United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD UNITED STATES DISTRICT JUDGE.
Memorandum and Order (the “Order”), dated March
7, 2017, Magistrate Judge Francis denied Plaintiffs' and
Defendants' cross-motions to preclude each other's
experts and their reports. Each of the parties objects to the
portion of the Order denying its motion to preclude. For the
reasons below, Judge Francis' Order is affirmed.
Lifeguard Licensing Corp. and Popularity Products, LLC,
assert trademark infringement claims under the Lanham Act, 15
U.S.C. § 1051 et seq. Plaintiffs are respectively the
registered owner and licensee of a series of registered word
marks, including “Lifeguard” (the
“Mark”), which is used on apparel. Defendants
asserted genericness, under 15 U.S.C. § 1064(3), as an
affirmative defense and counterclaim.
Ann Arbor T-Shirt Company, LLC, Jerry Kozak and Richard
Winowiecki retained two experts -- Dr. Thomas Maronick and
Dr. James Berger -- to design and execute consumer surveys to
assess the genericness of Plaintiffs' federally
registered trademark “Lifeguard.” Plaintiffs
hired Brian M. Sowers to rebut Dr. Maronick's and Dr.
Berger's expert reports.
Order denies Plaintiffs' motion to preclude Drs. Maronick
and Berger, concluding that each is “qualified to offer
opinions on the relevant issue” based on his respective
education and experience. Judge Francis also found that the
alleged flaws in methodology affecting the experts'
surveys do not “destroy all of [the surveys']
relevance” and therefore bear only on the weight they
are to be afforded at summary judgment or trial.
Order also denied Defendants' motion to preclude Mr.
Sowers. Judge Francis found that “defendants'
complaints about Mr. Sowers' education and experience are
overblown, undersupported, or both, ” and that his
“reports adequately explain his analyses and
conclusions, which is what the Federal Rules of Evidence
contemplate.” Judge Francis rejected Defendants'
arguments that Mr. Sowers' methodology is unreliable
because he lacks an understanding of the concept of primary
significance, and that he misidentified the proper survey
universe for a genericness survey, because Defendants did not
“establish that these alleged defects relate to his
‘methodology' or make his reports
and Defendants now object to the portions of the Order
denying their respective motions to preclude.
28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil
Procedure 72(a), a magistrate judge may adjudicate
non-dispositive motions. See also Arista Records, LLC v.
Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). A magistrate
judge's order as to a non-dispositive motion may be set
aside only where it is “clearly erroneous or contrary
to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P.
72(a); see also Arista Records, 604 F.3d at 116.
“An order is clearly erroneous if the reviewing court
is ‘left with the definite and firm conviction that a
mistake has been committed.'” Frydman v.
Verschleiser, No. 14 Civ. 5903, 2017 WL 1155919, at *2
(S.D.N.Y. Mar. 27, 2017) (quoting Easley v.
Cromartie, 532 U.S. 234, 242 (2001)). “An order is
contrary to law when it fails to apply or misapplies relevant
statutes, case law or rules of procedure.” Id.
(internal quotation marks omitted).
Rule of Evidence 702 governs the admissibility of expert
testimony. The Rule provides that:
[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
play a “gatekeeping” role within the Rule 702
framework and are “charged with ‘the task of
ensuring that an expert's testimony both rests on a
reliable foundation and is relevant to the task at
hand.'” Amorgianos v. Nat'l R.R. Passenger
Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
597 (1993)). Examination of an expert's analysis should
be “rigorous, ” but “[a] minor flaw in an
expert's reasoning or a slight modification of an
otherwise reliable method will not render an expert's
opinion per se inadmissible.” Id. at