Deficiencies Of False Advertising Survey Affect Weight, Not Admissibility

In an Lanham Act express and implied false advertising case by baby formula maker against a competitor, admitting two expert surveys for plaintiff that demonstrated that the charged advertising conveyed "false messages" from defendant's advertising mailer; while the survey sample did not exactly match the audience that received the disputed advertisement (as the surveyed population also included parents of infants older than the two-to three-month target purchasers), "it was a sufficiently close approximation of the recipient pool” and the flaws went to its weight, not admissibility, in PBM Products, LLC v. Mead Johnson & Co., __ F.3d __ (4th Cir. April 20, 2011) (No. 10–1421)

Survey evidence is a common feature in Lantham Act litigation involving trademarks. Under FRE 702, this inevitably involves the introduction of expert testimony to explain the interpretation of a survey study. As a general rule, "while technical deficiencies can reduce a survey's weight, they will not prevent the survey from being admitted into evidence.” PBM Products, LLC., __ F.3d at __ (citing 6 McCarthy on Trademark, § 32:170)). Rather, the courts have long found that "[w]hile there will be occasions when the proffered survey is so flawed as to be completely unhelpful to the trier of fact and therefore inadmissible, such situations will be rare,” AHP Subsidiary Holding Co. v. Stuart Hale Co., 1 F.3d 611, 618 (7th Cir. 1993) (objections based on flaws in a survey's methodology are properly addressed by the trier of fact). In a recent case, the Fourth Circuit assessed the alleged deficiencies in proffered defense survey evidence and re-affirmed the general rule that a survey's technical unreliability goes to weight not admissibility.

In the case, plaintiff PBM Products accused defendant Mead Johnson of making literal and implied false claims in a comparative advertising of baby formula made by the parties. The plaintiff charged that the defendant falsely and unfairly compared the the plaintiff's baby formula against the defendant's. When the jury rendered a verdict in favor of the plaintiff in the case on the false advertising claim, the defendant appealed contending, among other things, that the trial judge erred by admitting two expert surveys by the plaintiff's expert. As survey evidence is often used to prove a claim of false advertising, the plaintiff's burden in the false advertising case was to show that the charged ad "tends to deceive or mislead a substantial portion of the intended audience.” PBM Products, LLC., __ F.3d at __ (quoting aScotts Co. v. United Industries Corp., 315 F.3d 264, 280 (4th Cir. 2002)). This is "typically shown by the use of consumer surveys."

The Fourth Circuit affirmed the trial judge's admission of the plaintiff's expert survey evidence. It noted that the key to assessing this issue was the question under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993), of whether the expert evidence “rests on a reliable foundation and is relevant.” Although the target audience for the product and the advertising was parents of infants two-to three-months old, the challenged surveys swept much broader than that and included parents of infants above the two-to three-month age. As described by the circuit, the two surveys had the following features:

  • Schoen Survey: "[P]resent[ed] an online survey to a group of participants located by a third party. The survey participants were pre-screened to ensure that they were (1) new parents or expecting a baby in the next six months, (2) were open to considering purchasing infant formula, (3) were not participating in the Women, Infants, and Children Nutrition Program, and (4) were or would be the primary or shared decision maker in choosing infant formula brands."
  • Ridgway Survey: "[B]ased on interviews conducted among four groups of consumers, two of which were exposed to the disputed advertisement and two of which were exposed to a 'control mailer' that contained similar, but more accurate statements about Mead Johnson's infant formula. All participants were new and expectant mothers. After viewing either the disputed advertisement or the control advertisement, participants dialed a toll free number and were questioned about the material."

PBM Products, LLC., __ F.3d at __.


The Fourth Circuit rejected that these surveys "were inherently unreliable and irrelevant, and the [expert's survey] testimony should have been excluded because they both surveyed the wrong universe of respondents." PBM Products, LLC., __ F.3d at __. As noted by the circuit:

A “universe” is “that segment of the population whose perceptions and state of mind are relevant to the issues in the case.” A “survey of the wrong ‘universe’ will be of little probative value in litigation.” We are persuaded that in this case, while the survey sample may not exactly match the audience that received the advertisement, it is a sufficiently close approximation of the recipient pool to be admissible. Accordingly, the district court did not abuse its discretion in admitting the expert testimony.

* * *

The district court concluded that “while Mead Johnson has pointed out numerous ways in which it would have conducted Ridgeway's survey differently, its arguments do not demonstrate that the methods used were not of the type considered reliable by experts in Ridgway's field.” Specifically, the court concluded that Ridgway's control “was one appropriate method to investigate how alleged ‘non-misleading’ statements would effect [sic] recipients in comparison to the alleged misleading statements.” In addition, the court concluded that Mead Johnson's objections to the testimony went to the weight of the evidence, not admissibility, because “the facts of this case did not mandate one approach over another.” Mead Johnson's argument that Ridgway and Schoen surveyed the wrong universe bears directly on the weight accorded to the survey, not to its admissibility. We conclude without difficulty that the district court did not abuse its discretion by admitting the expert testimony.

PBM Products, LLC., __ F.3d at __ (emphasis added) (citing McCarthy on Trademarks and Unfair Competition § 32:159 (4th ed.2003); PBM Products v. Mead Johnson, 2010 WL 560 72, at *12 (E.D.Va. Jan. 4, 2010)).

Federal Rules of Evidence
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