Opinion
CIVIL ACTION H-15-3270
03-15-2017
MICHAEL JONES, Plaintiff, v. AMERICAN COUNCIL ON EXERCISE, Defendant.
ORDER
Pending before the court is defendant American Council on Exercise's ("ACE") alternative motion to exclude portions of witness statements. Dkt. 26. The court notes that "a preliminary injunction proceeding is not subject to jury trial procedures" and that courts give "some leniency" with regard to evidentiary rules during the preliminary injunction stage. Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 559 (5th Cir. 1987). Thus, while the court has carefully considered ACE's objections, it has done so with the understanding that plaintiff Michael Jones should be able to present his evidence in a more robust form by the time of trial. After considering the objections, response, reply, and the applicable law, the court finds that the objections should be SUSTAINED IN PART AND OVERRULED IN PART as outlined in the tables below.
The court hopes that ACE will tailor its specific objections and narrow them when it is time for the court to make its pre-trial evidentiary rulings, rather than employ the "laundry list" approach adopted in its present motion.
I. OBJECTIONS TO STATEMENT OF CHAD LEIKER
Leiker's declaration may be found at docket entry 23, exhibit 2A at 9-11.
| Paragraph | Objections | Ruling |
| 2. | Contains hearsay ("That's when Dr. Jones told me...");lacks foundation ("The name sounded new to me....");legal conclusion, improper lay opinion, improper expertopinion, irrelevant, speculation, ("I believed 'MedicalExercise Specialist' to be exclusively associated withDr. Jones's course and certification." | Overruled |
| 4. | Lacks foundation ("Dr. Jones's business was enjoyingrapid growth when I joined him."). | Overruled |
| 6. | Lacks foundation, improper lay opinion, improperexpert opinion ("Dr. Jones's advertising wasremarkably effective."). | Overruled |
| 6.b. | Lacks foundation ("People would constantly callin..."). | Overruled |
| 6.c. | Lacks foundation ("We enjoyed extensive word-of-mouth advertising..."); hearsay ("People would call orwrite explaining..."). | Overruled |
| 6.d. | Lacks foundation ("After the conference was over, wereceived a large number of sales."). | Overruled |
| 6.e. | Hearsay ("...he would tell the audience about theMedical Exercise Specialist course and certification."). | Sustained |
| 7. | Irrelevant ("The man worked crazy hard....I was about25 years old, and even I started to feel exhausted at theamount of travel."). | Overruled |
| 8. | Lacks foundation ("We sold out the vast, vast, vastmajority of our classes. And for those we didn't sellout, they were still completely packed."). | Overruled |
| 9. | Lacks foundation, speculation, hearsay. | Overruled becauseof lack of specificityof objection |
| 10. | Irrelevant ("I saw a man who worked extraordinarilyhard to pour his life and soul . . . I felt deeply impressedby the amount of time Dr. Jones spent building hisentire program from essentially nothing. . . . Likeanyone who's written a song or a book, I rememberthinking how much the name and program he createdmust mean to Dr. Jones."); speculation, lacksfoundation, improper lay opinion, improper expertopinion, legal conclusion ("I fear ACE using the namewill destroy his business.... ACE is the 900-pound | Sustained as tospeculation withregard to thesentence aboutfearing the use of thename will destroyJones's business.All other objectionsoverruled. |
| gorilla in the room. Based on my experience with him,his potential-customer base is likely to be confusedbecause ACE is selling under the same MedicalExercise Specialist name in the same exerciseindustry."). |
II. OBJECTIONS TO STATEMENT OF AMANDA HARRIS
Harris's affidavit may be found at docket entry 23, exhibit 2A at pages 19-20.
| Paragraph | Objections | Ruling |
| 3. | Hearsay ("I was talking with a man named BobEsquerre...He told me..."). | Sustained as to thelast sentence, "Hetold me that if Iwanted to up mygame, I needed tocontact Dr. MichaelJones about aprogram called theMedical ExerciseSpecialist."Otherwise,overruled. |
| 4. | Lacks foundation, improper lay opinion, improper expertopinion, speculation ("No one had ever combined eachof those words in that particular way ..."); irrelevant,legal conclusion ("In my mind, the name MedicalExercise Specialist referred only to Dr. Jones's programand certification."); speculation; legal conclusion,improper lay opinion, improper expert opinion ("It wascompletely distinct and very unique."). | Sustained as thesentence "It wascompletely uniqueand verydistinctive."Otherwise,overruled. |
| 5. | Irrelevant ("I've never heard anyone using the nameMedical Exercise Specialist other than referring to Dr.Jones's program."). | Overruled. |
| 6. | Lacks foundation. | Overruled. |
| 7. | Speculation ("I would be shocked if ACE did not knowabout Dr. Jones's Medical Exercise course andprogram."). | Overruled. |
| 8. | Speculation, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation. | Sustained as tospeculation andimproper expertopinion. |
III. OBJECTIONS TO STATEMENT OF NANCY CHADWICK
Chadwick's affidavit may be found at docket entry 23, exhibit 2B at pages 1-4.
| Paragraph | Objections | Ruling |
| 3. | Irrelevant, lacks foundation, improper lay opinion,improper expert opinion ("My opinion is that if you aregoing to offer a course called "Medical ExerciseSpecialist" it should be taught by medicalpractitioners."). | Overruled. |
| 4. | Irrelevant, Speculation ("...I've never heard anyone usethe name 'Medical Exercise Specialist' to refer toanything besides Dr. Jones's course and certification."). | Overruled. |
| 5. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation ("I think it ispreposterous to claim . . . that Dr. Jones is using ageneric or non-specific name."); hearsay ("A friend ofmine had a studio right beside mine. She'd told me shewas going through his course...."); irrelevant. | Overruled. |
| 7. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, ultimate facts ("ACE using thesame name is confusing....Yet it's confusing becausethey are the same name. It seems to me that they'retrying to play off Dr. Jones's goodwill."); irrelevant. | Overruled. |
IV. OBJECTIONS TO STATEMENT OF DON ALLEY
Alley's affidavit may be found at docket entry 23, exhibit 2B at pages 12-13.
| Paragraph | Objections | Ruling |
| 3. | Irrelevant, lacks foundation, improper lay opinion,improper expert opinion, legal conclusion ("In my mind,"Medical Exercise Specialist" is the exclusive name of acourse and certification offered by Dr. Michael Jones."). | Overruled. |
| 4. | Legal conclusion, improper lay opinion, improper expertopinion, speculation ("The name sounded distinctive(because as far as I could tell) Dr. Jones made it up.");lacks foundation ("'Medical Exercise Specialist' was nota term used in the industry to describe certifications...";hearsay ("And my colleagues had told me...");irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("I believed him to be the exclusive provider of thecertification named "Medical Exercise Specialist."). | Overruled. |
| 5. | Lacks foundation, improper lay opinion, improper expertopinion ("Dr. Jones had an effective way of advertisinghis course."). | Overruled. |
| 6. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation,hearsay ("I always inform them that Dr. Jones is the soleprovider of the course and certification."); lacksfoundation ("While I don't remember exactly howmany..."). | Overruled. |
| 7. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation ("...I'm unaware of anyoneusing 'Medical Exercise Specialist' to refer to exercise orfitness certifications generally."). | Overruled. |
| 8. | Legal conclusion, ultimate facts, lacks foundation,speculation ("Or was ACE stealing his brand?"). | Sustained as to thelast sentence only.Otherwise overruled. |
| 9. | Hearsay ("I have personally spoken...I told them thename of the course..."). | Overruled. |
| 10. | Legal conclusion, improper lay opinion, improper expertopinion, speculation, ultimate facts, lacks foundation,irrelevant. | Overruled. |
V. OBJECTIONS TO STATEMENT OF JASON HODGE
Hodge's declaration may be found at docket entry 23, exhibit 2A at pages 31-33.
| Paragraph | Objections | Ruling |
| 4. | Irrelevant, improper lay opinion, improper expertopinion, legal conclusion, lacks foundation, speculation("In my mind, the name 'Medical Exercise Specialist'identifies one course and one certification: the onesoffered by Dr. Michael Jones."). | Overruled. |
| 4.a. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation. | Overruled. |
| 4.b. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation. | Overruled. |
| 4.c. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation. | Overruled. |
| 5. | Irrelevant. | Overruled. |
| 6. | Irrelevant, improper lay opinion, improper expertopinion, legal conclusion, lacks foundation, hearsay. | Overruled. |
| 7. | Illegal wiretapping of phone conversation with Californiaperson under California law which requires two partyconsent; speculation ("Even ACE's representative | Sustained as tosentence aboutrecording the call. |
| seemed confused."); improper consumer surveymethodology ("I felt very confused."). | Otherwise,overruled. | |
| 8. | Legal conclusion, improper lay opinion, improper expertopinion, speculation, lacks foundation, ultimate facts. | Overruled. |
VI. OBJECTIONS TO STATEMENT OF GABE VALENCIA
Valencia's declaration may be found at docket entry 23, exhibit 2A at pages 27-28.
| Paragraph | Objections | Ruling |
| 4. | Irrelevant, improper lay opinion, improper expertopinion, legal conclusion, lacks foundation, speculation("I've always exclusively associated the name 'MedicalExercise Specialist' with the course and certificationoffered by Dr. Michael Jones."); legal conclusion,improper lay opinion, improper expert opinion, lacksfoundation, legal conclusion, speculation ("Before that,I'd never heard the name Medical Exercise Specialist.The name sounded totally unique and distinctive to me... and I'd never heard one called Medical ExerciseSpecialist. I believed Dr. Jones had simply made up thename, which made me associate the name only with hiscourse and certification."). | Overruled. |
| 5. | Irrelevant, improper lay opinion, improper expertopinion, lacks foundation, speculation, legal conclusion(". . . I've never heard anyone who used the nameMedical Exercise Specialist to generally refer to fitnessor exercise certifications. Before 2015, I'd never heardanyone use the name Medical Exercise Specialist exceptto reference the course taught by Dr. Jones."). | Overruled. |
VII. OBJECTIONS TO STATEMENT OF TREVOR WICKEN
An email from Wicken to Jones is contained at docket entry 23, exhibit 2B at pages 20-22.
| Paragraph | Objections | Ruling |
| 1. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 2. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 3. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 4. | Irrelevant; Not an admissible unsworn statement, does | Overruled. |
| not comply with 28 U.S.C. § 1746; hearsay. | ||
| 5. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 5.a. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 5.b. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746; hearsay. | Overruled. |
| 5.c. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746; hearsay. | Overruled. |
| 5.d. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746; hearsay. | Overruled. |
| 5.e. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 5.f. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 5[sic].a. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 5[sic].b. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
| 6[sic]. | Irrelevant; Not an admissible unsworn statement, doesnot comply with 28 U.S.C. § 1746. | Overruled. |
VIII. OBJECTIONS TO STATEMENT OF JOE MASIELLO
Masiello's affidavit may be found at docket entry 23, exhibit 2A at pages 29-30.
| Paragraph | Objections | Ruling |
| 1. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746. | Overruled. This is asworn affidavit madebefore a notarypublic. |
| 2. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746. | Overruled. |
| 3. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746; irrelevant, improper lay opinion,improper expect opinion, legal conclusion, lacksfoundation, speculation ("When I hear the phrase'Medical Exercise Specialist,' I think only of the courseand certification offered by Dr. Michael Jones....Evenbefore taking the course myself, I believed the MedicalExercise Specialist exclusively referred to Dr. Jones'scourse and certification."); legal conclusion, improperlay opinion, improper expert opinion, speculation, lacksfoundation ("I thought 'Medical Exercise Specialist' was | Overruled. |
| very unique name because, to the best of my knowledge,no one else had used the designation 'Medical ExerciseSpecialist.'"). | ||
| 4. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746. | Overruled. |
| 5. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746; irrelevant, lacks foundation. | Overruled. |
IX. OBJECTIONS TO STATEMENT OF CYNTHIA MEALY
Mealy's email to Jones an be found at docket entry 23, exhibit 2B at page 23.
| Paragraph | Objections | Ruling |
| Entire email | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746; irrelevant, improper lay opinion,improper expert opinion, lacks foundation, speculation,legal conclusion ("My understanding is that the titleMedical Exercise Specialist is exclusive to those whohave completed the course work and passed the examsfrom the American Academy of Health, Fitness andRehab Professionals."). | Overruled. |
X. OBJECTIONS TO STATEMENT OF SHARON MOELIS
Moelis's declaration may be found at docket entry 23, exhibit 2A at pages 25-26.
| Paragraph | Objections | Ruling |
| 4. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation,speculation("In my mind, the name 'Medical ExerciseSpecialist' has always exclusively meant the course andcertification offered by Dr. Jones....exclusivelyassociated the name Medical Exercise Specialist with thecourse and certification offered by Dr. Jones.... In theyears since, I'd never heard anyone use the name MedicalExercise Specialist, other than to refer to Dr. Jones'scourse and certification."). | Overruled. |
| 5. | Irrelevant, hearsay. | Sustained as hearsayas to the lastsentence only.Otherwise,overruled. |
| 6. | Irrelevant, improper lay opinion, improper expert | Overruled. |
| opinion, legal conclusion, speculation ("I believe it iscompletely possible for them to describe their programwithout using the Medical Exercise Specialist name thatDr. Jones invented."). | ||
| 7. | Irrelevant | Overruled. |
| 8. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation ("In my mind,ACE is undercutting the value of Dr. Jones MedicalExercise Specialist certification.... I believe that there isan extremely high likelihood of confusion ..."). | Overruled. |
XI. OBJECTIONS TO STATEMENT OF JANICE BIRD
Bird's declaration may be found at docket entry 23, exhibit 2A at pages 34-35.
| Paragraph | Objections | Ruling |
| 3. | Hearsay ("They told me it was offered by Dr. MichaelJones.); legal conclusion, improper lay opinion, improperexpert opinion, lacks foundation ("I thought it was veryunique."); irrelevant, improper lay opinion, improperexpert opinion, legal conclusion, speculation, lacksfoundation ("I only thought of Dr. Jones' course andcertification when I saw the name Medical ExerciseSpecialist."). | Overruled. |
| 8. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation, ultimate facts,irrelevant ("...I perceive Dr. Jones's Medical ExerciseSpecialist certification as less valuable. Now Dr. Jonescannot control the quality of his brand because ACE hascopied the name of Dr. Jones' course and I fearconfusion is highly likely because it's the same name. Inmy eyes all of this harms the value of the MedicalExercise Specialist brand that Dr. Jones poured his heartand soul into developing."). | Overruled. |
XII. OBJECTIONS TO STATEMENT OF SUSAN DUTTGE
Duttge's declaration may be found at docket entry 23, exhibit 2A at pages 23-24.
| Paragraph | Objections | Ruling |
| 3. | Irrelevant, improper lay opinion, improper expertopinion, legal conclusion, lacks foundation, speculation("'Medical Exercise Specialist' is absolutely, | Sustained as to thefirst two sentences ofthe paragraph. |
| unequivocally, without a doubt the name that solelyidentifies the course and certification offered by Dr.Jones.... The phrase stuck with me because it hadsubstance and was nothing I'd ever heard of before orseen to be available before."). | Otherwise,overruled. | |
| 4. | Irrelevant, improper lay opinion, improper expertopinion, legal conclusion, lacks foundation, speculation. | Sustained asimproper lay opinionas to the firstsentence. Otherwiseoverruled. |
| 5. | Ultimate facts, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation,irrelevant. | Sustained as to thefirst and lastsentence. |
| 6. | Ultimate facts, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("I also think Dr. Jones's 'Medical Exercise Specialist'name is compromised and less valuable because of thehigh likelihood that people will be confused.... I couldbe confused with ACE's people. I believe that completelyundercuts the value of my Medical Exercise Specialistcertification. It's just wrong. ACE should stop using thename."). | Overruled. |
| 7. | Ultimate facts, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation. | Overruled. |
| 8. | Ultimate facts, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("Now that ACE is using the same name, I can beconfused with ACE's students. I believe this undercutsthe value of my Medical Exercise Specialist certificationwith Dr. Jones and is unacceptable. It is theft of a name,a title and Dr. Jones's course work identity beginning in1994."). | Sustained as to thelast sentence.Otherwise overruled. |
| 9. | Ultimate facts, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation. | Sustained. |
XIII. OBJECTIONS TO STATEMENT OF KELLI CALABRESE
Kelli Calabrese's declaration may be found at docket entry 23, Exhibit 2A at pages 6-8.
| Paragraph | Objections | Ruling |
| 5. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation,speculation("I've always considered the name 'MedicalExercise Specialist' to refer exclusively to the course and | Overruled. |
| certification offered by Dr. Michael Jones, even before Ienrolled.... And every time I saw the name 'MedicalExercise Specialist,' it specifically identified Dr. Jones'scourse and certification. Even since enrolling, I've neverheard anyone use the name 'Medical Exercise Specialist'except when talking specifically about Dr. Jones's courseand certification (until ACE started selling a MedicalExercise Specialist program and certificate in 2015).");legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation ("I'd never heard'Medical Exercise Specialist' before-the name soundedunique to me because it appeared totally made up by Dr.Jones."). | ||
| 7. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("I believe it is fairly well known that the 'MedicalExercise Specialist' refers to the course and certificationoffered by Dr. Jones....I perceive Dr. Jones as havingbuilt a great reputation for theMedical Exercise Specialist name."). | Overruled. |
| 8. | Improper consumer survey methodology ("I personallyfind it confusing..."); legal conclusion, improper layopinion, improper expert opinion, lacks foundation,speculation ("I think confusion is very likely. It's thesame name. In the same industry. Targeting roughly thesame group of people. And the course appears to besuperficially similar."). | Overruled. |
| 9. | Ultimate facts, irrelevant; legal conclusion, improper layopinion, improper expert opinion, lacks foundation,speculation ("... it's not some generic term..."). | Sustained as to "it'snot some genericterm." Otherwise,overruled. |
XIV. OBJECTIONS TO STATEMENT OF SCOTT JACKSON
Jackson's declaration may be found at docket entry 23, exhibit 2A at pages 16-18.
| Paragraph | Objections | Ruling |
| 4. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("In my mind, 'Medical Exercise Specialist' refersexclusively the course and certification offered by Dr.Jones."); legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("But as someone in the industry, it's a very distinct | Overruled. |
| name—in fact, I always believed that Dr. Jones inventedthe name 'Medical Exercise Specialist.'"); ultimate facts,legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation ("And to myknowledge, Dr. Jones is the only one who's ever used thename 'Medical Exercise Specialist,' at least before ACEstole the name from in 2015."). | ||
| 5.a., b. | Hearsay. | Overruled. |
| 6. | Ultimate facts, irrelevant, legal conclusion, improper layopinion, improper expert opinion, lacks foundation,speculation. | Sustained as tospeculation withregard to the lastsentence, "Althoughyou can't tell it byjust looking atACE's website,ACE's certificationis far less substantialthan Dr. Jones'.Otherwise,overruled. |
| 7. | Irrelevant. | Overruled. |
| 8. | Hearsay ("My trainers told me...."); legal conclusion,improper lay opinion, improper expert opinion, lacksfoundation, speculation, ("So yes, there will beconfusion..."). | Overruled. |
XV. OBJECTIONS TO STATEMENT OF ROGER MICHAEL BABOWAL, II
Babowal's declaration may be found at Docket entry 23, Exhibit 2A at pages 12-15.
| Paragraph | Objections | Ruling |
| 2. | Not qualified as brand or marketing expert | Overruled. |
| 3. | Lacks foundation. | Overruled. |
| 4. | Lacks foundation. | Overruled. |
| 5. | Lacks foundation. | Overruled. |
| 6. | Lacks foundation. | Overruled. |
| 7. | Lacks foundation. | Overruled. |
| 8. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation,speculation("Dr. Jones had used the Medical ExerciseSpecialist brand exclusively to my knowledge, so Iassumed he'd sold the business, or licensed his MedicalExercise Specialist program to ACE.). | Overruled. |
| 9. | Legal conclusion, improper lay opinion, improper expert | Sustained as to |
| opinion, lacks foundation, speculation. | speculationregarding the lastsentence, "ACE hasso many moreresources that theycould easilyoverwhelm him andconfuse people intothinking they are theonly MedicalExercise Specialistcourse andcertification."Otherwise,overruled. |
XVI. OBJECTIONS TO STATEMENT OF JO-ANN JAMES
James's email may be found at docket entry 23, exhibit 2B at page 24.
| Paragraph | Objections | Ruling |
| Wholestatement | Irrelevant, violates 28 U.S.C. § 1746. | Overruled. |
XVII. OBJECTIONS TO STATEMENT OF WILLIAM SMITH
Smith's declaration may be found at docket entry 23, exhibit 2B at pages 18-19.
| Paragraph | Objections | Ruling |
| 3. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("In my mind, the name 'Medical Exercise Specialist'exclusively refers to the course and certification offeredby Dr. Michael Jones"); legal conclusion, improper layopinion, improper expert opinion, lacks foundation,speculation ("When I first saw the name MedicalExercise Specialist, I thought it was a very uniquename."). | Overruled. |
| 4. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("Again, in my mind, the name Medical ExerciseSpecialist exclusively identifies Dr. Jones as the sourceof the course and certification."). | Overruled. |
| 5. | Irrelevant. | Overruled. |
| 6. | Hearsay, irrelevant. | Overruled. |
| 7. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation. | Overruled. |
XVIII. OBJECTIONS TO STATEMENT OF BOB ESQUERRE
Bob Esquerre's declaration may be found at docket entry 23, exhibit 2A at 1-5.
| Paragraph | Objections | Ruling |
| 1. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated). | There is no date onthe declaration.However, this issuehas been curedbecause heincorporated thedeclaration into adated expert report.Objection overruled. |
| 2. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated). | Overruled. |
| 3. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated); Irrelevant, legalconclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation ("Since I firstheard it, I've always believed the name "MedicalExercise Specialist" exclusively identified the course andcertification offered by Dr. Michael Jones."); hearsay("One of the trainers at Equinox (named Peter Charles)mentioned in a meeting that he'd met Dr. Jones. Dr.Jones offered a course and certification called the"Medical Exercise Specialist." I'd never heard anyoneuse the name "Medical Exercise Specialist" before. I wasinterested—could Equinox trainers could gain acompetitive advantage by enrolling? I set up a phone callwith Dr. Jones. We talked about what kind of content heoffered."). | Overruled. |
| 4. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated); irrelevant. | Overruled. |
| 5. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated); lacks foundation ("Dr.Jones's Medical Exercise Specialist course andcertification was advertised through word-of-mouth, andthat strategy was effective to spread the name throughout | Overruled. |
| the industry."). | ||
| 6. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated), irrelevant, hearsay. | Overruled. |
| 6.a. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated), irrelevant. | Overruled. |
| 6.b. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated), hearsay, irrelevant. | Overruled. |
| 6.c. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated), irrelevant, hearsay. | Overruled. |
| 6.d. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated), irrelevant. | Overruled. |
| 7. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated); Irrelevant, legalconclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation. | Overruled. |
| 8. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated); irrelevant, lacksfoundation, hearsay. | Sustained as tohearsay for sentence,"I was eventuallytold that ACE hadkilled the CESprogram."Otherwise overruled. |
| 9. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated); irrelevant, legalconclusion, speculation. | Overruled as to notbeing an admissibleunsworn statement.Otherwise,sustained. |
| 10. | Not an admissible unsworn statement, does not complywith 28 U.S.C. § 1746 (not dated); legal conclusion,improper lay opinion, improper expert opinion, lacksfoundation, speculation ("I believe that there's a veryhigh likelihood of confusion....his potential customersare likely to be confused..."); improper consumer surveymethodology ("I felt shocked and confused."). | Overruled. |
XIX. OBJECTIONS TO STATEMENT OF FOTIOS PANTAZIS
Pantazis's email may be found at docket entry 23, exhibit 2B at 26-28.
| Paragraph | Objections | Ruling |
| Wholestatement | Hearsay, legal conclusions, lacks foundation,speculation, irrelevant, not an admissible unswornstatement, does not comply with 28 U.S.C. § 1746. | Overruled. |
XX. OBJECTIONS TO STATEMENT OF PHIL GODFREY
Godfrey's affidavit may be found at docket entry 23, exhibit 2A at pages 21-22.
| Paragraph | Objections | Ruling |
| 3. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("In my mind, Medical Exercise Specialist is theexclusive brand name for the course and certificationoffered by Dr. Michael Jones.... I quickly came tobelieve that the name Medical Exercise Specialist onlyidentified the course and certification offered by Dr.Jones."); legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation("As far as I'm aware, no one had ever used the nameMedical Exercise Specialist before Dr. Jones- it was aname that he'd invented."). | Overruled. |
| 4. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation ("I felt MedicalExercise Specialist was (and is) a very unique namebecause dozens of certifications existed but none usedthat name....In my mind, the titles in this industryidentify the organization. So that's why I exclusivelyassociated Dr. Jones with the Medical Exercise Specialistcertification-it was a unique name that only he hadused."). | Overruled. |
| 5. | Hearsay. | Overruled. |
| 6. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation ("It is extremelyconfusing for ACE to use the name 'Medical ExerciseSpecialist'."); ultimate facts, legal conclusion, improperconsumer survey methodology ("I found it extremelyconfusing when I first saw it, and even wondered if Dr.Mike had somehow become involved with ACE. Thename belongs to Dr. Jones. How can ACE legally beusing it?"). | Sustained as legalconclusion as to thelast two sentences:"The name belongsto Dr. Jones. Howcan ACE legally beusing it?"Otherwise,overruled. |
| 7. | Legal conclusion, ultimate facts, improper lay opinion,improper expert opinion, lacks foundation, speculation. | Sustained asspeculation as to thefirst sentence, "Ibelieve that ACEcopied the MedicalExercise Specialistname from Dr.Jones." Otherwise, |
| overruled. |
XXI. OBJECTIONS TO STATEMENT OF BRIAN RICHEY
Richey's affidavit may be found at docket entry 23, exhibit 2B at pages 14-16. --------
| Paragraph | Objections | Ruling |
| 3. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation. | Overruled. |
| 3.a. | Irrelevant, legal conclusion, improper lay opinion,improper expert opinion, lacks foundation, speculation,irrelevant, hearsay. | Overruled. |
| 3.b. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation ("It was a uniquename..."); irrelevant. | Overruled. |
| 3.c. | Hearsay. | Overruled. |
| 3.d. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation. | Overruled. |
| 4. | Hearsay. | Overruled. |
| 5. | Irrelevant. | Overruled. |
| 6. | Irrelevant, hearsay. | Overruled. |
| 7. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation, ultimate facts. | Overruled. |
| 8. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation. | Overruled. |
| 9. | Legal conclusion, improper lay opinion, improper expertopinion, lacks foundation, speculation. | Overruled. |
| 10. | Speculation, irrelevant, lacks foundation. | Sustained. |
XXII. CONCLUSION
In sum, ACE's objections are SUSTAINED IN PART AND OVERRULED IN PART.
Signed at Houston, Texas on March 15, 2017.
/s/_________
Gray H. Miller
United States District Judge