Inappropriate Testimony Regarding Organization's History

In Lanham Act false advertising bench trial of plaintiff religious "Order of St. John" against defendant ecumenical "Order of St. John," finding as more credible testimony by "current head" of the defendant ecumenical order, "who did not hold himself out to be an expert in history," in Sovereign Military Hospitaller Order of Saint John of Jerusalem of Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. Florida Priory of Knights Hospitallers of Sovereign Order of Saint John of Jerusalem, Knights of Malta, Ecumenical Order, 694 F.3d 1200 (11th Cir. Sept. 22, 2012) (No. 11–15101)

Frequently a trial court receives evidence -- often directly contradictory -- on different aspects of an issue from both a lay and expert witness's testimony. Once this evidence is admitted, is the proffered expert opinion entitled to more weight than that of the lay witness? In a recent case, the Eleventh Circuit explored a court's use of expert and lay witness testimony during a bench trial, reaffirming a trial judge's "prerogative" when fact finder to "weigh[ ] the testimony and c[o]me to a [factual] conclusion," even if it "might not be the same as those" that would be reached by the appeals court "if presented with the same evidence." This is a very basic principle. It is occasionally lost in the struggle to qualify and present expert testimony for trial. The gap illustrates the difference between admissibility of evidence and its weight.

In the case, a religious "Order of St.John ... of Malta" sued defendant ecumenical "Order of St.John ... of Malta" alleging trademark infringement, false advertising and state unfair competition civil violations. The Religious Order claimed that the Ecumenical Order infringed their trademarks and that the defendant falsely claimed a historic affiliation with the Plaintiff Order which was rooted in the eleventh century. At its bench trial, the trial court ended up agreeing with the Defendant Order that the plaintiff committed fraud on the PTO in its application for four service marks and accordingly the court ordered the mark's cancellation. In addition, the trial court concluded that the defendant's contention of a connection to the eleventh century "Order of St.John ... of Malta" was historically accurate and therefore the plaintiff's claims of false advertising and unfair trade practices were not supported.

The plaintiff appealed on numerous basis, including a challenge to the trial judge's historical findings about the history of the defendant's organization. As described by the Eleventh Circuit, that task before the trial court was a:

...monumental task of adjudicating the accuracy of two competing versions of late-eighteenth-to-early-nineteenth century history. The testimony of Plaintiff Order's witnesses advised that The [defendant] Ecumenical Order ... had no connection to Plaintiff Order and that no split ever occurred in the long history of Plaintiff Order as an organization. The testimony of The [defendant Ecumenical Order's] witnesses, however, sought to establish that as a result of Napoleon's 1798 invasion of Malta, the original Order of Malta essentially ceased to exist. They advised that other religious orders connected to that parent group sprung up, two of which are Plaintiff [religious] Order and The [defendant] Ecumenical Order. In their eyes, The [defendant's origins] ... connects to the original Knights of Malta....
Sovereign, 694 F.3d at 1214-15.


At root of the dispute over the trial court's historical findings was a conflict between witnesses of the parties who presented the historical record. The Circuit noted that ultimately,

The district court essentially agreed with the version of history as presented by The [defendant ecumenical order] and, specifically, by [current Grand Master of The parent Ecumenical Order] Papanicolaou. On appeal, Plaintiff [Religious] Order argues that its witnesses, rather than those of The [Ecumenical Order], accurately recited the relevant history. It attributes error to the district court's reliance on the testimony of Papanicolaou—who did not hold himself out to be an expert in history—over the testimon[y] [of] Dr. Vann ... whom was qualified as an expert in the history of the Order of Malta.
Sovereign, 694 F.3d at 1215.

The circuit dismissed that there was really an evidence issue at stake here at all. In its view, the trial court faced "ultimately a matter of [deciding witness] credibility in light of the documentary evidence presented. On the one hand, the district court had Papanicolaou, the head of The Ecumenical Order, who had read books and reviewed documents concerning the history of his organization.... On the other hand, there was [expert witness for the plaintiff] Dr. Vann, who ... devoted her life to the study of Plaintiff [religious] Order and has reviewed original documents and published texts concerning its history." The question for the trial court is which opinion carried greater weight? As long as the trial judge faced the question of credibility of witnesses and "[i]n the context of this bench trial, the district court chose from one of two positions, each of which was supported by trial testimony." Sovereign, 694 F.3d at 1216.

The circuit rejected the plaintiff's challenge. It was a determination that was the trial court judge's to make and any reasonable basis for its decision was sufficient:

The federal courts do not sit as a final arbiter of historical fact, and a serious scholar would probably be reluctant to cite to a district court's findings of fact as a definitive statement of history. Instead, the district court evaluates a case by considering the evidence presented to it. After carefully considering the trial transcript, we are not left with the “definite and firm conviction that a mistake has been committed.” Although the factual findings of the district court might not be the same as those that we would have made if presented with the same evidence, that alone does not provide a basis for reversal. In the absence of any definitive evidence that establishes that the parties are not connected, we must affirm the district court's disposition of this claim.
Sovereign, 694 F.3d at 1216-17 (citing Johnson & Johnson Vision Care, Inc. v. 1–800 Contacts, Inc., 299 F.3d 1242, 1246 (11th Cir. 2002); Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985) (“If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”).)

In his dissent from the circuit's determination, Circuit Judge Pryor based his objections primarily on the majority's decisions on the evidence issues. The judge noted that "[s]pecial dangers attend the introduction of testimony about history in judicial proceedings. The district court clearly erred when it found that the Sovereign Military [religious] Order and the Florida Priory [ecumenical order] share a history prior to 1798 because no competent evidence supports that finding." Sovereign, 694 F.3d at 1219. (citing Holly Morgan, Comment, Painting the Past and Paying for It: The Demise of Daubert in the Context of Historian Expert Witnesses, 44 Wake Forest L.Rev. 265, 294–95 (2009) (“[W]hen a historian, whose methodology is unsound, is placed before a [factfinder], the historian has the ability to paint a picture of the past as he or she so desires. And this, in turn, has the potential to change and shape the way the public views, interprets, and understands the past.”)).

In particular, the judge challenged that there was any basis for the defense witness's testimony as to history of the organization. The judge noted that the witness Papanicolaou "was not qualified as an expert in history," by his own admission and that he could not properly provide lay testimony because the witness

Papanicolaou lacked personal knowledge to offer testimony regarding historical events that occurred long before he was born. What the majority fails to grasp is that these objections represent two sides of the same coin: an objection that a witness is not qualified as an expert is necessarily an objection that a witness lacks personal knowledge of the subject matter of his testimony, and an objection that a witness lacks personal knowledge is an objection that the witness can testify only if he is qualified as an expert or can offer lay opinion testimony."
Sovereign, 694 F.3d at 1220-2.

Federal Rules of Evidence
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