Court Excludes Expert for Assessing OSHA Compliance Instead of ANSI


OSHA Expert WitnessCourt: United States District Court for the District of Minnesota
Jurisdiction: Federal
Case Name: Wing Enters. v. Tricam Indus.
Citation: 2019 U.S. Dist. LEXIS 113579

Facts

The parties produced competing brands of articulated ladders. The plaintiff brought this complaint claiming that the defendant had infringed one of its patents. The plaintiff further alleged that the defendant engaged in false advertising under the Lanham Act, 15 U.S.C. § 1125(a) and the Minnesota Deceptive Trade Practices Act, Minn. Stat. § 325D.44. The crux of the false-advertising claims was that the defendant represented that its ladders had complied with ANSI ASC A14.2, a voluntary industry standard for the product. However, according to the plaintiff, the product did not satisfy that standard. The defendant filed a motion for summary judgment along with a motion to exclude the testimony of the plaintiff’s expert witness.

The Expert Witness

The plaintiff’s expert witness served as the president of a company that designs, supervises, and analyzes consumer surveys, including trademarks, trade dress, advertising perception, consumer deception, claims, damages and corporate market research. The expert had extensive experience consulting on survey design and reviewing other surveys. The expert also had extensive experience providing expert evidence. The expert held both a bachelor’s degree and a master’s degree in mathematics, as well as a J.D. from Harvard Law School. The expert witness had experience working at a law firm where he represented companies and individuals in trademarks, trade dress, ads, brand, and other legal disputes.

The plaintiff provided the testimony of the expert witness solely for the purpose of demonstrating that the alleged false statements of the defendant were significant. The expert carried out two surveys purporting to show that the alleged false statements would have been important to customer purchasing decisions: a labeling survey, intended to evaluate consumer reactions to the alleged false statements on the label, and a significance survey, intended to determine the importance to customers of compliance with industry safety standards in general.

Arguments for Exclusion

The defendant did not challenge that the expert had the required skills and experience to qualify as an expert witness. The defendant instead argued that the expert’s testimony should be excluded because neither survey was relevant to the plaintiff’s claims in this case, which were specific to ANSI — not ANSI other than OSHA, or industry safety standards in general. The defendant also challenged the expert’s methodology of labeling the survey for failing to estimate the marketplace.

Discussion

The court found that the second argument was not convincing. The court noted that “the expert’s study was designed only to demonstrate the effect that the product had on consumer decisions. Whether the consumers saw the image in the store or on a website does not affect the relevance [of the expert’s] study or conclusions,” citing Aviva Sports, Inc. v. Fingerhut Direct Mktg.

The court noted, however, that the testimony had a more basic relevance issue: the surveys did not specifically assess the impact of ANSI enforcement, instead evaluating the value of ANSI compliance in conjunction with OSHA compliance, and its importance survey applied only to compliance with unspecified industry safety standards, not explicitly ANSI. The court noted that the plaintiff did not bear the burden of deciding how either the joint OSHA / ANSI claim or the industry safety standards were relevant issues for the jury to rule on in this case.

Held

The defendant’s motion to exclude testimony from the plaintiff’s OSHA expert witness was granted.

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