaintiff's argument that Dr. Tidwell's testimony should be excluded because he lacks the requisite qualifications.
This Court's ruling does not prevent Plaintiff from questioning Dr. Tidwell during voir dire regarding his qualifications, nor does it preclude Plaintiff from renewing its relevancy arguments based on the evidence actually presented at trial. As noted in the 7/29 Amended Order, rulings on motions in limine are provisional.
II. Application of the 7/29 Amended Order
The analysis set forth in 7/29 Amended Order regarding Dr. Maronick's opinions addressing the surveys that he conducted also applies to the opinions by Dr. Tidwell, Dr. Simonson, and Butler as to both their opinions addressing their own surveys and opinions addressing surveys conducted by other expert witnesses. This Court therefore concludes that the rulings in the 7/29 Amended Order also apply to the surveys that Dr. Tidwell, Dr. Simonson, and Butler conducted and/or rebutted, as well as to their opinions analyzing those surveys. See 7/29 Amended Order at 7-8. In sum, surveys and opinions that only address Hollandia's products are excluded, and surveys and opinions about products that did not contain the Relevant Text are excluded. See id. at 5 (citing the definition of what is referred to as “the Relevant Text”). Surveys that involved both Hollandia's products and the products of Heritage and/or Saputo are admissible, but any portion regarding Hollandia must be redacted. Surveys that involved both products that contained the Relevant Text and products that did not contain the Relevant Text are admissible, but any portion regarding products that did not contain the Relevant Text must be redacted. Dr. Tidwell's, Dr. Simonson's, and Butler's opinions based upon the surveys are admissible to the same extent.
Dr. Goodstein, Duncan, and Barnes did not conduct consumer surveys, nor are their opinions based primarily upon such surveys. However, the analysis and rulings in the 7/29 Amended Order still apply. Dr. Goodstein's opinions regarding corrective advertising are limited to what he opines is necessary to correct the effect of the Relevant Text. Duncan's and Barnes's damages analyses are limited to damages purportedly caused by the use of the Relevant Text.
CONCLUSION
For the foregoing reasons, the parties' Motions to Exclude, [dkt. nos. 198, 199, 200, 202, 203, 204,] are HEREBY GRANTED IN PART AND DENIED IN PART, in the same manner set forth in the 7/29 Amended Order. The parties are DIRECTED to meet and confer regarding the redactions required under this Order.
IT IS SO ORDERED.