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Wing Enterprises, Inc. v. Tricam Industries, Inc.

United States District Court, D. Minnesota

July 9, 2019

Wing Enterprises, Inc., d/b/a Little Giant Ladder Systems, a Utah corporation, Plaintiff,
v.
Tricam Industries, Inc., a Minnesota corporation, Defendant.

          Mark A. Miller, Brett L. Foster, and Elliot James Hales, Dorsey & Whitney LLP, Salt Lake City, UT, and Clint Conner and Caitlin L. D. Hull, Dorsey & Whitney LLP, Minneapolis, MN, for Plaintiff Wing Enterprises, Inc.

          Sarah M. Stensland, Eric H. Chadwick, Adam Edward Szymanski, Thomas G. Dickson, and Tye Biasco, Patterson Thuente Christensen Pedersen, PA, Minneapolis, MN, for Defendant Tricam Industries, Inc.

          OPINION AND ORDER

          Eric C. Tostrud United States District Judge

         The Parties manufacture competing brands of articulated ladders, also known as multi-position (or “MPX”) ladders. Plaintiff Wing Enterprises, Inc., makes multi-position ladders under the Little Giant brand. Defendant Tricam Industries, Inc. makes multi-position ladders under the Gorilla Ladders brand. Wing filed this lawsuit in May 2017, alleging that Tricam had infringed one of Wing's patents and had engaged in false advertising under the Lanham Act, 15 U.S.C. § 1125(a), and the Minnesota Deceptive Trade Practices Act (“DTPA”), Minn. Stat. § 325D.44. See Compl. ¶¶ 29-48 [ECF No. 1]. Tricam filed patent-related counterclaims. See Am. Answer & Counterclaims at Counts 1 & 2 [ECF No. 14]. Wing and Tricam have resolved the patent-related claims, see Order for Dismissal With Prejudice of Certain Counts [ECF No. 82], but the false-advertising claims remain. The thrust of those claims is that Tricam represented that its Gorilla Ladders comply with ANSI ASC A14.2 (“ANSI A14.2”), a voluntary industry standard for portable metal ladders that was developed by the American Ladder Institute, but in fact the rungs of its ladders are not sufficiently deep all the way across to satisfy that standard as Wing understands it.

         Tricam now moves for summary judgment against Wing's false-advertising claims. ECF No. 159. Tricam also moves to exclude the testimony of two of Wing's expert witnesses. ECF Nos. 220, 224. The Court has subject-matter jurisdiction over the Lanham-Act claim pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the DTPA claim pursuant to 28 U.S.C. § 1367(a). For the reasons described below: (1) the Daubert motion as to Wing's expert Donald Bloswick will be denied; (2) the Daubert motion as to Wing's expert Hal Poret will be granted; and (3) Tricam's summary-judgment motion will be granted.

         I

         Under the Lanham Act:

Any person who, . . . in connection with any . . . services, . . . uses in commerce any . . . false or misleading description of fact, or false or misleading representation of fact, which. . . in commercial advertising or promotion, misrepresents the nature, characteristics, [or] qualities . . . of his or her . . . goods, . . . shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1)(B). The “purpose of the Lanham Act is ‘to protect persons engaged in commerce against false advertising and unfair competition.'” Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387, 390 (8th Cir. 2004) (quoting United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998)).

         Wing alleges that three[1] different statements constitute false advertisements by Tricam: (1) the label affixed to each ladder containing an oval icon that bears the text “MANUFACTURER CERTIFIES CONFORMANCE TO OSHA[2] ANSI A14.2 CODE FOR METAL LADDERS”; (2) the portion of each product's page at Home Depot's website that provides: “Certifications and Listings: ANSI Certified”; and (3) the portion of each product's page on Tricam's website that provides: “CERTIFICATIONS: ANSI A14.2 OSHA.” Wing Mem. Opp'n Summ. J. at 4 [ECF No. 260]. The second and third challenged statements also occur in close proximity to OSHA-conformance statements, but Wing's false-advertising claims are not based on any OSHA-related statements.

         To establish a false-advertising claim under the Lanham Act, a plaintiff must prove:

(1) a false statement of fact by the defendant in a commercial advertisement about its own or another's product; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the deception is material, in that it is likely to influence the purchasing decision; (4) the defendant caused its false statement to enter interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false statement, either by direct diversion of sales from itself to defendant or by a loss of goodwill associated with its products.

United Indus., 140 F.3d at 1180 (citations omitted). Failure to demonstrate any one of those five elements is fatal to the claim. Allsup, Inc. v. Advantage 2000 Consultants Inc., 428 F.3d 1135, 1138 (8th Cir. 2005) (citation omitted). The Minnesota Deceptive Trade Practices Act “mirrors” the Lanham Act, and courts therefore “use the same analysis to evaluate false advertising claims that are made simultaneously under the federal and state statutes.” Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc., No. 09-cv-1091 (JNE/JSM), 2011 WL 4457956, *6 (D. Minn. Sept. 23, 2011) (quoting Med. Graphics Corp. v. Sensormedics Corp., 872 F.Supp. 643, 649 (D. Minn. 1994)).

         II

         Before Tricam's summary-judgment motion can be resolved, the universe of potentially relevant facts must be defined. Tricam moves to exclude the testimony of two of Wing's experts: Donald S. Bloswick, as to his opinions about whether Tricam's ladders failed to conform to ANSI A14.2 and thus whether its statements that it ladders did conform were false; and Hal Poret, as to his opinions about whether Tricam's ANSI-certification statements were material. Bloswick's testimony will be admitted; Poret's testimony will be excluded.

         A

         Rule 702 of the Federal Rules of Evidence govern the admissibility of expert testimony. That rule provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

See also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). “District courts have wide latitude in determining whether an expert's testimony is reliable.” Olson v. Ford Motor Co., 481 F.3d 619, 626 (8th Cir. 2007) (citation omitted). District courts have identified a number of factors they may consider in determining whether an expert's testimony is the product of “reliable principles and methods, ” including:

(1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether the theory or technique has a known or potential error rate and standards controlling the technique's operation; and (4) whether the theory or technique is generally accepted in the scientific community.

Smith v. Cangieter, 462 F.3d 920, 923 (8th Cir. 2006) (citation omitted). “This evidentiary inquiry is meant to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as the particular case demands. Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005) (citation omitted). As long as the evidence indicates that the expert evidence is reliable and relevant, “no single requirement for admissibility” governs. Id. “The proponent of the expert testimony must prove its admissibility by a preponderance of the evidence.” Lauzon v. Senco Prod., Inc., 270 F.3d 681, 686 (8th Cir. 2001). “As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (citation omitted). But the court must exclude an expert's opinion if it “is so fundamentally unsupported that it can offer no assistance to the jury.” Id. at 929-30 (citation omitted). Furthermore, “under Daubert and Rule 403 of the Federal Rules of Evidence, the probative value of the expert testimony must not be substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.” United States v. Solorio-Tafolla, 324 F.3d 964, 966 (8th Cir. 2003) (citation omitted).

         B

         Wing relies on Bloswick's expert testimony to show that Tricam's ANSI-conformance statements are literally false. Wing Mem. Opp'n Summ. J. at 25-26, 42. In particular, the Parties dispute whether Tricam's ladders satisfy Section 6.7.5 of ANSI A14.2, which requires, in relevant part, that “[t]rapezoidal, D-shaped or equivalent, square or rectangular rungs shall have a step surface of not less than one inch, either flat or along a segment of arc of 3inches or greater radius.” Preliminary Report by Donald Bloswick (“Bloswick Report”) at 4 (citing ANSI A14.2) [ECF No. 119]. Tricam says the step surface of its rungs is deep enough; Wing, based largely on Bloswick's testimony, see id., contends they are not, at least not across their full width.

         Bloswick holds a Ph.D. in Industrial and Operations Engineering and for more than three decades was a professor in the field of ergonomics. Id. at 1. His work has included independent research on ladder-climbing safety and biomechanics. Id. From approximately 1986 to 2014, he served as an independent expert on the ANSI A14 Committee, where he focused on the ANSI A14.3 (Fixed Ladder) subcommittee. Id. As an independent specialist, he is not affiliated with any ladder manufacturer or related regulatory industry. Id. Tricam does not dispute that Bloswick “is qualified as an expert by knowledge, skill, experience, training, or education, ” as Rule 702 requires; he clearly is. Furthermore, specialized ...


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