Kopp Development Inc. v. Metrasens, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

Kopp Development, Inc., Case No. 1:21cv1216

Plaintiff,

-vs-

JUDGE PAMELA A. BARKER

Metrasens, Inc,

Defendant. MEMORANDUM OPINION & ORDER

On December 4, 2024, this Court issued an Order directing the parties to submit briefing

regarding the potential applicability of the presumption of damages to Plaintiff Kopp Development,

Inc.’s false advertising Lanham Act claim. (Doc. No. 53.) Plaintiff Kopp Development Inc.

(hereinafter “Plaintiff” or “KDI”) and Defendant Metrasens, Inc. (hereinafter “Defendant” or

“Metrasens”) filed their Opening Briefs on January 10, 2025. (Doc. Nos. 54, 55.) KDI and Metrasens

filed their Response Briefs on January 24, 2024. (Doc. Nos. 58, 59.)

For the following reasons, the Court finds that it cannot determine as a matter of law that KDI

is entitled to the presumption of damages. The applicability of that presumption will depend upon

the jury’s findings as to literal falsity and willful deception, as set forth herein.

I. Relevant Background1

Metrasens and KDI both manufacture ferromagnetic detectors. The purpose of such devices

is to detect magnetic items (such as iron) on a person’s body or clothing before the person enters a

1 The facts and procedural history of the instant action are set forth at length in this Court’s November 19, 2024

Memorandum Opinion & Order and will not be repeated in full herein. (Doc. No. 51.) Familiarity with this Court’s

November 19, 2024 Opinion is presumed.

room containing an MRI scanner. In approximately September 2018, Metrasens purchased a Kopp

Ferralert Solo unit from a third-party located in Singapore. (Simon Goodyear Depo. (Doc. No. 45-

19) at Tr. 78-79; Doc. No. 45-12 at PageID# 1822.) Metrasens provided the Kopp unit along with a

Metrasens Ferroguard Screener unit to a company called Intertek Testing & Certification, Ltd.

(“Intertek”) for comparison testing. (Goodyear Depo. at Tr. 80-81.) In May 2019, Intertek issued a

Test Report (the “Intertek Report.”) (Doc. No. 45-11.) The Intertek Report identified the Kopp unit

as a “Kopp Ferralert Solo” containing serial no. SL120217-01, and it identified the Metrasens’ unit

as a “Metrasens Ferroguard Screener” containing serial no. SCFG-04-0159. (Id. at PageID# 1809.)

The Intertek Report also included photographs of the Ferralert Solo and the Ferroguard Screener units

that were used in the testing. (Id. at PageID# 1810.) The Intertek Report concluded that “[t]he results

of the testing showed that the Metrasens Ferroguard Screener had a significantly higher detection rate

than the Kopp Ferralert Solo across the range of typical target objects.” (Id. at PageID# 1808.)

Metrasens created a summary of the Intertek Report (the “Summary”) entitled “Ferromagnetic

Detection Performance Comparison: Ferroguard Screener -vs- Kopp Ferralert Solo.” (Doc. No. 45-

14.) The Summary provided, in relevant part, as follows:

Ferromagnetic detection systems (FMDS) are not all the same. In an independent

testing-laboratory comparison of 570 presentations of 9 typical risk items, there was a

significant difference in the probability of items being detected, with Ferroguard

Screener detecting 96% of presentations for the complete risk-item set, compared with

75% probability of detection for Kopp Ferralert Solo.

. . .

KEY FINDING

For smaller risk-Items, Ferroguard Screener proved significantly more effective at

detecting threats to patient and staff safety and operational performance (94% of risk

items detected) than the Kopp Ferralert Solo (56% of risk items detected).

. . .

TESTING METHOD

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- Independent testing-laboratory [fn omitted]

- Standard, new, 2018 FMDS patient screening systems:

Metrasens Ferroguard Screener;

Kopp Development Ferralert Solo

- Each product set at MAX sensitivity

- Identical, 360⸰ turn screening protocol

(Id. at PageID#1846)(emphasis added).2 The Summary also contained two comparative charts

demonstrating metrics upon which Metrasens’ product outperformed KDI’s product. (Id.) Below

the first chart, the Summary provided:

• For the smaller ferrous items typically encountered during MR patient screening,

Ferroguard Screener detected 94% vs just 56% by Kopp Ferralert Solo.

• Kopp Ferralert Solo missed significantly more ferrous risk-items at every body

location tested, most especially at the feet area where detection performance was

<50% that of Ferroguard Screener.

(Id.) On July 29, 2019, Colin Robertson, Metrasens’ then-Senior Vice President of Sales &

Marketing, emailed the Summary to Metrasens’ sales team and told them to “feel free to share with

customers and distributors/partners.” (Doc. No. 45-18 at PageID# 2137.)

KDI’s Owner, Keith Kopp, testified (on behalf of KDI as a Rule 30(b)(6) witness) that the

Ferralert Solo unit that Intertek tested was an early prototype from when the product was first released

in 2012. (Kopp 30(b)(6) Depo. I (Doc. No. 45-23) at Tr. 20-21.) Mr. Kopp further testified that KDI

had made several improvements to the Ferralert Solo product since 2012. (Id. at Tr. 20; 38-39, 40-

41.) At some time in late 2020, Mr. Kopp and Metrasens’ CEO and co-founder, Simon Goodyear,

2 Metrasens also posted a statement about the Intertek Report on its website (the “Statement”) that provided in relevant

part: “DETECT THE RISK OTHER SYSTEMS MISS. Independent testing-laboratory study[fn] comparing the

performance of Ferroguard Screener in detecting smaller, commonly encountered risk items, against the performance of

the other most frequently seen whole-body FMDS [ferromagnetic detection systems]. . . . Only Ferroguard Screener uses

Fluxgate sensors, making it the most sensitive FMDS available.” (Doc. No. 45-20 at PageID# 2277.) The footnote to

the foregoing provided: “Intertek Testing & Certification Performance Laboratory. (2019) Full report available from

Metrasens.” (Id. at PageID# 2280.)

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had a conversation about the Intertek Report, during which Mr. Kopp told Mr. Goodyear that the

Ferralert Solo unit that Intertek tested was an “old” version. (Doc. No. 45-21 at PageID# 2283.) On

January 25, 2021, Mr. Goodyear sent an email to Mr. Kopp, in which he stated (in relevant part) as

follows:

I wanted to follow up on a couple of issues you brought up in our conversation prior

to Christmas. In particular your suggestion that Metrasens has behaved inappropriately

with the lntertek comparative study data. ***

Your second point on this topic was that the Kopp Development product used in the

study was an 'old' version. Although I have been unable to confirm the manufacturing

date of the product, we believe the comparative study was fair, with a current version

of your product, available on the market at that time. However, if you are willing to

confirm the age of the product and indicate evidence of modifications or upgrades to

the commercially available system at that time that you believe would impact the

detection results then Metrasens would be agreeable to resubmit the latest Metrasens

Screener product to be tested by lntertek alongside a recently manufactured Ferralert

Solo product. Should the conclusions of the new report be substantially different from

their last report then Metrasens would withdraw the previous lntertek report from

circulation on our website.

(Id. at PageID# 2282-2283.) The following day, Mr. Kopp replied, via email, as follows:

I must confess…that your response was very unsatisfactory. You admit that you were

unable to confirm the manufacturing date of our detector. Yet on your literature under

lntertek TEST METHOD, you stated the following: "Standard, new 2018 FMDS

patient screening systems: Metrasens Ferroguard Screener: Kopp Development

Ferralert Solo."

The lntertek test report did indicate the serial number of our product. The FerrAlert®

Solo tested was manufactured in 2012. By your own admission, you did not now [sic]

the date of manufacture yet you claimed that it was new, standard and a 2018 model.

We take the publishing of knowingly false information very seriously since it has

damaged our reputation and potentially cost us sales.

(Id. at PageID# 2281.) Mr. Goodyear testified that, aside from the above email, Mr. Kopp did not

provide any evidence of the date of manufacture of the Ferralert Solo product that was tested by

4

Intertek. (Goodyear Depo. at Tr. 88-89, 108-109.) References to the Intertek Report remained on

Metrasens’ website until approximately September 1, 2023. (Doc. No. 40-1 at PageID# 1290.)

Meanwhile, on June 21, 2021, KDI filed a Complaint against Metrasens asserting claims for

false advertising under the Lanham Act, tortious interference with business relations, negligent

misrepresentation, and defamation.3 (Doc. No. 1.) Therein, KDI alleges that it has been damaged by

loss of income and damage to its reputation as a direct result of Metrasens’ publishing, marketing, or

advertising of false information regarding KDI’s products. (Id. at ¶¶ 43, 48, 54.) In addition to money

damages, KDI requests an order enjoining Metrasens from “publishing, advertising, marketing and/or

promoting any false or misleading information regarding [KDI’s] products.” (Id. at Prayer for Relief.)

On June 26, 2024, Metrasens filed a Motion to Exclude Expert Testimony of Plaintiff’s

Damages Expert John Burke, Ph.D., and for Summary Judgment as to All Claims. (Doc. No. 42.)

Therein, Metrasens argued that KDI could not show a genuine issue of material fact regarding either

the existence or amount of its damages.4 (Id.) Metrasens further asserted that KDI’s request for

injunctive relief is moot because Metrasens removed the Intertek Report and all references thereto

from its website and agreed not to use the Intertek Report or its information in the future. (Id.)

KDI opposed Metrasens’ Motion. (Doc. No. 45.) Regarding the existence of damages, KDI

contended that damages should be presumed for its false advertising claim under the Lanham Act

because Metrasens targeted KDI with a false advertisement that Metrasens knew to be false. (Id.)

Alternatively, KDI contended that, even if there is no presumption of damages, the record raised a

3 KDI also asserted claims for patent infringement (Count V) and declaratory judgment of noninfringement (Count VI).

Those claims, however, were subsequently dismissed. (Doc. Nos. 23, 43.)

4 In this regard, Metrasens argued that the testimony of KDI’s damages expert, Dr. Burke, should be excluded as unreliable

under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). (Id.)

5

genuine issue of material fact that Metrasens proximately caused damage to KDI. (Id.) Regarding

the amount of its damages, KDI argued that, even if the testimony of its damages expert, Dr. Burke,

was excluded, KDI’s President, Keith Kopp, was competent to testify regarding KDI’s lost business

and reduced revenue. (Id.) Lastly, KDI maintained that it still requests injunctive relief and is not

required to accept Metrasens’ word that it will no longer use the Intertek Report. (Id.)

In its Reply Brief, Metrasens argued, in relevant part, that the presumption of damages does

not apply because KDI cannot show literal falsity and bad faith. (Doc. No. 47.) Alternatively,

Metrasens asserted that if, even if the presumption does apply, KDI still cannot show either an injury

in fact or the amount of its marketplace damages. (Id.)

On November 19, 2024, this Court issued a Memorandum Opinion & Order granting in part

and denying it in part Metrasens’ Motion. (Doc. No. 51.) The Court first addressed whether there is

a genuine issue of material fact regarding the existence of KDI’s damages. After setting forth the

elements of a Lanham Act false advertising claim, the Court determined that it was not necessary to

determine the applicability of the presumption of damages to resolve Metrasens’ Motion, explaining

as follows:

Regardless of whether the presumption of damages applies, the Court must still

determine whether there is a genuine issue of material fact regarding KDI’s actual

damages. Specifically, even if the Court were to determine that the presumption

applies, it must still determine whether Metrasens has rebutted the presumption by

demonstrating the absence of actual damages. See Innovation Ventures, 529 F. App’x

at 566. Moreover, the presumption would not apply to KDI’s three non-Lanham Act

claims [i.e., tortious interference, negligent misrepresentation, and defamation]. The

Court acknowledges that KDI, in its Brief in Opposition, requests that the Court find

that “Metrasens’ conduct warrants a presumption of damages whereby Metrasens will

bear the burden at trial to prove that it did not cause damage to KDI and further bear

the burden of disproving the damages asserted by KDI.” (Doc. No. 45, PageID#1644.)

However, KDI has not filed a motion seeking such relief. Courts have held that it is

improper to ask a court for affirmative rulings in a response brief opposing a motion

for summary judgment. See Douglas v. Pere Marquette Shipping Co., 2015 WL

6

5159432 at *3 (E.D. Mich. Sept. 2, 2015). Accordingly, the Court will proceed to

determining whether there is a genuine issue of material fact regarding KDI’s actual

damages.

(Id. at p. 16.) The Court concluded that, with respect to KDI’s Lanham Act claim, there was a genuine

issue of material fact as to whether Metrasens’ advertisements proximately caused KDI to lose

business from the University of Pittsburgh Medical Center (“UPMC”), one of KDI’s existing

customers. (Id. at pp. 22-25.) The Court further found that, “viewing Mr. Kopp’s testimony regarding

KDI’s reduced revenue in conjunction with the evidence discussed above regarding KDI’s loss of

business with UPMC, the record demonstrates a genuine issue of material fact regarding whether

Metrasens’ advertisements caused KDI to experience damages in the form of reduced revenue for

purposes of its Lanham Act claim.” (Id. at p. 27.) Lastly, the Court determined that, “as the Court

concludes that the record demonstrates that there is a genuine issue of material fact regarding the

existence of damages for KDI’s Lanham Act claim, the same is true with respect to KDI’s Ohio tort

claims.” (Id. at p. 28.) Thus, the Court denied Metrasens’ Motion regarding the existence of KDI’s

damages for both its Lanham Act and Ohio tort claims. (Id.)

Regarding the amount of KDI’s damages, the Court first concluded that KDI could not rely

on Dr. Burke’s opinion regarding the amount of KDI’s damages based on KDI’s projected sales

figures because Dr. Burke’s testimony was not reliable under Fed. R. Evid. 702 and Daubert.5 (Id.

5 Regarding KDI’s argument that Dr. Burke should be permitted to testify regarding the capitalization of KDI’s losses,

the Court found, in relevant part, as follows: “[I]n the event that KDI introduces admissible evidence at trial that it

suffered a projected loss of revenue in a reasonably certain amount as a result of Metrasens’ advertisements, the Court

will consider allowing Dr. Burke to testify regarding the capitalization of that amount of damages. Any testimony by Dr.

Burke on this issue would be contingent, however, on KDI’s presentation of admissible evidence establishing both a

reasonably certain amount of projected damages, as well as a reasonable period of time over which to capitalize any such

projected damages. The Court concludes that it is premature to resolve this issue at this time and will address the

permissible scope and nature of any such testimony, if and as necessary, at a later stage of the proceedings.” (Id. at p. 42.)

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at p. 36-38.) The Court then rejected Metrasens’ argument that KDI’s only evidence regarding the

amount of its damages is the testimony of Dr. Burke, explaining as follows:

As discussed supra, the Court has found that there are genuine issues of material fact

regarding KDI’s claims that, as a result of Metrasens’ allegedly false advertisements,

it suffered damages in the form of loss of business from UPMC and reduced revenue.

At trial, KDI will have the opportunity to introduce evidence to demonstrate, with

reasonable certainty, the amount of its actual damages associated with its alleged

reduced revenue and/or loss of the UPMC business. For example, KDI may seek to

introduce testimony from Mr. Kopp and/or other KDI employees (such as Anna Srb)

regarding the dollar value of the specific lost sales to UPMC that are referenced in the

February 2021 emails between Ms. Srb and UPMC Project Manager Heather Yahn.

(Doc. No. 45-5, PageID#s 1759-1763.) KDI may also seek to introduce documentary

evidence (in the form of contracts, sales invoices, etc.) to support the amount of actual

damages that it allegedly suffered as a result of this loss of UPMC business. Regarding

its alleged lost revenues, KDI may seek to introduce testimony from Mr. Kopp and/or

other KDI employees regarding KDI’s sales figures/revenue before and after

Metrasens began using its allegedly false advertisements. KDI may also seek to

introduce documentary evidence (such as Mr. Kopp’s damages summary (Doc. No.

45-3) and KDI’s Profits and Loss Statements, for example) to further attempt to prove

a reduction in revenue as a result of Metrasens’ use of the Intertek Report and

Summary.

(Id. at pp. 43-44.) Lastly, the Court rejected Metrasens’ argument that KDI’s request for injunctive

relief is moot. (Id. at pp. 48-51.)

The Court set the Final Pretrial for February 11, 2025 and jury trial to commence on March

18, 2025. (Doc. No. 50.) Recognizing that the potential applicability of the presumption of damages

to KDI’s Lanham Act claim may affect the parties’ trial preparations, the Court conducted a

telephonic status conference on December 4, 2024 to discuss a briefing schedule regarding that issue.6

Specifically, the Court ordered the parties to submit briefing regarding the following two, specific

issues:

6 The Court also discussed with counsel the potential for mediation. Counsel for KDI indicated that he did not believe

that mediation would be fruitful. Therefore, the Court did not refer this matter to mediation before the Magistrate Judge.

8

1. For a false advertising claim under the Lanham Act, does the Sixth Circuit

require both literal falsity and deliberate intent/bad faith for a presumption of

money damages to apply? Or is literal falsity related to a different element of

a Lanham Act false advertising claim?

2. Is the presumption of damages a legal issue, factual issue, or both?

(Doc. No. 53) (emphasis in original). KDI and Metrasens thereafter submitted their Opening Briefs

on January 10, 2025, followed by their Responsive Briefs on January 24, 2025. (Doc. Nos. 54, 55,

58, 59.)

II. Analysis

A. Legal Background

Prior to addressing the parties’ specific arguments, the Court begins with a discussion of the

legal standards relating to KDI’s false advertising claim. The Lanham Act provides in relevant part

as follows:

(1) Any person who, on or in connection with any goods or services, or any container

for goods, uses in commerce any word, term, name, symbol, or device, or any

combination thereof, or any false designation of origin, false or misleading description

of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,

connection, or association of such person with another person, or as to the origin,

sponsorship, or approval of his or her goods, services, or commercial activities by

another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics,

qualities, or geographic origin of his or her or another person’s goods, services, or

commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely

to be damaged by such act.

15 U.S.C. § 1125(a). In order to establish a false-advertising claim under the Lanham Act, the

plaintiff must establish the following five elements: “(1) the defendant has made false or misleading

9

statements of fact concerning his own product or another’s; (2) the statement actually or tends to

deceive a substantial portion of the intended audience; (3) the statement is material in that it will

likely influence a deceived consumer’s purchasing decisions; (4) the advertisements were introduced

into interstate commerce; and (5) there is some causal link between the challenged statements and

harm to the plaintiff.” Balance Dynamics Corp. v. Schmitt Indus., 204 F.3d 683, 689 (6th Cir. 2000)

(quoting Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric Surgery,

Inc., 185 F.3d 606, 613 (6th Cir. 1999)).

Regarding the first element, the Sixth Circuit has emphasized that “only statements of fact are

actionable.” FedEx Ground Package System, Inc. v. Route Consultant, Inc., 97 F.4th 444, 453 (6th

Cir. 2024). “That is, the statement must assert a ‘specific and measurable claim, capable of being

proved false or of being reasonably interpreted as a statement of objective fact.’” Id. (quoting Pizza

Hut, Inc. v. Papa John's Int'l, Inc., 227 F.3d 489, 496 (5th Cir. 2000)). In other words, one can prove

the statement true or false through “empirical verification.” Id. (quoting Presidio Enters., Inc. v.

Warner Bros. Distrib. Corp., 784 F.2d 674, 679 (5th Cir. 1986)). Statements of opinion will not

support a false-advertising claim. Am. Council, 185 F.3d at 614. See also FedEx Ground Package

System, Inc., 97 F. 4th at 453.

Regarding “[t]he third and fifth elements [i.e.,] deception and injury,” the Sixth Circuit has

explained that these elements “are both components of causation generally.” Am. Council, 185 F.3d

at 614. “The deception [or third] element asks whether the defendant’s misstatements caused the

consumer to be deceived.” Id. “The injury [or fifth] element asks whether the defendant’s deception

of the consumer caused harm to the plaintiff.” Id. Notably, “the sort of proof of these elements a

10

plaintiff must show varies depending upon whether damages or injunctive relief is sought.” Balance

Dynamics Corp., 204 F.3d at 689.

In Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric Surgery,

Inc., 185 F.3d 606 (6th Cir.1999), the Sixth Circuit examined the proof necessary to satisfy the

deception element where (as here) a plaintiff seeks marketplace damages. There, the Sixth Circuit

held as follows:

When a plaintiff seeks an award of monetary damages for false or misleading

advertisement under the Lanham Act, he may show either that the defendant's

advertisement is literally false or that it is true yet misleading or confusing. Where

statements are literally false, a violation may be established without evidence that the

statements actually misled consumers. Actual deception is presumed. Where

statements are literally true, yet deceptive, or too ambiguous to support a finding of

literal falsity, a violation can only be established by proof of actual deception (i.e.,

evidence that individual consumers perceived the advertisement in a way that misled

them about the plaintiff's product). A plaintiff relying upon statements that are

literally true yet misleading “cannot obtain relief by arguing how consumers could

react; it must show how consumers actually do react.” Sandoz Pharm. Corp. v.

Richardson–Vicks, Inc., 902 F.2d 222, 229 (3d Cir.1990).

Id. at 614 (internal citations omitted) (emphasis added).7 See also LidoChem, Inc. v. Stoller

Enterprises, Inc., 500 Fed. Appx. 373, 380 (6th Cir. 2012); Innovation Ventures, LLC v. N.V.E., Inc.,

694 F.3d 723, 735-736 (6th Cir. 2012).

“The standard for proving literal falsity is rigorous.” Buetow v. A.L.S. Enterprises, Inc., 650

F.3d 1178, 1185 (8th Cir. 2011). See also Select Comfort Corp. v. Baxter, 996 F.3d 925, 938 (8th

Cir. 2021) (same). A literally false statement is one that is “’bald-faced, egregious, undeniable, over

7 By contrast, the Sixth Circuit has noted that “’injunctive relief may be obtained by showing only that the defendant's

representations about its product have a tendency to deceive consumers while recovery of damages requires proof of

actual consumer deception.’” Id. (quoting Max Daetwyler Corp. v. Input Graphics, Inc., 608 F.Supp. 1549, 1551

(E.D.Penn.1985)) (emphasis added). “This lower standard has arisen because when an injunction is sought, courts may

protect the consumer without fear of bestowing an undeserved windfall on the plaintiff.” Id.

11

the top.’” FedEx Ground Package System, Inc., 97 F.4th at 453 (quoting Schering-Plough Healthcare

Prods., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500, 513 (7th Cir. 2009)). Moreover, a literally false

statement must convey “an unambiguously deceptive” meaning. Id. See also Wysong Corp. v. APN,

Inc., 889 F.3d 267, 270 (6th Cir. 2018). Thus, a statement is not literally false if it reasonably conveys

different messages. FedEx Ground Package System, Inc., 97 F.4th at 453. In evaluating a challenged

statement, courts should consider the statement in its entirety and in its full context. Id. See also

Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723, 735-736 (6th Cir. 2012) (“’A ‘literally false’

message may be either explicit or ‘conveyed by necessary implication when, considering the

advertisement in its entirety, the audience would recognize the claim as readily as if it had been

explicitly stated.’”) (quoting Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer

Pharm. Co., 290 F.3d 578, 586–87 (3d Cir. 2002)).

As noted above, if a plaintiff seeking marketplace damages is unable to show that an

advertisement is literally false, it may instead show that the advertisement is “literally true, yet

misleading or confusing.”8 Am. Council, 185 F.3d at 614. See also FedEx Ground Package System,

Inc., 97 F.4th at 453-454. In these instances, the plaintiff must prove actual deception to satisfy the

second element of a Lanham Act false advertising claim. See Innovation Ventures, LLC, 694 F.3d at

735; FedEx Ground Package System, Inc., 97 F.4th at 454. “Proof of actual deception requires

demonstrating that consumers were actually deceived by the defendant's ambiguous or true-but-

misleading statements.” Am. Council, 185 F.3d at 616. Moreover, “[t]here must be evidence that a

8 A misleading statement is “literally true, yet deceptive, or too ambiguous to support a finding of literal falsity[.]” Am.

Council, 185 F.3d at 614. See also FedEx Ground Package System, Inc., 97 F.4th at 454.

12

‘significant portion’ of the consumer population was deceived.”9 Id. (quoting William H. Morris Co.

v. Group W, Inc., 66 F.3d 255, 258 (9th Cir.1995)).

Regarding the proof necessary to establish the fifth (or injury) element, the Sixth Circuit has

explained as follows:

[F]or purposes of comparative advertising, we have recognized a limited exception to

the general rule that a false-advertising plaintiff must prove damages. In Balance

Dynamics Corp. v. Schmitt Industries, Inc., we adopted the reasoning of an Eighth

Circuit case that presumed damages in instances of willful deception. 204 F.3d 683,

694–95 (6th Cir.2000) (quoting Porous Media Corp. v. Pall Corp., 110 F.3d 1329,

1336 (8th Cir.1997)). We stressed, however, that the presumption “extend[s] only to

cases of comparative advertising where the plaintiff's product was specifically

targeted,” explaining that “[o]therwise ... ‘a plaintiff might enjoy a windfall from a

speculative award of damages by simply being a competitor in the same market.’” Id.

at 694 (quoting Porous Media, 110 F.3d at 1334–35). Recognizing this boundary, we

found the presumption overcome by evidence of no marketplace injury. Id. at 695.

Innovation Ventures, LLC v. Bhelliom Enterprises Corp., 529 Fed. Appx. 560, 566 (6th Cir. 2013).

See also Balance Dynamics Corp., 204 F.3d at 693-694 (permitting presumption of damages where

there is proof of willful deception but only in “cases of comparative advertising where the plaintiff’s

product was specifically targeted.”) Such presumption may be overcome by evidence of no

marketplace injury. See Innovation Ventures, LLC, 529 Fed. Appx. at 566 (citing Balance Dynamics

Corp., 204 F.3d at 695).

B. Analysis

At the outset, the Court notes that one of the reasons it ordered supplemental briefing was to

provide the parties the opportunity to address whether literal falsity is, in fact, required for the

presumption of damages to apply under Sixth Circuit precedent. Rather than addressing this issue,

9 “Successful plaintiffs usually present evidence of the public’s reaction through consumer surveys.” Am. Council, 185

F.3d at 616. See also FedEx Ground Package System, Inc., 97 F.4th at 454 (“Plaintiffs typically prove deception using

consumer surveys”).

13

both KDI and Metrasens assert (without further discussion or elaboration) that KDI must demonstrate

that Metrasens’ advertisement is literally false for the presumption of damages to apply to KDI’s

request for marketplace damages.10 See Doc. Nos. 54, 55, 58, 59. The Court is not entirely convinced

that the Sixth Circuit has clearly found this to be the case.11 However, given that the parties do not

argue otherwise, the Court deems this issue waived and will assume that KDI must show that

Metrasens’ advertisement is literally false for the presumption of damages to apply.

While the parties agree that KDI must show literal falsity, the parties disagree on what

additional showings KDI must make for the presumption of damages to apply. KDI argues that

“[w]hile the combination of literal falsity with bad faith certainly results in a presumption of money

damages, and those facts exist in this matter, Sixth Circuit precedent also provides that literal falsity

combined with targeted advertising against a main competitor also warrants a presumption of money

damages.” (Doc. No. 54 at PageID# 2682.) KDI then goes on to argue that the presumption of

damages applies in the instant case “under either approach.” (Id.)

10 Both KDI and Metrasens also made this assumption in their summary judgment briefing. See Defendant’s Reply Brief

(Doc. No. 47) at PageID# 2576 (“In fact, the relevant presumption of damages recognized by the Sixth Circuit in Balance

Dynamics requires both an intent to deceive and literal falsity.”); KDI’s Motion for Leave to File Sur-Reply (Doc. No.

49-1) at PageID# 2611 (“The Presumption of Damages Requires that the Advertisement be Literally False”).

11 Neither Balance Dynamics Corp., supra nor Innovation Ventures LLC v. Bhelliom Enterprises, supra expressly hold

that a plaintiff must show literal falsity for the presumption of damages to apply. In Balance Dynamics, the Sixth Circuit

noted that “in certain circumstances, the literal falsity of an advertisement or evidence of deliberate intent or bad faith

has sufficed to entitle plaintiff to certain forms of relief or to create a presumption of damages in the marketplace.”

Balance Dynamics Corp., 204 F.3d at 693 (emphasis added). In Innovation Ventures LLC v. Bhelliom, supra, the Sixth

Circuit did not mention literal falsity and instead noted that it permitted the presumption of damages “in instances of

willful deception” but only “in cases of comparative advertising where the plaintiff’s product was specifically targeted.”

Innovation Ventures, LLC v. Bhelliom, 529 Fed. Appx. at 566. It is true that some of the challenged statements in Balance

Dynamics Corp., supra and Innovation Ventures LLC v. Bhelliom Enterprises, supra were literally false. However, the

fact that literal falsity was present in these cases does not necessarily mean that it is required for the presumption of

damages to apply.

14

KDI first argues that courts in this Circuit have applied the presumption of damages without

a finding of intent on the part of the defendant “where the literally false statement was targeted at a

direct competitor.” (Id. at PageID# 2683.) KDI asserts that Metrasens’ conduct satisfies this test

because Metrasens produced a comparative study (i.e., the Intertek Report) which contained literal

falsities and specifically targeted KDI “by name and product.” (Id. at PageID# 2684.) Based on this

alleged conduct, KDI asserts that Metrasens “can and should be found, as a matter of law, to have

literally falsely advertised” and the trial in this matter should proceed solely for the purpose of

calculating KDI’s damages.12 (Id.)

KDI next argues that, even if deliberate intent/bad faith is required for the presumption of

damages to apply, Metrasens’ conduct satisfies this test. (Id. at PageID#s 2684-2685.) Specifically,

KDI argues that “Metrasens demonstrated recklessness amounting to willfulness” when it (1)

purchased the Kopp Ferralert Solo product despite knowing that the supplier “had been known in the

past to provide old stock;” and then (2) “willfully put out an ad” saying that the KDI product was a

“Standard, new, 2018” model “with no support to label it as such.” (Id.) KDI further asserts that

willfulness is shown by Metrasens’ decision to “keep up the campaign and continue to publish after

express notice that the message was literally false.” (Id.) Lastly, KDI asserts that “both the question

of literal falsity and reckless/willful conduct are determinations that are made as a matter of law.”

(Doc. No. 58 at PageID# 2710, 2712-2714.)

12 Going well beyond the scope of this Court’s briefing Order, KDI maintains that a finding of literal falsity satisfies the

second and third elements of its Lanham Act false advertising claim and, therefore, it is also entitled to a presumption of

actual deception and materiality. (Id. at PageID# 2687-2689, 2694.) KDI requests “leave to present the issue in the form

of a motion for summary judgment” or, alternatively, that this Court construe KDI’s Opening Brief as a motion for

summary judgment. (Id.) For the reasons discussed at greater length below, KDI’s requests are wholly improper and

denied.

15

Metrasens disputes that literal falsity in targeted advertising cases is sufficient to establish a

presumption of damages and maintains that “governing precedent in the Sixth Circuit permits a

presumption of damages only if both literal falsity and deliberate intent/bad faith are shown.” (Doc.

No. 55 at PageID#s 2695, 2698-2699; Doc. No. 59 at PageID# 2717.) Metrasens asserts that the

existence of deliberate intent constitutes a question of fact that must be submitted to the jury. (Doc.

No. 55 at PageID# 2699-2700.) Metrasens argues that literal falsity, on the other hand, is a mixed

question of fact and law. (Id. at PageID# 2700.) Specifically, Metrasens maintains that “the factual

issue of product performance cannot be resolved at this point in the litigation (the ‘falsity’ question)

but whether the statement is ambiguous is indeed a question of law for this Court.” (Doc. No. 59 at

PageID# 2721.) Finally, Metrasens asserts that, to the extent KDI requests that this Court “resolve

the fact issue of willfulness” in the context of the parties’ supplemental briefing, such request should

be denied as procedurally improper since KDI failed to timely file a summary judgment motion on

this issue. (Id. at PageID# 2719.)

The Court will begin by addressing the parties’ arguments that Metrasens’ false advertisement

is literally false and will then consider the issue of deliberate intent/bad faith.

1. Literal Falsity

KDI argues that Metrasens’ statement in its Summary of the Intertek Report (Doc. No. 45-14)

that the models used in the test comparison were the “Standard, new, 2018 FMDS patient screening

systems: Metrasens Ferroguard Screener; Kopp Development Ferralert Solo” is literally false. (Doc.

No. 54 at PageID# 2691.) KDI asserts that the Kopp product that was tested by Intertek was, in fact,

manufactured in 2012 (not 2018) and was not the model that KDI was selling at the time of the

Intertek testing. (Id. at PageID# 2692) (citing Doc. No. 45-21 at PageID# 2281; Kopp Depo. (Doc.

16

No. 45-23) at Tr. 10.) KDI asserts that “the only reasonable reading of the [Summary] shows that

Metrasens falsely stated that they performed a comparison test on the two competing products

customers would be considering at that time.” (Doc. No. 54 at PageID# 2692.) KDI further maintains

that “’2018’ is a literally false manner to describe the tested KDI 2012 ferromagnetic scanner” and

“leads all reasonable people, not just those within the industry, but anyone reading the ad to believe

that the Intertek Report tested the product KDI was selling at the time against the product Metrasens

was selling at the time.” (Id. at PageID# 2693.) Thus, KDI argues that this Court can find, as a matter

of law, that the challenged statement in the Summary is literally false.

In response, Metrasens argues that the challenged statement is not literally false because

“nothing about the statement purports to state the date of manufacture for the product.” (Doc. No. 59

at PageID# 2721.) Rather, Metrasens asserts, “the statement could easily mean, and would be true,

as to products that are ‘standard’ (unmodified and not special order) and ‘new 2018’ systems (newly

purchased in 2018 and not previously owned or used).” (Id.) Because there is a reasonable alternative

to KDI’s interpretation of the challenged statement, Metrasens argues that the statement does not

have an “unambiguously deceptive meaning” and, therefore, is not literally false. (Id.) See also Doc.

No. 47 at PageID# 2577.

As noted supra, to be literally false, plaintiff must show that the statement is “’bald-faced,

egregious, undeniable, over the top’” and conveys “an unambiguously deceptive” meaning. FedEx

Ground Package System, Inc., 97 F.4th at 453 (quoting Schering-Plough Healthcare Prods., Inc.,

586 F.3d at 513). See also Wysong Corp, 889 F.3d at 270. “[P]laintiffs alleging a literal falsehood

are claiming that a statement, on its face, conflicts with reality, a claim that is best supported by

comparing the statement itself with the reality it purports to describe.” 5 McCarthy on Trademarks

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and Unfair Competition § 27:56 (5th ed.) (quoting Schering Corp. v. Pfizer Inc., 189 F.3d 218, 229

(2d Cir. 1999), as amended on reh'g, (Sept. 29, 1999)). See also Shepard & Associates, Inc. v. Lokring

Technology, Inc., 2023 WL 5412457 at * 17 (N.D. Ohio Aug. 21, 2023).

“Courts should consider the challenged statement in its entirety and in ‘full context.’” FedEx

Ground Package System, Inc., 97 F.4th at 454 (quoting United Indus. Corp. v. Clorox Corp., 140

F.3d 1175, 1180 (8th Cir. 1998)). “A ‘literally false’ message may be either explicit or ‘conveyed by

necessary implication when, considering the advertisement in its entirety, the audience would

recognize the claim as readily as if it had been explicitly stated.’” Innovation Ventures, LLC v. N.V.E.,

694 F.3d at 735-736 (quoting Novartis Consumer Health, Inc., 290 F.3d at 586–87). Moreover, and

as noted supra, “only statements of fact are actionable” in a false advertising claim. FedEx Ground

Package System, Inc., 97 F.4th at 453.

The initial determination of whether the challenged statement is too ambiguous to support a

finding of literal falsity, is a matter of law. See Am. Council, 185 F.3d at fn 2; ACT, Inc. v. Worldwide

Interactive Network, 2020 WL 12574239 at * 32 (E.D. Tenn. March 10, 2020). However, the

determination as to “whether facts exist to justify the statement is a question of fact.” Am. Council,

185 F.3d at fn 2. See also Service Jewelry Repair, Inc. v. Cumulus Broadcasting LLC, 145 F.Supp.3d

737, 746 (M.D. Tenn. 2015).

For the following reasons, the Court finds that Metrasens’ statement that the models used in

the test comparison were the “Standard, new, 2018 FMDS patient screening systems: Metrasens

Ferroguard Screener; Kopp Development Ferralert Solo” (Doc. No. 45-14) (hereinafter “the

challenged statement”) is not ambiguous. The Court first notes that the challenged statement is a

statement of fact (not opinion) because a person can objectively verify whether the Kopp product

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used in the Intertek test comparison is a “standard, new, 2018 FMDS patient screening system.” See

FedEx Ground Package System, Inc., 97 F.4th at 455. In other words, the challenged statement is a

“specific and measurable claim, capable of being proved false or of being reasonably interpreted as

a statement of objective fact.” Id. at 453.

The Court further finds that, when read in its full context, the meaning of the challenged

statement is not ambiguous. According to Metrasens, the Intertek comparison testing was intended

to provide “true, factual data” to “the hospitals who are making the decisions to purchase these

products” to allow them to “understand very well the performance of those products.” (Goodyear

Depo. at Tr. 77.) The Summary sets forth the results of that testing and clearly states that Intertek’s

testing compared “standard, new, 2018 FMDS patient screening systems” from Metrasens and Kopp.

The Court concludes that, in this context, any reasonable consumer of MRI screeners would interpret

the statement “standard, new, 2018 FMDS patient screening systems” as meaning that the KDI

product involved in the testing was (1) standard; (2) new; and (3) manufactured and sold by KDI in

2018.

The Court rejects Metrasens’ argument that the challenged statement is not “bald-faced,

egregious, undeniable, or over the top” because it does not “purport to state the date of manufacture

for the KDI Ferralert Solo” and, therefore, the reference to “new, 2018” could reasonably be

interpreted to mean that the KDI product was newly purchased in 2018. (Doc. No. 59 at PageID#

2721.) As noted above, Metrasens concedes that the purpose of the Intertek testing was to allow

hospitals to compare the current performance of the competing KDI and Metrasens products. Read

in this context, the Court finds that the juxtaposition of “new” and “2018” in the challenged statement

19

clearly and unambiguously conveys that the KDI Ferralert Solo and the Metrasens Ferroguard

Screener tested by Intertek were new products that were manufactured in 2018.

That does not end the inquiry, however. Although the Court has made the initial

determination that the challenged statement is not ambiguous as a matter of law, the Sixth Circuit has

held that the determination as to “whether facts exist to justify the statement is a question of fact.”

Am. Council, 185 F.3d at fn 2. See also Service Jewelry Repair, Inc., 145 F.Supp.3d at 746. As

discussed in more detail below, it is not clear that Metrasens has conceded that the KDI Ferralert Solo

that was tested by Intertek is, in fact, a 2012 prototype. Thus, the Court must evaluate whether there

is a jury issue as to “whether facts exist to justify” the unambiguous meaning of the challenged

statement; i.e., that the KDI Ferralert Solo was manufactured in 2018. The record reflects the

following.

Mr. Kopp testified that he could tell that the KDI Ferralert Solo that was tested by Intertek

was a 2012 prototype because of its color and serial number. (Kopp Nov. 8, 2022 Depo. (Doc. No.

45-17) at Tr. 88.) He explained that the Ferralert Solo was first introduced by KDI in 2012. (Id. at

Tr. 85.) The early (or “beta”) units were silver-gray in color, while the “production” units were ivory.

(Id. at Tr. 87-90, 117.) Mr. Kopp testified that the KDI Ferralert Solo that was tested by Intertek was

“one of the beta units because it was a different color” from the production units. (Id. at Tr. 88.)

Regarding the serial number, Mr. Kopp testified that the serial number of the Ferralert Solo that was

tested by Intertek was SL120217-01. (Id. at Tr. 96.) He explained that the letters “SL” stand for

Solo, and the numbers 120217-01 “tells you it’s built in 2012, the second month, 17th day, and it was

20

the first one built on that day.”13 (Id. at Tr. 96, 98.) According to Mr. Kopp, this demonstrates that

the Ferralert Solo tested by Intertek was a 2012 prototype. Mr. Kopp further testified that KDI had

made several improvements to the Ferralert Solo product since 2012. (Kopp June 29, 2023 Depo.

(Doc. No. 45-23) at Tr. 20, 38-39, 40-41; Kopp Nov. 8, 2022 Depo. (Doc. No. 45-17) at Tr. 118.) In

other words, Mr. Kopp testified that the KDI product that Intertek testified was not, in fact,

manufactured in 2018—instead, it was an earlier, and less sensitive, “prototype” of KDI’s Ferralert

Solo.

In deposition, Metrasens’ CEO, Simon Goodyear, testified that KDI had failed to provide any

evidence to support this assertion:

Q. *** There's no clarification on your website that the study, the Intertek study

that resulted in this data, compared a 2018 Metrasens product to a 2012 Kopp

product, correct?

MR. SMITH: Objection; form.

A. There is no information like that. Our understanding was that we procured a

product in 2018. And despite me asking for evidence from Keith [Kopp]

that that product as he claims is from 2012, he still failed to provide that

data to me. So how could we state anything other than this is a comparable

study.

***

Q. My question was: You have been told by Kopp that the study is comparing an

older 2012 Kopp product to a 2018 Metrasens product, correct?

A. That is what he has claimed, but he has given us no indication prior to the

lawsuit when I asked, that is actually correct. So we are still, given that he is

13 Mr. Kopp testified that, while it was common to use a “date code” that “allows you to put serial numbers in date order”

(i.e., year, month, day), there was “no industry norm that [he was] aware of” within the ferromagnetic detector industry.

(Id. at Tr. 95, 105.) Mr. Kopp conceded that Metrasens uses a “different scheme” for its serial numbers. (Id. at Tr. 96.)

Mr. Kopp further testified that KDI’s “internal people” would immediately know what “year, month and day the product

was made” by looking at the serial number on a KDI product, but that “outside of the company it is [just] a number.” (Id.

at Tr. 97, 100.)

21

telling us it's 2012 and we bought it 2018, we have no evidence that it is from

2012.

***

Q. Have you ever made a final determination of the date of manufacture of the

Kopp product you provided to Intertek?

MR. SMITH: Objection to form.

A. I'm still waiting for information from Keith Kopp to that effect.

***

Q. ** My question was: As you sit here today, do you have a belief as to what

the actual date of manufacture of the product that you provided to Intertek is?

MR. SMITH: Objection to form.

A. I do not have a date that I would say is factually proven as to be the date

of manufacture. So I cannot answer the question.

(Id. at Tr. 108-109; 113-114) (emphasis added). 14 Moreover, Mr. Goodyear questioned whether Mr.

Kopp’s assertion that the KDI Ferralert Solo was a 2012 prototype was accurate, given that (1)

Metrasens bought the KDI Ferralert Solo “on the open market as per a customer could have bought

it;”15 (2) the model number of the KDI Ferralert Solo that Metrasens bought matched the model

number of the KDI Ferralert Solo that was being sold at the time; (3) the price that Metrasens paid

for the Ferralert Solo (i.e., $13,800) fell within the market price range for that product at the time;

14 Mr. Goodyear also testified that the serial number of the KDI Ferralert Solo (SL120217-01) could just as easily have

been interpreted as indicating a manufacturing date of December 2, 2017. (Goodyear Depo. at Tr. 112.)

15 KDI introduced some evidence that Metrasens was aware that the third party from whom it purchased the KDI Ferralert

Solo had had been known “in the past to provide old stock.” (Goodyear Depo. at Tr. 64; Doc. No. 45-8.) Mr. Goodyear

testified that the third party in question was “a well-known and trusted third party” seller. (Goodyear Depo. at Tr. 79.)

22

and (4) the box, packaging, and instruction manuals of the KDI Ferralert Solo purchased by Metrasens

were “pristine.” (Id. at Tr. 81-87.)

Based on the above,16 the Court finds that there is a jury question as to “whether facts exist

so as to justify” Metrasens’ unambiguous statement that the KDI Ferralert Solo that was tested by

Intertek was manufactured in 2018. To the extent KDI argues that it is entitled to summary judgment

in its favor on this issue because there is no genuine issue of material fact that the KDI Ferralert Solo

was a 2012 prototype, the Court rejects this argument. The dispositive motion deadline in this matter

expired over seven months ago, on June 26, 2024. KDI did not file a Motion for Summary Judgment

at that time, and offers no reasonable explanation or argument as to why it should be allowed to do

so now. Trial is set to commence in just six weeks, on March 18, 2025. Allowing KDI to seek

summary judgment at this time would unduly delay this already three-and-a-half year-old case,

causing undue hardship to Metrasens and a misuse of judicial resources.17

Accordingly, and for all the reasons set forth above, the Court finds that the challenged

statement in Metrasens’ Summary is not ambiguous, but that there is a jury question as to “whether

facts exist so as to justify” Metrasens’ unambiguous statement that the KDI Ferralert Solo that was

tested by Intertek was manufactured and sold by KDI in 2018. The Court, therefore, cannot find that

16 The Court notes that this finding is based on the record before it at this time. Of course, if KDI possesses additional

documentation or evidence regarding the manufacture date of the Kopp Ferralert Solo that was tested by Intertek, it may

introduce such evidence at trial. Moreover, if Metrasens is willing to stipulate that the Kopp Ferralert Solo that was tested

by Intertek is a 2012 prototype and was not manufactured in 2018, the parties may so advise the Court in their Trial Briefs.

17 For similar reasons, the Court rejects KDI’s argument that “the statements at issue may also qualify as an ‘establishment

claim,’ which permits a plaintiff to prove literal falsity based on product testing.” (Doc. No. 54 at PageID# 2690.) KDI

did not move for summary judgment on liability based on this argument, nor did it raise (or even allude) to this issue in

its Brief in Opposition to Metrasens’ Motion for Summary Judgment. The Court further finds that KDI’s reference to

this argument goes well beyond the scope of this Court’s Supplemental Briefing Order. Accordingly, the Court will not

consider KDI’s “establishment claim” argument at this time.

23

the challenged statement is literally false until such time as the jury reaches a determination on that

fact issue.

2. Deliberate Intent or Bad Faith

As noted above, the parties disagree regarding whether, in addition to literal falsity, a finding

of deliberate intent or bad faith is required for the presumption of damages to apply. KDI argues that

“[w]hile the combination of literal falsity with bad faith certainly results in a presumption of money

damages, and those facts exist in this matter, Sixth Circuit precedent also provides that literal falsity

combined with targeted advertising against a main competitor also warrants a presumption of money

damages.” (Doc. No. 54 at PageID# 2682.) Metrasens disputes that literal falsity in targeted

advertising cases is sufficient to establish a presumption of damages and maintains that “governing

precedent in the Sixth Circuit permits a presumption of damages only if both literal falsity and

deliberate intent/bad faith are shown.” (Doc. No. 55 at PageID#s 2695, 2698-2699; Doc. No. 59 at

PageID# 2717.)

The Court finds that, in addition to literal falsity, KDI must establish both (1) deliberate intent

or bad faith (or “willful deception”); and (2) comparative advertising where the plaintiff’s product

was specifically targeted. In Balance Dynamics Corp., supra, the Sixth Circuit adopted the reasoning

of the Eighth Circuit in Porous Media Corp. v. Pall Corp., 110 F.3d 1329 (8th Cir. 1997), which

“permitted a presumption of money damages where there existed proof of willful deception” but

extended that presumption “only to cases of comparative advertising where the plaintiff’s product

was specifically targeted.” Balance Dynamics Corp., 204 F.3d at 694. The Sixth Circuit later

explained that Balance Dynamics recognized a “limited exception” to the general rule that a false

advertising plaintiff must prove damages. Innovation Ventures, LLC v. Bhelliom, 529 Fed. Appx. at

24

566. The court explained that, to qualify for this exception, it must be a comparative advertising case

where the plaintiff’s product was specifically targeted and the plaintiff must show “willful deception.”

Id.

District courts within this Circuit have interpreted Balance Dynamics and Innovation Ventures

v. Bhelliom as requiring proof of both willful deception and specific targeting for the presumption of

damages to apply. See, e.g., Louisiana-Pacific Corp. v. James Hardie Building Products, Inc., 335

F.Supp.3d 1002, 1016 (M.D. Tenn. 2018) (“The Sixth Circuit permits ‘a presumption of money

damages where there exist[s] proof of willful deception’ where the defendant has been specifically

targeted.”) (quoting Balance Dynamics Corp., 204 F.3d at 694); ACT, Inc., 2020 WL 12574239 at *

33 (“In the Sixth Circuit, damages are presumed when there is proof of willful deception and the

claimant’s product has been specifically targeted.”).

Based on the above, the Court finds that KDI must show deliberate intent/bad faith (or “willful

deception”) and specific targeting for the presumption to apply. Metrasens does not dispute that this

case involves comparative advertising where KDI’s product was specifically targeted. Metrasens

does, however, argue that the existence of deliberate intent/bad faith constitutes a question of fact

that must be submitted to the jury. (Doc. No. 55 at PageID# 2699-2700.)

KDI maintains that “Metrasens demonstrated recklessness amounting to willfulness” when it

(1) purchased the Kopp Ferralert Solo product despite knowing that the supplier “had been known in

the past to provide old stock;” and then (2) “willfully put out an ad” saying that the KDI product was

a “Standard, new, 2018” model “with no support to label it as such.” (Doc. No. 54 at PageID#s 2684-

2687.) KDI further asserts that willfulness is shown by Metrasens’ decision to “keep up the campaign

and continue to publish after express notice that the message was literally false.” (Id.) Lastly, KDI

25

asserts that this Court should determine that Metrasens engaged in “reckless/willful conduct” as a

matter of law. (Doc. No. 58 at PageID# 2710, 2712-2714.)

The Court finds that whether or not Metrasens’ conduct was deliberate, in bad faith, or

“willful” is a question of fact for the jury to decide. See Ethicon Endo-Surgery, Inc. v. Hologic, Inc.,

689 F.Supp.2d 929, 943 (S.D. Ohio 2010) (in evaluating presumption of damages, noting that “[a]

question of fact exists as to whether or not the actions of Hologic were willful.”) While KDI cites

evidence that Metrasens purchased the KDI Ferralert Solo without verifying the manufacture date

and despite knowing that the supplier had provided “old stock” in the past, Mr. Goodyear testified, at

length, to the many reasons why Metrasens reasonably believed that the KDI Ferralert Solo it

purchased for Intertek’s testing was, in fact, KDI’s current 2018 model. In light of this conflicting

evidence, the Court is not persuaded that it could (or should) determine that Metrasens engaged in

“willful deception” when it stated that the Ferralert Solo was a “Standard, new, 2018 FMDS patient

screening system.” Rather, this is an issue for the jury to decide.

III. Conclusion

Accordingly, and for all the reasons set forth above, the Court finds that it cannot determine,

as a matter of law, that the challenged statement in the Intertek Summary is literally false, or that

Metrasens’ conduct amounts to willful deception. These issues will need to be decided by the jury.

It follows, then, that the Court cannot determine as a matter of law that KDI is entitled to the

26

presumption of damages. The applicability of that presumption will depend upon the jury’s findings

as to literal falsity and willful deception.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: February 3, 2025 U. S. DISTRICT JUDGE

27