Court allows statistical survey evidence

(thanks Dauberttracker.com!)

In Merisant Co. vs. McNeil Nutritionals, LLC ( 4/12/2007), CIVIL ACTION NO. 04-5504, Pennsylvania, Eastern District (GENE E.K. PRATTER, United States District Judge.)

Case Summary:

Plaintiff, Merisant Company, Inc., filed a case against defendant McNeil Nutritionals, LLC, and McNeil PPC, Inc. under the Pennsylvania common law of unfair competition. The plaintiff alleged that defendant had engaged in false and misleading advertising with respect to Splenda No Calorie Sweetener.

The defendant proffered the statistical survey evidence. The plaintiff sought to exclude the survey and all related testimony and opinion.

The plaintiff argued that the defendant's survey did not meet the "fit" and "reliability" elements required by Daubert. The plaintiff further argued that the defendant's survey was neither relevant nor reliable with respect to the issues of this case. While expressing some reservations, the court nonetheless denied the motions to exclude.

This is an interesting case because the court goes into much detail and provides detailed analysis about what is required for a survey to be admissible. The court states:

In order for a survey to be admitted, its design must "fit" the issues to be decided in this case. In J&J Snack Foods Corp. v. Earthgrains Co., 220 F. Supp. 2d 358, 370 (D.N.J. 2002), the court state that: Above all, the survey's design must fit the issue which is to be decided by the jury, and not some inaccurate restatement of the issue, lest the survey findings inject confusion or inappropriate definitions into evidence, confounding rather than assisting the jury. Only if the expert testimony and related survey are useful, reliable, and have probative value after all their deficiencies are taken into account is the evidence admissible. Id. In addition, the court noted that it was "essential to consider whether the population and terms were properly defined, whether the design, questionnaires, and interviews met objective standards, whether data was accurately collected and reported, whether data was properly analyzed, whether the questions asked were unrelated to the material issues of the case, whether questions were unfairly leading, and whether questions were confusing." Id. at 369. J&J Snack Foods addressed a dispute arising in the trademark context, where a survey was submitted to show the trademark should be classified as "suggestive" instead of "generic" or "descriptive." However, the survey did not properly define any of the classifications, and, consequently, the court found that the survey had "no bearing on the issue it was submitted for." Id. at 370. The court noted that "the flawed definition permeated the entire survey to make its finding completely untrustworthy and unreliable." Id. at 370-71.