United States District Court, S.D. Mississippi, Southern Division
GIT-R-DONE PRODUCTIONS, INC. PLAINTIFF
GITERDONE C STORE, LLC and 443-B YACHT CLUB DRIVE LLC DEFENDANTS
ORDER DENYING MOTION IN LIMINE
GUIROLA, JR., CHIEF U.S. DISTRICT JUDGE
THE COURT is the  Motion in Limine to Exclude
Plaintiff's Expert Testimony and Materials filed by
Defendant Giterdone C Store, LLC. Having reviewed the
submissions of the parties and the applicable law, the Court
is of the opinion that the Motion should be denied. The
expert testimony and materials at issue meet the standards of
admissibility under Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).
an action for federal trademark infringement and related
claims. Plaintiff Git-R-Done Productions, Inc., originally
sued Defendant Giterdone C Store, LLC, the owner of the
Giterdone gas station and convenience store located in
Diamondhead, Mississippi. The Court later allowed an
amendment to add Defendant 443-B Yacht Club Drive LLC,
although that Defendant is not a party to the current
Motion. Plaintiff contends that “Defendant
has purposefully misappropriated” the well-known
Git-R-Done “tagline and trademark of the famous
comedian and actor, Daniel Lawrence Whitney, known by his
stage name, Larry the Cable Guy.” (Compl. 1 (¶1),
ECF No. 1).
retained expert Sarah Butler to provide a report and survey
“to evaluate the extent to which the general population
has any association with the phrase GIT-R-DONE.”
(Butler Rep. 4, ECF No. 124-1). Defendant does not challenge
Ms. Butler's qualifications, but states that her
“survey and report suffer from serious and fatal design
flaws, poor execution, and conclusions . . . .” (Mot.
1-2, ECF No. 124).
to Federal Rule of Evidence 702, an expert witness may
testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
the standard for admission of expert witness testimony set
forth by the United States Supreme Court in Daubert,
509 U.S. 579, “the trial judge must ensure that any and
all scientific testimony or evidence admitted is not only
relevant, but reliable.” Id. at 589.
“‘District courts enjoy wide latitude in
determining the admissibility of expert testimony . . .
.'” Smith v. Goodyear Tire & Rubber
Co., 495 F.3d 224, 227 (5th Cir. 2007) (citation
omitted). However, “the trial court's role as
gatekeeper is not intended to serve as a replacement for the
adversary system: ‘Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.'”
United States v. 14.38 Acres of Land, More or Less
Situated in Leflore Cty., Miss., 80 F.3d 1074, 1078 (5th
Cir. 1996) (quoting Daubert, 509 U.S. at 596).
“Experts should be excluded only if their testimony is
so fundamentally unsupported that it cannot possibly help the
factfinder.” Octave v. Beau Rivage Resorts,
Inc., No. 1:09cv753-LG-RHW, 2011 WL 1099866, at *1
(S.D.Miss. Mar. 22, 2011) (citing Viterbo v. Dow Chem.
Co., 826 F.2d 420, 422 (5th Cir. 1987)).
context of surveys in particular, “the general rule is
that methodological flaws in a survey bear on the weight the
survey should receive, not the survey's
admissibility.'” See Honestech, Inc. v. Sonic
Sols., 430 F. App'x 359, 361 (5th Cir. 2011)
(citation omitted). “Stated differently, methodological
errors generally speak to weight not admissibility.”
Id. (citation, quotation marks, and ellipses
omitted). “In any event, a survey need not be perfect
to be admitted into evidence.” Id.
Court has thoroughly reviewed Butler's expert report and
survey, as well as Defendant's arguments regarding the
same. In doing so, the Court is of the opinion that all of
Defendant's arguments go to the weight, rather than the
admissibility, of Butler's testimony, report, and survey.
This is simply not a situation where “serious flaws in
a survey will make any reliance on that survey
unreasonable.” See Scott Fetzer Co. v. House of
Vacuums, Inc., 381 F.3d 477, 488 (5th Cir. 2004);
see also, e.g., Octave, 2011 WL 1099866, at
*1. Rather, the Court finds that the evidence at
issue should be allowed, and that Defendant can