United States District Court, D. Minnesota
Wing Enterprises, Inc., d/b/a Little Giant Ladder Systems, a Utah corporation, Plaintiff,
Tricam Industries, Inc., a Minnesota corporation, Defendant.
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.
M. Stensland, Eric H. Chadwick, Adam Edward Szymanski, Thomas
G. Dickson, and Tye Biasco, Patterson Thuente Christensen
Pedersen, PA, Minneapolis, MN, for Defendant Tricam
OPINION AND ORDER
C. Tostrud United States District Judge
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.
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.
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.
alleges that three 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
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.
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
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)).
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.
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
(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,
(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
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).
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.
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