Plaintiff sued defendant related to a trademark infringement claim. Defendant hired an Insurance Adjuster Expert Witness to provide testimony. Plaintiff filed a motion to exclude this testimony. The court granted the motion to exclude.
Facts: This case (FCOA LLC v. FOREMOST TITLE & ESCROW SERVICES LLC – United States District Court – Southern District of Florida – January 28th, 2019) involves a claim for trademark infringement. The plaintiff argues that the defendant infringes on their trademark and would like them to remove the work “foremost” from their name. The defendant has hired David Milton (Insurance Adjuster Expert Witness) to provide testimony on their behalf. The plaintiff has filed a motion to exclude the expert witness testimony of Mr. Milton.
Discussion: Mr. Milton is a licensed insurance adjuster who opines that it is unreasonable to expect that any customer would be confused between the plaintiff and defendant because insurance companies and title companies serve different functions.
The plaintiff argues that Mr. Milton’s opinion should be excluded because he did not conduct any testing, research, analysis, or investigation. In addition, the plaintiff states that Mr. Milton did nothing scientific to reach his conclusions and that his opinions are based only on his experience working in the insurance industry, conversations with counsel, and a conversation with his wife.
Also, the plaintiff claims that Mr. Milton did not conduct a survey or perform any other type of scientific analysis to ascertain whether customers could be confused by the source of services between an insurance company and a title company. The plaintiff also notes that Mr. Milton did not even know what type of scientific analysis might be used to ascertain whether consumer confusion exists.
The defendant responds by stating that a scientific methodology is not required as Mr. Milton is qualified to serve as an expert due to his twenty-three years of experience in the insurance industry. The defendant also challenges the plaintiff’s contention that a lack of methodology renders Mr. Milton’s opinions as exempt. The defendant states that because Mr. Milton is an experienced insurance adjuster who has knowledge of how the property and casualty industries operate, his opinions are reliable.
The court opines that the plaintiff’s arguments are well taken because Mr. Milton opined on the likelihood of consumer confusion in the market, but did not base his opinions on any scientific testing or methodology. The court opines that it is the reliability of the opinions that is at issue, not Mr. Milton’s qualifications.
Conclusion: The motion to exclude the expert witness testimony of David Milton is granted.