Commercial Litigation and Arbitration

Non-Expert Historian Testimony — Non-Expert Head of Organization Permitted to Testify as to Centuries-Old History of Organization — Daubert in Bench Trials: Limited But Not Non-Existent Role — Good Quotes

Sovereign Military Hospitaller Order vs. Florida Priory of the nights Hospitallers, 2012 U.S. App. LEXIS 19104 (11th Cir. Sept. 11, 2012):

Plaintiff-Appellant Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta (Plaintiff Order) is a religious order of the Roman Catholic Church that undertakes charitable work internationally. Defendant-Appellee The Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (The Florida Priory) is also a charitable organization, having an expressly ecumenical, rather than Catholic, association. Although The Florida Priory incorporated in Florida in 2005, it is associated with a parent organization, Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order (The Ecumenical Order), which was first incorporated in the United States in 1911. The Ecumenical Order is not associated with the Catholic Church, although approximately sixty percent of its members are Catholic.

Plaintiff Order filed suit against The Florida Priory in July of 2009 asserting infringement and false advertising claims under the Lanham Act, 15 U.S.C. § 1051 et seq., as well as state law claims for unfair competition and violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. § 501.201 et seq. The infringement claims were based on The Florida Priory's alleged use of marks that are confusingly similar to those for which Plaintiff Order has obtained federal registrations. In the false advertising claim, Plaintiff Order charged that The Florida Priory (through its parent) falsely claimed a historic affiliation with Plaintiff Order going back to the eleventh century. The state law claims derive from these same allegations. ***

I. Facts and Procedural History


A. Plaintiff Order's History and Service Mark Registrations

1. Trial Testimony Regarding History

As part of its case, Plaintiff Order presented the testimony of Geoffrey Gamble, a representative of Plaintiff Order, and Dr. Theresa Vann, an expert historian, to trace the history of Plaintiff Order from its founding to present. According to these witnesses, Plaintiff Order was founded in Jerusalem in the eleventh century. (D.E. 144, 37:11-12.) It relocated to the City of Acre and later to the island of Rhodes, where it was known as the Knights of Rhodes. (Id. at 37:12-16.) After spending about two-hundred years on the island of Rhodes, the group located in Malta (becoming the Order of Malta), which had been ceded for the Order's use by Emperor Charles V. (Id. at 37:16-18.) Organizationally, multiple priories--a term which Gamble explained references canonical religious bodies where people are housed, (Id. at 48:25-49:1)--existed across Europe. At some point there existed priories in Poland, Bavaria, and England, though the Polish priory had been lost when Poland was partitioned. (D.E. 145,110:12-18.)

Around 1797 or 1798, the Order of Malta was suffering financial hardship and sought monetary support from Czar Paul I of Russia. (Id. at 108:20-109:3.) Two knights went to Russia seeking to obtain the property of the former Polish priory, and out of this visit came an agreement to create a Catholic-affiliated Russian priory. (Id. at 110:25-111:9.)

In 1798, Napoleon expelled the Order of Malta and its knights from the island of Malta, and the organization relocated to present-day Italy. (D.E. 144, 37:17-19; D.E. 145, 111:13-25.)2 The Order of Malta's Grand Master at the time, Ferdinand von Hompesch zu Bolheim, wrote to Czar Paul I for support after this expulsion. (D.E. 145, 111:12-18.) Czar Paul I, in response to the request for assistance and "for reasons best known to himself," created a non-Catholic order for the non-Catholic members of his court. (Id. at 112:6-10.) Czar Paul I then had the two priories--the Catholic Russian priory and the non-Catholic priory--declare von Hompesch deposed, and Czar Paul I established himself as Grand Master.3 (Id. at 112:10-12.) Czar Paul I was assassinated in 1801, and his son Alexander became Czar of Russia. (Id. at 114:16-17.)

In the early 1800s, the two Russian priories, along with the other European priories, elected Giovanni Battista Tomassi as Grand Master. (Id. at 118:16-19.) Czar Alexander I did not entertain the activities of either of the two Russian priories and in 1810 abolished them by taking away their lands. (Id. at 115:6-8, 116:15-22.)

Grand Master Tomassi served for only a couple of years, and the next Grand Master was not confirmed by the Pope until 1879. (Id. at 123:3-7.) The title of Grand Master was in abeyance for that period because of the warfare in Europe and, importantly, because Plaintiff Order was without land, a headquarters, or revenue. (Id. at 121:16-122:16.) The Order utilized that interim period to redefine its responsibilities and focus on its hospitaller, rather than its military, activities. (Id. at 119:24-120:5, 122:18-23.) Likewise, over the past century, Plaintiff Order has served to provide hospital accommodations and serve as a religious order of the Catholic Church. (Id. at 124:3-6.) It is currently headquartered in Rome. (Id.)

Plaintiff Order began operating in the United States in 1926 or 1927 when it established the American Association in New York. (D.E. 144, 90:11-12.) Later, Plaintiff Order established the Western Association, based in San Francisco, and the Federal Association, based in Washington, D.C. (Id. at 106:7-9, 107:8-10.) There are about 3000 Knights and Dames of Plaintiff Order within the United States. (Id. at 190:23.) ***

B. The Florida Priory's History and Relevant Service Mark Registrations

1. Trial Testimony Regarding History

The testimony about the origins of The Florida Priory came largely from Nicholas Papanicolaou, the current Prince Grand Master of The Ecumenical Order (parent organization of The Florida Priory). His testimony of history up until Napoleon's invasion of Malta is in accord with the version of events presented by Plaintiff Order's witnesses. The accounts of history differ beginning around 1798. According to Papanicolaou, after Napoleon invaded and expelled the knights from Malta, the knights relocated all across Europe. (D.E. 146, 21:14-20.) Approximately three-hundred knights ended up in Russia, and consistent with the procedures of the Order of Malta, their sixteen-person electoral college elected Czar Paul I as the new Grand Master. (Id. at 21:18-222:5.) Czar Paul I instituted three fundamental organizational changes: (1) the Grand Master was not required to be a cleric, (2) titles could be passed hereditarily, and (3) the order was open to non-Catholics. (Id. at 29:2-23.)

Panpanicolaou testified that around this time the Order of Malta ceased to exist as it had prior to 1798. (Id. at 24:3-4.) The Order of Malta no longer had territory, and the relocation of many of its knights into Russia meant that the Russian Order, which had elected Czar Paul I as Grand Master, was the legitimate continuation of that group. (Id. at 25:3-10.) After the assassination of Czar Paul I, his son Alexander became protector of this Russian order. (Id. at 22:6-17.) At that time, the Russian order was composed of two priories: the Catholic-affiliated Polish Grand Priory and the non-Catholic Russian Grand Priory. (Id. at 22:11-17.) In order to secure alliances that were required to take on Napoleon, Alexander returned the Polish Grand Priory to the Pope. (Id. at 23:9-13.)

The return of the Catholic priory marked the origin of the organization that is now Plaintiff Order. (Id. at 25:3-10.) The non-Catholic Russian Grand Priory persisted in Russia until the Bolshevik revolution, at which time the headquarters was moved to the United States. (Id. at 25:11-16.) This organization eventually became known as The Ecumenical Order, and it had its first meeting in the United States on January 10, 1908, as memorialized in its minutes. (Id. at 25:23-26:6.)

In January of 1911, The Ecumenical Order incorporated in New Jersey under the name "The Knights of Malta, Inc." (the New Jersey Corporation). (D.E. 25-1, Exh. 2; D.E. 146, 40:2-9.) A companion and successor organization to the New Jersey Corporation was formed in Delaware in August of 1956 under the name "Sovereign Order of Saint John of Jerusalem, Inc." (the Delaware Corporation). (D.E. 25-1, Exh. 3; D.E. 146, 37:7-10; 75:17-25.) The late 1970s brought turmoil to the group, and in 1981, The Ecumenical Order severed ties with the leadership of the Delaware Corporation. (D.E. 146, 47:16-51:25.) The Ecumenical Order raises funds and undertakes charitable activities notwithstanding its present unincorporated status. Approximately sixty percent of The Ecumenical Order's members are Catholic. (D.E. 145, 24:22-23.)

The Florida Priory began operating as early as 1977. (D.E. 146, 7:1, 47:22-48:3.) The Florida Priory has used the marks of its parent, The Ecumenical Order, since its founding. In 2005, The Florida Priory incorporated [*12] in Florida, (id. at 7:9), and its principal place of business is located in West Palm Beach.***

C. Lanham Act False Advertising Under the Lanham Act, an entity that misrepresents the "nature, characteristics, qualities, or geographic origin" of its services in commercial advertising or promotion is liable to the persons damaged by the false or misleading representation. 15 U.S.C. § 1125(a)(1). We have interpreted this language to require a plaintiff to demonstrate that: (1) the defendant's statements were false or misleading; (2) the statements deceived, or had the capacity to deceive, consumers; (3) the deception had a material effect on the consumers' purchasing decision; (4) the misrepresented service affects interstate commerce; and (5) it has been, or likely will be, injured as a result of the false or misleading statement. See Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir. 2002).

Plaintiff Order's false advertising claim was based on its position that The Florida Priory does not share any history with, and has no connection to, the historic Order of Malta. It argues that The Florida Priory's adoption of Plaintiff Order's pre-1798 historical lineage and corresponding record of charitable activities is likely to deceive customers into contributing money to The Florida Priory. In assessing this claim, the district court was faced with the monumental task of adjudicating the accuracy of two competing versions of late-eighteenth-to-early-nineteenth century history. The testimony of Plaintiff Order's witnesses advised that The Ecumenical Order--and therefore The Florida Priory--had no connection to Plaintiff Order and that no split ever occurred in the long history of Plaintiff Order as an organization. (D.E. 144, 39:5-7; D.E. 145, 124:7-10.) The testimony of The Florida Priory's witnesses, however, sought to establish that as a result of Napoleon's 1798 invasion of Malta, the original Order of Malta essentially ceased to exist. They advised that other religious orders connected to that parent group sprung up, two of which are Plaintiff Order and The Ecumenical Order. In their eyes, The Florida Priory connects to The Ecumenical Order, which connects to the original Knights of Malta, just as Plaintiff Order is connected to the original Knights of Malta.

The district court essentially agreed with the version of history as presented by The Florida Priory and, specifically, by Papanicolaou. On appeal, Plaintiff Order argues that its witnesses, rather than those of The Florida Priory, accurately recited the relevant history. It attributes error to the district court's reliance on the testimony of Papanicolaou--who did not hold himself out to be an expert in history--over the testimonies of Gamble and Dr. Vann--only one of whom was qualified as an expert in the history of the Order of Malta. We conclude that the district court did not clearly err in its factual findings and therefore affirm its disposition of the false advertising claim.

The main thrust of Plaintiff Order's argument is that Papanicolaou's testimony was based on his own view of history rather than any reliable evidence. It is true that Papanicolaou did not testify as an expert historian. He did testify, though, as Prince Grand Master of The Ecumenical Order and presented history-related testimony in much the same way Gamble did as Plaintiff Order's representative. (D.E. 144, 35:2-4.) Papanicolaou stated that he possessed the archives of The Ecumenical Order; that he had read history books concerning the organization; and that he had previously seen the records of The Ecumenical Order, which are located in the United Kingdom, Malta, Canada, the United States, and Sweden. (D.E. 146, 17:8-18:4.) He testified that he had seen some of his organization's post-1798 records in Russia. (Id. at 18:19-22.) The Florida Priory submitted to the district court the texts that Papanicolaou relied upon in arriving at his historical narrative. The district court took notice of their existence, stating "I may browse through th[e books], but I wouldn't want to represent that I know everything." (Id. at 16:2-19.) The Florida Priory also submitted the minutes of the 1908 meeting of The Ecumenical Order in New York, which tend to support Papanicolaou's version of events. We are reluctant to conclude here that the head of an organization is incompetent to testify about the history of the organization, especially when the opposing party had the opportunity to fully cross-examine and challenge his credibility on all aspects of his testimony. In fact, Plaintiff Order, upon whom the burden of proof rested, itself relied upon its own non-expert--Geoffrey Gamble--to testify as an historian. (D.E. 144, 37:11-40:19.)

Plaintiff Order contends that the district court must be reversed because the testimony of its expert witness directly contradicts Papanicolaou's account of the historical events that occurred around 1798. Although it is true that the witnesses presented contrasting views of history, we cannot say that the district court clearly erred. To be sure, both Gamble and Dr. Vann testified that they did not see any connection between The Ecumenical Order and Plaintiff Order.... On cross-examination, however, Dr. Vann testified that she did not have any records from Russia after 1798, ... had not gone to Russia to look at records,... and had not asked to see The Ecumenical Order's records.... Dr. Vann also testified that the book upon which she relied was published by Plaintiff Order. (Id. at 132:12-20.)

Faced with all of this information, the district court's decision was ultimately a matter of credibility in light of the documentary evidence presented. On the one hand, the district court had Papanicolaou, the head of The Ecumenical Order, who had read books and reviewed documents concerning the history of his organization. The district court also had the testimony of Joyner, a member of The Ecumenical Order, who had written a book based on his account of what he had read regarding his organization's history. On the other hand, there was Dr. Vann, who has devoted her life to the study of Plaintiff Order and has reviewed original documents and published texts concerning its history. In addition, the district court had the testimony of Gamble, who had published a historical booklet concerning Plaintiff Order. (D.E. 144, 40:17-19.) The district court, as is its prerogative when conducting a bench trial, weighed the testimony and came to a conclusion. See Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1559 (11th Cir. 1988) ("Assessing the weight of evidence and credibility of witnesses is reserved for the trier of fact."). The cross-examination of Dr. Vann gives some basis for the district court's apparent reluctance to accept that testimony as a definitive statement of history, and there was no documentary evidence submitted that would otherwise satisfy Plaintiff Order's burden of proving the absence of a connection between the groups. In the context of this bench trial, the district court chose from one of two positions, each of which was supported by trial testimony.

The federal courts do not sit as a final arbiter of historical fact, and a serious scholar would probably be reluctant to cite to a district court's findings of fact as a definitive statement of history. Instead, the district court evaluates a case by considering the evidence presented to it. After carefully considering the trial transcript, we are not left with the "definite and firm conviction that a mistake has been committed." Johnson & Johnson, 299 F.3d at 1246. Although the factual findings of the district court might not be the same as those that we would have made if presented with the same evidence, that alone does not provide a basis for reversal. See Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518 (1985) ("If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently."). In the absence of any definitive evidence that establishes that the parties are not connected, we must affirm the district court's disposition of this claim.

Although Plaintiff Order's trial objection preserved for appeal whether Papanicolaou was qualified to testify as a historian, see supra note 17, Plaintiff Order's initial brief fails to address this argument. The brief merely mentions that Papanicolaou's testimony "was not based on personal knowledge." That portion of one sentence buried within thirty-six pages of legal argument fails to carry the weight that the dissent seeks to attribute to it. Plaintiff Order makes no argument that Papanicolaou had to be qualified as an expert in order to testify about the history of The Ecumenical Order. Plaintiff Order does not cite to even one of the Federal Rules of Evidence, much less Rule 702 governing expert testimony. There is no mention of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), or any allegation that the district court failed in its role as gatekeeper. Nor is there a citation to any case that considered the exclusion of non-expert testimony. Arguments not raised in a party's initial brief are "considered abandoned." United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005). We are reluctant to reverse a district court "pursuant to legal theories [the plaintiff] did not outline, based on facts [the plaintiff] did not relate." Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1481 n.12 (11th Cir. 1997). An appellate court "has no duty to research and construct legal arguments available to a party." Head Start Family Educ. Program, Inc. v. Coop. Educ. Serv. Agency, 46 F.3d 629, 635 n.9 (7th Cir. 1995).***


I concur in the majority opinion with the exception of the resolution of the evidentiary issues as they relate to the claim of false advertising, from which I respectfully dissent. The district court rejected the claim of false advertising based on a finding that the Sovereign Military Order and the Florida Priory share a history, and the district court based that finding on the testimony of Nicholas Papanicolaou. Special dangers attend the introduction of testimony about history in judicial proceedings. "[W]hen a historian, whose methodology is unsound, is placed before a [factfinder], the historian has the ability to paint a picture of the past as he or she so desires. And this, in turn, has the potential to change and shape the way the public views, interprets, and understands the past." Holly Morgan, Comment, Painting the Past and Paying for It: The Demise of Daubert in the Context of Historian Expert Witnesses, 44 Wake Forest L. Rev. 265, 294B95 (2009). The district court clearly erred when it found that the Sovereign Military Order and the Florida Priory share a history prior to 1798 because no competent evidence supports that finding.

Under the Federal Rules of Evidence, three types of testimony are admissible in federal court. First, a witness may testify about a matter if he has personal knowledge of that matter. Fed. R. Evid. 602. Second, a witness who is not testifying as an expert may offer opinion testimony if the opinion is "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed. R. Evid. 701. Third, 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" four conditions described in Rule 702 are established. Fed. R. Evid. 702.

The Florida Priory understandably does not argue that Papanicolaou had personal knowledge of any of the events between 1798 and the early twentieth century that were the subject of his testimony. Papanicolaou's testimony about the arcane history concerning the evolution of the Ecumenical Order from the original Knights of Malta instead would have to be based on "specialized knowledge" of history. Accordingly, the rules regarding expert opinion governed the admissibility of Papanicolaou's testimony about history, but this district court considered Papanicolaou's testimony without qualifying him as an expert.

Contrary to the assertion in the majority opinion, the Sovereign Military Order did not abandon its argument that Papanicolaou's testimony was inadmissible. The Sovereign Military Order devoted over five pages of its initial brief to the argument that the district court erred when it rejected the claim of false advertising based on a finding that the parties had a shared history. ***

The majority states that the Sovereign Military Order makes no argument that Papanicolaou had to be qualified as an expert in order to testify about the history of the Ecumenical Order, Majority Opinion at 33, but that assertion misapprehends both the briefs and the record. The majority acknowledges that the Sovereign Military Order objected at trial that Papanicolaou was not qualified as an expert in history and that the Sovereign Military Order argues on appeal that Papanicolaou lacked personal knowledge to offer testimony regarding historical events that occurred long before he was born. What the majority fails to grasp is that these objections represent two sides of the same coin: an objection that a witness is not qualified as an expert is necessarily an objection that a witness lacks personal knowledge of the subject matter of his testimony, and an objection that a witness lacks personal knowledge is an objection that the witness can testify only if he is qualified as an expert or can offer lay opinion testimony. The Sovereign Military Order did not abandon its argument that Papanicolaou was not qualified as an expert to testify about the history of the Knights of Malta by arguing in its opening brief that Papanicoloau lacked personal knowledge to testify about that history. The district court admitted Papanicoloau's testimony, over the objection of the Sovereign Military Order, even though the district court did not qualify him as an expert witness, and the Sovereign Military Order argues on appeal that Papanicolaou's non-expert testimony is inadmissible because it is not based on personal knowledge.

And contrary to the argument of the majority opinion, the Sovereign Military Order was not required to "renew[]" its objection "so as to permit the district court an opportunity to definitively rule on the propriety of the testimony or whether it was even expert in nature." Majority Opinion at 28-29, n.17. Federal Rule of Civil Procedure 46 provides that "[a] formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, a party need only state the action that it wants the court to take or objects to, along with the grounds for request or objection." Fed. R. Civ. P. 46. We long ago did away with the common law requirement of formal exceptions to the rulings of trial courts.

The majority also faults the Sovereign Military Order for failing to cite a Federal Rule of Evidence to support the elementary proposition that a witness ordinarily must have personal knowledge of the subject of his testimony, Majority Opinion at 33, but this argument does not turn on an interpretation of any Rule of Evidence. It is undisputed that Papanicolaou lacked personal knowledge about the subject of his testimony.

Hinting that two wrongs make a right, the majority obliquely suggests that we should overlook any error in admitting Papanicolaou's testimony because the Sovereign Military Order called Geoff Gamble who offered testimony about the history of the Knights of Malta even though he was not qualified as an expert in history. But the Florida Priory did not object to Gamble's testimony about history, and the district court did not rely on Gamble's testimony when it found that the Sovereign Military Order and the Florida Priory share a history before 1798. Whether the district court abused its discretion when it admitted Gamble's testimony might be at issue if the Florida Priory had made an appropriate objection to that testimony at trial and the district court had relied on Gamble's testimony to find that the Sovereign Military Order proved that the two organizations did not share a history before 1798, but this appeal does not present that issue.

The district court abused its discretion when it admitted Papanicolaou's testimony based on "specialized knowledge" without qualifying him as an expert or ensuring that his testimony was reliable. The Sovereign Military Order objected at trial that Papanicolaou had "not been qualified to testify as an historian," but the district court disregarded that objection and permitted Papanicolaou to testify concerning the history of the Ecumenical Order and the Knights of Malta. "[W]hen a party offers expert testimony and the opposing party raises a . . . challenge [under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)], the trial court must 'make certain that [the] expert, whether basing [his] testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1237 (11th Cir. 2005) (alterations added) (quoting Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)). The district court makes this determination by applying Rule 702. See id. Rule 702 permits a district court to admit expert testimony if it finds that "the expert's . . . specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue," "the testimony is based on sufficient facts or data," "the testimony is the product of reliable principles and methods," and "the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702. Although "the task of evaluating the reliability of expert testimony is uniquely entrusted to the district court" and "we give the district court considerable leeway in the execution of its duty[,] [w]e will reverse when the district court's Daubert ruling . . . amount[s] to an abuse of discretion that affected the outcome of the trial." United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005) (internal quotation marks and citations omitted). "An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment." Id. And "a district court abuses its discretion where it fails to act as a gatekeeper by essentially abdicating its gatekeeping role." Id. By failing to perform any analysis under Rule 702, the district court abdicated its gatekeeping function when it admitted Papanicolaou's testimony.

Rule 702 governs the admissibility of expert testimony regardless of whether the case is tried to a jury or a judge. Several of our sister circuits have ruled that "Daubert's requirements of reliability and relevancy continue to apply in a bench trial." Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010); see also Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 779 (10th Cir. 2009); Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002). Although "the usual concerns of [Rule 702]--keeping unreliable expert testimony from the jury--are not present in [a bench trial], and our review must take this factor into consideration," Metavante Corp., 619 F.3d at 760; see also Brown, 415 F.3d at 1268-69, the district court must nevertheless "provide more than just conclusory statements of admissibility or inadmissibility to show that it adequately performed its gatekeeping function," Metavante Corp., 619 F.3d at 760 (internal quotation marks omitted). The district court abused its discretion when it failed to make any determination whether Papanicolaou's testimony about history was reliable.

Despite the "reluctance" of the majority to conclude . . . that the head of an organization is incompetent to testify about the history of the organization," Opinion at 30, we cannot disregard the Federal Rules of Evidence. The majority cites no authority for its "head of an organization" or "institutional knowledge" exception to the requirement of Rule 602 that an ordinary witness must have personal knowledge of the subject of his testimony, and the exception makes no sense. A judicially-crafted rule of evidence allowing the head of an organization, without personal knowledge or qualification as an expert, "to testify about the history of the organization" would, for example, permit the governor of a state to testify in a voting rights case that there was no "history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process," Thornburg v. Gingles, 478 U.S. 30, 36B37, 106 S. Ct. 2752, 2759, 92 L. Ed. 2d 25 (1986) (citation omitted), even though the governor did not have personal knowledge of events that occurred in the state long before he was born. The rule would also allow the chief of an Indian tribe in modern-day America to testify, in an action to establish aboriginal title to land, that "the lands in question were . . . the ancestral home of" his tribe, United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 345, 62 S. Ct. 248, 251, 86 L. Ed. 260 (1941), and the tribe "had inhabited [those lands] from time immemorial," Mashpee Tribe v. Sec'y of Interior, 820 F.2d 480, 482 (1st Cir. 1987). And, in the light of the broad language the majority employs, the rule might also permit the chief executive officer of Delta Airlines to testify, based on the institutional knowledge of the business, that a plane crash did not result from pilot error even though he holds a law degree instead of a degree in physics or aeronautical engineering. Whether the district court abused its discretion when it admitted and relied upon Papanicolaou's testimony about history is no small matter. The competent evidence in the record establishes that the Sovereign Military Order is an ancient Christian organization that operates charitable hospitals and performs good works around the globe. In the absence of Papanicolaou's inadmissible testimony that the Florida Priory and the Sovereign Military Order share a history, the record makes plain that the Florida Priory has played no part in those good works.

The majority opinion constructs a straw man when it suggests that "a serious scholar would probably be reluctant to cite to a district court's findings of fact as a definitive statement of history." Majority Opinion at 32. The real issue is whether the district court based its findings about history on the testimony of a serious scholar. The district court cannot rely on the testimony of a lay witness about ancient history. The district court must instead rely on the testimony of an expert to make findings about history, which is the province of serious scholars. Instead of relaxing the rules concerning the admission of expert testimony when the subject matter of the testimony is history, we should ensure that those rules have been applied. The district court failed to do so, and we should reverse its ruling that the Sovereign Military Order failed to prove that the Florida Priory engaged in false advertising under the Lanham Act.

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