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

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.

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