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Georgia-Pacific Consumer Products LP v. Kimberly-Clark Corp.

March 31, 2010

GEORGIA-PACIFIC CONSUMER PRODUCTS LP, PLAINTIFF,
v.
KIMBERLY-CLARK CORPORATION, KIMBERLY-CLARK GLOBAL SALES, INC., AND KIMBERLY-CLARK WORLDWIDE, INC., DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Georgia-Pacific Consumer Products, LP ("Georgia-Pacific") filed suit against Defendants Kimberly-Clark Corporation, Kimberly-Clark Global Sales, Inc., and Kimberly-Clark Worldwide, Inc. (collectively "Kimberly-Clark") alleging unfair competition and trademark infringement under the Lanham Act, 15 U.S.C. § 1051 et seq., and under various state statutes. The suit alleges that Kimberly-Clark has introduced bath tissue products with designs that infringe Georgia-Pacific's protected rights in its "Quilted Diamond Design." Georgia-Pacific has moved to strike the proposed testimony of two of Georgia-Pacific's experts, Ivan Ross ("Ross") and David C. Hilliard ("Hilliard"). For the reasons set forth below, Georgia-Pacific's Motion to Strike the Survey and Expert Report of Ivan Ross is denied, and Georgia-Pacific's Motion to Strike the Expert Report of David C. Hilliard is granted.

STANDARD OF REVIEW

Whether scientific expert testimony is admissible is determined by reference to Federal Rule of Evidence 702 and the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Kimberly-Clark, as the proponent of Little's testimony, bears the burden of proof with respect to whether the admissibility requirements are met. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009).

Rule 702 assigns the trial judge "the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert, 492 F.3d at 597. The focus of this decision "must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 492 F.3d at 595. The Seventh Circuit has developed a three-step analysis for determining the admissibility of expert testimony under Rule 702. See Ervin, 492 F.3d at 904. First, "the witness must be qualified 'as an expert by knowledge, skill experience, training, or education.'" Id. (quoting Fed.R.Evid. 702). Second, "the expert's reasoning or methodologies underlying the testimony must be scientifically reliable." Id. Third, the expert's testimony must be relevant, that is, it must "assist the trier of fact to understand the evidence or to determine a fact in issue." Id.

DISCUSSION

I. Georgia-Pacific's Motion to Strike the Survey and Expert Report of Ivan Ross

Ivan Ross is a consumer psychologist who was a professor of marketing at the University of Minnesota for nearly thirty years. He was retained by Kimberly-Clark to conduct a survey related to the likelihood of consumer confusion between Georgia-Pacific and Kimberly-Clark's products.

Ross's expert report is based solely on the survey described below. The admissibility of the survey is therefore dispositive of the admissibility of Ross's proposed testimony.

Georgia-Pacific does not challenge Ross's qualifications to offer testimony as a consumer psychology expert, or his qualifications in the field of survey design generally. Instead, Georgia-Pacific argues that the methodology used in the creation, administration, and evaluation of the survey used here was so flawed as to render it inadmissible under Daubert and its progeny.

Survey evidence offered in support of, or in opposition to, summary judgment "must comply with the principles of professional survey research; if it does not, it is not even admissible...." Evory v. RJM Acquisitions Funding L.L.C., 505 F.3d 769, 776 (7th Cir. 2007). Surveys testing consumer confusion should mimic market conditions, including the context in which purchases are made. See Coherent, Inc. v. Coherent Techs., 935 F.2d 1122, 1126 (10th Cir. 1991) (rejecting survey that did not appropriately mirror market conditions); Simon Prop. Group L.P. v. MySimon, Inc., 104 F. Supp. 2d 1033, 1038 (S.D. Ind. 2000) ("[A] survey to test likelihood of confusion must attempt to replicate the thought processes of consumers encountering the disputed mark or marks as they would in the marketplace.").

Here, a survey designed by Ross was conducted by a private survey firm as a double-blind study in which participants were intercepted from among shoppers in eight United States shopping malls. (See R. 74, Ex. A, Expert Report of Ivan Ross, at 5, 6.) (hereinafter "Ross Rep.") The relevant universe of individuals to whom the survey was administered was defined as recent users of Northern toilet tissue (Georgia-Pacific's brand) who were 18 years or older and met a variety of screening criteria. (See Ross Rep. at 6.) "In order to qualify for participation in the study the respondent had to indicate that Northern or Quilted Northern was the brand or among the brands of toilet tissue he/she had used in the past three months." (Ross Rep. at 7.) Participants were then taken to an interview room where they were shown toilet tissue samples and asked a series of questions. (See Ross Rep. at 8-11.) Some respondents were shown one of two different brands of toilet tissue manufactured by Kimberly-Clark, while others were shown a product manufactured by Charmin and "not alleged to be confusing as to source...." (Ross Rep. at 5.) After coding and analyzing the survey responses, Ross ultimately concluded that there was no demonstrated confusion between the two Kimberly-Clark tissue brands and the Georgia-Pacific brand "that cannot be accounted for by extraneous factors." (Ross Rep. at 14.) Georgia-Pacific argues that the survey is so unreliable as to be inadmissible because it failed to identify a proper and relevant universe, because it was not properly validated, and because it was not coded on a "blind" basis.

A. Identification of the "Universe"

The probative value of a survey depends in large part upon the "universe" of respondents, and the reliability of the survey is diminished if the universe of desired respondents is erroneous or undefined. See Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 394 n.5 (7th Cir. 1992) (noting that a survey designed to demonstrate secondary meaning had failed to target all relevant purchasers); see also Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 487-88 (5th Cir. 2004) (a valid survey must interview individuals who "adequately represent the opinions which are relevant to the litigation"). The legal inquiry as to whether an allegedly infringing product has caused consumer confusion "centers on the confusion of consumers in the market for the particular products at issue," Dorr-Oliver, Inc. v. Fluid-Quip, Inc., 94 F.3d 376, 382 (7th Cir. 1996). However, "in addition to ...


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