Forest River, Inc. v. inTech Trailers, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

FOREST RIVER, INC.,

Plaintiff,

v. CAUSE NO. 3:21-CV-645 DRL

INTECH TRAILERS, INC.,

Defendant.

OPINION AND ORDER

Forest River, Inc. seeks to exclude testimony of inTech Trailers, Inc.’s opinion witness, Dr.

Thomas Maronick, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S.

579 (1993). The court denies the motion, except only in part.

STANDARD

A witness may testify in the form of an expert opinion when (1) the witness is “qualified as an

expert by knowledge, skill, expertise, training, or education;” (2) the testimony is “based on sufficient

facts or data;” (3) the testimony is “the product of reliable principles and methods;” and (4) the witness

has “reliably applied the principles and methods to the facts of the case” in such a way that the testimony

will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702.

Although analysis under Rule 702 remains at all times flexible, Daubert, 509 U.S. at 594, the fundamental

considerations of what makes expert opinion admissible are well understood, see Constructora Mi Casita, S

de R.L. de C.V. v. NIBCO, Inc., 448 F. Supp.3d 965, 970-71 (N.D. Ind. 2020).

In short, the Federal Rules of Evidence strike a balance between two competing concerns: the

apprehension for the free-for-all admission of unreliable theories that might baffle juries and a “stifling

and repressive scientific orthodoxy” that might inhibit new truths or legitimate cases. Daubert, 509 U.S.

at 596. While preserving that balance, the Daubert analysis is not a substitute for crossexamination,

contrary and compelling evidence, thoughtful jury instructions, and other methods inherent in federal

trials to challenge shaky evidence. Id.; see also Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 766 (7th Cir. 2013).

Still, the proponent of expert testimony must establish its admissibility by a preponderance of the

evidence. Varlen Corp. v. Liberty Mut. Ins. Co., 924 F.3d 456, 459 (7th Cir. 2019).

The court needn’t conduct an evidentiary hearing here. No party has requested one. The briefing,

proffered expert report, exhibits, and deposition testimony also permit the court to rule. See, e.g., Kirstein

v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir. 1998); Target Mkt. Pub., Inc. v. ADVO, Inc., 136 F.3d 1139,

1143 n.3 (7th Cir. 1998).

DISCUSSION

The court recently ruled on a summary judgment motion that provides the background for this

case. See Forest River, Inc. v. inTech Trailers, Inc., 2023 U.S. Dist. LEXIS 164170 (N.D. Ind. Sept. 15, 2023)

(amended Oct. 20, 2023). A triable issue remains as to whether inTech’s use of its Terra and mountain

design marks cause a likelihood of confusion with Forest River’s Della Terra and mountain design marks.

Before the upcoming trial, Forest River wants to exclude Dr. Maronick’s anticipated testimony.

Dr. Maronick has been a marking consultant since 1997 [86-1 at 648-49 (Ex. 6 at 2)]. In this role, he has

provided guidance on marketing strategy and consumer research issues in litigation, served as an expert

witness in over 150 cases, and completed over 300 survey research projects for advertising and trademark

litigation [id.]. He also served as the director of impact evaluation in the Bureau of Consumer Protection

at the Federal Trade Commission from 1980-1997, where he was the FTC’s in-house specialist on

marketing and survey matters [id.]. He has published on the impact of marketing on consumers.

Dr. Maronick earned his doctorate in business administration from the University of Kentucky

and his juris doctorate from the University of Baltimore School of Law [86-1 at 66 (Ex. 2 at 2)]. In

addition to his professional work, he has taught at the collegiate level for 43 years. He was an instructor

in business administration at Virginia Commonwealth University, associate professor of marketing at the

University of Baltimore School of Business, and professor of marketing at Towson University College of

Business and Economics before assuming his current position as emeritus professor of marketing [86-1

at 648 (Ex. 6 at 1)]. No one really challenges his credentials, except as to the depth of experience with the

recreational vehicle industry or its customers specifically, though apparently Forest River retained him

between 2010 and 2012 to address consumer confusion in another trademark infringement suit.

If permitted, Dr. Maronick will opine that the consumer survey conducted by Forest River’s

opinion witness, Dr. David Franklyn, features several flaws that render his conclusions without merit [86-

1 at 67 (expert report at 3)]. He will not offer an opinion about the likelihood of confusion. Forest River

challenges the admissibility of Dr. Maronick’s opinions on two grounds: he offers improper legal

conclusions and his opinions rest on speculation devoid of facts and a reliable method.

A. Legal Conclusions.

Forest River first argues that Dr. Maronick offers inappropriate legal conclusions. “An opinion

is not objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704(a). For instance,

“[e]xperts are permitted to testify regarding how their government agency applies rules as long as the

testimony does not incorrectly state the law or opine on certain ultimate legal issues in the case.” United

States v. Davis, 471 F.3d 783, 789 (7th Cir. 2006). But “Federal Rules of Evidence 702 and 704 prohibit

experts from offering opinions about legal issues that will determine the outcome of a case. . . . [Experts]

cannot testify about legal issues on which the judge will instruct the jury.” United States v. Burge, 711 F.3d

803, 813 n.5 (7th Cir. 2013); accord Jimenez v. City of Chi., 732 F.3d 710, 721 (7th Cir. 2013).

Forest River attacks as improper legal opinions section 4 of Dr. Maronick’s report in which he

gives conclusions under certain likelihood of confusion factors developed in another circuit, and section

6 in which he analyzes seven factors that courts use to evaluate consumer surveys—what he calls the

“Diamond” factors [see 86-1 at 68-70 (Ex. 2 at 4-6); 86-1 at 75-78 (Ex. 2 at 11-14)].1 In response, though,

inTech explains that Dr. Maronick will not opine on the likelihood of confusion, which the court

understands as a concession that this slate of opinions in section 4 (even as context) is no longer in

dispute and will not be offered. The court addresses then only the opinions in section 6 of his report.

inTech says Dr. Maronick will offer only his critique of Dr. Franklyn’s survey. In doing so, he

need not trace for the jury the seven factors in the reference guide as something courts do, or tell the jury

that judges often evaluate surveys using these factors. The court will instruct the jury as to how to weigh

the evidence, how to decide the credibility of witnesses, and how to assess any expert opinions. The

reference guide is not the law, and suggesting to the jury that it is would be not only improper under

Rules 702 and 704 but also prejudicially confusing under Rule 403. The reference guide is intended for

judges and perhaps counsel, but not juries. Accordingly, Dr. Maronick must confine his opinions to the

analysis of Dr. Franklyn’s survey; but, to the extent that these factors in evaluating surveys prove to be

factors that experts in his field would utilize to develop or assess such surveys, consistent with his

experience, he may articulate these factors as appropriate considerations. After all, it seems in material

measure that any critiques in this section 6 appear in section 7 of his report already.

B. Reliability.

Expert testimony must originate from reliable principles and methods. Fed. R. Evid. 702.

Scientific testimony may be validated if the theory or technique can be or has been tested, if it has been

subjected to peer review and publication, if it has a known or potential error rate, and if it enjoys general

acceptance in the relevant scientific community. Daubert, 509 U.S. at 593-94. These concerns may or may

not bear on technical or experience-based opinions, appreciating that the analysis remains ever nimble to

meet their substance, and so long as the witness “employs in the courtroom the same level of intellectual

1 Dr. Maronick calls these the Diamond factors because Shari S. Diamond enumerated these factors in the Reference

Manual on Scientific Evidence (2000), published by the Federal Judicial Center.

rigor that characterizes the practice of [the] expert in the relevant field.” Kumho Tire Co. v. Carmichal, 526

U.S. 137, 152 (1999); accord Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007).

Expert testimony also must be based on sufficient and known facts. Daubert, 509 U.S. at 590; Fed

R. Evid. 703; see, e.g., Wasson v. Peabody Coal Co., 542 F.3d 1172, 1176 (7th Cir. 2008) (evidence of one sale

was an insufficient basis to calculate an average of sales over twenty years). This data set need not be

“flaw-free.” Lees v. Carthage Coll., 714 F.3d 516, 525 (7th Cir. 2013) (quoting United States v. Mikos, 539

F.3d 706, 711 (7th Cir. 2008)). The court’s gatekeeping role doesn’t make it the trier of all facts that relate

to an opinion witness’s testimony. Stollings, 725 F.3d at 765; Smith v. Ford Motor Co., 215 F.3d 713, 718

(7th Cir. 2000). A “valid and properly applied methodology” may leave conclusions open to “doubt”—

that doubt that good trial lawyers explore in crossexamination and that the jury weighs and credits as it

sees fit as the factfinder. Stollings, 725 F.3d at 766. “Our system relies on cross-examination to alert the

jury to the difference between good data and speculation.” Schultz v. Akzo Nobel Paints, 721 F.3d 426, 432

(7th Cir. 2013).

The court’s analysis thus focuses on the methodology, not specific inputs. Manpower, Inc. v. Ins.

Co. of Pa., 732 F.3d 796, 807 (7th Cir. 2013). The “critical inquiry is whether there is a connection between

the data employed and the opinion offered” and whether the expert employed the kinds of facts or data

on which experts in the field would “reasonably rely.” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771,

781 (7th Cir. 2017) (emphasis removed); see also Fed. R. Evid. 703. “Talking off the cuff—deploying

neither data nor analysis—is not an acceptable methodology.” Lang v. Kohl’s Food Stores, Inc., 217 F.3d 919,

924 (7th Cir. 2000). “[I]t’s one thing to appreciate that a principle exists; it’s quite another to do one’s

homework and apply the principle reliably to a case to enable an opinion in federal court and to guide a

jury to answer the question in dispute.” Smith v. Nexus RVs, 472 F. Supp.3d 470, 480 (N.D. Ind. 2020).

“An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.”

Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005). His say-so won’t cut it. See

Kumho Tire, 526 U.S. at 157.

Dr. Franklyn conducted a Squirt survey to determine whether consumers of towable travel trailers

are likely to be confused by Forest River’s Della Terra and inTech’s Terra marks. After winnowing of a

larger data set to past or future purchasers of towable recreational vehicles from dealers within the United

States, respondents viewed images of travel trailers that differed depending on whether they had been

randomly classified as a “test” or “control” subject. Respondents answered two “buffer” questions early

to blind the study’s purpose and then later answered whether the later images were made by, affiliated

with, or sponsored by the company who made the first travel trailer—in this instance Forest River’s Della

Terra travel trailer. Dr. Franklyn opines that 11 percent of respondents displayed confusion—he says a

significant percentage—and that a majority of these respondents formed this confusion based on the

Terra mark or mountain design.

Forest River posits that Dr. Maronick should have conducted a rebuttal survey. An opinion

witness often need not replicate data or develop new data to offer rebuttal opinions about the gaps in

method or data that another Rule 702 witness employs. Under today’s circumstances, and the

commentary intended by Dr. Maronick, no additional survey was required. A rebuttal opinion witness

may critique another’s opinions “without offering alternatives,” 1st Source Bank v. First Res. Fed. Credit

Union, 167 F.R.D. 61, 65 (N.D. Ind. 1996), so long as that aids the jury in deciding a triable issue, see Fed.

R. Evid. 702; see generally Peals v. Terre Haute Police Dep’t, 535 F.3d 621, 630 (7th Cir. 2008) (concerning

proper function of rebuttal evidence). He cannot be a mouthpiece for the other expert’s opinions—as

occasionally even an opposing expert offers something important to the other side—but he may base his

opinions on the other’s information, and add to it his own, when the information is of the type that

experts in his field reasonably rely. Gopalratnam, 877 F.3d at 789; Dura Auto. Sys. of Ind., Inc. v. CTS Corp.,

285 F.3d 609, 613 (7th Cir. 2002); Ramsey v. CONRAIL, 111 F. Supp.2d 1030, 1038 (N.D. Ind. 2000); see

also Fed. R. Evid. 703. In rebuttal, Dr. Maronick says Dr. Franklyn’s survey has five flaws. Forest River

views each of these five critiques as unreliable and derivative merely of his say-so.

First, Dr. Maronick opines that a survey should begin with the right sample, but he says the

sample used by Dr. Franklyn (the entire United States population) was overbroad [86-1 at 77, 79-80 (Ex.

2 at 13, 15-16)]. He claims that Dr. Franklyn should have sampled individuals in the target market for

travel trailers, noting that 75 percent of travel trailer purchasers exceed age 45 and have a disposable

income above the national average. Dr. Franklyn reports that he took the U.S. population and set “rough

quotas . . . in line with census distributions for age, gender, and region” [86-2 at 26]. Dr. Maronick

provides in his report more details about how Dr. Franklyn winnowed the U.S. population to a suitable

sample, but says he omitted asking respondents whether they intended to purchase a mid-sized travel

trailer or a towable one requiring a high-performance truck [86-1 at 71 (Ex. 2 at 7)].

For his critique, Dr. Maronick offers more than just his say-so. He relies on a demographic profile

study of RV owners conducted by Ipsos in 2020. Ipsos appears to be a near-50-year international

company, publicly-traded in the European Union, with nearly 90 markets (including the United States),

that collects and compiles data for its clients to make decisions.2 Whether peer-reviewed or not, the court

cannot say just on its face that this study would not be in some measure authoritative or sufficient. It may

be that Dr. Maronick could be exposed in crossexamination for relying on an inappropriate data set to

mount his criticism, particularly when he has little working knowledge of this study’s development or

data, but weaknesses in his data are for crossexamination. See Manpower, 732 F.3d at 807; Stollings, 725

F.3d at 765-66. His data need not be “flaw-free.” Lees, 714 F.3d at 525.

Nothing demonstrates that this data would not be something reasonably relied upon by experts

in his field—in fact he says it would be used—so the critical inquiry is whether he connects this data to

his opinion, and he does so by saying Dr. Franklyn began with an overbroad (“not relevant”) sample. See

2 Ipsos also has affiliated with researchers at the University of Michigan and University of Chicago.

Gopalratnam, 877 F.3d at 781. Elsewhere in his opinions he explains the method for conducting a reliable

survey, which includes defining the representative sample from the universe of potential respondents.

Thus, aside from his credentials and experience, and the jury’s need to understand such surveys (hence

its fit), his opinion draws on some reputable data. His opinion may not fit so well as to explain to the jury

how this different sample would change the ultimate conclusion of the survey—he seems not to offer

that particular opinion in his report—but just because his opinion doesn’t fit this inquiry for the jury

doesn’t mean it won’t assist the jury to understand the importance of beginning with a proper sample.

Forest River’s concerns pertain to the weight of his opinion, not its admissibility.

Second, Dr. Maronick opines that Dr. Franklyn should have used a broader array of images of

competing trademarks rather than just a single control image (inTech Sol) and buffer image (Jayco Eagle),

for using just these two images magnified the likelihood of finding an association between Forest River’s

mark and inTech’s mark [86-1 at 78, 80-81 (Ex. 2 at 14, 16-17)]. Dr. Franklyn used a two-room format

where the respondents were first shown the Forest River Della Terra model in room one, and then were

shown two other images in room two, either the inTech Terra travel trailer (test group) or the Sol RV

(control group). Both groups also saw in room two a buffer image (the Jayco Eagle). Dr. Maronick notes

that these sequential images were shown one at a time rather than in an array. He cites two industry

articles that recommend showing respondents an array of competitive products and more than just two,

else closed-ended questions thereafter can skew responses substantially higher.3

Forest River argues that these opinions are unmoored to any data or methodology because Dr.

Maronick never performed his own survey and thus constitute merely his say-so. Not so—because, aside

from his credentials and the educative use of this opinion for the jury to understand this survey and to

assign it weight, he cites sufficient data and once more draws from all this his conclusion that the results

3 See Deborah Jay, He Who Steals My Good Name: Likelihood of Confusion Surveys in TTAB Proceedings 1147, The

Trademark Reporter (2014); Jerry B. Swann, Likelihood of Confusion Studies and the Straitened Scope of Squirt 749, The

Trademark Reporter (2008).

of the survey have been skewed. In doing so, he ties this data to the method built on what commonly

appear to be factors in evaluating surveys. Forest River may not like that method, and it may not like this

data or its commentary on the survey that Dr. Franklyn performed, and Dr. Franklyn may have a sound

retort to this critique, but these are the exercises of crossexamination and argument at trial, not questions

of admissibility under Rule 702. As before, he may rely on reliable other sources and even hearsay to

offer his opinions. See United States v. Conn, 297 F.3d 548, 554 (7th Cir. 2002) (expert testimony “need not

be based on first-hand knowledge of the facts of the case”).

Third, Dr. Maronick opines that Dr. Franklyn’s use of the inTech Sol RV as the control image

was so different from the Terra unit that it created a “cue” to respondents that the Della Terra and Terra

and were associated [86-1 at 78-79, 81-82 (Ex. 2 at 14-15, 17-18)]. He cites as a standard in the method

of conducting surveys that a control should share as many characteristics with the experimental stimulus

as possible, except for the characteristic that the survey wants to assess. He cites a survey authority and

an industry authority for this step in his method. More than this, he specifies in reviewing the images the

differences (size and configuration) that he believes skew the results. His experience in developing and

conducting such surveys, bolstered by these industry sources, provides him the reliable capability to do

so. In returning to the factors that guide his method of analysis, he has marshaled sufficient facts and

reliably applied this method in fashioning a critique of the survey. Whether the jury will find it credible,

well that’s for the jury, but Forest River’s concerns are for crossexamination and argument.

Fourth, Dr. Maronick opines that the use of two “irrelevant” questions between the respondents’

viewing of the Della Terra image and the images of the Terra, Sol, and Jayco units caused the respondents

to “guess” [86-1 at 73, 79, 82-83 (Ex. 2 at 9, 15, 18-19)]. He calls the intervening questions a modification

to the Squirt survey format, and once again offers more than his say-so by pointing to industry support

for his opinion, a factual basis found within Dr. Franklyn’s survey method, a factual basis within the

questions and responses, and the not-illogical concern that this method cued particular responses. His

method includes as a check-and-balance that survey questions be framed clearly and precisely to avoid

bias and to use control questions when appropriate, so his experience and facts speak not just to his

method but to an issue the jury might reasonably engage to evaluate the weight to give this survey. Forest

River’s concerns, in light of this, once more concern the weight of Dr. Maronick’s critique.

Fifth, Dr. Maronick disagrees with Dr. Franklyn that a 9 percent net difference of survey

respondents finding confusion between the Della Terra and Terra represents a significant likelihood of

confusion [86-1 at 74-75, 84 (Ex. 2 at 10-11, 20)]. Of course, the two proposed Rule 702 witnesses

compete on this point. In fairness, Dr. Maronick rather embarrassingly cannot recall whether he drew his

critique from the entirety of Dr. Franklyn’s analysis as opposed to a particular section [86-1 Tr.50-54],

but on this record that once more goes to a factual gap in his analysis suitable for crossexamination, not

outright exclusion. Dr. Maronick offers a formula for testing statistical significance. He never provides

the outcome of this formula in his report, but he provides a basis and method for testing his conclusion—

it is testable. Notably, he was never asked in deposition whether he actually ran the formula or the results

of doing so [id. Tr.53]. Built on a method for adjudging surveys, built further on a formula for adjudging

statistical significance, built further on data from Dr. Franklyn’s survey (even if a subset), and built on his

experience in conducting 300 surveys, then all aimed to assist the jury to understand not just the survey

but what it might tell a factfinder, the court cannot say his opinion here is inadmissible under Daubert.

CONCLUSION

Accordingly, the court GRANTS Forest River’s motion to exclude Dr. Maronick as it concerns

his conceded opinions and those in section 4 of his report, expecting the parties to hew to their

agreement, and DENIES the motion as to his critique of Dr. Franklyn’s survey, principally his five flaws

and conclusion from the survey [85].

SO ORDERED.

October 20, 2023 s/ Damon R. Leichty

Judge, United States District Court