Expert Witness Blog
Plaintiff filed suit against defendants related to a false advertising and unfair competition claim. Plaintiff hied a Marketing Expert Witness to provide testimony. Defendant filed a motion to exclude this expert from testifying. The court denied the motion to exclude.
Facts: This case (Quidel Corporation v. Siemens Medical Solutions USA, Inc. et al – United States District Court – Southern District of California – October 21st, 2019) involves a claim of false advertising and unfair competition. Both parties manufacture and sell assays (blood tests) that can aid in the detection of Graves’ disease. The plaintiff’s claims come from a statement on the defendants website that says IMMULITE detects “TSI Only.” The plaintiff has hired Marketing Expert Witness Matthew G. Ezell to provide an expert opinion. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The defendants first allege that Ezell surveyed an irrelevant population. The court notes that Ezell’s survey was “comprised of physicians that specialize in endocrinology and who, as part of their practice, order assay tests to assist in patient diagnosis.” The defendants argues tat the plaintiff has alleged that laboratories, not physicians were misled by the advertising. The court opines that that the plaintiff did not concretely define the market of consumers in its complaint. Thus, the court opines that it will not strike Ezell’s report for this reason.
The defendants also argue that the survey questions are ambiguous. The defendants state that Ezell used the terms “TSI only” and “TRAb assay” in the survey without defining the terms. The plaintiff alleges that this is an issue for the jury. The court opines that caselaw suggests that an objection about the phrasing of survey questions and the use of possible ambiguous terms is a “survey design” issue, which goes to the weight of the evidence, not the admissibility.
Next, the defendants argue that the survey questions led and biased the respondents. The court opines that these types of arguments go to the weight of the evidence, not the admissibility.
The defendants also argue that the website excerpt shown to the control group was biased because it used “gratuitous language”. The court opines that the differences between the website excerpt shown to the control group and that shown to the test group are not so great that they changed the result of the survey. Also, the court opines that this argument also goes to the weight of the evidence, not the admissibility.
The defendants also argue that Ezell’s conclusions should be excluded. The court does opines that Ezell explained how he coded the responses, which is not a reason to exclude the survey.
Conclusion: The motion to exclude the expert witness testimony of Matthew G. Ezell is denied.