Experts — Survey Evidence and Daubert

In a major decision addressing expert evidence in trademark litigation, District Judge Shira A. Scheindlin, in Louis Vuitton Malletier, v. Dooney & Bourke, Inc., 2007 U.S. Dist. LEXIS 91934 (S.D.N.Y. Dec. 13, 2007), excluded voluminous expert evidence — largely survey evidence, but damages evidence as well — for failure to satisfy Rule 702 (Daubert) standards as well as Rule 403. Judge Scheindlin, with minor exception, adopted the extremely impressive Report and Recommendation of Special Masters Daniel J. Capra of Fordham Law School and Barton Beebe of Cardozo Law School, which is reported at: Louis Vuitton Malletier v. Dooney & Bourke, Inc.,, 2007 U.S. Dist. LEXIS 92167 (S.D.N.Y. June 15, 2007). The Special Masters’ Report and Recommendation is a 79-page treatise on the interplay of Rules 702 and 403 in the context of survey evidence, as applied in the trademark context to Confusion and Dilution surveys, illustrating the proper application of each element of Rule 702(1)-(3), analysis of issues that are appropriate for expert testimony vs. those best left to the jury, and it also addresses such issues as the bounds of permissible reliance of one expert on another under Rule 703. Well worth reading.

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