United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION TO PRECLUDE
DEFENDANT'S PROPOSED EXPERT ON LIKELIHOOD OF CONFUSION
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
case involves allegations of trademark infringement.
Plaintiff CSL Silicones, Inc. ("CSL") has moved to
exclude the proposed testimony of Carl Fusco, a liability
expert for Defendant Midsun Group Inc. ("Midsun").
Fusco was retained by Midsun to conduct a survey and to
provide a report regarding market recognition and likelihood
of confusion, issues central to this trademark dispute. This
Ruling resolves the motion.
brought this action against Midsun in connection with
Midsun's alleged improper use of two of CSL's
trademarks. CSL alleges that Midsun markets and sells
silicone-based coating products under names similar to
CSL's chosen names for its own silicone-based coating
products, and thus Midsun is in violation of the federal
Lanham Act, 15 U.S.C. § 1051 et. seq, and the
Connecticut Unfair Trade Practices Act, ("CUTPA"),
Conn. Gen. Stat. § 42-110. Midsun has alleged various
counterclaims against CSL pursuant to the Lanham Act and
CUTPA. The Court previously granted Midsun's motion to
dismiss CSL's causes of action, in part, dismissing Count
II with prejudice as time-barred under CUTPA. Familiarity
with the Court's Ruling is presumed. Cross-motions for
partial summary judgment have been filed and will be the
subject of a separate Ruling.
here, both parties develop and sell silicone-based coating
products. One product - associated with the 570 mark for both
parties - is used to coat and protect high voltage
insulators, such as electrical power lines. See
Compl. [Doc. 1] ¶ 7; Counterclaim [Doc. 84] ¶ 7.
The other relevant product - associated with the 579 mark for
both parties - is used to protect against corrosion of steel
products, such as structural steel, bridges, machinery, and
metal roofs, among other areas prone to corrosion.
See Compl. ¶ 8, Counterclaim ¶ 8.
before the Court is CSL's motion to preclude the
testimony of Midsun's expert, Carl Fusco. CSL argues that
Fusco is not qualified to offer the opinions he expresses in
his expert report, and further contends that Fusco's
opinions are unreliable as they are based on a flawed survey.
Doc. 167 at 5. CSL argues that Fusco's opinions would not
aid the trier of fact, and pose a danger of unfair prejudice
to CSL that outweighs any probative value associated with his
opinions. Id. Citing the seminal case on this
subject, CSL urges the Court to "exercise its
gatekeeping role" to preclude Midsun from relying on
Fusco's opinions. Id., citing Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579, 594-95
for its part, opposes CSL's motion, arguing, inter
alia, that Fusco is qualified to testify regarding
likelihood of confusion; his testimony is relevant and
reliable; his methodology is sound; and the survey conducted
"possesses sufficient circumstantial guarantees of
trustworthiness." Doc. 178 at 15.
Admissibility of Expert Testimony
decision to admit expert testimony is left to the broad
discretion of the trial judge and will be overturned only
when manifestly erroneous." McCullock v. H.B. Fuller
Co., 61 F.3d 1038, 1042 (2d Cir. 1995). See also SR
Int'l Bus. Ins. Co. v. World Trade Ctr. Properties,
LLC, 467 F.3d 107, 119 (2d Cir. 2006) (with respect to a
district court's admission of expert testimony, the
Second Circuit will "review a district court's
evidentiary rulings under a deferential abuse of discretion
standard, and will not disturb such rulings unless they are
'manifestly erroneous.'" (internal citations
omitted)). The abuse of discretion standard "applies as
much to the trial court's decisions about how to
determine reliability as to its ultimate conclusion."
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
702 of the Federal Rules of Evidence governs the
admissibility of expert testimony. Pursuant to Rule 702,
expert testimony is properly admitted where it "will
help the trier of fact to understand the evidence or to
determine a fact in issue;" "is based on sufficient
facts or data;" "is the product of reliable
principles and methods;" and where "the expert has
reliably applied the principles and methods to the facts of
the case." Fed.R.Evid. 702. "The law assigns
district courts a 'gatekeeping' role in ensuring that
expert testimony satisfies the requirements of Rule
702." United States v. Farhane, 634 F.3d 127,
158 (2d Cir. 2011) (quoting Kumho Tire Co., 526 U.S.
at 152). Thus, under the Federal Rules of Evidence, a court
"must ensure" that an expert's testimony will
be "not only relevant, but reliable."
Daubert, 509 U.S. at 589. The proponent of an
expert's testimony bears the burden of establishing its
admissibility by a preponderance of the evidence. United
States v. Williams, 506 F.3d 151, 160 (2d Cir.
2007) (citing Daubert, 509 U.S. at 593 n.10).
expert testimony, although deemed admissible pursuant to Rule
702, may be excluded under Federal Rule of Evidence 403.
Nimely v. City of New York, 414 F.3d 381, 397 (2d
Cir. 2005). Pursuant to Rule 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." Fed.R.Evid. 403. Thus, "in
acting as a gatekeeper, the court is responsible for
'keep[ing] unreliable and irrelevant information from the
jury, ' because of its 'inability to assist in
factual determinations, its potential to create confusion,
and its lack of probative value.'" Krause v. CSX
Transp., 984 F.Supp.2d 62, 76-77 (N.D.N.Y. 2013)
(quoting Allison v. McGhan Med. Corp., 184 F.3d
1300, 1311-12 (11 Cir. 1999)).
an expert is qualified is a threshold question that a court
should address and resolve prior to engaging in a
Daubert analysis. Washington v. Kellwood
Co., 105 F.Supp.3d 293, 304 (S.D.N.Y. 2015); see
also Nimely, 414 F.3d at 396 (stating that whether a
purported expert witness is qualified is a "threshold
question"); Zaremba v. Gen. Motors Corp., 360
F.3d 355, 360 (2d Cir. 2004) (noting that a district
court's Daubert analysis was "almost
superfluous" in light of a purported expert's
"meager qualifications"). Within the Second
Circuit, courts have liberally construed expert qualification
requirements. "Liberality and flexibility in evaluating
qualifications should be the rule [and] the expert should not
be required to satisfy an overly narrow test of his own
qualifications." Lappe v. American Honda Motor
Co., 857 F.Supp. 222, 226 (N.D.N.Y. 1994),
aff'd, 101 F.3d 682 (2d Cir. 1996); see also
United States v. Brown, 776 F.2d 397, 400 (2d Cir. 1985)
("The words 'qualified as an expert by knowledge,
skill, experience, training, or education' must be read
in light of the liberalizing purpose of the Rule[.]"
(quoting Fed.R.Evid. 702)).
general, the analysis requires the court to "examine the
totality of the witness's background to determine whether
he or she exhibits any one or more of the qualifications
listed in Rule 702, " and then to "compare the area
in which the witness has superior knowledge, education,
experience, or skill with the subject matter of the proffered
testimony." Washington, 105 F.Supp. at 304
(quotation marks and citations omitted). One may become
qualified as an expert based on practical experience, so that
professional education is not a prerequisite. United
States v. Angelilli, 660 F.2d 23, 39-40 (2d Cir. 1981),
cert. denied, 455 U.S. 945 (1982). "Experts
need not conduct studies of their own in order to opine on a
topic; a review of other studies and scientific literature
can be enough to qualify experts to testify and to make that
proposed testimony reliable." In re Mirena IUD Prod.
Liab. Litig., 169 F.Supp.3d 396, 412 (S.D.N.Y. 2016)
(collecting cases). "[O]f course, 'a district court
may properly conclude that witnesses are insufficiently
qualified . . . [where] their expertise is too general or too
deficient.'" Krause, 984 F.Supp.2d at 74
(quoting Stagl v. Delta, 117 F.3d 76, 81 (2d Cir.
Reliability of Expert Testimony
is determined that a witness is qualified to testify as an
expert, a trial court must assess whether the proposed
testimony is reliable. To assess reliability, the Supreme
Court has delineated a non-exhaustive list of factors a court
may consider, including "[w]hether a 'theory or
technique . . . can be (and has been) tested'; [w]hether
it 'has been subjected to peer review and
publication'; [w]hether, in respect to a particular
technique, there is a high 'known or potential rate of
error' and if there are 'standards controlling the
technique's operation'; and [w]hether the theory or
technique enjoys 'general acceptance' within a
'relevant scientific community.'" Kumho Tire
Co., 526 U.S. at 149-50 (quoting Daubert, 509
U.S. at 592-94). This list of factors is "meant to be
helpful, not definitive" and the aforementioned factors
"do not all necessarily apply even in every instance in
which the reliability of scientific testimony is
challenged." Id. at 151; see also E.E.O.C.
v. Beauty Enterprises, Inc., 361 F.Supp.2d 11,
20 (D. Conn. 2005).
In undertaking this flexible inquiry, the district court must
focus on the principles and methodology employed by the
expert, without regard to the conclusions the expert has
reached or the district court's belief as to the
correctness of those conclusions. See Daubert, 509
U.S. at 595. . . . [W]hen an expert opinion is based on data,
a methodology, or studies that are simply inadequate to
support the conclusions reached, Daubert and Rule
702 mandate the exclusion of that unreliable opinion
Amorgianos v. Nat'l R.R. Passenger Corp., 303
F.3d 256, 266 (2d Cir. 2002). "Although expert testimony
should be excluded if it is speculative or conjectural, or if
it is based on assumptions that are so unrealistic and
contradictory as to suggest bad faith or to be in essence an
apples and oranges comparison, other contentions that the
assumptions are unfounded go to the weight, not the
admissibility, of the testimony.” Boucher v. U.S.