Consumer Law

expert testimony isn't always required for literal falsity or even misleadingness

By Rebecca Tushnet

Ecore Int?l, Inc. v. Downey, No. 11-6843, 2020 WL 5501206 (E.D. Pa. Sept. 11, 2020)

The court denies Ecore?s motion in limine seeking to exclude any evidence related to the falsity or misleading nature of its advertising for purposes of defendant Pliteq?s Lanham Act/common law unfair competition counterclaims. (There are about 20 claims and counterclaims ?related to a hotly contested commercial dispute between the parties.?) Ecore allegedly made false and misleading statements about Pliteq?s ?GenieMat? products and its own ?QT? products, which are competing sound dampening products: (1) claims of equivalence as to quality, performance, and testing; (2) wrongly implying that Pliteq?s products use a rubber cleaning and processing method involving sulfur, and that the products accordingly have an unpleasant odor; and (3) claims that Ecore ?originated the new method of using two layers of floor underlayment, when this is not the case.? That last sounds Dastar-problematic, but the court doesn?t address that aspect of the claim.

Ecore argued that expert testimony was required on falsity and likely confusion. The court agreed that lay witnesses might be able to do so, including with the testimony of defendant Downey, ?who has extensive experience in the sound insulation field and can testify as to these issues based on his personal knowledge and observations,? although he hadn?t been identified as an expert on these issues.

The court noted that ?[t]he type of proof needed to prove literal falsity varies with the type of advertising claim being made,? and further that whether expert testimony is necessary to a literal falsity claim is also case specific, which seems all but self-evident.  Pliteq might be able to show literal falsity of these particular claims without evidence that ?requires scientific or technical knowledge not appropriate for a lay witness.? The allegedly false statements ?do not refer to any scientific tests and do not otherwise contain such technical implications that expert testimony would be needed to establish their falsity. To the contrary, information regarding a product?s odor and who came up with an idea is perfectly amenable to lay testimony.?

Second, even without literal falsity, an expert or consumer survey isn?t absolutely required to prove deception. Courts have mentioned ?consumer surveys, market research, expert testimony, or other evidence,? even if surveys are the ?usual[]? method. [Imagine a very small market where all the customers testify they were deceived?clearly no survey would be required.] Without a full evidentiary record, the court wasn?t going to reject Pliteq?s theories or prohibit Pliteq from attempting to prove its claims via lay witnesses.

Full post as published by 43(B)log on September 16, 2020 (boomark / email).