Commercial Litigation and Arbitration

Absence of Any Methodology by Expert in “Metaphorical Associations” Warrants Exclusion under Daubert and Rule 702 — Expert Unnecessary Where Jury Is Capable of Comprehending Facts and Drawing Conclusions

From Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 U.S. Dist. LEXIS 106106 (C.D. Ill. Nov. 13, 2009), a trademark infringement action:

Dr. Edward Lee Lamoureux holds a Ph.D. from the University of Oregon in Rhetoric and Communication with an emphasis on conversation analysis, rhetoric, qualitative research methods, general speech, and interpersonal communication. He has been employed a professor in Bradley University's Department of Communication since 1985 and asserts that his expertise lies in the realm of "social" linguistics, as opposed to "formal" linguistics.... Although Freestar disputes the relevancy of his qualifications, Dr. Lamoureux's educational background clearly qualifies him as an expert on "social" linguistics and rhetorical criticism.

Dr. Lamoureux has offered an expert report with two pages of analysis concerning the "Flagstar Bank" and "Freestar Bank" names. Lamoureux asserts that "flag," "free," and "star" are each "strongly associated with some of the most broadly shared values in American culture: Patriotism, loyalty, national identity, and individual rights". Briefly noting the "significant and overlapping metaphorical associations" of these words, Lamoureux goes on to state that "given post 9-11 emphases on patriotism and nationalism, we can expect that a substantial population of bank customers are likely to confuse" the parties' names if encountered in a common marketplace.

Freestar argues that Dr. Lamoureux's report is unreliable, not as a result of faulty methodology, but because Dr. Lamoureux employs no methodology at all. According to Dr. Lamoureux, his conclusions are based upon consultation of "classic texts" in the field of metaphorical association. The consultation of texts is acceptable if it leads to a report grounded in the accepted theory or method applicable to the field. However, as this court has stated before, "if [the expert] is unable to specify what type of methodology [he] employed in this case, it is evaluate the propriety of that methodology". Collier v Bradley, 113 F.Supp. 2d 1235, 1244-1245 (C.D. Ill. 2000)

Dr. Lamoureux has not presented any proposal, theory, or technique justifying his conclusion that customers are likely to confuse the parties' marks. Dr. Lamoureux includes no footnotes and attaches no supplements which explain the theories offered by the "classic texts" he read. He includes no reference to or discussion of the classic texts in his report. Thus, the court is left to speculate as to what the classic texts stated and how Dr. Lamoureux used those theories to reach the conclusions he articulates. Dr. Lamoureux proposes no theory which explains how one particular metaphor shared by three words becomes so dominant in customer's minds that it overcomes the many other metaphorical associations attributable to the words. Dr. Lamoureux asserts that all of these words are "God-terms," "Ideographs," and "Ultimate-terms"; however, he offers no explanation of the factors or process by which a word is evaluated and categorized as a "God-term". Further, Dr. Lamoureux offers no explanation of why words associated under the "God-term" category move beyond the realm of distinguishable similarity and into the world of confusion. His fleeting reference to "metaphorical markers" and similar meanings sets is accompanied by no stated theoretical underpinning which would explain the significance of these labels on consumer confusion in the marketplace.

Further, Dr. Lamoureux references no polls or qualitative research supporting his statement that patriotic metaphorical associations "have become particularly 're-energized' and show an increase in both patriotic and nationalistic fervor since the events of September 11, 2001".... Without any references to back up this bare assertion, Dr. Lamoureux's statement is nothing more than conjecture. Is he asserting that "re-energized" patriotic metaphors reveal an increase in patriotic fervor? Does he base his conclusive findings on personal observation? Television reports? Dr. Lamoureux fails to establish any basis for a conclusion so important to his testimony. He also fails to discuss and quantify the phrase "particularly re-energized" or theoretically connect this concept with a likelihood of confusion in the marketplace. Have words bearing an association to patriotism become so "re-energized" that customers are not able to "meaningfully distinguish" between them? Id. Without data, process, theory, or any other testable methodology, expert testimony does not fall within the admissibility standards of Daubert.

The utter absence of a reliable theory is highlighted by Dr. Lamoureux's inability to express a theory or explain the procedure by which he could evaluate whether the words "freedom," "America," "liberty," and "patriot" fall under the same metaphorical umbrella of "patriotism" that also covers the terms "flag," "free," and "star". Lamoureux Dep. at 112-120 (Q: "Does patriot have a nationalistic or patriotic connotation to you?" A: "I don't have a professional opinion. I haven't studied it"). When questioned about his preparation process, Dr. Lamoureux stated that he was given the parties' names and subsequently "formulated sort of a plan of attack as to how I would work this out if I was going to make the argument".... Preparation by an expert which involves beginning with a goal (finding a similarity between the marks) and working backwards to meet the goal (evaluating only the given words, looking for a link) is the antithesis of reliable and scientific. See Castellow v. Chevron USA, \97 F.Supp.2d 780 (S.D.Tex. 2000) (excluding expert testimony due to unreliable methodology which was "result-driven" and "anathema to both science and law").

In addition to a reliability inquiry, the court must evaluate the relevancy of the proffered testimony. Dr. Lamoureux's general expertise in the field of rhetorical criticism is relevant to a discussion of similarities in meanings between two words. However, expert testimony is unnecessary, and may be excluded at the trial judge's discretion, if

"...all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation." Mercado v. Ahmed, 974 F.2d 863, 870 (7th Cir. 1992) (quoting Salem v. United States Lines Co., 370 U.S. 31, 35 (1962)).

In light of these standards, it is clear that the two page report submitted by Dr. Lamoureux is not particularly helpful because the trier of fact is able to draw upon his/her own understanding and evaluate the meanings of the words included in the parties' marks. First, the array of meanings and associations ascribable to the words "flag," "free," and "star" are easily discernable to "men of common understanding". When presented with the parties' marks, the average person is capable of concluding that all three words share a patriotic connotation. A person of average intelligence knows that the American flag features stars in the upper left corner and symbolizes, among many other concepts, the "Land of the Free". Conversely, the common juror is also capable of discerning the differences in meaning and association between the three words. A juror could conclude that a consumer hearing the word "star" would immediately think of outer space or a celebrity before thinking of the shape. It is entirely reasonable and conceivable, possibly even likely, that consumers could primarily associate the word "free" with an item or service requiring no payment. Considering the immense popularity of American football among American citizens, a group of people brainstorming the meanings of these words could correctly note that a "flag" is also the yellow piece of cloth thrown during a football game after a penalty occurs on the field. Men of common understanding do not need assistance in comparing the similarities and differences of common English words such as "flag," "free" or "star". They need help in determining how the similarities of these words lead to confusion, or conversely, how the differences among the words may negate the likelihood of confusion. See Patsy's Italian Restaurant, Inc. v. Banas, \531 F.Supp.2d 483, 485 (E.D.N.Y. 2008) (excluding expert testimony where the party has failed to show why the testimony would aid the jury on the likelihood of confusion question).

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