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Uncommon, LLC v. Spigen, Inc.

United States District Court, N.D. Illinois, Eastern Division

March 26, 2018

UNCOMMON, LLC, Plaintiff,
v.
SPIGEN, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge

         Plaintiff Uncommon, LLC sued Defendant Spigen, Inc. for using the trademarked term “Capsule” in the names of its cell phone cases, the same product that Plaintiff sells under the Capsule mark. Plaintiff brings claims for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. §§ 1114, 1125(a), and unfair competition under Illinois common law. [1]. Defendant asserts counterclaims seeking cancellation of Plaintiff's Capsule mark for genericness and descriptiveness. [47]. Before this Court are Plaintiff's motion to strike Defendant's expert report [104]; Defendant's motion to strike Plaintiff's expert report [107]; Plaintiff's motion to strike an affidavit from Defendant's nontestifying expert [177]; Defendant's motion to withdraw answers to Plaintiff's requests for admission [180]; and the parties' cross-motions for summary judgment [123, 147].

         As explained below, this Court denies the parties' motions to strike; partially grants and partially denies Defendant's motion to withdraw answers; and partially grants and partially denies the parties' motions for summary judgment.

         I. Background

         A. Disputed Facts

         The facts in this section come primarily from Defendant's Local Rule 56.1 statement of facts [124] and Plaintiff's Local Rule 56.1 statement of facts [149].[1]The parties disagree over many of the circumstances of this case and each filed extensive responses to the other's statement of facts, [152, 157], and statement of additional facts, [169, 171]. Simply denying a fact that has evidentiary support “does not transform it into a disputed issue of fact sufficient to survive a motion for summary judgment.” Roberts v. Advocate Health Care, 119 F.Supp.3d 852, 854 (N.D. Ill. 2015). Denials “must cite specific evidentiary materials justifying the denial” or be disregarded. Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). Further, responses to the opposing party's statement of facts are not the place for “purely argumentative details, ” id., or legal conclusions, Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 1997). District courts may disregard any improper denials. See id.; Ammons v. Aramark Unif. Servs., 368 F.3d 809, 817 (7th Cir. 2004).

         Plaintiff argues in its reply brief on its motion for summary judgment that many of Defendant's responses to Plaintiff's statement of facts should be disregarded. [168] at 7. But Plaintiff waived this argument by failing to raise it before the reply brief. See, e.g., Padula v. Leimbach, 656 F.3d 595, 605 (7th Cir. 2011). Even so, this Court retains discretion to enforce Local Rule 56.1. See Ammons, 368 F.3d at 817. To the extent that Defendant's responses fail to cite specific evidence in the record, this Court will disregard them and deem Plaintiff's statement of fact to be admitted. See Malec, 191 F.R.D. at 583-84.

         The majority of responses that Plaintiff challenges sufficiently conform to Local Rule 56.1 to remain in the record. In most responses Defendant admits the statement in part and disputes the remainder either by citing to the record or reciting the portion of the record relied upon by Plaintiff. In some responses, Defendant limited its reply because it objected to the form of Plaintiff's statement as containing improper legal argument or as unsupported by the evidence. This Court considers this to be the case with respect to Defendant's responses to paragraphs 1- 3, 5, 7-10, 15, 16-18, 20, 21, 26, 29-37, and 39-42, and declines to strike those responses. In a few instances, however, Defendant failed to cite to any record evidence: this is true of its responses to paragraphs 6, 14, 23, 25, 28, and 38 of Plaintiff's statement of facts. This Court disregards those denials and considers Plaintiff's corresponding statements admitted. Malec, 191 F.R.D. at 583-84.[2]

         B. This Case

         The parties make and sell cell phone cases. PSOF ¶¶ 5, 6. Plaintiff sells a number of case models that consumers can customize with their own images, as well as “ready-made” varieties available with mass-produced designs or licensed artwork. DSOF ¶ 42; R. DSOF ¶ 40.

         In September 2012, Plaintiff applied to register the name “Capsule” as a trademark for one of its lines of cases. PSOF ¶ 4. The Capsule mark issued in May 2013 as Trademark Registration No. 4, 338, 254, for “cases specifically adapted for protection and storage of consumer electronics, namely, cellular phones and mobile media players.” Id.; [149-3]. The mark's registration lists its “first use” and “in commerce” dates as December 16, 2009. [149-3]. Its registration date is May 21, 2013. Id. Plaintiff sold its first Capsule case in July 2010, and has continuously sold cell phone cases with the mark since that date. DSOF ¶ 32; PSOF ¶ 5.

         When Plaintiff registered its mark, it appears that another company, Vatra, Inc., had registered “Capsule” as a trademark for “bags and cases” for “holding or carrying” cell phones, cameras, glasses, and other accessories. [124-8] at 6. Vatra, however, never followed up on its initial registration by providing a certificate of “continued use or excusable non-use, ” which must be submitted to the U.S. Patent and Trademark Office (USPTO) between the fifth and sixth year after registration to maintain a valid trademark. See id. at 5. In any event, the USPTO cancelled Vatra's Capsule mark in February 2015 for lack of that certificate, id. at 3, and it did not flag Vatra's mark as a potential source of confusion when Plaintiff applied for its Capsule mark, DSOF ¶ 13; [149-3].

         There are, however, additional third-party suppliers that sell cases whose names contain the term “Capsule, ” including Accez, iPhone TPU, Jammylizard, Catalyst, and others. See [124-10]. Plaintiff's own exhibit of online search results for “capsule, ” submitted with its Complaint, shows that case producers (other than the parties here) use the term. [1-6]; [124-9] at 8.[3] Such third-party use of Capsule, even in relation to cell phone cases, did not affect Plaintiff's registration of its mark with the USPTO.

         Around 2010, Defendant also began selling cell phone cases with the name “Capsule.” PSOF ¶ 6. These cases sometimes, but not always, used capsule with other modifiers; for example, Defendant's products include “Air Capsule, ” “Capsule Solid, ” and “Capsule Capella.” Id. ¶¶ 6, 9; DSOF ¶¶ 53, 54. By November 2014, Defendant had submitted registration applications to the USPTO to trademark these “Capsule family” product names. PSOF ¶¶ 6, 12. At least one of these marks-Capsule Capella-was approved and registered with the USPTO in May 2017. [124-4] at 4; CAPSULE CAPELLA, Registration No. 5, 297, 564.[4] Although the Capsule Capella mark was originally rejected by the USPTO for likelihood of confusion, the objection was withdrawn upon review. [124-4] at 6. The registration for Capsule Capella includes the disclaimer that Defendant makes no claim to the “exclusive right to use ‘Capsule' apart from” its appearance in the mark as shown. CAPSULE CAPELLA, Registration No. 5, 297, 564. Defendant's “Rugged Capsule” mark was also initially rejected, both for likelihood of confusion and because the USPTO determined that the mark was “merely descriptive” of an attribute of the Defendant's case. [124-6] at 16-17. Defendant still sells its “Capsule family” cases, on its website and through online retailers such as Amazon and eBay. PSOF ¶ 11.

         Defendant also claims that it sold a “Capsule” cell phone accessory in June 2009, predating Plaintiff's first use of the Capsule mark. See R. DSOF ¶ 22; [124-11]. This product was the “SGP Metal Advance Light, ” which came in a variety of styles, including “Capsule Nickel” and “Capsule Gold.” See PSOF ¶ 25; [124-11]. The SGP Metal Advance, however, was a cell phone “skin, ” a decorative sticker for the front of a phone. PSOF ¶¶ 26-28; [150-5]. It was not a cell phone case. In any event, this use of “capsule” merely described one of the designs in which the sticker was available-specifically, the option to have the sticker in a gold or nickel color with a pattern of repeating medicine capsules. See [124-11, 149-26]. Thus, “capsule” as Defendant used it in 2009 described a decorative pattern by naming the objects in the pattern, and was not a product identifier. It has little relevance here.[5]

         Thus, the disputed products consist of Plaintiff's Capsule cell phone cases and Defendant's “Capsule family” cases. Both parties sell their Capsule cases online, through their websites and online retailers. PSOF ¶ 14; [1-6]; [124-28]; [124-34]. Both have a national market. PSOF ¶¶ 13, 14. Both parties use the trademarked term alone and in conjunction with the word “case.” [149-11]; [149-19]; [124-12]; [124-28]; R. DSOF ¶ 20; DSAF ¶ 4. Defendant, as noted, also uses the term with other descriptors, and has trademarked at least one of the resulting phrases. See [124-4]; DSAF ¶ 6. The Capsule marks for which Defendant has sought or is seeking registration have first-use dates no earlier than February 2015. DSAF ¶ 6. Defendant briefly ceased selling its Capsule family cases during the pendency of this litigation but has resumed its sales. PSOF ¶ 38.

         Although both parties currently sell Capsule cases, Plaintiff does not sell its Capsule models for iPhones after the 5/5s generation, with the exception of the iPhone SE. PSOF ¶ 5; R. DSOF ¶¶ 43, 44. The trademarked Capsule models are limited to cases for the iPhone 5/5s, iPhone SE, iPhone 4/4s, and the fourth generation iPod Touch. R. DSOF ¶ 43. Plaintiff's cases for these goods can be customized by consumers or bought with ready-made prints. Id. Plaintiff did not produce Capsule cases for later generations because it was more difficult to print customized designs-generally supplied by consumers-on the cases that fit those generations. R. DSOF ¶ 44. Defendant's challenged cases, by contrast, are not customizable, and appear to be sold primarily in solid colors. DSOF ¶ 50; see also [149-19] (Capsule products on Defendant's website). Also, Defendant sells Capsule family cases for phones other than the iPhone, such as the Samsung Galaxy, see [149-19], while Plaintiff's Capsule models only fit iPhones, see PSOF ¶ 5; R. DSOF ¶¶ 43, 44; [124-2, 124-12, 124-23]. Plaintiff admits that it has no evidence of actual confusion between its Capsule cases and Defendant's cases. R. DSOF ¶ 52.

         In December 2015, Plaintiff sued Defendant for federal trademark infringement under 15 U.S.C. § 1114(a); unfair competition and false designation of origin under 15 U.S.C. § 1125(a); and Illinois common law unfair competition. [1]. Defendant asserted a counterclaim and numerous affirmative defenses. [31, 47]. Defendant later voluntarily dismissed Counts I and VI of its counterclaim, and this Court dismissed Counts II and V. [54, 61]. Thus, Defendant's remaining counterclaims are Counts III and IV, seeking cancellation of Plaintiff's mark for genericness and descriptiveness, respectively. [47].

         The parties engaged in extensive discovery in the course of this litigation, and each consulted experts. In December 2016, Defendant disclosed its experts to Plaintiff. [183-2, 183-5]. It listed Doug Bania as an expert who “may be called to testify regarding the lack of consumer confusion” as to the parties' marks; whether Plaintiff's mark “is descriptive and has acquired distinctiveness”; and damages calculations. [183-5]. Defendant noted that Bania would provide a formal report. Id. Defendant's designation of experts also listed Kirk Martensen as a “non-testifying expert who will conduct a consumer survey” to provide evidence of consumer perspectives on the Capsule mark and the parties. Id. Defendant noted Martensen's association with Goldmarks-his survey firm-and said that although no “formal report” was forthcoming, Martensen might “be called to testify on the methodology of the survey if needed.” Id. Upon Plaintiff's request, Defendant provided a two-page summary of Martensen's credentials that same month. [157-18, 157-20]. Defendant sent Plaintiff a copy of the survey report, including information about its methodology and findings, with Defendant's expert disclosures. See [124-19] at 3-5, 15-24; [180-1] ¶ 2. Although Plaintiff never sought to depose Martensen, it asked Bania about Martensen and his methodology in a January 2017 deposition. [180-1] ¶ 9; [180-6]. In response, Bania admitted that he is not a survey expert but said that he accepted the reliability of the survey report, in part because it aligned with his own research. See [183-6] at 2.

         In January 2017, this Court extended the initial expert discovery cut-off from February 2017 to March 14, 2017. [102]. On March 13, after Plaintiff's expert rebuttal report had been submitted and a day before the close of expert discovery, Bania submitted a “Supplemental Expert Report.” [104-3]. Ultimately, this Court again extended expert discovery until June 1, 2017. [114].

         The parties cross-filed for summary judgment in June 2017. [123, 147]. Defendant included Bania's expert report and Martensen's consumer survey as exhibits in support of its motion. [124-9, 124-19]. In response, Plaintiff challenged the admissibility of the consumer survey. See R. DSOF ¶ 28; [158] at 8. As a result, Defendant submitted a sworn declaration from Martensen in support of the consumer survey with its responses to Plaintiff's statement of additional facts. [171-8]. The affidavit described the work that Martensen and his firm Goldmarks conducted to produce the survey, and attested to the truth and validity of the consumer survey report previously disclosed to Plaintiff and submitted with Defendant's motion for summary judgment. Id.

         II. Legal Standard

         Under Federal Rule of Civil Procedure 12(f), courts may strike a party's “insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Accordingly, courts grant motions to strike only in rare circumstances; they are generally disfavored for their dilatory effect and frequent use as a vehicle to make arguments beyond the page limits of the merits briefs. See Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 726-27 (7th Cir. 2006). A motion to strike should succeed when it removes “unnecessary clutter from the case, ” and thus expedites rather than delays resolution on the merits. Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989).

         A motion for summary judgment can be granted only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The motion will be granted only if, viewing the record in the light most favorable to the nonmoving party, no jury could reasonably find in the nonmoving party's favor. McDonald v. Hardy, 821 F.3d 882, 888 (7th Cir. 2016). “The mere existence of a factual dispute, ” however, does not bar summary judgment unless “the disputed fact is outcome determinative under governing law.” Howland v. Kilquist, 833 F.2d 639, 642 (7th Cir. 1987). Summary judgment is also appropriate if the nonmoving party fails to establish an essential element for which it bears the burden of proof at trial. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

         III. Analysis

         A. Evidentiary Disputes

         Both parties bring numerous evidentiary challenges. These include Plaintiff's motion to strike Defendant's expert report [104]; Defendant's motion to strike Plaintiff's expert report [107]; Plaintiff's motion to strike Kirk Martensen's affidavit [177]; and Defendant's motion to withdraw four answers to Plaintiff's requests for admission [180]. Plaintiff also includes several related evidentiary arguments in its summary judgment briefing (and to the extent those arguments overlap with the listed motions, this Court addresses them with the related motion). This Court also addresses two of Plaintiff's arguments separately: Plaintiff's objections to Defendant's consumer survey, [158] at 8, and to the affidavits submitted by defense counsel and one of Defendant's employees, id. at 12-14.

         Because parties “may rely only on admissible evidence” at summary judgment, Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009), this Court considers the evidentiary disputes before turning to the merits of the case.

         1. Motions to Strike the Expert Reports

         Both parties move to strike their opponent's expert report and exclude the expert's opinions. Plaintiff moves to strike Doug Bania's supplemental expert report as untimely and improper, and to exclude his full report and testimony because he does not address issues in dispute and because he is not a qualified expert. [104] at 4, 6. Defendant seeks to exclude Chad Porter's report and opinions because they are unreliable and conclusory. [107] at 3, 6, 8. Defendant's motion is denied as moot, as explained below. This Court considers Plaintiff's motion next.

         The admissibility of expert testimony is governed by Federal Rule of Evidence (FRE) 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Expert testimony is admissible under FRE 702 if technical or specialized knowledge “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Essentially, district courts act as gatekeepers and must ensure that expert testimony “is not only relevant, but reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (internal quotation marks omitted). Relevant factors in this determination include testing, peer review, error rates, and acceptance by the relevant expert community. See Daubert, 509 U.S. at 593-94. The reliability inquiry is flexible, however, and not all of these factors will apply in every case. See Kumho, 526 U.S. at 141.

         In assessing the admissibility of expert opinions, courts do not focus on “the ultimate correctness of the expert's conclusions, ” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013), but “solely on principles and methodology, ” Daubert, 509 U.S. at 595. The “soundness of the factual underpinnings” and “correctness of the expert's conclusions” may affect any ultimate determination on the merits, but do not govern admissibility. See Smith v. Ford Motor Co., 215 F.3d 713, 718-19 (7th Cir. 2000). The expert must explain his or her methodology and cannot “simply assert a bottom line.” Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010). Finally, the expert “may be qualified by knowledge, skill, experience, training, or education.” See Smith, 215 F.3d at 718 (internal quotation marks omitted). District courts have “great latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable.” United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009).

         (i) Bania's Supplemental Report

         Defendant engaged Bania to provide information and expert opinions on the parties' use of the Capsule trademark; the purpose and functionality of trademarks; and potential damages. [124-8] at 3. In addition to his initial expert report from December 2016, [124-8], Bania submitted a “Supplemental Expert Report” in March 2017, [104-3]. Plaintiff objects to the primary expert report as unreliable and irrelevant, and to the supplemental report for failure to comply with Federal Rule of Civil Procedure (FRCP) 26. This Court addresses the supplemental report first.

         Under FRCP 26(e), parties must timely supplement their expert disclosures to remedy an incomplete or incorrect disclosure. See Fed. R. Civ. P. 26(e)(1-2); Vill. of Sauk Vill. v. Roadway Express, No. 15-cv-9183, 2017 WL 378424, at *2 (N.D. Ill. Jan. 25, 2017). Supplementary reports cannot offer “entirely new expert opinions”; rather, they should clarify or expand upon information in the expert's original report or “information given during the expert's deposition.” Id. (internal quotation marks omitted); see also Fed. R. Civ. P. 26(e)(2). The supplementary report may be intended in part to rebut an opposing party's expert. Sauk Vill., 2017 WL 378424, at *2; Bone Care Int'l, LLC v. Pentech Pharm., Inc., No. 08-cv-1083, 2010 WL 3894444, at *15 (N.D. Ill. Sept. 30, 2010). If offered in rebuttal, certain new arguments may be made “to repel testimony” of the opposing party's experts, as long as they do not differ so substantially from the opening report that they introduce entirely new theories or angles. Bone Care, 2010 WL 389444, at *16. Finally, failure to comply with FRCP 26 may be excused under FRCP 37(c) if that failure is “substantially justified” or harmless.

         For purposes of summary judgment, this Court finds that Bania's supplemental report sufficiently adheres to the scope of his initial report and to permissible rebuttal that it need not be stricken. The first half of the supplemental report corrects the scope of Bania's previous damages calculations but does not alter his underlying methodology. See [104-3] at 2-4. The second half rebuts Plaintiff's expert, but similarly confines itself to the calculation of damages, focusing on the issue of Spigen's costs as they relate to damages. See Id. at 5-6. Bania previously addressed Spigen's costs in his initial report, [124-8] at 14-15, and here merely applies his analysis to Plaintiff's expert report. Such limited rebuttal does not open up new areas of the case or prejudice Plaintiff's ability to prepare for trial. Cf. Stuhlmacher v. Home Depot USA, Inc., No. 2:10-cv-467, 2012 WL 5866297, at *3 (N.D. Ind. Nov. 19, 2012). Rather, it supplements Bania's original report, partly in response to Plaintiff's expert material. See Sauk Vill., 2017 WL 378424, at *2.

         Even if the supplementary report failed to strictly comply with Rule 26, this Court also finds any such failure harmless and thus excused under Rule 37. Not only was the supplementary report provided to Plaintiff before the initial close of expert discovery (albeit on the last day) [102], this Court then extended the close of expert discovery another two and a half months, [144], largely to give Plaintiff time to address the supplementary report, as stated in open court. Finally, Defendant's production of the supplement does not venture into new territory, minimizing any potential prejudice to Plaintiff. See Bone Care, 2010 WL 389444, at *16. This Court denies Plaintiff's motion to strike Bania's supplementary report.

         (ii) Bania's Initial Report

         Plaintiff challenges Bania's qualifications and the relevance and reliability of his expert opinion overall, and seeks exclusion of his initial report and testimony at trial. [104] at 6; [148] at 25; [158] at 11. Plaintiff also challenges the reliability and admissibility of the consumer survey on which Bania relied for some of his opinions. See [148] at 14; [158] at 8-10. This Court first considers Plaintiff's primary challenges to Bania's report before turning to the consumer survey.

         Plaintiff's objections to Bania's report rest solely upon a challenge to Bania's qualifications and methodology with respect to calculating damages. See [104] at 8- 16; [148] at 25. For the reasons explained below, this Court does not reach the question of damages because it finds that Defendant did not infringe on Plaintiff's mark. Plaintiff's motion to strike Bania's report is, therefore, denied as moot.

         As noted above, however, Bania's opinions extend beyond the issue of damages. His report also addresses the interaction of the parties' products in the marketplace. See [124-8] at 3, 13. Among other conclusions, Bania states that: (1) the parties' products are dissimilar; (2) a number of cell phone case suppliers use the term “Capsule” in the names of their cases; (3) consumers do not identify the Capsule mark with Uncommon; and (4) Defendant's use of “Capsule” likely did not interfere with Plaintiff's business. Id. at 7-12, 13. These opinions relate to Plaintiff's infringement claims and Defendant's counterclaim for cancellation of Plaintiff's mark for descriptiveness. Thus, the admissibility of his report remains relevant.

         Considering the “principles and methodology” that Bania used, Daubert, 509 U.S. at 595, and his “knowledge, skill, experience, training, ” and education, Smith, 215 F.3d at 718 (internal quotation marks omitted), this Court finds Bania's expert opinion admissible. Bania's qualifications include his professional experience as the founder of a consulting firm “specializing in the management, valuation and monetization” of intellectual property (IP); over a decade of work in IP management; his certification as a licensing professional in 2011; his membership in various trademark and licensing associations, as well as the American Bar Association's IP Law section; and a decade's worth of publications on copyright use, brand valuation, infringement claims, and other IP topics. See [124-9] at 25-30.

         The methodology underpinning Bania's assessment of the parties' products and marks is not terribly complicated, but the questions he was asked to answer do not necessarily call for complexity. Because this case turns primarily on consumer perception of the parties' products and marks, Bania conducted a variety of internet searches to examine how the products and marks appear to consumers. Id. at 4-12. Bania then applied his knowledge and expertise to the results of those searches- which he conducted after wiping his internet search history to remove bias-and to Martensen's consumer survey report to arrive at his conclusions. Id. at 13, 18. This is a reasonable method for determining consumer perceptions. See Ty, Inc. v. Publ'ns Int'l, Ltd., No. 99-c-5565, 2004 WL 5634301, at *7 (N.D. Ill. Oct. 21, 2004) (finding that an expert's reliance upon his experience and relevant studies offered a “rational basis” for his conclusions on consumer motivations) (citing Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 408 (1940)); see also Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 952 n.6 (7th Cir. 1992) (qualified expert's opinion on consumer understanding of trademarked term created genuine issue of material fact as to the mark's descriptiveness).

         For the foregoing reasons, this Court will not strike Bania's expert report or exclude his opinions. But to the extent that some of those opinions rely upon the consumer survey, those portions of his report and opinions are only admissible if the survey itself is reliable and admissible, as discussed next.

         2. Martensen's Declaration

         To determine the admissibility of the consumer survey-independently and as support for Bania's conclusions-this Court must first determine the admissibility of Martensen's declaration. For the reasons explained in this section, the consumer survey cannot be admitted unless it is introduced by the expert who conducted it. Although experts like Bania may generally rely upon studies conducted by other experts in forming their opinions, see Fed. R. Evid. 703, this is not the case when such studies involve discretionary expertise that the testifying expert lacks, see Dura Auto. Sys. of Ind. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002). As explained below, because Bania admits that he is not a survey expert, and because the consumer survey offered here involves discretion, the survey requires Martensen's testimony to be admissible at trial and his sworn support to be considered at summary judgment. Thus, this Court next considers Plaintiff's motion to strike Martensen's affidavit. [177].

         Defendant submitted Martensen's affidavit with its responses to Plaintiff's statement of additional facts; it attests to the validity of the consumer survey conducted by Martensen's firm. [171-8]. Plaintiff objects to Martensen's declaration on three grounds: (1) Martensen cannot submit a testimonial affidavit because Defendant designated him as a nontestifying expert; (2) if Martensen is a testifying expert, Defendant failed to provide the expert report required by Rule 26; and (3) Plaintiff suffered harm from this undisclosed use of Martensen's testimony. [177] at 2, 5. Plaintiff therefore seeks to strike Martensen's affidavit and bar his opinions and testimony from consideration now and at trial. Id. at 1.

         Because this Court finds no basis to exclude Martensen's declaration, and because Defendant's failure to adhere precisely to the letter of Rule 26 was harmless, the motion to strike Martensen's declaration is denied. Since Martensen's declaration constitutes the requisite support for the admission of Defendant's consumer survey, this Court sets out in detail the reason for this ruling.

         Plaintiff's first argues that as a designated nontestifying expert, Martensen cannot offer any testimonial evidence, including a sworn declaration. [177] at 2. Plaintiff's sole support for this ...


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